Byrd, The Florida Senate v. Black Voters Matter Capacity Building Institute, Inc., Equal Ground Education Fund, Inc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-2252

_____________________________

SECRETARY OF STATE BYRD, the

FLORIDA HOUSE OF

REPRESENTATIVES, and the

FLORIDA SENATE,

Appellants,

v.

BLACK VOTERS MATTER

CAPACITY BUILDING INSTITUTE,

INC., EQUAL GROUND

EDUCATION FUND, INC., LEAGUE

OF WOMEN VOTERS OF FLORIDA

EDUCATION FUND, INC., FLORIDA

RISING TOGETHER, PASTOR

REGINALD GUNDY, SYLVIA

YOUNG, PHYLLIS WILEY, ANDREA

HERSHORIN, ANAYDIA

CONNOLLY, LEELA FUENTES,

BRANDON P. NELSON, KAITLYN

YARROWS, CYNTHIA LIPPERT,

KISHA LINEBAUGH, NINA

WOLFSON, BEATRIZ ALONZO,

GONZALO ALFREDO PEDROSO,

and MARVIN HUDSON,

Appellees.

_____________________________

On appeal from the Circuit Court for Leon County.

James Lee Marsh, Judge.

December 1, 2023

EN BANC

B.L. THOMAS and TANENBAUM, JJ.

On review is a declaratory judgment. In it, the trial court

determined that Chapter 2022-265, Laws of Florida 1—setting out

the legal boundaries of the State’s congressional districts based

on the post-2020 census federal reapportionment—conflicts with

Florida’s congressional Fair Districts Amendment (“FDA”)—

article III, section 20, of the Florida Constitution. 2 The

enactment, according to the trial court, “dismantl[ed] a

congressional district that enabled Black voters to elect their

candidates of choice under the previous plan”—a court-ordered

configuration of districts to remedy what had been determined to

be an unconstitutional partisan gerrymander under the same

FDA.

The trial court rendered its judgment as a legal matter.

There was no trial, and the court appears to have relied entirely

on the parties’ stipulations. We can resolve this appeal by

answering a simple legal question: In order to demonstrate a

legally cognizable claim that an “apportionment plan or

individual district . . . diminish[es] [a member of a racial

minority’s] ability to elect representatives of [his or her] choice,”

does a plaintiff first have to establish that he or she is part of a

geographically discrete and compact minority community of

historically natural existence? Art. III, § 20(a), Fla. Const. The

trial court found it unnecessary to answer the question, and the

plaintiffs failed to submit any evidence to this effect.

We, however, say yes. Cf. Voting Rights Act of 1965, §§ 2(b),

5(b) (as amended), codified at 52 U.S.C. §§ 10301(b), 10304(b)

1 The law is now codified as chapter eight of the Florida

Statutes (2022).

2 Voters approved two “Fair Districts” Amendments in 2010.

Article III, section 21 of the Florida Constitution sets forth

similar standards for establishing state legislative districts.

2

(hereinafter, “VRA”); Thornburg v. Gingles, 478 U.S. 30, 49–51,

n.15–17 (1986) (highlighting need for “a politically cohesive,

geographically insular minority group” to support claim about

“ability of minority voters to elect representatives of their

choice”); League of Women Voters of Fla. v. Detzner, 179 So. 3d

258, 286 n.11 (Fla. 2015) (“Apportionment VIII”) (noting that

Gingles is relevant to analysis under both section two and section

five of the VRA and that “when we interpret our state provision

prohibiting the diminishment of racial or language minorities’

ability to elect representatives of choice, we are guided by any

jurisprudence interpreting Section 5” (quoting In re Senate Joint

Resol. of Legis. Apportionment 1176, 83 So. 3d 597, 619 (Fla.

2012) (“Apportionment I”))). We address these citations in the

discussion that follows. 3 In the end, we must reverse.

I

A

Tallahassee and Jacksonville are separated by about 160

miles of interstate highway (and two Busy Bee fuel-and-

convenience destination stops 4), plus ample byways, farmland,

and small communities. The two cities also are separated by

drastically different origins and histories—one as a compromise

capital location midway between Pensacola and St. Augustine,

and the other as a port city and winter vacation destination. 5 In

3 Based on this court’s interpretation of the FDA, we do not

address the appellants’ argument regarding the equal-protection

guarantee of the Fourteenth Amendment to the U.S.

Constitution.

4 https://shopthebusybee.com/

5 The supreme court recently recognized the distance and

difference between the two cities was significant enough to justify

realigning the appellate districts and separating Jacksonville

from the district that includes Tallahassee. See In re Redefinition

of App. Dists. & Certification of Need for Additional App. Judges,

345 So. 3d 703, 704 (Fla. 2021); District Court of Appeal

Workload and Jurisdiction Assessment Committee Final Report

and Recommendations, available at

3

2017, though, the two cities found themselves lumped together

into a single congressional district—Congressional District Five

(“CD-5”)—as part of a court-ordered remedy for a legislative

violation of another part of the FDA: the proscription against

defining a congressional district “with the intent to favor or

disfavor a political party or an incumbent.” Art. III, § 20(a), Fla.

Const.; see League of Women Voters of Fla. v. Detzner, 172 So. 3d

363, 370–72 (Fla. 2015) (“Apportionment VII”) (affirming trial

court’s determination “that the Legislature’s 2012 congressional

redistricting plan was drawn in violation of the [FDA’s]

prohibition on partisan intent” but directing the trial court to

“require the Legislature to redraw, on an expedited basis,

Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other

districts affected by the redrawing, pursuant to the guidelines set

forth in this opinion”).

Before 2010, CD-5 had a north-south orientation,

meandering from Jacksonville to Orlando, and it consistently

elected a Black member of Congress. Following the 2010 census,

the Legislature redefined CD-5 to increase the Black voting age

population (“BVAP”) in the district to over fifty percent—a so-

called majority-minority district. See Apportionment VII, 172 So.

3d at 386. The trial court found, after a trial on a challenge to the

2010 redistricting plan alleging that the district was drawn with

improper partisan intent, that there had been no showing of legal

necessity to create such a district, and the court concluded that

CD-5 (along with CD-10), in part, had been “drawn” to benefit the

Republican Party. Id. The trial court ordered the Legislature to

provide a new delineation of CD-5, CD-10, and “any other

districts affected thereby.” Id. It rejected challenges to several

other districts. Id. The Legislature enacted a new plan that made

“modest changes to” CD-5 and CD-10, and the trial court

approved the new plan. Id.

On appeal from the trial court’s order, the supreme court

concluded that the trial court’s remedy did not give sufficient

effect to the higher court’s determination that “the redistricting

https://www.flcourts.org/content/download/218249/file/dca_worklo

ad.pdf.

4

process and resulting map were ‘taint[ed]’ by unconstitutional

intent to favor the Republican Party and incumbents.” Id. at 416.

The supreme court noted that the “finding of unconstitutional

intent . . . mandated a more meaningful remedy commensurate

with the constitutional violations [the trial court] found.” Id.

Along those lines, the court took umbrage with the trial court’s

rejection of the challengers’ proposed east-west configuration of

CD-5 and its approval of a slightly modified CD-5 that still ran

north-south. See id. at 402–03. The court in particular took issue

with the trial court’s failure to elaborate on the “non-partisan

policy reasons” that it had found existed for the Legislature’s

preference for a north-south configuration, especially given the

challengers’ contention that “the North-South configuration of

this district [was] a linchpin to the Legislature’s efforts to draw a

map that favors the Republican Party.” Id. at 402 (emphasis

supplied).

The supreme court rejected the Legislature’s explanation for

the north-south orientation, noting that the “configuration was

entitled to no deference in light of the trial court’s finding of

unconstitutional intent . . . to benefit the Republican Party.” Id.

at 403. It also noted that the configuration “had the effect of

benefitting the long-time incumbent of the district,

Congresswoman Corrine Brown,” a Black woman. The court

explained further, as follows:

Retaining the same basic shape [of CD-5], while

merely tweaking a few aspects of the district, does not

erase its history or undo the improper intent that the

trial court found. The trial court’s decision to defer to

the Legislature’s configuration is contrary to the proper

standard that should have applied—shifting the burden

to the Legislature to justify its enacted configuration—

particularly where the trial court itself continued to

acknowledge that the district is “not a model of

compactness.”

Id. at 403.

There was much discussion by the court about BVAP

numbers and voting performance (basically, cold voter data and

statistics), but there was no detail provided about the existence of

5

Black communities within either orientation (i.e., nothing about

the composition of naturally occurring communities in a

geographically discrete region, and nothing about any shared

history or shared experiences of the Black voters). This latter

discussion does not appear to have ever come up. The court

instead concluded this way based on the numbers: “Because the

trial court erred in deferring to the Legislature’s enacted North–

South configuration, and because the Legislature cannot justify

this configuration, District 5 must be redrawn in an East–West

orientation.” Id. at 406.

When the case returned to the trial court for consideration of

the more robust remedy that the supreme court directed, the

Legislature failed to enact a new remedial plan. See

Apportionment VIII, 179 So. 3d at 261. The parties instead

proposed remedial plans to be adopted by court order; and while

they disagreed over some of the congressional districts, the

parties agreed to, among others, a “redrawn” CD-5 that ran east-

west. Id. at 262. The trial court recommended a congressional

redistricting plan that included the new CD-5, and the supreme

court approved it for use “in the 2016 Florida congressional

elections and in Florida congressional elections thereafter until

the next decennial redistricting.” Id. at 263 (emphasis supplied).

Based on the supreme court’s approval and instruction, the trial

court rendered a final judgment incorporating the court-drawn

plan as a remedy to be in effect until it expired with the

enactment of a new congressional districting law in 2022. Id.

Florida’s congressional elections in 2016, 2018, and 2020,

then, were conducted in districts that had not been enacted into

law. The CD-5 that the court ordered to be operative for those

elections (and then expire) “appeared” (in purple) as follows on

the adopted redistricting map:

6

B

The congressional reapportionment that occurred as a

product of the 2020 census gave Florida one additional seat,

increasing the State’s complement of apportioned U.S. House

members to 28. 6 The Legislature enacted a redistricting plan that

6 Congressional “reapportionment” occurs at the federal

level. Congress sets, by law, the number of members of the House

of Representatives. See Pub. L. 62-5, 37 Stat. 13 (Aug. 8, 1911)

(“Apportionment Act of 1911”); Pub. L. 71-13, § 22, 46 Stat. 21

(June 18, 1929) (“Reapportionment and Census Act of 1929”). The

President of the United States reapportions members among the

fifty states based on the most recent decennial census. See 2

U.S.C. § 2a(a) (directing the President to transmit to Congress a

statement of the population of each state determined under the

decennial census, along with “the number of Representatives to

which each State would be entitled under an apportionment of

the then existing number of Representatives by the method

known as the method of equal proportions, no State to receive

less than one Member”); see also 2 U.S.C. § 2a(b) (entitling each

state to “the number of Representatives shown in the statement

[from the President]” and requiring the clerk of the House of

Representatives “to send to the executive of each State a

certificate of the number of Representatives to which such State

is entitled under this section”). Federal law requires that each

state in turn “establish[] by law a number of districts equal to the

number of Representatives to which such State is so entitled, and

7

the Governor signed into law. See Ch. 2022-265, Laws of Fla.,

codified at Ch. 8, Fla. Stat. (2022). With that enactment, the

remedial order requiring the east-west CD-5 expired.

The new chapter eight delineates Florida’s apportioned

twenty-eight congressional districts by “employ[ing] areas

included within official county, tract, block groups, and block

boundary descriptions used by the [U.S. Census] in compiling

the” 2020 census numbers for the State. § 8.0001(1), Fla. Stat.

(2022). 7 Official electronic maps provide to the public visual

representations of these legally defined boundaries. See § 8.051,

Fla. Stat. (2022); see also § 8.0001(2)(e), Fla. Stat. (2022)

(defining “geographical information systems [GIS] map”). But

elections occur in Florida precinct by precinct, each county is

responsible for delineating its precincts. See §§ 98.0981(3);

101.045; 101.5604; 101.5606; 101.5610; 101.5614; 101.657(1)(a),

(4)(c); 101.69; 101.71; 102.012; 102.071; Fla. Stat.; cf. §§ 1S-2.015,

1S-2.032, Fla. Admin. Code. The delineations in chapter eight, in

turn, govern in which congressional district contest each precinct

will participate. See § 101.001(1), (3), (4), Fla. Stat. 8 The

resultant map of the North Florida congressional districts

addressed in this appeal is as follows:

Representatives shall be elected only from districts so

established.” 2 U.S.C. § 2c (emphasis supplied).

7 A “tract” is a “relatively permanent statistical subdivision

of a county.” § 8.0001(2)(f), Fla. Stat. (2022). A “block” is “the

smallest geographic unit for which population was tabulated in

the 2020 decennial census,” and it is “nested within tracts and

within block groups.” § 8.0001(2)(a), Fla. Stat. (2022).

8 The “blocks” are the component geographic parts that make

up each congressional district. See § 8.0001(2)(b), Fla. Stat. (2022)

(defining a “block equivalency file” as “a list of all blocks within

the state and the congressional district number designated for

each block”); cf. § 8.051, Fla. Stat. (2022).

8

The plaintiffs sued to challenge that new chapter eight. They

eventually narrowed their challenge to one theory: that the newly

enacted chapter eight diminishes the ability of Black voters in

the former CD-5 to elect the congressperson of their choice. Their

theory has as its premise that Black voters in North Florida have

the right to “elect the candidate of their choice” because they had

been “drawn” into former CD-5. From that premise, they conclude

that there is diminishment based almost entirely on what they

characterize as the “obliterat[ion]” of CD-5 under the new chapter

eight. Even though the first two named plaintiffs—Black Voters

Matter and Equal Ground Education Fund—describe themselves

in terms of the “historic” or “underserved” Black “communities”

they serve, their complaint nowhere purports to describe or

otherwise identify any naturally occurring community whose

members have been harmed. Instead, the complaint assumes—

without addressing any elements of cohesion or unifying

characteristics (besides statistical voting performance)—that the

Black voters pulled into CD-5 constitute a single operative

community by operation of law.

There was no trial on the plaintiffs’ claim. The parties

stipulated to several purported facts regarding voters in former

CD-5—essentially, just cold statistical information about Black

voters generally. This is all the trial court knew about the Black

voters in the former CD-5 (and all we can know): According to the

stipulation, former CD-5 had a BVAP of 46.2 percent, and 46.1

percent of former CD-5’s registered voters were Black. In 2016,

2018, and 2020, approximately 89 percent of Black voters in

former CD-5 voted for Democratic candidates in the general

9

elections. There were other purported facts that the parties did

not dispute regarding the “performance” of former CD-5 for Black

and non-Black voters.

The parties stipulated to a similar type of cold statistical

data regarding the newly enacted chapter eight: 45.2 percent of

the population that was contained in the former CD-5 is in the

new CD-4, with the remainder split across new CD-2, CD-3, and

CD-5; the BVAP in new CD-2, CD-3, CD-4, and CD-5 are 23.1

percent, 15.9 percent, 31.7 percent, and 12.8 percent,

respectively; and more than 75 percent of Black voters in these

four new districts voted for the Democratic candidate in 2022.

Similar to the dearth of information about Black voters in

Apportionment VII and Apportionment VIII—and commensurate

with the allegations that we noted were missing from the

complaint in this case—the plaintiffs did not submit any evidence

regarding the existence of naturally occurring (rather than court-

manufactured) Black communities within the former CD-5.

Nothing in the record describes who the Black voters are as

members of a meaningful community—nothing about a shared

history or shared socio-economic experience among the Black

voters in Tallahassee, Jacksonville, and other areas throughout

the expanse of former CD-5. No evidence in the record establishes

any relationship at all between any of the otherwise seemingly

disparate communities. What we are left with is a stipulation

that Black voters were grouped together to reach a preferred or

acceptable BVAP number within an east-west congressional

district, and that “Black voters had the ability to elect the

candidate of their choice in” former CD-5. According to the

parties, not one of new CD-2, CD-3, CD-4, or CD-5 is a district “in

which Black voters have the ability to elect their preferred

candidates.” The trial court accepted all these stipulated facts as

its findings—including the last one regarding the ability or

inability to elect a candidate of choice. Without making any

determination about the existence or nature of any naturally

occurring Black community in either the former CD-5 or the new

10

CD-2, CD-3, CD-4, or CD-5. 9 It concluded that the new chapter

eight violated the FDA by “dismantling” former CD-5.

