Thread by @RRHElections

Let's do a quick thread on #FL5, the most litigated district in the history of Election Twitter! We'll try to give some context to what @RonDeSantisFL is likely getting at when he argues the district--and thus the map that passed the Florida Senate today--is illegal. 1/x

#FL5, like most of America's ugliest racial gerrymanders, has its roots in the '92 redistricting cycle. The Bush 41 DOJ took a then-prevailing, but since-discredited, view of the VRA that required states to aggressively gerrymander to maximize the Black population in VRA seats 2/

The Bush DOJ pressured Southern states--mostly still run by Democrats--to break up 35-40% Black seats that were Black enough to elect a D, but white enough to ensure that D was white. This led to significant opportunity for Black D's and white R's at the expense of white D's. 3/

So beginning in 1992, we saw a lot of districts that looked like this (all of these districts have since been thrown out by courts, although most lasted into the 2010's): 4/

Florida's racially-gerrymandered seat, then numbered as #FL3, ran from Jacksonville to Orlando, and elected Corrine Brown, the first Black person to represent Florida in Congress since Reconstruction--accomplishing the Bush DOJ's goal! The district was redrawn in '02 and '12. 5/

However, by 2012, years of Supreme Court decisions had disfavored the packing of Black voters from far-flung areas into gerrymandered seats on the basis of race alone. These seats were still permissible, however, if they were justified as *purely partisan* gerrymanders. 6/

In Florida, however, the partisan gerrymander justification no longer worked, because voters had enacted the Fair Districts Florida amendment (FDF). This meant that the Jax-Orl version of #FL5, as it was renumbered, could only be justified on racial grounds. 7/

From a nonpartisan perspective, the 2012 #FL5 probably should have been struck down. But the Florida Supreme Court--at the time, a fairly partisan Dem court--saved the seat, ordering it to be instead redrawn as a racial gerrymander from Jacksonville to *Tallahassee* 8/

The Florida Supreme Court reasoned that the racial gerrymander was permissible in light of the FDF's provisions prohibiting districts from being drawn to diminish minority voting power. However, they held that the Jax/Oral configuration was "unusual" and "bizarre." 9/

Richly, the Democrats on the court found that the Jax/Tally setup for #FL5 was "less unusual and bizarre,” despite the cities being 25 miles further apart from one another than Jax/Orl. (We're sure that this change resulting in an extra D seat in Orl had nothing to do with this!)

And so the #FL5 we know and love today was born. Critically, the Florida Supreme Court acknowledged two things:
1. #FL5 remained a clear racial gerrymander--drawn for no purpose but to pack enough Black voters in
2. It's impossible to draw a Jax/Tally #FL5 that's over 50% AA
11/

So, if this was the decision of the Florida Supreme Court in 2015, why is @GovRonDeSantis calling #FL5 unconstitutional today?

Answer: Because in 2016 and 2017, federal courts blew a hole in the Florida court's reasoning. 12/

The most important case to DeSantis's argument--and the least appreciated on #ET generally--is Cooper v. Harris, the 2017 SCOTUS case that struck down #NC1 and #NC12 as unconstitutional racial gerrymanders. Here's a link to that decision--worth a read: 13/ supremecourt.gov/opinions/16pdf…

In the Cooper case, North Carolina had drawn a seat (#NC1) with the sole purpose of maximizing its Black vote. The seat cut through cities and counties, dividing white precincts from Black precincts without regard to traditional districting principles. 14/

The Supreme Court--with liberal Justice Kagan writing--held that this type of racial gerrymandering is not permissible unless the state satisfies strict scrutiny. In layman's terms, the court said states aren't allowed to draw these districts except when *required* by the VRA 15/

And when is racial gerrymandering required by the VRA? *Only* when 3 factors ("the Gingles factors") are *all* met:
1. 50% VAP within a compact area
2. Minority is politically cohesive
3. White bloc voting will defeat the minority candidate of choice without the seat

16/

The presence of all 3 Gingles factors is essential.

Without all 3 being met, there is no "VRA seat" (we election nerds commonly call any maj-min seat a "VRA seat," but only seats meeting all 3 are legally protected).

And without all 3, you can't racially gerrymander. 17/

SCOTUS went on to find that there wasn't white bloc voting in NC (whites in Durham are liberal!), and struck the seat down.

But the important takeaway for Florida is the Court's strong conclusion that race-based gerrymandering isn't allowed outside this narrow exception. 18/

Further, SCOTUS rejected NC's argument that it may racially gerrymander to draw a "crossover district"--aka, a plurality-Black district like #FL5. Justice Kagan called the argument that a district under 50% Black was VRA-protected "a pure error of law." 19/

One last nugget from SCOTUS before we get back to DeSantis: Kagan clarified that one sign of a racial gerrymander is "conflict with traditional districting principles" and "splitting counties and precincts" along racial lines. Hmm....what Florida seat does that sound like? 20/

Further, we won't get into it here, but a lower federal court struck down racially-gerrymandered #VA3 along similar reasoning in early 2016, about 6 months after the Florida Supreme Court drew racially-gerrymandered #FL5. 21/ richmond.com/news/virginia/…

So back to Florida: If you're DeSantis, and you want #FL5 thrown out, you need to give the now-conservative (and partisan) Florida Supreme Court a reason to overrule their liberal predecessors' decision in 2015 that Florida law mandates the seat be drawn. 22/

Isn't it helpful that the Supreme Court spelled out in plain English why a district that looked a heck of a lot like #FL5 is illegal **two years after** the Florida Supreme Court drew it into existence? 23/

The Florida Supreme Court held that the FDF's provision against dilution of the minority vote was a compelling interest sufficient to permit the racial gerrymander. But the court also acknowledged that no majority-Black seat could be drawn in North Florida! 24/

And, as SCOTUS held in Cooper, it's federally unconstitutional to racially gerrymander--carving up counties and precincts by race--to create a mere plurality seat. So even if the Florida Constitution "requires" #FL5, the U.S. Constitution prohibits it! 25/

Without being privy to DeSantis's legal memos, this is almost certainly what he meant when he said he had legal concerns about the Senate's map. He's going to argue that FL-5 is federally illegal for the exact reasons NC-1 was, and SCOTUS has already done the work for him. 26/

DeSantis's argument would likely fail before a liberal court. The Florida Supreme Court in 2015 read a retrogression standard, equivalent to the VRA's section 5, into the FDF. Liberal judges would use this retrogression principle as a basis to justify a racial gerrymander. 27/

But the conservative FL SC has two straightforward ways to toss this argument. First, it could hold that the Cooper decision--ever so conveniently 2 years after the FL SC decision--overruled the FL SC's holding that the FDF requires gerrymandering to create plurality seats. 28/

Second, it could hold that the U.S. Supreme Court abandoned the retrogression standard in Shelby County v. Holder. Florida's 2012 districts were drawn before Shelby County, so the court could reason that what was permissible in '12 isn't in '22. 29/

Either way, DeSantis is well-positioned to argue to justices that he appointed that #FL5 looks, walks, and quacks exactly like a seat that SCOTUS threw out in '17. He'd love to keep it, but he took an oath to uphold the U.S. Constitution, and the Constitution says no. 30/30

One more great point here: even if the FL SC upholds #FL05 under FDF, Florida's conservative federal courts could strike it down under federal law. Federal judges might not consider state law a compelling interest. 31/30

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