By John Kennedy, Capital Bureau USA TODAY NETWORK—FLORIDA, April 6, 2022.
TALLAHASSEE – With the dust still settling from a legislative session where Gov. Ron DeSantis’ polarizing agenda of bills was easily approved by Republican majorities, the scene now shifts from the Capitol to the courthouse.
The trail was blazed recently with a federal lawsuit looking to overturn the state’s new parental rights law – branded “Don’t Say Gay” by opponents – which was filed within days of DeSantis signing the measure.
More challenges are waiting in the wings to legislation focusing on immigration, abortion, elections security, campaign financing, and discussion of race in schools and the workplace.
“Gov. DeSantis and the Legislature spent a tremendous amount of effort this session betraying their promises of limited government and instead created policies that are increasingly cruel and unreasonable exercises of power,” said Daniel Tilley, legal director for the American Civil Liberties Union of Florida.
“The ACLU of Florida is watching, as are our coalition partners. And we will all see DeSantis in court,” Tilley added.
Florida has long had a revolving door, with new laws reviewed and analyzed in courthouses, and taxpayers footing hefty legal bills.
But since DeSantis took office in 2019, the tenor of the legislation and the lawsuits they’ve drawn have taken on a more nationalized tone, fitting for a governor viewed as having presidential aspirations from a state which has sued the Biden administration twice over federal border policy and immigration and three different times over COVID-19 requirements — all in less than a year-and-a -half.
The latest lawsuit filed by Attorney General Ashley Moody came Monday when Florida joined Georgia and Alabama in accusing the Biden administration of failing to properly deport undocumented migrants who commit crimes.
A week earlier, Florida joined 20 other mostly Republican states seeking to halt the federal mask requirement on commercial aircraft and public transportation.
Gov. DeSantis’ courthouse record not so hot
Still, DeSantis’ won-loss record in court hasn’t been great.
He was on the winning side when the U.S. Supreme Court in January blocked Biden’s vaccine requirements for workers at larger companies. But he’s lost lower court fights over his push to regulate social media companies, crack down on undocumented immigrants with a sanctuary cities ban, and impose new criminal penalties on demonstrators, the so-called anti-riot law.
And just recently, U.S. District Judge Mark Walker delivered a blistering, 288-page ruling that gutted central parts of last year’s Florida elections law, striking down new limits on third-party voter registration groups, restrictions on ballot drop boxes and banning the handing out of water or snacks to people lined up to vote.
Walker also took the unprecedented step of putting Florida into pre-clearance status under the Voting Rights Act for the next 10 years, citing what he said was the state’s history of “repeatedly, recently and persistently” working to deny Black Floridians access to voting.
The state will appeal Walker’s ruling, with DeSantis lashing out at the judge nominated by former President Barack Obama, who also blocked the anti-riot law now on appeal.
DeSantis accused Walker of “performative partisanship.”
The governor similarly dismissed the first of what could be a cascade of new lawsuits coming the state’s way — saying that claims in a federal lawsuit filed by opponents to the parental rights law have no merit.
Always ready for appeal
But DeSantis held out the possibility of a loss at the trial court level. He vowed to seek a reversal by appellate justices, the same path he’s taken over the past year following other setbacks.
The conservative-leaning, 11th U.S. Circuit Court of Appeal, which hears cases from Florida, Georgia and Alabama, has 20 judges, 13 of whom were appointed by Republican presidents, including six by former President Trump.
DeSantis said some lower court judges will seize on a “cause du jour,” and “potentially stretch the law,” to make a political statement.
“I don’t think that’s going to happen in this case,” DeSantis added about the parental rights case, which has been assigned to Tallahassee-based, U.S. District Judge Allen Winsor, a Trump-nominee. “But the bottom line is…we are going to defend this vigorously.”
Lawyers for LGBTQ organizations, parents and students who sued argue that the new law, set to take effect July 1, violates constitutional free speech and equal protection safeguards.
They also conclude that classroom discussion is censored on matters involving sexual orientation and gender identity not just in early grades, but for all students based on an undefined “age-appropriate” standard.
Constitutional violations a likely claim
Similarly, alleged constitutional violations are likely to prove the backbone of lawsuits expected to be filed in coming weeks over new measures which could punish companies that help transport migrants to Florida, halt most abortions after 15 weeks of pregnancy, impose new restrictions on discussion of race in schools and workplaces, and limit out-of-state contributions to ballot initiatives.
Once DeSantis is sent the legislation by lawmakers and enacts each new measure, advocates are ready to file their lawsuits, they say.
Congressional redistricting, which DeSantis has enflamed by vetoing plans approved by Florida lawmakers, has already drawn state and federal legal challenges, which are likely to continue no matter the outcome of a special session, set to begin April 19, where the Legislature is being tasked by the governor to redraw boundaries.
But even if defeated in court, DeSantis’ aggressive stance on topics that animate a conservative voting base are seen by many analysts as proving to be a winning strategy for him.
DeSantis a liberal victim? Maybe not
And while DeSantis often casts himself as a victim of liberal-leaning judges, that’s not always the case.
The Legislature’s new $3,000 cap on out-of-staters contributing to ballot initiatives was seen as an effort to revive a contributions law signed by DeSantis last year but which was blocked by Winsor, the Trump-nominated judge who earlier was Florida’s solicitor general under Republican Attorney General Pam Bondi.
Opponents feared the initial, broader restriction on donors would’ve effectively ended Florida’s more than half-century tradition of citizens groups being able to get measures on the ballot. Winsor concluded that contribution limit violated the First Amendment.
Similar free speech issues are being raised by the ACLU with the new version of the campaign cap, which the governor signed into law Wednesday but which is also likely to go before Winsor.
First Amendment issues are also certain to be in play with eventual challenges to how discussion of race takes place in classrooms and work places.
Other federal voting rights laws and commerce protections could be central to lawsuits involving a new investigative force pursuing claims of election fraud and penalties on transportation companies and others that assist with migrant relocation, bills the governor called for lawmakers to approve.
Advocacy groups say they are poised to respond to DeSantis bill-signings.
Mark Prada, a Miami immigration attorney, said the latest strike at migrants is not only damaging to a vulnerable community, but crafted so that it will confuse enforcement. Its critics include the Florida Conference of Catholic Bishops, which called the measure “vague and rife with dimensions that are likely to prompt legal challenges.”
“All in all, my quarrel is that the drafting of the bill reflects a poor understanding of immigration, which causes broad, harmful consequences and possibly even achieves results not intended by the drafters,” Prada said.
John Kennedy is a reporter in the USA TODAY Network’s Florida Capital Bureau. He can be reached at [email protected], or on Twitter at @JKennedyReport
Image Credits: Ernst Peters/The Ledger