Order

Filing # 181045906 E-Filed 09/02/2023 02:36:41 PM
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

IN AND FOR LEON COUNTY, FLORIDA
BLACK VOTERS MATTER CAPACITY

BUILDING INSTITUTE, INC., EQUAL Case No. 2022-CA-666
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,
Plaintiffs,
v.
CORD BYRD, in his official capacity

as Florida Secretary of State, the
FLORIDA SENATE, and the FLORIDA
HOUSE OF REPRESENTATIVES,
Defendants.
________________________________/
FINAL ORDER AFTER HEARING AND FINAL JUDGMENT
THIS CAUSE having come before the Court for Final Hearing
on Plaintiffs’ Amended Complaint for Injunction and Declaratory
Relief. The Court has carefully considered the Amended
Case No. 2022-CA-666

Final Order After Hearing and Final Judgment
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Complaint, the Answers and Affirmative Defenses of the Parties,
the Joint Stipulation to Narrow Issues for Resolution, the
arguments of the parties at a hearing held August 24, 2023, and
being otherwise duly advised, the Court hereby finds:
Summary
This case is about whether the Legislature, in enacting its
most recent congressional redistricting plan, violated the Florida
Constitution by diminishing the ability of Black voters in North
Florida to elect representatives of their choice. It is also about
whether that provision of the Florida Constitution violates the 14 th
Amendment to the U.S. Constitution. In short, the answers are
yes and no, respectively. For those reasons, this Court will
declare the enacted map unconstitutional and enjoin the
Secretary of State from using that map in future congressional
elections. This Court will return the matter to the Legislature to
enact a new map which complies with the Florida Constitution.
Background and Procedural History
The Plaintiffs in this case are U.S. citizen voters who reside in
Florida and the affected districts as well as 501(c)(3)
organizations who strive to increase voter participation

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throughout the State. The Defendants are the Florida Secretary
of State, the Florida Senate, and the Florida House of
Representatives.
In Florida, Congressional districts are apportioned after the
decennial census. The Florida Legislature is required under the
U.S. and Florida Constitutions to apportion the state into
congressional districts. U.S. Const. art. I, § 4, cl. 1; Art. III, § 20,
Fla. Const. Like other laws in Florida, once the respective
chambers pass an apportionment bill, that bill proceeds to the
Governor of Florida for signature or veto. Art. III, § 8, Fla. Const.
Once an apportionment bill is signed, the Secretary of State is
then required to implement the districts in conducting
Congressional elections. § 97.012, Fla. Stat. Ann.
At issue in this case is the current Congressional Districting
Map know as Senate Bill 2-C (Laws of Fla. Ch. 2022-265).
Plaintiffs contend that the enacted map violates Article III, Section
20 of the Florida Constitution (“Fair Districts Amendment”).
I. The Fair Districts Amendments
Before the 2010 redistricting cycle, Floridians voted to
enshrine the Fair Districts Amendments in the Florida

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Constitution. The Amendments established new standards to
constrain the Legislature’s exercise of its congressional
reapportionment power. Pursuant to those Amendments,
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
1(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 1(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, sect. 20, Fla. Const. (emphasis added). The Florida
Supreme Court has recognized that this provision contains two
separate requirements, borrowed from the Federal Voting Rights
Act: a non-dilution requirement and a non-diminishment
requirement. See In re S. J. Res. of Legis. Apportionment 1176
(“Apportionment I”), 83 So. 3d 597, 619 (Fla. 2012).

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II. Benchmark CD-5
In 2015, the Florida Supreme Court invalidated the
Legislature’s 2012 congressional redistricting plan under Article
III, Section 20 of the Florida Constitution after finding that partisan
intent tainted the entire redistricting process. See League of
Women Voters of Fla. v. Detzner (“LWV I”), 172 So. 3d 363 (Fla.
2015). In LWV I, the Court ordered the new CD-5 (now commonly
known as “Benchmark CD-5”) to be drawn in an East-West
configuration across Florida’s northern border. Id. at 403. At the
time of its adoption, Benchmark CD-5 had a Black voting age
population (BVAP) of 45.12%. Id. at 404. In approving Benchmark
CD-5 at the final remedial stage of the litigation, the Florida
Supreme Court specifically found that this configuration would
preserve a historically performing Black district. See League of
Women Voters of Fla. v. Detzner (“LWV II”), 179 So. 3d 258, 272
(Fla. 2015) (explaining that “the ability of black voters to elect a
candidate of their choice is not diminished” in Benchmark CD-5).
The Benchmark Plan was in place during the 2016, 2018,
and 2020 congressional election cycles. Benchmark CD-5, as

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approved by the Florida Supreme Court, is shown below. See Stip.
Ex. 3.
III. The 2020 Redistricting Cycle and Enacted

Plan
During the 2020 redistricting cycle, the Legislature
reaffirmed the Florida Supreme Court’s determination that
Benchmark CD-5 performs for Black voters in North Florida and is
therefore protected under Florida’s non-diminishment standard.
On February 1, 2022, however, Governor DeSantis sought the
Florida Supreme Court’s opinion on whether the “the Florida
Constitution’s non-diminishment standard” required a district
from Tallahassee to Jacksonville which allowed Black voters to
elect the candidates of their choice, “even without a majority.”
Pls.’ Br. Ex. 4 at 4.1 The Governor’s Advisory Request
1
Pls.’ Br. Ex. 4 is the Governor’s Advisory Request to the Florida Supreme Court. The
Parties agreed that this Court may take judicial notice of this document, see Stip.
Ex. 1 ¶ 2, and this Court so takes judicial notice of the exhibit under Fla. Stat. §
90.202(5) and (12).
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acknowledged that existing precedent from the Florida Supreme
Court “suggest[s] that the answer is ‘yes.’” Id. at 4. The
Governor’s Advisory Request nonetheless asked the Florida
Supreme Court to clarify “what the non-diminishment standard
does require,” both generally and as applied to CD-5 in North
Florida. Id. at 5. On February 10, 2022, the Florida Supreme Court
declined the Governor’s request to issue an advisory opinion
providing new guidance either on the non-diminishment standard
generally or on CD-5 specifically. See Advisory Op. to Governor re
Whether Article III, Section 20(a) of Fla. Const. Requires Retention
of a Dist. in N. Fla., 333 So. 3d 1106, 1108 (Fla. 2022).
In March 2022, in response to the Governor’s continued
skepticism regarding the shape of CD-5, the Legislature passed a
redistricting plan that contained both a “Primary Map” (Plan 8019)
and a “Secondary Map” (Plan 8015) with two different
configurations of CD-5. See generally Pls.’ Br. Ex. 6.2 The Primary
Map (Plan 8019) configured CD-5 to include only portions of Duval
County. See Pls.’ Br. Ex 6. at 10. The Secondary Map (Plan 8015)
2
Pls.’ Br. Ex. 6 is the Summary of CS/SB 102 (Establishing Congressional Districts of
the State), as prepared by the Committee on Reapportionment. The Parties agreed
that this Court may take judicial notice of redistricting committee materials from the
2022 regular session, see Stip. Ex. 1 ¶ 2, and this Court so takes judicial notice of
the exhibit under Fla. Stat. § 90.202(5) and (12).
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retained the basic East-West configuration of CD-5, while
improving the district’s performance on many Tier II criteria as
compared to Benchmark CD-5. See Pls.’ Br. Ex. 6 at 2.
After the Governor vetoed both redistricting plans and called
a special session, the Legislature passed a redistricting plan
submitted by the Governor’s Office, which is shown below
(“Enacted Plan”). See Stip. Ex. 4.
IV. The Parties and the Joint Stipulation
After passage of the Enacted Plan, Plaintiffs—Black Voters
Matter Capacity Building Institute, Inc., the League of Women
Voters of Florida, Inc., the League of Women Voters of Florida
Education Fund, Inc., Equal Ground Education Fund, Florida Rising
Together, and individual Florida voters, including several Black
voters who resided in Benchmark CD-5—sued Defendants Cord
Byrd, in his official capacity as Secretary of State, the Florida
House of Representatives, and the Florida Senate, Compl. ¶¶ 11–

