Plaintiffs lack sufficient evidence to prove claim that County Commission violated U.S. Voting Rights Act, county contends
With a federal judge early this month having refused Sarasota County’s bid for dismissal of a lawsuit over its new County Commission district lines, the county this week filed a new motion. This time, it asked the court to throw out one of two remaining counts in the complaint.
The county argues in its new motion that the plaintiffs in the class action suit “have no evidence that it is possible to draw a majority African-American county-commission district — an essential element of their claim under section 2 of the Voting Rights Act [emphasis in the motion].”
“Sarasota County’s African-American population is small,” the motion continues. “According to the last Census, African-Americans are 4.2 percent of the county’s voting-age population. It is mathematically impossible for a population of that size to constitute a majority in one of five districts,” the motion contends. “If the county’s entire African-American population could even be incorporated into a single district, then African-Americans would still comprise only one-fifth of that district,” the motion continued. “And Plaintiffs have no competent evidence — whether from the Census or any other source — that shows otherwise.”
The three named plaintiffs in the litigation, which was filed on Dec. 12, 2019, allege that the County Commission violated the U.S. Voting Rights Act by moving the traditionally African-American community of Newtown from District 1 into District 2 as part of the redrawing of County Commission district lines late last year. The plaintiffs contend that the primary reason for that action was to prevent Newtown voters from participating in the 2020 election for that District 1 seat. Instead, the complaint points out, Newtown citizens would be unable to participate in another County Commission election until 2022, when the District 2 seat would be open.
Because voters in November 2018 approved an amendment to the Sarasota County Charter that implemented Single-Member Districts voting, only residents of a district will be allowed to vote for candidates from that district. Previously, all county commissioners were elected countywide, regardless of where the candidates lived.
Commissioner Michael Moran, who was elected to the District 1 seat in 2016, filed for re-election on Feb. 3. Opponents of the new district lines the commission approved in November 2019 argued that Moran, a Republican, would have been more vulnerable in his re-election campaign because Newtown voters also traditionally have supported Democratic candidates.
Additionally, a Newtown resident — former Sarasota Mayor and City Commissioner Fredd Atkins — filed last year as a Democrat for the District 1 seat. Atkins is one of three named plaintiffs in the redistricting lawsuit. The others are Newtown residents Mary Mack and Michael White.
The lawsuit points out that the redistricting also pushed Atkins out of contention for the District 1 seat.
The county motion says, however, that because the plaintiffs “have no evidence to support an essential element on which they will bear the burden of proof at trial, the Court should streamline this case, protect the parties from unnecessary expense, and grant summary judgment as to Count II,” which alleges the violation of the Voting Rights Act.
In contrast, the amended complaint the plaintiffs filed on Jan. 9 says, “Newtown is a special African-American community that came into being in 1914. It has developed into the vibrant heart of Sarasota’s African-American community over the past 105 years, through its residents, churches, schools, gardens and cultural arts.”
“Over the years,” the lawsuit pointed out, “residents of Newtown have had to fight not only for the right to vote, but also for their votes to be meaningful.”
In 1979, it continues, “through the local chapter of the NAACP, Newtown citizens filed a lawsuit under the Federal Voting Rights Act of 1965” to challenge the system of representation for the Sarasota City Commission. The complaint says that system “had historically prevented the election of African-Americans to City of Sarasota government.”
That lawsuit was successful, the complaint adds.
“Given the opportunity for the first time to cast a meaningful vote,” it says, “the Newtown community banded together with a record high turnout and elected Plaintiff Atkins as the first African-American City Commissioner. He was later elected mayor of Sarasota three times.”
It further points out that, in 2016, Atkins ran as a Democrat for the County Commission District 1 seat, but while he won the most votes in that district, he lost the countywide race.
Count I of the amended complaint, which was filed in January, alleges the county violated the Equal Protection Clause of the U.S. Constitution, which “forbids intentionally assigning voters to a district on the basis of race without sufficient justification.”
On Feb. 4, U.S. District Court Judge Jung did dismiss the third count of the amended lawsuit. That contended the County Commission also had violated a section of the Florida Constitution. Jung agreed with the county that Article III, Section 2 of the state Constitution did not apply to the redistricting case.
