Judge hears arguments on constitutionality of the ballot measure for at-large County Commission districts

BY JENNIFER CABRERA

GAINESVILLE, Fla. – At a court hearing this morning on an emergency petition filed by Senator Keith Perry and three other plaintiffs to keep a referendum off the November ballot, the judge gave no indication about how he might rule but said the ruling would come “very promptly” after additional documents are submitted a week from now.

Senior Judge Olin Shinholser, a retired judge who previously served the 10th Judicial Circuit, presided over the hearing, with Jeff Childers representing the plaintiffs, Deputy County Attorney Bob Swain and County Attorney Sylvia Torres representing Alachua County, and Assistant County Attorney Corbin Hansen representing the Supervisor of Elections.

The petition, which is described in detail here, requests a temporary injunction to stop a November ballot measure that would allow Alachua County voters to reverse a 2022 ballot measure that converted County Commission districts from at-large districts to single-member districts.

Judge Shinholser said that due to the storm, he had not had an opportunity to review all of the submitted documents and would not be ruling “off the cuff” but would rule as rapidly as he could. 

Senator Perry’s testimony

Childers called Perry to the stand, and Perry explained that in an at-large system, everyone in the entire county votes for every county commissioner, while in a single-member system, only voters in the candidate’s district can vote for that candidate. He said he supported HB 1493, the bill that put single-member districts on the ballot in 2022, because people from “minority districts came to me and said that they felt they were unrepresented” and single-member districts in the City of Gainesville “gave them a chance to be represented by their neighborhood or their district. And so I had many people in the African American community that came to me, saying that they were disenfranchised by the at-large voting.”

Childers introduced the agenda of the May 14 Alachua County Commission meeting, which referenced a memo from Torres, written on December 15, 2022, a little over a month after the single-member district ballot referendum passed. The memo stated that Torres was directed by the County Commission on December 6 to “prepare a memorandum outlining the methods for amending the Alachua County Home Rule Charter, with specific procedures and dates relevant to the November 2024 ballot process.”

Childers then referenced a Gainesville Sun article from September 25, 2024, in which County Commission Chair Mary Alford is quoted as saying the residents she’s spoken to “have overwhelmingly supported placing the issue back on the ballot.” In the article, Alford spoke about the “misinformation that was mailed to residents and that was funded by dark money before the last election.”

Childers said that in the County’s response to his petition, “they alleged that the ballot initiative arose because at the May 15 [sic] hearing with the County Commissioners, some unidentified citizens requested that it be placed on the ballot… But does the… December 2022 memo, written by the County Attorney, suggest that the Board of Commissioners was thinking about this a lot earlier than the May 15 [sic] hearing this year?” Perry responded, “Yes, that’s correct.”

Perry said that only two Republicans have been elected to the County Commission since Reconstruction, and they each served a single term.

Perry said that students vote “overwhelmingly Democrat” and some areas, mostly rural, vote “overwhelmingly Republican,” but the overall numbers of Democrats make it nearly impossible for a Republican to win an at-large election in Alachua County. He added that single-member districts only require a candidate to focus on one set of constituents. 

Perry mentioned Kevin Thorpe, who lost to current District 4 Commissioner Ken Cornell in a 2014 Democrat primary but received about 62% of the District 4 votes in that primary election. The district is heavily African American, and Perry said the district residents’ votes were “diluted” by voters who lived in other districts. He added that he believes the current commissioners want to go back to an at-large system “based on job security.”

Swain: County Commissioner Chuck Chestnut is black

During his cross-examination of Perry, Swain pointed out that Commissioner Chuck Chestnut is black and noted that at-large districts are the default for county commission races in Florida. 

During redirect, Childers asked Perry whether the African Americans who spoke with him were “aware that Chuck Chestnut was a commissioner… Is it fair to say that the fact of Chuck Chestnut’s presence on the County Commission did not alleviate their concerns?” Perry responded, “No, not at all… It’s not like they have some kind of quota.” He said their concern was regarding electing someone from their district: “It didn’t have anything to do with the other districts.”

Hansen: Did the plaintiffs delay the petition intentionally?

After Hansen asked Perry when he first knew about the proposed ballot measure, Childers asked Perry whether he had intentionally or strategically delayed his petition, and Perry said, “No, sir.” Childers pointed out that the County had “delayed more than anybody” since they first asked for information in December and didn’t pass the ordinance implementing the ballot measure until June. 

Childers: ballot measure is “unconstitutionally arbitrary,” does not give a rational basis

Childers said the ballot measure is a “classic situation of ‘Keep voting until you get the result that you want.’ Only two years ago, Alachua County voters made their voices clear” and chose a system of single-member districts “because they wanted fair representation and they wanted competition in local government because they understood a single-party rule is bad for everybody.” He argued that the County should provide a legislative intent and findings that support putting the measure back on the ballot.

Childers pointed to news articles introduced into evidence by both sides, indicating that the rationale for the ballot measure was a belief that the election was swayed by “misinformation” and “disinformation.” He continued, “That is not a legitimate state interest. Political speech is heavily protected under the First Amendment… even when it contains misinformation… So this rationalization of ‘misinformation’ is an impermissible violation of freedom of speech, and the County’s Home Rule powers, which they wave around like a magic wand, are limited by general law. The County cannot take any action inconsistent with general law; it does not have that power under its Home Rule powers.”

