With Florida Governor Ron DeSantis releasing a draft of his preferred Congressional map, the political world has erupted with debates over its legality. Observers are particularly surprised that DeSantis proposed dismantling Florida’s Fifth Congressional District (FL-05). The district and its predecessors have been the subject of litigation for years, and many analysts assume that the district is either mandated under Section 2 of the Voting Rights Act (VRA) or the Florida Fair Districts Amendment. But is this the case? Our examination of case law from the Supreme Court and the 11th Circuit Court of Appeals (which hears federal trial appeals from Florida) leads to the conclusion that the answer is “definitely maybe.”
We’ll start by exploring what populations and districts the VRA protects and how it does so. We’ll then look at whether or not the minority voters in FL-05 meet that criteria. Finally, we’ll explore how the Florida Fair Districts Amendment plays into all of this. For now, we will assume that lawsuits over map will be brought in federal instead of state court.
The Gingles Test
It’s important to remember that the VRA does not protect districts, or incumbents, or district configurations, except by implication. What the VRA really protects are voters. The test determines whether the voters in a given area must have a district where they can elect a their chosen candidate. By extension, this ends up mandating certain district shapes and configurations.
To determine whether a group of voters must be placed in a “VRA District,” courts typically look to the test articulated by the Supreme Court in the 1986 case Thornburg v. Gingles. The “Gingles Test,” as it is commonly known, has three prongs, all of which must be met before the court can consider whether a group of minority voters must have their own district.
- The minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district.
- The minority group must be politically cohesive
- The white majority must vote sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate
If a group of voters does not meet this test, then a district where they can elect a candidate of their choice is not required. However, courts have fleshed out this test and added considerable nuance. We will consider each prong in turn, however, we will make “geographically compact” its own category and explore it last.
To meet the first prong of the Gingles test, the minority group must constitute a majority in a single member district. Black voters in FL-05 plainly do not meet this criteria. Under the current lines, they only make up 47% of the population, and that would be unlikely to increase under a revised map. However, this issue is not fatal, as the 11th Circuit ruled in the 1990 case Concerned Citizens of Hardee County, Etc. v. Hardee County Board of Commissioners that two minority groups can combine to form a single minority group for VRA purposes if they vote in a politically cohesive manner. Under this standard, Black voters could likely be combined with the district’s Hispanic voters to cross the majority threshold.
Both groups likely support Democrats in large numbers. This would effectively resolve the second (political-cohesiveness) prong of the Gingles test, which no one seriously disputes is met in this case.
However, not every circuit court has embraced this standard. After the 11th Circuit decided Concerned Citizens, the 6th Circuit decided Nixon v. Kent County and the 7th Circuit Frank v. Forest County. In both cases, the courts ruled that racial groups could not be combined for Gingles purposes. The Supreme Court has declined repeatedly to resolve this issue, most notably in the 2009 case Bartlett v. Strickland. Despite all this, there is little reason to believe that the 11th Circuit would not continue to apply the Concerned Citizens standard. Thus, going forward, we will assume for purposes of this discussion that the first and second prong of Gingles are met.
A Note on “Functional Analysis”
Some readers familiar with the debate on this topic might feel confused by the last section because it fails to mention “functional analysis”. This is a form of analysis which purports to show that a minority group is a “functional” majority of a district even when it is not numerically. In FL-05, this would allow Black voters to be a “majority” because they form a decisive majority of the Democratic primary electorate in this safely Democratic district.
However, this method has never been deployed by federal courts to show that a group meets the first Gingles prong. It has been deployed to show that a district will usually elect a candidate of minority voters’ choice, but that does not answer the Gingles question. In the aforementioned Barlett case, a plurality of the Supreme Court explicitly rejected the idea that the VRA requires districts where a minority group makes up less than 50% of the voting population but can join with the majority to elect a candidate of its choice in the general election. That case concerned a 39% Black State House seat in North Carolina where there were enough White Democrats to elect the Black voters’ candidate of choice. But the court held that the minority voters must be a majority of the district. It is not enough that they form a “majority of the majority” or are a “decisive minority.”
