Advisory Opinion to the Governor Re: Whether Article III, Section 20(A) of the Florida Constitution Requires the Retention of a District in Northern Florida, etc. ( 2022 )

Supreme Court of Florida
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No. SC22-139
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ADVISORY OPINION TO THE GOVERNOR RE: WHETHER
ARTICLE III, SECTION 20(A) OF THE FLORIDA CONSTITUTION
REQUIRES THE RETENTION OF A DISTRICT IN NORTHERN
FLORIDA, etc.
February 10, 2022
PER CURIAM.
On February 1, 2022, the Governor of Florida requested an
advisory opinion from this Court pursuant to article IV, section 1(c)
of the Florida Constitution relating to the constitutionality of
redistricting congressional District 5. Specifically, the Governor
asks, “whether Article III, Section 20(a) of the Florida Constitution
requires the retention of a district in northern Florida that connects
the minority population in Jacksonville with distant and distinct
minority populations (either in Leon and Gadsden Counties or
outside of Orlando) to ensure sufficient voting strength, even if not
a majority, to elect a candidate of their choice.” The Governor also
cites precedent from this Court and the United States Supreme
Court pertaining to this issue and seeks further “guidance on what
the non-diminishment standard” requires and “clarification from
this Court on what constitutes a proper benchmark for determining
whether a minority group’s ability to elect a candidate of its choice
has been diminished.” On February 2, 2022, this Court requested
“briefs from interested persons addressing whether the Governor’s
request is within the purview of [article IV, section 1(c)], and if so
whether the Court should exercise its discretion to provide an
opinion in response to the request.”
Several interested persons argue that the Court does not have
jurisdiction to render an advisory opinion under the circumstances
described by the Governor’s request. We need not make that
determination because assuming the Court has jurisdiction, which
we do not decide, we exercise our discretion to deny the request for
an advisory opinion. See Advisory Op. to Governor re
Implementation of Amendment 4, The Voting Restoration Amendment,
288 So. 3d 1070, 1074 (Fla. 2020) (“After concluding that the
Governor’s request was within the purview of article IV, section 1(c)
of the Florida Constitution, we agreed to exercise our discretion to
provide an advisory opinion.”); In re Advisory Op. to the Governor,
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509 So. 2d 292, 300 (Fla. 1987) (“It is the decision of the Court that
this request is answerable under the above-noted section of the
Constitution and we exercise our discretion to do so.”).
This Court’s advisory opinions to the Governor are generally
limited to narrow questions. See, e.g., Advisory Op. to Governor re
Implementation of Amendment 4, 288 So. 3d at 1075 (answering
only “the narrow question of whether the phrase ‘all terms of
sentence’ includes LFOs ordered by the sentencing court”). Here,
the scope of the Governor’s request is broad and contains multiple
questions that implicate complex federal and state constitutional
matters and precedents interpreting the Voting Rights Act of 1965.
While this Court acknowledges the importance of the issues
presented by the Governor and the expressed need for quick
resolution and finality, history shows that the constitutionality of a
final redistricting bill for all congressional districts will be subject to
more judicial review through subsequent challenges in court.
Moreover, the Governor’s request might necessitate fact-intensive
analysis and consideration of other congressional districts, not just
District 5. We have no record before us setting forth a functional
analysis of statistical evidence, such as the voting age of minority
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populations and election results. A record will assist the judiciary
in answering the complex federal and state constitutional issues
implicated by the Governor’s request. See generally Brown v.
Firestone, 382 So. 2d 654, 671 (Fla. 1980) (a declaratory action
challenging the constitutionality of legislative action in circuit court
will enable the parties “to develop a full record upon which the
court can base an intelligent decision”).
Accordingly, we respectfully deny the request for an advisory
opinion. No rehearing will be permitted.
It is so ordered.
POLSTON, LABARGA, MUÑIZ, COURIEL, and GROSSHANS, JJ.,
concur.
CANADY, C.J., and LAWSON, J., recused.
Original Proceeding – Advisory Opinion to the Governor
Mohammad Jazil and Michael Beato of Holtzman Vogel Josefiak
Torchinsky PLLC, Tallahassee, Florida, and Jason Torchinsky of
Holtzman Vogel Josefiak Torchinsky PLLC, Haymarket, Virginia;
and Ryan Newman, General Counsel, Joshua Pratt and Nicholas
Meros, Deputy General Counsel, Executive Office of the Governor,
Tallahassee, Florida,
for The Honorable Ron DeSantis, Governor of Florida
Henry C. Whitaker, Solicitor General, Daniel W. Bell, Chief Deputy
Solicitor General, and Evan Ezray, Deputy Solicitor General, Office
of the Attorney General, Tallahassee, Florida,
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for Interested Party, Attorney General Ashley Moody
Henry M. Coxe III and Michael E. Lockamy of Bedell, Dittmar,
DeVault, Pillans & Coxe, P.A., Jacksonville, Florida; and Jacob
Tuttle Newman, Peter A. Nelson, Catherine J. Djang, and Gregory L.
Diskant of Patterson Belknap Webb & Tyler LLP, New York, New
York,
for Interested Parties, Common Cause Florida and
FairDistricts Now
Joseph W. Jacquot, Lauren V. Purdy, and Pierce N. Giboney of
Gunster, Jacksonville, Florida,
for Interested Party, Mayor Lenny Curry
Daniel E. Nordby of Shutts & Bowen LLP, on behalf of the Florida
Senate, Tallahassee, Florida; and Andy Bardos of GrayRobinson, on
behalf of the Florida House of Representatives, Tallahassee, Florida,
for Interested Parties, the Florida Senate and the Florida
House of Representatives
Thomas A. Zehnder and Frederick S. Wermuth of King, Blackwell,
Zehnder & Wermuth, P.A., Orlando, Florida; Abha Khanna and
Jonathan P. Hawley of Elias Law Group LLP, Seattle, Washington,
Graham W. White and Christina A. Ford of Elias Law Group LLP,
Washington, District of Columbia; and John M. Devaney of Perkins
Coie LLP, Washington, District of Columbia,
for Interested Party, All On The Line Florida
Carl Christian Sautter, Washington, District of Columbia, Larry S.
Davis, Hollywood, Florida, Benedict P. Kuehne and Michael T.
Davis, Miami, Florida, and Jason B. Blank, Fort Lauderdale,
Florida,
for Interested Party, Rep. Sheila Cherfilus-McCormick,
Member of Congress, Florida Congressional District 20
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