Sarasota County seeking dismissal of redistricting lawsuit, contending complaint does not prove new map was ‘racially motivated’

County answer also says county did not violate the Florida Constitution, as plaintiffs have alleged

These are the Sarasota County Commission districts approved on Nov. 19, 2019. Image courtesy Sarasota County

Attorneys representing Sarasota County in the redistricting litigation are seeking dismissal of the class action complaint filed in the U.S. District Court for the Middle District of Florida, in Tampa, in December 2019.

The county answer to the lawsuit, filed on the evening of Jan. 22, contends that the November 2019 approval of new County Commission districts was not racially motivated, as the plaintiffs have argued.

“Once [those] conclusory allegations of ‘race-based’ redistricting are set aside,” the county answer says, “it quickly becomes clear that the Plaintiffs have no facts to support a plausible inference of racially discriminatory motivation.”

The answer adds, “Plaintiffs may not sue on a hunch and then seek confirmation of their hypothesis in discovery.”

Discovery is the process through which attorneys in a case seek documents for review in an effort to prove their arguments.

The answer further contends that the complaint’s allegation that the redistricting violated the U.S. Voting Rights Act is not valid, because “Sarasota County’s small African-American population [in Newtown] cannot mathematically form a majority in a single district,” as Section 2 of the U.S. Voting Rights Act requires.

The December 2019 complaint alleges that the county commissioners’ redrawing of district boundaries was planned to prevent voters in the traditionally African-American community of Newtown from participating in the 2020 election for the District 1 seat. In approving the new boundaries, the commissioners moved Newtown from District 1 to District 2. The seat for the latter district will not be contested again until the 2022 election because voters in November 2018 approved an amendment to the Sarasota County Charter that implemented single-member districts. That means voters in each district may cast ballots only for candidates who reside in that same district.

The county answer points out that “all voters in Districts 2 and 4, most of whom are white, will not vote for a county commissioner in 2020.”

The seats for Districts 1, 3 and 5 will be up for election this year.

A graphic shows the five County Commission districts prior to the redrawing of the lines. Image courtesy Sarasota County Government

Opponents of the commission’s approval of the new district lines — on a 3-2 vote — charged that the majority of Newtown’s voters also traditionally cast ballots for Democrats, and Republican Commissioner Michael Moran is up for re-election to the District 1 seat in 2020.

A Newtown resident, former Sarasota Mayor and City Commissioner Fredd Atkins, filed last year as a Democrat to face Moran in the District 1 race.

The new district boundaries have made Atkins ineligible to seek that seat.

All five of the county commissioners are Republicans.

Atkins is one of three Newtown residents who are lead plaintiffs in the federal lawsuit. The others are Mary Mack and Michael White.

The county answer says, “In fact, if Sarasota County’s entire African-American population could be included in one district, then African-Americans would comprise barely one-fifth of the district’s voting-age population. Because African-Americans cannot under any circumstances form a majority in a single district,” the answer continues,” the allegation that the County Commission violated Section 2 of the U.S. Voting Rights Act “should be dismissed with prejudice.” That means that argument could not be used in a refilling of the complaint.

A 2010 Census Bureau exhibit filed with the answer shows the total number of “Black or African American” residents in Sarasota County age 18 or older was 12,470, out of a total county population age 18 and older of 319,713. That put the African-American figure at just under 4% of the total.

The answer goes further. It notes that the total number of “single- and multi-race African-Americans of voting age” in Sarasota County at the time of the 2010 Census was 4.17%.

This is a section of the 2010 U.S. Census Bureau demographics for Sarasota County for the voting-age population. Image courtesy Sarasota County

When Section 2 of the Voting Rights Act is applicable, the answer says, it “requires the intentional creation of districts in which minorities can control electoral outcomes. Section 2 applies where, ‘based on the totality of circumstances,’ members of a minority group ‘have less opportunity than other [voters] to participate in the electoral process and to elect representatives of their choice.’” The answer was quoting the Section 52 of the U.S. Code, which was created based on the Voting Rights Act of 1965..

Moreover, the answer points to a 2004 decision of the 11th U.S. Circuit Court of Appeals, Dillard v. Baldwin County Commissioners. In that case, the answer continues, the court concluded “that the county’s African-American population — 9.13 percent of the county’s voting-age population — was too small to state a claim under section 2 [of the Voting Rights Act].”

