DeSantis wants the Florida Supreme Court to strike Jacksonville’s Black congressional district

A week after Gov. Ron DeSantis asked the Florida Supreme Court to tell him if Jacksonville’s Congressional District 5 is constitutional, the state’s highest court received arguments about whether it could weigh in on the question at all.

Congressional redistricting has stalled in Florida while the governor and the Legislature wait for the court to rule.

Before bringing the court in, the Florida Senate had already settled on a congressional proposal that largely maintains District 5, which is currently represented by Democratic U.S. Rep. Al Lawson, in a Jacksonville to Tallahassee shape.

While the Senate has said that Districts 5 in North Florida and 10 in Orlando remain protected to ensure Black voters retain the ability to elect candidates of their choice, DeSantis’ staff criticized the proposal as “unconstitutional”.

The Legislature redrew District 5 in the middle of the last decade after courts found an earlier Jacksonville-to-Orlando district had arbitrarily packed Black voters to make them a majority of the district.

DeSantis’ proposal, which he submitted last month, would cut two of the state’s four Black districts and create two solidly Republican seats in Northeast Florida.

The governor asked the court to issue an opinion determining if the state’s Fair Districts standards — which say that minority populations’ voting power can’t be diminished — explicitly require a North Florida district that connects Jacksonville’s Black population with Black populations in Tallahassee or Orlando to ensure Black voters can elect the candidate of their choice.

The Florida Constitution allows governors to seek advisory opinions of the court, but only as it relates to “the interpretation of any portion of this constitution upon any question affecting the governor’s executive powers and duties”.

DeSantis argued he needed the court to weigh in because whatever maps the Legislature approves will affect his executive duty to veto a potential congressional map. He also said that because he must “take care that the laws [are] faithfully executed” and his secretary of state must adopt the map, the redistricting proposals will affect his executive duties.

In opposing legal briefs, U.S. Rep. Sheila Cherfilus-McCormick, All on the Line Florida, FairDistricts Now and Common Cause Florida argued these were legislative powers, not executive ones, and the court didn’t have the authority to weigh in on a hypothetical map.

Their briefs also argued that redistricting is inherently “fact-intensive” and requires examining constitutional questions as it relates to specific facts about certain districts.

DeSantis’ own request for an opinion acknowledged that in 1887, the court ruled that the governor’s veto is a “legislative power” and declined to issue an opinion. Yet DeSantis’ brief argued that the court should instead consider the veto to be an executive power.

While the briefs were supposed to focus on whether the Florida Supreme Court has the legal authority to give an opinion on pending redistricting, that didn’t stop some from previewing further arguments.

DeSantis argued that the state’s Fair Districts standards only protect districts that secure minority voters’ ability to elect their preferred candidates only if those districts are “geographically cohesive,” and he argues that the Jacksonville-to-Tallahassee construction is not.

Mayor Lenny Curry also weighed in with an argument filed by DeSantis’ former General Counsel Joe Jacquot. The brief, which didn’t touch on DeSantis’ authority to ask for the court’s opinion, argued that the court should give an opinion before the Legislature adopts a plan as a sort of preclearance that will protect Jacksonville voters from having to undergo another round of redistricting if the map is later struck down.

Although Curry’s brief said he took “no position on the validity or appropriateness of any of the proposed” maps, he said that Jacksonville residents “may be better served without a District stretching from one region of the state to another.”

What has gone unsaid in the briefs and in any of the congressional proposals to date is that the Legislature could draft an alternative proposal that makes more compact versions of the districts yet still protects Jacksonville’s Black voters’ ability to elect their preferred candidate.

Duval County has about a million people, and the ideal congressional district makes up 769,221 people, which means Duval will always have at least two congressional districts running through it.

It’s possible to draw a congressional district wholly within Duval County that would consistently vote Democratic and see Black voters make up the majority of Democratic primary voters.

But instead of having one district remain wholly in Jacksonville, DeSantis’ proposes one district take population from Duval, Clay and Nassau counties and the other take people from Duval and St. Johns counties, creating two districts that would be dominated by white Republicans.

The Florida House has scheduled a congressional redistricting subcommittee meeting for Friday, and a full redistricting committee meeting for the following Friday. The committees had canceled previous meetings after DeSantis requested the opinion.

The Florida Supreme Court has not given a timeline for how quickly it will decide whether to take the case or when it would issue an opinion.

The Florida Legislature agreed that the state would benefit from a form of preclearance that might reduce the risk of later lawsuits. “Judicial guidance … will provide needed resolution of a question of significant importance to the enactment and executive approval of a congressional redistricting plan for the State of Florida, and may obviate the need for judicial involvement at later stages of that process.”

Attorney General Ashley Moody argued redistricting is distinct from other forms of legislation, noting the governor must call the Legislature into a special session if it fails to adopt a plan.

“The Governor’s role in congressional apportionment is therefore akin to his role in the annual budgeting process and related matters of fiscal administration, which this Court has repeatedly held is the proper subject of advisory opinions,” her brief said.