The problem we have is this: Whether Black voters could

“elect the candidate of their choice” in former CD-5–or in the new

CD-2, CD-3, CD-4, or CD-5–is ultimately a legal question. It is

not a question that the parties can answer by stipulation. To

answer the question, we must determine what it means for a

delineated congressional district to have the result of

“diminish[ing]” the ability of a racial minority “to elect

representatives of their choice.” That is what we set out to do

now.

II

This is a direct appeal of a trial court’s final, declaratory

judgment determining that chapter eight of the Florida Statutes

(2022) violates the FDA. The constitution calls upon us to

determine whether the trial court erred in its legal determination

that the law’s boundaries for the congressional districts in North

Florida “diminish [the] ability [of a racial minority] to elect

representatives of their choice,” in conflict with the FDA’s

proscription against doing so. Art. III, § 1(a), Fla. Const. After all,

as a matter of textual interpretation, a trial court may not refuse

to enforce a duly enacted legislative statement of public policy

unless the statement conflicts with a superior law—typically a

constitution. Cf. Marbury v. Madison, 5 U.S. 137, 177–78 (1803)

(“If then the courts are to regard the constitution; and the

constitution is superior to any ordinary act of the legislature; the

constitution, and not such ordinary act, must govern the case to

which they both apply.”); Chapman v. Reddick, 25 So. 673, 677

(Fla. 1899) (“Our state constitution is a limitation upon power,

and, unless legislation duly passed be clearly contrary to some

9 The trial court rejected any argument that there must be

evidence of an insular and geographically compact community of

Black voters in a diminishment claim like the plaintiffs assert

here. It opted to look only at whether “there is no Black-

performing district where there previously was.” As we explain,

this core decision was based on an erroneous interpretation of the

FDA.

11

express or implied prohibition contained therein, the courts have

no authority to pronounce it invalid.”).

A conflict, though, must exist before the superior law will

prevail over the inferior law. To determine whether there is such

a conflict, we must assess the meaning of the relevant FDA text

and then decide how it operates vis-à-vis chapter eight. Cf.

Marbury, 5 U.S. at 177 (“It is emphatically the province and duty

of the judicial department to say what the law is. Those who

apply the rule to particular cases, must of necessity expound and

interpret that rule. If two laws conflict with each other, the courts

must decide on the operation of each.”). Based on our

interpretation of the FDA, we find that the plaintiffs failed to

meet their burden to demonstrate a conflict between the two

laws.

A

The two laws that purportedly conflict—according to the

plaintiffs and the final judgment on review—are the

congressional districting plan set out in chapter eight, on the one

hand; and the latter part of subdivision (a) of the FDA—

specifically dealing with diminishment of racial minorities’

“ability to elect representatives of their choice”—on the other. We

described chapter eight earlier, so we turn to the applicable

constitutional provision.

Proposed by initiative petition filed in 2007, see Art. XI, § 3,

Fla. Const., and approved by Florida voters in 2010, the FDAs

prohibit the Legislature from defining congressional and

legislative district boundaries, respectively,

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.

Art. III, §§ 20(a), 21(a), Fla. Const. (emphasis supplied). There

obviously could be no readily apparent facial conflict between this

provision and the delineation found in chapter eight (given the

technical nature of the statutory provisions therein, described

above). Instead, a claim that a districting statute conflicts with

12

the FDA requires evidentiary proof that the challenged statute is

a product of a prohibited intent, or in operation produces a

prohibited result. As we noted above, the legal question we must

answer is what type of proof is required to establish this violation

and sustain such an as-applied constitutional challenge. The

answer is in the meaning behind the highlighted text.

We are mindful that we are construing a provision of the

Florida Constitution here. As the supreme court observed nearly

a century ago,

[g]eneral principles governing the construction of

statutes are applicable to the construction of

Constitutions with some modifications. . . . Technical

rules of construction [] are not to be applied so as to

defeat the principles of government or the object of its

establishment. The fundamental purpose in construing a

constitutional provision is to ascertain and give effect to

the intent of the framers and the people who adopted it.

The object sought to be accomplished, therefore, must be

kept constantly in view.

City of Jacksonville v. Cont’l Can Co., 151 So. 488, 489 (Fla.

1933). Our aim is “to give effect to the purpose indicated by a fair

interpretation of the language, the natural signification of the

words used in the order, and grammatical arrangement in which

they have been placed.” Id. “If the words thus regarded convey a

definite meaning and involve no absurdity or contradiction

between the parts of the same instrument, no construction is

allowable.” Id. At the same time, “[t]he rules used in construing

statutes are in general applicable in construing the provisions of

a Constitution.” State ex rel. McKay v. Keller, 191 So. 542, 545

(Fla. 1939); see also Coastal Fla. Police Benevolent Ass’n v.

Williams, 838 So. 2d 543, 548 (Fla. 2003) (same).

Getting back to the highlighted phrases, we note that each

finds a nearly identical companion text in the VRA, which we will

describe in turn. First enacted in 1965, the VRA primarily

prohibited any state from using any “voting qualification or

prerequisite” or any “standard, practice, or procedure . . . to deny

or abridge the right of any citizen of the United States to vote on

account of race or color.” Pub. Law 89-110, § 2 (Aug. 6, 1965)

13

(emphasis supplied). It also subjected certain states and

subdivisions to a pre-clearance process by which any voting law

that differs from that “in force or effect on November 1, 1964”

would be reviewed by the District of Columbia federal trial court

to determine whether the change had the purpose or effect “of

denying or abridging the right to vote on account of race or color.”

Id. § 5 (emphasis supplied). According to the U.S. Supreme Court,

the VRA

was designed by Congress to banish the blight of racial

discrimination in voting, which has infected the electoral

process in parts of our country for nearly a century. The

Act creates stringent new remedies for voting

discrimination where it persists on a pervasive scale,

and in addition the statute strengthens existing

remedies for pockets of voting discrimination elsewhere

in the country.

South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).

Congress amended section two of the VRA in 1982 to add the

following definition of a violation of section two (essentially, the

denial or abridgment of the right to vote based on race or color):

A violation of subsection (a) is established if, based on

the totality of circumstances, it is shown that the

political processes leading to nomination or election in

the State or political subdivision are not equally open to

participation by members of a class of citizens protected

by subsection (a) in that its members have less

opportunity than other members of the electorate to

participate in the political process and to elect

representatives of their choice.

Pub. Law 97-205, § 3 (June 29, 1982) (emphasis supplied). Then,

just a year before the filing of the FDA initiative petition to

amend the Florida Constitution, Congress amended section five

of the VRA to define “denies or abridges” in similar language

(with slight variations), as follows:

Any voting qualification or prerequisite to voting, or

standard, practice, or procedure with respect to voting

14

that has the purpose of or will have the effect of

diminishing the ability of any citizens of the United

States on account of race or color . . . to elect their

preferred candidates of choice denies or abridges the

right to vote within the meaning of subsection (a) of this

section . . . .

Pub. Law 109-246, § 5 (July 27, 2006) (“Criteria for Declaratory

Judgment”), codified at 52 U.S.C. § 10204(b) (emphasis supplied).

At this point, we will address the Florida Supreme Court’s

treatment in Apportionment I of article III, section 21(a) (which

addresses state legislative apportionment) in a facial assessment

of a districting plan as part of its function under article III,

section 16. We will then turn to how the U.S. Supreme Court has

interpreted the nearly identical text found in sections two and

five of the VRA.

B

1

State legislative apportionment—the determination of state

senatorial and representative districts—is a unique process

under the Florida Constitution. See Art. III, § 16, Fla. Const. The

apportionment required of the Legislature occurs by joint

resolution and has the force of law. See id. §16(a). It is the only

legislative enactment that becomes law without presentment to

the Governor for approval. Cf. Art. III, § 8, Fla. Const. The

presentment requirement for all other enactments makes the

Governor an adjunct of the legislative process—a check within

the context of the Legislature’s exercise of the plenary authority

vested in it by article III. Within the legislative process for the

purpose of state legislative apportionment, however, the

constitution instead designates the Supreme Court of Florida as

the check on the Legislature. See Art. III, § 16(c), Fla. Const. 10

10 The process set out article III, section 16, applies only to

state legislative “apportionment”—so called because the

Legislature, when it delineates the districts by joint resolution,

effectively determines both the number of senators and

15

In that capacity, under section 16, the supreme court

exercises original jurisdiction to issue “a declaratory judgment

determining the validity of the apportionment” upon petition by

the attorney general. Id. 11 To be clear, in this context, there is no

lower court judgment under review, so the court’s declaratory

judgment under article III, section 16, cannot be the exercise of

appellate jurisdiction. Cf. Marbury, 5 U.S. at 175–76 (“It is the

essential criterion of appellate jurisdiction, that it revises and

corrects the proceedings in a cause already instituted, and does

not create that cause. . . . [T]o issue such a writ to an officer for

the delivery of a paper, is in effect the same as to sustain an

original action for that paper, and therefore seems not to belong

to appellate, but to original jurisdiction.”); The Alicia, 74 U.S.

571, 573 (1868) (“An appellate jurisdiction necessarily implies

some judicial determination, some judgment, decree, or order of

an inferior tribunal, from which an appeal has been taken.”);

Webster v. Cooper, 51 U.S. 54, 55 (1850) (explaining that “an

appellate court [revises] the decisions of inferior tribunals”); Ex

parte Crane, 30 U.S. 190, 193 (1831) (distinguishing between a

writ to an executive officer, which would “be the exercise of

representatives and how they are to be allocated geographically

throughout the State. The process does not apply to congressional

districts. As described above, the President reapportions the

statutorily set 435 congressional seats based on the latest census

numbers and congressionally set formula, which then entitles

each state to the number of congressional seats the President

reports. The Legislature, in turn, redistricts by enactment—

under the typical process set out in article III, sections six

through eight—based on the number of members apportioned to

the State under the federally prescribed process. The law

delineating these congressional districts is not subject to the

supreme court’s “plenary authority” like the apportionment joint

resolution is. See Apportionment I, 83 So. 3d at 600.

11 Section sixteen also gives the supreme court the authority

to order apportionment on its own under two different scenarios

where the Legislature fails to act. See Art. III, § 16(b), (f), Fla.

Const.

16

original jurisdiction,” and one “to an inferior court of the United

States,” which would be the exercise of “appellate jurisdiction”);

Ex parte Bollman, 8 U.S. 75, 100–01 (1807) (distinguishing

appellate jurisdiction as “the revision of a decision of an inferior

court”); Ortiz v. United States, 138 S. Ct. 2165, 2191 (2018) (Alito,

J., dissenting) (“And as Blackstone suggested, what ‘creates’ a

‘case’ in the relevant sense—that is, what transforms a dispute

into a ‘case’ that an appellate court has jurisdiction to resolve—is

the prior submission of the dispute to a tribunal that is lawfully

vested with judicial power.” (emphasis supplied)); Ortiz v. United

States, 138 S. Ct. 2165, 2184–85 (2018) (Thomas, J., concurring)

(“Thus, this Court cannot exercise appellate jurisdiction unless it

is reviewing an already completed exercise of ‘judicial power.’”

(citing In re Sanborn, 148 U.S. 222, 224 (1893))).

Because the supreme court does not act as an appellate court

in a review under article III, section 16, it also does not function

judicially in a supervisory capacity as head of the branch. Cf.

Cohens v. Virginia, 19 U.S. 264, 396 (1821) (“A supervising Court,

whose peculiar province it is to correct the errors of an inferior

Court, has no power to correct a judgment given without

jurisdiction, because, in the same case, that supervising Court

has original jurisdiction.”); Ansin v. Thurston, 101 So. 2d 808, 810

(Fla. 1958) (“The new article embodies throughout its terms the

idea of a Supreme Court which functions as a supervisory body in

the judicial system for the State, exercising appellate power in

certain specified areas essential to the settlement of issues of

public importance and the preservation of uniformity of principle

and practice, with review by the district courts in most instances

being final and absolute.”); Jenkins v. State, 385 So. 2d 1356,

1357–58 (Fla. 1980) (same); The Fla. Star v. B.J.F., 530 So. 2d

286, 288–89 (Fla. 1988) (noting that the court “has subject-matter

jurisdiction to hear any petition arising from an opinion that

establishes a point of law” (emphasis supplied)).

The court in its decision in Apportionment I (and in its

follow-up decision in what has become known as Apportionment

17

II 12) did not review a lower court’s interpretation or application of

the law. The court’s analysis in those two decisions was akin to

what a trial court does when it seeks to apply the law to a certain

set of facts. The court’s pronouncements in that capacity, then,

should not operate as holdings of a superior appellate court. For

this reason, we do not view the broad pronouncements—applied

with varying degrees of clarity to the specific facts of the original

proceeding—as binding in this direct appeal. Cf. Parsons v. Fed.

Realty Corp., 143 So. 912, 920 (Fla. 1931) (“A ruling in a case

fully considered and decided by an appellate court is not dictum

merely because it was not necessary, on account of one conclusion

reached upon one question, to consider another question the

decision of which would have controlled the judgment.” (emphasis

supplied)); Myers v. Atl. Coast Line R.R. Co., 112 So. 2d 263, 266

n.4 (Fla. 1959) (“The general rule is that when an appellate court

passes upon a question and remands the case for further

proceedings, the questions there settled become the ‘law of the

case’ upon subsequent appeal, provided the same facts and issues

which were determined in the previous appeal are involved in the

second appeal.” (emphasis supplied)); Pardo v. State, 596 So. 2d

665, 666–67 (Fla. 1992) (explaining how, “in the absence of

interdistrict conflict, district court decisions bind all Florida trial

courts” and describing “the proper hierarchy of decisional

holdings” as between district courts and the supreme court, and

trial courts and the district courts).

Still, the pronouncements are from our supreme court, so we

cannot dismiss them out of hand. We have taken the textual

analyses into account here. Even if the pronouncements could be

considered “holdings,” however, their applicability cannot get us

very far here because the procedural posture of both

Apportionment I and Apportionment II (viz.: original jurisdiction,

limited facial review of a legislative enactment) differs markedly

from the posture of this direct appeal (viz.: appellate review of

trial court judgment on as-applied challenge to legislative

enactment).

12 In re Senate Joint Resol. of Legis. Apportionment 2-B, 89

So. 3d 872 (Fla. 2012).

18

The supreme court itself later made this distinction: “[T]he

declaratory judgment rendered by this Court pursuant to article

III, section 16, is binding as to the facial validity of the

apportionment plan, but not to subsequent fact-based challenges.”

Fla. House of Representatives v. League of Women Voters of Fla.,

118 So. 3d 198, 209 (Fla. 2013) (“Apportionment III”) (emphasis

supplied); see also id. (“[P]ursuant to article III, section 16, this

Court is charged with the responsibility to render a declaratory

judgment as to the facial validity of a plan in order to provide

certainty as to its facial validity prior to the upcoming election.”);

id. at 210 (noting that a declaratory judgment rendered under

article III, section 16 is “a determination of only the facial

validity of the [redistricting] plan” and “did not preclude

subsequent, fact-based challenges” to the same plan); cf. In re

Apportionment Senate Joint Resol. No. 1305, 1972 Regular

Session, 263 So. 2d 797, 808 (Fla. 1972) (“In other words, the

apportionment plan as framed may be constitutional on its face,

but upon its application in a particular case the joint resolution

may violate organic law. This is in accord with our holdings that

a statute may be valid as applied to one state of facts, though

invalid as applied to another state of facts.”).

The supreme court in essence viewed Apportionment I and

Apportionment II as decisions of limited application, with no real

purchase in a direct appeal from a trial court judgment on an as-

applied FDA challenge to congressional districts. See

Apportionment VII, 172 So. 3d at 369–70 (characterizing the

“appeal” before it as one where the trial court was presented

“with a first-of-its-kind challenge under the [FDA],” “involving

legal issues of first impression”); Apportionment VIII, 179 So. 3d

at 262 (“[W]e are acutely aware that this case represents the first

time that congressional districts have been challenged under the

Fair Districts Amendment. As we have stated before, the trial

court had scant precedent to guide it; neither [sic] did the

Legislature nor the Challengers.” (internal quotation and citation

omitted)). Even in Apportionment I, the supreme court hinted at

the limited nature of what it was doing, viewing its “legislative

apportionment jurisprudence” as unique, separate and apart

from ordinary jurisprudence involving constitutional challenges

to statutes. Cf. Apportionment I, 83 So. 3d at 606–07 & n.5

(distinguishing between the unique standard of review in

19

“legislative apportionment jurisprudence” under article III,

section 16, and “[c]hallenges to the constitutionality of ordinary

legislative acts passed by the Legislature, [which] must be

brought in a trial court and then reviewed by a district court of

appeal”).

