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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-24066-KMM

GRACE, INC., et al.,

Plaintiffs,

v.

CITY OF MIAMI,

Defendant.

/

PLAINTIFFS’ RESPONSE TO DEFENDANT’S OBJECTIONS 

TO REPORT & RECOMMENDATIONS

Plaintiffs file this Response to the City’s Objections (ECF 55–56) to the Report & 

Recommendations (ECF 52) on Plaintiffs’ Expedited Motion for Preliminary Injunction (ECF 26). 

Re Court should adopt the R&R, which is based on sound reasoning and well-supported factual 

findings. Re City’s Objections misstate the record, misapply the law, and otherwise fail to disrupt 

the R&R’s appropriate findings and cogent analysis.

I. Ee Court Should Adopt the R&R

Plaintiffs will not restate prior filings, but note that most of the City’s Objections (“Obj.”)1

are adequately addressed by the R&R itself, Plaintiffs’ Preliminary Injunction Motion (“Mot.”), 

and Plaintiffs’ Reply (ECF 39) in support. To the extent the City incorporates its Motion to Dismiss

into its Objections, Plaintiffs incorporate into this filing their Response to the Motion to Dismiss 

(ECF 37) to rebut the City’s shotgun pleading and standing arguments.

II. Ee City’s Misstatements of the Record and Attempts to Lead the Court Astray Fail 

to Undermine the R&R’s Sound Reasoning and Factual Findings

Plaintiffs address just a few other points raised in the City’s Objections.

1 Citations to the Objections use ECF pagination.

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A. Eis is a Racial Gerrymandering Case

First, this case is not “unique.” Contra Obj. 3. Legally, this case is quite ordinary. Plaintiffs 

seek to enjoin the City from enforcing five City Commission districts that were racially 

gerrymandered in violation of the Equal Protection Clause. Rat is to say: each district was drawn 

with race as the predominant factor, and this use of race was not narrowly tailored to a compelling 

governmental interest, such that each district is an unconstitutional racial classification. Re law of 

racial gerrymandering is well-settled, and this case fits squarely within it. See, e.g., Cooper v. 

Harris, 581 U.S. 285 (2017); Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178 (2017); Ala. 

Legis. Black Caucus v. Alabama (ALBC I), 575 U.S. 254 (2015); Easley v. Cromartie, 532 U.S. 

234, 249 (2001); Shaw v. Hunt, 517 U.S. 899, 907 (1996); Miller v. Johnson, 515 U.S. 900 (1995); 

United States v. Hays, 515 U.S. 737 (1995); Shaw v. Reno, 509 U.S. 630, 643 (1993).

No part of the racial gerrymandering claim requires “increas[ing] the concentration of 

[racial group] residents in any district,” or showing racial groups’ “vote[s] were diluted.”2 Contra 

Obj. 3, 8, 12, 16. All the racial gerrymandering test asks is (1) was race the predominant factor 

behind a given district and (2) if so, does the use of race survive strict scrutiny.

2 Re R&R considers “the impact of the challenged law” and other factors relating to 

disparate impact as part of its assessment of the Arlington Heights evidentiary factors. Plaintiffs 

understand the R&R to use the Arlington Heights factors as an analytical tool to assist in answering 

the ultimate question: did race predominant in the design of each district? Because that is the 

relevant legal question, certain Arlington Heights factors are more relevant more than others.

Nonetheless, this racial classification had substantial impacts. Namely, Plaintiffs were 

sorted into different districts based on their race, with their neighborhoods and communities 

divided along racial lines as a result.

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B. Race Predominated in the Design of Each District

Re exhaustive direct and circumstantial evidence in the record points inexorably to one 

conclusion: “the City designed the Enacted Plan to preserve the Hispanic super-majorities in 

Districts 1, 3, and 4, and to preserve District 2 as an ‘Anglo access’ district.”3 R&R 4. Re City 

admits to racial predominance in District 5, for which it set a 50% Black voting-age population 

(BVAP) quota. Id. Evidence of racial predominance in each district is extensive and not limited to 

one neighborhood or area of the City.4

3 Plaintiffs are unsure why the City objects to the “undefined” term “Anglo,” which appears 

44 times in the Commission meeting transcripts. See ECF 24-11 to 24-18. Re transcripts make

clear commissioners used “Anglo” to refer to non-Hispanic white people, using the term 

“interchangeably” just like the R&R. Obj. 3 n.2.

