In 2022, multiple civil rights groups, including the Black Voters Matter Capacity Building Institute, filed a lawsuit against Secretary of State Cord Byrd and other members of Florida’s government challenging the state’s latest congressional map. The plaintiffs argued that the map violated the 2010 Fair Districts Amendment (FDA) of the Florida Constitution by, among other things, diminishing the voting power of Black voters in the state.

In September 2022, the Circuit Court of the Second Judicial Circuit held that the congressional map was unconstitutional. Secretary Byrd appealed the decision.

CAC filed a brief in the Florida District Court of Appeals. Our brief makes two central arguments.

First, our brief argues that the Secretary of State’s claim that the plaintiffs must satisfy the test for vote dilution set out in the U.S. Supreme Court case Thornburg v. Gingles is irreconcilable with Florida Supreme Court precedent and the text and history of the Florida Constitution. As we explain, the Secretary’s argument that a non-diminishment claim requires proof of vote dilution conflates the FDA’s non-diminishment protections with its non-dilution provision, hollowing out the FDA’s protections. The Florida Supreme Court has consistently recognized that the FDA’s non-dilution and non-diminishment provisions are modeled after Sections 2 and 5 of the Voting Rights Act. Just as those sections serve different purposes and use different standards, so does the FDA provide two distinct remedies for voters of color. The non-dilution provision is governed by the federal standard established in Thornburg v. Gingles, while the non-diminishment provision prohibits discriminatory redistricting practices whether or not they are dilutive. The Gingles factors and the standard for non-retrogression diverge specifically because the non-dilution provision and the non-diminishment provision provide for different remedies: while the non-dilution provision may require an additional district to be drawn, the non-diminishment provision preserves the status quo. The Secretary’s position elides this basic principle of non-retrogression. Incorrectly conflating the two standards would eliminate their separate protections.

Second, we argue that the Fourteenth Amendment does not prohibit the state from complying with the Florida Constitution’s non-diminishment provision. The state argues that because the Fourteenth Amendment bans racial gerrymandering, following the requirement to preserve the powers of Black voters would actually function as a form of unconstitutional racial discrimination. That is wrong. Indeed, in 2023, the Supreme Court recognized in Allen v. Milligan that “[t]he contention that mapmakers must be entirely ‘blind’ to race has no footing” in the law. Significantly, state constitutional remedies that protect the voting strength of communities of color help to realize the constitutional guarantee of equality. Additionally, the Florida Secretary of State and Florida Legislature do not come close to establishing that race predominated in the approval of Benchmark CD-5 or that race will necessarily predominate in the drawing of any remedial district.