Judge rules for Sarasota County in redistricting case

Citing case law on which he had to base his decision, U.S. District Court Judge Jung writes that he could find no evidence of racial motivation

Hugh Culverhouse. Image from the University of Alabama

Reflecting on a federal judge’s May 4 ruling in Sarasota County’s favor, the former federal prosecutor who championed a redistricting lawsuit told The Sarasota News Leader he had “never seen as thorough an examination of a case, both factually and legally.”

While he disagreed with U.S. District Court Judge William F. Jung’s decision, Hugh Culverhouse said during a May 5 telephone interview, “I certainly respect the way [Jung] did it …”

Even before the County Commission voted 3-2 on Nov. 19, 2019 to draw new district boundaries, opponents of the action threatened legal recourse. Their primary focus was the shift of the traditionally African-American community of Newtown, in Sarasota, from District 1 to District 2.

Because voters in November 2018 approved a county Charter amendment that implemented Single-Member Districts, only citizens in the districts whose seats are open this year will be able to cast ballots for candidates. Moreover, the Charter amendment ended the practice of electing commissioners countywide. Instead, a voter may cast a ballot only for a candidate who lives in the same district as the voter.

In the 2020 election, the seats in Districts 1, 3 and 5 are being contested.

Four of the five commissioners contended last year that it was incumbent upon them to draw new district boundaries, because population shifts — especially as a result of South County growth — had left the districts created in 2011 out of balance. For county residents to have fair representation on the board, commissioners said, new districts needed to have population counts as equal as possible.

Only Commissioner Christian Ziegler argued against redistricting before the 2020 Census data became available. However, Commissioner Charles Hines also ended up in the minority when the board voted on Nov. 19, 2019. Hines referenced discomfort with the move of Newtown into District 2.

Fredd Atkins was one of the lead plaintiffs in the lawsuit. Photo courtesy of Fredd Atkins campaign for District 1

Opponents of the commission’s redistricting decision said it was a ploy to enable Republican Commissioner Michael Moran to retain the District 1 seat he won in November 2016. Speakers during numerous County Commission meetings last year pointed out that Newtown residents had a long history of supporting Democratic candidates, and a Newtown resident — former Sarasota Mayor and City Commissioner Fredd Atkins — had filed as a Democrat for the District 1 race.

On Dec. 12, 2019, a team of attorneys assembled by Culverhouse, who also is the developer of Palmer Ranch in Sarasota, filed suit against the county on behalf of Newtown residents. The complaint contended that the board’s adoption of new district lines was racially motivated.

However, in his May 4 ruling, Judge Jung wrote that “race was not the predominant motive.”

His order this week officially granted a motion Sarasota County filed in early April, asking him to dismiss the class action lawsuit.

Culverhouse told the News Leader on May 5 that it was clear to him that Jung was sympathetic to his clients. Along with Atkins, the lead plaintiffs were Mary Mack and Michael White, also of Newtown.

“He’s restricted by the law,” Culverhouse said of Jung, “and he did what he felt was best.”

A judge in the U.S. District Court for the Middle District of Florida, in Tampa, Jung explained in his ruling, “For Plaintiffs to prevail under the controlling law, race must not only have been a motive, it must have been the predominant motive [emphasis in the document].”

Jung added, “There is no genuine issue of fact in this record …”

Citing the 2001 U.S. Supreme Court decision in Easley v. Cromartie, Jung wrote, “[T]he burden of proof on the plaintiffs (who attack the district) is a ‘demanding one.’” Jung added, “As Justice [Stephen] Breyer wrote for the Cromartie Court, ‘[p]laintiffs must show that a facially neutral law ‘is unexplainable on grounds other than race.’ … In other words, Plaintiffs must ‘disentangle race from politics and prove that the former drove a district’s lines,’” Jung added, citing the 2017 Supreme Court case Cooper v. Harris.

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

“Beyond this ‘demanding’ burden,” Jung continued, “Plaintiffs face a Supreme Court-mandated presumption that districts were drawn in good legislative faith,” citing the 1995 case Miller v. Johnson. That decision, Jung pointed out, said that “courts must ‘exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.’”

“Indeed,” Jung wrote, “Justice Breyer’s majority opinion in Cromartie added italics to the admonition for ‘extraordinary caution’ … and then repeated the admonition twice. … This extraordinary caution is required because ‘[f]ederal court review of districting legislation represents a serious intrusion on the most vital of local functions.’”

Culverhouse pointed out that Jung clerked for Supreme Court Justice William Rehnquist from 1984 to 1985 and that he earlier served as a law clerk for U.S. Circuit Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the 11th Circuit. “He’s steeped in appellate law,” Culverhouse noted of Jung.

