Federal trial alleging illegal racial gerrymandering in Tampa Bay Senate seat concludes
A panel of three federal judges is now weighing whether a Tampa Bay state Senate district created in 2022 was the result of illegal racial gerrymandering.
A four-day trial over the district concluded on Thursday afternoon and judges must decide whether the constitutional rights of voters in Hillsborough and Pinellas counties were violated when the Legislature created the Senate district in 2022 that crossed from St. Petersburg over the water to Hillsborough County.
Florida was sued by three voters who are represented by the ACLU of Florida and the Civil Rights & Racial Justice Clinic at New York University School of Law. The plaintiffs allege that the Legislature's plan to connect Black populations from parts of Hillsborough and Pinellas counties violated their equal-protection rights by unjustifiably packing Black voters into District 16 and removing them from nearby District 18, reducing their influence there.
The defendants, Senate President Ben Albritton and Florida Secretary of State Cord Byrd, have denied that claim, saying that the maps were lawfully drawn up and previously approved as legally sound by the Florida Supreme Court.
But the defense's arguments go beyond refuting the plaintiffs' claims. Indeed the defense went on the offense both before and during the trial to allege that the ACLU of Florida's lead attorney in the case, Nicholas Warren, worked behind the scenes with Democratic House and Senate staffers to try to get a partisan map approved.
To bolster that argument, attorneys representing the state called Matthew Isbell to the stand (remotely) on Thursday, their last witness.
Isbell is a Tallahassee-based data analyst and consultant who has worked with Democrats and Democratic-affiliated groups over the past decade. Text and direct Twitter messages between Isbell and Warren were displayed to the court showing how both men hoped that the Senate would adopt a map that kept Pinellas County intact and separate from Hillsborough County.
Warren drew his own map that kept the two counties separate and introduced it before the redistricting committee in late 2021, without identifying himself as being a staff attorney for the ACLU of Florida. Sen. Ray Rodrigues, who was chair of the Senate Committee on Reapportionment at the time, subsequently sent a memo to all 40 state senators accusing him of violating Senate rules by not disclosing that he was with the ACLU of Florida.
Warren testified earlier this week that he drew the map on his own personal time and resources, and that the Senate forms that needed to be completed to appear before the committee did not require an individual to list his employer.
Isbell testified on Thursday that he believed that the GOP-majority Legislature's motivation to split the city of St. Petersburg up was motivated by partisan politics, an allegation that attorneys for the Florida Senate president's office have strongly refuted.
After Isbell's video appearance concluded, the closing statements began, starting with the plaintiffs.
Warren declared that 'race predominated in the drawing of the district.'
In terms of direct evidence to back up that statement, Warren played a video clip from a November 2021 committee hearing. The excerpt shows Orange County Democratic Sen. Randolph Bracy asked Senate Committee on Reapportionment staff director Jay Ferrin why the newly proposed Senate District 16 district had to cross from St. Petersburg over into Tampa Bay and Hillsborough County.
Ferrin replied that it was to comply with the Fair Districts amendment in the Florida Constitution, specifically the 'Tier 1' standards which provide protections for racial and language minorities. Bracy then asked Ferrin if there was a way to configure the district to comply with the Fair Districts amendment and still keep the two countries separate.
Another video exchange showed Pasco County Republican Danny Burgess,telling Bracy that Senate 'staff' had said keeping the counties separate wasn't possible, because it would lead to a 'significant number of voters who would be disenfranchised.' At the time Burgess was the chair of another Senate committee that also dealt with reapportionment.
Ferrin agreed with Burgess, saying it would result in a'wide diminishment' that would ultimately disenfranchise Black voters in Pinellas County.
Bracy followed up asking how much the Black vote would be diminished by if the counties were to remain separate. Ferrin replied 'close to 30%,'and added that such a reduction 'would constitute diminishment.'
That comment, Warren said in his closing, revealed that race placed a major role in why Senate District 16 was created.
The defense came back with closing statements from the two attorneys representing their side: Daniel Nordby, who was representing Ben Albritton in his official capacity as president of the Florida Senate, and Mohammad Jazil, who was representing Florida Secretary of State Cord Byrd.
Nordby said the plaintiffs had to prove that race was a predominant factor in the creation of Senate District 16, but that they fell short.
'Plaintiffs have not come close to doing so,' Nordby said.
He emphasized how Ferrin had recognized the constitutional requirements for drawing up districts – which is that districts should be compact, and when possible, utilize existing political and geographic boundaries.
Ferrin did, Nordby said, noting that Ferrin used important boundaries such as I-275, the Hillsborough River, and 22nd Avenue North in St. Petersburg, a major artery, when configuring the Senate district.
Nordby acknowledged that race was a consideration, because 'it had to be,' noting that to ignore that would be ignoring part of the state constitution.
Nordby also dismissed the three alternative maps drawn up for the plaintiffs by Pennsylvania State University professor of statistics Cory McCartan that keep Hillsborough and Pinellas counties separate.
And he then addressed the peculiar situation regarding Warren, saying, 'This case is an odd one.'
Nordby asserted Warren had essentially 'laundered' his map through the alternative presented during the trial by McCartan. He also questioned why none of the lawmakers that plaintiff attorneys had indicated could be witnesses in the case – Sen. Darryl Rouson, House Democratic Leader Fentrice Driskell and most notably former Bracy, the 'alleged lynchpin' for the plaintiff's case, never showed up.
Bracy was a scheduled witness but failed to appear earlier in the week, much to the disappointment of the ACLU attorneys. When contacted by phone on Tuesday by a representative from the three-judge panel, Bracy said he hadn't seen the subpoena until that very day and said that he had already told plaintiff attorneys that he did not intend to show up. Burgess and Rodrigues cited legislative privilege in declining to appear, according to the court.
Representing Byrd,Jazil said all of the proposed Senate maps that the ACLU had presented during the trial were examples of partisan and racial gerrymandering, and cited his text messages to House and Senate staffers involved with the reapportionment process.
In response to their closing arguments meanwhile, Daniel Tilley, another attorney with the ACLU of Florida, noted how no lawmaker had testified. Tilley said all of the attention focused on Warren was a 'contrived kerfuffle' that found no evidence to support the idea that members of the Senate were influenced by his map. It was, he surmised, a 'spectacular failure.'
During the four-day trial there were hours of detailed descriptions by experts that dealt with how to draw legislative districts that were logically configured and not oddly shaped.
The Florida Senate District 16 seat is held by Rouson, who resides in St. Petersburg. Several Tampa-based constituents in the district complained earlier in the trial that he was not as accessible to meet in Hillsborough County, though defense attorneys said he has district offices in the county in Tampa and Brandon.
The three-judge panel that will decide the case includes two of them who are Trump appointees. The panel was led by Andrew L. Brasher, who serves in the U.S. Court of Appeals for the Eleventh Circuit. Accompanying him was U.S. Senior District Judge Charlene Edwards Honeywell and U.S. District Judge Thomas P. Barber, both of whom serve on the U.S. District Court for the Middle District of Florida. Brasher and Barber were appointed by Trump during his first term as president in 2019.
If they rule in favor of the plaintiffs, their hope would be that the Florida Senate could create and approve a new map of the district in time for the 2026 election.
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