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32, alleging that the Enacted Plan violates the Florida
Constitution.3
Count I in Plaintiffs’ Complaint alleges that the Enacted Plan
violates the non-diminishment standard of Article III, Section 20(a)
of the Florida Constitution because it resulted in the diminishment
of Black voters’ ability to elect their candidate of choice. Plaintiffs’
Complaint also alleged the Enacted Plan was drawn with improper
discriminatory and partisan intent in violation of the Florida
Constitution. See id. at Count II–III. Plaintiffs’ Complaint asks this
Court to declare that the Enacted Plan violates the Florida
Constitution and to enjoin Defendant Byrd from conducting
elections for the U.S. House of Representatives under the Enacted
Plan.
In advance of a non-jury trial on the merits, the Parties
reached a stipulation to streamline the issues for the Court’s
consideration by limiting the case to Plaintiffs’ diminishment claim
in North Florida and by stipulating to the facts relevant to proving
diminishment under the Florida Constitution. See Stip. Ex. 1. The
Parties agreed that, considering these stipulated facts, “no
3
“Compl.” refers to the Plaintiffs’ amended complaint, which was accepted for filing
by this Court on February 7, 2023.
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material factual issues remain in dispute regarding Plaintiffs’
diminishment claim and the Court may rule on that claim as a
matter of law.” See Stip. § III.C. Finally, Defendants also stipulated
that Plaintiffs had standing to challenge the alleged diminishment
in the Enacted Plan in North Florida4 and withdrew several of their
affirmative defenses. See Stip. §§ II–III.
In light of this joint stipulation, the Parties agreed that trial
should be vacated. Accordingly, this Court is limited to
considering the following stipulated facts, found at Ex. 1 of the
Parties’ Stipulation, unless it finds that other facts are judicially
noticeable and should be judicially noticed.
Specifically, the Parties stipulated, and this Court so finds,
that the Benchmark CD-5 has the following characteristics:
a. Voting Age Population (based on 2020 Census): 46.2% Black,

40.2% White, and 9.1% Hispanic.
b. Population Breakdown by County (based on 2020 Census):

60.5% in Duval, 22.2% in Leon, 5.9% in Gadsden, 3.8% in
Baker, 2.4% in Madison, 1.9% in Hamilton, 1.8% in Jefferson,
and 1.6% in Columbia.
c. Of the 128,235 people who voted in either the Democratic or

Republican primary in the district in 2020, 94,780 (73.9%)
4
The Court will note its finding of standing is a mixed question of fact and law. To
the extent the Parties stipulated to standing, this Court finds as fact the predicate
voter status, residency, injury, and (where applicable) associational standing to
confer standing.
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voted in the Democratic Primary and 33,455 (22.1%) voted
in the Republican Primary.
d. For the 2020 General Election, Black voters comprised 46.1%

of all registered voters in the district.
e. For the 2020 General Election, Black voters comprised 68.6%

of all registered Democrats in the district.
f. Black voters accounted for approximately 70% of votes cast

in Benchmark CD-5 in the 2020 Democratic Primary;
approximately 70% of votes cast in Benchmark CD-5 in the
2018 Democratic Primary; and approximately 67% of votes
cast in Benchmark CD-5 in the 2016 Democratic Primary.
g. Black voters were politically cohesive in elections in the

district because, in the 2016, 2018, and 2020 general
elections, approximately 89% of Black voters in the district
voted for Democratic candidates.
h. White voters were politically cohesive in elections in the

district because, in the 2016, 2018, and 2020 general
elections, approximately two-thirds of White voters in the
district voted for candidates opposed to the candidates
preferred by Black voters.
i. In the 2016, 2018, and 2020 general elections, voting was

racially polarized in the district.
j. A Black candidate (Al Lawson) won each of the U.S. House

elections held in the district.
k. Al Lawson was the candidate of choice for Black voters in the

district.
l. Al Lawson was not the candidate of choice for White voters

in the district.

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m. Al Lawson won 65% of the general election vote in
2020, 67% of the general election vote in 2018, and 64% of
the general election vote in 2016.
n. In Florida’s eight statewide elections in 2016, 2018, and

2020, the Black preferred candidates won a majority of the
vote in Benchmark CD-5 in each election.
o. Black voters had the ability to elect the candidate of their

choice in the district.
See Stip. Ex. 1 ¶¶ 3(a)–(o).
Similarly, the Parties stipulated, and this Court so finds, that
the Enacted Plan has the following characteristics:
a. Enacted CD-4 is the district with the highest percentage of

population that comes from Benchmark CD-5.
b. Under the Enacted Plan, 45.2% of the population of

Benchmark CD-5 resides in Enacted CD-4.
c. The remaining 54.8% of the population of Benchmark CD-5 is

divided across Enacted CD-2, Enacted CD-3, and Enacted
CD-5.
d. The Black VAP of Enacted CD-2, Enacted CD-3, Enacted CD-

4, and Enacted CD-5 is 23.1%, 15.9%, 31.7%, and 12.8%,
respectively.
e. Most registered voters in each of Enacted CD-2, Enacted CD-

3, Enacted CD-4, and Enacted CD-5 are White.
f. White voters cast most of the votes cast in the 2016, 2018,
and 2020 general elections in each of Enacted CD-2, Enacted
CD-3, Enacted CD-4, and Enacted CD-5.

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g. More than three-quarters of Black voters in each of Enacted
CD-2, Enacted CD-3, Enacted CD-4, and Enacted CD-5 voted
for the Democratic candidate in 2022.
h. More than 70% of White voters in each of Enacted CD-2,

Enacted CD-3, Enacted CD-4, and Enacted CD-5 voted for the
Republican candidate in 2022.
i. White voters cast most of the votes cast in the 2016, 2018,
and 2020 primary elections in each of Enacted CD-2,
Enacted CD-3, Enacted CD-4, and Enacted CD-5.
j. Representative Al Lawson, who is Black and represented

Benchmark CD-5, ran for re-election in Enacted CD-2, and
won 40.2% of the 2022 general election vote, but lost to
Representative Neal Dunn, who is White.
k. LaShonda Holloway, who is Black, ran for election in Enacted

CD-4, and won 39.5% of the 2022 general election vote, but
lost to Aaron Bean, who is White.
l. Under the Enacted Plan in 2022, North Florida did not elect a
Black member of Congress for the first time since 1990.
m. In the 2016, 2018, and 2020 statewide elections,

candidates preferred by Black voters failed to win a majority
of votes in any of the four Enacted CDs that took parts of
Benchmark CD-5.
n. In Enacted CD-2, Enacted CD-3, Enacted CD-4, and Enacted

CD-5, the White-preferred candidates won the majority of
votes cast in the 2016, 2018, and 2020 statewide elections.
o. None of the Enacted districts in North Florida are districts in

which Black voters have the ability to elect their preferred
candidates.
See Stip. Ex. 1 ¶¶ 4(a)–(o).

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The Parties’ Stipulation also identified several outstanding
legal issues, including whether the preconditions in Thornburg v.
Gingles, 478 U.S. 30 (1986) apply to the non-diminishment
provision, whether Defendants have proved their remaining
affirmative defenses (that is, whether the non-diminishment
provision violates the Equal Protection Clause to the U.S.
Constitution either facially or as applied to North Florida), and
whether the public official standing doctrine bars the Defendants’
affirmative defenses. See Stip. § IV.A. The Court heard argument
from counsel on these issues on August 24, 2023.
V. Jurisdiction of the Court
This Court has Jurisdiction pursuant to Chap. 26.012, Fla.
Stat., Art. V. sect. 5(b), Fla. Const. See also Moore v Harper, 143
S.Ct. 2065 (June 27, 2023).
Analysis
I. Plaintiffs have proved a violation of Article

III, Section 20 of the Florida Constitution.
Under the stipulated facts, Plaintiffs have shown that the
Enacted Plan results in the diminishment of Black voters’ ability to
elect their candidate of choice in violation of the Florida
Constitution. At the hearing on the parties’ outstanding legal

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issues, Defendants Florida House and Florida Senate conceded as
much. Although the Secretary has not conceded diminishment as
a matter of law—instead asking this Court to find that the
preconditions from Thornburg v. Gingles, 478 U.S. 30 (1986)
should apply to diminishment claims—this Court finds that the
Secretary’s arguments on this matter are inconsistent with Florida
Supreme Court precedent and consequently rejects them.
As the Florida Supreme Court has explained, the non-
diminishment standard proscribes redistricting plans “that have
the purpose of or will have the effect of diminishing the ability of
any citizens on account of race or color to elect their preferred
candidates of choice.” Apportionment I, 83 So. 3d at 620 (cleaned
up) (emphasis added). Under the non-diminishment standard,
“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. at 625. (emphasis added) The non-
diminishment standard accordingly calls for a comparative
analysis: “The existing plan of a covered jurisdiction serves as the
‘benchmark’ against which the ‘effect’ of voting changes is

