In Re: Senate Joint Resolution of Legislative Apportionment 100 ( 2022 )

Supreme Court of Florida
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No. SC22-131
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IN RE: SENATE JOINT RESOLUTION OF LEGISLATIVE
APPORTIONMENT 100.
March 3, 2022
MUÑIZ, J.
The Florida Constitution requires the Legislature to
reapportion our state into House and Senate districts after each
decennial census. The Legislature did so this year by adopting
Senate Joint Resolution 100 on February 3, 2022. Then, as the
constitution commands, the Attorney General initiated this original
proceeding for a declaratory judgment to determine the validity of
the apportionment. 1 In what follows, we will explain our conclusion
that the House and Senate apportionment in Senate Joint
Resolution 100 is valid.
1. We have jurisdiction. Art III, § 16(c), Fla. Const. The
constitution gives us 30 days from the Attorney General’s February
9, 2022, filing to enter our judgment. Id.
I.
This case comes to us in an unusual posture. The
constitution requires our Court to hear from “adversary interests”
on the validity of the Legislature’s apportionment. Art. III, § 16(c).
And ordinarily our role in this proceeding would be to adjudicate
specific challenges to the joint resolution. See In re Senate Joint
Resolution of Legislative Apportionment 1176 (Apportionment I),
83 So. 3d 597, 601 (Fla. 2012) (“Before 1968, there was no process
by which challengers to the Legislature’s apportionment plans could
seek direct and immediate review of the apportionment plans by the
Supreme Court of Florida.”). But, for the first time since the voters
adopted the existing procedural framework for judicial review of
apportionment in 1968, no one appeared to oppose the Legislature’s
plans.
Even without a challenging party, however, the constitution
requires us to enter a judgment determining the validity of the
apportionment. Art. III, § 16(c). We undertake that task mindful of
a few foundational principles. First, the joint resolution of
apportionment enjoys a “presumption of validity.” Apportionment I,
83 So. 3d at 606. Second, and relatedly, it is not the Legislature’s
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burden to prove the validity of the apportionment. In a typical
review proceeding under article III, section 16(c), “[o]pponents of
[an] apportionment plan bear the burden of establishing a
constitutional violation.” In re Senate Joint Resolution of Legislative
Apportionment 2-B (Apportionment II), 89 So. 3d 872, 881 (Fla.
2012). Third, although the Legislature must exercise its discretion
within the bounds set by the constitution, “legislative
reapportionment is primarily a matter for legislative consideration
and determination.” In re Apportionment Law Senate Joint
Resolution No. 1305, 1972 Regular Session, 263 So. 2d 797, 799
(Fla. 1972).
Our Court’s duty under article III, section 16(c) is thus to
enforce any discretion-limiting standards embodied in the
constitutional text without curtailing the substantial discretion that
those same standards, and our constitution’s overarching
separation of powers, still reserve to the Legislature. In this regard,
the House and Senate maintain that we erred in 2012 by not
requiring challengers to prove an apportionment’s invalidity
“beyond a reasonable doubt,” and they ask us to reconsider that
issue. We do not think that this uncontested proceeding is the
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place to delve into the standard of review for future, hypothetical
challenges. Instead, given the presumption of validity and in the
absence of a challenge to Senate Joint Resolution 100, we will
review the materials before us to ensure that there is evidence in
the record to support the validity of the 2022 apportionment.
II.
Our primary focus here is on article III, section 21 of the
Florida Constitution, which prescribes what the text calls
“standards for establishing legislative district boundaries.” The
voters of our state adopted these standards through the Fair
Districts Amendment in 2010. That amendment substantially
augmented the constitutional requirements that had governed
reapportionment up to that time. See In re Constitutionality of
House Joint Resolution 1987, 817 So. 2d 819, 832 (Fla. 2002)
(listing then-governing constitutional requirements).