We will view the decisions the same way, and take the

pronouncements about the meaning and application of the FDA

as guidance, to the extent the general principles stated therein

reasonably comport with the text and make sense in application

to the circumstances of this case. At all events, as was the case in

Apportionment III, Apportionment VII, and Apportionment VIII,

this appeal involves a first-of-its-kind, as-applied FDA challenge

to a congressional redistricting law. In those former cases, the

challenge was based on allegations of partisan intent. The

challenge here is based on the effect the new districting

enactment has—as a factual matter—on the voting power of the

Black population in North Florida. None of those former cases,

then, provide holdings that control here.

Moreover, because the supreme court in Apportionment I and

Apportionment II was exercising special original jurisdiction

given to it under the apportionment process set out in article

III—and in an expedited and limited fashion at that—it is

difficult to distinguish an appellate holding on a principle of law

from a determination of fact as an adjunct to the article-III

process. See Apportionment III, 118 So. 3d at 207 (explaining that

the court’s decisions in Apportionment I and Apportionment II

“were based solely on objective evidence and undisputed facts in

the limited record before” it); id. at 212 (“Although the

Legislature contends that our review pursuant to article III,

section 16, in effect, involved fact-finding, we repeatedly

emphasized that our determinations in 2012 were based on the

limited record before the Court and were constrained by the

equally limited nature of the review this Court was able to

conduct in the thirty-day facial proceeding mandated by article

III, section 16.”). Before we move on, we look at what the

supreme court in fact said about the provisions of the FDA we

deal with here.

20

2

The plaintiffs zero in on a gloss the supreme court

purportedly gave to the diminishment text of the FDA when it

noted, “the Legislature cannot eliminate majority-minority

districts or weaken other historically performing minority

districts where doing so would actually diminish a minority

group’s ability to elect its preferred candidates.” Id. (emphasis

supplied). The plaintiffs, quite frankly, read too much into this

statement. As the highlighted text presages, the statement as a

whole adds very little beyond what we already have discussed.

The statement basically begs the question, because it merely

assumes what has yet to be defined: the “benchmark” from which

to measure diminishment, which requires us to explicate what it

means for a racial minority group to have the ability “to elect the

representative of [its] choice.”

And the supreme court did not spend much time in

Apportionment I on this question. It seemingly assumed, without

analysis, that the benchmark in this respect is any Black

performing district, without regard to whether the district

“performs” merely because it has been manufactured that way

(by defining the district with an eye toward lumping in Black

voters based solely on how they vote compared to how non-Black

voters do so). We assume the supreme court was looking to the

U.S. Department of Justice’s administration of the section-five

preclearance regime through guidelines and regulations that

define “benchmark” in terms of the “last legally enforceable plan.”

Guidance Concerning Redistricting Under Section 5 of the Voting

Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011). Cf. Riley v. Kennedy,

553 U.S. 406, 412 (2008); Beer v. U. S., 425 U.S. 130, 141 (1976).

This simply makes no sense in the FDA context. As the Riley

Court described that regime, its design presumes prior

discrimination in voting practices, thereby “putting the burden on

covered jurisdictions to demonstrate that future changes would

not be discriminatory.” Riley, 553 U.S. at 413; see also id. (“§ 5

served to shift the advantage of time and inertia from the

perpetrators of the evil to its victims.” (internal quotation and

citation omitted)). From there, the Riley court “defined the

21

baseline as the most recent practice that was both precleared and

‘in force or effect.’” Id. at 421 (emphasis supplied). That whole

regime does not exist (and could not exist) under the FDA. The

FDA clearly does not bring in the entirety of section five of the

VRA, so there is no textual basis for using this approach

(designed with preclearance in mind) to defining a benchmark in

application of the diminishment provision in the FDA. To the

extent that the supreme court purported to state otherwise in

Apportionment I—and require that the benchmark for measuring

diminishment is any Black performing district previously in

place—either that treatment of the FDA text was unnecessary for

the task at hand for the court in Apportionment I, or it was

limited to the unique nature of the facial review the supreme

court was conducting.

We are left still having to address the meaning of a minority

group’s “ability to elect representatives of their choice” in this

case of first impression, where an as-applied diminishment

challenge has been lodged against a congressional redistricting

enactment. That comes next.

III

The FDA speaks to the effect a redistricting enactment has

on a racial minority’s “ability to elect representatives of their

choice.” We know what this term cannot mean. No individual

minority (or majority) voter has a right to have his or her

candidate win. Otherwise, every such voter who voted for the

losing candidate would have a claim under the VRA and FDA. Cf.

Whitcomb v. Chavis, 403 U.S. 124, 153 (1971) (noting that the

“typical American legislative elections are district-oriented, head-

on races between candidates of two or more parties,” such that

“[a]s our system has it, one candidate wins, the others lose,” and

“[a]rguably the losing candidates’ supporters are without

representation since the men they voted for have been defeated,”

yet it is not a “denial of equal protection to deny legislative seats

to losing candidates”).

This concept of a minority group having an opportunity “to

elect representatives of their choice”—as a component of

protecting an individual’s right to vote against abridgment

22

because of race—did not appear in the VRA until 1982. As we

noted above, it was supplied to section two to further define what

denial or abridgment of that right could be. The U.S. Supreme

Court interpreted this newly amended section two shortly

thereafter. It is there we can turn to help answer the question of

what the term means as it appears in the FDA. See Gingles, 478

U.S. at 30. 13

Even though Gingles ultimately set out to define the

contours of a section-two claim under the VRA, the Court began

13 Prior to the 1982 amendment to the VRA, the U.S.

Supreme Court had held in Mobile v. Bolden, 446 U.S. 55, 61–74

(1980), that section two was merely a restatement of the

protections afforded in the Fifteenth Amendment to the U.S.

Constitution, and therefore, a plaintiff had to prove that the

challenged voting standard was enacted or maintained, at least

in part, by a discriminatory purpose. In 1982, section two of the

VRA was amended to focus on the function of the challenged

voting standard, as shown by the totality of the circumstances,

rather than whether there was discriminatory intent.

The U.S. Senate Committee on the Judiciary issued a report

accompanying the 1982 amendment, suggesting factors for courts

to use in determining whether operation of a challenged voting

standard resulted in a violation of section two. These included

history of voting-related discrimination; extent of racially

polarized voting; extent of use in the voting subdivision of

practices that tend to enhance the opportunity for discrimination

against the minority group; exclusion of members of the minority

group from the candidate selection process; extent to which the

minority group bears effects of discrimination in education,

employment, and health that may affect their ability to

participate in the political process; use of overt or subtle racial

appeals in political campaigns; and the extent to which members

of the minority group have been elected to public office in the

jurisdiction. S. Rep. No. 97–417, 97th Cong. 2nd Sess. 28 (1982),

U.S. Code Cong. & Admin. News 1982, pp. 206–207. The U.S.

Supreme Court considered this report in establishing the Gingles

preconditions. Gingles, 478 U.S. at 36–38, 43–46.

23

with threshold conditions that must be met before there could be

said to be an impediment to “the ability of minority voters to elect

representatives of their choice.” Id. at 48 (setting out the so-called

Gingles preconditions). The first of those circumstances is the

existence of “a politically cohesive, geographically insular

minority group.” Id. at 49. The Court explained this precondition

further, as follows:

The reason that a minority group making such a

challenge must show, as a threshold matter, that it is

sufficiently large and geographically compact to

constitute a majority in a single-member district is this:

Unless minority voters possess the potential to elect

representatives in the absence of the challenged

structure or practice, they cannot claim to have been

injured by that structure or practice. The single-member

district is generally the appropriate standard against

which to measure minority group potential to elect

because it is the smallest political unit from which

representatives are elected. Thus, if the minority group

is spread evenly throughout a multimember district, or

if, although geographically compact, the minority group

is so small in relation to the surrounding white

population that it could not constitute a majority in a

single-member district, these minority voters cannot

maintain that they would have been able to elect

representatives of their choice in the absence of the

multimember electoral structure.

Id. at 50 n.17 (second emphasis supplied); see also id. at 49–50

(pointing out “that the greater the degree to which the electoral

minority is homogeneous and insular and the greater the degree

that bloc voting occurs along majority-minority lines, the greater

will be the extent to which the minority’s voting power is diluted

by multimember districting” (quoting Mobile v. Bolden, 446 U.S.

55, 105 n.3 (1980) (Marshall, J., dissenting)); id. at 51 n.15 (“It is

obvious that unless minority group members experience

substantial difficulty electing representatives of their choice, they

cannot prove that a challenged electoral mechanism impairs their

ability ‘to elect.’ § 2(b).”); see also Growe v. Emison, 507 U.S. 25,

40–41 (1993) (noting that “the reasons for the three Gingles

24

prerequisites continue to apply”—including the “‘geographically

compact majority’ and ‘minority political cohesion’ showings,”

which help “establish that the minority has the potential to elect

a representative of its own choice in some single-member

district,” failing which “there neither has been a wrong nor can be

a remedy” (emphasis supplied)).

Indeed, in the context of section two’s dilution analysis, the

U.S. Supreme Court has consistently required geographic

compactness in defining the minority group whose voting power

is to be protected. See League of United Latin Am. Citizens v.

Perry, 548 U.S. 399, 432 (2006) (“LULAC”) (explaining that the

trial court erred by basing its assessment of a district’s

performance on “aggregating the voting strength of [] two groups

of Latinos,” which otherwise “would allow a Latino-preferred

candidate to prevail in elections,” because that “general finding of

effectiveness cannot substitute for the lack of a finding on

compactness”). Limiting the VRA’s protection—and the FDA’s as

well—to a geographically compact minority group makes sense.

Doing so recognizes “that members of geographically insular

racial and ethnic groups frequently share socioeconomic

characteristics, such as income level, employment status, amount

of education, housing and other living conditions, religion,

language, and so forth.” Gingles, 478 U.S. at 64.

The Supreme Court, in turn, has applied the phrase “elect

representatives of their choice”—as it appears in section two of

the VRA—with a focus on the naturally occurring minority

community within a geographically compact area. Cf. Shaw v.

Hunt, 517 U.S. 899, 917 (1996) (hereinafter Shaw II) (“If a § 2

violation is proved for a particular area, it flows from the fact

that individuals in this area ‘have less opportunity than other

members of the electorate to participate in the political process

and to elect representatives of their choice.’ The vote-dilution

injuries suffered by these persons are not remedied by creating a

safe majority-black district somewhere else in the State.”

(internal citations omitted)); id. (“For example, if a geographically

compact, cohesive minority population lives in [one geographic

region], . . . [a district] that spans [another region] would not

address that § 2 violation,” because the “black voters of the [prior

25

geographic region] would still be suffering precisely the same

injury that they suffered before [the new district] was drawn.”).

Moreover, the Supreme Court rejects the use of a non-

geographically based definition of the protected minority group.

See LULAC, 548 U.S. at 432 (rejecting the trial court’s approach,

under which “a district would satisfy § 2 no matter how

noncompact it was, so long as all the members of a racial group,

added together, could control election outcomes”); id. at 433 (“The

first Gingles condition refers to the compactness of the minority

population, not to the compactness of the contested district.”

(quoting Bush v. Vera, 517 U.S. 952, 997 (1996) (Kennedy, J.,

concurring))).

Along these same lines, in Miller v. Johnson, the Supreme

Court explained that the State’s recognition of a racial minority

in districting legislation may or may not be constitutional,

depending on the circumstances:

A State is free to recognize communities that have a

particular racial makeup, provided its action is directed

toward some common thread of relevant interests. When

members of a racial group live together in one

community, a reapportionment plan that concentrates

members of the group in one district and excludes them

from others may reflect wholly legitimate purposes. But

where the State assumes from a group of voters’ race

that they think alike, share the same political interests,

and will prefer the same candidates at the polls,” it

engages in racial stereotyping at odds with equal

protection mandates.

515 U.S. 900, 920 (1995) (internal citations and quotations

omitted). As the Supreme Court later observed: “In the absence of

this prohibited assumption [that all voters of a certain race think

and act alike, regardless of their location], there is no basis to

believe a district that combines two farflung segments of a racial

group with disparate interests provides the opportunity that § 2

requires or that the first Gingles condition contemplates.”

LULAC, 548 U.S. at 433–34 (emphasis supplied); cf. Johnson v.

De Grandy, 512 U.S. 997, 1022 (1994) (finding fault in the fact

that “the complaint alleges no facts at all about the contours,

26

demographics, or voting patterns of any districts outside the Dade

County or Escambia County areas” (emphasis supplied)); id. at

1015 (“We would agree that where a State has split (or lumped)

minority neighborhoods that would have been grouped into a

single district (or spread among several) if the State had

employed the same line-drawing standards in minority

neighborhoods as it used elsewhere in the jurisdiction, the

inconsistent treatment might be significant evidence of a § 2

violation, even in the face of proportionality.”)

Simply put, to obtain relief under section two, “a plaintiff

must show, at a minimum, that the minority group is

‘geographically compact.’” Shaw II, 517 U.S. at 916 (1996).

(“Therefore where that district sits, there neither has been a

wrong nor can be a remedy.” (quoting Growe, 507 U.S. at 41));

Abrams v. Johnson, 521 U.S. 74, 91–92 (1997) (“As we have noted

before, § 2 does not require a State to create, on predominantly

racial lines, a district that is not ‘reasonably compact.’ And the

§ 2 compactness inquiry should take into account ‘traditional

districting principles such as maintaining communities of

interest and traditional boundaries.’” (internal quotations and

citations omitted)); cf. Cooper v. Harris, 581 U.S. 285, 305 (2017)

(“When a minority group is not sufficiently large to make up a

majority in a reasonably shaped district, § 2 simply does not

apply.”); LULAC, 548 U.S. at 431–32 (noting principle “that a

plaintiff, to make out a § 2 violation, must show he or she is part

of a racial group that could form a majority in a reasonably

compact district”).

We acknowledge that this quoted jurisprudence (from

Gingles forward) developed in the context of section two and

dilution claims, but we disagree with the plaintiffs in their

contention that the Gingles precondition one, and the cases that

subsequently apply it, cannot be applicable in a diminishment

claim like the one they assert. Congress limited redistricting

remedies to prevent any demand for “proportional” representation,

which would likely violate non-minorities’ rights under the Equal

Protection Clause of the Fourteenth Amendment to the U.S.

Constitution. Allen v. Milligan, 599 U.S. 1, 19 (2023) (“Gingles

has governed our Voting Rights Act jurisprudence since it was

decided 37 years ago. Congress has never disturbed our

27

understanding of Section 2 as Gingles construed it.”). At its heart,

the plaintiffs’ claim is based on a false premise—prohibited by

section two, in fact—that minority voters living hundreds of miles

apart in totally different communities, not joined in any

reasonably configured geographically area, are entitled to

proportional representation merely because they were once

included together in former CD-5 by court order for three election

cycles. This is not what the technical term we have been

discussing contemplates.

That term is “elect representatives of their choice.” Section

five did not include the phrase until 2006. It was against the

legal landscape we just reviewed that the term, in almost

identical form, was added to the section—indeed, for a similar

purpose: to define the “denies or abridges the right to vote.” Cf.

N.L.R.B. v. Amax Coal Co., a Div. of Amax, Inc., 453 U.S. 322,

329 (1981) (“Where Congress uses terms that have accumulated

settled meaning under either equity or the common law, a court

must infer, unless the statute otherwise dictates, that Congress

means to incorporate the established meaning of these terms.”);

see also Tomlinson, 369 So. 3d at 1147 n.6 (observing that

“technical legal words . . . are deemed to have been statutorily

used as they [have been] legally defined,” based on their

“established legal meaning”).

Even though section five has a different purpose and

function compared to section two, the use of a reference to the

opportunity or ability of minority voters to elect candidates of

their choice is the same in both. Both sections guard against the

denial or abridgment of the individual right to vote on account of

race. Violations can take a variety of forms under both sections.

