In 2010, Florida voters went to the ballot box and passed a constitutional amendment to overhaul the state’s redistricting process. The amendment, known as the Fair Districts amendment, prohibited the state legislature from drawing maps to give Democrats or Republicans a partisan advantage, or from drawing maps with the intent or result to “deny or abridge 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.”

This rule, known as the “non-diminishment standard,” borrows from the federal Voting Rights Act, and means that minority communities must build on or at least maintain their political power during each redistricting cycle. Popular referenda like this one, which Florida calls “citizen initiatives,” allow people to rein in their elected officials; this one was meant to remove the partisan games from the state’s always-contentious, once-per-decade redistricting process.

In 2014, the Florida Supreme Court found that the Florida legislature violated the amendment at its first opportunity. As it turns out, the Republicans who controlled the process quietly engaged a political consulting firm to draw a congressional map that favored Republicans by packing Black Democratic voters into one district, effectively bleaching surrounding districts.

Worse still, Republicans hid this effort by embarking on a statewide tour of soliciting map proposals from the public. Consultants posed as concerned citizens, presenting unconstitutional maps to the committee in broad daylight. After voting rights advocates sued and sought to depose key staffers, the legislature asked the court to intervene and protect those staffers and documents behind “legislative privilege.” 

The Florida Supreme Court, playing the part of a responsible parent, took the markers away in 2015 and functionally drew the map itself. The map the Court eventually approved was better by just about any metric, and created a split of Republican- and Democratic-leaning districts that better reflected the state as a whole. The new map also respected pre-existing political and geographic boundaries; for example, in Tampa, the legislature’s map crossed a body of water larger than New York City to pack Black voters into a single district. The Court’s did not. 

The Court-ordered map, adopted from a proposal by voting rights groups, also created the current version of the Fifth Congressional District, which meanders more than 200 miles across eight Panhandle counties and is roughly the shape of liquid spilling over a counter. But there is a good reason for this: Most of Florida’s forced labor camps prior to the Civil War were in the Panhandle, and today, about 45 percent of the district’s voting-age residents are Black. For decades, variations of this district have helped to consolidate Black political power from Jacksonville to Chattahoochee, and residents have consistently elected Black lawmakers to represent them in Washington. 

Now, as the state legislature draws new lines for a new decade, Governor Ron DeSantis is coming for that map. His proposal to the state legislature would break up the Fifth District into four smaller ones in a direct challenge to the non-diminishment standard. If successful, DeSantis would crack Black political power in North Florida into irrelevance.

After the 2020 Census, the Republican lawmakers in charge of redistricting passed a bill with two map proposals. One cracked the Fifth District, but not as badly as DeSantis proposed to do; the other left the Fifth District intact, but would take effect only if a court were to strike down the first map. 

The compromise failed when DeSantis, like the former president he hopes to someday succeed, promised a veto by tweet. In a memo, DeSantis’s office acknowledged that the first map resulted in unconstitutional diminishment. This is right: It shrank the Fifth District such that Black voters, according to the Florida House’s own analysis, would control two out of every three elections. This would reduce the ability of the Panhandle’s Black residents to elect the candidate of their choice—as plain a violation of non-diminishment as they come.

Instead of drawing the obvious legal conclusion from this information, however, the governor argued that keeping a “sprawling” district like the “bizarrely shaped” Fifth District was not a compelling state interest, because, in his view, non-diminishment violates the Equal Protection clause of the Fourteenth Amendment. This sure looks like an engineered challenge to the non-diminishment standard that tracks the conservative conception of “equal protection”: that any attempt to remedy historic racial discrimination by acknowledging the resulting racial disparities is itself unconstitutional racial discrimination.

DeSantis is right correct the Fifth District was drawn with residents’ race in mind, but that is exactly the point: In 2012, the Florida Supreme Court affirmed that doing so was necessary for non-diminishment. The U.S. Supreme Court has held that compliance with the federal Voting Rights Act is a compelling state interest, and in 2010, over 60 percent of Floridians voted to import this standard from the Voting Rights Act to their state constitution. Now, DeSantis is trying to throw all that out. 

Weaponizing equal protection against non-diminishment is an attack on the concept of racial justice. If a state is not allowed to consider race when trying to remedy racial inequity in its elections, it will never succeed. It is as if you are bitten by a venomous snake, but tell the doctor she can only cure the cut and swelling. The doctor needs antivenom—developed with the help of actual venom!—to save your arm. DeSantis wants that arm to fall off. 

The Florida Supreme Court is unlikely to help this time around. All seven justices are conservatives appointed by Republicans. The outgoing chief justice, Charles Canady, was a Republican congressman before advising former Republican governor Jeb Bush, and has been a vocal dissenter in pro-democracy redistricting cases. Canady’s successor, Carlos Muñiz, worked for luminaries like former Secretary of Education Betsy Devos and Trump impeachment defender Pam Bondi before being appointed by DeSantis in 2019. (The Florida Supreme Court elects one of its own to a two-year term as chief, so Canady might be losing the gavel, but he isn’t going anywhere.)

The governor’s map is still being litigated in state court. But should this land in federal court, it seems unlikely that the Eleventh Circuit Court of Appeals, which upheld a de facto poll tax as recently as 2020, or Chief Justice John Roberts, who has been trying to kill the Voting Rights Act for five decades, would pass up the opportunity to finish what Shelby County started. Voting rights are disappearing everywhere, but in Florida, they may disappear soonest.