We have described article III, section 21 as consisting of two
tiers, each with its own distinct standards. Apportionment I,
83 So. 3d at 614-15. The tier-one standards take precedence over
those in tier two; but the order of the standards within each tier
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“shall not be read to establish any priority of one standard over the
other.” Art. III, § 21(c).
The first of the tier-one standards prohibits intentional
political favoritism: “No apportionment plan or district shall be
drawn with the intent to favor or disfavor a political party or an
incumbent.” The next set of tier-one standards protects racial and
language minority voters: “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.”
The final tier-one standard requires districts to “consist of
contiguous territory.” Art. III, § 21(a).
The tier-two standards address legislative districts’ population,
shape, and boundaries. Districts “shall be as nearly equal in
population as is practicable”; they “shall be compact”; and they
“shall, where feasible, utilize existing political and geographical
boundaries.” The constitution is explicit that, in the event of a
conflict, the tier-two standards yield to the tier-one standards and
to federal law. Art. III, § 21(b). Because the constitutional text does
not set a hierarchy among the tier-two standards themselves, the
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Legislature retains the discretion to balance those standards in the
apportionment.
Of course, reapportionment is also governed by the Fourteenth
Amendment’s equal protection requirement of “one person, one
vote.” We have held that this requirement is subsumed within the
population standard in tier two. Apportionment I, 83 So. 3d at 630.
Finally, article III, section 16(a) of the Florida Constitution requires
that House and Senate districts be “consecutively numbered” and
that they consist of “either contiguous, overlapping or identical
territory.”
A.
We begin with the record facts that pertain to the tier-two
standards in article III, section 16, because those standards are the
ones that address the basic building blocks of reapportionment.
The most fundamental consideration, of course, is population
equality. The 2020 census recorded Florida’s statewide population
at 21,538,187 people, an increase of over 2.7 million people since
2010. The last decade’s population growth was unevenly
distributed, so both the House and the Senate district lines
required substantial revision.
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Neither the federal nor the Florida Constitution requires that
districts contain perfectly equal populations. Apportionment I,
83 So. 3d at 630. In language that echoes the federal equal
protection standard for state legislative districts, article III, section
21(b) requires districts “as nearly equal in population as is
practicable.” The text thus signals that the Legislature retains
discretion to balance population equality with other legitimate
redistricting considerations. In 2012, this Court approved House
and Senate plans with overall population deviations 2 of 3.97% and
1.99%, respectively. Apportionment I, 83 So. 3d at 646, 655.
Here, the House plan has an overall population deviation of
4.75%. The Senate plan has an overall population deviation of
1.92%. Applying the federal standard, the Supreme Court recently
observed that “[g]iven the inherent difficulty of measuring and
comparing factors that may legitimately account for small
deviations from strict mathematical equality, we believe that attacks
on deviations under 10% will succeed only rarely, in unusual
2. A redistricting plan’s overall population deviation is the
sum of the percentages by which the plan’s least and most
populated districts deviate from a district’s theoretical ideal
population.
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cases.” Harris v. Ariz. Indep. Redistricting Comm’n, 578 U.S. 253,
259 (2016). Both the House and Senate explain that the population
deviations in their 2022 plans were driven by respect for political
and geographical boundaries, particularly county boundaries—an
unquestionably legitimate consideration.
Next in tier two is the standard that “districts shall be
compact.” Art. III, § 16(b). In 2012, we held that compactness
“refers to the shape of [a] district,” and we explained that this
standard seeks to “ensure that districts are logically drawn and that
bizarrely shaped districts are avoided.” Apportionment I, 83 So. 3d
at 636. Of course, limiting the definition of compactness to an
assessment of a district’s shape does not eliminate the inherent
vagueness of the term; however measured, compactness is a matter
of degree. And a district’s compactness can be affected by factors
over which the line-drawer has no control, like our state’s unique
geographical contours and the distribution of population within the
state. See id. at 635.
