Case 4:22-cv-00109-AW-MAF Document 91 Filed 04/29/22 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

Common Cause Florida, FairDistricts Now,

Dorothy Inman-Johnson, Brenda Holt,
Leo R. Stoney, Myrna Young, and Nancy
Ratzan,
Plaintiffs,

v.
Case No.: 4:22-cv-109-AW-MAF
Laurel M. Lee, in her official capacity as
Florida Secretary of State,

Defendant.

PLAINTIFFS’ RESPONSE TO THE COURT’S ORDER TO SHOW

CAUSE AND MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

Plaintiffs Common Cause Florida, FairDistricts Now, Dorothy Inman-

Johnson, Brenda Holt, Leo R. Stoney, Myrna Young, and Nancy Ratzan

(collectively, “Plaintiffs”) respectfully submit this response to the Court’s April 25,

2022 Order to Show Cause why the Court should not dismiss this action as moot,

and move pursuant to Federal Rule of Civil Procedure 15(a)(2) for leave to file an

amended complaint in the form attached hereto as Exhibit A.

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INTRODUCTION

The Court should grant Plaintiffs leave to file an amended complaint to

challenge the constitutionality of Florida’s new congressional district plan, which

will obviate the need to act on Defendant’s suggestion of mootness. Until last

week, the Florida Legislature and Governor DeSantis were at an impasse in the

process of adopting a new congressional district plan for use in the 2022 statewide

primary elections. After months of being urged by Governor DeSantis to adopt a

map infected by racial discrimination against Black Floridians, the Florida

Legislature recently acquiesced to the Governor’s demands at the special

legislative session.

Although the new congressional district plan moots the malapportionment

claims in Plaintiffs’ original complaint, Plaintiffs now seek to amend their

complaint to add claims for intentional discrimination challenging the

constitutionality of the new map. By supplementing the factual allegations in the

original complaint, Plaintiffs’ proposed amended complaint details how

Defendant’s congressional district plan violates the Fourteenth and Fifteenth

Amendments to the United States Constitution by intentionally destroying Black

opportunity districts in Florida and splintering Black communities of interest

throughout the State. See Ex. A.

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Permitting Plaintiffs to file their amended complaint is the most efficient

path forward: it would serve judicial economy to adjudicate the entire controversy

between the parties in one action, and proceeding in this way would not prejudice

Defendant because this case is still in its early stages. Alternatively, if the Court is

not inclined to permit Plaintiffs to amend their complaint, Plaintiffs intend to file

their proposed amended complaint as a new action and designate the new action as

similar to the instant proceeding under Local Rule 5.6(A).

FACTUAL BACKGROUND

Plaintiffs initiated this action on March 11, 2022 to challenge Florida’s then-

existing congressional districts, which were rendered unconstitutionally

malapportioned by a decade of population shifts. Dkt. No. 1. Following the

delivery of the 2020 Census data to be used for the 2022 statewide elections, the

Florida Legislature and Governor DeSantis reached an impasse on the new

congressional district plan. Dkt. No. 1 at ¶ 3.

Plaintiffs’ original complaint contained detailed allegations concerning the

Florida Legislature’s process after it was tasked with drawing a new congressional

map. See, e.g., Dkt. No. 1 at ¶¶ 32–36. Plaintiffs also explained how Governor

DeSantis interfered in the redistricting process, proposing his own, constitutionally

noncompliant map, which veered the Legislature off its course. Id. at ¶¶ 37–45.

The original complaint alleged that Governor DeSantis was intent on eliminating

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congressional districts where Black voters have historically exercised voting power

to elect representatives of their choice, and that the Governor made repeated public

statements leaving no doubt that he would veto any congressional redistricting bill

that would preserve such districts. Id. at ¶ 42. Given Florida’s malapportioned

congressional districts at the time and the impasse between the Governor and the

Legislature, Plaintiffs brought claims for violations of Article I, Section 2 of the

U.S. Constitution and 2 U.S.C. § 2c. Id. at ¶¶ 62–71. Pursuant to 28 U.S.C. §

2284(a), a three-judge panel was convened to adjudicate this lawsuit. Dkt. No. 6.

When Plaintiffs filed their complaint, Plaintiffs named as Defendants

Secretary Lee, members of the Florida House and Senate (the “Legislator

Defendants”), as well as Governor DeSantis, assuming that these defendants would

be interested in participating in a case that could lead to new Florida congressional

maps. However, after the Legislator Defendants moved to dismiss the complaint,

Plaintiffs voluntarily dismissed the Legislator Defendants without conceding the

validity of their motion to avoid unnecessary motion practice that would unduly

delay the proceedings. Dkt. Nos. 50, 57. Governor DeSantis did not move to

dismiss, but Plaintiffs voluntarily dismissed Governor DeSantis at his request.