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measured.” Id. at 624. And whether a minority group’s voting
power has been diminished is determined by a “functional
analysis” of “whether a district is likely to perform for minority
candidates of choice.” Id. at 625. A functional analysis should
include consideration of data such as a district’s voting age
population, voter registration information, and election results. Id.
at 627.
In determining whether a previously-existing district
“performs” for the minority group’s candidate of choice—and is
therefore protected from diminishment in the new map—a court
must consider (1) “whether the minority group votes cohesively,”
(2) “whether the minority candidate of choice is likely to prevail in
the relevant contested party primary,” and (3) “whether that
candidate is likely to prevail in the general election.” LWV II, 179
So. 3d at 287 n.11.
In the Parties’ Stipulation, all Defendants conceded that
Black voters had the ability to elect their candidate of choice in
Benchmark CD-5. See Stip. Ex. 1 ¶ 3(o). Applying the three-part
test from LWV II to the Parties’ Stipulated Facts, the Court also
independently confirms that the Parties’ Stipulation supports this

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conclusion. Specifically, Black voters were politically cohesive in
Benchmark CD-5, see Stip. Ex. 1 ¶ 3(g); Black voters exercised
sufficient control over the primary election in Benchmark CD-5
such that their candidate of choice (in this case, former
Representative Al Lawson) was likely to prevail (and did prevail)
in the primary election, see Stip. Ex. 1 ¶¶ 3 (c), (e), (f), (k); and
Black voters’ candidate of choice was likely to prevail (and did
prevail) in the general election in Benchmark CD-5, see Stip. Ex. 1
¶¶ 3 (d), (j)–(n).5
In the Parties’ Stipulation, all Defendants also conceded that
under the Enacted Plan there are no longer any districts in North
Florida in which Black voters have the ability to elect their
preferred candidates. See Stip. Ex. 1 ¶ 4(o). The Court also finds
that the Parties’ Stipulated Facts support this conclusion.
Specifically, under the Enacted Plan, all of the districts that
replaced Benchmark CD-5 (Enacted CD-2, CD-3, CD-4, and CD-5)
are majority white in voter registration, that white voters cast the
majority of votes in both primary and general elections in all of
5
While racial polarization is not explicitly part of the three-part test identified in
LWV II, the Parties’ Stipulation also recognizes that voting is racially polarized in
Benchmark CD-5, see Stip. Ex. 1 ¶ 3(i), which the Florida Supreme Court has
indicated is relevant to the non-diminishment test. See LWV II, 179 So. 3d at 286.
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those districts, and that candidates preferred by Black voters
failed to win a majority of votes in all of those districts. See Stip.
Ex. 1 ¶¶ 4(a)–(n).
In sum, Plaintiffs have shown that (1) the Benchmark district
(in this case, Benchmark CD-5) allowed Black voters the ability to
elect the candidate of their choice, and (2) the Enacted Plan
weakens (or in this case, actually eliminates) Black voters’ ability
to elect the candidate of their choice. Under the standard set out
by the Florida Supreme Court in Apportionment I, Plaintiffs have
proven their diminishment claim.
At the hearing on the outstanding legal issues before the
court on August 24, 2023, Defendant Florida Senate conceded the
Enacted Plan results in diminishment in violation of the Florida
Constitution. See Aug. 24, 2023 Hrg. Tr. at 162:21–24 (Senate
counsel, Mr. Nordby, conceding, “I don’t think the Senate has ever
disputed that as compared to Benchmark CD-5, the Enacted Map
does not have a district that satisfies the nondiminishment
requirement.”) Defendant Florida House conceded the same. See
id. at 88:17–22 (Court asking Florida House counsel, Mr. Bardos,
“Is there any concession that [Plaintiffs] make out their primary
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case based on the facts before this Court?” and Mr. Bardos
acknowledging, “Yeah, there is no district in North Florida that
performs for minority voters in the Enacted Map.”)
Unlike Defendants Florida House and Florida Senate,
Defendant Secretary has argued that, despite the Parties’
Stipulated Facts and the existing caselaw, Plaintiffs have not
shown a diminishment violation because they have not satisfied
the preconditions in Thornburg v. Gingles, 478 U.S. 30 (1986),
which the Secretary argues should apply to diminishment claims.
As the Court explains below, the Secretary’s arguments have no
basis under either federal precedent or Florida Supreme Court
precedent.
The Secretary’s interpretation of the relevant legal standard
erroneously conflates Florida’s non-diminishment provision with
Florida’s non-dilution provision. The Florida Constitution imposes
two distinct imperatives for the protection of minority voting
rights in redistricting. First, it prohibits districts drawn “with the
intent or result of denying or abridging the equal opportunity of
racial or language minorities to participate in the political
process.” Art. III, § 20(a), Fla. Const. (non-dilution standard).

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Second, and as previously discussed, it prohibits districts drawn
with the intent or result of “diminish[ing] [minorities’] ability to
elect representatives of their choice.” Id. (non-diminishment
standard). As the Secretary himself has correctly acknowledged,
Florida’s non-dilution standard reflects Section 2 of the Voting
Rights Act, while the non-diminishment provision reflects Section
5 of the Voting Rights Act (VRA). See Apportionment I, 83 So. 3d
at 619–20. Because the Fair Districts Amendments’ minority
voting protections “follow almost verbatim the requirements
embodied in the Federal Voting Rights Act,” id. at 619, Florida
courts’ “interpretation of Florida’s corresponding provision is
guided by prevailing United States Supreme Court precedent,” id.
at 620.
Section 2 of the VRA (non-dilution) requires the creation of a
new minority district under certain conditions; a successful claim
“requires a showing that a minority group was denied a majority-
minority district that, but for the purported dilution, could have
potentially existed.” Id. at 622. In Thornburg v. Gingles, 478 U.S.
30 (1986), the U.S. Supreme Court identified three “necessary
preconditions” (“Gingles preconditions”) for a Section 2 vote

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dilution claim: (1) the minority group must be “sufficiently large
and geographically compact to constitute a majority in a single-
member district”; (2) the minority group must be “politically
cohesive”; and (3) the majority must vote “sufficiently as a bloc to
enable it … usually to defeat the minority’s preferred candidate.”
Id. at 50–51. As relevant here, the first Gingles precondition
requires the minority group to constitute at least 50% of the
voting age population of a potential new district. See Bartlett v.
Strickland, 556 U.S. 1, 18–20 (2009).
Section 5 of the VRA (non-diminishment), by contrast, simply
protects against backsliding in existing districts where a minority
group has had the ability to elect a candidate of their choice. See
Apportionment I, 83 So. 3d at 619–20. Thus, Section 5’s non-
diminishment standard “does not require a covered jurisdiction to
maintain a particular numerical minority percentage” in a
district. Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 275
(2015). Instead, it requires the state to “maintain a minority’s
ability to elect a preferred candidate of choice” in any new
redistricting plan, which the state should accomplish by
conducting “a functional analysis of the electoral behavior within

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the particular jurisdiction or election district.” Id. at 275–76 (citing
Guidance Concerning Redistricting Under Section 5 of the Voting
Rights Act, 76 Fed. Reg. 7471 (2011)).
Like the federal test for diminishment, the Florida Supreme
Court’s test for diminishment similarly does not require any
specific minority voting percentage, but instead asks (1) “whether
the minority group votes cohesively,” (2) “whether the minority
candidate of choice is likely to prevail in the relevant contested
party primary,” and (3) “whether that candidate is likely to prevail
in the general election” in the benchmark district. LWV II, 179 So.
3d at 287 n.11. This three-part test for non-diminishment is
plainly different from the three-part test required for vote dilution
under Thornburg v. Gingles, and for good reason: non-dilution and
non-diminishment are different requirements, seeking to guard
against different harms. See Reno v. Bossier Par. Sch. Bd., 520
U.S. 471, 477 (1997) (explaining, “we have consistently
understood [Section 2 and Section 5] to combat different evils
and, accordingly, to impose very different duties upon the
States”); see also Holder v. Hall, 512 U.S. 874, 883 (1994)

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(explaining that Section 2 and Section 5 of the VRA “differ in
structure, purpose, and application”).
The Secretary’s argument that Plaintiffs must satisfy the
preconditions of Thornburg v. Gingles, 478 U.S. 30 (1986) to
trigger the application of the non-diminishment standard is not
supported by the caselaw. First,
“[i]n its 2006 reauthorization, Congress amended

