In Re: Senate Joint Resolution of Legislative Apportionment 100

Supreme Court of Florida
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No. SC22-131
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IN RE: SENATE JOINT RESOLUTION OF LEGISLATIVE
APPORTIONMENT 100.

March 3, 2022

MUÑIZ, J.

The Florida Constitution requires the Legislature to

reapportion our state into House and Senate districts after each

decennial census. The Legislature did so this year by adopting

Senate Joint Resolution 100 on February 3, 2022. Then, as the

constitution commands, the Attorney General initiated this original

proceeding for a declaratory judgment to determine the validity of

the apportionment. 1 In what follows, we will explain our conclusion

that the House and Senate apportionment in Senate Joint

Resolution 100 is valid.

1. We have jurisdiction. Art III, § 16(c), Fla. Const. The
constitution gives us 30 days from the Attorney General’s February
9, 2022, filing to enter our judgment. Id.
I.

This case comes to us in an unusual posture. The

constitution requires our Court to hear from “adversary interests”

on the validity of the Legislature’s apportionment. Art. III, § 16(c).

And ordinarily our role in this proceeding would be to adjudicate

specific challenges to the joint resolution. See In re Senate Joint

Resolution of Legislative Apportionment 1176 (Apportionment I),

83 So. 3d 597, 601 (Fla. 2012) (“Before 1968, there was no process

by which challengers to the Legislature’s apportionment plans could

seek direct and immediate review of the apportionment plans by the

Supreme Court of Florida.”). But, for the first time since the voters

adopted the existing procedural framework for judicial review of

apportionment in 1968, no one appeared to oppose the Legislature’s

plans.

Even without a challenging party, however, the constitution

requires us to enter a judgment determining the validity of the

apportionment. Art. III, § 16(c). We undertake that task mindful of

a few foundational principles. First, the joint resolution of

apportionment enjoys a “presumption of validity.” Apportionment I,

83 So. 3d at 606. Second, and relatedly, it is not the Legislature’s

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burden to prove the validity of the apportionment. In a typical

review proceeding under article III, section 16(c), “[o]pponents of

[an] apportionment plan bear the burden of establishing a

constitutional violation.” In re Senate Joint Resolution of Legislative

Apportionment 2-B (Apportionment II), 89 So. 3d 872, 881 (Fla.

2012). Third, although the Legislature must exercise its discretion

within the bounds set by the constitution, “legislative

reapportionment is primarily a matter for legislative consideration

and determination.” In re Apportionment Law Senate Joint

Resolution No. 1305, 1972 Regular Session, 263 So. 2d 797, 799

(Fla. 1972).

Our Court’s duty under article III, section 16(c) is thus to

enforce any discretion-limiting standards embodied in the

constitutional text without curtailing the substantial discretion that

those same standards, and our constitution’s overarching

separation of powers, still reserve to the Legislature. In this regard,

the House and Senate maintain that we erred in 2012 by not

requiring challengers to prove an apportionment’s invalidity

“beyond a reasonable doubt,” and they ask us to reconsider that

issue. We do not think that this uncontested proceeding is the

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place to delve into the standard of review for future, hypothetical

challenges. Instead, given the presumption of validity and in the

absence of a challenge to Senate Joint Resolution 100, we will

review the materials before us to ensure that there is evidence in

the record to support the validity of the 2022 apportionment.

II.

Our primary focus here is on article III, section 21 of the

Florida Constitution, which prescribes what the text calls

“standards for establishing legislative district boundaries.” The

voters of our state adopted these standards through the Fair

Districts Amendment in 2010. That amendment substantially

augmented the constitutional requirements that had governed

reapportionment up to that time. See In re Constitutionality of

House Joint Resolution 1987, 817 So. 2d 819, 832 (Fla. 2002)

(listing then-governing constitutional requirements).

We have described article III, section 21 as consisting of two

tiers, each with its own distinct standards. Apportionment I,

83 So. 3d at 614-15. The tier-one standards take precedence over

those in tier two; but the order of the standards within each tier

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“shall not be read to establish any priority of one standard over the

other.” Art. III, § 21(c).

The first of the tier-one standards prohibits intentional

political favoritism: “No apportionment plan or district shall be

drawn with the intent to favor or disfavor a political party or an

incumbent.” The next set of tier-one standards protects racial and

language minority voters: “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.”

The final tier-one standard requires districts to “consist of

contiguous territory.” Art. III, § 21(a).

The tier-two standards address legislative districts’ population,

shape, and boundaries. Districts “shall be as nearly equal in

population as is practicable”; they “shall be compact”; and they

“shall, where feasible, utilize existing political and geographical

boundaries.” The constitution is explicit that, in the event of a

conflict, the tier-two standards yield to the tier-one standards and

to federal law. Art. III, § 21(b). Because the constitutional text does

not set a hierarchy among the tier-two standards themselves, the

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Legislature retains the discretion to balance those standards in the

apportionment.