When it comes to a practice like redistricting, though, Congress’s

use of the same text in both sections points to an intent that the

benchmark for both dilution and diminishment is the same: the

geographically compact Black community with shared interests

and collective voting power.

We see no reason why the same principle should not also

apply in the context of diminishment under our state

constitution, especially given our supreme court’s decisions in

this area of the law. The protection afforded, then, by both the

28

VRA and the FDA, through their references to the ability “to elect

the candidate of their choice,” is of the voting power of “a

politically cohesive, geographically insular minority group.” The

baseline or benchmark from which to measure diminishment

starts with a naturally occurring, geographically compact

community with inherent voting power—not a district drawn

with the purpose of cramming in enough voters to meet a BVAP

target. Without common interests and a shared history and

socioeconomic experience, it is not a community that can give rise

to a cognizable right protected by the FDA. In other words, it is

the community that must have the power, not a district

manufactured for the sole purpose of creating voting power.

We hasten to say, though, that the community-as-benchmark

interpretation applies only to the term “elect representatives of

their choice.” The Supreme Court applied that term in Gingles in

the context of section two’s mention of “less opportunity than

other members of the electorate.” From there, it derived the

concept of “dilution,” which the Court held required the existence

of a potential majority-minority district. The term’s use in the

context of section five’s mention of “diminishing the ability” does

not change the benchmark—the identifiable Black community—

only the starting point for measuring the strength of that

community’s voting power.

This view dovetails with the Florida Supreme Court’s

reading of the FDA to mean that the benchmark from which to

measure claimed “retrogression” can be a majority-minority

district, coalition district, or crossover district. Apportionment I,

83 So. 3d at 625. 14 As the supreme court noted, there is no right

14 In a majority-minority district, “a minority group composes

a numerical, working majority of the voting-age population.”

Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (plurality opinion).

An “influence district” is one “in which a minority group can

influence the outcome of an election even if its preferred

candidate cannot be elected.” Id. A “crossover district” is “[l]ike

an influence district” in that “minority voters make up less than

a majority of the voting-age population,” but “the minority

population, at least potentially, is [still] large enough to elect the

candidate of its choice with help from voters who are members of

29

under section two of the VRA against dilution if there is not a

potential majority-minority district. Id. at 623 (“The showing of

either an additional minority influence district or a crossover

district, as opposed to an actual majority-minority district, is

insufficient for Section 2 purposes; what is required is that ‘the

minority population in the potential election district [be] greater

than 50 percent.’” (quoting Bartlett v. Strickland, 556 U.S. 1, 19–

20 (2009) (plurality opinion))); see also Cooper, 581 U.S. at 305

(characterizing the statement in Bartlett to mean that “[w]hen a

minority group is not sufficiently large to make up a majority in a

reasonably shaped district, § 2 simply does not apply”).

At the same time, the supreme court recognized that even in

the absence of a potential majority-minority district, there still

could be a diminishment claim under the latter part of the FDA if

a new districting regime reduces the minority group’s

performance with respect to the candidate of its choice,

presumably either through influence or with cross-over help. See

Apportionment I, 83 So. 3d at 625; cf. Voinovich v. Quilter, 507

U.S. 146, 158 (1993) (noting that “the Gingles factors cannot be

applied mechanically and without regard to the nature of the

claim” and explaining that under the “first Gingles precondition,

the requirement that the group be sufficiently large to constitute

a majority in a single district, would have to be modified or

eliminated when analyzing the influence-dilution claim we

assume, arguendo, to be actionable today”). In the example just

quoted from Voinovich, “[t]he complaint in such a case is not that

black voters have been deprived of the ability to constitute a

majority, but of the possibility of being a sufficiently large

minority to elect their candidate of choice with the assistance of

cross-over votes from the white majority.” Id.

All we add to this—in the context of having to actually

interpret the text in a case that demands the interpretation for a

disposition—is the principle that a challenger cannot simply

point to the existence of a Black performing district, without

more, and have that serve as a benchmark for a diminishment

the majority and who cross over to support the minority’s

preferred candidate.” Id.

30

claim. In asserting their rights under the FDA, the plaintiffs

must establish they are part of a “geographically compact”

community (rather than several “farflung” ones artificially

brought together). From there, they must demonstrate that the

naturally occurring community of which they are a part achieved

some cohesive voting power under a legally enforceable district.

That will be their benchmark. To prove their diminishment claim

under the FDA, they will have to bring forward evidence that

shows that the community’s voting power decreased under the

new districting enactment.

The plaintiffs failed to present any evidence of the existence

within former CD-5 of such a geographically compact community,

as we described; and the trial court did not demand it. In fact, it

erroneously allowed the parties to stipulate this threshold

element out of existence. They instead simply relied on the mere

existence of former CD-5 as a Black performing district as a basis

for using it as a benchmark. The district, of course, clearly pulled

from “two farflung segments of a racial group with disparate

interests.” LULAC, 548 U.S. at 434. As a legal matter, this was

not enough. There was no evidentiary basis for the conclusion

that CD-5 afforded a legally cognizable Black community (as the

parameters for such have been set out here) voting power that it

did not otherwise have. The plaintiffs then failed to prove a

proper benchmark or baseline from which to assess an alleged

diminishment in voting power. They failed to submit any

evidence as to this essential element of their claim under the

FDA. The trial court should have dismissed the plaintiffs’ suit for

lack of proof.

REVERSED.

ROBERTS, ROWE, WINOKUR, M.K. THOMAS, and LONG, JJ., concur.

OSTERHAUS, C.J., concurs in result only with an opinion in which

ROBERTS, M.K. THOMAS, and LONG, JJ., join.

WINOKUR, J., concurs with an opinion in which B.L. THOMAS and

TANENBAUM, JJ., join.

31

LONG, J., concurs with an opinion in which B.L. THOMAS,

ROBERTS, and M.K. THOMAS, JJ., join.

BILBREY, J., dissents with an opinion in which KELSEY, J., joins.

LEWIS, RAY, and NORDBY, JJ., recused.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

OSTERHAUS, C.J., concurring.

I concur with the result reached by our court but for federal

equal protection-related reasons. I agree as a threshold matter

with my colleagues’ conclusion that Appellees’ standing

arguments lack merit. The State parties were legally obliged to

follow both state and federal law in their redistricting work,

including federal equal protection law. And just as the

Legislature and Governor cannot ignore the United States

Constitution in this work, courts reviewing their work cannot set

aside federal law either. See Art. VI, U.S. Const. (directing that

the “Laws of the United States . . . shall be the supreme Law of

the Land; and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.”).

Turning to the merits, I think the trial court erred by

elevating state law in a vacuum and disregarding the federal

parameters binding upon Florida’s redistricting work. Drawing a

North Florida congressional district to ensure wins for the

preferred candidate of black voters, as required by the Fair

Districts Amendment’s (FDA) diminishment clause, Art. III, § 20,

Fla. Const., is only permissible under federal equal protection

principles if current evidence validates the need for a strong-

medicine remedy to combat pervasive and purposeful

discrimination. No such evidence exists here to support a 2020s-

era diminishment clause-based remedy. Thus, I cannot affirm the

32

trial court’s decision to enforce the diminishment clause, to

vacate the existing enacted map, or to order the map strategically

redrawn so that Congressional District 5’s (CD-5) black voters

will continue winning elections in the 2020s.

A.

Under state law, the Legislature’s task of drawing

congressional districts after the 2020 census came with an FDA

requirement to ensure that minority voters in North Florida’s

CD-5 would continue electing the representative of their choice.

Art. III, § 20, Fla. Const. (requiring that “districts shall not be

drawn with the . . . result of . . . diminish[ing the] ability [of racial

minorities] to elect representatives of their choice”); see also In re

Senate Joint Resolution of Legislative Apportionment 100, 334 So.

3d 1282, 1289 (Fla. 2022) (interpreting the FDA’s diminishment

clause to prohibit the Legislature from “weaken[ing] [a]

historically performing minority district where doing so would

actually diminish a minority group’s ability to elect its preferred

candidates” (quoting In re Senate Joint Resolution of

Apportionment 1176 (Apportionment I), 83 So. 3d 597, 625 (Fla.

2012))). Black voters in CD-5 had elected their choice

congressional candidate in the three most-recent general

elections. And under these circumstances the FDA required that

2020s-cycle redistricting lines be drawn to protect those voters’

ability to continue electing their candidate of choice. Of course,

compliance with the diminishment clause and its race-

preferential ground rule also meant locking in—on the basis of

race—election futility for thousands of other district voters who

prefer other candidates. These voters would stand little chance of

electing their choice of candidate after a strategic, clause-directed

“effort to ‘segregate . . . voters’ on the basis of race.” Shaw v.

Reno, 509 U.S. 630, 647 (1993) (O’Connor, J.) (quoting Gomillion

v. Lightfoot, 364 U.S. 339, 341 (1960)).

The FDA wasn’t, however, the only legal standard regulating

the Legislature’s post-2020 redistricting work. Federal law—“the

supreme Law of the Land,” Art. VI, U.S. Const.—sets strict

parameters upon states that would draw or redraw congressional

districts on the basis of race. Appellees demanded under the FDA

that the trial court enforce a legal guarantee of electoral success

33

in favor of CD-5’s black voters to the detriment of other voters

(while also subordinating traditional race-neutral districting

principles (like compactness) that the FDA relegates to tier 2

status). Because so incorporating a diminishment clause-based

remedy into North Florida’s 2020s redistricting process required

“district lines [to be] obviously drawn for the purpose of

separating voters by race[,] . . . careful scrutiny [was required]

under the Equal Protection Clause regardless of the motivations

underlying their adoption.” Shaw, 509 U.S. at 645; see also

Amend. XIV, § 1, U.S. Const. (Equal Protection Clause)

(forbidding States to “make or enforce any law which shall . . .

deny to any person within its jurisdiction the equal protection of

the laws”). Under federal electoral parameters Florida couldn’t

undertake line-drawing favoring the choice candidate of CD-5’s

black voters without scrutinizing that work under federal equal

protection principles.

In most circumstances the “Equal Protection Clause

prohibits a State, without sufficient justification, from ‘separating

its citizens into different voting districts on the basis of race.’”

Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 187

(2017) (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)). In

fact, we consider such “[c]lassifications of citizens solely on the

basis of race [to be] ‘. . . by their very nature odious to a free

people whose institutions are founded upon the doctrine of

equality.’” Shaw, 509 U.S. at 643 (quoting Hirabayashi v. United

States, 320 U.S. 81, 100 (1943)); see also LULAC v. Perry, 548

U.S. 399, 511 (2006) (Roberts, C.J., concurring in part and

dissenting in part) (recognizing ‘‘a sordid business, this divvying

us up by race”). Because the FDA’s diminishment clause would

apply an overtly race-based redistricting scheme, the Legislature

and Governor had to decide in 2022 if federal law permitted them

to divvy up North Florida voters into districts by race. See

Advisory Opinion to the Governor re Whether Article III Section

20(a) of the Florida Constitution Requires the Retention of a

District in Northern Florida, 333 So. 3d 1106 (Fla. 2022)

(requesting an advisory opinion from the Florida Supreme Court

specifically relating to the constitutionality of redistricting CD-5);

art. VI, U.S. Const.; Candidate Oath, § 99.021, Fla. Stat.

(requiring legislators and officers by oath to “support [both] the

Constitution of the United States and the Constitution of

34

Florida”); see also Bethune-Hill, 580 U.S. at 187 (recognizing

electoral districting to be “a most difficult subject for legislatures”

because of “competing considerations” (quoting Miller, 515 U.S.

at 915)). They concluded that they couldn’t both apply the

diminishment clause in favor of CD-5’s black voters and satisfy

federal prohibitions against race-based district line-drawing.

Consequently, their 2022 enacted map drew more regular,

traditional-looking district lines in North Florida that didn’t keep

together black voters from the former CD-5—an oddly elongated,

handlebar-mustache-looking, Jacksonville to Gadsden County

district. See ch. 2022-265, Fla. Laws (2022); § 8.0002, Fla. Stat.

(2022).

B.

And so, now, Appellees’ challenge tees up the question of

whether the State parties had to carry out the FDA

diminishment clause’s minority-voter, candidate-preference

mandate in this redistricting cycle. Appellees argue that the

court’s analysis should ignore elephant-in-the-room federal law

problems with the FDA’s diminishment clause for standing and

other reasons. But the Supremacy Clause and our own cases

eliminate this path as a credible option. See, e.g., Jones v. Grace

Healthcare, 320 So. 3d 191 (Fla. 1st DCA 2021) (recognizing that

we are “oath-bound to follow” extant federal law)). Alternatively,

Appellees ask us to affirm the trial court’s order requiring the

Legislature and Governor to redraw the congressional map in

compliance with the FDA because the diminishment clause is

tantamount to applying section 5 of the Voting Rights Act of 1965

and comports with federal law. See 52 U.S.C. § 10304(b). Indeed,

the Florida Supreme Court recognized that the FDA’s

diminishment clause is modeled on Section 5 and “guided by [its]

prevailing United States Supreme Court precedent.”

Apportionment I, 83 So. 3d at 620. Here, I agree that a close look

at section 5 and its corresponding precedent is not only

important, but ultimately determinative.

Congress enacted Section 5 under the Fifteenth Amendment

provision authorizing “appropriate” legislation to secure the

rights of all citizens to vote, regardless of race. “Section 5 was

directed at preventing a particular set of invidious practices that

35

had the effect of ‘undoing or defeating the rights recently won by

nonwhite voters.’” Miller, 515 U.S. at 925 (quoting a House report

from 1969); see also Shaw, 509 U.S. at 639–41 (describing ugly

patterns of pervasive racial discrimination leading to the

enactment of the Voting Rights Act). Congress targeted Section 5

against particular states and jurisdictions where egregious

discrimination and the circumvention of courts made “case-by-

case litigation . . . inadequate to combat widespread and

persistent discrimination in voting, because of the inordinate

amount of time and energy required to overcome the

obstructionist tactics invariably encountered in these lawsuits.”

South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966). Neither

the State of Florida nor jurisdictions in North Florida were

covered by it. When the United States Supreme Court first

addressed Section 5’s constitutionality, it justified the Act’s

perverse and substantial cost to equal protection in view of the

exceptional conditions on the ground at that time, “systematic

resistance to the Fifteenth Amendment,” and “obstructionist

tactics.” Id. at 318, 328, 334. It considered Section 5 to be a

necessary “emergency” remedy because of the “unremitting and

ingenious defiance of the Constitution” and courts, in a context

where “Congress concluded that the unsuccessful remedies which

it had prescribed in the past would have to be replaced by sterner

and more elaborate measures in order to satisfy the clear

commands of the Fifteenth Amendment.” Id. at 308-09. Under

those circumstances, the Court upheld the Act. And Congress

subsequently renewed Section 5’s application a few times over

the following decades, bringing vast electoral progress across the

nation.

With the passage of time and improved voting conditions,

however, the evidence weakened for continuing to give Section 5-

based preferences to minority voters and their candidates of

choice. By the 1990s and early 2000s, the United States Supreme

Court began warning that Fifteenth Amendment, race-based

districting practices were increasingly problematic under the

Fourteenth Amendment. Miller, 515 U.S. at 926-27. The Court

developed “serious misgivings about the constitutionality of

Section 5.” Northwest Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193, 202 (2009). And it took the view that “the Act

imposes current burdens and must be justified by current needs.”

36

Id. at 203; see also Students for Fair Admissions, Inc. v. President

and Fellows of Harvard, 600 U.S. 181, 207 (2023) (allowing the

use of racial categories if “remediating specific, identified

instances of past discrimination that violated the Constitution or

a statute” (emphasis added); City of Boerne v. Flores, 521 U.S.

507, 520 (1997) (recognizing that “appropriate” remedial

legislation has “a congruence and proportionality” to the

constitutional violations it is supposed to fix). Justice Thomas

explained the need to reevaluate current evidence underlying

Section 5’s remedial scheme in these terms:

The extensive pattern of discrimination that led the

Court to previously uphold § 5 as enforcing the Fifteenth

Amendment no longer exists. Covered jurisdictions are

not now engaged in a systematic campaign to deny black

citizens access to the ballot through intimidation and

violence. . . . The lack of sufficient evidence that the

covered jurisdictions currently engage in the type of

discrimination that underlay the enactment of § 5

undermines any basis for retaining it. . . . Without such

evidence, the charge can only be premised on outdated

assumptions about racial attitudes in the covered

jurisdictions.