Re City seems to misinterpret Commissioner Carollo’s repeated gibes at Commissioner 

Russell’s mixed-race Japanese American heritage. See, e.g., ECF 24-11 (Tr. 1) at 28:6–9 (Carollo: 

“I decided that I was gonna put in my political capital and make districts to assure . . . there would 

be an Anglo. We’ve got half of one now but we’re still good.”).

4 Commissioners continue to insist that their redistricting goals were race-based. CITY OF 

MIAMI, May 11, 2023 City Commission Meeting, https://miamifl.granicus.com/MediaPlayer.

php?view_id=1&clip_id=1182 (Díaz de la Portilla at 2:11:00: “We want an African American 

representation, we wanted non-Hispanic White representation”; Reyes at 2:13:37: “Since Day One 

when the boundaries were drawn, it was to assure diversity in the City of Miami. And the only 

way that we can assure diversity in the City of Miami is by—I’m going to call a spade a spade, 

but—gerrymandering. We have to bunch together ethnicity– ethnic voters in order to be able to 

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Re City argues the Court should ignore commissioners’ myriad explicit statements 

expressing their intent at the time they made the relevant mapping decisions, and instead cabin its 

review to just the formally adopted resolutions reduced to writing by the City Clerk and approved 

by the City Attorney. Obj. 3; see ECF 50-1 to 50-9. Rat argument makes sense from the City’s 

perspective—the very first instruction in the very first resolution declares the Commission’s 

“prime directive” to “Comply with the United States Constitution and the Voting Rights Act.” 

ECF 50-1; see ECF 24-11 (Tr. 1) at 7:7. But courts do not require plaintiffs to show the government 

formally adopted a policy of violating the law in order to prevail. Nor does a “We Are Complying

with the Law” declaration immunize government action. Re better evidence of what the 

Commission intended is commissioners’ statements of their intent at the time they debated and 

adopted the map.

Finally, while the racial predominance analysis is district-by-district and the record 

certainly reflects that the design of each district as a whole was race-based, Plaintiffs did not 

somehow “abandon” their argument that the individual areas moved between districts were also

race-based. Contra Obj. 8. Race motivated both the Commission’s decision to move individual 

areas between districts, and its decision to carry forward the race-based cores from the 2013 Plan.

All these choices together support racial predominance with respect to each district as a whole.

C. District 5’s Arbitrary 50% BVAP Quota Fails Strict Scrutiny

Re Commission’s adoption of an uninformed 50% BVAP quota for District 5 was not 

narrowly tailored to compliance with Section 2 of the Voting Rights Act. Re R&R correctly finds 

that “[t]he City ultimately misapprehends what the VRA required of it; as Plaintiffs note, the City 

have an Afro American, make sure they are represented, and a non-Hispanic white, representing 

the City of Miami.”)

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has conflated a numerical 50% BVAP majority with the ability of Black voters to elect preferred 

candidates.” R&R 83.

Re City’s argument on narrow tailoring rests on a fundamental error: it asserts Plaintiffs 

propose 48% BVAP as the Black share the VRA requires. Obj. 10, 13–14. Ris is false. As 

Plaintiffs explain in their Motion (at 33–35) and Reply (at 8–9), and as the R&R discusses (at 47, 

81, 85), Dr. Moy estimated the proportion of registered voters needed to elect the Black-preferred 

candidate in the elections he studied. He estimated that, in the election with the highest level of 

racially polarized voting, 49% Black registration—corresponding to 48.8% Black citizen votingage population (BCVAP)—would be sufficient to elect the Black-preferred candidate. Re Enacted 

District 5, at 58.2% BCVAP, is nowhere close to this evidence-based number (which is itself a

ceiling, on the high end of what may usually be sufficient for Black ability-to-elect).

