UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:22-cv-24066-KMM 

GRACE, INC.; ENGAGE MIAMI, INC.; 

SOUTH DADE BRANCH OF THE NAACP; 

MIAMI-DADE BRACH OF THE NAACP; 

CLARICE COOPER; YANELIS VALDES; 

JARED JOHNSON; and ALEXANDER 

CONTRERAS, 

 Plaintiffs, 

v. 

CITY OF MIAMI, 

 Defendant. 

 / 

DEFENDANT’S MOTION TO STAY INJUNCTION ORDER [DE60] 

 Pursuant to Rule 62(d) Florida Rules of Civil Procedure, Defendant, City of Miami (the 

“City”), moves for a stay of the injunction set forth in this Court’s Order (the “Order”)(DE 60) 

adopting the Report and Recommendation (the “R&R”)(DE 52). The injunction enjoins the City 

from conducting the upcoming election pursuant to the districts enacted in City of Miami 

Resolution 22-131. It does not however implement a remedial map, but rather adopts the R&R 

that found all of the current districts unconstitutional. The City requests that this Court stay the 

injunction pending appeal. 

I. Standard for a Stay 

“While 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.” Fed. R. Civ. P. 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 

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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)); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019)). 

“‘When the balance of equities . . . weighs heavily in favor of granting the stay’—[the Eleventh 

Circuit has] relax[ed] the likely-to-succeed-on-the-merits requirement.” Id. (quoting Garcia-Mir 

v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)). But “the ‘traditional test for a stay’ likewise 

‘does not apply’ in the particular circumstance that this case presents—namely, ‘when a lower 

court has issued an injunction of a state's election law in the period close to an election.’” 

League of Women Voters of Fla., Inc. v. Florida Secretary of State, 32 F.4th 1363, 1370 (11th 

Cir. 2022), quoting Merrill v. Milligan, 142 S. Ct. 879, 880, (2022) (Kavanaugh, J. concurrence). 

[T]he reviewing court must be cognizant that “orders affecting 

elections ... can themselves result in voter confusion.” Id. at 4-5. 

And that risk only increases as an election draws closer. Id. at 5, 

127 S.Ct. 5. For that reason, the Purcell principle teaches that 

“federal district courts ordinarily should not enjoin state election 

laws in the period close to an election.”

Id. at 1371; see also Alpha Phi Alpha Fraternity Inc. v. Raffensperger, 587 F. Supp. 3d 1222, 

1238–39 (N.D. Ga. 2022). In situations like this, where the Court has entered a preliminary 

injunction, “Purcell effectively serves to lower the state's bar to obtain the stay it seeks. The state 

need not show, for instance—as a plaintiff would to obtain a “late-breaking injunction” in the 

first place—that its position is “entirely clearcut.” Id. Rather, it need only show that plaintiffs’ 

position is not.” Id. at 1372. 

II. Likelihood of Success on the Merits 

As explained below, the lynch pin of this case is District 5, and there is a likelihood of 

success on the merits with regard to District 5. Racial considerations can predominate if the City 

had a compelling interest such as complying with the Voting Rights Act (the “VRA”). There is 

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no issue that District 5 must be drawn with racial intent to comply with the CRA. District 5 

could then be drawn along racial lines as long as the drawing passed strict scrutiny. To meet 

strict scrutiny, the drawing of the district had to be narrowly tailored. In this context, it is not an 

exact science. As the R&R found, the percentage of Black voting age population in the district 

need not be determined with precision and the City has no duty to memorialize the analysis or 

compile a comprehensive record of that analysis. DE 52 p.82. 

Narrow tailoring exists to protect the group being racially sorted. 

The purpose of the narrow tailoring requirement is to ensure that 

"the means chosen `fit' th[e] compelling goal so closely that there is 

little or no possibility that the motive for the classification was 

illegitimate racial prejudice or stereotype."). 

Grutter v. Bollinger, 539 US 306, 333 (2003)(quoting Richmond v. J. A. Croson Co., 488 U. S. 

469, 493 (1989)). For example, to “narrowly tailor” in this context the City cannot, in the guise 

of complying with the VRA, pack Black residents into the district to the diminishment of their 

influence elsewhere.1

 Because the city set the district at a bare 50% voting age population, it 

unsurprisingly believed that the district could not be more narrowly tailored, especially in light 

of undeniable demographic trends concerning the year to year decrease of Black residents. DE 

36 pp.4-5 (citing DE 26 p.4; DE 24-76 p.12; DE 24-78 p.6; DE 24-9 pp.5-6). 

