Sarasota County makes another attempt to get redistricting lawsuit dismissed, contending lack of evidence that commissioners’ redrawing of district lines was racially motivated

Plaintiffs in the case ask for delay in trial until May because of COVID-19 pandemic

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

Attorneys representing Sarasota County in the redistricting lawsuit have filed a new motion, seeking dismissal of the case, which was reduced to one count last month. They argue that the plaintiffs in the class action complaint filed in December 2019 have not proven that the redrawing of new commission district lines was racially motivated.

In fact, Andy Bardos of the GrayRobinson law firm in Tallahassee, who is lead outside counsel for the county, contends, that during their depositions, “Plaintiffs were unable to identify any statement by a county commissioner that suggests a racial motivation in redistricting.”

In the meantime, the attorneys for the plaintiffs, who are residents of the Newtown community in Sarasota, have asked the federal judge presiding over the case to continue the trial from the last week of April to a date in May.

In an April 2 motion, lead plaintiffs Fredd Atkins, Mary Mack and Michael White pointed out that, on April 1, Gov. Ron DeSantis “signed an executive order limiting all activity in Florida to essential services for the next thirty days, to limit the spread of COVID-19 …” Therefore, they requested that the trial be postponed to the week of May 4 or the week of May 11.

However, their attorneys acknowledged in the motion that the county disagreed with that approach and would prefer conducting the trial remotely.

Federal Judge William F. Jung. Image from the website

Following a Feb. 4 hearing via telephone, federal Judge William F. Jung, of the U.S. District Court for the Middle District of Florida, in Tampa, scheduled a bench trial to start on April 27. He set aside five days for the proceeding.

Additionally, Jung ruled during that Feb. 4 hearing that he would not dismiss the plaintiffs’ amended complaint filed in early January, as Sarasota County had sought. He did rule that Commissioners Nancy Detert, Alan Maio and Michael Moran could not be sued individually. They were the three board members who approved the new district lines last year.

Commissioner Charles Hines linked his “No” vote to the move of Newtown from District 1 to District 2, while Commissioner Christian Ziegler argued that the board members should await the results of the 2020 Census before redistricting.

In a March 29 filing, Bardos of GrayRobinson sought Judge Jung’s approval to file the county’s second motion for summary judgment. Jung granted that request on March 30, directing that the motion be filed no later than April 6, with a response from the plaintiffs no later than April 16.

In his new summary judgment motion, Bardos pointed out, “The crux of Plaintiffs’ complaint is that the Sarasota County Commission engaged in a seven-month, racially motivated redistricting process to deprive voters in Newtown — a small African-American community — of the opportunity to vote for a county commissioner in 2020. Plaintiffs allege, and must prove, that race [his emphasis] was the County Commission’s predominant motive.”

Because of the implementation of the Single-Member District voting method for the commissioners — which voters approved on the November 2018 ballot — only residents who live in the same district as candidates may vote for those candidates. Previously, all county citizens were able to vote for a candidate for each open board seat.

Bardos noted that “two-fifths of all voters in Sarasota County will not vote for a county commissioner in 2020.” That is because only three seats will be up for election: those representing Districts 1, 3 and 5.

Opponents of the commission’s Nov. 19, 2019 approval of new district lines stressed that, to help Commissioner Michael Moran of Sarasota in his bid to retain the District 1 seat he won in November 2016, the majority of the commissioners agreed to the shift of Newtown into District 2. The District 2 seat will be up for election again in 2022.

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

A number of speakers pointed out during commission meetings last year that Newtown voters traditionally support Democratic candidates. Moran is a registered Republican — as are all his colleagues on the County Commission. Before the board approved the new district boundaries, former Sarasota Mayor and City Commissioner Fredd Atkins of Newtown had filed as a Democrat to run against Moran in the District 1 race.

Referring to the depositions taken in the case, Bardos wrote in his motion, “In place of facts, Atkins denounced the County Commission as a ‘racist group’ and insisted that all five county commissioners, the entire redistricting process, and all redistricting plans that [prevent Newtown residents from voting this year in the District 1 race] are racially motivated.”
Bardos added, “At this late stage, broad allegations without factual support are insufficient to warrant further proceedings.”

The plaintiffs included in their complaint the allegation that Atkins received more votes in District 1 than Commissioner Moran when Atkins faced Moran in the 2016 election, Bardos pointed out. However, Bardos added, “A political motive [his emphasis] is distinct from — and does not establish — a racial motive [his emphasis again], even if the affected voters or candidates are racial minorities. The Supreme Court has cautioned that race and political affiliation often correlate and that a plaintiff must ‘disentangle race from politics and prove that the former drove a district’s lines.’” He cited a 2017 U.S. Supreme Court decision, Cooper v. Harris, along with three other Supreme Court decisions.

The remaining count in the redistricting complaint, Count 1, alleges that the County Commission violated the 14th Amendment to the U.S. Constitution, which prohibits states from depriving “any person within its jurisdiction of the equal protection of the laws.” Further, the complaint pointed out, the Equal Protection Clause of the 14thAmendment “forbids intentionally assigning voters to a district on the basis of race without sufficient justification.”

