Black Voters Matter Capacity Building Institute, Inc. v. Secretary, Florida Department of State

Supreme Court of Florida
____________

No. SC2023-1671
____________

BLACK VOTERS MATTER CAPACITY BUILDING INSTITUTE,
INC., et al.,
Petitioners,

vs.

SECRETARY, FLORIDA DEPARTMENT OF STATE, et al.,
Respondents.

July 17, 2025

MUÑIZ, C.J.

This case involves a challenge to Florida’s 2022 congressional

districting plan. The plaintiffs allege that the plan violates the

Florida Constitution by failing to retain a two-hundred-mile-long

congressional district encompassing several communities of black

voters across North Florida. We uphold our state’s congressional

districting plan, because the federal Equal Protection Clause

prohibits the racially gerrymandered district that the plaintiffs

demand.
I

The plaintiffs in this case, petitioners here, are civic

organizations and individual voters who challenge Florida’s 2022

congressional districting plan (the Enacted Plan), Chapter 2022-

265, Laws of Florida, under a provision of our state constitution

known as the Fair Districts Amendment (FDA). Art. III, § 20, Fla.

Const. The FDA says, among other things, that “[d]istricts shall not

be drawn . . . to diminish [racial and language minorities’] ability to

elect representatives of their choice.” Id. § 20(a). The plaintiffs’

claim is straightforward: the congressional districting plan in effect

before the Enacted Plan included a North Florida district in which

black voters were able “to elect representatives of their choice,” as

our Court has interpreted that phrase in the FDA; now, under the

Enacted Plan, there is no North Florida district in which black

voters (as a politically cohesive group) have that ability.

The Legislature and the Secretary of State, respondents here,

defend the Enacted Plan principally on the ground that the North

Florida district sought by the plaintiffs would be a racial

gerrymander in violation of the Equal Protection Clause, which

prohibits race-based districting without sufficient justification

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(meaning that a district drawn predominantly for racial reasons

would have to satisfy the Supreme Court’s strict scrutiny test,

which we later describe in detail). We stress at the outset that the

plaintiffs allege neither intentional discrimination nor violations of

the federal Voting Rights Act.

In the proceedings below, the trial court declared the Enacted

Plan unconstitutional under the FDA, enjoined its use, and ordered

the Legislature to adopt a remedial map. The First District Court of

Appeal reversed, holding that the plaintiffs failed to prove the

existence of a minority community in North Florida sufficiently

compact to merit protection under the FDA. Sec’y of State Byrd v.

Black Voters Matter Capacity Bldg. Inst., Inc., 375 So. 3d 335, 355-

56 (Fla. 1st DCA 2023). We have exercised our discretion to review

that decision, which expressly construed a provision of the Florida

Constitution. Art. V, § 3(b)(3), Fla. Const.

II

As we explain in more detail later, the parties in this case

chose to forgo a trial. Instead, they stipulated to facts necessary to

apply this Court’s precedents interpreting the FDA, and the

litigation focused primarily on whether the Legislature could honor

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those precedents without running afoul of the Equal Protection

Clause—an issue that our Court has not previously addressed. The

Secretary, but not the Legislature, also urged an alternative

interpretation of the FDA that would have made it unnecessary to

address any Equal Protection Clause issue. We will therefore begin

by explaining this Court’s FDA precedents in sufficient detail to

understand the parties’ competing arguments about the validity of

the Enacted Plan.

A

The Fair Districts Amendment is the product of a citizens’

initiative that the people of Florida approved in 2010. It imposes

identical substantive standards for drawing our state’s

congressional districts (article III, section 20, Florida Constitution)

and legislative districts (article III, section 21, Florida Constitution).

The FDA brought substantial change to our state’s districting

practices, most notably by prohibiting intentional political

favoritism and regulating the shape of districts.

The FDA sets out its standards in two subsections.

Subsection (a) says districts may not be drawn “with the intent to

favor or disfavor a political party or an incumbent”; “districts shall

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not be drawn [1] with the intent or result of denying or abridging

the equal opportunity of racial or language minorities to participate

in the political process or [2] to diminish their ability to elect

representatives of their choice”; and “districts shall consist of

contiguous territory.” Art. III, § 20(a), Fla. Const. Subsection (b)

says “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.”

Id. § 20(b).

The subsection (b) standards are mandatory “[u]nless

compliance with [those standards] conflicts with the standards in

subsection (a) or with federal law.” Subsection (c) of the FDA says

that “[t]he order in which the standards within subsections (a) and

(b) . . . are set forth shall not be read to establish any priority of one

standard over the other within that subsection.” Id. § 20(b), (c).

As shown above, the FDA includes two clauses that expressly

address “racial or language minorities.” First, “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.” Id. § 20(a). We have said that this clause

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prevents “impermissible vote dilution,” a concept derived from

federal voting rights law. In re Senate Joint Resol. of Legis.

Apportionment 1176 (Apportionment I), 83. So. 3d 597, 619 (Fla.

2012). “[M]anipulation of district lines can dilute the voting

strength of politically cohesive minority group members, [either] by

fragmenting the minority voters among several districts where a

bloc-voting majority can routinely outvote them, or by packing them

into one or a small number of districts to minimize their influence

in the districts next door.” Johnson v. De Grandy, 512 U.S. 997,

1007 (1994) (citing Voinovich v. Quilter, 507 U.S. 146, 153-54

(1993)). This case does not require us to revisit or add to our

precedents on the meaning and application of this clause of the

FDA.

The second clause, the Non-Diminishment Clause, is the one

at issue here. It reads: “[D]istricts shall not be drawn . . . to

diminish [racial or language minorities’] ability to elect

representatives of their choice.” Art. III, § 20(a), Fla. Const. We

have held that this clause includes a prohibition on districting

changes that have the effect of diminishing minority voters’ ability

to elect representatives of their choice, regardless of whether the

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Legislature acted with a discriminatory purpose. Apportionment I,

83 So. 3d at 623-27. No party has asked us to reconsider that

conclusion.

Our precedent describes the Non-Diminishment Clause as a

safeguard against impermissible “retrogression” in minority voting

strength. Id. at 620. In the federal voting rights context,

retrogression means a worsening “in the position of racial minorities

with respect to their effective exercise of the electoral franchise.”

Beer v. United States, 425 U.S. 130, 141 (1976). In turn, the

“effective exercise of the electoral franchise,” id., relates to “the

ability of minority groups to participate in the political process and

to elect their choices to office,” id. (quoting H.R. Rep. No. 94-196, at

60 (1975)).

Under our precedent, to determine whether a newly enacted

districting plan complies with the Non-Diminishment Clause, one

must compare the new plan to the plan that preceded it—the

benchmark plan. The first step is to identify districts in the

benchmark plan where “racial or language minorities” were able to

elect representatives of their choice—call them “ability-to-elect

districts.” The second step is to determine whether, relative to that

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benchmark, the new plan diminishes minority voters’ ability to elect

representatives of their choice. Of course, the notion of a racial or

language minority group having representatives of “their choice”

requires that there be some level of voting cohesion among the

relevant minority group. The existence and extent of that cohesion

within a benchmark or new district is something that must be

proven; it cannot be assumed.

Our Court has interpreted the Non-Diminishment Clause as

implicitly requiring a “functional analysis” to determine whether a

racial or language minority group has, or can be expected to have,

an ability to elect representatives of their choice in a district—an

expectation that we have described as “whether a district is likely to

perform for minority candidates of choice.” Apportionment I, 83 So.