Section 5 [of the Voting Rights Act] to add the express
prohibition against ‘diminishing the ability’ of minorities
‘to elect their preferred candidate’…This amended
language mirrors the language of Florida’s provision.”
Apportionment I, 83 So.3d at 624. The Florida Supreme Court
was aware of both Gingles and the Amended Section 5 of the
Voting Rights Act when it noted that Gingles informs the Court but
did not require a majority-minority district in finding a non-
diminishment claim. See LWV II, 179 So.3d at 287 n. 11.
Similarly, just last year the Florida Supreme Court reiterated that
the majority-minority prong of Gingles was not required when it
found in its unanimous opinion that
“[t]he non-diminishment protection afforded by article

III, section 21(a)6 means that ‘the Legislature cannot
eliminate majority-minority or weaken other
6
The Court will note that section 21 mirrors article III, section 20 but applies to
Legislature redistricting only.
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historically performing minority districts where
doing so would actually diminish a minority group’s
ability to elect its preferred candidates.’ Apportionment
I, 83 So.3d at 625; see also Bethune-Hill v. Va. State
Bd. of Elections, [580] U.S. [178, 195-96], 137 S. Ct.
788, 802, 197 L.Ed.2d 85 (2017).”
In re Senate Joint Resolution of Legislative Apportionment 100,
334 So. 3d 1282, 1289 (Fla. 2022) (Canady, C.J., recused)
(emphasis added). In that same opinion, the Florida Supreme
Court notes
“of the five identified performing Black voter districts,

one is majority minority in both the benchmark and
2022 Senate plans. The record further shows that four
of the five identified performing Hispanic voter districts
in the benchmark plan are majority minority, while all
five of the identified performing Hispanic voter districts
in the 2022 Senate plan are majority minority.”
Id. at 1289-90. It stands to reason that the Florida Supreme Court
would not comment on identified performing districts and
majority minority districts if the latter (majority minority) were a
requirement to have the former (identified performing districts).
In light of this precedent and prior applications of the non-
diminishment provision, the Court rejects the Secretary’s
argument that the non-diminishment test requires imposing the
Gingles preconditions for diminishment claims. Under the non-

Page 24 of 55
diminishment test previously established by the Florida Supreme
Court, Plaintiffs have established that there is no Black-
performing district where there previously was, see Stip. § IV.B,
which is sufficient to prove their diminishment claim. The Court
thus finds that Plaintiffs have established a violation of Article III,
Section 20(a) of the Florida Constitution.
II. Defendants have not proven their racial

gerrymandering affirmative defense.
Under the Parties’ Stipulation, Defendants have retained
only a single affirmative defense: that compliance with the non-
diminishment provision of the Florida Constitution would require
Defendants to implement a racial gerrymander in violation of the
U.S. Constitution’s Equal Protection Clause. The Florida House and
Florida Senate bring this affirmative defense as an as-applied
challenge only to North Florida.
While the Secretary reserved the affirmative defense that
the Fair Districts Amendments are facially unconstitutional as part
of the Parties’ Stipulation, the Secretary did not pursue that
argument in briefing or argument before the Court, focusing only
on the affirmative defense as it applied to North Florida. Perhaps
such apparent abandonment is due to the recent release of the

Page 25 of 55
U.S. Supreme Court’s decision in Allen v. Milligan, 143 S. Ct. 1487
(2023). In Allen, the U.S. Supreme Court rejected Alabama’s
“race-neutral benchmark” theory. Id. at 1507. The Secretary can
point to no case finding the non-diminishment language of the
Fair Districts Amendment, nor the comparable Section 5 language
of the Voting Rights Act, to violate the Equal Protection provision
of the 14th Amendment. Similarly, although it was in the context
of an Elections Clause case, the United States Court of Appeals for
the Eleventh Circuit
[had] little difficulty in concluding that the factors

enumerated in Amendment Six [(the enacting
Amendment for the Fair Districts Amendment)] have
been for many years commonly considered by
legislative bodies in congressional redistricting and long
accepted by the courts as being lawful and consistent
with the powers delegated to the state legislatures by
the United States Constitution.
Brown v. Sec'y of State of Florida, 668 F.3d 1271, 1272-73 (11th
Cir. 2012). The Court went on to note,
Moreover, it must surely be appropriate for a state

legislature to take into account the effect that its new
districts will have on racial and language minorities.
The federal Voting Rights Act prohibits voting practices
that deny or abridge the right of any citizen to vote on
account of membership in a racial or language minority
group. 42 U.S.C. § 1973(a). To argue that Florida may
not consider a factor that it is otherwise obliged to
Page 26 of 55
consider under the Supremacy Clause has no
persuasive force. Again, it is irrelevant that only five
Florida counties are subject to the Voting Right Act's
preclearance requirement…More generally, if the
appellants' argument were correct, then no state would
be allowed to consider the effect of its congressional
districts on minorities, even if the entire state were
subject to Section 5 preclearance.7
Id. at 1283.
As a threshold matter, the proponents of the affirmative
defense, Defendants, have the burden of proving their defense.
Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096-97
(Fla. 2010) (citing Hough v. Menses, 95 So. 2d 410, 412 (Fla.
1957)). This is because “[a]n affirmative defense is an assertion
of facts or law by the defendant … and the plaintiff is not bound
to prove that the affirmative defense does not exist.” Id. This
remains true in the racial gerrymandering context, where those
challenging a district as a racial gerrymander, in this case the
Defendants, have the burden of proving unconstitutional racial
gerrymandering. See Abbott v. Perez, 138 S. Ct. 2305, 2324
(2018).
7
Of note, Amendment Six was precleared under Section 5 of the Voting Rights Act,
and that preclearance was sent to Andy Bardos (current attorney for Defendant
House of Representatives and then-Special Counsel to the President of the Florida
Senate). Id. at 1273 fn. 2.
Page 27 of 55
The Court finds that Defendants have not satisfied their
burden in this case. Not only is there no specific district under
which this Court could evaluate whether racial gerrymandering
occurred, but Defendants also lack standing to raise a racial
gerrymandering challenge in the first place. Even if this Court
were to assume which district were at issue, Defendants have not
proved that race predominated in the drawing of the district.
Finally, even if race did predominate, Defendants have not shown
that the district would fail under strict scrutiny. Defendants’ racial
gerrymandering affirmative defense thus fails at every level, for
multiple, independent reasons.
A. The Court cannot evaluate a racial

gerrymandering claim where Defendants
have not identified a specific electoral
district.
The U.S. Supreme Court has made clear that “the basic unit
of analysis for racial gerrymandering claims in general, and for
the racial predominance inquiry in particular, is the district.”
Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 191
(2017); see also Ala. Legis. Black Caucus, 575 U.S. at 262–63
(“We have consistently described a claim of racial
gerrymandering as a claim that race was improperly used in the

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drawing of the boundaries of one or more specific electoral
districts.” (emphasis added) (citations omitted)). This precedent
forecloses Defendants’ affirmative defenses, which aim to
establish that any district—not a “specific electoral district”—in
North Florida that complies with the non-diminishment provision
would be a racial gerrymander.8
Defendants cannot cure this error by identifying Benchmark
CD-5 as the district purportedly at issue. See Aug. 24, 2023 Hrg.
Tr. at 45:16–24 (the Secretary’s counsel, Mr. Jazil, arguing, “I
would suggest that in drawing this Congressional district,
Benchmark CD-5 … they’re race predominant.”); see id. at 98:24–
99:1 (House counsel, Mr. Bardos, stating, “[I]t logically follows
that [the Benchmark] district as well would have been a racial
gerrymander”). Benchmark CD-5 was adopted by the Florida
Supreme Court last decade and has since been replaced. See
8
See Aug. 24, 2023 Hrg. Tr. at 81:8 –14 (the Secretary’s counsel, Mr. Jazil, arguing,
“[T]here’s no conceivable way to draw a district in North Florida where race doesn’t
predominant”); id. at 136:23–137:2 (House counsel, Mr. Bardos, conceding, “And so
the challenge is not to that specific district, but the challenge is to the district that
would be a nondiminishing alternative, which is the same basic configuration.”); id.
at 170:22–171:13 (Senate counsel, Mr. Nordby, arguing, “Any district that spans
that length of the state, that joins the downtown population area in Jacksonville and
Tallahassee, would raise the same sort of equal protection issues that we are
talking about here, whether it’s possible to change a couple of the lines to follow a
road instead of a river would not resolve those sort of equal protection issues that
we are talking about here. A district like that is unexplainable on any grounds other
than race, period.”)
Page 29 of 55
LWV II, 179 So. 3d at 272–73; Fla. Stat. Ann. § 8.0002; (Laws of
Fla. Ch. 2022-265) (establishing Enacted Plan as effective upon
becoming law); see also Aug. 24, 2023 Hrg. Tr. at 97:16–22
(House counsel, Mr. Bardos, conceding that although the Court
need not “directly” address whether “the Florida Supreme Court’s
district was contrary to the Equal Protection Clause” because the
Benchmark district “is not the law anymore,” acknowledging it
“would be a fair inference” that the Benchmark district violated
the U.S. Constitution). This Court will not second-guess the Florida
Supreme Court9. Nor will it evaluate the constitutionality of a
district that is no longer in effect as doing so “would
unnecessarily embroil this court in extended mini-trials over the
moot issue of whether [the Benchmark district] is constitutionally
infirm…” See Colleton Cnty. Council v. McConnell, 201 F. Supp. 2d
618, 644–45 (D.S.C. 2002).
Furthermore, Defendants have not proved that any remedial
district that complies with the non-diminishment provision in