Jung has scheduled a five-day trial in the redistricting lawsuit, beginning at 8 a.m. on April 27 in Tampa.
Justification and a split vote
Early last year, commissioners began making their own case for early redistricting. Board members maintained that they had a legal obligation to redraw the lines because of significant growth in population in South County. As a result of the passage of the Single-Member Districts Charter amendment, they added, they would be violating federal law if they allowed South County commissioners to represent more constituents than North County commissioners.
Ultimately, Commissioners Christian Ziegler and Charles Hines voted against the new districts. Ziegler was steadfast in arguing that the board should await the results of the 2020 Census before drawing new lines, as state law calls for redistricting after the decennial Census results are released.
However, a Tallahassee consultant the board members hired to assist staff with proposing a potential new map told them that if they proceeded with the new lines in 2019, and the Census results were not significantly different from the data his subcontractor used on the county’s behalf, then the commission would not have to draw new district boundaries in 2021.
During the board’s final discussions last year, Hines indicated his discomfort with the map Commissioners Moran, Nancy Detert and Alan Maio selected for adoption. Hines referenced the relocation of Newtown into District 2.
Further details of the summary judgment motion
In its new motion, the county argues that, under Section 2 of the Voting Rights Act, the plaintiffs must prove that what is called a “majority-minority” district can be drawn in Sarasota County. “Section 2 applies,” the motion says, “where, ‘based on the totality of circumstances,’ members of a minority group ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’”
Citing a 1986 U.S. Supreme Court decision, Thornburg v. Gingles, the motion adds that a plaintiff must prove that “(1) the minority group is sufficiently large and geographically compact to constitute a majority in one district; (2) the minority group is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable it usually to defeat the candidates preferred by the minority group.”
“[W]here the minority population is too small to form a majority in one district, it is not the redistricting plan, but the size of the minority population, that prevents the election of minority-preferred candidates,” the motion says, again citing the Gingles case.
“It is mathematically impossible for African-Americans to constitute more than 50 percent of the voting-age population of a county-commission district in Sarasota County,” the motion argues, because African Americans comprise only 4.2% of the county’s voting age population, based on the 2010 Census data. The motion cites a 2004 11th U.S. Circuit Court of Appeal case, Dillard v. Baldwin County Commissioners, in which the court ruled that Section 2 did not compel the creation of an African-American county commission district in Alabama because the voting age African-American population, at 9.1% of the county total, “was too small.”
Additionally, the motion argues that the plaintiffs in the Sarasota County redistricting case “suggested that 2010 Census figures are outdated and no longer accurate.”
However, the county’s motion points out that “‘the presumption is that Census figures are continually accurate,’” as the 11th U.S. Court of Appeals ruled in a 2000 case, Johnson v. DeSoto Cty. Bd. of Comm’rs.
Again, citing the Johnson case, the motion says that “the court concluded that, while intentional discrimination might be relevant to the totality-of-circumstances analysis, it does not lessen a plaintiff’s burden to show discriminatory results.”
Meeting the legal standard for summary judgment
In making its case for the federal judge to throw out Count II of the redistricting lawsuit, the county’s motion points out, “Summary judgment is appropriate” if the party petitioning for it can show “that there is not genuine dispute as to material fact,” citing the Federal Rules of Civil Procedure.
The petitioning party — or “movant” — “may discharge its burden,” the motion continues, by providing details about the absence of evidence to support the other party’s claim.
The county says it has met the standard through its arguments in the motion.
It also filed a Statement of Undisputed Material Facts in support of the motion, the case docket shows. That document reiterated points in the motion itself.
Sarasota County is being represented by attorneys with the GrayRobinson law firm’s offices in Tallahassee. Those attorneys are Andy Bardos and George T. Levesque.
The plaintiffs’ lead attorneys are Lawrence A. Kellogg and Tal Aburos of the Miami firm of Levine Kellogg Lehman Schneider + Grossman. Serving as co-counsel are Hugh F. Culverhouse, a former federal prosecutor who developed Palmer Ranch in Sarasota; and Steven D. Hutton and Przemyslaw L. Dominko of Hutton & Dominko in Sarasota.