Northwest Austin, 557 U.S. at 226 (Thomas, J., concurring in part

and dissenting in part).

Ultimately, in Shelby County v. Holder, the Court

invalidated Section 5’s coverage formula because current

evidence failed to support its fixed-formulaic application to the

covered jurisdictions. Shelby County v. Holder, 570 U.S. 529

(2013). Shelby County explained:

The Government’s [case] does not even attempt to

demonstrate the continued relevance of the formula to

the problem it targets. And in the context of a decision

as significant as this one—subjecting a disfavored

subset of States to “extraordinary legislation otherwise

unfamiliar to our federal system,” Northwest Austin,

supra, at 211—that failure to establish even relevance is

fatal.

37

* * *

Regardless of how to look at the record, however, no one

can fairly say that [the evidence] shows anything

approaching the “pervasive,” “flagrant,” “widespread,”

and “rampant” discrimination that faced Congress in

1965, and that clearly distinguished the covered

jurisdictions from the rest of the Nation at that time.

Katzenbach, supra, at 308, 315, 331; Northwest Austin,

557 U.S., at 201.

Id. at 552, 554.

Section 5’s legal history, and particularly Shelby County’s

prevailing demand that current evidence must justify the use of a

race-based remedial scheme, applies directly here. For Florida

now to employ its fixed and indefinitely applicable Section 5-

based diminishment clause remedy requires a sturdy, equal

protection-satisfying rationale backed by current evidence of

pervasive and purposeful discrimination. See id.; Northwest

Austin, 557 U.S. at 202; Shaw, 509 U.S. at 657 (recognizing that

“[r]acial gerrymandering, even for remedial purposes, . . .

threatens to carry us further from the goal of a political system in

which race no longer matters”). In other words, the State parties

here weren’t simply free to draw the 2022 map with

diminishment clause-directed lines in the context of an

evidentiary vacuum.

C.

Here stands my problem with Appellees’ case and the trial

court’s order. The record in this case lacks evidence of pervasive

and purposeful racial discrimination sufficient to warrant the

intentional drawing of a diminishment clause-based winning

district for CD-5’s black voters. Appellees point to no evidence

that approaches, for instance, what supported the Voting Rights

Act of 1965 itself. See Katzenbach, 383 U.S. at 308 (highlighting

that “[t]he constitutional propriety of the Voting Rights Act of

1965 must be judged with reference to the historical experience

[and Congress’s voluminous record] explor[ing] with great care

the problem of racial discrimination in voting. The House and

38

Senate Committees on the Judiciary each held hearings for nine

days and received testimony from a total of 67 witnesses . . .

while the debate in the Senate covered 26 days in all”). Along this

line, there is no evidence suggesting that the FDA’s sponsors

undergirded the 2010 initiative process with up-to-date facts

comparable to Congress’s work. Nor do we have a record of

pervasive and purposeful discrimination evidence being provided

to Florida’s voters or being shown to have motivated them to pass

the FDA. See Advisory Opinion to the Attorney General re

Standards for Establishing Legislative District Boundaries, 2 So.

3d 175 (Fla. 2009) (making no mention of evidence justifying a

Section 5-based diminishment clause remedy). Likewise,

Appellees’ current litigation doesn’t supply an up-to-date case

record of pervasive and purposeful racial discrimination

substantiating the need for a drastic Section 5-based remedy.

Rather, the part of Appellees’ brief addressing “specific (and

recent) history of utilizing discriminatory election practices” cites

to court cases beginning in 1945 and ending thirty years ago (also

referencing allegations made in a case twenty years ago that a

court didn’t pass upon).

The absence of discrimination evidence in this case “is

plainly insufficient to sustain such an extraordinary [Section 5-

based] remedy” as advocated by Appellees under the

diminishment clause. Northwest Austin, 557 U.S. at 228

(Thomas, J., concurring in part and dissenting in part). Because

application of the diminishment clause isn’t justified by evidence

of “current needs,” it cannot be considered an appropriate “strong

medicine” remedial option in this redistricting cycle. Shelby

County, 570 U.S. at 535–36. While “exceptional conditions can

justify legislative measures not otherwise appropriate,” id. at 535

(quoting Katzenbach, 383 U.S. at 334), Appellees fail to show

exceptional conditions validating their argument for redrawing

the 2022-enacted maps to favor the candidates of CD-5’s black

voters. Thus, I cannot conclude that the Legislature and

Governor got their recent redistricting work wrong when they

declined to apply the clause’s Section 5-based diminishment

remedy in North Florida. Cf. Dep’t of Fin. Servs. v. Danahy &

Murray, P.A., 246 So. 3d 466, 468–69 (Fla. 1st DCA 2019)

(recognizing that the legislature’s work comes to the court

“clothed with a presumption of constitutionality”).

39

* * *

To sum up, when the time came for Florida to draw new

congressional district lines after the 2020 census, the FDA’s

diminishment clause could only require the purposeful redrawing

of a black-voter performing district across North Florida if

evidence showed a compelling remedial need for it. The

Legislature and Governor identified no voting discrimination-

based justification for drawing such a district. They settled

instead on a traditional-looking map that eliminated the previous

cycle’s 200-mile-long, Jacksonville-to-Gadsden County,

handlebar-mustache-looking district that had performed for black

voters in three prior elections. Now, in this legal challenge to the

State parties’ redistricting efforts, Appellees haven’t shown that

it was legally permissible for them, much less required, to draw

lines so that a North Florida district will perform for black voters.

Given the evidentiary vacuum, courts have no basis to impose a

Section 5-based diminishment clause remedy in this litigation. To

do so would violate federal equal protection principles.

Accordingly, I see no diminishment clause-based basis for

vacating the map enacted in 2022, or to order the map redrawn

so that CD-5’s black voters can elect their preferred candidate in

this decade’s elections.

WINOKUR, J., concurring.

The dissent contends that we have “deviated from past

practice” in choosing to exercise our constitutionally derived

jurisdiction in this case rather than to pass this appeal to the

supreme court pursuant to article V, section 3(b)(5) of the Florida

Constitution. This claim implies that we have an obligation to

yield our own jurisdiction to the supreme court for resolution. I

disagree.

As a preliminary matter, it cannot be denied that this Court

is the court with jurisdiction to hear this appeal. Art. V, § 4(b)(1),

Fla. Const. While we certainly have constitutional authority to

certify this appeal to the supreme court for resolution, we are the

court the constitution has designated to hear this appeal. And I

am unconvinced that we had an obligation to surrender that

jurisdiction.

40

First, the “past practice” we have purportedly deviated from

is application of the so-called “three-part test” of Harris v. Coal.

to Reduce Class Size, 824 So. 2d 245 (Fla. 1st DCA 2002), which

notes that we are to determine “whether (1) the order or

judgment is appealable; (2) the issues raised ‘are of great public

importance’ or are likely to ‘have a great effect on the proper

administration of justice throughout the state’; and (3)

circumstances exist which require that the supreme court

immediately resolve the issues, rather than permitting the

normal appellate process to run its course.” Id. at 246–47. But

this is not a “test” set forth in case law; it is simply a restatement

of the requirements of section 3(b)(5). 1 We may certify the appeal

to the supreme court in accordance with section 3(b)(5), but our

decision to do so is an administrative assessment on our part. We

are not violating case law if we choose not to certify; we are

merely exercising our constitutional duty to hear an appeal

within our jurisdiction and exercising our discretion not to send

the case to the supreme court.

Second, the dissent’s argument presumes that the conclusion

of this proceeding will inevitably result in action by the Florida

Legislature in its 2024 session, and for this reason immediate

resolution is required. I harbor doubts that this suit will end with

this appeal, whether heard in this court or in the supreme court,

so the contention that the parties need the case to be resolved

before the legislative session seems dubious.

But even if this doubt were unfounded, even if it were

certain that the Florida Legislature would act in its 2024 session

based on the outcome of this proceeding, and that this certainty

meant that the case needs immediate resolution, I still cannot

agree that we had an obligation based in case law to certify this

case for the supreme court’s resolution under section 3(b)(5). I do

1 The supreme court “[m]ay review any order or judgment of

a trial court certified by the district court of appeal in which an

appeal is pending to be of great public importance, or to have a

great effect on the proper administration of justice throughout

the state, and certified to require immediate resolution by the

supreme court.” Art. V, § 3(b)(5), Fla. Const.

41

not dispute that the order under review is “of great public

importance,” but I fail to discern any reason why this fact creates

a basis for us to give up our constitutional obligation to decide

this appeal in favor of the supreme court. Nothing in the

constitution implies that a district court of appeal ever has an

affirmative obligation to certify a case to the supreme court, be it

a certification pursuant to section 3(b)(4) 2 or section 3(b)(5).

I respect my dissenting colleague’s view that this appeal

should have been certified to the supreme court, but disagree.

But because the decision to pass an appeal within our jurisdiction

to the supreme court under section 3(b)(5) is an internal

administrative determination, I reject even an implication that

this court could ever abuse its discretion in choosing not to do so,

under the constitution or under case law.

LONG, J., concurring.

I concur in the Court’s decision but write separately to

discuss an alternative interpretation of article III, section 20.

On November 2, 2010, Florida voters adopted a

constitutional amendment to address congressional redistricting.

Florida courts have only addressed the newly adopted provisions

in a handful of cases. And none has addressed how the

provisions should be read in light of existing equal protection

requirements. We should take on that question and, as is our

duty, construe the provision in harmony with existing

constitutional requirements.

As adopted, the constitutional provision says:

In establishing congressional district

boundaries:

2 Article V, section 3(b)(4) gives the supreme court

jurisdiction to review decisions certified by district courts of

appeal to be of great public importance or to be in conflict with a

decision of another district court of appeal.

42

(a) No apportionment plan or individual

district shall be drawn with the intent to favor

or disfavor a political party or an incumbent;

and districts shall not 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; and districts shall consist of

contiguous territory.

(b) Unless compliance with the standards in

this subsection conflicts with the standards in

subsection (a) or with federal law, districts

shall be as nearly equal in population as is

practicable; districts shall be compact; and

districts shall, where feasible, utilize existing

political and geographical boundaries.

(c) The order in which the standards within

subsections (a) and (b) of this section are set

forth shall not be read to establish any priority

of one standard over the other within that

subsection.

Art. III, § 20, Fla. Const.

The constitutional amendment contains several new

redistricting requirements. This case turns on the middle clause

in subsection (a), which prohibits the drawing of congressional

districts “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.” On its face, this provision does

two things. It ensures that racial and language minorities

receive an equal opportunity to participate in the political process

and to elect representatives of their choice. The federal courts

often refer to these two concepts as dilution and retrogression.

As we sort through what they mean in the context of the Florida

Constitution, we will call them the process and weight

requirements.

No Florida court has directly adjudicated a dispute on this

part of the amendment, but our supreme court has spoken

generally to the provision. See In re Senate Joint Resol. of Legis.

Apportionment 1176, 83 So. 3d 597, 619 (Fla. 2012) (comparing

the provision to similar language in the VRA). Though issued as

a general discourse on the new constitutional provisions and not

as an exercise of its judicial adjudicatory power (i.e., obiter

dictum), the supreme court has suggested that interpretation of

article III, section 20 be guided by federal VRA jurisprudence.

Id. at 620 (noting that Florida’s provision is “[c]onsistent with the

goals of Sections 2 and 5 of the VRA”). 1 In providing a general

discussion about the process and weight requirements, the

supreme court did not attempt to evaluate the provisions by

considering their place and context in the broader Florida

Constitution. Instead, it simply pointed out the similarities to

the VRA. Presumably the supreme court did not engage in a

deeper analysis on this question because the discussion was

unrelated to the case before it. But now we have a live dispute

before us and Appellants have argued that if we read the VRA

provisions, along with all their federal court baggage, into article

III, section 20, the result is a provision inconsistent with our

equal protection guarantee. 2

The supreme court understands our independent duty and,

even while suggesting the use of the VRA’s interpretive

principles, also recognized that article III, section 20 is different

from the VRA and other states’ similar provisions. “Florida’s

1 To the extent that the supreme court intended to fully

adopt federal VRA jurisprudence, Chief Judge Osterhaus and

Judges B.L. Thomas and Tanenbaum have thoughtfully

explained why the trial court’s final judgment should still be

reversed.

2 While Secretary Byrd points out that Florida has its own

equal protection provision, the argument is primarily presented

via federal equal protection. We can, however, fully resolve this

case on Florida constitutional grounds.

44

provision is unique among the states in that it incorporates

language from the VRA but does not explicitly reference the

VRA.” Id. That is to say that Florida law is different from

federal law. And in interpreting Florida law, we keep in mind

that “lockstepping [with federal law] disregards [the] state’s

particular history, linguistics, norms, and intratextual analysis.”

Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making

of American Constitutional Law, 132 HARV. L. REV. 811, 818

(2018). Understanding this, the supreme court explained that we

have an independent duty to interpret our own constitution. 3 See

In re Senate Joint Resol. of Legis. Apportionment 1176, 83 So. 3d

at 621 (“The Court nonetheless recognizes our independent

constitutional obligation to interpret our own state constitutional

provisions.”). 4 Consistent with these principles, we should

endeavor to interpret article III, section 20 faithfully and

independently. This requires carefully reviewing its text and

context. We must consider the original public meaning of the

text and seek to read the provision harmoniously with article I,

section 2.

3 “[A]n underappreciation of state constitutional law has

hurt state and federal law and has undermined the appropriate

balance between state and federal courts in protecting individual

liberty.” Jeffrey S. Sutton, 51 Imperfect Solutions: States and the

Making of American Constitutional Law 6 (2018). “Nothing

compels the state courts to imitate federal interpretations . . .

when it comes to the rights guarantees found in their own

constitutions, even guarantees that match the federal ones letter

for letter.” Id. at 16.

4 It also reinforces the distinctiveness of federal law and

Florida law that two cases are simultaneously proceeding at this

very time regarding this same congressional redistricting. The

federal courts will ultimately determine what the federal

constitution and VRA require. Florida courts will determine

what the Florida Constitution requires.

45

Harmonious Reading

We begin with article I, section 2. Article I sets out our

Declaration of Rights. Article I, section 2 contains our “[b]asic

rights” and says that “[a]ll natural persons . . . are equal before

the law” and that “[n]o person shall be deprived of any right

because of race.” Quite simply, article I, section 2 requires that

the law treat everyone equally regardless of race. This is a

bedrock, fundamental tenet of our republic. It is our “basic

right.”

We see that article III, section 20 does not exist in a vacuum.

It is found in a constitution that expressly prohibits race-based

deprivations. Yet Appellees argue the provision requires racial

balkanization. There is no indication anywhere to suggest that

article III, section 20 was meant to undermine or limit our “basic

rights” found in article I, section 2. And so it must be read and

interpreted in light of article I, section 2 and the rest of the

Florida Constitution.

The harmonious-reading canon states that the “provisions of

a text should be interpreted in a way that renders them

compatible, not contradictory.” Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 180

(2012). “[O]ne part is not to be allowed to defeat another, if by

any reasonable construction the two can be made to stand

together.” Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest upon the Legislative Power of the States

of the American Union 58 (1868). “The imperative of harmony

among provisions is more categorical than most other canons of

construction because it is invariably true that intelligent drafters

do not contradict themselves.” Scalia & Garner, supra, at 180.

We, of course, assume the people of Florida are intelligent and

intentional in their adoption of constitutional amendments.

Without any indication that article III, section 20 was meant to

subvert our basic equal protection rights, we must read the two

provisions harmoniously. And we need not contort the language

to do so. As we have already pointed out, the provision is

addressed to two subjects—equal process and equal weight—

neither of which conflicts with equal protection.

46

Ordinary Meaning

Experienced election lawyers who have spent careers

litigating the morass of the VRA may instinctively view article

III, section 20 through the lens of federal law. But article III,

section 20 was adopted by millions of ordinary Florida voters, not

by highly specialized election lawyers. And so we must give the

text its ordinary public meaning. That is our duty. “In

interpreting this text, we are guided by the principle that ‘[t]he

Constitution was written to be understood by the voters; its

words and phrases were used in their normal and ordinary as

distinguished from technical meaning.’” D.C. v. Heller, 554 U.S.