Dkt. No. 58. The proposed amended complaint re-names the Governor as a

defendant.

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Since this complaint was filed, the redistricting process in Florida continued

to be dominated by the Governor’s desire to destroy congressional districts where

Black voters have historically elected representatives of their choice. Although the

Florida Legislature attempted to redraw maps that would partially meet the

Governor’s demands, while attempting to preserve some Black opportunity

districts, the Governor vetoed the Legislature’s maps and convened a Special

Legislative Session from April 19–22, 2022.

During the Special Legislative Session, the Florida Legislature acquiesced to

the Governor’s demands. Over the protest of the chamber’s Black representatives,

the Florida Legislature accepted the Governor’s congressional district plan (the

“Enacted Plan”) without making a single change to it. The Enacted Plan followed

through on the Governor’s repeated statements of his intention to, among other

things, destroy Congressional District 5, which has consistently elected a Black

representative to Congress since 2016 and which was a court-approved successor

to a district that had performed for North Florida Black voters since 1992.

On April 22, 2022, Defendant Lee suggested that this action is now moot

because the Enacted Plan resolved Plaintiffs’ allegations of malapportionment and

there is no longer any live controversy to be adjudicated. Dkt. No. 86. On April

25, 2022, the Court entered an Order to Show Cause why the Court should not

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dismiss the case without prejudice as moot and ordered Plaintiffs to file a response

to the Order to Show Cause by April 29, 2022. Dkt. No. 87.

ARGUMENT
This action has always concerned the constitutionality of Florida’s

congressional district plan. Although Plaintiffs’ original claims under Article I,

Section 2 of the U.S. Constitution and 2 U.S.C. § 2c are now moot, the Court

should grant Plaintiffs leave to amend their complaint to assert updated claims

based on intervening facts challenging the constitutionality of the new

congressional district plan.

I. Leave to Amend Should Be Freely Given.

Where, as here, a deadline for amending the complaint has not passed, Rule

15(a)(2) provides that courts should “freely give leave” to amend the complaint.

Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962) (“In the

absence of any apparent or declared [improper] reason [for amendment] . . . the

leave sought should, as the rules require, be ‘freely given.’”); Sosa v. Airprint Sys.,

133 F.3d 1417, 1419 (11th Cir. 1998) (explaining the “liberal amendment

standard” of Rule 15(a)). Pursuant to Rule 15(a)(2), “the discretion of the District

Court is not broad enough to permit denial” unless “a substantial reason exists to

deny leave to amend.” Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co.,

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470 F.3d 1036, 1041 (11th Cir. 2006) (quoting Shipner v. Eastern Air Lines, Inc.,

868 F.2d 401, 407 (11th Cir. 1989)).

Amendment to add new claims is proper where, as here, initial claims are

rendered moot by events subsequent to the filing of the original complaint. See,

e.g., McKinley v. Kaplan, 177 F.3d 1253, 1258 (11th Cir. 1999) (reversing district

court’s denial of motion for leave to amend complaint after original claims were

moot, and noting there is “nothing illegitimate about a plaintiff seeking a new type

of relief when intervening events occur during the pendency of litigation that

makes the originally sought relief impossible.”); In re Adler, Coleman Clearing

Corp., No. 06-80157-CIV, 2008 WL 11411962, at *3 (S.D. Fla. Aug. 13, 2008)

(granting leave to amend complaint to add new claim after claims became moot,

even where the court did “not agree that the new claim relates to the original

complaint.”).

II. Plaintiffs Should Be Permitted to Amend Their Complaint to Re-Name

the Governor, Add One Co-Plaintiff, and Allege New Claims.

Plaintiffs should be permitted to amend their complaint to re-name the

Governor as a defendant and to allege new claims of intentional discrimination in

violation of the Fourteenth and Fifteenth Amendments. Barring exceptional

circumstances inapplicable here, “the Federal Rules of Civil Procedure liberally

allow a plaintiff to join a new defendant.” Dever v. Family Dollar Stores of Ga.,

LLC, 755 F. App’x 866, 869 (11th Cir. 2018). Here, the Governor was a party to

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the original complaint and never moved to be dismissed from that case. He will

suffer no unfair surprise by being named in an amended complaint challenging the

new congressional district plan that he endorsed. The proposed amended

complaint describes the Governor’s conduct giving rise to the claims, including,

where relevant, his role and participation in the violations of the Fourteenth and

Fifteenth Amendments. See Ex A, ¶¶ 49–74. It also explains his responsibility for

enforcing the Enacting Plan that Plaintiffs seek to enjoin. Ex A, ¶¶ 7, 58.