The Plaintiffs argued a novel theory, that the City had to set it at less than 50% voting 

age population.2 This is truly novel because no case has ever held that. With regard to the cases 

 

1 See, e.g., Jacksonville Branch of NAACP v. City of Jacksonville, Case No. 3:22-cv-493-MMHLLL, 2022 WL 7089087, at *2 (M.D. Fla. Oct. 12, 2022)( “Plaintiffs argue that preliminary 

injunctive relief is warranted in advance of the upcoming election because the Enacted Plan 

packs Black voters into just four of fourteen districts, the result of which is to dilute and depress 

the influence of Black voters in City Council elections across the rest of the City.”) 

2

 There is no issue that it should have been higher, because that would be less narrowly tailored. 

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cited by this Court, the Court in Jacksonville Branch of NAACP v. City of Jacksonville 

(“Jacksonville III”), No. 3:22-cv-493-MMH-LLL, 2022 WL 17751416 (M.D. Fla. Dec. 19, 

2022), was careful to state that it was not a VRA case, and it did not find that less than 50% 

would satisfy the VRA. Id at * n.7. The Court in De Grandy v. Wetherell, 794 F. Supp. 1076, 

1088, 1089 n.5 (N.D. Fla. 1992), created two majority-minority districts, and created a third 

“influence district” that was less than 50%. The Court did not find that the majority-minority 

districts needed to be less than 50%. 

Additionally, because Plaintiffs did not dispute that the influence of black voters was not 

diminished elsewhere, there was no issue that the number was being used for an illegitimate 

motive. Without a dilution of their vote elsewhere, there is no legitimate claim that the number 

was set too high for an improper purpose, and therefore it could not be more narrowly tailored. 

The Court, instead of looking at whether the district was actually narrowly tailored, instead 

framed the issue in evidentiary terms. The Court found, for purposes of the injunction, 

insufficient evidence to support the bare 50% majority. While the R&R conceded that Mr. De 

Grandy testified that he performed the analysis and that the City has no duty to memorialize the 

analysis or compile a comprehensive record of that analysis (DE 52 p.82), it still found that the 

City did not meet its burden at the injunction phase and therefore entered an injunction. 

At trial, it is likely that the City can establish that a bare 50% was in fact narrowly 

tailored enough to meet the Bethune-Hill standard, 3 especially in light of the demographic trend 

noted above. Even so, the question is not whether 50% was required, but “whether the State had 

‘good reasons’ to believe” a 50% BVAP was necessary to avoid liability under the § 2 Gingles

 

3 Bethune-Hill v. Va. State Bd. of Elections (Bethune-Hill I), 580 U.S. 178, 195-96 (2017))( “The 

law cannot insist that a state legislature, when redistricting, determine precisely what percent 

minority population § 5 demands.”) (emphasis in original). 

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analysis. Bethune-Hill, 580 U.S. at 195 (quoting Alabama Legislative Black Caucus v. Alabama, 

575 U.S. 254, 278 (2015). Where the Gingles test as a threshold question asks whether “the 

minority group . . . is sufficiently large and geographically compact to constitute a majority in a 

single-member district,” Thornburg v. Gingles, 478 U.S. 30, 50 (1986), the City’s belief that bare 

compliance with that criteria at 50.3% BVAP is narrowly tailored. Cf. Bethune-Hill, 580 U.S. 

193-94 (“the requisite strong basis in evidence exists when the legislature has “good reasons to 

believe” it must use race in order to satisfy the Voting Rights Act, “even if a court does not find 

that the actions were necessary for statutory compliance.”). While the R&R stated that there was 

no modeling or analysis to support the undeniable numerical decrease in Black residents (DE 52 

p.84-85), that is an easily met trial burden, particularly given Gingles bright-line threshold and 

the City was only required to have good reason to believe a 50% BVAP was required to comply 

with § 2. With regard to District 5, the City is likely to succeed. Moreover, in light of the 

foregoing and the dearth of case law suggesting less than 50% VAP is demanded, the Plaintiff’s 

position on the merits is hardly “entirely clearcut.” League of Women Voters of Fla., Inc., 32 

F.4th at 1372. 

 District 5 is the centerpiece to the surrounding districts. The R&R found fault with a 

number of districting choices that border District 5, but District 5’s borders were drawn to 

comply with § 2 of the VRA. Addressing District 2, the R&R exclusively discusses areas 10/11 

and the condo canyon between areas 10/11 and 12, all of which are between Districts 2 and 5. 