To evaluate districts’ compactness in our 2012 review
proceeding, this Court made a visual assessment of the districts
and considered “quantitative geometric measures of compactness.”
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Id. at 634-35. Overall, the House and Senate districts in the
Legislature’s 2022 plans are visually at least as compact as the
districts that they replace—in many cases more so. This conclusion
is confirmed by the 2022 districts’ generally improved average
scores on the recognized Convex Hull, Polsby-Popper, and Reock
compactness tests. 3 Without a presentation from adverse parties,
we hesitate to comment on how meaningful those improvements
are. What matters for present purposes is that, by recognized
mathematical measures, the Legislature’s 2022 districts overall are
more compact than the districts in the existing, benchmark plan.
Finally, there is the tier-two standard that districts “shall,
where feasible, utilize existing political and geographical
boundaries.” Art. III, § 21(b). Our Court has held that political
boundaries are county and city boundaries. Apportionment I,
83 So. 3d at 638. And we held that the term “geographical
3. For an explanation of these tests, see our decision in
League of Women Voters of Florida v. Detzner, 179 So. 3d 258, 283,
nn. 6-8 (Fla. 2015). In each test, the highest score possible is 1.0.
The House districts’ benchmark and new average scores are
(benchmark/new): 0.80/0.82 (Convex Hull); 0.43/0.45 (Polsby-
Popper); and 0.43/0.45 (Reock). The corresponding Senate
districts’ benchmark and new average scores are: 0.81/0.82;
0.41/0.46; and 0.50/0.46.
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boundaries” refers to those “that are easily ascertainable and
commonly understood,” like “rivers, roadways, interstates, and
state roads.” Id.This redistricting cycle, both the House and Senate calculated
the extent to which each district’s boundary lines coincide with
political and geographical boundaries. The results of this
“boundary analysis” show that the average district in the new
House plan follows political and geographical boundaries along
82.7% of its perimeter; the corresponding figure for the average
district in the Senate’s new plan is 96%. These figures show
improvements over the boundary analysis scores of 78.5% and 89%
for the average district in the existing House and Senate benchmark
plans, respectively.
B.
We now turn to the article III, section 21 tier-one standards
that protect racial and language minority voting rights and prohibit
intentional political favoritism. 4 The minority voting standards
4. The third and final tier-one standard is that districts must
“consist of contiguous territory.” Art. III, § 21(a). The maps
submitted with the joint resolution show that the 2022 districts are
contiguous.
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identify and proscribe two types of discrimination: “impermissible
vote dilution” and “impermissible diminishment of a minority
group’s ability to elect a candidate of its choice.” Apportionment I,
83 So. 3d at 619. While they exist independently as Florida law,
these provisions were modeled on and “embrace[] the principles” of
key provisions of the federal Voting Rights Act of 1965, section 2
(vote dilution) and section 5 (diminishment, or retrogression). Id. at
619-21.
Vote dilution is “the practice of reducing the potential
effectiveness of a group’s voting strength by limiting the group’s
chances to translate the strength into voting power.” Id. at 622.