570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716,

731 (1931)); see also McDonald v. City of Chicago, Ill., 561 U.S.

742, 828 (2010) (Thomas, J., concurring in part and concurring in

judgment) (“When interpreting constitutional text, the goal is to

discern the most likely public understanding of a particular

provision at the time it was adopted.”). “The ordinary-meaning

rule is the most fundamental semantic rule of interpretation.”

Scalia & Garner, supra, at 69. “Interpreters should not be

required to divine arcane nuances or to discover hidden

meanings.” Id.

[E]very word employed in the constitution is to be

expounded in its plain, obvious, and common sense,

unless the context furnishes some ground to control,

qualify, or enlarge it. Constitutions are not designed for

metaphysical or logical subtleties, for niceties of

expression, for critical propriety, for elaborate shades of

meaning, or for the exercise of philosophical acuteness

or judicial research. They are instruments of a practical

nature, founded on the common business of human life,

adapted to common wants, designed for common use,

and fitted for common understandings.

Joseph Story, Commentaries on the Constitution of the United

States 157–58 (1833). Below we will examine more closely the

ordinary meaning of “political process” and “ability to elect

representative of their choice.” But before we do, we will look to

the broader context.

47

Ballot language is a useful contextual tool when evaluating

the original public meaning of constitutional language adopted by

plebiscite. It was the vehicle used to explain the amendment to

the voters who adopted it. Ballot language cannot be used to

trick voters into adopting provisions with hidden meanings. And

so we must ask whether a proposed interpretation aligns with a

facial review of the ballot language. Here, we examine for any

indication that the amendment would require Appellees’

proposed race-based voter segregation. The ballot explained the

constitutional amendment in this way:

Congressional districts or districting plans may not be

drawn to favor or disfavor an incumbent or political

party. Districts shall not be drawn to deny racial or

language minorities the equal opportunity to participate

in the political process and elect representatives of their

choice. Districts must be contiguous. Unless otherwise

required, districts must be compact, as equal in

population as feasible, and where feasible must make

use of existing city, county and geographical boundaries.

See Advisory Opinion to Att'y Gen. re Standards For Establishing

Legis. Dist. Boundaries, 2 So. 3d 175, 180 (Fla. 2009). We find

nothing to support Appellees’ proposed interpretation. The

diligent voter that read the amendment’s text, and the ballot

language explaining it, would have no reason to suspect that it

would lock in racial gerrymanders in perpetuity. There was

nothing to suggest the amendment would require the legislature

to focus on racial demographics and voting patterns or to carve

up neighborhoods and communities to ensure one racial group

prevails over another. The people could not have known all this

because it is plainly not there. Appellees only find it by imposing

“arcane nuances” and “hidden meanings” on the otherwise

commonplace language. 5 Voters were asked if they wanted to

5 Even assuming the phrases are taken from the VRA and

have known meanings, we still must ask: known to whom? We

are duty-bound to give the language its original public meaning.

To the extent that VRA jurisprudence is coherent at all, the

phrases might be known only to a handful of election lawyers

around the state. The amendment process cannot be used to

48

amend their constitution to prohibit the drawing of districts that

would “deny racial or language minorities the equal opportunity

to participate in the political process and elect representatives of

their choice.” That’s it.

As we see below, the original public meaning of the provision

was a complement to the existing constitutional demand for equal

protection under the law. Equal process and equal weight for all.

Having made harmonious-reading and ordinary-meaning

considerations, we now seek to faithfully interpret the provision

in light of them.

The Process Requirement

The process requirement is the guarantee of “equal

opportunity of racial or language minorities to participate in the

political process.” We consider what an ordinary voter would

understand the word “process” to mean. Process is commonly

defined as a “series of actions or steps taken in order to achieve a

particular end.” Process, NEW OXFORD AMERICAN DICTIONARY

(3d ed. 2010); see also Process, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2003) (defining process as “a series of

actions or operations conducing to an end”). There is no

indication from the text or context that the language used was

intended to mean something other than this ordinary definition.

The original public meaning, therefore, of participation in the

“political process” is the actions and operations associated with

voting. It deals with the “methods for conducting a part of the

voting process that might . . . be used to interfere with a citizen’s

ability to cast his vote.” Holder v. Hall, 512 U.S. 874, 917–18

(1994) (Thomas, J., concurring in judgment). Such as

“registration requirements, . . . the locations of polling places, the

times polls are open, the use of paper ballots as opposed to voting

machines, and other similar aspects of the voting process.” Id. at

922. The process requirement “focuses on ballot access and

counting.” Allen v. Milligan, 599 U.S. 1, 46 (2023) (Thomas, J.,

dissenting). The process requirement guarantees equal

hoodwink millions of Florida voters through bait-and-switch

lawyer-speak.

49

treatment in all aspects of the voting process, from registration to

ballot counting and everything in between.

The Weight Requirement

The weight requirement is the guarantee that a racial or

language minority does not have a diminished “ability to elect

representatives of their choice.” There is no serious dispute

about the meaning of the words used in this portion of the

provision. Everyone agrees it cannot mean an individual has a

right to elect his candidate of choice. This of course is impossible.

But the language does not suggest that reading anyway. The

provision, especially when viewed together with the ballot

language and article I, section 2, guarantees an equal, that is,

non-diminished, ability to elect your candidate of choice. This

provision is Florida’s version of one person, one vote. It

constitutionalizes “the fundamental principle of representative

government . . . of equal representation for equal numbers of

people, without regard to race.” Reynolds v. Sims, 377 U.S. 533,

560–61 (1964). It prohibits “[w]eighting the votes of citizens

differently, by any method or means.” Id. at 563. This could be

violated where minority voters are packed into higher population

districts while non-minority voters are drawn into lower

population districts. In such a case, the minority voter’s vote

would have a diminished weight when compared to a non-

minority counterpart. Equal process and equal weight.

Reading the provision this way is faithful to the text and to

its place in the broader constitution. It reads article III, section

20 as a complement to article I, section 2, rather than in conflict.

To guarantee racial and language minorities receive an equal

opportunity to participate in the political process. And to ensure

an equal ability (one that is not diminished as compared to non-

racial and non-language minorities) to elect representatives of

their choice.

Appellees argue we must construe the weight requirement as

the federal courts have interpreted similar language in the VRA.

They suggest the language prohibits redistricting that reduces

the number of majority-minority racial districts. In effect, they

argue the provision requires the continued racial segregation of

50

voters. But there is no evidence that the people of Florida

intended to adopt “the sordid business of divvying us up by race.”

Allen v. Milligan, 599 U.S. 1, 86 (2023) (Thomas, J., dissenting)

(internal quotations omitted). Appellees’ proposed interpretation

thwarts article I, section 2. So it must be rejected.

Along with its manifest conflict with article I, section 2, we

pause here to discuss two other problems with Appellees’

proposed construction. First, constitutional rights are individual

rights. They are not rights conveyed to discrete racial or ethnic

groups. The prohibition on the diminishment of racial minorities’

ability to elect representatives of their choice is a protection for

individual voters. Yet, without a basis in the text, Appellees’

interpretation improperly treats minority voters as a monolith.

No amount of clever legal-speak and rationalization can escape

this. It steals the individual right of a minority voter to be

protected from race-based disenfranchisement and exchanges it

for race-based voter segregation. The provision must instead be

read to convey a right of equal voting access to individuals. 6

Second, the term “diminish” requires a point of reference—

diminished as compared to what? Appellees’ interpretation fails

6 No measure of black voting patterns has ever revealed

100% black voter solidarity on candidates. This puts the lie to

Appellees’ proposed interpretation. Even assuming 90%

consistency in black voting patterns, it necessarily means that

10% of black voters have been intentionally deprived of the

ability to elect a representative of their choice based on their

race. Instead of their constitutional right to vote in a fair district

made up of a broad swath of the greater community, they are

swept into racially segregated districts and intentionally denied

any meaningful chance to elect their representatives of choice.

And it is only under Appellees’ proposed interpretation that

voters are disenfranchised based on their race. Under race-blind

redistricting, voters never win or lose on account of their race.

Any regime that racially marginalizes voters is unconstitutional

and patently unjust. Treating citizens as individuals without

regard for race is the only way to ensure full and equal

participation in the political process.

51

here too because it requires a comparison to a previous district’s

racial makeup. This interpretation is stuck looking backwards

and can never get to the central point of the provision—ensuring

all voters are treated equally. Instead, it turns the provision on

its head. It fails because it converts a race-based prohibition into

a race-based requirement. The constitution cannot demand that

all voters are treated equally without regard to race and at the

same time demand that voters are treated differently based on

race.

Rather than read incompatibility into the provision, it should

be read as a companion. The districts cannot be drawn to

diminish an individual racial-minority-voter’s ability to elect a

representative of choice as compared to an individual non-racial-

minority-voter. This is ultimately accomplished by ensuring all

voters are treated equally without regard to race.

The harmonious-reading and ordinary-meaning canons are

our basic interpretive tools. Their use is our duty. We are guided

by the text. We read the text in its broader context. In doing so,

we consider its public meaning at the time it was adopted. The

amendment was adopted based on its anodyne ballot language

and constitutional text. Rather than use our foundational

interpretive tools, Appellees ask us to open the secret trap door

and unleash the highly controversial and hotly disputed federal

VRA jurisprudence into the Florida Constitution. We should

decline that invitation.

Conclusion

The Florida Constitution includes strong equal protection

language and an express prohibition on the consideration of race.

Article III, section 20 is a complement to that protection. A

faithful reading requires us to “resolve these cases in a way that

would not require the [Florida] Judiciary to decide the correct

racial apportionment of [Florida’s] congressional seats.” Allen v.

Milligan, 599 U.S. 1, 46 (2023) (Thomas, J., dissenting).

Article III, section 20 requires that racial and language

minority voters receive an equal opportunity to participate in the

political process and have a non-diminished ability to elect

52

representatives of their choice. The trial court erred in reading a

racial segregation mandate into the constitutional provision. We

are therefore correct to reverse the final order and remand to the

trial court.

BILBREY, J., dissenting.

I respectfully dissent. As explained below, we should have

passed this appeal through to the Florida Supreme Court for

immediate resolution as the parties jointly requested. Barring

that, we should affirm because the currently enacted

congressional districts diminish Black voters’ “ability to elect

representatives of their choice” in violation of one of the Florida

Constitution’s Fair Districts Amendments when compared to the

benchmark district the Florida Supreme Court previously

approved. Art. III, § 20(a), Fla. Const. And there are or can be

alternatives to the current districts, including two plans the

Legislature already passed, that are constitutional under the

Equal Protection Clause of the United States Constitution. U.S.

const. amend XIV, § 1.

We Should Have Passed the Appeal

Through to the Florida Supreme Court

The trial court issued its 55-page final order after hearing

and final judgment on September 2, 2023. The court determined

that the currently enacted congressional redistricting plan in

Laws of Florida, Chapter 2022-265, codified as section 8.0002(5),

Florida Statutes (2023), violates the Fair Districts Amendment in

article III, section 20 of the Florida Constitution. Appellants

promptly filed their notice of appeal on September 4. Just four

days later, Appellants and Appellees filed what was styled as

“Joint Time-Sensitive Suggestion for Pass-Through Certification”

asking us to certify the judgment for immediate resolution by the

Florida Supreme Court. 1 See Art. V, § 3(b)(5), Fla. Const.; Fla. R.

App. P. 9.125(c).

1 We rarely see a suggestion for certification filed by a party.

In my almost nine years on this court, this is the first time I

recall receiving a joint suggestion for certification approved by all

the parties to an appeal.

53

The parties explained clearly why we should have permitted

the Florida Supreme Court to immediately take jurisdiction of

the appeal. The “judgment on appeal addresses congressional

redistricting issues of great public importance.” The “appeal

requires immediate resolution by the Florida Supreme Court to

provide certainty to voters, potential candidates, and election

officials regarding the configuration and validity of Florida’s

congressional districts sufficiently in advance of the 2024

elections.”

Admittedly, the joint suggestion, compelling though it was,

was not binding on us. Rather, the issues for our determination

in deciding whether to pass the appeal through to the Florida

Supreme Court were:

whether (1) the order or judgment is appealable; (2) the

issues raised “are of great public importance” or are

likely to “have a great effect on the proper

administration of justice throughout the state”; and (3)

circumstances exist which require that the supreme

court immediately resolve the issues, rather than

permitting the normal appellate process to run its

course.

Harris v. Coal. to Reduce Class Size, 824 So. 2d 245, 246–47 (Fla.

1st DCA 2002); see also ACLU v. Hood, 881 So. 2d 664, 666 (Fla.

1st DCA 2004). Under this test, and consistent with our past

practice, we should have promptly certified the judgment for

immediate resolution by the Florida Supreme Court.

The first prong of the Harris test was easily met. The final

judgment from the trial court was appealable. See Fla. R. App. P.

9.030(b)(1)(A). Likewise as to the second prong from Harris,

whether a congressional redistricting plan is unconstitutional is

undoubtedly a matter of great public importance. See League of

Women Voters of Fla. v. Detzner, 178 So. 3d 6, 7 (Fla. 1st DCA

2014) (certifying the judgment “declaring parts of the Florida

Legislature’s 2012 congressional redistricting plan

unconstitutional” for direct review when the next election was

“approximately two years away”). The Florida Supreme Court

on this very question “acknowledge[d] the importance of the

54

issues presented.” Advisory Op. to the Governor Re: Whether

Article III, Section 20(A) of the Fla. Const. Requires the Retention

of a Dist. in N. Fla., 333 So. 3d 1106, 1108 (Fla. 2022).

Finally, the third prong of the Harris test was met here. The

trial court’s final judgment directs the Florida “House of

Representatives and Senate to enact a remedial map in

compliance with Article III, Section 20 of the Florida

Constitution.” The Florida Legislature is set to convene on

January 9, 2024. See Art. III, § 3(b), Fla. Const. Qualifying in

Florida for the United States House of Representatives starts on

April 8, 2024. See § 99.061(8), Fla. Stat. (2023). The parties were

correct when they cited Hood and stated that “[t]here is

insufficient time for this court to provide a first-tier review prior

to the issues being heard by the Supreme Court of Florida” if the

appeal was going to be resolved in time for the 2024 election. 2

881 So. 2d at 666; see also Advisory Op. to the Governor, 333 So.

3d at 1108 (recognizing the “need for quick resolution and

finality” on the redistricting question now before this court). 3

2 The parties’ stipulation before the trial court provided that

if we granted pass-through certification to the Florida Supreme

Court and the Court took up the appeal, “the Parties will propose

a schedule that will permit resolution by the Florida Supreme

Court by December 31, 2023, to allow the Florida Legislature to

take up any remedial map, if necessary, during the 2024

legislative session beginning on January 9, 2024 for enactment

no later than April 1, 2024.”

3 After we informed the parties that we were hearing this

matter en banc, they provided a stipulation regarding the

briefing schedule. They noted “that time is of the essence.” They

requested that we “dispense with oral argument and resolve this

case on the briefs.” Finally, in the stipulation the parties

requested that we issue our opinion by November 22, 2023, to

allow for Florida Supreme Court review and Legislative action if

necessary “before the Legislature’s scheduled adjournment on

March 8, 2024.”

55

In Detzner we certified the judgment, finding that it was of

great public importance and required immediate resolution by

the Florida Supreme Court, when the congressional election at

issue was over two years away. 178 So. 3d at 6. 4 Here, there is

much greater urgency to ultimately resolve the questions raised,

with less than a month and half to the next Legislative session,

less than five months until qualifying, and less than a year until

the next congressional election. The 2022 election was already

conducted under a map that the trial court found violated Fair

Districts. See Byrd v. Black Voters Matter Capacity Bldg. Inst.,

Inc., 339 So. 3d 1070, 1074 (Fla. 1st DCA 2022). 5 Our action in

delaying Florida Supreme Court review risks having the 2024

House of Representatives election being conducted again under a

map of dubious constitutionality.

We knew when the suggestion for pass-through was before

us in September that the Florida Supreme Court would likely

have jurisdiction no matter how we ruled on the appeal. The

majority opinion provides the Supreme Court with various bases

for jurisdiction. See Art. V, § 3(b)(3), Fla. Const. And the Court

has noted “that we take seriously our obligation to provide

certainty to candidates and voters regarding the legality of the

state’s congressional districts.” League of Women Voters of Fla. v.

