WIXLIB

2. Racial GerrymanderingThe Equal Protection Clause also prohibits congressional districts that include unjustifiedracial gerrymandering. If considerations of race predominate in the drawing of a district,subordinating traditional districting principles, strict scrutiny analysis applies and the district willnot be upheld as valid unless it is narrowly tailored to satisfy a compelling state interest.15Where this redistricting plan deviates from traditional districting principles, it does so bynarrowly tailoring districts that further the state’s compelling interests of compliance with theVRA and the Florida Constitution.a. The State’s InterestAt least two of the proposed districts subordinate traditional districting principles in orderto comply with §§ 2 and 5 of the VRA and Article III of the Florida Constitution, which has anon-retrogression requirement that parallels that of § 5 of the VRA.16 In Section II.B below Iargue that compliance with § 2 compels the drawing of each of the majority- minority districts. If§ 2 of the VRA does not require one or more of the districts, Article III of the FloridaConstitution would require them to prevent retrogression.Although the Court has never held so in any case, a majority of the current justices haveagreed that compliance with §§ 2 and 5 of the VRA is a compelling state interest.17 Therefore,racial gerrymandering to comply with §§ 2 or 5 of the VRA appears permissible so long as it isnarrowly tailored.Whether compliance with Article III supplies a compelling state interest is uncertain,although there are good reasons to believe that it does. By amending Article III of its15See Miller v. Johnson, 515 U.S. 900, 916 (1995); Shaw v. Reno, 509 U.S. 630 (1993).Section 5 of the VRA applies only to certain counties of Florida. Only Collier, Hardee, Hillsborough, Hendry,and Monroe Counties are subject to § 5. See Section 5 Covered Jurisdictions, U.S. DEP ’T OF JUST ICE (last visitedApr. 30, 2011), http://www.justice.gov/crt/about/vot/sec 5/covered.php.17See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 518-19 (2006) (Scalia, J., dissenting); Bush v.Vera, 517 U.S. 952, 976-77 (1996) (plurality opinion).166

constitution to add § 20(a), Florida imposed on the entire state the anti-retrogression redistrictingrequirements with which jurisdictions covered by § 5 of the VRA must comply. The Courtbelieves § 5 of the VRA offers a compelling purpose18 even though the Court has doubted theutility of the triggering mechanism.19 Indeed, the problematic aspect of § 5 to these justices isthat the triggering mechanism both is imprecise and represents a potential affront to statedignity.20 Therefore, the Court has determined that the VRA offers a compelling purpose despiteits triggering mechanism’s imprecision and imposition on state sovereignty. As such, when astate voluntarily decides that it should protect racial or language minorities’ ability to participatein the political process in the same manner prescribed by § 5 of the VRA, presumably the Courtwould regard the state’s interest in such a circumstance at least as compelling as when Congressdirects that the state act in such a manner.Indeed, a refusal to recognize the state’s interest in complying with a successful ballotinitiative substantially similar to § 5 would arguably itself represent an affront to Florida’simportant sovereign interests. The citizens of Florida voted to amend Article III to include § 20presumably because they believed it would improve the state’s democratic functioning byincreasing the ability of minorities to participate in the political process. Therefore, adetermination that compliance with Article III does not represent a compelling state interestwould be inconsistent with Court precedents respecting both the compelling value of the VRA’spurpose and of states’ interests in self-governance.2118See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 518-19 (2006) (Scalia, J., dissenting); Bush v.Vera, 517 U.S. 952, 976-77 (1996) (plurality opinion).19See N.W. Austin Util. District Number One v. Holder, 129 S. Ct. 2504, 2511-12 (2009); id. (Thomas, J.,concurring in part and dissenting in part).20Id.21In any event, if § 2 requires the districts, as I argue it does, whether compliance with Article III offers acompelling state interest to justify narrowly tailored racial gerrymandering would be a moot question.7