White Bloc Voting
We’ll come back to the compactness requirement at the end, as it is likely the most contentious regarding FL-05. First, we’ll look at whether or not the White voters in North Florida vote sufficiently in a bloc to usually defeat the non-white voters’ candidate of choice.
There’s no hard standard for this prong, and the case law is murky. Part of the complication is that White voters are more or less of a bloc depending on where in the district we’re talking about. Whites in Duval (Jacksonville) and Leon (Tallahassee) counties do not vote in a bloc sufficient to defeat the minorities preferred candidate. It’s possible to draw a district that is far above 50% White in Duval where Democrats would be clear favorites. In Leon, the portion not in FL-05 is nearly 75% white but still went for Biden by 10%.
But in the areas outside these two counties, the White voters are much more uniformly GOP. The Jacksonville exurbs are some of the most staunchly GOP areas in FL. The rural areas around Tallahassee are somehow even more Republican than that. Again, it’s worth noting that the VRA protects voters not districts. So, it’s possible the Tallahassee area meets this prong but the Jacksonville area does not.
On the issue of White bloc voting, precedent is mixed. In Johnson v. Mortham, a 1996 case, a federal district court struck down a majority Black district in Northeast Florida as a racial gerrymander. Interestingly, the court’s reasoning was that the district (which snaked from Jacksonville to Orlando), was not required because the White voters in the area were not sufficiently polarized.
This point was revisited by the Florida Supreme Court in 2015 when it struck down the GOP’s 2012 gerrymander. In that case, the court held that a majority Black seat, similar to the one struck down in Johnson, could be redrawn to be less heavily African-American because the White voters were not so Republican that they would usually defeat Black voters’ preferred candidate. The court estimated that a district as low as 42.7% Black would suffice to elect a candidate of Black voters’ choosing.
Neither of these cases directly answer our question. They concern whether or not a district went too far in grabbing pockets of Black voters, not whether or not a district like FL-05 is mandated by law. Of course, the elephant in the room is that if FL-05 is dismantled, the Black voters in some parts of the district will still get their candidate of choice, while others would simply not be able to under any realistic proposal. We will address this issue in the next section. But for now, we conclude that whether or not the third prong of the Gingles test is satisfied remains somewhat uncertain.
Compactness is FL-05’s weakest point. The district stretches across hundreds of miles, going from Jacksonville to Tallahassee, splitting numerous counties along the way. The courts have not been kind to arguments that North Florida’s Black community is geographically compact.
The court in Johnson explicitly held:
it is evident that the African–American population in Northeast Florida is not sufficiently large and geographically compact so as to constitute a majority in a fairly drawn congressional district… Consequently, we conclude that the African–American population is not sufficiently large and geographical compact to meet the first Gingles precondition
The court in this case was talking about the communities in Jacksonville, Orlando, Daytona Beach, and Gainesville. However, all of those cities are closer to each other than Jacksonville is to Tallahassee.
The Court’s reasoning for why the district cannot stretch over such a large area to grab pockets of voters is particularly applicable: “These African–American population concentrations are not physically adjacent to each other, and are linked together only by narrow land bridges of white rural and small town populations.” Even the Florida Supreme Court, which mandated FL-05 go East-West, made concessions on this point. It stated, “The reality is that neither the North-South nor the East-West version of the district is a ‘model of compactness.’”
It should be also noted that the Florida Supreme Court was not saying that Black voters in North Florida were compact enough to be entitled to their own district. Instead, what the court said was that the East-West orientation was more compact than what the legislature had drawn and accomplished the same result of usually electing a Black Democrat. Notably, the Court did not identify FL-02 as a problematic district. This is important, because at the time, FL-02 encompassed all of the Black voters in the Tallahassee area. The court did not identify these voters as needing to be able to elect a candidate of their choice.