3d at 625. As we have explained it, a functional analysis requires

“consideration not only of the minority population in the districts,

or even the minority voting-age population in those districts, but of

political data and how a minority population group has voted in the

past.” Id. Indeed, that analysis must also consider the voting

patterns of a district’s nonminority voters. See League of Women

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Voters of Fla. v. Detzner (Apportionment VIII), 179 So. 3d 258, 286

n.11 (Fla. 2015).

Under our Court’s precedents, whether a minority group

constitutes a voting-age-population majority in a district is not

dispositive of whether the group is or will be able to elect its

candidates of choice in that district. The analysis instead assesses

a cohesive minority group’s effective voting strength, especially by

asking whether the group controls the relevant primary election and

the general election in the district under consideration. See, e.g.,

id.; In re Senate Joint Resol. of Legis. Apportionment 2-B

(Apportionment II), 89 So. 3d 872, 889 (Fla. 2012). It was against

this backdrop that our Court said that the Non-Diminishment

Clause means that “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.” Apportionment I, 83 So. 3d

at 625.

In Apportionment I, our Court acknowledged the possibility of a

conflict between compliance with the Non-Diminishment Clause

and adherence to the FDA’s race-neutral districting principles. As

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noted above, the FDA says that its subsection (b) criteria—

compactness, population equality, and use of political and

geographical boundaries—must be complied with unless there is a

conflict with the subsection (a) standards or with federal law. Art.

III, § 20(b), Fla. Const. Given the constitutional text, we observed

that “in certain situations, compactness and other redistricting

criteria, such as those codified in tier two of article III, section 21, of

the Florida Constitution, will be compromised in order to avoid

retrogression.” Apportionment I, 83 So. 3d at 626.

We conclude this introductory summary of our Court’s

precedents by observing that, to determine the meaning of the FDA,

our Apportionment I decision relied heavily on jurisprudence

interpreting Sections 2 and 5 of the federal Voting Rights Act. Id. at

620. The decision looked to Section 2 on the issue of vote dilution

and to Section 5 on the issue of diminishment or retrogression.

Our Court gave two reasons for doing so. First, we noted that the

text of the FDA mirrored parts of the text of the Voting Rights Act.

Id. at 619-21. Second, we said that “all parties to th[e]

proceeding”—a group that included the Attorney General and both

chambers of the Legislature—“agree that Florida’s constitutional

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provision now embraces the principles enumerated in Sections 2

and 5 of the VRA.” Id. at 620.

Our Apportionment I decision did not discuss evidence of the

public’s likely understanding of the relationship between the Voting

Rights Act and the FDA. We came close to addressing the issue in a

single sentence. Citing only an amicus brief filed in another case,

we said: “Before its placement on the ballot and approval by the

citizens of Florida, sponsors of this amendment, including the

Florida State Conference of NAACP Branches (NAACP) and

Democracia Ahora, acknowledged that Florida’s provision tracked

the language of Sections 2 and 5 and was perfectly consistent with

both the letter and intent of federal law.” Id.

The parties in this case have not offered their own evidence or

analysis of the public’s likely understanding of the meaning of the

FDA provisions at issue. Nor have the parties questioned our

Court’s past reliance on Voting Rights Act jurisprudence to guide

the interpretation of the FDA. Accordingly, we will take this aspect

of our precedents as we find it.

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B

This case centers on changes that the Enacted Plan made to

Congressional District 5 (Benchmark CD 5) in the districting plan

that was in effect from 2016 until 2022. Our Court ordered the

adoption of that plan at the conclusion of litigation in 2015. The

Almanac of American Politics described Benchmark CD 5 as having

the shape of a “barbell.” Richard E. Cohen, et al., The Almanac of

American Politics 2022, at 452 (2021). It stretched over two

hundred miles across the Florida/Georgia border to encompass the

black populations in Duval County in the east and Leon and

Gadsden Counties in the west; 60% of the district’s population was

concentrated at the eastern end and 30% at the western end. The

district’s other residents came from the sparsely populated counties

in between. Under 2020 census figures, the black voting-age

population (BVAP) of Benchmark CD 5 was 46.2%. In the trial

court, the parties stipulated that, under the test established by this

Court’s precedents, “Black voters had the ability to elect the

candidate of their choice in the district.”

Given the district’s importance to the case, it is necessary to

understand how Benchmark CD 5 came to be. Its origins trace to a

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district that was in effect only for the 1992 and 1994 elections and

had been drawn by a federal court after the Legislature failed to

adopt its own plan. The court purported to have been guided by

two “primary factors”: population equality and “the racial fairness of

the plan.” DeGrandy v. Wetherell, 794 F. Supp. 1076, 1083-84

(N.D. Fla. 1992). It mandated a plan with a horseshoe-shaped

district that formed “a single serpentine corridor cutting through 39

municipalities and 14 counties” to include black voters from

Gainesville, Jacksonville, Daytona Beach, and Orlando. Johnson v.

Mortham, 915 F. Supp. 1529, 1550 (N.D. Fla. 1995). At its creation,

the district had a BVAP of 50.6%, and it elected Corrine Brown to

Congress. Former Congresswoman Brown would go on to represent

the district (in various incarnations) continuously from 1992 until

the 2016 election.

In 1996, voters challenged the district as a prohibited racial

gerrymander under Shaw v. Reno, 509 U.S. 630, 657 (1993), which

the Supreme Court had decided the year after the district was

created. The plaintiffs won. The Legislature then drew a

replacement district that stretched north to south from Jacksonville

to Orlando. The district would go on to retain that basic

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configuration for the next twenty years. At its creation, this version

of the district had a BVAP of 42.3%. Martinez v. Bush, 234 F. Supp.

2d 1275, 1308 (S.D. Fla. 2002).

The Almanac of American Politics described the district as

“grotesquely shaped,” “a lengthy ribbon that stretches more than

140 miles from Jacksonville to Orlando, and cuts across much of

this swampy terrain to connect various African-American enclaves

throughout north and central Florida.” Richard E. Cohen, et al.,

The Almanac of American Politics 2016, at 410, 434 (2015). The

2002 version of the district had a BVAP of 46.9% at its creation and

49.9% under 2010 census figures. A lawsuit was never brought to

test the Jacksonville to Orlando district’s constitutionality under

Shaw. Albeit in the context of a federal voting rights lawsuit, the

court in Martinez found that Corrine Brown was “the candidate of

choice” of black voters in the district and that the district as drawn

in 2002 likely would continue to “perform” for black voters.

Martinez, 234 F. Supp. 2d at 1300-01.

The Jacksonville to Orlando district, still represented by

Corrine Brown, was in effect when Florida’s voters approved the

FDA in 2010. The Legislature’s 2012 congressional districting plan

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retained the district’s basic configuration. A lawsuit was then filed,

alleging that Brown’s district violated the FDA’s compactness

requirement and its prohibition on intentional partisan favoritism.

The trial court agreed. The Legislature drew a remedial map that

made modest changes to the district, and the trial court approved

the remedy. An appeal in this Court followed.

Our Court rejected the Legislature’s remedial plan. We held

that a district that retained a Jacksonville to Orlando configuration

would not cure the partisan gerrymander. But, because the Court

and the parties agreed that any remedy would have to satisfy the

Non-Diminishment Clause as interpreted by our Court in

Apportionment I, there was only one alternative configuration that

would continue to enable black voters to “elect representatives of

their choice”: “[T]he trial testimony was clear that the only way to

get anywhere close to 45% BVAP in North Florida was a

Jacksonville to Orlando district or a Jacksonville to Tallahassee

district.” Romo v. Detzner, No. 2012CA000412, 2014 WL 4261829,

at *1 n.1 (Fla. 2d Cir. Ct. Aug. 22, 2014), rev’d, League of Women

Voters of Fla. v. Detzner (Apportionment VII), 172 So. 3d 363 (Fla.