b. TailoringIn an effort to narrowly tailor the districts to the requisites of the VRA and § 20(a), Isought to make the majority-minority districts as compact as practicable and to increase theextent to which the districts’ borders relied on existing political or geographic boundaries.Florida’s current District 23, for example, contained four appendages reaching from the state’sinterior to pockets of black populations in Fort Pierce, West Palm Beach, Fort Lauderdale, andMiramar.22 The distance from Miramar to Fort Pierce spans approximately 120 miles. I wasable to craft a majority black district that eliminates the outermost appendages of current District23 and which spans instead from West Palm Beach to Fort Lauderdale, a distance ofapproximately 50 miles.23 This proposed district, District 9, also captures a heavily blackpopulation in Belle Glade, in the western half of Palm Beach County, as the current District 23does. I also substantially improved the compactness of the other majority- minority districts inSouth Florida.24Meanwhile, where increasing the compactness of certain other majority- minority districtswas particularly difficult I sought to improve the districts’ adherence to other traditionaldistricting principles. In order to create a district whose citizens of voting age population(“CVAP”) are a majority black in the northern half of Florida, a district must stretch fromJacksonville to Gainesville to Orlando, a stretch of approximately 180 miles. Current District 3captures these populations.25 Although increasing that district’s compactness was nearly ahopeless endeavor, I was able to improve the district’s adherence to traditional districtingprinciples by at least having its eastern border perfectly follow the St. Johns River from22See Figure 3 of Appendix.See Figure 4 of Appendix.24See discussion infra Section III.A.25See Figure 6 of Appendix.238

Jacksonville to Orlando.26 As the St. Johns River also functions as a border between counties tothe east and west of it, aligning the proposed district, District 26, along the river also improvedthe district’s respect for existing political boundaries. Current District 3 does not follow the St.Johns River exactly. It reaches back and forth over the river to grab substantial portions ofPutnam County, and abandons the river as a border entirely in Volusia County.I also endeavored to improve the tailoring of proposed District 26 by seeking to create analternative district incorporating most of the black population of current District 3 that wouldbetter adhere to traditional districting principles. The alternative I sought to create stretchedalong Florida’s northern border from Jacksonville to Tallahassee. Such a district would haveimproved the district’s cultural compactness, as the northern portion of the state is typicallyregarded as featuring a distinctively Southern culture. Orlando is somewhat of the crossroads ofthe state, where the Southern elements of Florida begin to mix with the state’s Hispanicinfluence, more characteristic of South Florida. Orlando is also well known for its populartourist attractions, which are less numerous and significant in North Florida. Nevertheless, Icould not create such a district with a majority black VAP or CVAP. The highest CVAPpercentage I could create with such a district was approximately 47%. The current District 3 hasa CVAP of 50.8%. Additionally, the district I sought to create would have had to suffermarkedly in compactness and in its respect for political and geographic boundaries. The districtwould have had to feature many southwardly extending appendages that would have made itmuch more of an eyesore than even the current District 3. Indeed, to the extent appearances arerelevant, this would-be district would have had an almost haunting look, ominously reachingtowards the rest of the state. The compactness of several neighboring districts would havesuffered considerably as a result as well.26See Figure 5 of Appendix.9

