By: Madison Gore
Published On: May 16, 2024
2024 marks the beginning of another critical election year. In Florida’s Fifth Congressional District (CD-5), however, election outcomes are contingent upon the Florida Supreme Court’s upcoming determination of what congressional district map should be implemented.[1]
CD-5 is compromised predominantly of Black voters, who have continuously voted for Black, Democrat representation in Congressional elections. Prior to 2017, CD-5 ran north-south and covered Jacksonville to Orlando.[2] To increase the Black Voter Age Population (BVAP) to over fifty percent, CD-5 shifted to an east-west running district that included the land from Jacksonville to Tallahassee.[3] This shift was only temporary, however, and needed to be re-evaluated once the 2020 census information became available.
In 2022, Florida gained a new congressional seat, resulting in a reapportionment of the state’s congressional district map.[4] Republicans in the State Legislature initially proposed a congressional map that would leave CD-5 as a Black, Democrat district, while keeping a majority of 16 of 28 seats Republican.[5] However, Governor Ron DeSantis vetoed this proposed map and instead approved a map that changed CD-5 to lean towards a white, Republican district, as well as change the BVAP across three other districts.[6] This map was challenged in court by lawmakers and civil rights groups across the state, arguing that the map violated the Fair Districts Amendment of the Florida Constitution.[7]
The Fair Districts Amendment (FDA) states congressional district boundaries cannot be drawn “with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.”[8] The first prong of the FDA focuses on non-dilution, which exists in newly formed districts where a minority is not at a 50% VAP to constitute a majority-minority district.[9] The second prong focuses on non-diminishment, which prevents existing districts from “backsliding,” where minority groups lose their ability to elect their candidate of choice and does not include a VAP percentage.[10]
The Circuit Court of the Second Judicial Circuit held that if the proposed map would apply, Black voters’ ability to vote for their preferred candidate would be diminished. Judge Marsh used a three-factor test to see if elimination of the previous CD-5 would diminish the Black population’s ability to vote the way they did in the prior district. The three factors are: “(1) Whether the minority group votes cohesively, (2) Whether the minority candidate of choice is likely to prevail in the relevant contested party primary, and (3) Whether that candidate is likely to prevail in the general election.”[11] The Black constituents of CD-5 voted cohesively in elections; the preferred candidate, Al Lawson, prevailed in the primary, and the same preferred candidate won a contested general election.[12] The court held the enacted plan was unconstitutional and the ruling was immediately appealed by the defendants.
In early December 2023, the First District Court of Appeals reversed the decision by the Second Judicial Circuit. The court held DeSantis’ map did not diminish the Black voters’ ability to vote for their preferred candidate in CD-5, making the map no longer unconstitutional. Instead of using the non-diminishment rationale used by the Second Judicial Circuit, the First District Court of Appeals chose to apply the non-dilutional factors established in Thornburg v. Gingles. The Gingles factors are: “1) the minority group must be “sufficiently large and geographically compact to constitute a majority in a single member district”; (2) the minority group must be “politically cohesive”; and (3) the majority must vote “sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”.[13] The court held the plaintiffs failed to establish that Blacks in CD-5 are geographically compact because they were spread out across hundreds of miles and thus are not “entitled to proportional representation merely because they were once included together in former CD-5 by court order for three election cycles”.[14] Since the court held there was no voter dilution from the enactment of the new map, the court reversed the Second Judicial Circuit’s decision. This decision was also appealed, and as of January 24, 2024, the Florida Supreme Court has accepted the plaintiff’s appeal but has not set a date for oral arguments.
- This has serious consequences for the Black voters in North Florida, as the Florida Supreme Court may not hear the case prior to the 2024 primaries. As the decision stands, however, civil rights organizations are worried that current status of CB-5 being constitutional will pave the way for continued voter suppression in Florida.[15] In the dissent at the appellate level, Judge Bilbrey highlights this by explaining “A historically performing benchmark district for Black voters was not just diminished – it was eliminated. … A politically cohesive racial minority is now denied the ability to elect a candidate of choice in a racially polarized district, showing that unconstitutional diminishment has occurred,”[16]
Overall, the Florida Supreme Court’s decision will have significant implications for the upcoming congressional election. Depending on which way the Supreme Court goes in determining whether there is voter dilution or diminishment, the current CD-5 could stay as is or return to its initial proposal, which would keep the majority-minority district intact. Hopefully the Court will focus on the diminishment argument rather than the dilution argument, but it is still very unclear what the Florida Supreme Court will do.
[1] Gary Fineout, Florida appeals court sides with DeSantis, reverses ruling on congressional map, Politico (Dec. 1, 2023, 8:00 PM) https://www.politico.com/news/2023/12/01/florida-court-desantis-congressional-map-00129722
[2] Byrd v. Black Voters Matter Capacity Bldg. Inst., Inc., 2023 Fla. App. LEXIS 8131, at *1, 5 (1st Cir. 2023).
[3] Id. at *5-6
[4] Fineout, supra note 1.
[5] Fineout, supra note 1.
[6] Byrd, at *11-12 (explaining the shift of BVAP across the newly drawn congressional districts, which went from a BVAP of 46.2% to “the BVAP in new CD-2, CD-3, CD-4, and CD-5 are 23.1 percent, 15.0 percent, 31.7 percent, and 12.8 percent.”).
[7] Byrd, at *1
[8] Fla. Const. art. III, §§ 20(a), 21(a)
[9] Black Voters Matter Capacity Bldg. Inst., Inc., v. Byrd, Case No. 2022-CA-666, at 21 (Fla. Cir. Ct. 2023).
[10] Id.
[11] Id. at 22.
[12] Id. at 17.
[13] See Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
[14] Byrd v. Black Voters Matter Capacity Bldg. Inst., Inc., 2023 Fla. App. LEXIS 8131, at *1, 38-39 (1st Cir. 2023).
[15] Florida appeals court upholds congressional redistricting plan backed by Gov. Ron DeSantis, CBS News (Dec. 1, 2023, 7:20 PM), https://www.cbsnews.com/miami/news/florida-appeals-court-upholds-congressional-redistricting-plan-backed-by-gov-ron-desantis/ (quoting Genesis Robinson, political director for Equal Ground, one of the groups that sued over the maps. “How are Black voters in Florida supposed to have equal representation under the law when the diminishment of their voting rights goes unchecked?”)
[16] Byrd, at *97.