DeSantis Wants Florida’s Constitution Ruled Unconstitutional

Anticipating the partisan gerrymandering lawsuits challenging Gov. Ron DeSantis’ latest chop-up of Florida’s congressional map, the Republicans have had one main defense: that part of their state constitution is unconstitutional.

The state constitution’s anti-gerrymandering provisions impermissibly require consideration of race when drawing lines to preserve minority group voting power, and the US Constitution mandates a race-blind process, or so Florida Republicans’ theory goes.

But there’s a big problem with that premise—the US Supreme Court’s conservative majority didn’t deliver DeSantis the silver bullet he said was coming. And his jumping the gun complicates a litigation pile-on in state court.

In the days leading up to the high court’s Louisiana v. Callais decision, Florida had a new DeSantis-drawn map and a DeSantis-drawn explanation ready. In testimony provided in last month’s special redistricting session, Republicans foresaw that the US Supreme Court was going to completely eliminate the use of race in anti-gerrymandering cases, and therefore the state must redistrict.

“It not only vindicated what we were doing, it compelled what we were doing,” DeSantis said in a May 1 press conference, two days after the ruling.

Did he read the decision?

While the April 29 Callais ruling will make racial gerrymandering nearly impossible to prove, Justice Samuel Alito, writing for the high court majority, took pains to say the court wasn’t finding Section 2—the provision of the Voting Rights Act used to challenge the racial effects of redistricting—unlawful.

“Correctly understood, §2 does not impose liability at odds with the Constitution,” he said. “In short, §2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race. Not only does this interpretation follow from the plain text of §2, but it is consistent with the limited authority that the Fifteenth Amendment confers.”

With that distinction drawn, state courts have their own law and precedent to consider, and both could cut against Republicans.

Partisan Bank Shot

A trio of lawsuits filed by the Campaign Legal Center, Common Cause, and Marc Elias tee up two important questions: are the state’s racial gerrymandering protections actually unconstitutional, and can the partisan gerrymandering protections be severed if they are?

Litigation moves slowly, so DeSantis is nearly certain to get the districts he wants for the 2026 midterms, when a handful of seats could control legislative power in Washington. But if state Republicans want the congressional map to endure until November 2028, though, they must defend DeSantis’ awkward bank shot effort to leverage Callais into invalidating a constitutional amendment language approved by 63% of voters.

That’s an uphill battle. The redistricting amendment, which says “no apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent,” was already used by the Florida Supreme Court to strike a partisan gerrymander in 2015.

Conservatives have since flipped the court, and six of its seven members are DeSantis appointees. Yet, the Florida justices have shown reservations about going as far as DeSantis is arguing. They had the chance to strike altogether the anti-racial discrimination protection last year, but didn’t, even while ruling against its use for invalidating a congressional district.

Even if Republicans convince the courts that Callais means the racial gerrymandering protections go too far, a ruling taking the anti-partisan protections down as well runs into long-standing state Supreme Court precedent that tends to uphold provisions that can stand alone without invalid ones.

There are also sticky facts. Especially these two: testimony from the mapmaker, Jason Poreda, that the lines were drawn using 2020 Census data, and that he used partisan data “for every district that I drew.”

That kills two potential state arguments with one stone. You can’t seriously contend the lines needed to be redrawn because of a population influx if you’re using the same data in the new map that you used to draw the last one, and you can’t argue they weren’t made with partisan intent.

It’s been a decade and a half since Florida politicians failed to defeat ballot measures meant to limit monkeying with district lines for partisan ends. Now DeSantis wants to throw out the baby, and he’s blaming the bathwater.