Further details of the county’s arguments

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

“[T]he undisputed evidence proves that district numbers were assigned in a race-neutral manner” during the 2019 redistricting process, Bardos continued in his summary judgment motion. Tallahassee consultant Kurt Spitzer “assigned district numbers according to the residences of incumbents, assuring that incumbent commissioners retained their district numbers,” Bardos continued in the motion. “The District 2 designation, therefore, was assigned to the district that includes Newtown for the simple reason that the incumbent who was elected from former District 2 resides in that district,” Bardos added. “Plaintiffs have identified no evidence that the district-number designation was racially motivated to exclude African-Americans from the 2020 election, or that racial considerations motivated the Commission’s selection among alternative proposals,” Bardos wrote.

Without any “admissible evidence — let alone significantly probative evidence — to support their contention that race motivated the County Commission to assign Newtown to one of the two districts that will not vote in 2020,” Bardos contended, “Sarasota County is entitled to summary judgment.”

Among the judicial precedents Bardos cited in support of his argument, he pointed to the 1995 U.S. Supreme Court case, Miller v. Johnson, which, he wrote, made it clear, “It is not enough to show that the legislative body was ‘aware of racial demographics’ … or even that race was one motivation …” In regard to the latter argument, he cited the 2001 U.S. Supreme Court case, Easley v. Cromartie.

“The ‘constitutional wrong,’” Bardos continued, “occurs only when traditional, race-neutral redistricting principles are subordinated to race … and race becomes the ‘dominant and controlling rationale …’” The latter reference is to a 1996 U.S. Supreme Court case, Shaw v. Hunt.

“A plaintiff, moreover, must overcome a presumption that districts were drawn in good faith, and a corresponding judicial reticence to intrude upon ‘the most vital of local functions,’” Bardos added, referring again to the Miller case. “Courts recognize that redistricting is a ‘most difficult task’ — a task that involves a ‘complex interplay of forces’ and ‘discretion to exercise the political judgment necessary to balance competing interests,’” he wrote, once more citing the Miller case.

“Plaintiffs contend that because Newtown is primarily African American,” Bardos added, “its residents have a constitutionally protected right to vote at the 2020 election, rather than in 2022. No court has ever endorsed that position. Nor has any court suggested that the adoption of a redistricting plan over the objections of a minority population establishes racial motivation.”

Responding to the request for delay of trial

This is the federal courthouse in Tampa. Image from the court website

As for the plaintiffs’ effort to delay the trial: On April 3, Judge Jung entered an order, writing, “If the defendants suggest some sort of remote trial, kindly suggest details. Upon first thought,” Jung continued, “the Court is not particularly comfortable taking contested, adversarial testimony via a video hook-up, but all suggestions are welcome.”

He added, “The Court can clear any time in May if that is otherwise feasible.”

In their response filed April 7, the county attorneys called the plaintiffs’ request for the delay “pointless as a response to the ongoing public-health crisis [and] yet another example of [their] inability to meet the demanding schedule they requested.”

The plaintiffs sought an expedited trial because of concerns about the early June qualifying period for County Commission candidates for the 2020 election.

“Implicit in Plaintiffs’ request is the assumption that there will be a meaningful difference in the global-health pandemic between the last week of April and first week of May,” Bardos wrote in the county response. “Plaintiffs point to nothing to support their assumption that the global pandemic will conclude between the last week of April and the first week of May. Not a single professional journal — not even a news article. Nothing.”

Moreover, Bardos continued, Gov. Ron DeSantis’ “safer-at-home” order includes legal services among its exemptions.

Bardos also pointed to what he characterized as “another important consideration [which] is the advanced age of many of the witnesses.”

“The three named Plaintiffs — Fredd Atkins, Michael White, and Mary Mack — are 67, 64, and 74 years of age, respectively. … As the Court is aware, the COVID-19 virus presents substantially greater health risks to elderly individuals. That so many of the likely trial witnesses are of advanced age makes it even more imperative that the Court take every reasonable precaution to minimize the potential for exposure.”

Andy Bardos. Image from the GrayRobinson website

Thus, Bardos suggested a videoconference solution, which he called “simple, well-tested, and cost-effective,” as it could be conducted through the court’s own technology. The attorneys and witnesses could “appear ‘in court’ by a secure, password-protected, video link.”

“Of course,” he wrote, “under ordinary circumstances, a live trial would be preferable. But these are not ordinary circumstances.”

Along with Bardos, the attorneys representing the county are George T. Levesque, James Timothy Moore Jr. and John A. Boudet of GrayRobinson, as well as County Attorney Frederick J. Elbrecht. Boudet works out of the GrayRobinson office in Orlando, according to the latest filings in the case.

The attorneys for the plaintiffs are Lawrence A. Kellogg and Tal Aburos of the Miami firm Levine Kellogg Lehman Schneider + Grossman; Steven D. Hutton and Przemyslaw L. Dominko of Hutton & Dominko of Sarasota; and Hugh F. Culverhouse Jr., a former federal prosecutor and the developer of Palmer Ranch, whose address is listed as Coral Gables.