Even if the court had determined that Black voters in Tallahassee required Section 2 protection, federal courts are not bound by state courts’ interpretation of federal law. So the 11th Circuit could reject this argument without running afoul of any binding precedent.
It bears repeating that the VRA protects voters not districts. Put simply: If the Black voters in Tallahassee do not meet the Gingles test, then they do not have to be connected to Jacksonville under the VRA, unless the voters in both cities are geographically compact with each other.
A Note on Retrogression
One common misconception is that because FL-05 typically elects the candidate of Black voters’ choosing, it cannot be eliminated no matter what. The VRA does have anti-retrogression rules, but these are located in Section 5 of the act. The Supreme Court clarified in the 1994 case Holder v. Hall that, “Retrogression is not the inquiry in Section 2 dilution claims.”
Nor can a Section 5 retrogression claim be brought against states that dismantle districts like FL-05. Section 5 only covers certain states, and in Shelby County v. Holder (2013), the court ruled that this disparate treatment of states was unconstitutional. Thus, it held that Section 5 did not apply to any state. As of now, Section 5 isn’t enforceable in any real way.
Looking at all the elements of the Gingles test, it appears unlikely that FL-05 is mandated by Section 2 of the VRA. The district may fail the test on three separate grounds. First, no one minority group can form a majority, which is fatal under certain precedent, though unlikely to be problematic here. Second, the White voters in some parts of the district may not engage in sufficient amounts of bloc voting to usually defeat the Black voters’ candidate of choice. Third, the voters are unlikely to be seen as geographically compact enough to qualify for Section 2 protection under Gingles.
Florida Fair Districts
Another avenue to challenge the North Florida districts in DeSantis’ map, and the map as a whole, would be the Florida Fair Districts Amendment. This state constitutional amendment says:
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.
In 2015, this is the law that the Florida courts used to invalidate the GOP’s gerrymander. Plaintiffs could use this law to challenge FL-05 and the whole map, but the Florida Supreme Court has become significantly more conservative since 2015. Three Democratic appointees have been replaced by three DeSantis appointees, as has a Crist appointee. Now, the seven member court has three DeSantis appointees, three Christ appointees, and one Scott appointee.
However, all is not lost for Democrats, thanks to a doctrine that every first-year law student hates. Known as Erie, this makes federal courts hearing cases on state law follow the state’s interpretation of the law. In other words, as long as the Florida Supreme Court does not revise its interpretation of the Fair Districts Amendment, the federal courts must follow its 2015 interpretation of the law.
There’s also a set of rules that governs when state law challenges can actually be heard in federal court. But that is a jurisdictional analysis beyond the scope of this piece. Suffice to say that we think the plaintiffs could get the case heard in federal court without too much issue.
This all means that despite likely not being required under Section 2 of the VRA, FL-05 might be legally required under the Florida Supreme Court’s interpretation of the Fair Districts Amendment.
However, it’s worth remembering that while DeSantis’s version of North Florida likely would be illegal, that does not mean the FL-05 in its current configuration necessarily must be retained. If a court were to invalidate the map on the grounds that it’s a partisan gerrymander, then the GOP could remedy this by creating a blue district located entirely in Duval.
Even if a court invalidated the map on racial grounds that would not necessarily save the current FL-05. A minority-majority district located entirely in Duval could elect a candidate of minority voters’ choice. This could stave off litigation related to the Fair District Amendment’s “anti-retrogression” clause (mandating that minority voting power shall not be reduced by redistricting).
Again, the court has never said anything about minority voters in Tallahassee, the focus has always been on Jacksonville. However, whether or not such a district would be legal is beyond the scope of this piece.
FL-05 has been the subject of much controversy, but its legal status is far from certain. It appears that the district in its current form is not mandated under Section 2 of the VRA. However, retaining a blue district of some kind in North Florida appears to be mandated under the Fair Districts Amendment. Whether or not that district would need to stretch between Jacksonville and Tallahassee, like the current district does, is unclear.