Of course, reapportionment is also governed by the Fourteenth

Amendment’s equal protection requirement of “one person, one

vote.” We have held that this requirement is subsumed within the

population standard in tier two. Apportionment I, 83 So. 3d at 630.

Finally, article III, section 16(a) of the Florida Constitution requires

that House and Senate districts be “consecutively numbered” and

that they consist of “either contiguous, overlapping or identical

territory.”

A.

We begin with the record facts that pertain to the tier-two

standards in article III, section 16, because those standards are the

ones that address the basic building blocks of reapportionment.

The most fundamental consideration, of course, is population

equality. The 2020 census recorded Florida’s statewide population

at 21,538,187 people, an increase of over 2.7 million people since

2010. The last decade’s population growth was unevenly

distributed, so both the House and the Senate district lines

required substantial revision.

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Neither the federal nor the Florida Constitution requires that

districts contain perfectly equal populations. Apportionment I,

83 So. 3d at 630. In language that echoes the federal equal

protection standard for state legislative districts, article III, section

21(b) requires districts “as nearly equal in population as is

practicable.” The text thus signals that the Legislature retains

discretion to balance population equality with other legitimate

redistricting considerations. In 2012, this Court approved House

and Senate plans with overall population deviations 2 of 3.97% and

1.99%, respectively. Apportionment I, 83 So. 3d at 646, 655.

Here, the House plan has an overall population deviation of

4.75%. The Senate plan has an overall population deviation of

1.92%. Applying the federal standard, the Supreme Court recently

observed that “[g]iven the inherent difficulty of measuring and

comparing factors that may legitimately account for small

deviations from strict mathematical equality, we believe that attacks

on deviations under 10% will succeed only rarely, in unusual

2. A redistricting plan’s overall population deviation is the
sum of the percentages by which the plan’s least and most
populated districts deviate from a district’s theoretical ideal
population.

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cases.” Harris v. Ariz. Indep. Redistricting Comm’n, 578 U.S. 253,

259 (2016). Both the House and Senate explain that the population

deviations in their 2022 plans were driven by respect for political

and geographical boundaries, particularly county boundaries—an

unquestionably legitimate consideration.

Next in tier two is the standard that “districts shall be

compact.” Art. III, § 16(b). In 2012, we held that compactness

“refers to the shape of [a] district,” and we explained that this

standard seeks to “ensure that districts are logically drawn and that

bizarrely shaped districts are avoided.” Apportionment I, 83 So. 3d

at 636. Of course, limiting the definition of compactness to an

assessment of a district’s shape does not eliminate the inherent

vagueness of the term; however measured, compactness is a matter

of degree. And a district’s compactness can be affected by factors

over which the line-drawer has no control, like our state’s unique

geographical contours and the distribution of population within the

state. See id. at 635.

To evaluate districts’ compactness in our 2012 review

proceeding, this Court made a visual assessment of the districts

and considered “quantitative geometric measures of compactness.”

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Id. at 634-35. Overall, the House and Senate districts in the

Legislature’s 2022 plans are visually at least as compact as the

districts that they replace—in many cases more so. This conclusion

is confirmed by the 2022 districts’ generally improved average

scores on the recognized Convex Hull, Polsby-Popper, and Reock

compactness tests. 3 Without a presentation from adverse parties,

we hesitate to comment on how meaningful those improvements

are. What matters for present purposes is that, by recognized

mathematical measures, the Legislature’s 2022 districts overall are

more compact than the districts in the existing, benchmark plan.

Finally, there is the tier-two standard that districts “shall,

where feasible, utilize existing political and geographical

boundaries.” Art. III, § 21(b). Our Court has held that political

boundaries are county and city boundaries. Apportionment I,

83 So. 3d at 638. And we held that the term “geographical

3. For an explanation of these tests, see our decision in
League of Women Voters of Florida v. Detzner, 179 So. 3d 258, 283,
nn. 6-8 (Fla. 2015). In each test, the highest score possible is 1.0.
The House districts’ benchmark and new average scores are
(benchmark/new): 0.80/0.82 (Convex Hull); 0.43/0.45 (Polsby-
Popper); and 0.43/0.45 (Reock). The corresponding Senate
districts’ benchmark and new average scores are: 0.81/0.82;
0.41/0.46; and 0.50/0.46.

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boundaries” refers to those “that are easily ascertainable and

commonly understood,” like “rivers, roadways, interstates, and

state roads.” Id.