9
Even if this Court were to second-guess the Florida Supreme Court’s adoption of
Benchmark CD-5, Justice Polston noted that in adopting Benchmark CD-5, the
Florida Supreme Court “adopts a remedial plan drawn entirely by Democratic
operatives. The Coalition Plaintiffs even stated in oral argument…that, if the
remedial plan had been drawn by the Democratic National Committee itself, the
outcome would be the same.” LWV II, 179 So. 3d at 305 (Polston, J., dissenting).
Such circumstances could show politics, not race, predominated. The Court will
note that partisan gerrymandering is no longer at issue in this case.
Page 30 of 55
North Florida will necessarily bear resemblance to Benchmark CD-
5. To the contrary, in 2022 the Legislature proposed and passed
Congressional Plan 8019, which included a Duval County-only
district that the Chair of the House Congressional Redistricting
Committee described as “very visually different than the
benchmark district” but “still a protected black-performing
district.” Pls.’ Br. Ex. 8 at 30:17–23.10
Because Defendants failed to identify a specific and existing
electoral district that is allegedly a racial gerrymander, the Court
finds that Defendants’ affirmative defenses must fail.
B. Defendants do not have standing to

assert an Equal Protection violation.
Defendants’ affirmative defenses separately fail because no
Defendant has standing to raise an Equal Protection violation.
This is true both because Defendants’ affirmative defense is
barred under the public official standing doctrine and because
Defendants have not shown they have suffered the personal harm
required to obtain relief for a racial gerrymandering claim.
10
Pls’ Br. Ex. 8 is a transcript of the House Redistricting Committee meeting from
February 25, 2022. The Parties agreed that this Court may take judicial notice of
transcripts of committee meetings, see Stip. Ex. 1 ¶ 2, and this Court so takes
judicial notice of the exhibit under Fla. Stat. § 90.202(5) and (12).
Page 31 of 55
1. The public official standing doctrine bars
Defendants’ affirmative defense.
Under Florida’s public official standing doctrine, it is well
established that public officials are jurisdictionally barred from
challenging the constitutionality of their legal duties in court. See
State ex rel. Atl. Coast Line R.R. Co. v. State Bd. of Equalizers, 94
So. 681 (Fla. 1922). The judicial branch alone has the power to
declare what the law is, including whether the Florida
Constitution’s provisions are themselves unconstitutional. See
Sch. Dist. of Escambia Cnty. v. Santa Rosa Dunes Owners Ass’n,
Inc., 274 So. 3d 492, 494 (Fla. 1st DCA 2019); see also Fla. Ass’n
of Prof’l Lobbyists, Inc. v. Div. of Legis. Info. Servs., 7 So. 3d 511,
514 (Fla. 2009) (“[N]o branch may encroach upon the powers of
another.”) As such, public officials from the other branches of
government cannot raise the unconstitutionality of their legal
duties either affirmatively, see Dep’t of Revenue of State of Fla. v.
Markham, 396 So. 2d 1120, 1121 (Fla. 1981) (“Disagreement with
a constitutional or statutory duty, or the means by which it is to
be carried out, does not create a justiciable controversy or
provide an occasion to give an advisory judicial opinion”), or as an
affirmative defense, see Atl. Coast Line, 94 So. at 682 (holding

Page 32 of 55
that because “the allegation … that [a provision] is
unconstitutional means that it has been so declared by a court of
competent jurisdiction,” any allegation of unconstitutionality
before such a judicial declaration has been made is not “true” and
therefore “no defense”); see also id. at 683 (“[T]he oath of office
‘to obey the Constitution’ means to obey the Constitution, not as
the officer decides, but as judicially determined.”)
This Court has already held that the public official standing
doctrine applies to the Secretary’s standing to challenge the
constitutionality of the non-diminishment provision. See Order on
Pltf.’s Mot. to Strike Affirmative Defenses. However, because
Plaintiffs originally raised the doctrine in a motion to strike that
the Court denied as untimely, see id., the Secretary has continued
to advance his affirmative defenses. Plaintiffs promptly raised
their arguments under the public official standing doctrine again,
this time in a motion for judgment on the pleadings that is not
time-barred. Fla. R. Civ. P. 1.140(c) & 1.140(h)(2). Having
considered the Parties’ briefing on the matter, this Court GRANTS
Plaintiffs’ motion for judgment on the pleadings as to the
affirmative defense and reiterates its holding that the public

Page 33 of 55
official standing doctrine applies to the Secretary’s affirmative
defenses under the U.S. Constitution.
The Court further holds that the doctrine bars the Florida
House and Florida Senate from raising their affirmative defense as
well.11 There is no question that the Florida Constitution imposes a
duty on the Florida House and Senate to redistrict in accordance
with Article III, Section 20(a). And until a court holds that Article
III, Section 20(a) is unconstitutional, none of the Defendants have
standing to challenge those duties in court, and this Court lacks
jurisdiction to consider Defendants’ affirmative defenses. See
Dep’t of Transp. v. Miami-Dade Cnty. Expressway Auth., 316 So.
3d 388, 389 (Fla. 1st DCA 2021) (holding that the “trial court
lacked subject-matter jurisdiction … because [party] lacked
standing under the public official standing doctrine”), reh’g
denied (May 17, 2021), review dismissed sub nom. Miami-Dade
Cnty. Expressway Auth. v. Dep’t of Transp., No. SC21-841, 2021
WL 3783383 (Fla. Aug. 26, 2021).
11
Although this Court held differently in an oral ruling on June 5, 2023, that holding
was not dispositive of the motion to strike at issue, and in any event, “[a] trial court
may sua sponte reconsider and amend or vacate its interlocutory orders prior to
final judgment.” Seigler v. Bell, 148 So. 3d 473, 479 (Fla. 5th DCA 2014) (citing
Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998)).
Page 34 of 55
2. Defendants do not suffer the personal
harm necessary to raise a racial
gerrymandering claim.
Defendants also lack standing to raise their affirmative
defense because they have failed to show that they have
personally suffered an injury. Florida’s standing framework
requires the party asserting a violation of law to “demonstrate an
‘injury in fact,’ which is ‘concrete,’ ‘distinct and palpable,’ and
‘actual or imminent.’” State v. J.P., 907 So. 2d 1101, 1113 n.4
(Fla. 2004) (citing Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)). Florida courts rely on federal court decisions to interpret
the injury-in-fact requirement. See Pet Supermarket, Inc. v.
Eldridge, 360 So. 3d 1201, 1205–06 (Fla. 3d DCA 2023).
The U.S. Supreme Court has held that only voters who reside
in an allegedly racially gerrymandered district can demonstrate
standing because only “[v]oters in such districts may suffer the
special representational harms racial classifications can cause in
the voting context.” United States v. Hays, 515 U.S. 737, 745
(1995). A voter “who complains of gerrymandering, but who does
not live in a gerrymandered district, ‘assert[s] only a generalized
grievance against governmental conduct of which he or she does

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not approve.’” Gill v. Whitford, 138 S. Ct. 1916, 1921 (2018)
(quoting Hays, 515 U.S. at 745); see also Shaw v. Hunt, 517 U.S.
899, 904 (1996) (“[W]e recognized [in Hays] that a plaintiff who
resides in a district which is the subject of a racial-gerrymander
claim has standing to challenge the legislation which created that
district, but that a plaintiff from outside that district lacks
standing absent specific evidence that he personally has been
subjected to a racial classification.”)
But Defendants—government entities sued in their official
capacities—do not and cannot demonstrate that they would suffer
“special representational harms” as voters sorted into a
challenged district based on race. See Hays, 515 U.S. at 745.
They are thus incapable of asserting anything other than a
generalized grievance insufficient to confer standing. See Gill, 138
S. Ct. at 1921. For this reason, too, Defendants lack standing to
assert their affirmative defenses.
C. Defendants have not proved race would

necessarily predominate in the drawing of
any district in North Florida.
Even if Defendants were challenging a specific district and
had standing to do so, to succeed on their affirmative defenses