Lastly, I considered as an alternative to proposed District 26 creating a coalition districtin and around Orlando of blacks and Hispanics. Puerto Ricans comprise a majority of CentralFlorida’s Hispanic population.27 Cubans represent only 7 percent of the Hispanic population inCentral Florida.28Unlike Cubans, who vote mostly Republican, 29 Central Florida’s PuertoRican population votes heavily Democratic, voting for Vice President Al Gore and Senator JohnKerry in the 2000 and 2004 elections at a rate of 60% and 66%, respectively. 30 Therefore, whileit would be inappropriate to seek to join blacks and Cubans into a coalition district, it arguablywould not be inappropriate to join blacks and Puerto Ricans into a coalition district.31 Becauseof the apparent substantial similarity in voting patterns of Central Florida’s black and and PuertoRican population, a coalition district could have been created here. The would-be coalitiondistrict would have been approximately 40% Hispanic CVAP and 20% black CVAP.If I had created that Central Florida coalition district, I would have also likely created ablack opportunity district of between 45 and 47% black CVAP running from Jacksonville toGainesville to Tallahassee. The Hispanic CVAP of that hypothetical district would have beenbetween 2 and 4%. One possible shortcoming I perceived in a Jacksonville-to-Tallahaseeopportunity district is the frequency with which it would have “performed ” to elect therepresentative of choice of the black voters. Assuming racial polarization in voting, the majoritynon-black voters in the district would vote predominantly Republican, or else otherwise for a27JORGE DUANY & FÉLIX V. M AT OS-RODRÍGUEZ , CENT RO DE EST UDIOS PUERT ORRIQUEÑOS AT THE CITY UNIV. OFN.Y., PUERT O RICANS IN ORLANDO AND CENT RAL FLORIDA, POLICY REPORT NO. 1 (2006), available athttp://www.centropr.org/documents/working papers/FloridaBrief(F).pdf.28Maria T. Padilla, Puerto Ricans Stream Into Area, ORLANDO SENT INEL, Mar. 24, 2011, available ews/0105240302 1 ricans -central-florida-hispanics/2. CentralFlorida’s remaining Hispanic population is of Mexican, Central American, and South American origin. Id.29DUANY & M AT OS-RODRÍGUEZ , supra note 23, at 22.30Id. at 4.31Under the Eleventh Circuit’s § 2 jurisprudence predating Bartlett v. Strickland, 129 S. Ct. 1231 (2009), discussedinfra Part II.B.1, a state may create a cross-over or coalitional district pursuant to § 2. See Concerned Citizens ofHardee County v. Hardee County Bd. of Comm’rs , 906 F.2d 524, 526 (11th Cir. 1990) (“Two minority groups (inthis case blacks and hispanics) may be a single section 2 minority if they can establish that they behave in apolitically cohesive manner.”).10

candidate other than that preferred by the black population. Indeed, all of North Florida’scurrent congressional districts, with the exception of District 3, are occupied by a Republicanrepresentative. All of the districts currently held by Republicans appear to be safely Republican;only current District 2, one of the districts embracing Tallahassee, has been held by a Democratthis past decade.One consideration counseling in favor of creating the coalition and opportunity districts isthe fact that Florida’s VAP is approximately 21.1% Hispanic, although under my proposed plan,only three of the state’s 27 districts (11.1%) would be majority Hispanic. Moreover, thosedistricts that are majority-Hispanic are all located in South Florida, where the Cuban-Americanpopulation predominates over other Hispanic populations. However, Cubans consist of only36% of Florida’s Hispanics of VAP, or 7.6% of the state’s total population.32 Therefore, withthree majority-Hispanic districts in South Florida and none elsewhere, Florida’s Cubanpopulation, which votes dissimilarly from the state’s non-Cuban Hispanic population,33 isdisproportionately overrepresented with 11.1% of the state’s representatives. The remainder ofthe state’s non-Cuban Hispanic VAP—nearly as numerous at 13.5% of VAP as the state’s nonHispanic black population, which is 13.7% of VAP—would lack a single district that wouldlikely elect the representative of the group’s choice.Nevertheless, I chose to retain the Jacksonville-to-Orlando majority black district becauseI sought to avoid undoing a safely performing black district,34 which would have renderedFlorida’s black population disproportionately underrepresented if the Jacksonville-to-Tallahasseedistrict did not perform. I feared running afoul of Article III’s proscription against redistricting32PEW HISPANIC CENT ER, THE HISPANIC ELECT ORATE IN FLORIDA (2004), available DUANY & M AT OS-RODRÍGUEZ , supra note 23, at 22.34Current District 3 is held by Democrat Corrine Brown. In the past five elections Brown has won three timeswithout opposition by a Republican candidate and with 63.0% and 59.3% of the votes cast in the 2010 and 2002elections, respectively.11