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2015); see also Apportionment VII, 172 So. 3d at 403 (“[A]n East-

West orientation is the only alternative option . . . .”).

After concluding that an east to west district would satisfy the

Non-Diminishment Clause, our Court sent the plan back to the

Legislature. Apportionment VII, 172 So. 3d at 402-06. Justices

Canady and Polston dissented. They agreed that the Non-

Diminishment Clause protected the Corrine Brown district, but they

argued that an east to west replacement would be substantially less

compact and that the Court had disregarded evidence of the

potential for retrogression. Id. at 422 (Canady, J., dissenting).

When the Legislature failed to adopt a remedy, and after

additional proceedings in the trial court, our Court imposed an east

to west district for use beginning in the 2016 election.

Apportionment VIII, 179 So. 3d at 272. Our decision adopting the

district reiterated that doing so would “not diminish the ability of

black voters to elect a candidate of choice.” Id. at 273. The result

was Benchmark CD 5, which at the time of its creation had a BVAP

of 45.1% under 2010 census figures.

Congressional elections were held in Benchmark CD 5 in

2016, 2018, and 2020. Each time, the district elected Al Lawson to

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Congress. In the proceedings below, the parties stipulated that

“Lawson was the candidate of choice for Black voters in the

district.” They further stipulated that black voters in the district

were politically cohesive and that voting in the district’s general

elections was racially polarized.

C

The Legislature’s post-2020 census congressional redistricting

process began in late 2021. Given the demographics and voting

performance of Benchmark CD 5, applying our Court’s precedents

would have resulted in the conclusion that the district was a

protected “ability-to-elect” district under the Non-Diminishment

Clause. But in February 2022, the governor’s general counsel wrote

the House redistricting committee to convey legal objections to

drawing a new district configured like Benchmark CD 5. He argued

that racial considerations would predominate in drawing such a

district; that the district would not satisfy strict scrutiny; and that,

in any event, the Non-Diminishment Clause should be understood

to protect only benchmark districts in which the relevant minority

group makes up more than 50% of the voting-age population—a

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criterion that Benchmark CD 5, with a 46.2% BVAP under 2020

census figures, did not meet.

To address the Governor’s concerns, the Legislature took the

unusual step of passing a redistricting bill with a primary plan and

a backup plan. The primary plan (Plan 8019) replaced Benchmark

CD 5 with a district located entirely within Duval County and

having a 35% BVAP. The backup plan (Plan 8015), which would

take effect only if the primary plan were to be struck down by a

court, included a district substantially the same as Benchmark CD

5. The Governor vetoed the bill, explaining that “[a]s presented in

both the primary and secondary maps enacted by the Legislature,

Congressional District 5 violates the Equal Protection Clause of the

Fourteenth Amendment to the U.S. Constitution.”

Eventually, the Legislature passed and the Governor signed

the Enacted Plan. It allocates the population of Benchmark CD 5 to

four North Florida districts, none of which has a BVAP higher than

32%. The parties have stipulated that “[n]one of the Enacted

districts in North Florida are districts in which Black voters have

the ability to elect their preferred candidates.”

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D

The plaintiffs sued, and the parties conducted extensive

discovery, but they ultimately agreed to forgo a trial. Instead, the

parties stipulated to the above-described facts about the

demographics and voting performance of Benchmark CD 5 and of

the Enacted Plan’s North Florida districts. Then, they jointly

presented to the trial court a series of outcome-determinative legal

questions.

Those questions were (1) whether the plaintiffs must satisfy

the preconditions in Thornburg v. Gingles, 478 U.S. 30 (1986), for

the Non-Diminishment Clause to apply—a question that goes to

whether that provision protects only districts in which the relevant

minority group is compact and a majority of the voting-age

population; (2) whether drawing a non-diminishing district in North

Florida would require the Legislature to violate the Equal Protection

Clause; and (3) whether the “public official standing doctrine”

precludes the defendants from raising Equal Protection Clause-

based defenses to complying with the Non-Diminishment Clause.

The parties also asked the trial court to rule on whether the Non-

Diminishment Clause facially violates the Equal Protection Clause,

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but that issue has been abandoned. The parties agreed that, if the

plaintiffs were to prevail on the disputed legal questions, “an

appropriate remedy to the diminishment in North Florida would join

the Black community in Duval County with the Black community in

Leon and Gadsden Counties.”

The trial court ruled in favor of the plaintiffs on every

contested legal issue. It held, among other things, that the Equal

Protection Clause would not prohibit drawing a remedial district

like Benchmark CD 5. Given its legal conclusions and the

stipulated facts about Benchmark CD 5 and the Enacted Plan, the

trial court declared the Enacted Plan to be in violation of the Non-

Diminishment Clause, enjoined the use of the Enacted Plan, and

returned congressional districting to the Legislature to adopt a

remedial plan.

Sitting en banc, the First District Court of Appeal reversed the

trial court’s judgment, with two judges dissenting. The district

court majority first concluded that this Court’s past

“pronouncements” about the meaning and application of the Non-

Diminishment Clause had not established binding precedent. Byrd,

375 So. 3d at 349. It then held that “[t]he baseline or benchmark

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from which to measure diminishment starts with a naturally

occurring, geographically compact community with inherent voting

power—not a district drawn with the purpose of cramming in

enough voters to meet a BVAP target.” Id. at 354. The district

court faulted the plaintiffs for not proving at the threshold that they

were part of a “naturally occurring community” that had “achieved

some cohesive voting power under a legally enforceable district.” Id.

at 355-56. And the court concluded that the trial court should

have dismissed the plaintiffs’ complaint for failure to establish a

benchmark district protected by the Non-Diminishment Clause. Id.

at 356.

In an opinion concurring in the judgment, Chief Judge

Osterhaus said that he would have ruled against the plaintiffs “for

federal equal protection-related reasons.” Id. at 356 (Osterhaus,

C.J., concurring). “Because the FDA’s diminishment clause would

apply an overtly race-based redistricting scheme,” the chief judge

reasoned, “the Legislature and Governor had to decide in 2022 if

federal law permitted them to divvy up North Florida voters into

districts by race.” Id. at 358. Chief Judge Osterhaus said that “the

FDA’s diminishment clause could only require the purposeful

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redrawing of a black-voter performing district across North Florida

if evidence showed a compelling remedial need for it.” Id. at 361.

But, given “the evidentiary vacuum” on the facts necessary to

satisfy strict scrutiny, he concluded that the Equal Protection

Clause would not allow a court to impose a Non-Diminishment

Clause remedy in this litigation. Id.

III

Before we turn to the merits of this case, we must address the

First District’s mistaken view that it was not bound by this Court’s

decisions interpreting and applying the Non-Diminishment Clause

in Apportionment I, II, VII, and VIII. As we just explained, the First

District held that the plaintiffs failed to prove at the threshold that

Benchmark CD 5 was a protected “ability-to-elect” district. The

district court made no effort to square that conclusion with the

retrogression analysis we established in Apportionment I or with

Apportionment VII. In the latter case, every justice of this Court

agreed that former Congresswoman Brown’s district—which would

not have met the First District’s “ability-to-elect” test—was

protected by the Non-Diminishment Clause.

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The district court did not expressly reject the foundational

premise that “[w]here an issue has been decided in the Supreme

Court of the state, the lower courts are bound to adhere to the

Court’s ruling when considering similar issues, even though the

court might believe that the law should be otherwise.” State v.