At first, Culverhouse told the News Leader, when no order appeared after the outside counsel for the county filed a motion for summary judgment in early April, he and the other attorneys on the plaintiffs’ team felt that Jung was interested in hearing all the testimony during a trial.

Given the fact that the trial was scheduled to begin on May 11, Culverhouse said he initially was surprised by the timing of the order, “but when I read it, I understood what took so long for a ruling on summary judgment.”

Culverhouse explained, “I have never had a judge on a motion, especially a summary judgment [motion], read every single piece of evidence, read the depositions. He read everything we filed.”

Jung even included color graphics that showed the 2011 County Commission districts and those created with the November 2019 vote, Culverhouse pointed out.

Judge William F. Jung included these graphics in his May 4 order. Image courtesy U.S. District Court for the Middle District of Florida

Most judges issue a one-page or three-page order, Culverhouse added, in ruling on a summary judgment motion. Jung’s opinion was 31 pages, he pointed out.

No appeal would be filed, Culverhouse wrote in an email to the News Leader, “as the election would occur before an appeal could be decided.”

Candidate qualifying for the three County Commission races this year is in early June.

When the News Leader asked for comments from the county about the judge’s decision, County Attorney Frederick P. “Rick” Elbrecht provided the following statement on May 4: “We are very pleased with the court’s ruling today granting summary judgment for Sarasota County. Judge Jung’s Order confirmed that the process and procedures followed by the Board of County Commissioners in redistricting were lawful and proper from beginning to end. We appreciate the efforts of our trial counsel, the law firm of Gray Robinson and lead counsel Andy Bardos, for their excellent work in representing Sarasota County.”

Culverhouse also commended Bardos.

No ‘smoking gun’

In considering the evidence, including depositions taken by the plaintiffs’ attorneys, Jung noted statements that he said made it clear that the redistricting was not racially motivated.

Referencing the deposition of Kurt Spitzer of Tallahassee, whom county staff hired as a redistricting consultant, Jung wrote, “Spitzer testified that he was not given specific instruction from the County as to specific political result, other than to following common redistricting principles. … Spitzer testified no one mentioned Newtown or Fredd Atkins to Spitzer or talked about candidates who might be running. Spitzer testified no one discussed partisan or political considerations with him.”

Redistricting consultant Kurt Spitzer addresses the commission on Oct. 7, 2019. File image

Moreover, Jung pointed out, “Spitzer is unfamiliar with Sarasota County politics. … Spitzer testified that he thought the Board’s level of activity in this process was very low compared to other projects he had been involved in, and the Board did not take a hands on approach to drawing the maps he submitted. … He testified ‘we were not asked to look at Newtown’ and the only time he did was late in the process when someone suggested erroneously at a public hearing that a proposed map split Newtown. … Twice during his deposition Spitzer expressed ignorance about where Newtown was on the map.”

Additionally, Jung continued, Richard Doty, a demographer with the University of Florida’s Bureau of Economic and Business Research (BEBR) — who assisted Spitzer with compilation of data — “is one of the top demographers in the State,” based on details in a deposition. Jung wrote that Doty “testified without contradiction that no one from the County, nor Spitzer, dictated or controlled how he did his work. … Doty testified race was never suggested to him as relevant to the project.”

Further, a county demographer, Tamara Schells, “testified that throughout the process she did not hear or see anything that led her to believe or indicated to her that racial considerations were the motive for where the district lines were drawn.”

“We were dealing from the outside, looking in,” Culverhouse told the News Leader. “We did not have that smoking gun,” he added, referring to any statement that underscored the plaintiffs’ contention that the move of Newtown to District 2 was racially motivated.

Losing out on the ‘best count’

Culverhouse also talked about the effort he and his team made early in the case — with an amended complaint — to add a new count. That contended that the redistricting violated Article III, Section 21, of the Florida Constitution. The article prohibits state legislative districts from being “drawn with the intent to favor or disfavor a political party or an incumbent,” as the Jan. 9 document noted. “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 amended complaint said.

During a Feb. 4 hearing conducted by telephone, Jung threw out that count, arguing that he did not want to make “new law.”

This section of the Florida Constitution gives county commissions the power to redistrict in odd-numbered years. Image courtesy State of Florida

“Unfortunately,” Culverhouse told the News Leader, the article in the state Constitution did not say “municipalities and counties have to follow the same gerrymandering rules as the Senate and the House of the State of Florida.”

Somebody in the future will make another attempt to test that article’s applicability to local government bodies, Culverhouse said. “Had that applied [to Sarasota County],” he added, “we would have won the case. … That was our best count. … I believe we could have had a rapid decision.”

Culverhouse hinted that he might not be finished with the redistricting fight. “Who knows what I’ll do next time.”

However, referring to the county commissioners, he added, “I hope in the future they’re going to think twice and they’re going to go about [redistricting] in a certain organized way, and it will protect them from Hugh Culverhouse.”