DE 52 p.73. District 2 had to shed population after the 2020 Census (DE 52 p.44), and shed it 

into District 5. Likewise, when discussing District 1, the R&R exclusively discussed Areas 6, 7 

and 8, between District 1 and District 5. DE 52 p.74. 

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This Court found that “Defendant cites to no authority suggesting the Court is required to 

consider the portions of the other districts abutting District 5 differently from the other areas 

within those districts, nor is the Court aware of any such requirement.” DE 60 p.15. The Court 

necessarily must consider the abutting portions because the line between Districts 5 and 2 or 

between Districts 5 and 1 is the same line. The border cannot be constitutional on one side and 

unconstitutional on the other. If the drawing of District 5 meets strict scrutiny then its border 

meets strict scrutiny. At the very least, the districting of the northern half of the City of Miami is 

beyond question, and the City is likely to succeed at trial. Further, Plaintiff’s case with regard to

Districts in the north is certainly not “clearcut.”

As explained in the City’s Objection and Reply memorandum, there is no possible way to 

draw the rest of the Districts without essentially the same demographic effect. The City is 70% 

Hispanic and they live in the West while the whiter communities are concentrated along the 

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coast. Neither the Plaintiffs nor the Court has suggested it could be drawn any differently. Once 

more, the Court relied on statements by Commissioners as evidence that that the districts were 

drawn for predominantly racial reasons as sufficient evidence to support an injunction. The 

Court considered it premature to consider whether they could be drawn to any different effect, 

but the Plaintiffs never claimed that they could be. There is no evidence that they could be. The 

entire thrust of Plaintiffs’ amended complaint is to preserve the integrity of the coastal, 

demographically whiter, Coconut Grove area. The residents were not actually racially sorted. 

At trial the City need merely show that in the southern part of the City, race was not the 

predominant factor, the reality of the map was. The map could not be drawn any other way to 

any different effect. The Plaintiffs have never claimed otherwise. Rather they steadfastly held to 

their position that they are not required to show an alternative map. The “alterative maps” 

spoken of by Dr. Abott in her report are demographically essentially the same as the existing 

map. This Court cited to the introduction of Dr. Abott’s report where she summarized that “other 

areas could have been moved without further segregating the districts by race but were rejected 

by the Commission.” DE 60 p.13 (citing DE 24–31, at 2). But the actual body of the report 

states otherwise. “All maps tended to shore up existing racial compositions within individual 

Commission districts....” DE 24-31 p.16. The numbers are detailed in that report. DE 24-31 

pp.23-24. They all break up traditional neighborhoods, the Black Voting Age Population 

(“BVAP”) in District 5 would be the same; the Black Citizen Voting Age Population 

(“BCVAP”) would be higher than the Enacted Plan; the White Voting Age population 

(“WVAP”) of District 2 is either the same or a mere couple tenths of a percent lower in these 

plans, but the WCVAP is actually higher in the alternative plans; the Hispanic voting age 

populations (HVAP) in Districts 1, 2 and 4 are essentially the same. The alternative plans lower 

the HVAP in District 3 slightly and raise it in District 4 slightly, but all three remain 

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supermajorities. At trial, the Plaintiffs will not be able to prevail based on that stray sentence 

from the introduction when the body of the report belies it. 

The crux of the Court’s ruling for issuing the injunction rested on evidentiary issues at 

the hearing, including creating a heightened evidentiary burden for narrow tailoring, but that will 

not carry over to trial. At trial, the City has a likelihood of success. Further, Plaintiffs’ case is 

not “clearcut.” 

II. Irreparable Injury 

 Irreparable injuries are those that cannot be compensated by money damages. This 

Court’s injunction does not preserve the status quo in any sense, but directs an express deviation 

from the status quo by directing the City to redistrict for the November 2023 election. That bell 

cannot be unrung, the election will have occurred. The types of injuries were recently cataloged. 

Such districting changes are “prescriptions for chaos.” Merrill v. Milligan, 142 S. Ct. 879, 880, 

(2022) (Kavanaugh, J. concurrence). They will “affect candidates, campaign organizations, 

independent groups, political parties, and voters, among others.” Id. As in Milligan, currently 

candidates and elected officials no longer even know what the district they live, where they may 

run, and where they must campaign. 

The Order doesn’t just affect Commissioners who are up for reelection in November. 

