Federal judge refuses to dismiss redistricting lawsuit against Sarasota County but throws out one count

Judge also agrees to a trial in late April

Federal Judge William F. Jung. Image from the ballotpedia.org website

A federal judge this week refused to dismiss a lawsuit filed in December 2019 that alleges the Sarasota County Commission approved a new redistricting map as a means of keeping voters in the traditionally African-American community of Newtown from participating in the 2020 election for the commission’s District 1 seat.

Further, U.S. District Court Judge William F. Jung of the Middle District of Florida, in Tampa, agreed to expedite a trial in the case, as the plaintiffs in the class action suit had requested. Jung scheduled that proceeding to begin at 8 a.m. on April 27, and he anticipated the trial would last five days.

All responses to requests for documents, admissions and interrogatories are due within 21 days, he ordered, instead of 30.

Following a hearing conducted over the telephone early in the afternoon of Feb. 4, Jung did throw out one count of the redistricting complaint, which was added in an amended version of the lawsuit filed on Jan. 9. Count III contended that the commissioners also violated Article III, Section 21 of the Florida Constitution. That section “prohibits state legislative districts from being ‘drawn with the intent to favor or disfavor a political party or an incumbent,’” the amended lawsuit said. “This constitutional provision further prohibits districts from being ‘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 complaint added.

Jung’s order dismissed that count with prejudice, meaning no new amended filing in the lawsuit could incorporate a variation on that argument.

In Sarasota County’s answer to that amended complaint, outside counsel with the GrayRobinson firm in Tallahassee argued that the Florida Supreme Court concluded that Article III, Section 21, “regulates the districts that the Legislature draws, and from which members of the Legislature are elected”; therefore, it is not applicable to County Commission districts.

Jung’s Feb. 4 rulings from the bench allowed the lawsuit’s other two counts to proceed.

This is a closeup of Newtown in Map 4.1. which the County Commission adopted on Nov. 19, 2019. Image courtesy Sarasota County

Count I contends that the redistricting violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The complaint argues that the new district boundaries were drawn “in an effort to segregate voters into separate districts on the basis of race.”

Count II contends that the redistricting violated Section 2 of the U.S. Voting Rights Act, which prohibits any “standard, practice, or procedure [that] results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

If the new County Commission districts remain in effect, Newtown citizens will not be able to cast votes for a commissioner until 2022, when the District 2 seat will be open.

After the Feb. 4 hearing, Jung did agree with Sarasota County’s attorneys on two points. He ruled that the plaintiffs’ attorneys should not be able to take depositions from each of the five county commissioners.

In their Jan. 29 motion on that point, the county’s attorneys wrote, “For five hundred years, legislative immunity and privilege have protected the integrity and independence of the legislative process and assured that fear of personal repercussions does not sway the votes of legislators or chill the freedom of speech in legislative deliberations.”

Citing a 2015 11th U.S. Circuit Court of Appeals opinion, the motion said, “‘The legislative privilege is important’ … as it allows legislators to vote with fidelity to the ballot box and to their consciences, without fear of personal burdens, hardships, threats, or reprisals.”

The motion further pointed out that, last year, an opponent of the redistricting process “warned the County Commissioners to vote against the new districts — ‘if you care about protecting yourselves from federal litigation’ [emphasis in the motion].”

These are the Sarasota County commissioners and their districts. Image from the county website

Finally, Jung dismissed, with prejudice, the plaintiffs’ efforts to bring suit against Commissioners Nancy Detert, Alan Maio and Michael Moran as individuals. Those were the three board members who approved the new district map on Nov. 19, 2019. He cited judicial precedents and Florida Statute 125.15 for that decision.

The state law says, “The county commissioners shall sue and be sued in the name of the county of which they are commissioners.”

Attorney ‘extremely happy’ about expedited hearing

In response to the judge’s order, Hugh Culverhouse, a former federal prosecutor who is co-counsel for the plaintiffs, told the North Port Sun in a Feb. 4 email, “I was extremely happy with the entire outcome. The judge is more than well-prepared. He puts other judges to shame. He not only read the entire case file … but he read all the cases cited in well over 12 motions. We prepare for trial, start depositions. I felt it was a terrific day and look very forward to presenting our case on behalf of Newtown the last week of April.”

The individual plaintiffs are former Sarasota Mayor and City Commissioner Fredd Atkins, Mary Mack and Michael White, all residents of Newtown.

Fredd Atkins. Photo courtesy of Fredd Atkins campaign for District 1

On Jan. 24, the attorneys for the plaintiffs filed a motion seeking the expedited schedule. “This Action seeks to rectify Sarasota County and its Board of County Commissioners’ … unconstitutional and illegal race-based redistricting and political gerrymandering by restoring Plaintiffs’, and similarly situated Newtown residents’, right to vote in the 2020 Sarasota County election,” that motion said.

Formally, the motion sought the designation of the complaint as a “Track Three” case under local rules of procedure, “as it is an ‘action so imminently affecting the public interest … as to warrant heightened judicial attention or expedited treatment.’”

The motion pointed out that on Jan. 15, the parties held a case management conference, at which time the defendants’ counsel “noted that printing of ballots for the primary election and the November 2020 election must begin in May, and that the deadline for candidates to qualify for Sarasota County commission races is June 8, 2020.”

Moreover, the motion said, the defendants proposed that a trial in the case “be held in 2021 — well after the election. Plaintiffs disagree,” the motion continued, “because by then the 2020 election will have been completed and the right of Plaintiffs to vote in the election will have been irretrievably lost.”

Finally, on Feb. 4, Judge Jung gave Sarasota County 10 days from that date to file an answer to the complaint on the basis of his orders from the bench.

The Sarasota News Leader did not get any comments from the Office of the County Attorney in response to Jung’s decisions. That office has a longstanding practice of not commenting on litigation that is underway, county staff has told the News Leader.

Setting the stage

The class action suit filed in December 2019 point out that, with the redrawing of the commission district lines, Newtown was moved from District 1 into District 2. Community leaders — including the leader of the Sarasota County NAACP Chapter — argued during several County Commission meetings last year that the sole purpose for that change was to enable Commissioner Michael Moran to win re-election.

Because a Single-Member Districts amendment to the Sarasota County Charter won approval during the November 2018 General Election, only voters who reside in the same district as candidates from that district may cast a ballot for one of those candidates. Previously, all commissioners were elected countywide.

All five of the commissioners — including Moran — are registered Republicans. Yet, community leaders have contended that the majority of Newtown voters typically cast ballots for Democrats.

Dan Lobeck addresses the County Commission on Oct. 30, 2019, during a discussion of the redistricting issues. News Leader image

Additionally, Sarasota attorney Dan Lobeck, leader of the nonprofit organization Control Growth Now, has stressed that Moran’s opponent in the 2016 Republican Primary for the District 1 seat — Frank DiCicco of Sarasota —  filed late for that race. Lobeck told the commissioners last year that if DiCicco had begun campaigning sooner, DiCicco possibly could have defeated Moran.

Sarasota County Supervisor of Elections Office records show that Moran won 21,383 votes in that August 2016 Republican Primary, while DiCicco had 13,708. DiCicco filed in May 2016 for the District 1 race. Moran had filed for the seat in February 2015.

Last year, Atkins of Newtown — one of the three named plaintiffs in the federal case — filed as a Democrat to run for the District 1 seat. The redistricting lawsuit also contends that the shift of Newtown into District 2 was designed to put a halt to Atkins’ candidacy.

Judge Jung has not offered any ruling thus far on the class action status of the case.