This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h7501.RDC
DATE: 1/26/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HJR 7501 PCB SRS 22-01 Joint Resolution of Apportionment
SPONSOR(S): Redistricting Committee, State Legislative Redistricting Subcommittee, Byrd
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: State Legislative Redistricting
Subcommittee
13 Y, 7 N Wagoner Kelly
1) Redistricting Committee 17 Y, 7 N, As CS Wagoner Kelly
SUMMARY ANALYSIS
The Florida Constitution requires the Legislature, by joint resolution at its regular session in the second year
after the United States decennial census, to apportion state legislative districts. The U.S. Constitution requires
the reapportionment of the U.S. House of Representatives every ten years, which includes the distribution of
the House’s 435 seats between the states, and the equalization of population between districts within each
state.
The 2020 Census revealed an unequal distribution of growth across Florida’s state legislative and
congressional districts. Therefore, districts must be adjusted to correct population differences.
Redistricting Plan H000H8013: This joint resolution reapportions the resident population of Florida into
120 State House districts, as required by state and federal law.
This proposed committee substitute would substantially amend Chapter 10 of the Florida Statutes.
When compared to the existing 120 State House districts, this proposed committee substitute would:
• Reduce the number of cities split from 101 to 53;
• Improve the statewide averages of mathematical compactness scores;
• Increase the number of county splits by one;
• Increase the total population deviation from 3.97% to 4.75%, still within the legally acceptable range,
and
• Ensures all protected minority districts have the ability to elect candidates of their choice, in alignment
with the federal Voting Rights Act and the Florida Constitution.
Upon approval by the Legislature, within 15 days, the Attorney General must petition the Florida Supreme
Court to review this joint resolution. The Florida Supreme Court must enter its judgment within 30 days from
the filing of the petition. Should the joint resolution be approved by the Florida Supreme Court, it is to be
deemed binding on all citizens. Should the joint resolution not be approved by the Florida Supreme Court, Art.
III, Section 16 of the Florida Constitution outlines timelines and additional directives for the Legislature.
STORAGE NAME: h7501.RDC PAGE: 2
DATE: 1/26/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
The 2020 Census
According to Article I, Section 2 of the U.S. Constitution, the U.S. Census Bureau is required to do an
“actual enumeration” of all people living in the United States every 10 years.
1
While the census results
in many work products and data sets, the two most relevant to redistricting include the Apportionment
Counts and Public Law 94-171 redistricting data (commonly referred to as the “P.L. Data”) for each
state. The redistricting dataset contains summary statistics on population, demographics and housing
per census block. The included population data is categorized by total population and total population
for individuals 18 years and older, both by race and Hispanic or Latino origin.
For the first time in its 40 years of modern data collection and distribution, the U.S. Census Bureau
missed its statutory deadlines for delivering Apportionment Counts and the redistricting data to the
states.
2
These delays were a result of wildfires, hurricanes, civil unrest, and the COVID-19 pandemic
experienced during 2020.
The actual release date of each state’s Apportionment Count was on April 26, 2021, close to four
months behind its statutory deadline of December 31, 2020. And the official release date for the
redistricting data was August 12, 2021, missing its statutory deadline of March 31, 2021 by close to six
months. In an effort to get redistricting data released to the states as efficiently as possible, the data
was first released in a “legacy file” format on August 12 while the official data release, deemed to be a
more “user-friendly” format, occurred on September 30, 2021.
Although the U.S. Census Bureau faced unprecedented hurdles and timeline delays, Florida’s
enumeration was completed at a 99.9 percent rate.
3
Florida reached the same rate of completion as the
national average, and this success was aided by traditional paper methods, in addition to the census
being offered online for the first time in history.
Results of the 2020 Census
According to the 2020 Census, 21,538,187 people resided in Florida on April 1, 2020, which represents
a population growth of 2,736,877 in Florida residents between the 2010 to 2020 censuses. This
increase in population also resulted in Florida gaining a congressional district, bringing the total to 28
districts.
After the 2010 Census, the ideal population for each district in Florida was:
Congressional: 696,345, based on 27 districts
State Senate: 470,033, based on 40 districts
State House: 156,678, based on 120 districts
1
U.S. Const. art. 1, §2.
2
13 U.S.C. § 141 (1976).
3
2020 Census Response Rate Update: 99.98% Complete Nationwide. U.S. Census Bureau (Oct. 19, 2020), 2020 Census Response
Rate Update: 99.98% Complete Nationwide (last visited Jan.14, 2022). STORAGE NAME: h7501.RDC PAGE: 3
DATE: 1/26/2022
After the 2020 Census, the ideal population for each district in Florida was:
Congressional: 769,221, based on 28 districts
State Senate: 538,455, based on 40 districts
State House: 179,485, based on 120 districts
As in previous decades, the 2020 Census revealed an unequal increase and shift in population growth
amongst the state’s legislative and congressional districts. Therefore, districts must be adjusted to
comply with “one-person, one vote,” such that each district must be nearly as equal in population as
practicable.