Redistricting may draw incumbents out of the districts they represent and candidates out of 

districts in which they are running. Miami has residency requirements. A candidate, to qualify 

must “[h]ave resided within the district they wish to represent for at least one year prior to 

qualifying.” City of Miami, Code of Ordinances § 16-6(b)(3). “[C]andidates for the city 

commission shall have resided within the district at least one (1) year before qualifying and be 

electors in that district, and shall maintain residence in that district for the duration of their term 

of office.” Miami Charter § 4(c). Commissioners who are up for reelection may be drawn out 

of their districts with no opportunity to qualify in a new district. 

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The preliminary injunction is an “extraordinary remedy.” Winter v. NRDC, 555 U.S. 7, 

24 (2008). “When the massive disruption to the political process of the [State] is weighed 

against the harm to plaintiffs of suffering through one more election based on an allegedly 

invalid districting scheme, equity requires that [this Court] deny relief.” Mac Govern v. 

Connolly, 637 F. Supp. 111, 116 (D. Mass. 1986)). 

The Order finds that the core creation of districts in 1997 was fundamentally, 

constitutionally flawed as racial sorting. Regardless, incumbents seeking reelection have a 

constitutionally permissible interest in preserving as much of the core of their districts that 

elected them, regardless of the racial history leading to the creation of the districts. The City 

pointed out that failure to bring prior challenges this militates against an injunction. In response 

the Court observed that some of the organizations did not exist back then and some Plaintiffs 

moved into their district more recently. If they are complaining about decisions made 25 years 

ago when they lived in the district or when the organization existed, then those Plaintiffs should 

have sued 25 years ago. If, however, a Plaintiff is complaining about districting decisions made 

long before they moved into a district or created, then they weren’t “sorted” by race by decisions 

that had been made long before, but are simply sorted based upon the current Commission’s 

desire to maintain the core of an existing district as a permissible form of incumbent protection. 

III. Purcell Applies 

“[F]ederal district courts ordinarily should not enjoin state election laws in the period 

close to an election.” Purcell v. Gonzalez, 549 U.S. 1 (2006). The Court found the Purcell 

principle inapplicable because the injunction order issued on May 23, 2023 was more than four 

months before the election set on November 7, 2023. It is five and a half months away. But the 

Court’s injunction enjoins going forward on the existing map, and will require a new remedial 

map to be made for the upcoming election. Currently, of course, there is no such map. Drawing 

such a map will not be “easy” as stated by Plaintiffs because, as described in the Objection, 

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which is adopted here and incorporated [DE 55] there is no way to draw it without running afoul 

of some part of the R&R that this Court adopted. The Court found such practical considerations 

premature because they went to likelihood of success on the merits. DE 60 p.14. But it also 

goes to whether a new map can be implemented more than four months before the election. The 

Court can enter an injunction a year before an election, but without a map in place, all of the 

harms set forth in Purcell are still present. 

Late judicial tinkering with election laws can lead to disruption and 

to unanticipated and unfair consequences for candidates, political 

parties, and voters, among others. It is one thing for a State on its 

own to toy with its election laws close to a State’s elections. But it 

is quite another thing for a federal court to swoop in and re-do a 

State’s election laws in the period close to an election. 

Merrill v. Milligan, 142 S. Ct. 879, 880, (2022) (Kavanaugh, J. concurrence)(to overcome 

Purcell, Plaintiff must establish “changes in question are at least feasible before the election 

without significant cost, confusion, or hardship”); Alpha Phi Alpha Fraternity Inc., 587 F. Supp. 

at 1238–39. Until a map is in place, this Court will still be “tinkering” with the election law. 

This Court must weigh these “practical considerations.” “The Court has recognized that 

‘practical considerations sometimes require courts to allow elections to proceed despite pending 

legal challenges.’” Id. at 880, quoting Riley v. Kennedy, 553 U. S. 406, 426 (2008). 

Additionally, four months is not a safe harbor for an injunction. Sweeping changes need more 

time than minor changes. Id. at n.1. This Court has not even considered how sweeping a 

change, but given that the Order throws out the core of districts for the entire redistricting plan 

that have been in place since 1997, it is safe to assume that the change will be sweeping and 

disruptive. 

Any new legislatively-imposed map must be adopted by the City Commission. These are 

five separate elected officials who must vote on the map at a public meeting. The City retained 

experts to perform redistricting work in July 2021 (DE 50-11), had the first meeting in 

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November 2021 and follow up meetings in December, February and March (DE 24-11 to 24-18), 

agreed to and adopted a resolution on March 24, 2022, which went through the City’s charter 

mandated process and was rendered on April 19, 2022 (DE 24-2). The City and the nine 

plaintiffs are not the only affected constituency. As the transcripts for the last meetings show, 

redistricting generated a huge amount of public interest even though relatively minor changes 

were implemented. Now that the entire map is being changed, that will not generate less public 

interest and input. In spite of that, even were this process to be compressed into 6 weeks, that 

would not allow for the inevitable challenge from Plaintiffs or some other aggrieved party who 

prefers a different map, the necessary subsequent briefing and a ruling by this Court. 