4 I do not contend that Detzner is binding on this court since

the appropriateness of certification differs in each case and the

rule says that a “district court of appeal may make such

certification.” Fla. R. App. P. 9.125(a) (emphasis added).

Nonetheless, using the test from Harris, we should have followed

the example of Detzner and certified the judgment.

5 As for any argument that we properly declined to pass

through the appeal since the parties already appeared before us

in Byrd, that case involved only the procedural question of

whether it was appropriate for the trial court’s temporary

injunction to change the status quo before trial. 339 So. 3d at

1075. In Byrd, we did not “reach whether recently enacted

Senate Bill 2-C comports with Article III, section 20, of the

Florida Constitution.” Byrd, 339 So. 3d at 1073. Weightier,

substantive matters must be addressed in this appeal.

56

Detzner (Apportionment VII), 172 So. 3d 363, 372 (Fla. 2015).

Our action in keeping this appeal undermines that assurance of

certainty from the Florida Supreme Court.

Only the Florida Supreme Court can determine whether our

action here functions as a speedbump or a stop sign on the road

to determining whether a map found to violate the Florida

Constitution will apply to the 2024 congressional election. Even

if the enacted map is ultimately found to be constitutional, our

action in not passing the appeal through for immediate resolution

by the Florida Supreme Court creates “uncertainty for the voters

of this state, the elected representatives, and the candidates who

are required to qualify for their seats” in contravention of Florida

Supreme Court policy about the constitutionality of

apportionment. See In re Senate Joint Resol. of Legis.

Apportionment 1176 (Apportionment I), 83 So. 3d 597, 609 (Fla.

2012).

To conclude on this issue, we should have accepted the

parties’ joint suggestion and certified the appeal to the Florida

Supreme Court almost three months ago. By failing to do so, we

have deviated from our past practice and delayed the ultimate

resolution to the detriment of the voters, election officials, and

candidates in North Florida.

We Should Affirm on the Merits

The Enacted Districts

For the 2016, 2018, and 2020 elections, after litigation

discussed below, the Florida Supreme Court approved the

following as congressional District 5 (shown in purple):

57

(“benchmark District 5”); 6 see League of Women Voters of Fla. v.

Detzner (Apportionment VIII), 179 So. 3d 258, 271–73 (Fla. 2015).

After the 2020 Census, the Florida Legislature was required

to reapportion Florida’s United States House of Representatives

districts. § 11.031(1), Fla. Stat. (2023). In furtherance of its

duty, during the last regular session the Legislature passed

CS/SB 102, which would have amended section 8.0002, Florida

Statutes. The bill would have enacted the following as section

8.0002(5) to redistrict District 5 (shown in purple):

(“Duval-only District 5”).

CS/SB 102 also would have amended the severability

provision in section 8.0611, Florida Statutes, to create an

alternative “if a court determines that the district described in s.

8.002(5) is invalid under any provision of federal law, including

the United States Constitution, or the Florida Constitution.”

This alternative would have enacted the following as section

8.0003(5) to redistrict District 5 (shown in purple):

6 The reason this district is the benchmark is explained

below.

58

(“alternative District 5”).

The Governor vetoed CS/SB 102, which would have created a

Duval-only District 5 and the alternative District 5. 7 In a Special

Session, the Legislature then passed SB 2C, which amended

section 8.0002, Florida Statutes. The Governor signed this bill

creating the following as the enacted District 4 (shown in yellow)

and District 5 (shown in purple): 8

7 Before the enacted districts were created, the Governor

sought an advisory opinion from the Florida Supreme Court. See

Art. IV, § 1(c), Fla. Const. The Governor asked whether the

Florida Constitution’s non-diminishment standard required an

East-West district to connect Duval County with Leon and

Gadsden Counties. In this request, the Governor forthrightly

cited Apportionment VIII, 179 So. 3d at 271, in noting that the

Florida Supreme Court “has previously suggested that the

answer is ‘yes.’” The Florida Supreme Court respectfully denied

the request for an advisory opinion. Advisory Op. to the

Governor, 333 So. 3d at 1108.

8 In their pretrial stipulation, the parties agreed that

enacted congressional District 4 “is the district with the highest

percentage of population that comes from Benchmark CD-5.”

59

§ 8.002(4), Fla. Stat. (“the enacted districts or the enacted map”).

Appellees challenged the elimination of benchmark District 5

in the enacted map, claiming in the amended complaint

unconstitutional diminishment of “Black voters’ ability to elect

their candidates of choice.”

Fair Districts Amendments

In 2010, the people of Florida adopted two amendments to

the Florida Constitution known as the Fair Districts

Amendments. See Art. III, §§ 20–21, Fla. Const.; Apportionment

I, 83 So. 3d at 598. Until the adoption of the Fair Districts

Amendments, “Florida’s constitutional requirements guiding the

Legislature during the apportionment process were ‘not more

stringent than the requirements under the United States

Constitution.’” Id. (quoting In re Constitutionality of House Joint

Resol. 1987, 817 So. 2d 819, 824 (Fla. 2002)).

The amendments “adopted identical standards” for

congressional redistricting in section 20 and legislative

redistricting under section 21. Apportionment I, 83 So. 3d at 598

n.1. 9 Section 20, which is at issue here, stated:

9 The majority opinion makes the novel argument that

Apportionment I and In re Senate Joint Resolution of Legislative

Apportionment 2-B (Apportionment II), 89 So. 3d 872, 889–90

(Fla. 2012), are not binding on this court. This argument was not

made by the Appellants. In fact, Appellants repeatedly cited

60

In establishing congressional district boundaries:

(a) No apportionment plan or individual district

shall be drawn with the intent to favor or disfavor a

political party or an incumbent; and districts shall not

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; and districts shall

consist of contiguous territory.

(b) Unless compliance with the standards in this

subsection conflicts with the standards in subsection (a)

or with federal law, districts shall be as nearly equal in

population as is practicable; districts shall be compact;

and districts shall, where feasible, utilize existing

political and geographical boundaries.

(c) The order in which the standards within

subsections (a) and (b) of this section are set forth shall

not be read to establish any priority of one standard

over the other within that subsection.

Apportionment I in their initial briefs. The Legislative parties

stated in part, “the Florida Supreme Court recognized that new

districts may not ‘weaken’ historically performing districts, 83 So.

3d at 625, and that the non-retrogression standard adopted by

Congress, and more recently by Florida, asks whether the

minority population is ‘more, less, or just as able to elect a

preferred candidate of choice after a change as before.’” The

Secretary’s initial brief also recognized the precedential

importance of Apportionment I, stating that it “dealt with an

identically worded constitutional provision for state legislative

districting, see Art. III, § 21, Fla. Const., but the case’s analysis

applies equally to Section 20, see League of Women Voters of Fla.

v. Fla. House of Representatives, 132 So. 3d 135, 139 n.2 (Fla.

2013).” The Florida Supreme Court in both Apportionment VII

and Apportionment VIII, involving the review of trial court

decisions, cited Apportionment I with approval.

61

(emphasis added). The standards in section 20(a) are known as

tier-one standards, while the standards in section 20(b) are

known as tier-two standards. Apportionment I, 83 So. 3d at 615.

The portion of section 20(a) at issue “imposes two

requirements that plainly serve to protect racial and language

minority voters in Florida: prevention of impermissible vote

dilution and prevention of impermissible diminishment of a

minority group’s ability to elect a candidate of its choice.”

Apportionment I, 83 So. 3d at 619. “[B]oth clauses impose a

restrictive imperative, each of which must be satisfied.” Id.

(quoting Advisory Op. to Att’y Gen. re Standards For Establishing

Legis. Dist. Boundaries, 2 So. 3d 175, 189 (Fla. 2009) (plurality

opinion)).

The “equal opportunity” clause in section 20(a) is protection

against dilution. Apportionment I, 83 So. 3d at 619. This clause

“is essentially a restatement of Section 2 of the Voting Rights Act

(VRA), which prohibits redistricting plans that afford minorities

‘less opportunity than other members of the electorate to

participate in the political process.’” Apportionment I, 83 So. 3d

at 619 (quoting 42 U.S.C. § 1973(b) (2006)). “A successful vote

dilution claim under Section 2 requires a showing that a minority

group was denied a majority-minority district that, but for the

purported dilution, could have potentially existed.”

Apportionment I, 83 So. 3d at 622 (emphasis added). A dilution

claim was not alleged at trial and is not before us.

The only requirement of section 20(a) asserted at trial below

and now before us is the non-diminishment clause. This “reflects

the statement codified in Section 5 of the VRA.” Apportionment I,

83 So. 3d at 620. “Florida’s constitutional provision now

embraces the principles enumerated in Sections 2 and 5 of the

VRA. Because Sections 2 and 5 raise federal issues, our

interpretation of Florida’s corresponding provision is guided by

prevailing United States Supreme Court precedent.”

Apportionment I, 83 So. 3d at 620. “Section 5 attempts to

eradicate impermissible retrogression in a minority group’s

62

ability to elect a candidate of choice.” 10 Apportionment I, 83 So.

3d at 620. “[T]he Legislature cannot eliminate majority-minority

districts or weaken other historically performing minority

districts where doing so would actually diminish a minority

group’s ability to elect its preferred candidates.” Id. at 625.

The Florida Supreme Court has described as follows the

analysis governing the determination of whether diminishment

occurred:

[T]he extent to which benchmark and new districts

perform for minority voters—that is, enable those voters

to elect the candidate of their choice—requires a

“functional analysis” of voting behavior within the

districts at issue. Such analysis considers statistical

data pertaining to voting age population; voter-

registration data; voting registration of actual voters;

and election results history.

In re Senate Joint Resol. of Legis. Apportionment 100, 334 So. 3d

1282, 1289 (Fla. 2022) (citing Apportionment I, 83 So. 3d at 625,

627).

A district does not have to be majority-minority to be

protected from diminishment, but districts where Black voters or

other racial minorities make up the majority of the population

are protected. See Apportionment I, 83 So. 3d 625 (citing Texas v.

United States, 831 F. Supp. 2d 244, 265–68 (D.D.C. 2011)). The

Florida Supreme Court stated that, “in addition to majority-

minority districts, coalition or crossover districts that previously

provided minority groups with the ability to elect a preferred

candidate under the benchmark plan must also be recognized.”

Id.

10 Retrogression and diminishment are synonymous in the

context of both Section 5 of the VRA and the Fair Districts

Amendments. See Apportionment I, 83 So. 3d at 619–20.

63

The Parties’ Stipulation and Trial Court Proceedings

The parties narrowed the issues for trial and reached a

pretrial stipulation. They agreed that in the 2016, 2018, and

2020 general elections, “Black voters were politically cohesive in

elections in the district.” They agreed that during those three

elections “voting was racially polarized in the district” and that

the “candidate of choice for Black voters in the district” won each

of the three elections. They also agreed that under the enacted

map the Black voting age population of the district decreased

from 46.2% to 31.7%. Finally, they agreed, “None of the Enacted

districts in North Florida are districts in which Black voters have

the ability to elect their preferred candidates.” 11

11 I respectfully disagree with the majority’s contention that

the ability of Black voters to “elect the candidate of their choice”

is a question of law not controlled by the stipulation of the

parties. The law may supply the meaning of the term, but

whether a new district diminishes the ability of Black voters to

elect a candidate of their choice is based on facts. See Thornburg

v. Gingles, 478 U.S. 30, 41 (1986) (“Based on statistical evidence

presented by expert witnesses, supplemented to some degree by

the testimony of lay witnesses, the [federal district] court found

that all of the challenged districts exhibit severe and persistent

racially polarized voting.”); McMillan v. Escambia Cnty., Fla.,

748 F.2d 1037, 1043 (5th Cir. 1984) (“Defendants contend that

voting in Escambia County is not polarized. This contention is

not supported by the evidence.”); Martinez v. Bush, 234 F. Supp.

2d 1275, 1279–80 (S.D. Fla. 2002) (“We present detailed findings

of fact comparing voting behavior by race in performing black

districts existing before and after the redistricting process at

issue in this litigation.”). The stipulation of the parties

established the facts here and is binding on us. See Troup v.

Bird, 53 So. 2d 717, 721 (Fla. 1951). Additionally, the Appellants

did not make the argument that the stipulation was insufficient

to establish diminishment, so it is not preserved. Citizen of State

v. Clark, 48 Fla. L. Weekly S217, S217, 2023 WL 7400723, *2

(Fla. Nov. 9, 2023) (citations omitted) (“The preservation

requirement also serves the purpose of treating the parties, the

court, and the judicial system fairly.”). Nor was the issue even

raised in the Appellants’ briefs, so it is not a basis to reverse.

64

In the stipulation, the parties disagreed on whether the

diminishment standards in Fair Districts could be applied to the

enacted districts. The Appellants claimed as Question 1 for the

trial court’s determination that the Appellees had to satisfy the

precondition requirement under Thornburg v. Gingles, 478 U.S.

30 (1986), before Appellees could state a diminishment claim.

But the parties agreed that if Gingles did not apply,

diminishment had been proved. 12 The stipulation stated,

Defendants [Appellants] concede that if the non-

diminishment standard applies to North Florida

(Question #1), then there is no Black-performing district

in North Florida under the Enacted Map. The parties

agree that the former congressional district 5 used for

the 2016, 2018, and 2020 congressional elections was a

Black-performing district.

The trial court found that the benchmark district was the

District 5 the Florida Supreme Court approved in 2015; that all

the Gingles preconditions did not apply to a diminishment claim;

that diminishment had occurred in violation of the Florida

Constitution; and that Appellants’ Equal Protection arguments

were unavailing.

Florida Supreme Court Approved the Benchmark District in 2015

The parties disagree about which benchmark district to use

in evaluating the diminishment claim. After redistricting

occurred following the 2010 census much litigation ensued. See,

Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc)

(citing D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla.

2018) (Canady, C.J., dissenting)) (“[I]t is not the role of the

appellate court to act as standby counsel for the parties.”).

12 Appellants also claimed as Questions 2 and 3 that

applying Fair Districts to North Florida congressional

redistricting violates Equal Protection and that the non-

diminishment provision in Fair Districts was facially

unconstitutional. The Equal Protection issue is addressed below.

65

e.g., Apportionment I; Apportionment VII; Apportionment VIII.

Congressional District 5 as well as other congressional and

legislative districts were found to violate the Fair Districts

Amendments. Apportionment VII, 172 So. 3d at 402–06. The

Florida Supreme Court held that District 5 unconstitutionally

favored a political party and had to be redrawn. Id.

There is no requirement in Florida or federal law that a

district must have been created as a remedy for a dilution or

diminishment for the district to be used as a benchmark district

in a later claim of diminishment. Rather, “[r]etrogression, by

definition, requires a comparison of a jurisdiction’s new voting

plan with its existing plan.” Reno v. Bossier Par. Sch. Bd., 520

U.S. 471, 478 (1997) (citing Holder v. Hall, 512 U.S. 874, 883

(1994)). “The permissible use of racial criteria is not confined to

eliminating the effects of past discriminatory districting or

apportionment.” United Jewish Org. of Williamsburgh, Inc. v.

Carey, 430 U.S. 144, 161 (1977).

“A plan leads to impermissible retrogression when, compared

to the plan currently in effect (typically called a ‘benchmark

plan’), the new plan diminishes the number of districts in which

minority groups can ‘elect their preferred candidates of choice’

. . . .” Harris v. Arizona Indep. Redistricting Comm’n, 578 U.S.

253, 260 (2016). For diminishment claims “[t]he baseline for

comparison is present by definition; it is the existing status.

While there may be difficulty in determining whether a proposed

change would cause retrogression, there is little difficulty in

discerning the two voting practices to compare to determine

whether retrogression would occur.” Holder, 512 U.S. at 883–84

(citing 28 CFR § 51.54(c) (1993)); see also Abrams v. Johnson, 521

U.S. 74, 97 (1997) (“There are sound reasons for requiring

benchmarks to be plans that have been in effect; otherwise a

myriad of benchmarks would be proposed in every case, with

attendant confusion.”).

Race was an issue that led to the creation of benchmark

District 5. The previous district had favored a political party by

packing Black voters into one district, reducing their “influence

. . . in surrounding districts.” Apportionment VII, 172 So. at 402.