Table 1 below shows the changes in population for each of Florida’s current State House districts and
their subsequent deviation from the new ideal population of 179,485 residents.
Table 1. Florida House Districts Change in Population from 2010 to 2020
HD 2010 Pop. 2020 Pop. Change %Change
Over-Under
Population
Over-Under
Population %
1 156,303 173,738 17,435 11.15% -5,747 -3.20%
2 155,932 164,247 8,315 5.33% -15,238 -8.49%
3 158,797 200,554 41,757 26.30% 21,069 11.74%
4 158,781 183,034 24,253 15.27% 3,549 1.98%
5 159,198 178,785 19,587 12.30% -700 -0.39%
6 159,266 164,026 4,760 2.99% -15,459 -8.61%
7 156,188 153,589 -2,599 -1.66% -25,896 -14.43%
8 155,921 158,775 2,854 1.83% -20,710 -11.54%
9 156,370 168,189 11,819 7.56% -11,296 -6.29%
10 156,423 161,371 4,948 3.16% -18,114 -10.09%
11 156,023 183,285 27,262 17.47% 3,800 2.12%
12 156,867 179,332 22,465 14.32% -153 -0.09%
13 156,504 173,073 16,569 10.59% -6,412 -3.57%
14 155,895 179,268 23,373 14.99% -217 -0.12%
15 155,797 174,081 18,284 11.74% -5,404 -3.01%
16 156,491 196,880 40,389 25.81% 17,395 9.69%
17 157,926 233,994 76,068 48.17% 54,509 30.37%
18 154,544 177,702 23,158 14.98% -1,783 -0.99%
19 154,740 158,314 3,574 2.31% -21,171 -11.80%
20 156,856 168,327 11,471 7.31% -11,158 -6.22%
21 156,918 178,899 21,981 14.01% -586 -0.33%
22 154,726 178,682 23,956 15.48% -803 -0.45%
23 155,606 174,384 18,778 12.07% -5,101 -2.84%
24 157,896 186,404 28,508 18.05% 6,919 3.85%
25 155,274 173,106 17,832 11.48% -6,379 -3.55%
26 154,120 179,126 25,006 16.23% -359 -0.20%
27 155,112 169,716 14,604 9.42% -9,769 -5.44%
28 158,813 177,835 19,022 11.98% -1,650 -0.92%
29 159,162 177,803 18,641 11.71% -1,682 -0.94%
30 156,153 172,802 16,649 10.66% -6,683 -3.72%
31 158,462 189,677 31,215 19.70% 10,192 5.68%
32 155,664 213,960 58,296 37.45% 34,475 19.21%
33 156,488 202,728 46,240 29.55% 23,243 12.95%
34 157,143 172,829 15,686 9.98% -6,656 -3.71%
35 156,871 175,529 18,658 11.89% -3,956 -2.20%
36 154,847 172,035 17,188 11.10% -7,450 -4.15%
37 154,993 199,186 44,193 28.51% 19,701 10.98% STORAGE NAME: h7501.RDC PAGE: 4
DATE: 1/26/2022
38 154,857 190,670 35,813 23.13% 11,185 6.23%
39 154,817 207,578 52,761 34.08% 28,093 15.65%
40 155,028 172,934 17,906 11.55% -6,551 -3.65%
41 155,727 207,346 51,619 33.15% 27,861 15.52%
42 154,915 211,860 56,945 36.76% 32,375 18.04%
43 157,986 212,279 54,293 34.37% 32,794 18.27%
44 157,485 237,174 79,689 50.60% 57,689 32.14%
45 156,253 182,043 25,790 16.51% 2,558 1.43%
46 156,157 181,820 25,663 16.43% 2,335 1.30%
47 158,274 179,005 20,731 13.10% -480 -0.27%
48 156,456 193,368 36,912 23.59% 13,883 7.73%
49 159,069 188,979 29,910 18.80% 9,494 5.29%
50 158,877 214,107 55,230 34.76% 34,622 19.29%
51 159,406 165,453 6,047 3.79% -14,032 -7.82%
52 159,438 182,885 23,447 14.71% 3,400 1.89%
53 159,628 187,131 27,503 17.23% 7,646 4.26%
54 156,053 179,790 23,737 15.21% 305 0.17%
55 155,882 157,883 2,001 1.28% -21,602 -12.04%
56 154,900 161,008 6,108 3.94% -18,477 -10.29%
57 157,418 234,597 77,179 49.03% 55,112 30.71%
58 158,568 175,465 16,897 10.66% -4,020 -2.24%
59 158,232 185,352 27,120 17.14% 5,867 3.27%
60 158,517 189,032 30,515 19.25% 9,547 5.32%
61 159,521 176,048 16,527 10.36% -3,437 -1.91%
62 158,453 170,895 12,442 7.85% -8,590 -4.79%
63 158,227 186,860 28,633 18.10% 7,375 4.11%
64 157,763 172,414 14,651 9.29% -7,071 -3.94%
65 157,869 165,826 7,957 5.04% -13,659 -7.61%
66 158,786 164,428 5,642 3.55% -15,057 -8.39%
67 158,424 166,737 8,313 5.25% -12,748 -7.10%
68 158,551 170,184 11,633 7.34% -9,301 -5.18%