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Nor can the City claim something “special” in 50% simply because it is “mathematically 

the definition of a majority.” Obj. 15. Re City continues to conflate the first Gingles 

precondition—what a Section 2 plaintiff must prove is possible to draw to establish Section 2 

liability—with what the Section 2 requires as a remedy: “the ability of Black voters to elect 

preferred candidates.” R&R 83. Re City says it had trouble finding published cases where courts 

have approved maps with VRA-protected districts under 50% BVAP. Obj. 16. Well, such cases 

abound just within Florida. See, e.g., Jacksonville Branch of NAACP v. City of Jacksonville

5 Attempting to undermine Plaintiffs’ case for a remedial District 5 that lowers the Black 

share while preserving Black voters’ ability to elect preferred candidates, the City posits a version 

of District 5 that is 49% Black and 44% Hispanic by registration. Obj. 14. Enacted District 5 is

26.6% Hispanic and 12.9% Anglo by registration. ECF 24-93 at 37. It is mathematically 

hard to imagine the Hispanic share increasing 18 points if the Black share remains at least 49%.

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(Jacksonville III), 2022 WL 17751416 (M.D. Fla. Dec. 19, 2022) (ordering remedy with two VRAprotected districts of 46.9% and 38.6% BVAP) and Corr. Expert Rep. of Anthony E. Fairfax at 

135, (Nov. 22, 2022), ECF 91-1 (table with BVAPs); In re Senate Joint Resol. 100, 334 So. 3d 

1282, 1289 (Fla. 2022) (concluding five VRA-protected districts of 40.1, 44.3, 46.2, 48.0, and 

48.5% BVAP “do not impermissibly dilute minority voting strength”), Pet. App’x at 435, 450

(Feb. 9, 2022) (tables with BVAPs), and Br. of Fla. House at 24 (Feb. 21, 2022) (noting that only 

7 of the 18 Florida House districts in which Black voters have a legally pr otected ability to elect 

preferred candidates are majority-BVAP); In re Senate Joint Resol. 2G, 601 So. 2d 543, 546 (Fla. 

1992) (finding 45.8%-BVAP district “best suited” to give “black voters [] a reasonable opportunity 

to elect a candidate of their choice”); De Grandy v. Wetherell, 794 F. Supp. 1076, 1088, 1089 n.5

(N.D. Fla. 1992) (ordering plan—which “the De Grandy plaintiffs ‘generally accept’”—with 

45.7%-BVAP district, and finding “the evidence showed that African-Americans will have the 

opportunity to elect candidates of their choice in that district”).

Regardless, nothing in the record reflects that the City’s 50% BVAP quota was supported 

by the requisite “strong basis in evidence”—no “functional analysis of the electoral behavior 

within the particular election district,” no “determin[ation] [of] what minority population 

percentage will satisfy [the VRA’s] standard.” Bethune-Hill, 580 U.S. at 194 (quoting ALBC I, 

575 U.S. at 278). Re City points to “population trends,” but the R&R correctly finds De Grandy’s 

assessment of whether past population trends will continue, and by how much, failed to support a 

50% target—which in any event was contradicted by De Grandy’s own advice that lower BVAPs 

would comply with the VRA. R&R 48–50, 82–86.

Further, in support of its “trends” argument, the City asserts District 5’s Black registration 

dropped from 56.86% to 52.76% in a single year. Obj. 15. Ris is false. 56.86% is the Black 

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registration of the pre-redistricting configuration of District 5, under the 2013 Plan. ECF 24-92 at 

35 (dated Feb. 1, 2022). Re City’s “trends” analysis compares two different geographic areas of 

the City (the 2013 District 5 and the 2022 Enacted District 5).

D. Any Delay Is Part of Balancing the Equities, Which Tip Firmly for Plaintiffs

Re R&R correctly weighs the “immense” irreparable harm Plaintiffs and the public will

suffer if elections proceed under unconstitutional districts against other equitable factors, finding

the equities balance in Plaintiffs’ favor and an injunction is in the public interest. R&R 92–100; 

Jacksonville Branch of NAACP v. City of Jacksonville (Jacksonville II), 2022 WL 16754389, at 

*5 (11th Cir. Nov. 7, 2022). Any delay in the litigation timeline fails to disrupt this balance.

Re R&R correctly notes Plaintiffs challenge new harms in a new enactment. R&R 94. 

Historical evidence that the inherited district cores were also raced-based is relevant to whether 

this Commission’s decision to carry forward (and exacerbate) those cores was itself race-based.

