TALLAHASSEE | Federal judges questioned Gov. Ron DeSantis’ top aide repeatedly Tuesday on the first day of a redistricting trial, asking what basis the governor had to defy the Florida Supreme Court and voter-approved protections for Black voters.
The trial comes weeks after a state judge in a separate case already struck down North Florida’s congressional districts. In that case, DeSantis’ lawyers openly admitted he had violated state law.
While the Legislature and DeSantis’ secretary of state appeal that decision, the Florida redistricting map faces this separate trial in front of a three-judge federal panel. In federal court, the plaintiffs who include civil-rights organizations and voters have argued DeSantis intentionally discriminated against Black voters.
The panel consists of 11th U.S. Circuit Judge Adalberto Jordan and U.S. District Judges M. Casey Rodgers and Allen C. Winsor, respectively appointed by Barack Obama, George W. Bush and Donald Trump. The trial is expected to continue through next week.
At the center of the dispute is the old 5th Congressional District. For 30 years, Black voters in North Florida elected their preferred candidates — former U.S. Rep. Corrine Brown (D-Jacksonville) from 1992 until 2016 and then Rep. Al Lawson (D-Tallahassee) from 2016 until 2022.
Top DeSantis aide is first witness
The trial opened with lawyers and the judges questioning Alex Kelly, once a legislative staffer and now Gov. DeSantis’ acting chief of staff and the state’s commerce secretary.
Kelly was also at the center of the 2012 redistricting process that Florida courts said violated state law. Kelly has said during depositions that he never read the court decisions last decade. Despite that, he repeatedly said Tuesday that the Florida Supreme Court was wrong and that was why the governor dismantled the 5th Congressional District ordered by the court.
After DeSantis threatened to veto the Legislature’s map, saying the east-west district was not compact enough, the Legislature drew a more compact Jacksonville-only district that redistricting staff said would still allow Black voters to elect their preferred candidates.
DeSantis justified a veto of the Jacksonville-only district by claiming state protections that prohibited diminishing racial minorities’ ability to elect candidates of their choice violated the U.S. Constitution. He then pushed through his own map, which put Black voters across North Florida into whiter, more conservative districts. As a result, every North Florida district elected a Republican last year.
In one exchange Tuesday, the judges grilled Kelly on how DeSantis could decide for himself that the state’s protections for Black voters violated the U.S. Constitution.
“The Florida Supreme Court got it wrong” last decade, Kelly told the judges. “The map the Florida Supreme Court drew violated the Equal Protection clause.”
“Had any court agreed with that opinion?” asked Rogers. Kelly said he didn’t know.
“I may be at my limits because I’m not a lawyer,” Kelly said, “but the map enacted by the Florida Supreme Court violated the Equal Protection clause.”
“According to what court?” Rogers asked. “According to what law?”
“Your honor, the U.S. Constitution,” Kelly replied.
“As interpreted by what court?” Rogers again asked.
“I don’t know.”
Again Rogers asked Kelly to cite any court decision that supported the governor’s contention. Again he said he didn’t know.
Common Cause Vice President of Programs Kathay Feng, whose organization is the named plaintiff in the case, said that Kelly’s answers showed that he was “twisting and turning” to try to answer the judges’ questions.
“I’m feeling reassured by the questions being asked by the lawyers and the judges,” Feng said.
Which takes precedent, state law or federal?
Kelly argued that a Jacksonville-to-Gadsden district violated the U.S. Constitution because it was sprawling and used race too much in determining its shape. He also said the Duval-only district violated the U.S. Constitution because it made a surrounding district less compact, and he said it would have diminished Black voters’ ability to elect their preferred candidates.
In 14 statewide elections from 2012 through 2020, the Black-preferred candidate would have won in nine elections, compared to winning in all 14 elections under the Jacksonville-to-Gadsden district.
After DeSantis vetoed the Legislature’s map, Kelly drew a map that replaced the compact Jacksonville-only district, which included all of the Westside, Arlington, and parts of the Northside and Southside of the city, with a less compact, whiter and more Republican district that stretched from Nassau County to Clay County.
This, plaintiff’s attorney Greg Baker said in his opening statement, shows that the only reason DeSantis vetoed the map and replaced it with a new one was to hurt Black voters.
Baker said the governor vetoed the plan “not in spite of” its effect on Black voters but because it reduced Black voting power.
But the state argued the governor prioritized complying with other redistricting criteria.
“The evidence will show the state of Florida — both the governor and the legislature — adopted a map that prioritized compactness and adhering to political and geographic boundaries,” said Mohammad Jazil, an attorney representing the state. “The governor and the Legislature did not consider partisanship, did not consider incumbency and in North Florida did not consider race.”
Jazil said although the Legislature’s map had a more compact district, it made a surrounding district less compact than the governor’s map did.
Last month, a state judge struck down the North Florida congressional districts after DeSantis’ lawyers openly admitted he had violated state law. In that case, lawyers representing DeSantis argued that a state law banning districts that diminish racial minorities’ voting power, which mirrors the federal Voting Rights Act, was unconstitutional.
Kelly said he didn’t know that the state had conceded it broke the law in the other lawsuit.
In that case, 2nd Judicial Circuit Judge J. Lee Marsh soundly rejected DeSantis’ argument, but the state is appealing. The conservative 1st District Court of Appeals rejected a joint request from the state and plaintiffs to send the case straight to the Florida Supreme Court.
Unlike the state case, the federal lawsuit has a heavier burden of proof. Under the state law, plaintiffs only had to prove the North Florida districts illegally reduced Black voters’ ability to elect their preferred candidates, something the Legislature and Secretary of State Cord Byrd freely admitted.
In the federal case, the plaintiffs must prove the state intentionally discriminated.
In the state case, the Legislature and governor avoided the embarrassment of a trial by admitting to breaking the law. Instead, they focused on arguing that the state constitution’s Fair Districts Amendment violates the Equal Protection Clause. Last decade, a weeks-long trial revealed embarrassing testimony about how legislators and their staffers coordinated with partisan actors to create a map that maximized Republican gains.
Unlike in state court, federal courts bar cameras, so this trial is not being live-streamed.
At times, the plaintiffs’ attorneys appeared overwhelmed by the amount of evidence in the case, leading Judge Jordan to chide them to prepare better-organized exhibits.
Plaintiffs’ attorney Greg Diskant said he had expected Kelly’s testimony to last longer, and their other main witnesses — Florida House Minority Fentrice Driskell and an expert — won’t be available to testify until next week.