Dwyer, 332 So. 2d 333, 335 (Fla. 1976). Instead, unprompted by

the parties, the First District deemed our Apportionment I and II

decisions not binding because we issued them in an original

proceeding under article III, section 16 to conduct a facial review of

state legislative districts, rather than in our appellate capacity.

Byrd, 375 So. 3d at 347. And the First District convinced itself that

our Court “in essence viewed Apportionment I and Apportionment II

as decisions of limited application, with no real purchase in a direct

appeal from a trial court judgment on an as-applied FDA challenge

to congressional districts.” Id. at 348 (citations omitted).

The First District’s reasoning ignored what our Court said and

did in our earlier decisions. Near the end of our opinion in

Apportionment I, we said: “This Court understands that its

obligations are not just to rule on the facial validity of the standards

in this case, but to ensure that this decision charts a reliable

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course for the Legislature and the judiciary to follow in the future.”

Apportionment I, 83 So. 3d at 684. Then, we applied our

Apportionment I precedent in deciding Apportionment VII and VIII,

which involved litigation over an as-applied challenge to a

congressional districting plan.

In Apportionment VII, our Court expressly invoked the

retrogression analysis established in Apportionment I to explain why

a Jacksonville to Tallahassee district would not diminish minority

voting strength relative to the benchmark Jacksonville to Orlando

district. 172 So. 3d at 405 n.13. In Apportionment VIII, we

corrected the parties for not following our Court’s Apportionment I

“test for retrogression.” 179 So. 3d at 280, 285-87, 286 n.11. So,

in addition to flouting the substance of our decisions, the First

District disregarded our Court’s precedent on precedent.

Apart from that, the First District’s thinking is unpersuasive

as a matter of first principles. The district court cited no authority

for the proposition that decisions this Court issues in its original

jurisdiction are not binding on lower courts. And there is no reason

why such decisions are not binding. The district courts’ duty to

follow our precedents stems from the hierarchical structure

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established in our constitution and from this Court’s express

authority to review certain district court decisions, including those

that conflict with our decisions or that expressly construe

constitutional provisions. Art. V, § 3(b)(3), Fla. Const. The

authority of our decisions does not depend on the procedural

posture of the cases in which they are issued. Indeed, as a

practical justification for demanding lower courts’ adherence to our

decisions, our Court has emphasized fairness to litigants and the

benefits of regularity and predictability in lower court litigation.

Hoffman v. Jones, 280 So. 2d 431, 434 (Fla. 1973) (“To allow a

District Court of Appeal to overrule controlling precedent of this

Court would be to create chaos and uncertainty in the judicial

forum, particularly at the trial level. Ever since the District Court

rendered its opinion [attempting to overrule precedent,] there has

been great confusion and much delay . . . .”); Hernandez v.

Garwood, 390 So. 2d 357, 359 (Fla. 1980) (“[The trial judge] is

wrong in asserting his personal construction of the law in the face

of authoritative determinations to the contrary by this Court, and

his exercise in judicial independence has cost these litigants and

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the judicial system considerable time and money which should not

have been expended.”).

The First District was also wrong to downplay the reliability of

the decisions we issue when we review state legislative districts

under article III, section 16. The constitution requires us in those

proceedings to “permit adversary interests to present their views.”

Art. III, § 16(c), Fla. Const. The process culminates in our issuance

of a “declaratory judgment.” Id. And the constitution says that a

judgment determining an apportionment to be valid “shall be

binding upon all the citizens of the state.” Id. § 16(d). The

decisions that emanate from the article III, section 16 process are

informed by the adversarial process, they are thoroughly

considered, and they are precedential.

Even when a district court disagrees with a decision of this

Court, it is the lower court’s duty to follow our precedent. In

appropriate cases, the district court may pass upon and certify a

question of great public importance for our review. We reject the

First District’s contrary approach.

Finally, we remind all district courts of their constitutional

authority to certify for this Court’s direct review trial court

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judgments in which an appeal is pending and which are of “great

public importance” or “have a great effect on the proper

administration of justice throughout the state.” Art. V, § 3(b)(5),

Fla. Const. The First District followed that path in 2015 when it

certified to our Court the trial court judgment invalidating the

Legislature’s 2012 congressional districting plan. Apportionment

VII, 172 So. 3d at 387. The parties in this case jointly asked the

First District do the same here, to no avail. Had the district court

honored the parties’ request, this dispute could have been resolved

before the 2024 election cycle.

IV

The parties’ arguments frame two distinct issues for our Court

to decide. The first involves the Secretary’s argument that we

should recede from our Court’s precedents on the test for

identifying which districts in a benchmark plan are protected by the

Non-Diminishment Clause. The second is about the relationship

between the Non-Diminishment Clause and the Equal Protection

Clause. We will take up these issues in turn.

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A

Under our precedents, the first step in applying the Non-

Diminishment Clause is to identify districts in the benchmark plan

where racial or language minorities had the ability to elect

representatives of their choice. In Apportionment VIII, we explained

that our “test” for identifying those districts considers three

variables: whether the minority voters encompassed within a

benchmark district vote cohesively; whether the minority candidate

of choice is likely to prevail in the relevant contested party primary;

and whether that candidate is likely to prevail in the general

election. 179 So. 3d at 286 n.11. The test is not always easy to

apply—in some cases, it can be difficult to measure a minority

group’s cohesiveness, to identify a group’s “representatives of

choice,” or to assess a group’s functional voting strength, which of

course depends in part on nonminority voting patterns. See

generally Nathaniel Persily, The Promise and Pitfalls of the New

Voting Rights Act, 117 Yale L.J. 174 (2007). But here, the parties

have stipulated that Benchmark CD 5 was a protected ability-to-

- 28 -
elect district under our Court’s existing test. 1 Understandably, the

plaintiffs ask us to adhere to our precedent on that issue.

The Secretary (not the Legislature) advocates a different test.

He says that, properly understood, the Non-Diminishment Clause

protects only groups of minority voters that are sufficiently large

and geographically compact to constitute a voting-age-population

majority in a reasonably configured district. These criteria make up

“precondition one” from the test the Supreme Court uses in vote

dilution cases under Section 2 of the Voting Rights Act. Gingles,

478 U.S. at 50-51; Wis. Legis. v. Wis. Elections Comm’n, 595 U.S.

398, 402 (2022); Bartlett v. Strickland, 556 U.S. 1, 11 (2009). 2 In

such cases, the plaintiffs seek to compel the creation of a majority-

minority district in addition to any that the jurisdiction has already

1. Given the parties’ stipulations, our decision today breaks
no new ground on how to conduct a functional analysis of a
minority group’s cohesion, candidate preferences, or voting
strength.

2. The other two Gingles preconditions are that the minority
group must be politically cohesive, and a majority group must vote
sufficiently as a bloc to enable it usually to defeat the minority
group’s preferred candidate. If the preconditions are established,
the court then considers the totality of circumstances to determine
whether the political process is equally open to minority voters.
Wis. Legis., 595 U.S. at 402.

- 29 -
drawn. The role of Gingles precondition one is to provide “an

objectively reasonable alternative practice as a benchmark for the

dilution comparison.” Holder v. Hall, 512 U.S. 874, 887 (1994)

(O’Connor, J., concurring in part and concurring in the judgment).

If it is not possible to draw an additional district that meets the

Gingles preconditions, the plaintiffs in a vote dilution case under

Section 2 cannot prove that the challenged districting scheme

dilutes their voting strength.