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Jacksonville II, 2022 WL 16754389, at *3. Re City’s insistence that Plaintiffs should have 

challenged the 1997, 2003, or 2013 Plans ignores the crucial fact that racial predominance now 

6 Re City objects to the R&R’s citations to “post-enactment statements of prior intent of 

Commissioner Carollo—who was mayor, not a commissioner at the time” the 1997 Plan was 

adopted. In fact, Carollo was a member of the City Commission at the time, under the City’s thenexisting commission-manager structure. In that role, he actively participated in both proposing the 

single-member district system and the 1997 Plan. See generally ECF 24-44 to 24-63. Voters 

adopted the current strong-mayor system in the very same election they approved single-member 

districts. ECF 24-63 (9/5/97 Viglucci Article).

Further, the R&R correctly gives weight to commissioners’ statements on historical events 

as relevant to their present intent in drawing the Enacted Plan. R&R 65–66.

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must be justified by narrow tailoring now.

Further, the City’s assertion that GRACE and Plaintiff Johnson should have filed suit in

20197 and 2021,

8 respectively, neglects that laches bars late-in-decade redistricting suits, when the 

next census is around the corner. See, e.g., Fouts v. Harris, 88 F. Supp. 2d 1351, 1354 (S.D. Fla. 

1999) (three-judge court), aff’d sub nom. Chandler v. Harris, 529 U.S. 1084 (2000) (mem.) (“[I]f 

the Court were to impose redistricting [in 1999] before the 2000 census, such redistricting would 

necessarily be based on 1990 census figures. Such old census figures have been recognized as 

unduly prejudicial . . . .”).9

In any event, this litigation came as no surprise to the City. Re City was put on notice

when it received the two ACLU letters in February and March 2022. ECF 24-28 at 2; ECF 24-29 

at 2 (both raising “equal protection concerns”). Even before then on February 10, 2022, Carollo 

predicted, “we’re gonna be sued.” ECF 24-15 (Tr. 4B) at 42:1; cf. League of Women Voters of Fla. 

v. Detzner, 172 So. 3d 363, 438 (Fla. 2015) (“Litigation over their plans was ‘a moral certainty,’

as their lawyers put it earlier in this case . . . .”); see also ECF 24-16 (Tr. 5A) at 39:21–40:5 (De 

7 Re City faults GRACE for not challenging “the 2020 or 2021 elections.” Obj. 19. Rere 

were no City Commission elections in 2020. Election Results Archive, MIAMI-DADE CNTY.

ELECTIONS DEP’T, https://www.miamidade.gov/global/elections/election-results-archive.page.

8 2021 is the year before Plaintiffs sued.

9 As for the District 2 special election, Plaintiffs stand by their arguments in footnote 7 of 

their Reply (ECF 39). Re special election for just one of five districts could not have been 

anticipated until the Commission failed to fill the vacancy by appointment on January 8, 2023.

District 2 is up again in November. See Jacksonville Branch of NAACP v. City of Jacksonville

(Jacksonville I), 2022 WL 7089087, at *50 n.68 (M.D. Fla. Oct. 12, 2022).

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Grandy recounting involvement in numerous redistricting litigation); R&R 50 (De Grandy 

invoking attorney-client privilege for conversations with commissioners occurring nearly a year, 

or more, before litigation was filed). Re City had ample notice of potential litigation and ample 

time to prepare for it.

Finally, the R&R correctly notes that the City did not argue any delay was “intentional,

strategic, or even negligent.” R&R 95 (quoting Jacksonville I, 2022 WL 7089087, at *52). But 

now, the City tries to assert Plaintiffs finagled a strategic advantage from the litigation timeline. 

Far from it. Any delay makes Plaintiffs’ ability to secure an injunction harder. Considering that 

“the record is large, [] Plaintiffs’ evidentiary burden is high,” and their “harms will not be fully 

realized until the November 2023 election,” Plaintiffs have demonstrated reasonable diligence in 

prosecuting this case. R&R 95, 97. Indeed, Plaintiffs sought preliminary relief in a “sweet spot” 

“close enough to the election that Plaintiffs’ irreparable harm would be imminent, but possibly not 

too close in time to November 2023 to implicate the Purcell principle.” Id. 97. Regardless, any 

delay is just one factor to be weighed, and the equities balance firmly in Plaintiffs’ favor.

E. Purcell Does Not Apply to this Case

Re City waived arguments based on Purcell v. Gonzalez, 549 U.S. 1 (2006). R&R 99. 

Regardless, Purcell is inapplicable for the reasons explained in the R&R (at 97) and in Plaintiffs’ 

Reply (at 15–16). Rere is ample time to have a new map in place following an injunction. August 

1 is the date by which the County Elections Department needs a new map. Ris date-certain renders

Purcell inapplicable. Reply 16 (citing Jacksonville II, 2022 WL 16754389, at *2 and Rose v. 

