JACKSONVILLE BRANCH OF THE NAACP

v.

CITY OF JACKSONVILLE

THIS CAUSE is before the Court on Defendants’ Time-Sensitive Motion for Stay and Incorporated Memorandum of Law in Support (Doc. 57; Motion for Stay), filed on October 19, 2022. In accordance with the Court’s order, Plaintiffs filed a response in opposition to the Motion for Stay on October 25, 2022. See Plaintiffs’ Response in Opposition to Defendants’ Motion for Stay Pending Appeal (Doc. 59; Response). In the Motion for Stay, Defendants ask the Court to stay the Court’s October 12, 2022 Order (Doc. 53; Preliminary Injunction Order) enjoining Defendants from conducting any elections using the Jacksonville City Council and Duval County School Board districts enacted in Ordinance 2022-01-E, until resolution of their appeal in this action. See Motion for Stay at 1; Preliminary Injunction Order at 137. Upon review, and for the reasons set forth below, the Court finds that the Motion for Stay is due to be denied.

I. Background1

On March 22, 2022, the Jacksonville City Council passed Jacksonville Ordinance 2022-01-E setting forth the Enacted Plan. On May³, 2022, Plaintiffs initiated this action challenging the constitutionality of certain City Council and School Board Districts in the Enacted Plan. See Complaint (Doc. 1). On July¹, 2022, the parties filed a Joint Motion for a Preliminary Pretrial Conference (Doc. 24; Joint Motion) in which they jointly requested a hearing to set an appropriate schedule for the anticipated preliminary injunction proceedings. In the Joint Motion, the parties stated that “in order to proceed with the 2023 general consolidated government elections, the Supervisor of Elections needs to know the City Council district boundaries no later than Friday, December 16, 2022.”

See Joint Motion at 1. The Court held a status conference with the parties on July⁸, 2022, and based on the timeframes proposed by the parties, set a briefing schedule. See Minute Entry (Doc. 26), filed July⁸, 2022; see also Transcript of Preliminary Pretrial Conference (Doc. 27; PPC Tr.).

Simultaneously with the Motion, Plaintiffs filed over 2400 pages of exhibits. See Notice of Filing Exhibits in Support of Plaintiffs’ Motion for Preliminary Judgment [sic] (Doc. 34). Defendants filed a response to Plaintiffs’ Motion on August 12, 2022, which attached over 600 pages of exhibits. See Defendants’

Response to Plaintiffs’ Motion for Preliminary Injunctive Relief (Doc. 41). As directed by the Court, the parties also submitted briefs on a potential interim remedy in the event the Court were to grant Plaintiffs’ Motion. See Plaintiffs’ Brief on Interim Remedial Process (Doc. 39); Defendants’ Remedy Brief (Doc.

45). The Court heard oral argument on Plaintiffs’ Motion on September 16, 2022. See Minute Entry (Doc. 48). As expeditiously as possible thereafter, the Court prepared the 139-page Order in which, despite its reluctance to restrain a legislative enactment, the

Court determined that the Constitution and the equities demanded preliminary injunctive relief. See Preliminary Injunction Order at 134-36. Accordingly, the Court preliminarily enjoined Defendants from conducting any election using the districts as drawn in the Enacted Plan until entry of a final judgment in this case. Id. at 137. Based on the SOE’s representation that he must know the district lines by December 16, 2022, in order to proceed with the March 2023 election, the Court gave the City Council until November⁸, 2022—twenty-seven days—to enact a new, constitutionally permissible, plan. About a week after entry of the Court’s Preliminary Injunction Order, Plaintiffs filed a Notice of

Appeal (Doc. 54) and on the next day filed the instant Motion for Stay.

II. Standard of Review

Rule 62(d), Federal Rules of Civil Procedure (Rule(s)), provides that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants . . . an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” See Rule 62(d). Courts consider the following factors to determine whether a stay pending appeal is warranted:

“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

See Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also Democratic Exec. Comm. of Fla. v. Lee, 915 F. 3d 1312, 1317 (11th Cir. 2019)). The party seeking the stay bears the burden and “must show more than the mere possibility of success on the merits or of irreparable injury.” See Democratic Exec. Comm. of Fla., 915 F. 3d at 1317 (emphasis added). Indeed, “[t]he first two factors are the most critical.” Id. Nevertheless, “‘when the balance of equities . . . weighs heavily in favor of granting the stay’—[the Eleventh Circuit has] relax[ed] the likely-to-succeedon-the-merits requirement.” Id. (quoting Garcia-Mir v. Meese, 781 F. 2d 1450, 1453 (11th Cir. 1986)).