Line drawers can effect vote dilution either by fragmenting a specific
minority voter population into multiple districts or by “packing”
those voters into a district or districts. Id. We acknowledged in
2012 that “[a] successful vote dilution claim under Section 2 [of the
Voting Rights Act] requires a showing that a minority group was
denied a majority-minority district that, but for the purported
dilution, could have potentially existed.” Id. 5
5. In voting rights parlance, a “majority-minority district” is
one in which voters of a minority group constitute a majority of the
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In our 2012 review proceeding, we evaluated potential vote
dilution by looking for evidence suggesting impermissible “packing”
of minority voters into super-majority districts to avoid the creation
of additional majority-minority districts. Apportionment I, 83 So. 3d
at 645. As for Black voters, no district in either 2022 plan has a
Black voting age population sufficiently high to raise concerns of
packing. 6 By contrast, it is true that both new plans have districts
with high Hispanic voting age populations (HVAP): 93.99% in the
highest HVAP House district, and 90.13% in the highest HVAP
Senate district. But in 2012 we approved plans with comparably
high HVAPs: 93.58% (House) and 86.9% (Senate). Id.; Att’y Gen.’s
Petition Appendix at B5, Apportionment II, 89 So. 3d 872 (Fla. 2012)
district’s voting-age population. The existence of a minority group
“sufficiently large and geographically compact to constitute a
majority in [a] reasonably configured legislative district” is one of
“three threshold conditions for proving vote dilution under” section
2 of the Voting Rights Act. Cooper v. Harris, 137 S. Ct. 1455, 1470
(2017) (explaining the threshold vote dilution criteria established in
Thornburg v. Gingles, 478 U.S. 30 (1986)). If the Gingles threshold
factors are established, the dilution inquiry then proceeds to
consider the totality of the circumstances.
6. The districts with the highest Black voting age population
(BVAP) percentages in each plan have BVAPs of 57.94% (House) and
50.07% (Senate).
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(No. SC12-460). We reasoned that these high percentages were
attributable to the dense concentration of Hispanic voters in Miami-
Dade County, not to impermissible line-drawing by the Legislature.
Apportionment I, 83 So. 3d at 645.
Moreover, as to vote dilution, the House and Senate have
represented that their 2022 plans do not avoid creating additional
majority-minority districts where doing so was both possible and
necessary to enable minority voters to elect representatives of their
choice. We conclude that there is evidence in the record before us
to support the conclusion that the Legislature’s 2022 plans do not
impermissibly dilute minority voting strength.
The non-diminishment protection afforded by article III,
section 21(a) means that “the Legislature cannot eliminate majority-
minority districts or weaken other historically performing minority
districts where doing so would actually diminish a minority group’s
ability to elect its preferred candidates.” Apportionment I, 83 So. 3d
at 625; see also Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct.
788, 802 (2017). 7 Evaluating the extent to which benchmark and
7. Governor Ron DeSantis recently sought an advisory
opinion from this Court, in part seeking our views on the meaning
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new districts perform for minority voters—that is, enable those
voters to elect the candidate of their choice—requires a “functional
analysis” of voting behavior within the districts at issue. Such
analysis considers statistical data pertaining to voting age
population; voter-registration data; voting registration of actual
voters; and election results history. Apportionment I, 83 So. 3d at
625, 627. We have said that, “because a minority group’s ability to
elect a candidate of choice depends upon more than just population
figures,” a “slight change in percentage of the minority group’s
population in a given district does not necessarily have a cognizable
effect on a minority group’s ability to elect its preferred candidate of
choice.” Id. at 625.
During this redistricting cycle, the House and Senate each
conducted a functional analysis of the minority performing districts
in the benchmark and new plans. The House represents that its
and application of the non-diminishment standard in article III,
section 21(a). For the reasons we explained in 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,
47 Fla. L. Weekly S44 (Fla. Feb. 10, 2022), we declined to issue the
advisory opinion. Our decision today should not be taken as
expressing any views on the questions raised in the Governor’s
request.
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benchmark and new plans contain 18 districts each that perform
for Black voters and 12 districts each that perform for Hispanic
voters. The record shows that, among the identified minority
performing districts in the 2022 House plan, the number of
majority-minority districts is unchanged from the benchmark plan.
The Senate represents that its benchmark and new plans
contain five districts each that perform for Black voters and five
districts each that perform for Hispanic voters. Of the five identified
performing Black voter districts, one is majority minority in both
the benchmark and 2022 Senate plans. The record further shows
that four of the five identified performing Hispanic voter districts in
the benchmark plan are majority minority, while all five of the
identified performing Hispanic voter districts in the 2022 Senate
plan are majority minority. The objective statistical data constitute
support in the record for the Legislature’s representation that the
2022 plans do not diminish minority voters’ ability to elect
representatives of their choice. See id. at 655 (no retrogression
since “[t]here are as many Senate minority districts as there were
under the 2002 Senate benchmark plan with what appears to be
commensurate voting ability”).