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under the Equal Protection Clause, they would need to establish
that race predominated in the drawing of the challenged district’s
lines. See Miller v. Johnson, 515 U.S. 900, 916 (1995) (holding that
the burden to establish racial predominance lies with the party
claiming unconstitutional racial gerrymandering). “The
determination that a particular district is the product of a racial
gerrymander is a fact-intensive inquiry.” McConnell, 201 F. Supp.
2d at 644. Defendants, therefore, must “show, either through
circumstantial evidence of a district’s shape and demographics or
more direct evidence going to legislative purpose, that race was
the predominant factor motivating the legislature’s decision to
place a significant number of voters within or without a particular
district.” Miller, 515 U.S. at 916. The U.S. Supreme Court has
admonished that “courts [must] exercise extraordinary caution in
adjudicating” racial gerrymandering claims given the critical
“distinction between being aware of racial considerations and
being motivated by them” and the “evidentiary difficulty” of
proving such a claim. Id.
As detailed below, Defendants have not met their burden.

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1. Defendants did not show direct evidence
of racial predominance.
Defendants have presented no direct evidence that race
predominated in the drawing of any district in North Florida.
Although they have shown that the Supreme Court (in ordering
Benchmark CD-5) and the Legislature (in drawing congressional
plans during the 2022 session, including vetoed Plan 8015 and
Plan 8019) considered race in attempting to comply with Article
III, Section 20(a), such consideration does not trigger strict
scrutiny. The U.S. Supreme Court “never has held that race-
conscious state decisionmaking is impermissible in all
circumstances.” Shaw, 509 U.S. at 642. “Redistricting legislatures
will … almost always be aware of racial demographics; but it does
not follow that race predominates in the redistricting process.”
Miller, 515 U.S. at 916 (citations omitted); see also Shaw, 509 U.S.
at 646. Indeed, just recently, the U.S. Supreme Court rejected the
state’s “contention that mapmakers must be entirely ‘blind’ to
race” when drawing districts to comply with the Voting Rights Act,
Allen, 143 S. Ct. at 1512 (plurality opinion), and reaffirmed “[t]he
line that we have long drawn [] between consciousness and
predominance” of race, id.

Page 38 of 55
2. Defendants did not show circumstantial
evidence of racial predominance.
Defendants have not advanced circumstantial evidence of
racial predominance. As the U.S. Supreme Court has held, a
district’s compliance with traditional redistricting criteria indicates
that race did not predominate in the drawing of a district and
“may serve to defeat a claim that a district has been
gerrymandered on racial lines.” Shaw, 509 U.S. at 647; see also
Allen, 143 S. Ct. at 1510–11 (plurality opinion) (finding that race
did not predominate where mapmaker considered race but also
considered traditional redistricting criteria); Miller, 515 U.S. at 928
(O’Connor, J., concurring) (requiring party asserting racial
gerrymandering claim to demonstrate “substantial disregard of
customary and traditional districting practices”). Examples of
traditional redistricting principles include “[use of] natural
geographic boundaries, contiguity, compactness, and conformity
to political subdivisions.” Bush v. Vera, 517 U.S. 952, 959–60
(1996).
Although Defendants’ affirmative defense fails to target a
specific existing district, see supra at II(A), the Court finds that
even the East-West configuration of CD-5 in Plan 8015, which the

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Parties have contemplated as a possible remedy in this litigation,
see Stip. § VII & Stip. Ex. 2, complies with traditional redistricting
principles to an extent which suggests that race did not
predominate in its drawing. In fact, CD-5 in Plan 8015 performs
just as well—and sometimes better—on several traditional
redistricting criteria as other districts in the Enacted Plan. 12
Equal Population. CD-5 in Plan 8015 unquestionably
satisfies equal population. See Pls.’ Br. Ex. 6 at 3 (showing 0.00%
population deviation).
Contiguity. Contiguity captures the extent to which all parts
of a district are connected, rather than meeting only at a common
corner or right angle. See Apportionment I, 83 So. 3d at 628. CD-5
in Plan 8015 satisfies Florida’s contiguity requirement. See Fla.
Const. art. III, § 20 (a).
Adherence to Political and Geographic Boundaries.
CD-5 in Plan 8015 performs extraordinarily well on adherence to
utilizing “existing political and geographic boundaries.” Fla. Const.
art. III, § 20 (b). Florida measures this adherance by calculating
which of the district’s boundaries are bounded by a city, county,

12
The Court limits its analysis here to the facts and exhibits already stipulated by
the parties and by the limited pieces of evidence over which the Court takes judicial
notice.
Page 40 of 55
roadway, waterway, or railway. See Apportionment I, 83 So. 3d at
638. The purpose of this requirement is to “prevent[] improper
intent” by allowing mapmakers to “pick-and-choose” their
boundaries. Id. CD-5 in Plan 8015 relies on “non-political or
geographic boundaries” for only 2% of its boundaries, which is
better than all but one district in the Enacted Plan. See Pls.’ Br.
Ex. 6 at 3. The average district in the Enacted Plan relies on “non-
political or geographic boundaries” for 14% of its boundaries. See
Stip. Ex. 4 at 2.
Compactness. Florida’s compactness standard “refers to
the shape of the district” to “ensure that districts are logically
drawn and that bizarrely shaped districts are avoided.”
Apportionment I, 83 So. 3d at 636. The Florida Supreme Court has
repeatedly emphasized that the “Florida Constitution does not
mandate…that districts…achieve the highest mathematical
compactness scores.” Id. at 635. Indeed, the Florida Supreme
Court approved Benchmark CD-5’s compactness when it adopted
the district. LWV I, 172 So. 3d at 406. CD-5 in Plan 8015 both
decreases the footprint of the district and smooths the boundaries
of Benchmark CD-5 even further, as confirmed by a visual

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inspection of the two districts below. Compare Stip. Ex. 3 at 1 with
Pls.’ Br. Ex. 6 at 2. There is nothing bizarrely shaped about the
district, and certainly nothing more bizarre than what was already
approved by the Florida Supreme Court.
Relatedly, the Court finds that the district’s length is largely
a factor of North Florida’s rural geography and sparse population.
Indeed, well before the East-West CD-5 ever existed, Florida’s
congressional plan from 2002 to 2012 included a district that
spanned from Leon County to Duval County. See Pls.’ Resp. Br.

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Ex. 1.13 The length of Plan 8015’s CD-5 is entirely consistent with
the geography, the demographics, and the State’s tradition of
congressional districting in North Florida.
The Court’s review of the district thus reveals that CD-5 in
Plan 8015 performs reasonably well on objective, non-racial
traditional redistricting criteria. It certainly does not demonstrate,
as would be Defendants’ burden, that race predominated in the
drawing of the district at the expense of traditional redistricting
criteria.14
D. A district that remedies the

diminishment in the Enacted Plan would be
narrowly tailored to address a compelling
state interest.
Even if Defendants had standing to bring a racial
gerrymandering challenge, and even if they could bring that
challenge to a district that does not exist, and even if the lines of
that district were predominantly drawn on the basis of race,

13
Pls.’ Resp. Br. Ex. 1 shows Florida’s Congressional Districts from 2002–2012. The
Parties agreed that this Court may take judicial notice of “Florida’s prior
congressional plans,” Stip. Ex. 1 ¶ 2, and this Court so takes judicial notice of the
exhibit under Fla. Stat. § 90.202(5) and (12).
14
While the Parties’ briefing and argument largely concerned CD-5 in Plan 8015, the
Court also notes that CD-5 in Plan 8019 would comply with traditional redistricting
criteria as well. That district, which is located singularly in Duval County, is
extremely compact, having higher compactness scores than the average district in
the Enacted Plan on all three compactness measures. See Pls.’ Br. Ex. 6 at 11 and
Stip. Ex. 4 at 2. There is also no question it complies with basic traditional
redistricting criteria such as equal population, contiguity, or adherence to political
and geographic boundaries.
Page 43 of 55
Defendants’ claim would still fail because the drawing of such a
district would be narrowly tailored to address a compelling state
interest. This Court also rejects the argument that Plaintiffs, as
private actors, have the burden to show that strict scrutiny would
be satisfied here.
1. Plaintiffs are not state actors and

therefore fall outside the ambit of strict
scrutiny.
Plaintiffs have no burden to show a future remedial district
would satisfy strict scrutiny. A state may not allow race to
predominate in the drawing of a district unless the district is
narrowly tailored to a compelling state interest. Bethune-Hill, 580
U.S. at 193. But private citizens engaged in proposing rather than
enacting redistricting plans are not required to meet that burden.
The Fourteenth Amendment only applies to state action, and
therefore private citizens and organizations, like Plaintiffs, fall
outside its ambit. See The Fla. High Sch. Activities Ass’n, Inc. v.
Thomas By & Through Thomas, 434 So. 2d 306, 308 (Fla. 1983)
(explaining that “strict scrutiny … imposes a heavy burden of
justification upon the state and should be applied only to those
actions by the state which abridge some fundamental right or