69 158,702 163,038 4,336 2.73% -16,447 -9.16%
70 154,044 173,157 19,113 12.41% -6,328 -3.53%
71 158,594 171,683 13,089 8.25% -7,802 -4.35%
72 159,167 171,725 12,558 7.89% -7,760 -4.32%
73 159,249 221,894 62,645 39.34% 42,409 23.63%
74 157,964 193,250 35,286 22.34% 13,765 7.67%
75 159,978 186,847 26,869 16.80% 7,362 4.10%
76 153,745 180,111 26,366 17.15% 626 0.35%
77 157,482 197,482 40,000 25.40% 17,997 10.03%
78 153,781 193,526 39,745 25.85% 14,041 7.82%
79 153,746 189,703 35,957 23.39% 10,218 5.69%
80 155,637 188,858 33,221 21.35% 9,373 5.22%
81 156,038 176,468 20,430 13.09% -3,017 -1.68%
82 156,533 169,041 12,508 7.99% -10,444 -5.82%
83 156,370 188,480 32,110 20.53% 8,995 5.01%
84 156,530 178,666 22,136 14.14% -819 -0.46%
85 158,442 180,551 22,109 13.95% 1,066 0.59%
86 157,949 178,360 20,411 12.92% -1,125 -0.63%
87 156,640 176,207 19,567 12.49% -3,278 -1.83%
88 156,720 181,550 24,830 15.84% 2,065 1.15%
89 155,172 178,167 22,995 14.82% -1,318 -0.73%
90 154,984 175,380 20,396 13.16% -4,105 -2.29%
91 156,622 172,098 15,476 9.88% -7,387 -4.12%
92 154,926 178,118 23,192 14.97% -1,367 -0.76% STORAGE NAME: h7501.RDC PAGE: 5
DATE: 1/26/2022
93 157,815 170,619 12,804 8.11% -8,866 -4.94%
94 156,361 170,424 14,063 8.99% -9,061 -5.05%
95 154,882 173,211 18,329 11.83% -6,274 -3.50%
96 155,095 179,711 24,616 15.87% 226 0.13%
97 155,698 176,823 21,125 13.57% -2,662 -1.48%
98 155,182 169,406 14,224 9.17% -10,079 -5.62%
99 155,731 179,496 23,765 15.26% 11 0.01%
100 154,811 169,563 14,752 9.53% -9,922 -5.53%
101 154,888 166,158 11,270 7.28% -13,327 -7.43%
102 157,283 175,693 18,410 11.71% -3,792 -2.11%
103 156,504 182,386 25,882 16.54% 2,901 1.62%
104 155,234 163,760 8,526 5.49% -15,725 -8.76%
105 157,369 176,959 19,590 12.45% -2,526 -1.41%
106 155,388 164,757 9,369 6.03% -14,728 -8.21%
107 156,958 167,902 10,944 6.97% -11,583 -6.45%
108 156,848 158,656 1,808 1.15% -20,829 -11.60%
109 154,121 174,616 20,495 13.30% -4,869 -2.71%
110 154,817 155,096 279 0.18% -24,389 -13.59%
111 156,697 154,240 -2,457 -1.57% -25,245 -14.07%
112 154,895 178,897 24,002 15.50% -588 -0.33%
113 156,568 159,963 3,395 2.17% -19,522 -10.88%
114 158,069 163,850 5,781 3.66% -15,635 -8.71%
115 156,215 168,110 11,895 7.61% -11,375 -6.34%
116 155,722 165,053 9,331 5.99% -14,432 -8.04%
117 156,881 198,993 42,112 26.84% 19,508 10.87%
118 156,562 162,358 5,796 3.70% -17,127 -9.54%
119 156,170 165,661 9,491 6.08% -13,824 -7.70%
120 154,924 185,050 30,126 19.45% 5,565 3.10%
The law governing the reapportionment and redistricting of congressional and state legislative districts
invokes the U.S. Constitution, the Florida Constitution, federal statutes, and a variety of state and
federal case law. Therefore, all redistricting plans must comply with all requirements of the U.S.
Constitution, the federal Voting Rights Act, the Florida Constitution, and applicable court decisions.
U.S. Constitution
The U.S. Constitution requires the reapportionment of the U.S. House of Representatives every 10
years to distribute each of the House of Representatives’ 435 seats between the states and to equalize
population between districts within each state.
Article I, Section 4 of the U.S. Constitution provides that “[t]he Time, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by law make or alter such regulations, except as to the
places of choosing Senators.” The U.S. Constitution thus delegates to state legislatures authority,
subject to congressional regulation, to create congressional districts.