Childers said the ordinance that put the measure on the ballot is “unconstitutionally arbitrary” because it does not include legislative findings and is “inconsistent with voter intent.” He said the County provided a rationale based on “these unidentified 15 citizens who spoke at one County Commission meeting… but, Judge, the County Commission cannot delegate the government’s powers to citizens that speak… The evidence supports an inference that the true purpose of this proposed amendment is to favor one political party, Democrats, and disadvantage another one, Republicans… Not only that, but the evidence supports the inference that the system unfairly discriminates against historically disadvantaged minority groups, also violating the Florida constitution.”

Childers concluded, “Finally, there is no rational basis to overturn the existing system… This will be the first election to be conducted under a single-member district [system], so there’s no history that the County can rely on to point to some kind of problem.” 

Childers: Florida statutes prescribe the ballot language

Childers went into detail about how the language of the ballot measure does not comply with Florida statutes and said, “In the County’s response to our petition, they can see that this statute governs, but they argue that they substantially complied with it, but I will show you that they did not substantially comply.” He said the statute provides specific language that asks voters whether they want single-member districts, and “if the citizens of the county want to have at-large voting, they vote no; if they want single members, they vote yes… But that’s not the language on the ballot… They inverted it so that the voters would see ‘yes’ first… That’s my interpretation. It doesn’t matter, because it’s not consistent with the statute.”

Childers concluded, “What we’re asking the Court to do is to retain the current system that nobody’s argued was illegally procured or violated even a procedural concern but came from the legislature and was already decided by the people of Alachua County. So we’re just asking the Court to preserve the status quo.”

Swain: Ballot language is permissible, ruling should be made after the election

Swain argued that the ballots have already been prepared and sent out, “and this is one of those situations that, if they vote in a way that’s consistent with the 2022 vote… then there’s nothing for the Court to decide. No harm, no foul.”

Swain said that because at-large districts are the default in Florida, the statutes “go into some detail” on how to change to single-member districts, but the statute also provides for a County to “return to the procedures otherwise provided by law by following the same procedure.” He said the statutes “don’t provide the ballot language for seven members, where it’s mixed single-member and at-large or seven single members, they don’t provide that language. They provide only the language going from five at-large to five single-member districts.” However, that is incorrect; the ballot language for moving to a seven-member commission follows immediately after the ballot language for moving to five single-member districts in Florida Statute 124.011(9)(b).

Swain said the statutes don’t prevent counties from revisiting the issue for any specific length of time after a change or require that it can only be changed once. He added that the plaintiffs can challenge the change after the election because “this matter won’t hit the election cycle until 2026” and “the voters decide what’s a rational basis.” He argued that the case law for pre-election ballot questions requires a court to find that there are “facial challenges that invalidate the entire item” before invalidating the ballot question. He said the defense also raised questions of standing in their Motion to Dismiss.

Hansen: invalidating the ballot measure would be an “undue burden” on the Supervisor of Elections

Hansen, representing the Supervisor of Elections (SOE), said that Vote By Mail ballots have already been sent out, invalidating the ballot measure would be an “undue burden” on the SOE, “and it puts the validity of the 2024 General Election in question.” He said that sending a notice to voters that a ballot question is illegal “is going to dissuade the outcome of an election before there is a decision on merits… There is no loss in rights, no irreparable harm to the petitioners by allowing the vote to go forward, and ultimately that is the interest of the Supervisor of Elections, just administering a free and fair election where the voters have an opportunity to cast their ballots.”

Childers: County didn’t enter evidence on the issues of bias and rational basis

In closing, Childers said he thought the “silence from the County on the issue of bias” was “remarkable.” He continued, “The County didn’t put in any evidence today to rebut the allegation that the Republican Party is disfavored by drawing the county as one district instead of five districts; they didn’t even argue it… The County was also silent on the issue of rational basis; you heard no proffer of a rationale for the ordinance.”

Childers also addressed Swain’s argument that Florida Statute 124.011 permits going back to at-large districts, saying the “procedures otherwise provided by law” reference the earlier part of the statute that addresses a “proposition calling for single-member representation.” 

Referring to Swain’s argument that the plaintiffs can contest the issue after the election, Childers said, “That doesn’t hold water… because, first of all, again, Florida law is very clear that requiring voters to vote on an unconstitutional matter is presumptively irreparable harm… This ballot language requires them to vote on ballot language that is illegal, or at least inconsistent with statute.” He said that even if the ballot measure is voted down, that overlooks “the vast unmentioned costs of all the campaigning” on both sides. He closed by saying that the SOE had to send out ballots because that’s her job, so the plaintiffs are asking the judge to order the SOE to “make reasonable efforts to inform the voters that the ballot measure has been enjoined, such as by putting up signs in the polling places and putting something on the website.” He also said that asking the SOE to not count the votes would “take less effort than the Supervisor would have had to expend. In other words, we don’t think that’s an undue burden.”

Ruling will come “very, very promptly” after proposed orders are submitted

Judge Shinholser gave both sides five business days to make any additional submissions, along with proposed orders. Shinholser said, “My crystal ball tells me that probably the final order I enter will not perfectly match what either of you submit, which you would probably expect, but we’ll see. I will rule very, very promptly, understanding all the exigencies of the matter and giving you all a decision as quickly as I can.”