Raffensperger, 143 S. Ct. 58 (2022) (mem.)).

Re City tries to confuse the Court by reinventing Purcell’s prohibition on changing rules 

too close to an election into a prohibition on changing election rules too close to August 1. Rat is 

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simply not how Purcell works. If the City had not waived Purcell arguments and had the Elections 

Department not given a date-certain by which it needs a new map, the Purcell clock would run 

from the date of this Court’s negative injunction. A ruling by May 23 or shortly thereafter would 

obviate any possible Purcell issues given recent Supreme Court and Eleventh Circuit caselaw. See

Mot. 36; Reply 14.

F. Questions of Remedy are Premature and, in Any Event, Plaintiffs Will Propose 

Remedial Plans Promptly After an Injunction

Re City predicts Plaintiffs will inevitably challenge their redrawn map, and argues that 

their prognostication somehow undermines Plaintiffs’ entitlement to an injunction. Obj. 20. Should 

an injunction issue, Plaintiffs intend to work with the City and commissioners in good faith to 

adopt a new, constitutional map. Plaintiffs earnestly hope the City intends to do the same.

Far from being “impossible,” Obj. 10, complying with the Constitution is quite easy. De 

Grandy himself advised commissioners they could emphasize different priorities than maintaining 

the cores of the existing race-based districts. R&R 49. Re City chose not to explore different types 

of maps that prioritized serving neighborhoods and drawing compact districts, id., and now throws 

up its hands. Ris is not a reason to deny Plaintiffs’ Motion.

In response to the City’s suggestion that perhaps the Enacted Plan “will pass muster if it is 

adopted without looking at race,” such an ostensible “race-blind” approach that coincidentally 

stumbles into an eerily similar configuration as the Enacted Plan would fail to provide a “full and 

adequate remedy” to the race-based sorting of voters. United States v. Osceola Cnty., 474 F. Supp.

2d 1254, 1256 (M.D. Fla. 2006); Jacksonville III, 2022 WL 17751416, at *14 (“[T]he race-blind 

criterion alone does not immunize the districts in the Remedial Plan from further review nor does 

it necessarily remedy the constitutional violation.”); Covington v. North Carolina, 283 F. Supp.

3d 410, 424 (M.D.N.C. 2018), aff’d in part, rev’d in part, 138 S. Ct. 2548.

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Relatedly, as Plaintiffs’ counsel noted during the May 11, 2023 status conference, Plaintiffs 

are prepared to propose one or more potential remedial maps to the Commission very shortly after 

a ruling granting an injunction. Plaintiffs hope such proposals spark productive dialogue with the 

City and yield an agreed-upon map that remedies all the constitutional defects the Court identifies 

in an order granting an injunction.

III. Conclusion

Far from being the product of a Court “who probably knows nothing about our city,” May 

11, 2023 City Commission Meeting, at 2:12:10 (comments of Commissioner Díaz de la Portilla), 

the R&R thoroughly reviews the record, makes well-supported factual findings, and properly 

applies the law. Re Court should adopt the R&R and grant Plaintiffs’ Motion.

Respectfully submitted this 18th day of May, 2023,

/s/ Nicholas L.V. Warren

Nicholas L.V. Warren (FBN 1019018) Neil A. Steiner*

ACLU Foundation of Florida, Inc. Dechert LLP

336 East College Avenue, Suite 203 Rree Bryant Park

Tallahassee, FL 32301 1095 Avenue of the Americas

(786) 363-1769 New York, NY 10036

nwarren@aclufl.org (212) 698-3822

neil.steiner@dechert.com

Daniel B. Tilley (FBN 102882)

Caroline A. McNamara (FBN 1038312) Christopher J. Merken*

ACLU Foundation of Florida, Inc. Jocelyn Kirsch*

4343 West Flagler Street, Suite 400 Dechert LLP

Miami, FL 33134 Cira Centre

(786) 363-2714 2929 Arch Street

dtilley@aclufl.org Philadelphia, PA 19104

cmcnamara@aclufl.org (215) 994-2380

christopher.merken@dechert.com

jocelyn.kirsch@dechert.com

* Admitted pro hac vice

Counsel for Plaintiffs

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