The requirement that each district be equal in population applies differently to congressional districts
than to state legislative districts. The populations of congressional districts must achieve absolute
mathematical equality, with no de minimis exception.
4
Limited population variances are permitted if
they are “unavoidable despite a good faith effort” or if a valid “justification is shown.”
5
In addition to state specific requirements, states are obligated to redistrict based on the principle
interpreted by the Court as “one-person, one-vote.”
6
In Reynolds, the U.S. Supreme Court held that the
4
Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969).
5
Id.
6
Baker v. Carr, 369 U.S. 186 (1962). STORAGE NAME: h7501.RDC PAGE: 6
DATE: 1/26/2022
14
th
Amendment required that seats in state legislature be reapportioned on a population basis. The
Supreme Court concluded:
“…the basic principle of representative government remains, and must remain,
unchanged – the weight of a citizen’s vote cannot be made to depend on where he lives.
Population is, of necessity, the starting point for consideration and the controlling
criterion for judgment in legislative apportionment controversies…The Equal Protection
Clause demands no less than substantially equal state legislative representation for all
citizens, of all places as well as of all races. We hold that, as a basic constitutional
standard, the Equal Protection Clause requires that the seats in both houses of a
bicameral state legislature must be apportioned on a population basis.”
7
The Court went on to conclude that decennial reapportionment was a rational approach to readjust
legislative representation to take into consideration population shifts and growth.
8
In practice, congressional redistricting has strictly adhered to the requirement of exact mathematical
equality. In Kirkpatrick v. Preisler the Court rejected several justifications for violating this principle,
including “a desire to avoid fragmenting either political subdivisions or areas with distinct economic and
social interests, considerations of practical politics, and even an asserted preference for geographically
compact districts.”
9
For state legislative districts, the courts have permitted a greater population deviation amongst districts.
The populations of state legislative districts must be “substantially equal.”
10
Substantial equality of
population has come to generally mean that a legislative plan will not be held to violate the Equal
Protection Clause if the difference between the least populous and most populous district is less than
10 percent.
11
Nevertheless, any significant deviation (even within the 10 percent overall deviation
margin) must be “based on legitimate considerations incident to the effectuation of a rational state
policy,”
12
including “the integrity of political subdivisions, the maintenance of compactness and
contiguity in legislative districts, or the recognition of natural or historical boundary lines.”
13
However, states should not interpret this 10 percent standard to be a safe haven.
14
Additionally,
nothing in the U.S. Constitution or case law prevents states from imposing stricter standards for
population equality.
Florida’s benchmark maps from the 2012 redistricting cycle had population deviation ranges of 3.97%
for its State House districts, 1.98% for it State Senate districts,
15
and plus or minus one person for
Congressional districts.
16
The State House districts proposed by the committee bill have a population
deviation range of 4.75%.
7
Reynolds v. Sims, 377 U.S. 533, 568 (1964).
8
Reynolds v. Sims, 377 U.S. at 584.
9
Kirkpatrick v. Preisler, 394 U.S. at 531.
10
Reynolds v. Sims, 377 U.S. at 568.
11
Chapman v. Meier, 420 U.S. 1 (1975); Connor v. Finch, 431 U.S. 407, 418 (1977).
12
Reynolds, 377 U.S. at 579.
13
Swann v. Adams, 385 U.S. 440, 444 (1967).
14
Marylanders for Fair Representation Inc. vs. Schafer, 849 F. Supp. 1022, 1032 (D. Md. 1994).
15
Florida House of Representatives, Staff Analysis of 2012 Senate Joint Resolution 1176, p. 21 and 40 (March 9, 2012).
16
Florida House of Representatives, Staff Analysis of 2012 Senate Bill 1174, p. 17 (March 9, 2012). STORAGE NAME: h7501.RDC PAGE: 7
DATE: 1/26/2022
The Voting Rights Act
Congress passed the Voting Rights Act (VRA) in 1965. The VRA protects the right to vote as
guaranteed by the 15
th
Amendment to the U.S. Constitution. In addition, the VRA enforces the
protections of the 14
th
Amendment to the U.S. Constitution by ensuring minority voters an equal
opportunity to participate in the political process and to elect candidates of their choice.
The Voting Rights Act – Section 2
Common challenges to congressional and state legislative districts generally arise under Section 2 of
the Voting Rights Act. Section 2 provides: “No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State…in a manner which results in a denial
or abridgement of the right of any citizen of the United States to vote on account of race or color, or in
contravention of the guarantees” provided to language minorities.
17
This provision prohibits “vote-
dilution,” which was further defined in the Gingles case. The purpose of Section 2 is to ensure that
minority voters have an equal opportunity along with other members of the electorate to participate in
the political process and elect representatives of their choice.
18
The Supreme Court set forth the criteria of a vote-dilution claim in Thornburg v. Gingles.
19
A plaintiff
must show that:
1. A minority group is sufficiently large and geographically compact to constitute a majority in a single-
member district;
2. The minority group is politically cohesive, and
3. White voters vote sufficiently as a bloc to enable them usually to defeat the candidate preferred by
the minority group.
