Trial before U.S. District Court Judge Jung still set for April 27
In the space of five days, a class action lawsuit filed to prevent the implementation of new Sarasota County Commission districts has been reduced from a potential of three counts to one.
The federal judge presiding over the case ruled on March 2 that the plaintiffs could not file a second amended complaint, as they had sought in a Feb. 27 motion.
The attorneys for the named plaintiffs — Newtown residents Fredd Atkins, Michael White and Mary Mack — had sought court approval to file the new version of the amendment with a fourth count. That count focused on the 14th Amendment to the U.S. Constitution, just as Count 1 does.
The plaintiffs’ attorneys provided a copy of the proposed second amended complaint for the review of federal Judge William F. Jung, who is presiding over the case in the U.S. District Court for the Middle District of Florida, in Tampa.
Count IV said the following: “The Equal Protection Clause of the Fourteenth Amendment ensures that the vote of one citizen be approximately equal in weight to that of another citizen, which is achieved through substantial population equality among various districts — commonly known as the ‘one person, one vote’ guarantee.”
The proposed second amended complaint added that the redistricting plan the commission adopted on a 3-2 vote in November 2019 “completely and fundamentally violates the one person, one vote requirement” because of population shifts that have taken place in the county since the 2010 Census results were released. It also argues that the commission relied upon population data at the block — or neighborhood — level that contained “significant errors.” No reliable data, the proposed second amended complaint contended, is available through other sources.
A county resident, R.N. Collins, undertook an in-depth analysis of the figures the county’s redistricting consultant and a subcontractor used to arrive at the block level population numbers upon which the commissioners relied last year to draw up new district boundaries. Both the consultant — Kurt Spitzer of Tallahassee — and the subcontractor — Richard Doty, the Geographic Information System coordinator and research demographer with the University of Florida’s Bureau of Economic and Business Research — acknowledged that it was difficult to ascertain exact figures at the block level without new U.S. Census data. However, Spitzer steadfastly maintained that his numbers were legally defensible.
During the redistricting discussion conducted on Oct. 30, 2019, Collins told the commissioners that the second set of maps Spitzer had created to account for errors in the initial ones were in some ways “worse than the consultant’s first attempt. … These are too flawed to be useful.”
In his March 2 order, Jung wrote that the new cause of action could have been included in the original complaint in the case, filed on Dec. 12, 2019. He agreed with the county attorneys on that point, which they made in their response to the motion seeking permission to file the second amended complaint.
“Relative population comparisons without a recent census would require experts and likely discovery (into things like school enrollment, utility hookups, etc.),” Jung continued in his March 2 order. Because he already had agreed to an expedited hearing “over the Defendants’ objections,” he wrote that he was denying the motion to file the second amended complaint.
During the Feb. 4 hearing via telephone, Jung agreed to dismiss Count III in the plaintiffs’ first amended complaint, filed on Jan. 9.
He ruled that that count was a reach, as the law the plaintiffs cited pertained to legislative districts being drawn “with the intent to favor or disfavor a political party or an incumbent.” The law did not include county commission districts.
Dismissing another count
The plaintiff’s motion regarding the second amended complaint was filed just one day before the plaintiffs stipulated to the dismissal of Count II in the amended complaint their attorneys filed in early January.
Count II contended that the County Commission also violated the U.S. Voting Rights Act of 1965, which was enacted “to enforce the Fifteenth Amendment of the United States Constitution’s prohibition against denying a citizen the right to vote ‘on account of race.’”
That count alleged that the county “has a long history of discriminatory-sanctioned conduct that has excluded African-American citizens from participating in the political process. Additionally,” that count continued, the county’s “electoral system reflects a clear pattern of racially polarized voting that allows the bloc of [Caucasian] voters to defeat the African-American community’s preferred candidate(s).”
During the Feb. 4 hearing, Jung indicated he was leaning toward dismissing another count. The Sarasota Herald-Tribune, whose reporter Zac Anderson listened to the proceeding, said Jung did not specify the other count to which he was alluding.
The remaining section of the lawsuit on which the trail will focus is Count 1, which also alleges that the redistricting violated the 14th Amendment. It contends that the County Commission purposely moved most of Newtown from District 1 into District 2. That way, the predominantly Democratic-leaning, African American voters would not be able to participate in the election this year for the District 1 seat.
Opponents of the County Commission’s redistricting efforts argued that the action was taken to help Commissioner Michael Moran win re-election to the District 1 seat, which he won in November 2016.
Moran — like his other four colleagues on the board — is a Republican. Atkins, his would-be challenger from Newtown, is a Democrat.
In November 2018, voters approved a Sarasota County Charter amendment that implemented Single-Member Districts, starting this year. That amendment says only residents of a district may vote for County Commission candidates who also reside in that district. Previously, all commissioners were elected countywide.
Newtown voters moved to District 2 with the redrawing of the district boundaries will not be able to vote until the 2022 election for that seat, unless Atkins and his co-plaintiffs win their federal lawsuit.
The attorneys for the plaintiffs are Lawrence A. Kellogg and Tal Aburos of the Miami firm Levine Kellogg Lehman Schneider + Grossman; Hugh F. Culverhouse, a former federal prosecutor and developer of Palmer Ranch; and Steven D. Hutton and Przemyslaw L. Dominko of Hutton & Dominko in Sarasota.
County’s objection to the new version of the complaint
Responding to the effort to file the second amended complaint, the outside counsel for the county — attorneys with GrayRobinson in Tallahassee — wrote on March 2, “From the beginning, the crux of this case has been Plaintiffs’ allegation of ‘race-based’ redistricting. Now, four days before expert disclosures are due, and less than two months before trial, without any explanation of their delay, Plaintiffs seek to plead a new claim founded on facts well-known to them when they filed this case on December 12, 2019. If at this advanced stage Plaintiffs may for the first time allege that the challenged districts violate the one-person, one-vote requirement — a legal theory wholly distinct from Plaintiffs’ claim of ‘race-based’ redistricting — then [the county] will not have sufficient time to present a defense and indeed will be denied the opportunity to make critical expert disclosures this Friday,” as required by the court schedule.
At the conclusion of the February hearing, Judge Jung set aside five days for a bench trial in the case, beginning on April 27. (Jung will hear the evidence and testimony; no jury will be involved.) He also set deadlines for various steps to be accomplished prior to the start of the trial, agreeing with the need for expediency.
The qualification period for candidates vying for the three open County Commission seats this year is in early June. Atkins — one of the plaintiffs in the redistricting case — had filed to run for the District 1 seat prior to the implementation of the new district boundaries.
Moreover, the county response argued, the plaintiffs noted that the amended complaint filed on Jan. 9 “did not allege that the new districts were unequally populated in violation of the federal one-person, one-vote requirement.”
The county response also noted the judge’s decision to schedule the expedited trial in the redistricting case. Under the applicable rules of judicial procedure, the county response said, “[A]mendments to the pleadings are ‘severely disfavored’ because parties are expected to be prepared and equipped to litigate on an ‘acutely accelerated schedule,’ as Plaintiffs requested.”
Further, Andy Bardos, the lead GrayRobinson attorney for the county, argued, “The initial complaint, like the first amended complaint, contained a critique of the county’s population estimates, but did not assert a one-person, one-vote claim.”
“The injection of an entirely new claim after months of delay and less than two months before trial — in the midst of a litigation schedule that, at Plaintiffs’ request, was already as compressed as possible — would occasion disorder and prejudice,” Bardos added.