The Secretary offers two principal arguments in support of his

interpretation of the Non-Diminishment Clause. First, he says that

the voters who approved the FDA would have understood that

minority groups possess the ability to elect their representatives of

choice only when they satisfy the Gingles precondition one criteria.

Second, he says that a 2006 amendment to the Voting Rights Act

incorporated Gingles precondition one into the test for triggering

protection under Section 5, making the same true for the Non-

Diminishment Clause.

We do not think the Secretary has demonstrated that our

Court’s existing test for identifying protected benchmark districts

under the Non-Diminishment Clause is clearly erroneous, the

- 30 -
threshold that must be met before we will consider whether to

recede from precedent. State v. Poole, 297 So. 3d 487, 507 (Fla.

2020) (explaining this Court’s approach to horizontal stare decisis).

The Secretary’s arguments do not purport to be based on the plain

language of the Non-Diminishment Clause. He has produced no

evidence that the framers or the voters understood the clause to

mean what he says it means. And he advances an interpretation of

the 2006 amendments to Section 5 that has no support in federal

case law or administrative practice—indeed, the argument is based

primarily on contested legislative history. See Persily, supra, at 191

(Among senators, “[o]n the fundamental question of what the major

new requirement in the law (the retrogression standard) meant, the

Republicans believed it only protected ‘naturally occurring majority-

minority districts,’ while the Democrats considered it to protect a

greater variety of districts with varying percentages of racial

minorities.”). Even if we were to accept the Secretary’s premise that

the Non-Diminishment Clause “mirrors Section 5,” legislative

history alone is not enough to cause us to reconsider what our

Court held in Apportionment I, II, VII, and VIII.

- 31 -
B

The ground we have covered so far establishes that, applying

this Court’s precedents, (1) Benchmark CD 5 was a protected

ability-to-elect district for black voters, and (2) the Enacted Plan

diminishes that ability to elect. But that does not resolve the

parties’ dispute over the validity of the Enacted Plan. When the

Legislature undertook the task of congressional redistricting after

the 2020 census, its obligation to comply with the Non-

Diminishment Clause was bounded by its superior obligation to

comply with the Equal Protection Clause. The remaining question

is whether the Legislature could have drawn new North Florida

districts that complied with both the Non-Diminishment Clause and

the Equal Protection Clause. Importantly, our precedents did not

address this aspect of the relationship between these provisions of

state and federal law.

1

The plaintiffs argue at the threshold that the “public official

standing doctrine” precludes the Legislature and the Secretary of

State from raising an Equal Protection Clause defense of the

Enacted Plan. That doctrine traces to our Court’s decision in State

- 32 -
ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers,

94 So. 681 (Fla. 1922). It stands for the proposition that “a public

official may not defend his nonperformance of a statutory duty by

challenging the constitutionality of the statute.” Crossings at

Fleming Island Cmty. Dev. Dist. v. Echeverri, 991 So. 2d 793, 797

(Fla. 2008).

The public official standing doctrine does not apply in this

case, because the government is defending a statute (i.e., the

Enacted Plan), not challenging one. And we decline to extend the

doctrine to the circumstances here, especially considering the

strong public interest in avoiding continued uncertainty over the

validity of Florida’s congressional districts. We must therefore

proceed to examine the Equal Protection Clause standards

governing a legislature’s consideration of race in making districting

decisions.

2

The Equal Protection Clause says that no State shall “deny to

any person within its jurisdiction the equal protection of the laws.”

Amend. XIV, § 1, U.S. Const. In the redistricting context, the

Supreme Court has interpreted this to mean that a “State may not

- 33 -
use race as the predominant factor in drawing district lines unless

it has a compelling reason.” Cooper v. Harris, 581 U.S. 285, 291

(2017). “Under the Equal Protection Clause, districting maps that

sort voters on the basis of race ‘are by their very nature odious.’ ”

Wis. Legis., 595 U.S. at 401 (quoting Shaw, 509 U.S. at 643).

If a district were to be challenged as a racial gerrymander, the

Equal Protection Clause inquiry would proceed in two steps,

focusing first on the legislature’s “predominant motive for the

design of the district as a whole.” Bethune-Hill v. Va. State Bd. of

Elections, 580 U.S. 178, 192 (2017). The threshold question would

be whether “race was the predominant factor motivating the

legislature’s decision to place a significant number of voters within

or without a particular district.” Id. at 187 (quoting Miller v.

Johnson, 515 U.S. 900, 916 (1995)). “The racial predominance

inquiry concerns the actual considerations that provided the

essential basis for the lines drawn, not post hoc justifications the

legislature in theory could have used but in reality did not.” Id. at

189-90.

The Supreme Court has said that race predominates in the

drawing of a district when a legislature “subordinate[s] traditional

- 34 -
race-neutral districting principles . . . to racial considerations.” Id.

at 187 (alteration in original) (quoting Miller, 515 U.S. at 916).

Importantly, “a conflict or inconsistency between the enacted plan

and traditional redistricting criteria is not a threshold requirement

or a mandatory precondition in order for a challenger to establish a

claim of racial gerrymandering.” Id. at 190. “[I]f race for its own

sake is the overriding reason for choosing one map over others, race

still may predominate.” Id.

The second step of the Equal Protection Clause analysis

applies once it has been shown that “racial considerations

predominated over others.” Cooper, 581 U.S. at 292. At that point,

“the design of the district must withstand strict scrutiny.” Id.

(citing Bethune-Hill, 580 U.S. at 191). The Supreme Court recently

described strict scrutiny as a “daunting” examination that asks

whether a “racial classification is used to ‘further compelling

governmental interests’ ” and then “whether the government’s use

of race is ‘narrowly tailored’—meaning ‘necessary’—to achieve that

interest.” Students for Fair Admissions, Inc. v. President & Fellows

of Harv. Coll., 600 U.S. 181, 206-07 (2023) (citation omitted). The

Court added that the constitutional principle against “race-based

- 35 -
state action” is one that “cannot be overridden except in the most

extraordinary case.” Id. at 208.

If a government were to invoke remedying past or present

discrimination as a basis for drawing a race-predominant district,

the Supreme Court’s precedents would require it to identify the

discrimination with specificity in advance. Shaw v. Hunt, 517 U.S.

899, 909 (1996). And, before embarking on its program, the

government would need a “strong basis in evidence” to conclude

that remedial action is necessary. Id. at 910 (quoting Wygant v.

Jackson Bd. of Educ., 476 U.S. 267, 277 (1986)). In Hunt, the

Supreme Court concluded that a generalized “effort to alleviate the

effects of societal discrimination is not a compelling interest”

justifying race-based districting, because such an aim “provides no

guidance for a legislative body to determine the precise scope of the

injury it seeks to remedy.” Id. at 909-10 (citation omitted).

3

The plaintiffs maintain that the Legislature has a compelling

interest in complying with the Non-Diminishment Clause. But,

under the strict scrutiny framework we have just described, they

are wrong. The Non-Diminishment Clause is a component of the

- 36 -
FDA, which originated as a citizens’ initiative. There is no pre-

enactment record identifying the discrimination—past or present,

public or private—that the Non-Diminishment Clause is meant to

remedy. Nor is there pre-enactment documentation of the evidence

necessary to establish a proper connection between the

amendment’s means and ends. The obligation to comply with the

Non-Diminishment Clause would not of its own force give the

Legislature a compelling interest in drawing a race-predominant

district.