The three “Gingles factors” are necessary, but not sufficient, to show a violation of Section 2.
20
To
determine whether minority voters have been denied an equal opportunity to participate in the political
process and elect representatives of their choice, a court must examine the totality of the
circumstances.
21
This analysis requires consideration of the so-called “Senate factors,” which assess historical patterns
of discrimination and the success, or lack thereof, of minorities in participating in campaigns and being
elected to office.
22
Generally, these “Senate factors” were born in an attempt to distance Section 2
claims from standards that would otherwise require plaintiffs to prove “intent,” which Congress viewed
as an additional and largely excessive burden of proof, because “it diverts the judicial injury from the
crucial question of whether minorities have equal access to the electoral process to a historical
question of individual motives.”
23
In Bartlett v. Strickland, the Supreme Court provided a “bright line” distinction between majority-minority
districts and other minority districts. The Court “concluded that Section 2 does not require states to
“draw election-district lines to allow a racial minority to join with other voters to elect the minority’s
candidate of choice, even where the minority is less than 50 percent of the voting-age population in in
the district to be drawn.”
24
However, the Court made clear that, where no other prohibition exists, states
retain flexibility to implement crossover districts—districts in which minority voters are not a majority of
the voting-age population, but, at least potentially, are large enough to elect the candidates of their
17
52 U.S.C. § 10301(a).
18
52 U.S.C. § 10301(b); Voinovich v. Quilter, 507 U.S. 146, 155 (1993).
19
Thornburg vs. Gingles, 478 U.S. 30 (1986).
20
Johnson v. De Grandy, 512 U.S. 997, 1011-12 (1994).
21
52 U.S.C. § 10301(b); Gingles, 478 U.S. at 46.
22
Senate Report Number 417, 97
th
Congress, Session 2 (1982).
23
Id.
24
Bartlett v. Strickland, 556 U.S. 1, 6 (2009). STORAGE NAME: h7501.RDC PAGE: 8
DATE: 1/26/2022
choice with help from voters who are members of the majority, and who cross over to support the
minority’s preferred candidate. In the opinion of the Court, Justice Kennedy stated as follows:
“Much like § 5, § 2 allows States to choose their own method of complying with the
Voting Rights Act, and we have said that may include drawing crossover districts…When
we address the mandate of § 2, however, we must note it is not concerned with
maximizing minority voting strength…and, as a statutory matter, §2 does not mandate
creating or preserving crossover districts. Our holding also should not be interpreted to
entrench majority-minority districts by statutory command, for that, too, could pose
constitutional concerns…States that wish to draw crossover districts are free to do so
where no other prohibition exists. Majority-minority districts are only required if all three
Gingles factors are met and if § 2 applies based on a totality of the circumstances. In
areas with substantial crossover voting it is unlikely that the plaintiffs would be able to
establish the third Gingles precondition—bloc voting by majority voters.”
25
The Voting Rights Act – Section 5
Section 5 of the VRA is no longer in effect, as further described below. This section is provided for
historical context.
Section 5 of the Voting Rights Act was an independent mandate separate and distinct from the
requirements of Section 2. As interpreted by the Supreme Court, the purpose of Section 5 was the
means “designed by Congress to banish the blight of racial discrimination in voting, which had infected
the electoral process.”
26
These preclearance measures were intended to protect against retrogression.
Section 5 originally applied to six whole states; additional states, as well as cities and counties, were
later added to the pre-clearance requirements. In subsequent years, some states implemented their
own retrogression standards to protect against retrogression similar to Florida’s constitutional standards
found in Article. III, Section(s) 20 and 21.
Section 5 required states that were included in “covered jurisdictions” to obtain federal preclearance of
any new enactment of or amendment to a “voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting.”
27
This included redistricting plans.
Five Florida counties – Collier, Hardee, Hendry, Hillsborough, and Monroe – had been designated as
covered jurisdictions under Section 5 pre-clearance process.
28
These five Florida counties were added
to the Voting Rights Act in 1975 to provide protections for language minorities. However, in 2013, the
U.S. Supreme Court declared in Shelby County v. Holder that the “coverage formula” in Section 4 of the
VRA – the formula by which Congress selected the jurisdictions that Section 5 covered – exceeded
Congress’s enforcement authority under the 15
th
Amendment.
29
The Court further stated that Congress
could update the coverage formula with new legislation, but Congress has since failed to do so. After
Shelby, the preclearance process established by Section 5 of the VRA was no longer in effect
nationwide. However, the Shelby decision did not affect the validity of the statewide diminishment
standards in Florida’s Constitution, which protect the ability of racial and language minorities in Florida
to elect the representatives of their choice.
25
Id.
26
South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
27
52 U.S.C. § 10304.
28
Some states were covered in their entirety. In other states only certain counties or cities were covered.
