Live Updates: Common Cause et al v. Byrd Case

Updates ongoing. *Titles and descriptions below.

Tuesday, October 3: Day 4/Last Day of Trial 

Summary: Defendants bring to the stand their expert witnesses, Dr. Douglas Johnson and Dr. Mark Owens, as well as bring back Alex Kelly to take the stand again. Both sides provide closing arguments in the afternoon to finish the trial.

5:04pm: Court is adjourned, and trial concludes.

4:30pm: Defense finishes their closing. Greg Diskant for the plaintiffs is back up to close out the day.

3:12pm: Greg Diskant finishes first part of closing. Defense closing now begins.

The defendant’s closing argument attempts to refute some of the plaintiffs’ arguments, as well as attempted to challenge the Fair Districts Amendments.

2:00pm: Closing on plaintiff side, led by Greg Diskant, beginning now.

Diskant, the lead attorney for the plaintiffs, lays out in his closing argument that the enacted map is an unconstitutional violation of the 14th and 15th Amendments because they were created in part by intentional racial discrimination. He underscored how despite the Florida Supreme Court clearly laying out how the non-diminishment standard would apply in North Florida in a 2016 decision, the Governor’s map ignored the state’s highest court–substituting the ruling of the court for his own opinion regarding the standard.

1:40pm: Defendants have no remaining witnesses, court adjourns for a short break.

1:00pm: Court resumes, defendant attorneys put Alex Kelly* back on the stand. Defendants conduct direct examination, followed by cross-examination.

The defendants bring back Alex Kelly, the Governor’s current chief of staff, to expand on a couple topics, including how he ran reports to look at how the maps he was drawing would perform, and whether or not functional analyses to look at performance of districts were used in his map-drawing. While Kelly claimed he would want to draw a map that would have less diminishment if he could, he said they did not do a functional analysis of the enacted plan to determine how they would perform. On cross, Kelly said that the Governor’s push for this map that was ultimately enacted did not follow the non-diminishment standard in North Florida, even though the standard was considered in another district to the south.

12:00pm: Examination of Owens ends, Court on break until 1:00pm.

Dr. Mark Owens is the second expert witness for the defendant who shared his contrasting views from Dr. Kousser’s earlier testimony on Florida’s history of discrimination. While Owens asserted that other states’ governors have vetoed congressional maps sent to them by their state legislatures, he agreed that no Florida Governor had ever submitted their own maps to the legislature before, and that this is a unique development for Florida.

10:30am: Court resumes. Now hearing testimony from Dr. Mark Owens. Owens is on the stand for the defendant as an expert witness on racial polarized voting, political history, and the redistricting process.

10:20am: Examination of Johnson completed. Break until 10:30am.

Dr. Douglas Johnson, as an expert witness for the defendant, attempted to share his objections to plaintiffs’ expert witness testimony. On cross-examination, plaintiffs’ attorney highlighted his past role as an expert witness where his testimony was given little weight by other courts or where his work was struck. This includes his expert testimony in Common Cause v. Lewis, where the trial court opinion said that “the Court finds Dr. Johnson’s analysis unpersuasive and gives his opinions little weight,” and struck other portions of his testimony.

8:40am: First witness takes stand for the defense, Dr. Douglas Johnson. Johnson is submitted as an expert witness by the defendant as an expert in mapmaking and demographics.

8:30am: Judges enter the courtroom and beginning with procedural updates. Alex Kelly will take the stand today at 1:00pm. The judges want the case to wrap today, so we are potentially expecting summation later this afternoon.

Monday, October 2: Day 3 of Trial 

Summary: Plaintiffs’ voting map expert Dr. Matthew Barreto and Minority Leader Fentrice Driskell to take the stand.

4:40pm: Plaintiffs’ principal case ends at the end of Day 3, with Defendants expected to bring their expert witnesses to the stand tomorrow.

1:30pm: Barreto testimony resumes.

12:30pm: Lunch break. Barreto testimony will resume at 1:30pm.

11:27am: Matthew Barreto*, plaintiff’s expert mapping witness takes stand.