Ex parte Young provides for federal jurisdiction against a state actor who is

responsible for enforcing a law that is unconstitutional. See Papasan v. Allain, 478

U.S. 265, 276–277 (1986) (citing Ex Parte Young, 209 U.S. 123 (1908)); Luckey v.

Harris, 860 F.2d 1012, 1014 (11th Cir. 1988). The Governor is a proper defendant

where, as here, the Governor has enforcement authority over challenged legislation

(and also the obligation to defend it in court). See, e.g., Dream Defenders v.

DeSantis, 553 F. Supp. 3d 1052, 1079–81 (N.D. Fla. 2021) (denying in part

Governor’s motion to dismiss and rejecting argument that the Governor was not a

proper party where the Governor had power to enforce the challenged law).

Governor DeSantis has acknowledged his authority over the Secretary of State and

highlighted his responsibility for the administration of Florida’s election laws. For

example, in his petition to the Florida Supreme Court for an advisory opinion

concerning the constitutionality of a congressional redistricting bill that retained a

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performing district for Black Florida voters, the Governor explained that the

executive power vested in him by the Florida Constitution includes the power of

“direct supervision” over the “administration” of the Department of State. For this

proposition, he cited Fla. Const. Art. IV, § 6; see also Fla. Stat. § 20.02(3)

(providing that “[t]he administration of any executive branch department … placed

under the direct supervision of an officer … appointed by and serving at the

pleasure of the Governor shall remain at all times under the constitutional

executive authority of the Governor”); Fla. Stat. § 20.10 (creating the Department

of State, which is headed by the Secretary of State, who is appointed by and serves

at the pleasure of the Governor). In his request for an advisory opinion, the

Governor continued:

The Secretary of State, whom I direct and oversee, is the

chief election officer of the State, § 97.012, Fla. Stat., and
is responsible for, among many things, “[o]btain[ing] and
maintain[ing] uniformity in the interpretation and
implementation of the election laws,” id. § 97.012, Fla.
Stat …. The Department of State will also be responsible
for defending any legal challenges to the new
congressional redistricting map.1

1
Advisory Opinion to Governor re: Whether Article III, Section 20(a) of the
Florida Constitution Requires the Retention of a District in Northern Florida, No.
SC22-139, Petition at 2 (Fla. Feb. 1, 2022), available at https://efactssc-
public.flcourts.org/casedocuments/2022/139/2022-
139_petition_79511_request2dadvisory20opinion2028governor29.pdf

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Given the Governor’s acknowledgment of his enforcement authority over the

Florida congressional district plan that Plaintiffs challenge in their proposed

amended complaint and supervision of the defense of that map, he is a proper

defendant here.

Plaintiffs should also be permitted to amend to add one co-plaintiff, the

Florida State Conference of the National Association for the Advancement of

Colored People Branches (the “Florida NAACP”), a nonpartisan civil rights

organization in Florida. The Florida NAACP has encouraged civic and electoral

participation among its members and other voters. Unfair and discriminatory

redistricting at the Congressional level frustrates the Florida NAACP’s core

missions by diluting the votes of citizens the Florida NAACP works to engage in

civic participation and by obstructing the ability of their members to elect

candidates of choice. Ex. A at ¶ 5. Defendants will not be prejudiced by the

addition of the Florida NAACP as a co-plaintiff. See, e.g., United States v. Space

Coast Med. Assocs., L.L.P., No. 613CV1068ORL22TBS, 2014 WL 12616950, at

*1 (M.D. Fla. Oct. 22, 2014) (granting leave to amend and rejecting argument that

the “marginal burden of defending against one additional plaintiff in the same

case” would be prejudicial).