Were it to choose to draw a race-predominant district—

whether to comply with the Non-Diminishment Clause or for any

other reason—the Legislature itself would have to specify and justify

the compelling interest, with a fresh evidentiary record. Given the

Legislature’s constitutional role as the primary policy maker in our

state, whether to take on that burden is a matter for the

Legislature’s discretion. One thing is certain: The Legislature could

not establish a compelling interest for race-based districting simply

by pointing to the existence of the FDA.

It is true that the Supreme Court has long assumed that

states have a compelling interest in complying with Section 5 of the

- 37 -
Voting Rights Act. Bethune-Hill, 580 U.S. at 193. 3 But the Court

has done so because of the Supremacy Clause, which “obliges the

States to comply with all constitutional exercises of Congress’

power.” Bush v. Vera, 517 U.S. 952, 991-92 (1996) (O’Connor, J.,

concurring). As Justice Scalia explained, “[i]f compliance with § 5

were not a compelling state interest, then a State could be placed in

the impossible position of having to choose between compliance

with § 5 and compliance with the Equal Protection Clause.” League

of United Latin Am. Citizens v. Perry, 548 U.S. 399, 518 (2006)

(Scalia, J., concurring in the judgment in part and dissenting in

part).

Moreover, as Chief Judge Osterhaus explained in his

concurrence below, Section 5 and the Non-Diminishment Clause

stand on different footing. Congress enacted the Voting Rights Act

under its express authority to enforce the guarantees of the

3. The Supreme Court’s decision in Shelby County v. Holder
invalidated the coverage formula that the Voting Rights Act uses to
identify the jurisdictions subject to Section 5, but the Court did not
issue any holding on the constitutionality of Section 5 itself. 570
U.S. 529, 557 (2013). Section 5, which applied to only five counties
in Florida (none in North Florida), has been inoperative since the
Shelby County decision.

- 38 -
Fifteenth Amendment. Amend. XV, § 2, U.S. Const. It documented

the need for Section 5’s race-based remedies with a voluminous

record, including “reliable evidence of actual voting discrimination

in a great majority of the States and political subdivisions affected

by the new remedies of the [Voting Rights] Act.” South Carolina v.

Katzenbach, 383 U.S. 301, 329 (1966). And Congress aimed

Section 5 at jurisdictions where voting discrimination had

“persist[ed] on a pervasive scale.” Id. at 308. By contrast, the Non-

Diminishment Clause is untethered to documented findings of

intentional discrimination, past or present. And, unlike the Voting

Rights Act, the Non-Diminishment Clause lacks features tying its

continued existence to the persistence of intentional discrimination

in the future.

4

Against that backdrop, we can now assess the plaintiffs’

demand that we compel the Legislature to draw a district that will

avoid diminishing the ability of black voters in North Florida to

“elect representatives of their choice,” under our Court’s

interpretation of the Non-Diminishment Clause. As we have

explained, the Legislature’s obligation to comply with the Non-

- 39 -
Diminishment Clause is not sufficient justification to draw a race-

predominant district. Put differently, compliance with the Non-

Diminishment Clause is not a compelling governmental interest

under the test established in the Supreme Court’s Equal Protection

Clause jurisprudence. Accordingly, this case boils down to whether

it is possible to grant the plaintiffs their requested relief without

requiring the Legislature to draw a race-predominant district. That,

in turn, requires us to decide which party bore the burden of

persuasion on that issue. We conclude that the plaintiffs had that

burden.

The Enacted Plan, like any legislation, is entitled to a

presumption of validity. And “[t]he Legislature is of necessity, in the

first instance, to be the judge of its own constitutional powers.”

Cotten v. Leon Cnty. Comm’rs, 6 Fla. 610, 616 (1856) (quoting

Cincinnati, W. & Z.R. Co. v. Clinton Cnty. Comm’rs, 1 Ohio St. 77, 83

(1852)). We must presume that the Enacted Plan reflects the

Legislature’s considered judgment that its superior obligation under

the Equal Protection Clause prevented it from drawing a district to

avoid diminishment in North Florida. It is axiomatic that, under

- 40 -
the Supremacy Clause, “[s]tate legislation may not contravene

federal law.” Shelby Cnty., 570 U.S. at 542.

To establish the invalidity of the Enacted Plan, the plaintiffs

bore the burden of proving the possibility of drawing a North Florida

district that is both non-diminishing and non-race-predominant.

And the plaintiffs had to do so with an alternative map. As

indicated in our Apportionment I decision, it is not enough in the

redistricting context for challengers to identify a flaw in an enacted

districting plan and demand that the court send the Legislature

back to the drawing board. The plaintiffs were required to produce

an alternative plan proving that any asserted defect in the

Legislature’s plan is remediable. See, e.g., Apportionment I, 83 So.

3d at 648, 650, 653, 664. They did not satisfy that burden in the

proceedings below.

5

Ordinarily, the plaintiffs in a case like this would present an

alternative map at trial where the map and its creator would be

subject to adversarial testing. But, as we have explained, the

parties in this case chose to forgo a trial. The plaintiffs joined a

stipulation that, if they were to prevail on the legal questions the

- 41 -
parties had presented to the trial court, “an appropriate remedy to

the diminishment in North Florida would join the Black community

in Duval County with the Black community in Leon and Gadsden

Counties to create a North Florida district that satisfies

Apportionment I and the non-diminishment standard.” And the

plaintiffs acknowledged in their pretrial brief that the Legislature’s

“Plan 8015”—the backup district in the redistricting bill vetoed by

the Governor—was “the only remedial district that the parties have

contemplated thus far.” 4 Having chosen that path, the plaintiffs are

limited to the remedy that they proposed in the trial court.

The question, then, is whether the plaintiffs proved that the

Plan 8015 remedial district is not race-predominant. They did not.

As we have explained, the Supreme Court’s cases say that race

predominates in the drawing of a district when the legislature has

4. In a footnote in its final order, the trial court addressed the
Duval-only district included in Plan 8019 of the redistricting bill
that was vetoed by the Governor. In the trial court, the plaintiffs
did not advocate that district as a remedy, so we will not consider it
here. We note another judge’s observation that, “although the
Duval-only district itself is relatively compact, it creates a decidedly
noncompact surrounding district.” Common Cause Fla. v. Byrd,
726 F. Supp. 3d 1322, 1389 (N.D. Fla. 2024) (Winsor, J.,
concurring in part and concurring in the judgment).

- 42 -
“subordinated traditional race-neutral districting principles . . . to

racial considerations.” Miller, 515 U.S. at 916.

At a minimum, judged by our Court’s precedent, the Plan

8015 remedial district fails to comply with the FDA’s compactness

requirement. Plan 8015 made only modest changes to Benchmark

CD 5. And our Court already acknowledged in Apportionment VII

and VIII that Benchmark CD 5 was not compact. Apportionment VII,

172 So. 3d at 406; Apportionment VIII, 179 So. 3d at 272-73. Plus,

in Apportionment I we invalidated for non-compactness a state

senate district in the western panhandle that was shaped much like

Benchmark CD 5 and had similar numerical compactness scores.

83 So. 3d at 663-65.

The inference is inescapable that the Plan 8015 remedial

district subordinates the FDA’s race-neutral districting principles to

racial considerations. There is no plausible, non-racial explanation

for using a nearly two-hundred-mile-long land bridge to connect the

black populations of Jacksonville and Tallahassee. Nor can the

plaintiffs offer a plausible non-racial justification for the way the

proposed remedial district carves up those cities. The plaintiffs do

not maintain that the district’s non-compact shape is caused by a

- 43 -
desire to accommodate the FDA’s other criteria, including

population equality and use of political and geographical

boundaries. See art. III, § 20(c), Fla. Const. (no priority of

standards within each subsection). Indeed, Plan 8015’s remedial

district materially copies Benchmark CD 5, which itself was chosen

for the overriding purpose of drawing a black-voter-performing

district to replace the Corrine Brown district. See Apportionment

VII, 172 So. 3d at 403 (“In fact, an East-West orientation is the only

alternative option” to avoid diminishment.).

