For decades, Democratic Rep. Al Lawson’s Florida district has stretched like a rubber band from Jacksonville to Tallahassee scooping up as many Black voters as possible to comply with requirements that minority communities get grouped together so they can select their own leaders and flex their power in Washington.
But the state’s Republican governor, Ron DeSantis, is taking the unusual step of asking Florida’s Supreme Court whether Lawson’s plurality-Black district can be broken up into whiter — and more Republican — districts.
That type of request might typically face steep hurdles under state and federal laws that are meant to protect representation of marginalized communities in the nation’s politics. But the ground rules may be shifting after the U.S. Supreme Court sided this week with Republicans in Alabama to block efforts to ensure that Black voters are adequately represented in Congress by adding a second majority-Black district in the state.
The ruling stunned civil rights groups, who have watched the court’s conservative majority steadily eat away at the Voting Rights Act for decades. While the law’s rules governing how to draw legislative lines based on race still stand, advocates worry the justices are prepared to act with renewed fervor to eliminate remaining protections in the landmark civil rights legislation. That, some worry, could embolden Republicans in places like Florida to take aim at districts like Lawson’s and ultimately reduce Black voters' influence on Capitol Hill.
“That has had an effect, as we’ve seen, on Black political power at all levels of government,” Kathryn Sadasivan, an NAACP Legal Defense Fund attorney who worked on the Alabama case, said of prior erosions of the Voting Rights Act.
Republicans argue that the Alabama case is about providing clarity on redistricting rules. As it stands, mapmakers can be sued if they consider race too much but also if they fail to consider it the way the Voting Rights Act mandates and omit districts with certain shares of a minority population.
“In the last 15 years, the court has said if race predominates, your map is going to be struck down, but if you don’t look” at race properly, you violate the Voting Rights Act, Jason Torchinsky, general counsel to the National Republican Redistricting Trust, said on a call with reporters on Wednesday. “The court has been very inconsistent with its guidance to legislators here, and we hope the Alabama decision brings some clarity.”
Torchinsky is representing DeSantis in his case before the Florida Supreme Court and would not comment on the case. Republicans contend it is legally different from Alabama. The first hurdle is not the Voting Rights Act but rather Florida's own state redistricting law, which prioritizes racial equity in similar ways.
Torchinsky and other lawyers for DeSantis have argued that courts have to provide a clear legal standard for whether mapmakers can contort district lines in a quest for racial fairness.
“After all,” Desantis' attorneys wrote to the Florida Supreme Court of the rationale for Lawson’s district, “governmental actions based on race are presumptively unconstitutional.”
The Florida case is becoming the latest test of how states' court systems handle the politically charged redistricting battle.
A decade ago, Florida's Supreme Court struck down maps drawn by the state's GOP-controlled Legislature because they violated the state's ban on partisan redistricting. This cycle, the state Senate proposed maps that mostly kept the status quo in the state’s current 27 congressional seats while adding a 28th district that should favor Republicans.
But, with Democrats doing better than expected in redistricting nationwide, DeSantis, a possible 2024 presidential contender, pushed for a more aggressive approach that could net the GOP three seats.
But the state's Supreme Court a decade ago was overwhelmingly Democratic. Now it's dominated by Republican appointees.
The question in Florida, said David Vicuna of the anti-gerrymandering group Common Cause, is “will courts put aside whatever are their own personal party preferences and adhere to the law?”
Similar questions swirl around the nation's highest court and its 6-3 conservative majority.
Under the 1965 Voting Rights Act, mapmakers are required to draw districts with a plurality or majority of African Americans or other minority groups if they're in a relatively compact area with a white population that votes starkly differently from them.
For decades, the GOP went along with this approach because it led to states, particularly in the South, having a handful of districts packed with Democratic-leaning African American voters, leaving the remaining seats whiter and more Republican. But a series of adverse legal decisions over recent decades and increased Democratic aggressiveness have turned the tables.
“Now we see kind of a flipping of this, where Democrats and voting rights plaintiffs are saying, ‘You have to create more majority-minority districts,’ and Republicans are saying, ‘Then we’re taking race too much into account,'" said Rick Hasen, a law professor at the University of California-Irvine.
The issues came to a head in Alabama, where civil rights groups and Democrats joined forces to argue that the state's GOP-drawn maps were unconstitutional because they packed most Black voters into only one of seven congressional districts. A three-judge panel agreed, potentially opening the door to similar new plurality-Black districts in states with similar demographics like Louisiana and South Carolina.
But the Supreme Court on Monday stayed that order in a 5-4 decision, saying it would hear full arguments in its fall term and issue a ruling after that, presumably next year. Justice Elena Kagan, writing for two other dissenting liberal justices, warned that the court was already reinterpreting the Voting Rights Act by stopping the lower court's order.
Civil rights attorneys, while hopeful they can persuade the court's six-justice conservative majority to maintain the standards they've used for decades, acknowledge that the Voting Rights Act has been hollowed out over the years.
In 2013, the court ruled the federal government could no longer use the VRA to require certain states with a history of discrimination to run voting and map changes by the Justice Department first to ensure they're not discriminatory. Two of the states that were under that mandate, Georgia and North Carolina, recently approved GOP-drawn maps that reduced the share of Black voters in two African American Democratic congressmen's seats, G.K. Butterfield and Sanford Bishop. Butterfield, of North Carolina, retired before the map was struck down by the Democratic majority on the North Carolina Supreme Court.
In Florida, DeSantis' proposal would not only dismantle Lawson's seat, it would also shrink the Black voter share of a majority-Black district in South Florida represented by Rep. Sheila Cherfilus-McCormick.
“So now we’re going to go from four minority access seats down to two? In 2022?" Democratic state Rep. Ramon Alexander, who is Black, said in an interview. “It is the most egregious thing possible.”