The proposed amended complaint also seeks to add intentional

discrimination claims under the Fourteenth and Fifteenth Amendments to

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challenge the new congressional map, which continues a lengthy history of

discrimination against Black Floridians by Florida officials, including by Governor

DeSantis. As detailed in the proposed amended complaint, the Enacted Plan was

adopted, at least in part, for the purpose of discriminating against Black Florida

voters. Ex. A. at ¶¶ 92–103. Defendants are alleged to have acted with invidious

intent to disadvantage Black voters in the Enacted Plan, which was designed to

dismantle two otherwise effective crossover district and to diminish Black

Floridians’ ability to elect candidates of their choice. Ex. A at ¶¶ 78–91, 95. The

Enacted Plan will disproportionately burden Black voters in Florida, an entirely

foreseeable result that Defendants were well aware of when they passed the new

map. Ex. A at ¶ 102. These allegations overlap with and supplement the core

allegations in the original complaint. Compare Dkt. No. 1 at ¶¶ 32–47, with Ex. A

at ¶¶ 43–91.

The Equal Protection Clause of the Fourteenth Amendment to the U.S.

Constitution forbids states from enacting laws which produce discriminatory

results and for which a racially discriminatory intent or purpose is a motivating

factor. To establish a Fourteenth Amendment violation, a plaintiff need only show

that discriminatory purpose was a motivating factor. Village of Arlington Heights

v. Metro. Housing Dev. Corp., 429 U.S. 252, 265–66 (1977). Plaintiffs’ proposed

amended complaint adequately alleges claims for intentional discrimination under

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Arlington Heights. Plaintiffs’ proposed amended complaint also adequately

alleges that the Enacted Plan violates the Fifteenth Amendment’s promise that the

right to vote shall not be denied or abridged on account of race.

III. Allowing Plaintiffs to Amend Will Not Cause Delay or Prejudice

Defendants.

Other factors that courts consider in deciding motions for leave to amend—

whether the amendment will unduly delay the proceedings or prejudice the

opposing party—also weigh in favor of granting leave to amend. See Taylor v.

Florida State Fair Authority, 875 F. Supp. 812, 815 (M.D. Fla. 1995) (considering

undue delay and prejudice to the opposing party). First, Plaintiffs have not unduly

delayed in filing this motion. To the contrary, Plaintiffs promptly filed this motion

within the deadline set by the Court for a response to the April 25, 2022 Order to

Show Cause and about a week after the Enacted Plan became law.

Second, Defendants will not be prejudiced by the amendment to the

complaint. A three-judge panel will still adjudicate the claims, which continue to

challenge the constitutionality of the apportionment of congressional districts. See

28 U.S.C. § 2284(a). The proceedings are also at an early stage. No discovery has

been taken, and no dispositive motions have been filed by the remaining

Defendants. See Taylor, 875 F. Supp. at 815 (rejecting argument that amendment

that raised “a new legal theory” warranted denial of motion for leave to amend

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complaint because “that basis for a finding of prejudice essentially applies where

the amendment is offered shortly before or during trial”).

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant

them leave to file their proposed amended complaint. In the alternative, Plaintiffs

intend to file their proposed amended complaint as a new lawsuit designated as

similar to the instant proceeding under Local Rule 5.6(A).

LOCAL RULE 7.1(F) CERTIFICATION

Undersigned counsel certifies that this memorandum contains 2,603 words,

excluding the case style and certifications.

Date: April 29, 2022

Respectfully submitted,

PATTERSON BELKNAP WEBB & TYLER LLP

By: /s/ Gregory L. Diskant

Gregory L. Diskant (pro hac vice)
H. Gregory Baker (pro hac vice)
Jonah M. Knobler (pro hac vice forthcoming)
Peter A. Nelson (pro hac vice)
Peter Shakro (pro hac vice forthcoming)
Catherine J. Djang (pro hac vice)
Alvin Li (pro hac vice forthcoming)
1133 Avenue of the Americas
New York, NY 10036
(212) 336-2000

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[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Katelin Kaiser (pro hac vice)

Christopher Shenton (pro hac vice forthcoming)
Alexandra Wolfson (pro hac vice forthcoming)
SOUTHERN COALITION FOR SOCIAL JUSTICE
1415 West Highway 54, Suite 101
Durham, NC 27707
(919) 323-3380
[email protected]
[email protected]
[email protected]

Henry M. Coxe III (FBN 0155193)

Michael E. Lockamy (FBN 69626)
BEDELL, DITTMAR, DeVAULT, PILLANS &
COXE
The Bedell Building
101 East Adams Street
Jacksonville, Florida 32202
(904) 353-0211
[email protected]
[email protected]

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on April 29, 2022, I electronically filed the foregoing

with the Clerk of Court by using CM/ECF, which automatically serves all counsel

of record for the parties who have appeared.

/s/ Gregory L. Diskant

Gregory L. Diskant

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