Dr. Barreto discussed his analyses of the maps passed by the legislature and whether or not they performed for Black voters in North Florida. He shared that the currently enacted plan splits and cracks Black communities in certain regions, and that the enacted congressional districts in North Florida do not perform for Black voters. Barreto also explained that white voters in North Florida in the enacted map vote as a block against Black voters’ candidates of choice, therefore no candidates preferred by Black voters were elected under the enacted maps.

11:10am: Cynthia Slater from the NAACP Florida State Conference takes the stand.

Cynthia Slater shared the mission and activities of the Florida State Conference of the NAACP, representing the organization’s 12,000 members across the state. Slater confirmed that the NAACP has members in congressional districts across North Florida.

10:15am: Minority Leader Fentrice Driskell* completes direct examination.

Leader Driskell talked about the legislative process for redistricting this past cycle, including how the process began with learning about the legal standards and requirements, including federal law, the Fair Districts Amendment, and other state laws. She talked about need for transparency, but that there was no roadshow during this redistricting cycle, unlike past cycles. In the redistricting legislative committee Leader Driskell was a member of, there was never disagreement on the committee needing to follow the law. Throughout the process, the legislature tried to follow the law even when the governor started to interfere with his threat of a veto. The governor’s threat of a veto ultimately resulted in the committee taking the extraordinary step putting forward two different maps. Driskell described that it felt like the Speaker was no longer in the driver’s seat; instead, the Governor was in the driver’s seat. She noted that in this process that only happens every 10 years, which is a fundamental process in American government, the legislature delegated its duty to the Governor.

8:30am: The Court begins Day 3 with testimony from Minority Leader Fentrice Driskell.

Alton Wang, Common Cause Redistricting Fellow heads into court to watch the proceedings and will be available for one-on-one interviews during breaks and at the end of the day.

Common Cause Florida Program Director Amy Keith and Common Cause Vice President of Programs Kathay Feng are both available for comment throughout the day. To arrange an interview, contact Katie Scally at kscally@commoncause.org.

Friday, September 29: No court today. Trial will resume Monday, October 2, 2023.

Thursday, September 28: No court today.

Wednesday, September 27: Day 2 of Trial

Summary: Historian Dr. Morgan Kousser and Common Cause Florida Program Director Amy Keith to take the stand.

5:12pm: Court is out.

4:30pm: Amy Keith took the stand. She spoke briefly about Common Cause’s mission, programs and membership, explaining why this case is important to us as an organization. She also spoke about some of the challenges we face in an environment within Florida and the country that has seen growing hostility toward people working or volunteering in voting and elections work.

2:03pm: No court tomorrow, Thursday, September 28. Case expected to wrap midweek next week, likely Wednesday, October 4.

1:15pm: Court is on lunch break.

Dr. Kousser* testimony is ongoing. Before breaking for lunch, he drew links between Florida’s history of racial discrimination and recent issues including restrictive voting laws, book banning, and the teaching of Black history. He noted: there are echoes of the previous period of racial concern that have been propagated by the current administration.

Amy Keith Takeaway: We are in the middle of Dr. Morgan Kousser’s powerful testimony about Florida’s long history—from reconstruction to the present—of discriminatory voting and election laws that have prevented Black Floridians from being able to elect candidates of their choice. Establishing this history of racial discrimination is important to proving intent.

11:14am: Short break.

9:00am: Amy Keith Takeaway: During Dorothy Inman-Johnson’s* testimony, I was struck by how she illustrated the importance of a Black opportunity district in north Florida, not just for the voters in that district, but for supporting the interests and concerns of Black Floridians across north Florida.

8:00am: Amy Keith and Kathay Feng arrive at court.

“Black voters in Florida have a right to elect candidates of their choice to represent them in Congress,” said Amy Keith, Common Cause Florida Program Director. “On behalf of Common Cause Florida and our members, I look forward to taking the witness stand today in defense of fair elections for all voters. Governor DeSantis and the Florida legislature must understand they are not above the law or the principles of fair districts, which Florida voters have shown they overwhelmingly support.”

Tuesday, September 26: Day 1 of Trial

Summary: Today in federal court, Common Cause Florida and plaintiffs began arguments in the trial over the state’s gerrymandered 2022 congressional voting map. To read the press release with quotes from the plaintiffs, including Common Cause Florida, click here.