This all presumes, of course, that the City is able to agree upon a remedial map. Another 

scenario is that a majority of the Commission is unable to agree on a proposed redistricting plan, 

leaving the Court in a position to adopt a remedial plan on an even tighter timeframe. And while 

we know this Court will do its utmost to impose a valid map, even this Court’s ruling is not 

immune from such challenges. See e.g, Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga. 1995), 

aff'd sub nom. Abrams v. Johnson, 521 U.S. 74 (1997); Perez v. Perry, 835 F. Supp. 2d 209 

(W.D. Tex. 2011), vacated and remanded, 565 U.S. 388 (2012). Purcell is present. The 

injunction should be stayed. 

IV. Public Interest 

There is no doubt that the injunction jeopardizes the ability of the voters of District 5 to 

elect a candidate of their choice. This Court did not find that less than 50% would be sufficient, 

only that Defendant did not meet its burden of establishing that it had sufficient support for 

selecting 50%. On that basis, however a remedial map, will have to be drawn diluting their vote 

in District 5, automatically creating risk of a section 2 VRA challenge. As set forth above, the 

injunction will also throw the upcoming election into chaos, especially given the residency 

requirements. Moreover, it makes uncertain the status of incumbent commissioners who are up 

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for election. They are incumbent elected officials seeking to retain their elected offices. All of 

these findings were grounded on the Court not seeing what it deemed to be sufficient evidence 

pertaining to the entire redistricting plan. As set forth above, these burdens are easily met at 

trial, and a stay will prevent the harm caused by the injunction in the next election. Staying the 

injunction serves the public interest. 

Certificate of Conferral 

I certify that prior to filing this motion, I attempted to resolve the matter in good faith by 

discussing the relief requested via email on Tuesday, May 30, 2023 with opposing counsel and 

they oppose the relief sought. 

WHEREFORE, Defendant respectfully asks this Court to stay the Order pending appeal. 

 Dated this 31st day of May, 2023. 

 Respectfully submitted, 

 By: s/ Christopher N. Johnson 

GRAYROBINSON, P.A. 

Jason L. Unger, Esquire 

Florida Bar No. 991562 

George T. Levesque 

Florida Bar No. 55551 

Andy Bardos 

Florida Bar No. 822671 

301 S. Bronough Street 

Suite 600 

Tallahassee, Florida 32301 

Telephone: (850) 577-9090 

Facsimile: (850) 577-3311 

GRAYROBINSON, P.A.

Christopher N. Johnson 

 Florida Bar No. 69329 

Email: Christopher.Johnson@gray-robinson.com 

Marlene Quintana, B.C.S. 

Florida Bar No. 88358 

Email: Marlene.Quintana@gray-robinson.com 

333 S.E. 2nd Avenue, Suite 3200 

Miami, Florida 33131 

Telephone: (305) 416-6880 

Facsimile: (305) 416-6887 

Case 1:22-cv-24066-KMM Document 64 Entered on FLSD Docket 05/31/2023 Page 12 of 13
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CITY OF MIAMI 

VICTORIA MÉNDEZ, City Attorney 

Florida Bar No. 194931 

JOHN A. GRECO, Chief Deputy City Attorney 

Florida Bar No. 991236 

KEVIN R. JONES, Deputy City Attorney 

Florida Bar No. 119067 

KERRI L. MCNULTY, 

Litigation & Appeals Division Chief 

Florida Bar No. 16171 

Office of the City Attorney 

444 S.W. 2nd Avenue 

Miami, FL 33130 

Telephone: (305) 416-1800 

Facsimile: (305) 416-1801 

 Attorneys for Defendant 

CERTIFICATE OF SERVICE 

 I hereby certify that on May 31, 2023, I electronically filed the foregoing with the Clerk of 

the Court by using the CM/ECF. I also certify that the foregoing document is being served this day 

on all counsel of record or pro se parties either via transmission of Notice of Electronic Filing 

generated by CM/ECF or in some other authorized manner for those counsel or parties who are not 

authorized to receive electronically Notices of Electronic Filing. 

 By: s/ Christopher N. Johnson 

Christopher N. Johnson, Esq. 

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