One important consequence of the FDA was to take away the

Legislature’s discretion to employ certain traditional districting

principles that might explain the shape of a district that only

appears race-predominant. For example, the Supreme Court

recognizes “incumbency protection” and “political affiliation” as

traditional districting principles, but the FDA prohibits those

considerations. Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254,

272 (2015). And, under the FDA, the traditional districting

principle of respect for communities of interest may not “come at

the expense of complying with constitutional imperatives, such as

compactness.” Apportionment I, 83 So. 3d at 664.

- 44 -
The plaintiffs invoke the trial court’s finding that race would

not predominate in the Plan 8015 version of Benchmark CD 5, but

that finding was predicated on legal error. At the threshold, the

trial court erred by allocating to the defendants the burden of proof

on non-predominance. The trial court also appeared to assume

that our Apportionment VII and VIII decisions had found Benchmark

CD 5 to be compact, when the opposite is true. Finally, as a

baseline for assessing compactness, the trial court compared

Benchmark CD 5 to a North Florida district in the Legislature’s

2002 congressional plan, which of course was not governed by the

FDA’s prohibitions on political favoritism and the drawing of non-

compact districts.

In fairness, we acknowledge our Court’s role in leading the

trial court astray. Benchmark CD 5 originated in an order from our

Court, and the things that make the Plan 8015 remedial district

race-predominant are equally true of Benchmark CD 5.

Unfortunately, we and the parties in Apportionment VII and VIII

proceeded as if any race-based districting decision that would pass

constitutional muster under Section 5 of the Voting Rights Act

would also survive strict scrutiny if undertaken to comply with the

- 45 -
Non-Diminishment Clause. See also Apportionment I, 83 So. 3d at

627 (cautioning against “racial gerrymandering,” but only in the

context of complying with the narrow tailoring requirement). For

the reasons we have explained, that is wrong. And we must not

compound our error in this case. Cf. Allen v. Milligan, 599 U.S. 1,

22 (2023) (rejecting the notion that “a State could immunize from

challenge a new racially discriminatory redistricting plan simply by

claiming that it resembled an old racially discriminatory plan”).

We respectfully disagree with our dissenting colleague’s

argument that we must remand this case to the trial court to give

the plaintiffs another opportunity to prove the possibility of drawing

a North Florida district that is both non-diminishing (measured by

our FDA precedents) and non-race-predominant. In the trial court

proceedings that already occurred, the plaintiffs proposed only one

remedy—a district configured like Benchmark CD 5. For the

reasons we have explained, the record leaves no doubt that such a

district would be race-predominant. The record also gives us no

reasonable basis to think that further litigation would uncover a

potentially viable remedy. The experience of Florida’s 2010 and

2020 redistricting cycles—not to mention the history of the Corrine

- 46 -
Brown district before the enactment of the FDA—shows that it is

likely impossible to draw a non-diminishing district (again, as our

precedents understand that concept) in North Florida without

subordinating the FDA’s mandatory race-neutral districting

standards. Under these circumstances—including the plaintiffs’

voluntary decision to litigate this case based on a stipulated

record—there is no justification for prolonging uncertainty over the

validity of the Enacted Plan.

Finally, we conclude by emphasizing that the defendants have

not asked us to decide whether every district intentionally drawn to

comply with this Court’s interpretation of the Non-Diminishment

Clause is necessarily race-predominant and therefore subject to

strict scrutiny, even if the district satisfies the FDA’s race-neutral

standards. That issue can wait for another day. Compare Ala.

Legis. Black Caucus, 575 U.S. at 275 (declining to express a view on

“whether the intentional use of race in redistricting, even in the

absence of proof that traditional districting principles were

subordinated to race, triggers strict scrutiny”), with

League of United Latin Am. Citizens, 548 U.S. at 517 (Scalia, J.,

concurring in the judgment in part and dissenting in part) (“[W]hen

- 47 -
a legislature intentionally creates a majority-minority district, race

is necessarily its predominant motivation[,] and strict scrutiny is

therefore triggered.”). In this case, the only remedial district the

plaintiffs proposed in the trial court does not comply with the FDA’s

compactness requirement, and the plaintiffs have not established a

non-race-based reason for the conflict.

V

The Legislature’s obligation to comply with the Equal

Protection Clause is superior to its obligation to comply with the

Non-Diminishment Clause as interpreted by our Court. The

plaintiffs did not prove the possibility of complying with both the

Non-Diminishment Clause and the Equal Protection Clause in

North Florida. Therefore, they did not meet their burden to prove

the invalidity of the Enacted Plan. We affirm the judgment below,

but not the district court’s reasoning.

It is so ordered.

COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
LABARGA, J., dissents with an opinion.
CANADY, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

- 48 -
LABARGA, J., dissenting.

The Enacted Plan violates the Non-Diminishment Clause of

the Florida Constitution because it “not just diminished,” it

“eliminated” Benchmark CD 5, “[a] historically performing

benchmark district for Black voters.” Sec’y of State Byrd v. Black

Voters Matter Capacity Bldg. Inst., Inc., 375 So. 3d 335, 381 (Fla.

1st DCA 2023) (Bilbrey, J., dissenting). The majority generally does

not dispute this conclusion, stating: “The ground we have covered

so far establishes that, applying this Court’s precedents,

(1) Benchmark CD 5 was a protected ability-to-elect district for

black voters, and (2) the Enacted Plan diminishes that ability to

elect.” Majority op. at 32.

And yet, despite the majority’s agreement that the Enacted

Plan diminishes the ability of black voters in Benchmark CD 5 to

elect representatives of their choice—thus, the Enacted Plan

violates the Fair Districts Amendment (FDA) approved by Florida

voters in 2010—the majority ultimately concludes that no relief is

warranted in this case because the Plan 8015 remedial district

violates the Equal Protection Clause. I dissent.

- 49 -
I.

Today’s decision is highly consequential. For the first time, in

response to the issue of equal protection being raised in the trial

court, this Court considers the relationship between the Non-

Diminishment Clause and the Equal Protection Clause. Given the

significance of this decision, the proper course is to remand this

case for a trial on the equal protection issue of non-predominance.

My disagreement with the majority opinion is two-fold. First, I

disagree with the majority’s allocation of the burden of proof to

Petitioners. Second, I disagree with the majority’s failure to remand

this case to the trial court.

A. Burden of Proof

Concluding that the trial court did not apply the correct

burden of proof to the plaintiffs, the majority states: “[T]he plaintiffs

bore the burden of proving the possibility of drawing a North Florida

district that is both non-diminishing and non-race-predominant.

And the plaintiffs had to do so with an alternative map.” Majority

op. at 41.

In the trial court, Respondents (then-Defendants) raised equal

protection as an affirmative defense to Petitioners’ non-

- 50 -
diminishment claim. Consequently, once Petitioners established

that the Enacted Plan violated the Non-Diminishment Clause, it

was Respondents’ burden to prove that no possible district could be

drawn that complies with both the FDA and the Equal Protection

Clause. See Miller v. Johnson, 515 U.S. 900, 916 (1995) (explaining

that the party alleging that race predominated in redistricting bears

the burden of proof on that issue); Custer Med. Ctr. v. United Auto.

Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010) (“The defendant has the

burden of proving an affirmative defense.”).