Page 44 of 55
affect adversely some suspect class of persons” (emphases
added)). Plaintiffs have no obligation in this challenge to show
that a future hypothetical remedial district satisfies a test only
applicable to state and federal governments.
2. Compliance with the Florida Constitution’s

non-diminishment provision is a
compelling state interest.
Regardless of who would bear the burden of strict scrutiny,
that burden would be satisfied with respect to a North Florida
district that complies with the non-diminishment provision,
including either of the versions of CD-5 in Plan 8015 or 8019.
Compliance with the non-diminishment provision of the
Florida’s Constitution is itself a compelling state interest. Florida’s
non-diminishment provision “follow[s] almost verbatim the
requirements embodied in the [federal] Voting Rights Act,”
Apportionment I, 83 So. 3d at 619 (citation omitted and second
alteration in original), and the United States Supreme Court has
repeatedly (and recently) assumed that compliance with the
Voting Rights Act constitutes a compelling state interest to justify
race-based redistricting. See, e.g., Wis. Legis. v. Wis. Elections
Comm’n, 142 S. Ct. 1245, 1248 (2022) (“We have assumed that

Page 45 of 55
complying with the VRA is a compelling interest.”); Abbott, 138 S.
Ct. at 2315. Indeed, in LULAC v. Perry, eight justices did not just
assume, but reached consensus that compliance with Section 5 is
a compelling state interest. 548 U.S. 399, 518 (2006) (Scalia, J.,
joined by Roberts, C.J., Thomas & Alito, J.J., concurring) (“I would
hold that compliance with § 5 of the Voting Rights Act can be [a
compelling state] interest.”); id. at 475 n.12 (Stevens, J., joined by
Breyer, J., concurring) (agreeing that complying with Section 5
would be a compelling state interest); id. at 485 n.2 (Souter, J.,
joined by Ginsburg, J., concurring) (same). Guided by the U.S.
Supreme Court’s decisions, this Court finds that compliance with
the non-diminishment provision of the Florida Constitution is also
a compelling state interest for the purposes of the Fourteenth
Amendment.
Defendants attempt to avoid this precedent by
distinguishing the non-diminishment provision (an initiated
constitutional amendment) from the VRA (a legislatively enacted
federal statute) based on the manner of their passage. But the
absence of legislative findings here does not leave the Court
unmoored. Florida courts “adhere to the ‘supremacy-of-text

Page 46 of 55
principle’: ‘The words of a governing text are of paramount
concern, and what they convey, in their context, is what the text
means.’” See Advisory Op. re Implementation of Amendment 4,
288 So. 3d 1070, 1078 (Fla. 2020) (quoting Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
56 (2012)). In context, the plain meaning of the Fair Districts
Amendments is clear: “The people of this great state passed a
constitutional amendment seeking to address the errors of the
past.” LWV II, 179 So. 3d at 300–01 (Perry, J., concurring) (cleaned
up). By voting to adopt new constitutional provisions that mirror
the text of the VRA, Floridians expressed their belief that Florida
was home to the sort of the racial discrimination that justified and
required the VRA in the national context and that a similar civil
rights structure was required to stamp it out at home. See
Advisory Op. re Implementation of Amendment 4, 288 So. 3d at
1078.
Florida’s history of voting related discrimination—as told
through Florida case law over the years—bears out this need. In
1992, a three-judge court for the Northern District of Florida,

Page 47 of 55
documenting the state’s history of discrimination against minority
voters, explained that:
In the state of Florida, minorities have had very little

success in being elected to either the United States
Congress or the Florida Legislature. An African–
American has not represented Florida in the United
States Congress in over a century. In addition, only one
Hispanic congressperson serves from Florida. From
1889 until 1968, African–Americans were unable to
elect a single representative to the state house.
Additionally, African–Americans were unable to elect a
representative to the state senate until ten years ago.
Until four years ago, no Hispanic state senator had ever
been elected in Florida.
DeGrandy v. Wetherell, 794 F. Supp. 1076, 1079 (N.D. Fla.
1992). That same year, the Florida Supreme Court’s then-Chief
Justice Shaw remarked on the “substantial inability minorities in
Florida have experienced in electing legislators of their choice
throughout the past decade.” In re Constitutionality of S. J. Res..
2G, Spec. Apportionment Sess. 1992, 597 So. 2d 276, 292 (Fla.
1992) (Shaw, C.J., dissenting from Court’s resolution approving
Florida’s 1992 Senate districts). These courts were summarizing
decades of judicial decisions striking down state efforts to
diminish voting power in Florida, including efforts specifically
targeting Black voters in North Florida. See, e.g., Davis v.

Page 48 of 55
Cromwell, 156 Fla. 181, 184 (Fla. 1945) (en banc) (striking down
Florida’s use of white-only primaries); Solomon v. Liberty Cnty.,
Fla., 899 F.2d 1012 (11th Cir. 1990), cert. denied, 498 U.S. 1023
(1991) (striking down at-large voting system designed to diminish
minority voting power); Bradford Cnty. NAACP v. City of Starke,
712 F. Supp. 1523 (M.D. Fla. Feb 27, 1989, Jacksonville Division)
(same); Tallahassee Branch of NAACP v. Leon Cnty., Fla., 827 F.2d
1436 (11th Cir. 1987), cert. denied, 488 U.S. 960 (1988) (same);
McMillan v. Escambia Cnty., Fla., 748 F.2d 1037 (5th Cir. 1984)
(same); NAACP v. Gadsden Cnty. Sch. Bd., 691 F.2d 978 (11th Cir.
1982) (same).
Defendants’ narrow focus on an absent legislative record
misses what is plain from the Amendments’ text and its context. 15
See Fraternal Order of Police, Miami Lodge 20 v. City of Miami,
243 So. 3d 894, 897 (Fla. 2018) (explaining that on a facial review
only the text of the law is relevant). Florida has been a state
home to discrimination in voting and the people of this state
15
Defendants’ focus on a legislative record also proves too much. If a legislative
record were always required to justify remedial statutes, popularly enacted
measures, which by their nature lack such records, would always violate the
constitution. See Fla. Const. Article XI, Section 3. The Court finds no reason, and the
Defendants have failed to provide one, to interpret the Fourteenth Amendment,
adopted to advance racial equality, to render constitutionally suspect popular
efforts to protect it.
Page 49 of 55
demanded a Florida analogue to the VRA to finally rid the state of
its presence. The Court therefore finds that the non-diminishment
provision of the Florida Constitution is justified by a compelling
state interest in rooting out persistent discrimination in the state
and that compliance with the provision itself is a compelling state
interest.16
3. A Black-performing district in North

Florida is narrowly tailored to justify the
compelling interest in the non-
diminishment provision.
The narrow tailoring inquiry underscores the bizarre posture
in which Defendants’ arguments place the Court. 17 Defendants’
strict scrutiny argument depends on a hypothetical district in
North Florida whose metes and bounds are currently
undetermined. This hypothetical alone is sufficient to reject the
Defendants’ arguments. Nevertheless, for the purpose of this
inquiry, the Court will assume that it is being asked to determine