End of day thoughts from Amy Keith: As a Floridian, it was incredibly disappointing to hear the state’s team dismiss the importance of Florida’s deep history of racial discrimination. However, it is sadly not surprising given how we’ve seen the DeSantis Administration try to erase Black history and experiences from our classrooms. Also, watching as a lay person, not an attorney, Alex Kelly’s statements on what he was and was not aware of regarding racial demographics seem to strain credulity, especially given his incredibly detailed recollections on other aspects of redistricting.

End of day thoughts Kathay Feng:  For a guy who says he likes clean lines, Alex Kelly had a rough time today keeping his story straight. Kelly, who was Deputy Chief of Staff for Governor DeSantis and responsible for drawing district lines in this redistricting cycle, dodged and danced on the stand today as he tried to downplay what he knew, and why he drew the lines he did. He was not dismantling a Black opportunity voting district because of racial intent, but because he liked straight lines. Repeatedly, Common Cause’s attorney Greg Diskant pinned Kelly on the truth, based on previous testimony, public statements and depositions. In an effort to distance himself from lines he was responsible for drawing in 2012, Kelly said the East-West district linking Black communities from Tallahassee to Jacksonville was not his idea – it came from a man in Broward who handed him a crayon-drawn map on a piece of paper. Hmmm… really?

5:45pm: Court is out for today.

4:00pm: Individual plaintiff Charlie Clark* on the stand today talking about how he felt about the 2022 redistricting process: “I was horrified, as a regular citizen…when I felt that the Governor of Florida had hijacked the process.”

Amy Keith and Kathay Feng head back into the courtroom.

12:28pm: Opening statements are complete. Gregory Baker of Patterson Belknap LLP presented opening arguments on behalf of the plaintiffs.

Alex Kelly* is halfway through his testimony. Kelly is responsible for having drawn the Governor DeSantis-submitted congressional map.

On break for lunch.

Amy Keith Takeaway: Watching Alex Kelly on the stand this morning, he seemed dismissive of the state’s long history of racism and discrimination.

Kathay Feng Takeaway: Kelly seemed to make contradictory statements on map drawing and North Florida’s Black voters.

8:30am: Common Cause Vice President of Programs Kathay Feng and Common Cause Florida Program Director Amy Keith head into the courtroom.

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Alex Kelly is currently the Acting Chief of Staff for Governor Ron DeSantis. During the redistricting process, Kelly served as the Governor’s Deputy Chief of Staff and was responsible for drawing the map challenged in this case.

Charlie Clark is one of the individual plaintiffs in Common Cause Florida et al v. Byrd, and a resident of Tallahassee. Prior to his retirement, Clark worked at the Florida Department of Agriculture and Consumer Services for over three decades, where he became the first Black person to serve as the Head of Pesticides.

Dorothy Inman-Johnson is one of the individual plaintiffs in Common Cause Florida et al v. Byrd, and was the first Black woman elected to the Tallahassee City Commission, where she served for a decade, including two terms as Mayor. She also formerly served on the Advisory Board of Common Cause Florida.

Dr. Morgan Kousser is a professor of history and social science, emeritus, at the California Institute of Technology, where his work has focused subjects including minority voting rights and educational discrimination. He is the author of “The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910” and “Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction.” Dr. Kousser serves as a historian expert for the plaintiffs in this case.

Fentrice Driskell represents the 67th Florida House district and is currently the minority leader in the Florida House of Representatives. She served on the House Redistricting Committee for 2020-2022.

Dr. Matthew Barreto is a professor of political science at the University of California, Los Angeles, and is an expert in voting rights, redistricting, and racial and ethnic politics in America. He co-founded the UCLA Voting Rights Project, has served as an expert witness in a number of Voting Rights Act lawsuits, and served as the lead expert consultant for California’s Citizen Redistricting Commission. He is the author of the books “Ethnic Cues: The role of shared ethnicity in Latino political behavior” and “Latino America: How America’s Most Dynamic Population is Poised to Transform the Politics of the Nation.” Dr. Barreto serves as a mapping expert for the plaintiffs in this case.