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, and CAC filed an amicus brief in support of the plaintiffs. In December 2023, the First District Court of Appeal ruled against the plaintiffs. Plaintiffs asked the Florida Supreme Court to hear the case, and it agreed to do so. In March 2024, CAC again filed an amicus brief in support of the plaintiffs. Our brief makes two central arguments.

First, our brief argues that the non-diminishment provision of the FDA does not require the plaintiffs to establish geographic compactness. As our brief explains, the Florida Supreme Court has consistently recognized that the FDA’s non-diminishment provision was modelled after Section 5 of the Voting Rights Act. Both the Florida Supreme Court and the U.S. Supreme Court have long assessed whether there is a Section 5 violation by comparing the new election law or practice with the existing one, that is, the law that was in place before the new practice was enacted. The First DCA concluded otherwise because it relied on Section 2 precedent to define diminishment. But Sections 2 and 5 serve distinct purposes and operate under different standards. Using a Section 2 standard to define the scope of the non-diminishment provision contravenes the text and history of the FDA and the Florida Supreme Court’s precedents.

Second, we argue that the Fourteenth Amendment does not prohibit the state from complying with the Florida Constitution’s non-diminishment provision. As our brief explains, there is nothing constitutionally suspect about the consideration of race to comply with the non-diminishment provision. Indeed, in 2023, the U.S. 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, not flout, the constitutional guarantee of equality.