Atkins v. Sarasota Cnty.

457 F.Supp.3d 1226

Fredd ATKINS, Michael White, and Mary Mack, Plaintiffs

v.SARASOTA COUNTY, Florida, Defendant

No. 8:19-cv-3048-T-02CPT

United States District Court, M.D. Florida, Tampa Division.

Signed May 4, 2020

Hugh Franklin Culverhouse, Jr., Coral Gables, FL, Przemyslaw L. Dominko, Steven David Hutton, Sarasota, FL, Tal Aburos, Lawrence Allan Kellogg, Levine Kellogg Lehman Schneider & Grossman LLP, Miami, Fl, for Plaintiffs.

Andy Bardos, George T. Levesque, James Timothy Moore, GrayRobinson, P.A., Tallahassee, FL, David Michael Pearce, Frederick Joseph Elbrecht, Sarasota, FL, John Armando Boudet, Orlando, FL, for Defendant.

ORDER GRANTING SUMMARY JUDGMENT

William F. Jung, United States District Judge

Several reasons have been suggested for the 2019 Sarasota County Commission redistricting, including: sincere equalizing of unbalanced districts, or furthering Republican party control, or protecting developer interests, or pure incumbent protection, or reaction to abolishment of at-large voting, or race. For Plaintiffs to prevail under the controlling law, race must not only have been a motive, it must have been the predominant motive . There is no genuine issue of fact in this record – race was not the predominant motive for this redistricting. For this reason the Court grants summary judgment to the County in this case.

A. HISTORY OF THE COMMISSION DISTRICTS:

This diagram shows Sarasota County's 556 square miles¹ in area, with the five predecessor districts on the left, and the redrawn, challenged districts on the right. (Doc. 65-1 at 21, 65-2 at 91). The small box in both maps is the approximately one-square mile² neighborhood in the City of Sarasota known as Newtown, which is the focus of this dispute. Newtown is less than .002 of the land area of Sarasota County. Plaintiffs contend that the redistricting which included Newtown into new District 2 violates the Equal Protection Clause of the Fourteenth Amendment.

Until late 2018, Sarasota County elected all commissioners on an at-large basis, countywide. In other words, although a commissioner was resident in his or her numbered district, the county-wide electorate at large voted on each district's commissioner. That changed in late 2018. A county referendum ended at-large voting and imposed district-only elections to begin in 2020. Doc. 65 par. 1; Doc. 65-1; Doc. 65-2 at 91. Starting in 2020, only residents of the single district will vote for their commissioner.

Florida law requires Sarasota County to have a five-member board of county commissioners, with staggered elections.³ Under staggered elections in Sarasota County, historically, the odd-numbered districts vote in presidential-election years and even-numbered districts vote in non-presidential election years. In 2020, Districts 1, 3, and 5 will vote while 40% of the county (the even-numbered districts) will choose their commissioners in 2022. Doc. 77-34 at 111. Each commissioner must reside in his or her district.⁴

The elimination of at-large voting and move to single-district voting caused the County Commission to consider redistricting in 2019, id. at 19, and Florida statutes require County redistricting to equalize population "from time to time" in odd-numbered years. Fla Stats. 124.01(3). The proponents of redistricting suggested the five districts may be insufficiently equal in population due to growth in the county since the last redistricting in 2011. Opponents of redistricting pointed out that the national census would soon occur and would likely require redistricting anew. Opponents cited the expense of redistricting so close to the census as well as potential litigation; some opponents suggested pure political and also racial reasons for this undertaking.

The County Attorney and County Administration advised hiring a consultant to undertake this effort, Doc. 77-15 at 73, which was done. The consultant produced three maps for consideration, and five additional maps were offered by the public.

One of these maps was offered anonymously by "Adam Smith," a person later identified as a Republican political operative. At the direction of the Board, that map was corrected by the consultant to equalize districts. Doc. 77-25 at 138 – 139. On November 19, 2019, after prior notice and advertising, the Board first voted on a map originating from the consultant, and voted it down. The Board then adopted the corrected "Adam Smith" map by a vote of 3 – 2. Doc. 77-25 at 215. The resulting districts are shown, above.