III. Summary of the Arguments

In the Motion for Stay, Defendants assert that a stay is warranted for three reasons. First, Defendants argue that it would be prudent to stay the case pending the Supreme Court’s decision in Merrill v. Milligan, 142 S. Ct. 1358 (Mar. 21, 2022). According to Defendants, the Merrill decision will have a direct impact on this case because the Supreme Court will determine “when, if ever, race can be considered, and when racial predominance runs afoul of the Constitution.” See Motion for Stay at 5. Second, Defendants assert that the equities tilt in favor of a stay because “Plaintiffs’ alleged harms stem from configurations that are decades old.” Id. at 6. Specifically, Defendants maintain that because, according to Plaintiffs, the Enacted Plan perpetuates a pattern of discrimination that has been in place for decades, Plaintiffs should have challenged the maps in previous redistricting cycles. Id. at 7. Third, Defendants assert that a stay is warranted under the Purcell² principle because Defendants do not have adequate time to draw a new map. Id. at 8-9. According to Defendants, the compressed schedule will limit the opportunity for debate as well as the Council’s ability “to receive and respond to public input . . . .” See id.

IV. Discussion

Having reviewed the Motion for Stay, the Court begins with the rather remarkable observation that Defendants have failed to present any argument that they are likely to succeed on the merits of their appeal. Defendants do not point to any error of fact or law in the Court’s analysis. Nor do they make any attempt to identify a substantial question for appeal. Despite recognizing that demonstrating a likelihood of success on the merits of the appeal is one of the most critical factors that a party seeking a stay pending appeal must satisfy, see Motion for Stay at 4, Defendants ignore this element altogether. The absence of any such argument is significant. Rather than address their likelihood of success on appeal, Defendants instead maintain that a stay is warranted because the Supreme Court’s decision in Merrill may have an impact on this case. According to Defendants, Merrill

“will tell us when, if ever, race can be considered, and when racial predominance runs afoul of the Constitution.” See Motion for Stay at 5. But, Defendants’ reliance on Merrill is entirely misplaced.³

The question presented in Merrill is: “Whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated section² of the Voting Rights Act, 52 U.S.C. § 10301.” See Merrill v. Milligan, 142 S. Ct. 1358 (Mar. 21, 2022) (emphasis added). Here,

unlike in Merrill, Plaintiffs’ challenge to the Enacted Plan does not arise under the Voting Rights Act (VRA), nor do Defendants rely on the requirements of the VRA to defend the Enacted Plan. See Preliminary Injunction Order at 4-5, 14 n.10, 91. Rather, this case solely concerns the Equal Protection Clause of the

Fourteenth Amendment.4 As such, it is difficult to conceive how the outcome in Merrill could substantively impact the merits of this case. In Merrill, the district court found that the plaintiffs were substantially likely to prevail in showing that the State of Alabama’s congressional district map violated § 2 of the VRA. See Singleton v. Merrill, 582 F. Supp. 3d 924, 1026

Essentially, Alabama is arguing against what it perceives to be a VRA-imposed emphasis on the consideration of race such that it results in racial gerrymandering. Id. Thus, a ruling in Alabama’s favor would not assist Defendants because it would further restrain the use of race in the redistricting process. However, a ruling in favor of the plaintiffs in Merrill is also unlikely to change the outcome of this case because Defendants did not rely on the VRA to justify the race-based line-drawing present in the Enacted Plan. Thus, even if Defendants are correct that Merrill will address “when, if ever, race can be considered, and when racial predominance runs afoul of the Constitution,” see Motion for Stay at 5, the Court can discern no foreseeable outcome in which Merrill overturns prior precedent to allow the type of race-based gerrymandering present in this case—that is allowing race to predominate in the absence of any purpose of complying with § 2 of the VRA.⁵ As such,

Defendants have not shown that the Merrill decision is in any way “likely to have a substantial or controlling effect on the claims and issues” in this case. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F. 3d 1191, 1198 (11th Cir. 2009).6

Defendants next argue that the equities weigh in favor of a stay because the harm is “decades in the making.” See Motion for Stay at 6. However, for the reasons set forth in the Court’s Preliminary Injunction Order, this argument is without merit. See Preliminary Injunction Order at 128-130. Notably,

Defendants have not shown that Plaintiffs in this action were aware of the constitutional problems with Jacksonville’s maps in previous decades, had standing to challenge the maps at that time, or had the resources to bring a lawsuit. Regardless, as explained in the Preliminary Injunction Order, the