The answer adds, “Five years after Dillard was decided, the Supreme Court confirmed that a minority group incapable of forming a majority in a single district cannot state a claim under section 2.”

Other facets of the answer

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

The answer also says the court should dismiss, with prejudice, Count III of the amended complaint, which contends that the redistricting violated Article III, Section 21 of the Florida Constitution. The answer argues that that section “governs districts drawn to elect members of the Florida Legislature — not county-commission districts.”

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,” the answer points out.

In 2010, the answer explains, Florida voters “adopted two state constitutional amendments that added redistricting standards to the Florida Constitution.” One of those amendments governs legislative districts, the answer says. The ballot title of that amendment, which created Article III, Section 21 of the Florida Constitution, was “STANDARDS FOR LEGISLATURE TO FOLLOW IN LEGISLATIVE REDISTRICTING.”

“The ballot title, therefore, plainly excluded county-commission districts,” the answer points out.

Finally, the answer contends that the complaint should not have named Commissioners Nancy Detert, Alan Maio and Moran individually because of their votes to approve the new district lines. “Sarasota County need not be sued four times,” the answer argues. “Because the county is a defendant,” naming them individually is “duplicative and unnecessary,” the answer says.

Commissioner Christian Ziegler consistently voiced opposition to the redistricting initiative last year, saying the board should not undertake that exercise until after the 2020 Census data became available.

Commissioner Hines steadfastly maintained that the new commission districts were necessary because of population growth in South County since the 2010 Census was conducted. He said the imbalance of the districts violated the constitutional mandate of “one person/one vote.” Those residents in districts that had experienced significant growth, Hines added, should have equal representation on the County Commission.

However, Hines ultimately said he could not support the map Detert, Maio and Moran approved because of the relocation of Newtown voters to District 2.

A delay in the filing

Andy Bardos. Image from the GrayRobinson website

Sarasota County’s answer to the federal lawsuit originally was due by Jan. 6. However, Assistant County Attorney David Pearce requested an extension to Jan. 16. He explained that the commission did not meet over a period of weeks because of the holidays, and staff needed to obtain conflict-of-interest waivers from the county commissioners before filing the answer.

Those waivers were necessary, County Attorney Frederick “Rick” Elbrecht told the commissioners on Jan. 14 — when they met for the first time in the new year — because county staff had proposed the hiring of outside counsel with the GrayRobinson firm in Tallahassee, and GrayRobinson had two other clients who potentially could become involved in litigation against Sarasota County.

The GrayRobinson attorneys for the county are Andy Bardos and George T. Levesque.

Before that Jan. 14 meeting, however — on Jan. 9 — the attorneys for the plaintiffs filed an amended motion.

When no county answer appeared in the federal court docket by Jan. 16, The Sarasota News Leader asked for an explanation from the Office of the County Attorney. On Jan. 22, staff of that office informed county Media Relations Officer Brianne Grant that the office would not provide any comment, as the litigation remained underway. Grant conveyed that to the News Leader.

It has been standard practice for years for the Office of the County Attorney to decline comment on any lawsuit until a court decision has been rendered.

Morgan Bentley. Contributed photo

The News Leader then turned to Sarasota attorney Morgan Bentley of Bentley & Bruning to ask whether he could offer any insights about the delay.

Bentley replied in a Jan. 22 email:

“Yes, it looks confusing but what happened is this:

  • “Complaint filed.
  • “Answer due but extension granted to respond until 1/16/20.
  • “Amended Complaint filed.

“Since the Amended Complaint is considered a new complaint,” Bentley added, “the prior extension is moot. The County now has to respond to the Amended Complaint.” Rule 15 of the Federal Rules of Civil Procedure gave the county 14 days for that response, he pointed out.

One other recent document in court records — filed Jan. 17 — shows that Tal Aburos of the Miami firm Levine Kellogg Lehman Schneider + Grossman has joined Lawrence A. Kellogg of that firm as an attorney for the plaintiffs.

Tal Aburos. Image from the Levine Kellogg Lehman Schneider + Grossman website

Hugh Culverhouse Jr., a former federal prosecutor and developer of Palmer Ranch; and Steven D. Hutton and Przemyslaw L. Dominko of Hutton & Dominko in Sarasota are on the plaintiffs’ legal team, as well.

Aburos’ biography on her webpage with the Miami law firm says her practice focuses “on complex commercial litigation.” It also points out that she graduated first in her class at the Florida International University College of Law.

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