29
Shelby County v. Holder, 570 U.S. 529 (2013) STORAGE NAME: h7501.RDC PAGE: 9
DATE: 1/26/2022
Equal Protection – Racial Gerrymandering
Racial gerrymandering is “the deliberate and arbitrary distortion of district boundaries...for (racial)
purposes.”
30
Racial gerrymandering claims are justiciable under equal protection.
31
In the wake of Shaw
v. Reno, the Court rendered several opinions that attempted to harmonize the balance between
“competing constitutional guarantees that: one, no state shall purposefully discriminate against any
individual on the basis of race; and two, members of a minority group shall be free from discrimination
in the electoral process.”
32
To make a prima facie showing of impermissible racial gerrymandering, the burden rests with the
plaintiff to “show, either through circumstantial evidence of a district’s shape and demographics or more
direct evidence going to legislative purpose, that race was the predominant factor motivating the
legislature’s decision to place a significant number of voters within or without a particular district.”
33
Thus, the “plaintiff must prove that the legislature subordinated traditional race-neutral districting
principles…to racial considerations.”
34
If the plaintiff meets this burden, “the State must demonstrate
that its districting legislation is narrowly tailored to achieve a compelling interest.”
35
The U.S. Supreme
Court assumed in Bethune-Hill vs. Virginia State Board of Elections that complying with the
requirements set forth in the VRA can be considered a compelling state interest.
36
Equal Protection – Partisan Gerrymandering
Partisan gerrymandering is the practice of “drawing electoral district lines to intentionally benefit one
political party over others.”
37
As determined in the 2019 U.S. Supreme Court case of Rucho vs.
Common Cause, partisan gerrymandering claims are nonjusticiable under the United States
Constitution and are considered to be “political questions” outside the scope of judicial review.
38
The
Court went further in Rucho, stating that the fundamental difficulty in formulating a standard for
adjudicating partisan gerrymandering claims is “determining what is fair” and that there is “extreme
difficulty on settling on a clear, manageable and politically neutral test.”
39
Florida Statutes – Chapters 8 and 10
Under Florida law, chapters 8 and 10 provide the structure for apportionment of Congressional and
State Senate and House districts, respectively. These sections provide the basis for how Florida will
use official census data and census blocks to draw districts. Census Blocks are the smallest
geographical unit or area for the collection and tabulation of population data.
40
Florida Constitution – Article III, Section 16
Article III, Section 16 of the Florida Constitution requires the Legislature, by joint resolution at its regular
session in the second year after the Census is conducted, to apportion the State into senatorial districts
and representative districts.
The Florida Constitution requires the legislature, by joint resolution, to reapportion the state into not less
than 30 nor more than 40 consecutively numbered senate districts and into not less than 80 and no
30
Shaw v. Reno, 509 U.S. 630, 640 (1993)
31
Shaw v. Reno, 509 U.S. at 642.
32
Shaw v. Reno, Id at 630; U.S. v. Hays, 515 U.S. 737 (1995); Miller v. Johnson, 515 U.S. 900 (1995); Bush v. Vera, 517 U.S. 952
(1996); Shaw v. Hunt (Shaw II), 517 U.S. 899 (1996); Lawyer v. Dept. of Justice, 521 U.S. 567 (1997); Hunt v. Cromartie, 526 U.S. 541
(1999); Easley v. Cromartie, 532 U.S. 234 (2001).
33
Miller v. Johnson, 515 U.S. 900, 916 (1995).
34
Id.
35
Miller v. Johnson, 515 U.S. at 920.
36
Bethune-Hill v. VA. State Board of Elections., 137 S. Ct. 788 (2017).
37
Redistricting Law 2020. National Conference of State Legislatures. November 2019. Page 99.
38
Rucho v. Common Cause, No. 18-422, slip op. at 30.
39
Id.
40
U.S. Census Bureau, (2011, July 11). What are census blocks?, https://www.census.gov/newsroom/blogs/random-samplings/2011/07/what-
are-census-blocks.html. (last visited Jan.4, 2022). STORAGE NAME: h7501.RDC PAGE: 10
DATE: 1/26/2022
more than 120 consecutively numbered representative districts.
41
Redistricting must occur in the
second year after each decennial census.
42
Florida is currently apportioned into 40 single-member
senate districts
43
and 120 single-member representative districts.
44
The Florida Constitution is silent with respect to process for congressional redistricting. Article I,
Section 4 of the U.S. Constitution grants to each state legislature the exclusive authority to apportion
seats designated to that state by providing the legislative bodies with the authority to determine the
times, place and manner of holding elections for senators and representatives. Consistent there with,
Florida has adopted its congressional apportionment plans by legislation subject to gubernatorial
approval.
45
Congressional apportionment plans are not subject to automatic review by the Florida
Supreme Court.
Florida Constitution - Article III, Sections 20 and 21
Article III, Sections 20 and 21 of the Florida Constitution establish the following standards for
congressional and state legislative redistricting, respectively:
In establishing congressional and state legislative district boundaries:
(a) No apportionment plan or individual district shall be drawn with the intent to favor or
disfavor a political party or an incumbent; and districts shall not be 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; and districts shall consist of contiguous territory.