This redistricting cycle, both the House and Senate calculated

the extent to which each district’s boundary lines coincide with

political and geographical boundaries. The results of this

“boundary analysis” show that the average district in the new

House plan follows political and geographical boundaries along

82.7% of its perimeter; the corresponding figure for the average

district in the Senate’s new plan is 96%. These figures show

improvements over the boundary analysis scores of 78.5% and 89%

for the average district in the existing House and Senate benchmark

plans, respectively.

B.

We now turn to the article III, section 21 tier-one standards

that protect racial and language minority voting rights and prohibit

intentional political favoritism. 4 The minority voting standards

4. The third and final tier-one standard is that districts must
“consist of contiguous territory.” Art. III, § 21(a). The maps
submitted with the joint resolution show that the 2022 districts are
contiguous.

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identify and proscribe two types of discrimination: “impermissible

vote dilution” and “impermissible diminishment of a minority

group’s ability to elect a candidate of its choice.” Apportionment I,

83 So. 3d at 619. While they exist independently as Florida law,

these provisions were modeled on and “embrace[] the principles” of

key provisions of the federal Voting Rights Act of 1965, section 2

(vote dilution) and section 5 (diminishment, or retrogression). Id. at

619-21.

Vote dilution is “the practice of reducing the potential

effectiveness of a group’s voting strength by limiting the group’s

chances to translate the strength into voting power.” Id. at 622.

Line drawers can effect vote dilution either by fragmenting a specific

minority voter population into multiple districts or by “packing”

those voters into a district or districts. Id. We acknowledged in

2012 that “[a] successful vote dilution claim under Section 2 [of the

Voting Rights Act] requires a showing that a minority group was

denied a majority-minority district that, but for the purported

dilution, could have potentially existed.” Id. 5

5. In voting rights parlance, a “majority-minority district” is
one in which voters of a minority group constitute a majority of the

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In our 2012 review proceeding, we evaluated potential vote

dilution by looking for evidence suggesting impermissible “packing”

of minority voters into super-majority districts to avoid the creation

of additional majority-minority districts. Apportionment I, 83 So. 3d

at 645. As for Black voters, no district in either 2022 plan has a

Black voting age population sufficiently high to raise concerns of

packing. 6 By contrast, it is true that both new plans have districts

with high Hispanic voting age populations (HVAP): 93.99% in the

highest HVAP House district, and 90.13% in the highest HVAP

Senate district. But in 2012 we approved plans with comparably

high HVAPs: 93.58% (House) and 86.9% (Senate). Id.; Att’y Gen.’s

Petition Appendix at B5, Apportionment II, 89 So. 3d 872 (Fla. 2012)

district’s voting-age population. The existence of a minority group
“sufficiently large and geographically compact to constitute a
majority in [a] reasonably configured legislative district” is one of
“three threshold conditions for proving vote dilution under” section
2 of the Voting Rights Act. Cooper v. Harris, 137 S. Ct. 1455, 1470
(2017) (explaining the threshold vote dilution criteria established in
Thornburg v. Gingles, 478 U.S. 30 (1986)). If the Gingles threshold
factors are established, the dilution inquiry then proceeds to
consider the totality of the circumstances.

6. The districts with the highest Black voting age population
(BVAP) percentages in each plan have BVAPs of 57.94% (House) and
50.07% (Senate).

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(No. SC12-460). We reasoned that these high percentages were

attributable to the dense concentration of Hispanic voters in Miami-

Dade County, not to impermissible line-drawing by the Legislature.

Apportionment I, 83 So. 3d at 645.

Moreover, as to vote dilution, the House and Senate have

represented that their 2022 plans do not avoid creating additional

majority-minority districts where doing so was both possible and

necessary to enable minority voters to elect representatives of their

choice. We conclude that there is evidence in the record before us

to support the conclusion that the Legislature’s 2022 plans do not

impermissibly dilute minority voting strength.

The non-diminishment protection afforded by article III,

section 21(a) 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; see also Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct.

788, 802 (2017). 7 Evaluating the extent to which benchmark and

7. Governor Ron DeSantis recently sought an advisory
opinion from this Court, in part seeking our views on the meaning

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new districts perform for minority voters—that is, enable those

voters to elect the candidate of their choice—requires a “functional

analysis” of voting behavior within the districts at issue. Such

analysis considers statistical data pertaining to voting age

population; voter-registration data; voting registration of actual

voters; and election results history. Apportionment I, 83 So. 3d at

625, 627. We have said that, “because a minority group’s ability to

elect a candidate of choice depends upon more than just population

figures,” a “slight change in percentage of the minority group’s

population in a given district does not necessarily have a cognizable

effect on a minority group’s ability to elect its preferred candidate of

choice.” Id. at 625.