The Florida Supreme Court was conscious of diminishment in

66

deciding how the new District 5 should be drawn to comply with

the Fair Districts requirements in the Florida Constitution. Id.

at 403–06. “Since the Legislature cannot prove that the North-

South configuration is necessary to avoid diminishing the ability

of black voters to elect a candidate of their choice, we hold that

District 5 must be redrawn in an East-West manner.” Id. at 403.

The Court further stated, “Accordingly, we reject the

Legislature’s argument that an East-West version of the district

would diminish the ability of black voters to elect a candidate of

their choice.” Id. at 405. The Court then concluded “District 5

must be redrawn in an East-West orientation.” Id. at 406.

After further proceedings, the Legislature approved a

redrawn District 5 as complying with the Florida Constitution as

the Florida Supreme Court had directed. Apportionment VIII,

179 So. 3d at 271–73. Again, the Florida Supreme Court

considered the non-diminishment requirement in the Fair

Districts Amendment. Id. at 273. The Court concluded, “Because

the proposed district comports with this Court’s directions in

Apportionment VII and does not diminish the ability of black

voters to elect a candidate of choice, the Legislature has met its

burden to justify the configuration it selected.” Apportionment

VIII, 179 So. 3d at 273. The Court therefore approved

benchmark District 5. Id. at 271. 13

13 The Court discussed the shape of the district in

Apportionment VII in stating, “There is no doubt that an East-

West version of District 5 is visually less ‘unusual’ and ‘bizarre’

than the meandering North-South version enacted by the

Legislature.” 179 So. 3d at 406 (citing Apportionment I, 83 So. 3d

at 634). Various current districts throughout the State have

features much like the benchmark District 5 approved in

Apportionment VIII. See Redistricting.Maps.Arcgis.com,

https://redistricting.maps.arcgis.com/apps/View/index.html?appid

=2c92665fc1d14fc2becb3030e23a4595 (last visited Nov. 17, 2023).

The only difference is that the benchmark District 5 spanned

multiple counties, just like other north Florida districts, because

of the lower population in some of these counties when compared

to the rest of Florida. In discussing the shape of a district when

faced with a diminishment claim the Court stated, “We recognize

that in certain situations, compactness and other redistricting

67

Applying these cases, the benchmark plan — that is the

baseline for comparison in evaluating Appellees’ diminishment

claim — is the benchmark District 5 that the Florida Supreme

Court mandated in Apportionment VII and approved in

Apportionment VIII. Nonetheless, Appellants argue that

benchmark District 5 is an unconstitutional racial gerrymander

and cannot be used as a benchmark district. But a trial court or

district court cannot overrule the Florida Supreme Court. See

Hoffman v. Jones, 280 So. 2d 431, 433–34 (Fla. 1973) (“To allow a

District Court of Appeal to overrule controlling precedent of this

Court would be to create chaos and uncertainty in the judicial

forum. . . .”).

And even if we could revisit what the Florida Supreme Court

decided in Apportionment VIII, that decision is res judicata

between the parties. 14 See In re Senate Joint Resol. of Legis.

Apportionment 2-B (Apportionment II), 89 So. 3d 872, 883–85

(Fla. 2012). “Based on principles of res judicata, a judgment on

the merits will thus bar ‘a subsequent action between the same

parties on the same cause of action.’” Florida Dep’t of Transp. v.

Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting Youngblood v.

Taylor, 89 So. 2d 503, 505 (Fla. 1956)).

The League of Women Voters of Florida was a party in

Apportionment VII and Apportionment VIII and is a party among

the Appellees here. The Florida House, Florida Senate, and the

Florida Secretary of State were parties in Apportionment VII and

Apportionment VIII and are the Appellants here. “Importantly,

the doctrine of res judicata not only bars issues that were raised,

criteria, such as those codified in tier two . . . will be compromised

in order to avoid retrogression.” Apportionment I, 83 So. 3d at

626.

14 I do not contend that Appellants could not challenge a

subsequent map drawn after court-ordered redistricting.

Instead, my contention is that the principle of res judicata

requires that the district the Florida Supreme Court approved in

Apportionment VIII is locked in as the benchmark district for this

case involving the same parties.

68

but it also precludes consideration of issues that could have been

raised but were not raised in the first case.” 15 Juliano, 801 So. 2d

at 105 (citing Youngblood, 89 So. 2d at 505); see also

Apportionment II, 89 So. 3d at 884. Appellants could have

claimed racial gerrymandering in opposing District 5 in

Apportionment VII and Apportionment VIII, but they did not.

Apportionment VIII sets the benchmark District 5 to be used in

considering the diminishment claim.

The Majority Opinion Incorrectly Applies

Gingles to a Diminishment Claim

The majority opinion holds that despite the undisputed

evidence of diminishment in the enacted districts, Appellees have

not met their burden of proof because the preconditions from

Gingles were not met. The holding in Gingles has “three

threshold conditions for proving vote dilution under § 2 of the

VRA.” Cooper v. Harris, 581 U.S. 285, 301 (2017) (citing Gingles,

478 U.S. at 50–51). 16 The key Gingles precondition, which was

not met here, is that “a ‘minority group’ must be ‘sufficiently

large and geographically compact to constitute a majority’ in

some reasonably configured legislative district.” Cooper, 581 U.S.

at 301 (quoting Gingles, 478 U.S. at 50).

But Gingles involved Section 2 of the VRA, and its holding

does not apply to diminishment claims. The United States

Supreme Court recognized this important distinction in stating,

“We have, however, ‘consistently understood’ § 2 to ‘combat

15 Although not required for res judicata to apply, in

Apportionment VII the Appellants here, who were the appellees

in that case, raised the issue that “article III, section 20, of the

Florida Constitution is invalid because it violates the United

States Constitution.” Apportionment VII, 172 So. 3d at 372 n.4.

16 If the preconditions are met in a Section 2 dilution claim,

then the plaintiff “must also show, under the ‘totality of

circumstances,’ that the political process is not ‘equally open’ to

minority voters.” Allen v. Milligan. 599 U.S. 1, 19 (2023)

(quoting Gingles, 478 U.S. at 45–46).

69

different evils and, accordingly, to impose very different duties

upon the States.’” Georgia v. Ashcroft, 539 U.S. 461, 478 (2003)

(quoting Bossier Parish Sch. Bd., 520 U.S. at 471, 477). The

Court in Ashcroft recognized that Gingles did not apply to a

diminishment claim:

And the § 2 inquiry differs in significant respects from a

§ 5 inquiry. In contrast to § 5’s retrogression standard,

the “essence” of a § 2 vote dilution claim is that “a

certain electoral law, practice, or structure ... cause[s]

an inequality in the opportunities enjoyed by black and

white voters to elect their preferred representatives.”

Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752,

92 L.Ed.2d 25 (1986); see also id., at 48–50, 106 S.Ct.

2752 (enunciating a three-part test to establish vote

dilution); id., at 85–100, 106 S.Ct. 2752 (O’CONNOR, J.,

concurring in judgment); 42 U.S.C. § 1973(b). Unlike an

inquiry under § 2, a retrogression inquiry under § 5, “by

definition, requires a comparison of a jurisdiction’s new

voting plan with its existing plan.” Bossier Parish I,

supra, at 478, 117 S.Ct. 1491. While some parts of the §

2 analysis may overlap with the § 5 inquiry, the two

sections “differ in structure, purpose, and application.”

Holder v. Hall, 512 U.S. 874, 883, 114 S.Ct. 2581, 129

L.Ed.2d 687 (1994) (plurality opinion).

Ashcroft, 539 U.S. at 478.

Here, we are addressing a benchmark district that already

existed until it, or anything resembling it, was written out of

existence in 2022. In the redistricting context, diminishment

claims are based on a real district that had existed, while dilution

claims are based on a potential district that could exist. Compare

Bossier Parish Sch. Bd., 520 U.S. at 478 (citing Holder, 512 U.S.

at 883) (“Retrogression, by definition, requires a comparison of a

jurisdiction’s new voting plan with its existing plan.”), with

Apportionment I, 83 So. 3d at 622 (“A successful vote dilution

claim under Section 2 requires a showing that a minority group

was denied a majority-minority district that, but for the

purported dilution, could have potentially existed.”)

(emphasis added).

70

A diminishment claim is not based on the number of

minority voters in an enacted district. “Section 5 . . . does not

require a covered jurisdiction to maintain a particular numerical

minority percentage. It requires the jurisdiction to maintain a

minority’s ability to elect a preferred candidate of choice. That is

precisely what the language of the statute says.” Alabama Legis.

Black Caucus v. Alabama, 575 U.S. 254, 275 (2015). The Fair

District Amendment has the same language protecting from

diminishment “racial or language minorities[’] . . . ability to elect

representatives of their choice.” Art. III, § 20(a), Fla. Const.

The best that the majority opinion can argue for the

application of Gingles to diminishment claims is to point to a

footnote from Apportionment VIII that states, “The Gingles

preconditions are relevant not only to a Section 2 vote dilution

analysis, but also to a Section 5 diminishment analysis.”

Apportionment VIII, 179 So. 3d at 286 n.11 (citing Texas, 831 F.

Supp. 2d at 262–63). But the Florida Supreme Court did not

import all of the Gingles preconditions into a diminishment

claim. That footnote pertains to “voting cohesion and polarized

racial bloc voting—the establishment of which is the first step in

any retrogression analysis.” Apportionment VIII, 179 So. 3d at

286.

The Court in Apportionment VIII discussed Gingles and did

not require that the minority population constitute a majority of

the voting age population in the district. Apportionment VIII,

179 So. 3d at 286 n.11. The footnote in Apportionment VIII

discussing the Gingles preconditions was reminding the parties

that the “test for retrogression” includes “whether the minority

group votes cohesively.” Id. This is the same as the second

Gingles precondition, which requires that the “minority group

must be ‘politically cohesive.’” Cooper, 581 U.S. 301–02 (quoting

Gingles, 478 U.S. at 51). Cohesion among Black voters and racial

polarization in benchmark District 5 was part of the parties’

stipulation, was thereby established, was not argued to the

contrary by Appellants, and is uncontested here. 17

17 Therefore, as discussed in footnote 11, any claim that the

Black voters in benchmark District 5 were not cohesive or

polarized in voting, or that there was insufficient proof of Black

71

Never before in Florida or United States Supreme Court

precedent has a proposed majority-minority district been

required before a diminishment claim could be considered. Just

last year, the Florida Supreme Court noted that Gingles applies

to dilution claims and requires a majority-minority district. In re

Senate Joint Resol. of Legis. Apportionment 100, 334 So. 3d at

1288 n.5. But the test for diminishment claims was different and

did not include this requirement from Gingles. In re Senate Joint

Resol. of Legis. Apportionment 100, 334 So. 3d at 1289 (citing

Apportionment I, 83 So. 3d at 625). Rather, diminishment claims

could apply when a redistricting serves to either “eliminate

majority-minority districts or weaken other historically

performing minority districts.” Id. (quoting Apportionment I,

83 So. 3d at 625) (emphasis added). The consideration for

diminishment claims therefore differs from this Gingles

precondition. See In re Senate Joint Resol. of Legis.

Apportionment 100, 334 So. 3d at 1289 (citing Apportionment I,

83 So. 3d at 625).

By applying the Gingles majority-minority precondition from

a dilution claim to a diminishment claim, the majority opinion

has imposed a requirement found nowhere in the Florida

Constitution, in Florida Supreme Court cases, or United States

Supreme Court cases. The majority opinion effectively deletes

the diminishment protections in article III, section 20(a) of the

Florida Constitution, since diminishment can now only be proven

if dilution is present. 18

The Enacted Districts Diminish Minority Participation

The Legislature’s enacted map is initially presumed valid.

Apportionment I, 83 So. 3d at 606, 608. The burden was on

voters being able to elect a candidate of their choice, was

unpreserved below and is waived here.

18 Since article III, section 21(a) on Florida legislative

redistricting has the same language, the majority opinion has

effectively deleted those protections too, unless a challenger can

put forth a dilution claim.

72

Appellees as challengers of the redistricting plan to show a

violation of Fair Districts. The Court in Apportionment VII

discussed the heightened judicial scrutiny to be applied in

considering “the Legislature’s decisions in redistricting.” 172 So.

3d at 398 (citing Fla. House of Representatives v. League of

Women Voters of Fla., 118 So. 3d 198, 205 (Fla. 2013)). But even

without heightened scrutiny, it is clear that the Appellees have

shown that the enacted districts violate the non-diminishment

provision in Fair Districts.

The trial court’s findings of diminishment, which were

consistent with the parties’ stipulation, are therefore supported

by competent, substantial evidence. See Apportionment VIII, 179

So. 3d at 271 (reviewing a trial court’s factual findings for

competent, substantial evidence). A historically performing

benchmark district for Black voters was not just diminished — it

was eliminated. This is not like Abrams, cited in the majority

opinion, where a 10% minority district was reduced to 9%. 521

U.S. at 97. The change here was not de minimis. 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. The people of

Florida have given us the Fair Districts Amendments, and it is

our “duty” to enforce it. Apportionment I, 83 So. 3d at 607.

The Appellants Did Not Carry Their Burden

to Prove Their Equal Protection Defense

The final issue for our consideration is the Appellants’ Equal

Protection defense. 19 As shown above, Appellees proved a

diminishment claim in the benchmark district. Appellants

contend that Appellees still had the burden to show a remedial

map could be drawn without violating the United States

19 The majority opinion does not decide this issue, but two

concurring opinions would reverse based on either the Equal

Protection Clause of the United States Constitution or the “equal

before the law” provision in article I, section 2 of the Florida

Constitution.

73

Constitution’s Equal Protection Clause. 20 U.S. Const. amend.

XIV, §1. This is incorrect since Appellants raised the Equal

Protection issue as an affirmative defense. 21 The burden of proof

was therefore on Appellants to prove that no district could be

drawn that both complied with Fair Districts and did not violate

Equal Protection. See Custer Med. Cntr. v. United Auto Ins. Co.,

62 So. 3d 1086, 1096 (Fla. 2010) (“The defendant has the burden

of proving an affirmative defense.”); see also Miller v. Johnson,

515 U.S. 900, 916 (1995) (putting the burden on the party

claiming an unconstitutional racial gerrymander to show “that

race was the predominant factor motivating the legislature’s

decision”). Appellants did not carry their burden.

Importantly, the trial court did not order the Legislature to

draw a specific district map and did not impose a map of its own

creation. All the trial court did was enjoin the use of the enacted

district map and returned redistricting to the Legislature “to

enact a remedial map in compliance with Article III, Section 20 of

the Florida Constitution.” “[T]he basic unit of analysis for racial

20 The Legislative parties cite Apportionment II, 89 So. 3d at

889–90, for this proposition. But the subject district in

Apportionment II was being challenged as violating the

compactness tier-two standard. See Art. III, §21(b), Fla. Const.

The Court in Apportionment II held the alternative plans the

challengers provided did not meet their burden of proof because

the alternative plans would have “raise[d] concerns” about non-

diminishment. 89 So. 3d at 889; see also Art. III, § 21(b), Fla.

Const. (establishing compactness as a tier-two standard to be

followed “[u]nless compliance with the” tier-two standards

“conflicts with the standards in subsection (a) or with federal

law”). Likewise, Appellants’ reliance on Apportionment I was

misplaced because that also involved tier-two standards that had

to yield to tier-one standards. 83 So. 3d at 653.

21 I agree with the Appellants that the public official

standing doctrine does not apply in this case, so they could raise

affirmative defenses. Still, the trial court analyzed the

Appellants’ arguments on the merits, so the erroneous

application of the doctrine does not provide a basis to reverse.

74

gerrymandering claims in general, and for the racial

predominance inquiry in particular, is the district.” Bethune-Hill

v. Virginia State Bd. of Elections, 580 U.S. 178, 191 (2017); see

also Alabama Legis. Black Caucus, 575 U.S. at 262–63. Since the

trial court’s order is stayed pending all appellate review, the

Legislature has yet to draw a new, compliant district. Without a

district for the courts to evaluate, there can be no finding of racial

discrimination.

Race can be considered in redistricting so long as race does

not predominate. Allen v. Milligan. 599 U.S. 1, 30 (2023); Miller,

515 U.S. at 915–16; see also Brown v. Sec’y of State of Fla., 668

F.3d 1271, 1283 (11th Cir. 2012) (“[I]t must surely be appropriate

for a state legislature to take into

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