plans that “diminish the[] ability [of racial minorities] to elect representatives of their choice.”Exchanging a safe black district in favor of a likely-Hispanic district and a black opportunitydistrict would probably be viewed as a retrogressive tradeoff as to the black population thatdiminishes the ability of blacks in Central and North Florida to elect representatives of theirchoice.In each majority- minority district, I sought to create the most compact district possiblethat accorded significant respect for political and geographic boundaries. I considered manyalternative schemes to those that I ultimately proposed. The proposed majority- minority districtsare the districts that I believe best adhere to traditional districting principles while complyingwith the VRA and Article III of Florida’s Constitution. Accordingly, the districts are narrowlytailored to the state’s compelling interest of complying with the VRA and the state constitution.I argue in Part II.B-C that the VRA and Florida’s Constitution require the majority- minoritydistricts that I propose.B. Federal Statutory Requirements1. Voting Rights Act § 2Under § 2 of the VRA, a majority- minority district must be created when a minoritygroup is “sufficiently large and geographically compact to constitute a majority” in a singlemember district, the minority group is “politically cohesive,” and the white majority votes“sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.”35The requirement that minority populations be sufficiently compact includes a requirement thatthe populations be culturally compact.363536Thornburg v. Gingles, 478 U.S. 30, 50 (1986).See League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006).12

Additionally, it must be the case that under the “totality of circumstances,” minorities areless able to participate in the political process than the white majority.37 A plan will be valid,therefore, that tends to “thwart the historical tendency to exclude [minorities], not expand orperpetuate it.”38 One particularly significant factor in evaluating this last prerequisite is theproportionality of a minority group’s VAP relative to its percentage share of the districts inwhich it represents a majority of the VAP. 39 Section 2 does not require that a state create themaximum quantity of the majority-minority districts possible, particularly when proportionalityhas been achieved.40 Nevertheless, proportionality does not operate as a “safe harbor,” blessingall redistricting plans that achieve proportionality; it is merely relevant to the totality of thecircumstances inquiry.41Furthermore, § 2 does not require the creation of coalition or cross-over districts.42Section 2 only requires the drawing of districts when a single minority group constitutes morethan 50 percent of the VAP.43 Under Eleventh Circuit jurisprudence predating Bartlett, a statemay create a cross-over or coalitional district pursuant to § 2.44The proposed plan complies with § 2. Although I did not have the necessary politicaldata available at my disposal, I operate under the factual premises accepted by the SupremeCourt in Johnson v. De Grandy45 that South Florida’s black and Cuban-American populationsare separately politically cohesive and that the white majority votes sufficiently as a bloc to37Johnson v. De Grandy, 512 U.S. 997, 1011-12 (1994).Id. at 1014.39Id.40Id.41Id. at 1019-2042Bartlett v. Strickland, 129 S. Ct. 1231, 1245 (2009).43Id.44Concerned Citizens of Hardee County v. Hardee County Bd. of Comm’rs , 906 F.2d 524, 526 (11th Cir. 1990)(“Two minority groups (in this case blacks and hispanics) may be a single section 2 minority if they can establishthat they behave in a politically cohesive manner.”).45512 U.S. 997 (1994).3813

typically defeat the preferred candidates of both groups.46 This analysis, therefore, presumes thatthe second and third Gingles prongs are satisfied as to the black and Hispanic populations ofSouth Florida.This analysis also assumes that the black populations in North and Central Florida arepolitically cohesive and that the white majority votes sufficiently as a bloc to usually defeat theircandidates of choice. This project lacks the necessary political data to analyze those issuessufficiently, but those assumptions seem appropriate.The preponderance of the black population in the greater Miami metropolitan area islocated north of downtown Miami to the west of US-1 in a triangu

persons. That population warrants 27 congressional districts. The ideal district size is districts must contain 696,345 persons and five districts must contain 696,344. The proposed plan distributes Florida's population in that manner. 11 Karcher v. Daggett, 462 U.S. 725, 730 (1983). 12 See Burns v. Richardson, 384 U.S. 73, 91-92 (1966).