B. PROCEEDINGS IN THIS LAWSUIT:

Plaintiffs filed suit in December 19, 2019 and filed the operative Amended Complaint January 9, 2020. Doc. 9. Plaintiff Atkins is the first elected African American to serve on the City of Sarasota Board of Commissioners, and he is the former three-term mayor of Sarasota. He resides in former District 1 and ran unsuccessfully for District 1 County Commissioner in 2016 against present incumbent Moran. The Amended Complaint notes Mr. Atkins is presently a candidate to run again in District 1 for the Board of County Commissioners in 2020. He asserts that the redistricting has abridged his right to vote in 2020 in the County Commission election on the basis of race or color. Plaintiffs White and Mack are both residents of Sarasota County who assert that their rights to vote in the 2020 County Commission election have been abridged on the basis of race or color. Doc. 9 at 3.

The Amended Complaint alleges that Newtown is an African-American community of long standing, bordered by Highway 301 to the east, Bradenton Road to the west, Myrtle Street to the north, and 17^th Street to the south. Newtown was in District 1. Doc. 9 at 5 – 6. The complaint alleges: passage of district-only voting created something "the existing Commissioners and their money patrons feared." "With single-district voting, Newtown would have a real opportunity to elect a county commissioner who was either African-American or who was responsive to the needs and priorities of the Newtown African-American community in District 1. Indeed, absent countywide voting, Plaintiff Atkins would have been elected District 1 Commissioner in 2016 [because he won that District in 2016 but not countywide]." Doc. 9 at 6 – 7.

The new, redrawn districts "removed Newtown from District 1 and moved it to District 2, whose commissioner seat was not up for reelection until November 2022. It also removed Plaintiff Atkins from District 1, where he had already declared his candidacy." Doc. 9 at 10 par. 36. The Amended Complaint alleges this new map is illegal as "based blatantly upon racial classifications" and "is being maintained in an effort to segregate voters into separate districts on the basis of race" "without sufficient justification." Doc. 9 at 10 par. 35; Doc. 9 at 14 pars. 54, 56.

The Amended Complaint asserted three counts, but only Count 1 remains before the Court.⁵ Count 1 seeks relief under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. It notes that "Discrimination based on race in the voting context is a clear violation of the Fourteenth Amendment. There is no compelling justification or state interest in creating districts along racial lines to limit minority participation in the political process." Doc. 9 at 14 par. 57.

After filing the Amended Complaint, Plaintiff moved for an expedited scheduling conference. Doc. 15. The parties had agreed to expedited discovery and a preliminary injunction schedule to permit an April ruling thereon. Doc. 15 at 3. With the impending 2020 election, time was of the essence. Although agreeing to an expedited procedure, Defendant replied that by June, 2020 "the election process will be in full swing," Doc. 22 at 1, and candidate petition signatures had to be submitted by May 11 with a qualifying period of June 8 through June 12. Doc. 22 at 1, 2. The Court accommodated the parties' desire for an expedited proceeding, and they are to be complimented in carrying out this swift, yet thorough, discovery and case presentation.

C. THE LEGAL STANDARDS:

The test is whether the Commission's motive in redrawing the districts "was predominantly racial, not political. In making this determination [per Supreme Court cases] the burden of proof on the plaintiffs (who attack the district) is a ‘demanding one.’ " Easley v. Cromartie, 532 U.S. 234, 241, 121 S. Ct. 1452, 1458, 149 L.Ed.2d 430 (2001) ). As the Supreme Court held, "[r]ace must not simply have been ‘a motivation for the drawing of [the contested] district’...but ‘the predominant factor’ motivating the legislature's districting decision." Id. (emphasis in original)(citations omitted). As Justice Breyer wrote for the Cromartie Court, "[p]laintiffs must show that a facially neutral law ‘is unexplainable on grounds other than race.’ " Id. at 242 – 243, 121 S. Ct. at 1458 (citing cases). The racial motive must be "dominant and controlling." Id. at 257, 121 S. Ct. at 1466.

In other words, Plaintiffs must "disentangle race from politics and prove that the former drove a district's lines." Cooper v. Harris, ––– U.S. ––––, 137 S. Ct. 1455, 1473, 197 L.Ed.2d 837 (2017). Beyond this "demanding" burden, Plaintiffs face a Supreme Court-mandated presumption that districts were drawn in good legislative faith. Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995) (courts must "exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race"). Indeed, Justice Breyer's majority opinion in Cromartie added italics to the admonition for "extraordinary caution ," 532 U.S. at 242, 121 S.Ct. at 1458, and then repeated the admonition twice. 532 U.S. at 257, 121 S.Ct. at 1466. This extraordinary caution is required because "[f]ederal court review of districting legislation represents a serious intrusion on the most vital of local functions." Miller, supra, 515 U.S. at 915, 115 S. Ct. at 2488.

The Supreme Court has stated the basic question: "The basic...