16
Defendants’ argument, moreover, that civil rights statutes imposed by Florida are
less meaningful than those imposed by the federal government is squarely rejected
by the U.S. Supreme Court’s repeated admonition that its “established practice,
rooted in federalism” that “States [have] wide discretion, subject to the minimum
requirements of the Fourteenth Amendment, to experiment with solutions to
difficult problems of policy.” Smith v. Robbins, 120 S. Ct. 746, 757 (2000).
Defendants’ efforts here to ignore and undermine their own constitutional
provisions only underscores the importance that states retain the ability to adopt
measures necessary to protect minority voters.
17
The Florida House and Florida Senate do not argue that CD-5 would fail the narrow
tailoring inquiry. See Legis. Defs.’ Br. at 12–15; see also Aug. 24, 2023 Hrg. Tr. at
88:8–12.
Page 50 of 55
whether Plan 8015’s CD-5 is narrowly tailored to address the
compelling interest in complying with the non-diminishment
provision. The Court concludes that it is.
A race-based remedy is narrowly tailored where there is a
“good reason[] to believe” that a legislature’s use of race was
necessary to comply with existing law. See Abbott, 138 S. Ct. at
2332 (holding that the legislature had “good reasons” because
plaintiff groups had argued that it was mandated by the Voting
Rights Act and a court had previously approved it). The limited
legislative record before the Court reveals that the Legislature
properly conducted a functional analysis on Benchmark CD-5, see
Stip. Ex. 3 at 5–8, as has been required by the Florida Supreme
Court to determine whether a district merits protection under the
Florida Constitution’s non-diminishment provision, see
Apportionment I, 83 So. 3d at 656–57. The record also reveals
that the Legislature believed that Benchmark CD-5 was a
protected district and that CD-5 in Plan 8015 would ensure Black
voters’ ability to elect their candidate of choice was not
diminished. See, e.g., Pls.’ Br. Ex. 8 at 24:20–22 (Chair Leek
noting the Committee’s aim “to protect the minority group’s

Page 51 of 55
ability to elect a candidate of their choice”); id. at 45:9–48:9
(Chair Sirois describing how CD-5 in Plan 8015 was drawn to
comply with both Tier I and Tier II metrics); id. at 23:16–20 (House
Redistricting Chair explaining the Legislature believes CD-5 in
Plan 8015 to be “legally compliant under current law”). The
Legislature thus “had good reasons to believe that” Plan 8015’s
configuration of CD-5 “was necessary … to avoid diminishing the
ability of black voters to elect their preferred candidates.”
Bethune-Hill, 580 U.S. at 182; see also id. at 193–94 (crediting
legislature’s functional analysis to find narrow tailoring).
The Secretary’s arguments on narrow tailoring distort how
the non-diminishment provision works. The Secretary’s argument
is wrong to characterize the non-diminishment provision as
having no geographic or temporal limits. See Sec’y’s Br. at 19.
The functional analysis required by the Florida Supreme Court
anchors the non-diminishment provision’s application only to
those geographic areas where minority groups are populous
enough and politically cohesively enough to elect their candidates
of choice; and the reevaluation of districts every decade allows
for change over time.

Page 52 of 55
The Secretary’s argument is also wrong that the “good
reasons” test for narrow tailoring does not apply to this case
because there is no VRA claim at issue. The fact that this is not a
VRA case is of no moment: The “good reasons” test is part of the
racial gerrymandering analysis that Defendants themselves seek
to inject into this case. See Ala. Legis. Black Caucus, 575 U.S. at
278 (“[L]egislators ‘may have a strong basis in evidence to use
racial classifications in order to comply with a statute when they
have good reasons to believe such use is required, even if a court
does not find that the actions were necessary for [VRA]
compliance.’” (citations omitted)); see also Cooper v. Harris, 581
U.S. 285, 293 (2017) (“[T]he State must establish that it had
‘good reasons’ to think that it would transgress the [VRA] if it did
not draw race-based district lines.”) Defendants cannot assert a
racial gerrymandering defense under federal law and then cherry-
pick which elements of the racial gerrymandering inquiry apply.
Conclusion
The Florida Supreme Court has made clear that “[i]t is this
Court’s duty, given to it by the citizens of Florida, to enforce
adherence to the constitutional requirements and to declare a

Page 53 of 55
redistricting plan that does not comply with those standards
constitutionally invalid.” Apportionment I, 83 So. 3d at 607. See
also Moore, 143 S. Ct. at 2089 (“State courts retain the authority
to apply state constitutional restraints when legislatures act under
the power conferred upon them by the Elections Clause.”) By
dismantling a congressional district that enabled Black voters to
elect their candidates of choice under the previous plan, the
Enacted Plan violates Article III, Section 20(a) of the Florida
Constitution.
Therefore, it is ORDERED AND ADJUDGED:
a. This Court GRANTS Plaintiffs’ motion for judgment on
the pleadings as to the affirmative defense and
reiterates its holding that the public official standing
doctrine applies to the Secretary’s affirmative defenses
under the U.S. Constitution.
b. The Enacted Plan is DECLARED an unconstitutional
violation of the Florida Constitution, Article III, Section
20.
c. Defendant Cord Byrd, in his official capacity of
Secretary of State, his agents, officers, employees,

Page 54 of 55
successors, and all persons acting in concert with him
are ENJOINED from implementing, enforcing, or giving
any effect to the Enacted Plan or conducting any
elections for the U.S. House of Representatives using
the Enacted Plan.
d. The matter of congressional redistricting is RETURNED
to Defendants House of Representative and Senate to
enact a remedial map in compliance with Article III,
Section 20 of the Florida Constitution.
e. Jurisdiction is reserved to consider any pending or post-
judgment motions, and to enter such further orders as
may be necessary to effectuate this judgment or to
otherwise fashion an appropriate equitable remedy.
DONE AND ORDERED in Chambers at Tallahassee, Leon
County, Florida, this Saturday, September 2, 2023.
J. LEE MARSH
CIRCUIT JUDGE
Copies furnished to:
All Counsel of Record
Page 55 of 55

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Filing # 181045906 E-Filed 09/02/2023 02:36:41 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

BLACK VOTERS MATTER CAPACITY

CORD BYRD, in his official capacity

FINAL ORDER AFTER HEARING AND FINAL JUDGMENT

on Plaintiffs’ Amended Complaint for Injunction and Declaratory

Relief. The Court has carefully considered the Amended

Case No. 2022-CA-666

the Joint Stipulation to Narrow Issues for Resolution, the

arguments of the parties at a hearing held August 24, 2023, and

being otherwise duly advised, the Court hereby finds:

This case is about whether the Legislature, in enacting its

most recent congressional redistricting plan, violated the Florida

Constitution by diminishing the ability of Black voters in North

Florida to elect representatives of their choice. It is also about

whether that provision of the Florida Constitution violates the 14 th

Amendment to the U.S. Constitution. In short, the answers are

declare the enacted map unconstitutional and enjoin the

Secretary of State from using that map in future congressional

elections. This Court will return the matter to the Legislature to

enact a new map which complies with the Florida Constitution.

Background and Procedural History

Florida and the affected districts as well as 501(c)(3)

organizations who strive to increase voter participation

of State, the Florida Senate, and the Florida House of

In Florida, Congressional districts are apportioned after the

decennial census. The Florida Legislature is required under the

U.S. and Florida Constitutions to apportion the state into

congressional districts. U.S. Const. art. I, § 4, cl. 1; Art. III, § 20,

Fla. Const. Like other laws in Florida, once the respective

chambers pass an apportionment bill, that bill proceeds to the

Governor of Florida for signature or veto. Art. III, § 8, Fla. Const.

Once an apportionment bill is signed, the Secretary of State is

then required to implement the districts in conducting

Congressional elections. § 97.012, Fla. Stat. Ann.

At issue in this case is the current Congressional Districting

Map know as Senate Bill 2-C (Laws of Fla. Ch. 2022-265).

20 of the Florida Constitution (“Fair Districts Amendment”).

I. The Fair Districts Amendments

Before the 2010 redistricting cycle, Floridians voted to

enshrine the Fair Districts Amendments in the Florida

Case No. 2022-CA-666

constrain the Legislature’s exercise of its congressional

reapportionment power. Pursuant to those Amendments,

In establishing congressional district boundaries:

Supreme Court has recognized that this provision contains two

separate requirements, borrowed from the Federal Voting Rights

Act: a non-dilution requirement and a non-diminishment

requirement. See In re S. J. Res. of Legis. Apportionment 1176

(“Apportionment I”), 83 So. 3d 597, 619 (Fla. 2012).

Case No. 2022-CA-666

In 2015, the Florida Supreme Court invalidated the

Legislature’s 2012 congressional redistricting plan under Article

III, Section 20 of the Florida Constitution after finding that partisan

intent tainted the entire redistricting process. See League of

known as “Benchmark CD-5”) to be drawn in an East-West

configuration across Florida’s northern border. Id. at 403. At the

time of its adoption, Benchmark CD-5 had a Black voting age