Preliminary Injunction Order, the Court found that “the risk of voter confusion or harm to the election process from changes to the district maps at this time is

Significantly, despite defense counsel’s arguments to the contrary, the City Council itself appears confident in its ability to meet the Court’s deadline. Indeed, at the first meeting of the newly formed Special Committee on Redistricting, City Council President and Chair of the Committee Terrance

Freeman opened the meeting by declaring that “[t]his Committee will meet the Court’s established timeline and pass a new map on November 3rd, and then go to the [C]ouncil on November 4th for a full vote.” See Response, Ex. 3: October 20, 2022 Special Committee on Redistricting Meeting Transcript (Doc. 59-3;

Mtg. Tr.) at 2. He emphasized that he named a Committee “that could meet the short deadline” and stated that the Committee, which he chose to lead himself, “is prepared to accomplish the task . . . .” Id. at 2. Councilmember Rory Diamond, Co-Vice-Chair of the Committee, also expressed his view that despite the limited timeframe, he was confident the Committee would accomplish the task “because we are smart and because we work hard and I know this Committee.” Id. at 21-22. Notably, to accomplish the task they are committed to achieving, the Special Committee found it necessary to schedule only four meetings, over a total of only five and a half hours. See Response, Ex. 1. The first meeting took place on October 20, 2022, when the above statements were made, after which the Committee did not plan to meet again until November¹, 2022, over ten days later. Id. Given that the Committee charged with creating a new map is confident it can accomplish the task in just four meetings of only five and a half hours total, the Court is unable to place much weight on defense counsel’s assertion that the City Council does not have enough time to redraw the map.⁸

Id. To that end, the City Council established a “dedicated email address and a website so that the public can submit their comments and ideas throughout this process,” and “every Committee meeting will have a designated time for public comment.” Id. The Court notes that the City Council also has the benefit of the significant public input provided during the 2021 redistricting cycle. Thus, contrary to the arguments in the Motion for Stay, the City Council appears fully capable of engaging the public in the timeframe provided for drawing remedial maps.⁹

Defendants also assert that the public will be harmed because, given the residency requirements of the Jacksonville Charter, a new map will impact who is running in the new districts. See Motion for Stay at 9 (citing Jacksonville Charter § 5.04). According to Defendants, “candidates running in the new districts may not be familiar with the needs and interests of their constituents.” Id. While this may be true, the Court notes that the remedial plan will implement districts that are more logical and compact, with due consideration to keeping actual communities of shared interests together. Presumably, it will be easier for candidates to familiarize themselves with the needs and interests

24. These harms are egregious and allowing the election to proceed on the Enacted Plan would perpetuate these harms for years into the future, likely until the next City Council election in 2027. For these reasons, on the current record, the Court is convinced that the balance of equities weighs against a stay of the injunction. See id. at 122-24.

V. Conclusion

In light of the foregoing, the Court finds that the Motion for Stay is due to be denied. Significantly, Defendants have not made any showing, much less a “strong showing,” that they are likely to succeed on appeal. Indeed, Defendants do not attempt to show even the “mere possibility” that they will prevail on appeal. Democratic Exec. Comm. of Fla., 915 F. 3d at 1317. Defendants have not challenged the findings of fact or conclusions of law set forth in the Preliminary Injunction Order at all. Nor have Defendants addressed how they are likely to suffer irreparable harm in the absence of a stay. On these “most critical” factors, Defendants are silent. Id. The Court could deny the Motion for Stay for this reason alone. However, even setting aside these failures, the balance of the equities also weighs heavily against a stay. As explained in the Preliminary Injunction Order, the harm to Plaintiffs and the constituents of the Challenged Districts absent a stay are significant and irreparable. While Defendants contend that enacting a remedial plan in the limited timeframe available threatens to

“undermine voter confidence,” the harms Defendants describe pale in comparison to the substantial constitutional harm to Jacksonville voters that would result from proceeding with an election on an unconstitutionally gerrymandered map. Indeed, the Court is convinced that allowing the election to proceed with districts that the Court has found are substantially likely to be unconstitutional, a finding Defendants do not challenge in the instant Motion for Stay, poses a significant threat to voter confidence in the legitimacy of the election. Because Defendants have failed to satisfy any of the factors necessary to obtain a stay, the Court finds that the Motion for Stay is due to be denied. Accordingly, it is ORDERED: Defendants’ Time-Sensitive Motion for Stay and _ Incorporated Memorandum of Law in Support (Doc. 57) is DENIED. DONE AND ORDERED in Jacksonville, Florida this lst day of November, 2022.

United States District Judge

Ic11 Copies to: Counsel of Record