(b) Unless compliance with the standards in this subsection conflicts with the standards
in subsection (a) or with federal law, districts shall be as nearly equal in population as is
practicable; districts shall be compact; and districts shall, where feasible, utilize existing
political and geographical boundaries.
(c) The order in which the standards within subsections (a) and (b) of this section are
set forth shall not be read to establish any priority of one standard over the other within
that subsection.”
These standards are set forth in two tiers. The first tier, subparagraphs (a) above, contains provisions
regarding political and incumbency favoritism, racial and language minorities, and contiguity. The
second tier, subparagraphs (b) above, contains provisions regarding equal population, compactness
and use of political and geographical boundaries.
The first tier provides that no apportionment plan or district shall be drawn with the intent to favor or
disfavor a political party or an incumbent. Redistricting decisions unconnected with an intent to favor or
disfavor a political party and incumbent do not violate this provision of the Florida Constitution, even if
their effect is to favor or disfavor a political party or incumbent.
46
The Florida Supreme Court stated that these new requirements prohibit what had previously been an
acceptable practice, “such as favoring incumbents and the political party in power.” The Court went on
to say that “Florida’s constitution prohibits intent, not effect and applies to both the plan as a whole and
41
Art. III, s. 16(a), Fla. Const.
42
Id.
43
Fla. HJR 1987 (2002).
44
Fla. HJR 25-E (2003).
45
See generally §8.0001, et seq., F. S. (2007).
46
In Hartung v. Bradbury, 33 P.3d 972, 987 (Or. 2001), the court held that “the mere fact that a particular reapportionment may result in
a shift in political control of some legislative districts (assuming that every registered voter votes along party lines),” does not show that
a redistricting plan was drawn with an improper intent. It is well recognized that political consequences are inseparable from the
redistricting process. In Vieth v. Jubelirer, 541 U.S. 267, 343 (2004) (Souter, J., dissenting) (“The choice to draw a district line one way,
not another, always carries some consequence for politics, save in a mythical State with voters of every political identity distributed in
an absolutely gray uniformity.”). STORAGE NAME: h7501.RDC PAGE: 11
DATE: 1/26/2022
to each district individually.” Further, the Florida Supreme Court stated that the “protection of racial and
language minorities against discrimination” is a tier one requirement, meaning that voters placed this as
a “top priority” that the legislature must comply with during redistricting.
47
To the extent that compliance with second-tier standards conflicts with first-tier standards, the second-
tier standards do not apply.
48
The order in which the standards are set forth within either tier does not
establish any priority of one standard over another within the same tier.
49
The first tier of the standards also provides the following protections for racial and language minorities:
Districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of
racial or language minorities to participate in the political process.
Districts shall not be drawn to diminish the ability of racial or language minorities to elect
representatives of their choice.
The Florida Supreme Court has held that these standards are essentially a restatement of Sections 2
and 5 of the Voting Rights Act.
50
The Court has construed the non-diminishment standard as imposing
a statewide non-retrogression standard on all sixty-seven counties in Florida. These protections have a
wider geographical reach than the non-retrogression protections found in Section 5 of the VRA, which
covered only five counties in Florida. Further, the state performs a “functional analysis” to ensure
compliance with the non-diminishment standard. This functional analysis is conducted by analyzing
Voting Age Population, Voter Turnout, Voter Registration, and Election Results for a given district. The
analysis is used to determine a minority population’s ability to elect the representatives of its choice.
51
The Florida Supreme Court emphasized that “mere access to political data cannot presumptively
demonstrate prohibited intent because such data is a necessary component of evaluating whether a
minority group has the ability to elect representatives of their choice.”
52
The map drawing application for the 2022 redistricting cycle includes the following data points for
General and Primary Election cycles from 2012-2020:
Voter Registration by Party
Voter Registration by Race or Ethnicity
Voter Registration by Race or Ethnicity and Party
Voter Registration by Party and Race or Ethnicity
Voter Turnout by Party
Voter Turnout by Party and Race or Ethnicity
Voter Turnout by Race or Ethnicity and Party
General Elections Results by Candidate
Primary Elections Results by Candidate
47
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 665.
48
Art. III, s. 20(b) and 21(b), Fla. Const.
49
Art. III, s. 20(c) and 21(c), Fla. Const.
50
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 619, 625.
51
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 627.
52
Id. STORAGE NAME: h7501.RDC PAGE: 12
DATE: 1/26/2022
The first tier also requires that districts consist of contiguous territory. In the context of state legislative
districts, the Florida Supreme Court has held that a district is contiguous if no part of the district is
isolated from the rest of the district by another district.
53
In a contiguous district, a person can travel
from any point within the district to any other point without departing from the district.
54
A district is not
contiguous if its parts touch only at a common corner, such as a right angle.
55
The Court has also
concluded that the presence in a district of a body of water without a connecting bridge, even if it
requires land travel outside the district in order to reach other parts of the district, does not violate
contiguity.