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Finally, there is the tier-one standard that “no apportionment
plan or district shall be drawn with the intent to favor or disfavor a
political party or an incumbent.” Art. III, § 16(a). It follows from
the constitutional text that “there is no acceptable level of improper
intent.” Apportionment I, 83 So. 3d at 617. That said, we
acknowledged in 2012 that “redistricting will inherently have
political consequences,” and we emphasized that the constitutional
text “prohibits intent, not effect.” Id. Consistent with these
principles, we rejected a claim that an apportionment plan’s
partisan imbalance alone demonstrated an overall intent to favor a
political party. Id. at 642.
Here the House and Senate represent that they drew their
2022 plans without regard to the addresses of incumbents and that
they considered political data only as necessary to ensure
compliance with minority voter protections. The Senate also
represents that it drew its new apportionment plan without regard
to preserving existing district boundaries. In addition, each
chamber supports its plan by invoking reasoning that our Court
itself has employed. They say that their compliance with the tier-
two population, compactness, and boundary standards—
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compliance that we have concluded is supported in the record—at
least suggests that each plan also complies with the tier-one
prohibition on intentional political favoritism. See id. at 645 (“[T]he
House plan has complied with the tier-two standards, making
improper intent less likely.”). Reading the record in light of our
precedents, we conclude that there is evidence in the record here to
support the conclusion that the Legislature drew its 2022 plans
without an impermissible intent to favor or disfavor a political party
or incumbent.
III.
Given the record before us, and in the absence of any filed
opposition, we declare valid the House and Senate apportionment
plans in Senate Joint Resolution 100.
The House and Senate ask us in this proceeding to go further
and hold that the constitutional text, properly interpreted,
precludes any future fact-based challenges to the 2022
apportionment plans that we have now declared valid. See Art. III,
§ 16(d), Fla. Const. (“A judgment of the supreme court of the state
determining the apportionment to be valid shall be binding upon all
the citizens of the state.”). They argue that our Court has erred in
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the past by drawing a distinction between “facial” challenges (the
ones ostensibly at issue in a mandatory original proceeding under
article III, section 16(c)) and fact-based or “as-applied” challenges
(brought in subsequent proceedings). The chambers acknowledge
that acceptance of their argument would require us to recede from
our case law on that point, particularly the holding in Florida House
of Representatives v. League of Women Voters of Florida, 118 So. 3d
198 (Fla. 2013). The Legislature has raised an important issue, but
one that would be more appropriately considered in an original writ
proceeding, if a fact-based challenge to the 2022 apportionment is
filed.
No motion for rehearing will be entertained.
It is so ordered.
POLSTON, LAWSON, COURIEL, and GROSSHANS, JJ., concur.
LABARGA, J., concurs in result.
CANADY, C.J., recused.
Original Proceeding - Legislative Apportionment
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, and Daniel W. Bell, Chief Deputy Solicitor General,
Tallahassee, Florida,
for the Office of the Attorney General as proponents
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Chris Sprowls, Speaker of the Florida House of Representatives,
and J. Michael Maida, Acting General Counsel for the Florida House
of Representatives, Tallahassee, Florida; Peter M. Dunbar and Marc
W. Dunbar of Dean Mead & Dunbar, Tallahassee, Florida; and Andy
Bardos of GrayRobinson, P.A., Tallahassee, Florida,
for the Florida House of Representatives as proponents
Daniel E. Nordby, George N. Meros, and Tara R. Price of Shutts &
Bowen LLP, Tallahassee, Florida, and Eric M. Yesner of Shutts &
Bowen, LLP, Fort Lauderdale, Florida,
for the Florida Senate as proponents
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