During this redistricting cycle, the House and Senate each

conducted a functional analysis of the minority performing districts

in the benchmark and new plans. The House represents that its

and application of the non-diminishment standard in article III,
section 21(a). For the reasons we explained in Advisory Opinion to
the Governor re Whether Article III Section 20(a) of the Florida
Constitution Requires the Retention of a District in Northern Florida,
47 Fla. L. Weekly S44 (Fla. Feb. 10, 2022), we declined to issue the
advisory opinion. Our decision today should not be taken as
expressing any views on the questions raised in the Governor’s
request.

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benchmark and new plans contain 18 districts each that perform

for Black voters and 12 districts each that perform for Hispanic

voters. The record shows that, among the identified minority

performing districts in the 2022 House plan, the number of

majority-minority districts is unchanged from the benchmark plan.

The Senate represents that its benchmark and new plans

contain five districts each that perform for Black voters and five

districts each that perform for Hispanic voters. 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. The objective statistical data constitute

support in the record for the Legislature’s representation that the

2022 plans do not diminish minority voters’ ability to elect

representatives of their choice. See id. at 655 (no retrogression

since “[t]here are as many Senate minority districts as there were

under the 2002 Senate benchmark plan with what appears to be

commensurate voting ability”).

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Finally, there is the tier-one standard that “no apportionment

plan or district shall be drawn with the intent to favor or disfavor a

political party or an incumbent.” Art. III, § 16(a). It follows from

the constitutional text that “there is no acceptable level of improper

intent.” Apportionment I, 83 So. 3d at 617. That said, we

acknowledged in 2012 that “redistricting will inherently have

political consequences,” and we emphasized that the constitutional

text “prohibits intent, not effect.” Id. Consistent with these

principles, we rejected a claim that an apportionment plan’s

partisan imbalance alone demonstrated an overall intent to favor a

political party. Id. at 642.

Here the House and Senate represent that they drew their

2022 plans without regard to the addresses of incumbents and that

they considered political data only as necessary to ensure

compliance with minority voter protections. The Senate also

represents that it drew its new apportionment plan without regard

to preserving existing district boundaries. In addition, each

chamber supports its plan by invoking reasoning that our Court

itself has employed. They say that their compliance with the tier-

two population, compactness, and boundary standards—

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compliance that we have concluded is supported in the record—at

least suggests that each plan also complies with the tier-one

prohibition on intentional political favoritism. See id. at 645 (“[T]he

House plan has complied with the tier-two standards, making

improper intent less likely.”). Reading the record in light of our

precedents, we conclude that there is evidence in the record here to

support the conclusion that the Legislature drew its 2022 plans

without an impermissible intent to favor or disfavor a political party

or incumbent.

III.

Given the record before us, and in the absence of any filed

opposition, we declare valid the House and Senate apportionment

plans in Senate Joint Resolution 100.

The House and Senate ask us in this proceeding to go further

and hold that the constitutional text, properly interpreted,

precludes any future fact-based challenges to the 2022

apportionment plans that we have now declared valid. See Art. III,

§ 16(d), Fla. Const. (“A judgment of the supreme court of the state

determining the apportionment to be valid shall be binding upon all

the citizens of the state.”). They argue that our Court has erred in

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the past by drawing a distinction between “facial” challenges (the

ones ostensibly at issue in a mandatory original proceeding under

article III, section 16(c)) and fact-based or “as-applied” challenges

(brought in subsequent proceedings). The chambers acknowledge

that acceptance of their argument would require us to recede from

our case law on that point, particularly the holding in Florida House

of Representatives v. League of Women Voters of Florida, 118 So. 3d

198 (Fla. 2013). The Legislature has raised an important issue, but

one that would be more appropriately considered in an original writ

proceeding, if a fact-based challenge to the 2022 apportionment is

filed.

No motion for rehearing will be entertained.

It is so ordered.

POLSTON, LAWSON, COURIEL, and GROSSHANS, JJ., concur.
LABARGA, J., concurs in result.
CANADY, C.J., recused.

Original Proceeding - Legislative Apportionment

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, and Daniel W. Bell, Chief Deputy Solicitor General,
Tallahassee, Florida,

for the Office of the Attorney General as proponents

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Chris Sprowls, Speaker of the Florida House of Representatives,
and J. Michael Maida, Acting General Counsel for the Florida House
of Representatives, Tallahassee, Florida; Peter M. Dunbar and Marc
W. Dunbar of Dean Mead & Dunbar, Tallahassee, Florida; and Andy
Bardos of GrayRobinson, P.A., Tallahassee, Florida,

for the Florida House of Representatives as proponents

Daniel E. Nordby, George N. Meros, and Tara R. Price of Shutts &
Bowen LLP, Tallahassee, Florida, and Eric M. Yesner of Shutts &
Bowen, LLP, Fort Lauderdale, Florida,

for the Florida Senate as proponents

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