B. Trial Court Remand

The circumstances involved here warrant remanding this case

for trial. The majority observes that “[o]rdinarily, the plaintiffs in a

case like this would present an alternative map at trial where the

map and its creator would be subject to adversarial testing.”

Majority op. at 41. In this case, however, there was a joint

agreement to forgo a trial, and the trial court accepted multiple joint

stipulations. What is more, even this Court has its share of

responsibility in how this case evolved. The majority candidly

acknowledges:

- 51 -
In fairness, we acknowledge our Court’s role in
leading the trial court astray. Benchmark CD 5
originated in an order from our Court, and the things
that make the Plan 8015 remedial district race-
predominant are equally true of Benchmark CD 5.
Unfortunately, we and the parties in Apportionment VII
and VIII proceeded as if any race-based districting
decision that would pass constitutional muster under
Section 5 of the Voting Rights Act would also survive
strict scrutiny if undertaken to comply with the
Non-Diminishment Clause.

Majority op. at 45-46.

While I disagree with the majority’s allocation of the burden of

proof in this case, even following the majority’s reasoning, a remand

is the correct remedy because the majority has concluded that the

trial court relied on the wrong burden of proof. “Under the well-

established framework for appellate review, if an appellate court

determines that the trier of fact has placed the burden of proof on

the wrong party, the case should be remanded to the trier of fact to

reevaluate the evidence in light of the correct legal rule regarding

the burden of proof.” League of Women Voters of Fla. v. Detzner,

172 So. 3d 363, 423 (Fla. 2015) (Canady, J., dissenting). Indeed,

“[t]he weighing of the evidence under the applicable burden of proof

is the function of the trier of fact,” and “[t]hat function should not

be usurped by an appellate court.” Id. Because “[t]he Supreme

- 52 -
Court has recognized . . . that ‘fact finding is the basic

responsibility of [trial] courts, rather than appellate courts,’ . . .

‘where findings are infirm because of an erroneous view of the law,

a remand is the proper course unless the record permits only one

resolution of the factual issue.’ ” Id. (alteration in original) (quoting

Pullman-Standard v. Swint, 456 U.S. 273, 291-92 (1982)). Given

the absence of traditional evidentiary proceedings, I reject any

conclusion that the existing record “permits only [the majority’s]

resolution of the factual issue.” Id. (quoting Pullman-Standard, 456

U.S. at 292).

For these reasons, even if Petitioners bore the burden on the

issue of equal protection and were responsible for proving that race

does not predominate the Plan 8015 remedial district, Petitioners

must be allowed the opportunity to make that showing upon

remand to the trial court. 5

5. I recognize the challenges involved in conducting a trial at
this point, just as I recognize that the Enacted Plan has now been
in place for the 2024 congressional election cycle. However, I
believe that the unique circumstances of this case require that this
case be remanded to the trial court. Faithful application of our
Apportionment decisions requires us to proceed on “a reliable course
for the Legislature and the judiciary to follow in the future.” See

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II.

Although the majority conducts an as-applied equal protection

analysis, make no mistake—this decision lays the groundwork for

future decisions that may render the Non-Diminishment Clause

practically ineffective or, worse, unenforceable as a matter of law.

See majority op. at 47 (“[T]he defendants have not asked us to

decide whether every district intentionally drawn to comply with

this Court’s interpretation of the Non-Diminishment Clause is

necessarily race-predominant and therefore subject to strict

scrutiny, even if the district satisfies the FDA’s race-neutral

standards. That issue can wait for another day.”).

III.

When this case was before the First District Court of Appeal in

2023, its complexity was compounded by the then-approaching

2024 congressional election. Because of the obvious need to

expedite this important matter for an ultimate resolution once it left

the trial court, I agree with the majority’s critique of the First

majority op. at 23-24 (quoting In re Senate Joint Resol. of Legis.
Apportionment 1176, 83 So. 3d 597, 684 (Fla. 2012)).

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District’s refusal to pass through the appeal of the trial court’s

judgment to this Court despite the parties’ joint request in

September 2023 that the district court do so. See art. V, § 3(b)(5),

Fla. Const.

Exercising pass-through jurisdiction would not have been an

act of surrendering the district court’s jurisdiction to this Court—

quite the contrary. Submitting the case for this Court’s

consideration under section 3(b)(5) would have been an

acknowledgment of the import of deciding this case in a timely

manner. This was a case that was all but likely to reach this Court

one way or the other—and it did—far later than it should have. See

Byrd, 375 So. 3d at 371 (Bilbrey, J., dissenting) (“We knew when

the suggestion for pass-through was before us in September [2023]

that the Florida Supreme Court would likely have jurisdiction no

matter how we ruled on the appeal.”). By declining to certify the

trial court’s judgment for immediate resolution and instead deciding

the case on the merits, the district court injected an unacceptably

lengthy delay in getting this important matter before this Court.

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IV.

In conclusion, because Petitioners demonstrated that the

Enacted Plan violates the non-diminishment provision of the Florida

Constitution, this Court should remand this case for an actual trial

on Respondents’ equal protection affirmative defense. Even under

the majority’s conclusion—that Petitioners bore the burden to prove

a potential redistricting map that complies with both the FDA and

the Equal Protection Clause—Petitioners are entitled to an

opportunity to make that showing on remand.

By foreclosing further litigation, the majority’s decision now

allows to remain in place a congressional redistricting plan that is

unconstitutional under the Florida Constitution. For these reasons,

I dissent.

Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions/Class of Constitutional Officers

First District – Case No. 1D2023-2252

(Leon County)

Frederick S. Wermuth, Thomas A. Zehnder, and Quinn B. Ritter of
King, Blackwell, Zehnder & Wermuth, P.A., Orlando, Florida;
Christina A. Ford and Julie Zuckerbrod of Elias Law Group LLP,
Washington, District of Columbia; and Abha Khanna of Elias Law
Group LLP, Seattle, Washington,

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for Petitioners

James Uthmeier, Attorney General, Jeffrey P. DeSousa, Acting
Solicitor General, David M. Costello, Chief Deputy Solicitor General,
and Daniel Bell, Chief Deputy Solicitor General, Tallahassee,
Florida,

for Respondent Cord Byrd, in his official capacity as Florida
Secretary of State

Daniel E. Nordby, George N. Meros, Jr., and Tara R. Price of Shutts
& Bowen LLP, on behalf of the Florida Senate, Tallahassee, Florida;
and Carlos Rey of the Florida Senate, Tallahassee, Florida; and
Andy Bardos of GrayRobinson, P.A., on behalf of the Florida House
of Representatives, Tallahassee, Florida,

for Respondents Florida Senate and Florida House of
Representatives

Mohammad O. Jazil, Gary V. Perko, Ed Wenger, and Michael Beato
of Holtzman Vogel Baran Torchinsky & Josefiak, Tallahassee,
Florida; and Bradley R. McVay, Joseph S. Van de Bogart, and
Ashley Davis, Florida Department of State, Tallahassee, Florida,

for Respondent Florida Department of State

Matthew A. Goldberger of Matthew A. Goldberger, P.A., West Palm
Beach, Florida; and Jonathan B. Miller and Sophia House of Public
Rights Project, Oakland, California,

for Amici Curiae Current and Former Elected Leaders of North
Florida and across the state

Elizabeth B. Wydra, Brianne J. Gorod, David H. Gans, and Anna K.
Jessurun of Constitutional Accountability Center, Washington,
District of Columbia; and Linda K. Clark of Morrison & Foerster
LLP, Miami, Florida,

for Amicus Curiae Constitutional Accountability Center

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