56
The second tier of these standards requires that districts be compact.
57
Compactness “refers to the
shape of the district.”
58
The Florida Supreme Court has confirmed that the primary test for compactness
is a visual examination of the general shape of the district.
59
“Compact districts should not have an
unusual shape, a bizarre design, or an unnecessary appendage unless it is necessary to comply with
some other requirement.”
60
The Florida Supreme Court recognized specific tests to measure
quantitively, mathematical compactness: the Reock, Convex Hull, and Polsby-Popper tests.
61
The second tier of these standards also requires that “districts shall, where feasible, utilize existing
political and geographical boundaries.”
62
“Political boundaries” refers to county and municipal lines.
63
The protection for counties and municipalities is consistent with the purpose of the standards to respect
existing community lines. “Geographical boundaries” refers to boundaries that are “easily ascertainable
and commonly understood, such as rivers, railways, interstates, and state roads.”
64
The Florida
Supreme Court stated that the tier two requirements are meant to restrict the legislature’s discretion in
drawing irregularly shaped districts.” The Court further stated that these standards “may undercut or
defeat any assertion of improper intent.”
65
Florida Constitution – Article X, Section 8
This section of the Florida Constitution states that each decennial census taken by the U.S.
government shall be the official census of the state of Florida.
66
53
In re Senate Joint Resolution 2G, Special Apportionment Session 1992, 597 So. 2d 276, 279 (Fla. 1992) (citing In re Apportionment
Law, Senate Joint Resolution 1E, 414 So. 2d 1040, 1051 (Fla. 1982)).
54
Id.
55
Id. (citing In re Apportionment Law, Senate Joint Resolution 1E, 414 So. 2d at 1051).
56
Id. at 280.
57
Art. III, s. 20(b) and 21(b), Fla. Const.
58
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 685.
59
Id. at 634 (“[A] review of compactness begins by looking at the shape of a district.”).
60
Id.
61
League of Women Voters of Fla. V. Detzner, 179 So. 3d 258, 283, 289 (Fla. 2015).
62
Art. III, s. 20(b) and 21(b), Fla. Const.
63
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 636-37.
64
Id. at 638 (marks omitted); see also id. (“Together with an analysis of compactness, an adherence to county and city boundaries, and
rivers, railways, interstates and state roads as geographical boundaries will provide a basis for an objective analysis of the plans and
the specific districts drawn.”).
65
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 618.
66
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Effect of Proposed Changes: Redistricting Plan H000H8013
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Proposed State House Map
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B. SECTION DIRECTORY:
Section 1 Provides that the 2020 Census is the official census of the state for the purposes of this
joint resolution; Lists and defines the geography utilized for the purposes of this joint
resolution in accordance with Public Law 94-171.
Section 2 Provides for the geographical description of the apportionment of the 120 State House
districts.
Section 3 Provides for the geographical description of the apportionment of the 40 State Senate
districts.
Section 4 Provides for the apportionment of any territory not specified for inclusion in any district.
Section 5 Provides for the apportionment of any noncontiguous territory.
Section 6 Provides that the districts created by this joint resolution constitute and form the
representative and senatorial districts of the State.
Section 7 Provides for the format of electronic maps to serve as the official maps of representative
and senatorial districts.
Section 8 Provides a severability clause in the event that any portion of this joint resolution is held
invalid.
Section 9 Provides that this joint resolution applies with respect to the qualification, nomination,
and election of members of the Florida Legislature in the primary and general elections
held in 2022 and thereafter.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
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DATE: 1/26/2022
2. Expenditures:
The reapportionment will have an indeterminate fiscal impact on Florida’s sixty-seven Supervisor of
Elections offices. Local supervisors will incur the cost of data-processing and labor to change voter
records to reflect new districts if they are impacted by this proposed map. As precincts are aligned
to new districts, postage and printing will be required to provide each active voter whose precinct
has changed with mail notification. Temporary staffing may be hired to assist with mapping, data
verification, and voter inquiries.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 26, 2022, the Redistricting Committee adopted a proposed committee substitute (PCS) and
reported the bill favorably as a committee substitute. The PCS differs from the original bill as it:
Reduces the number of cities split from 58 to 53;
Specifically, the proposed committee substitute makes the following changes:
Makes the city of Bradenton whole;
Makes the city of Oakland whole;
Makes the city of Edgewood whole;
Makes the city of Oakland Park whole;
Confirmed that the city of Oldsmar is whole;
Reduces the city of Miami Gardens district splits from 4 to 2;
Adjusts the boundary of District 105 to keep it wholly within Broward County;
Adjusts the boundary of Districts 20 and 27 to follow state highway 40;
Adjusts the boundary of Districts 69, 70 and 72 to follow a railway and the Hillsborough and
Manatee county lines;
Improves the compactness of Districts 60 and 62, and
Makes other technical census block adjustments to various districts.
The analysis is drafted to the committee substitute as passed by the Redistricting Committee.