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 OBJECTIONS TO REPORT AND RECOMMENDATION DE 52 

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Defendant, City of Miami (the “City”), objects to the Report and Recommendation 

(“R&R” DE 52) on Plaintiffs, Grace, Inc. (“Grace”), Engage Miami, Inc. (“Engage Miami”), South 

Dade Branch Of The NAACP, Miami-Dade Branch Of The NAACP, Clarice Cooper, Yanelis 

Valdes, Jared Johnson, Alexandra Contreras and Steven Miro1 (collectively, “Plaintiffs”) 

Expedited Motion for Preliminary Injunction (the “Motion” DE 26), and requests the Court’s de 

novo review. 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(2)-(3); S.D. Fla. Mag. R. 4(b). 

II. Memorandum of Law 

A. Standard of Review 

A party challenging a report and recommendation must “file . . . written objections which 

shall specifically identify the portions of the proposed findings and recommendation to which 

objection is made and the specific basis for objection.” Macort v. Prem, Inc., 208 F. App'x 781, 

783 (11th Cir. 2006) (cleaned up); see also Fed. R. Civ. P. 72(b)(2). A district court judge may 

accept, reject, or modify, in whole or in part, the recommendations. 28 U.S.C. § 636(b)(1)(C). The 

district judge “shall make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made.” Jeffrey S. v. State Bd. of Educ. 

of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(citation omitted); see also 28 U.S.C. § 636(b)(1)(C). 

The district judge must “give fresh consideration to those issues to which specific objection has 

been made by a party.” Id. The parts of the report and recommendation to which no objection is 

made are reviewed for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). 

B. Objections 

The R&R recommends that the City of Miami’s entire electoral map be thrown out and 

redrawn because the Commissioners discussed race during the redistricting process. The R&R 

 

1 The first three are the “Organizational Plaintiffs.” The others are the “Individual Plaintiffs.” 

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feels constrained to find this way, even though the redistricting did not increase the concentration 

of Black or Hispanic residents in any district, and instead reduced it throughout the entire 

redistricting plan, and even though there is no claim that the Black or Hispanic vote were diluted 

in any district. This case is therefore unique. It throws out the entire map for racial gerrymandering 

because the conversation was racial, even though there was in effect no racial gerrymandering. 

The R&R repeatedly focuses on statements that the districts were drawn to create a Black 

District (District 5), three Hispanic Districts (Districts 1, 3, and 4) and the so-called “Anglo access” 

district (District 2).2 “The Court need not look much beyond what a majority of the Commissioners 

expressly stated on the record at public meetings ....” DE 52 p.64. But while a majority of 

Commissioners expressed various opinions and ideas throughout the process, only some of those 

ideas were put to a motion and voted upon, reflecting the will of the City. The R&R cites Mr. de 

Grandy’s testimony in the inaugural redistricting meeting that he would do what a majority of the 

commissioners directed, DE 52 p.64, but ignores that Mr. de Grandy expressed the City should 

provide that direction through majority-approved motions. DE 24-11 p.17:9-15. The City provided 

such express directions which were adopted by motion without objection. The City gave directions 

to maintain the core of existing districts. DE 24-11 p.17:18-19:2. The City gave directions to draw 

districts with politically cohesive minorities. DE 24-11 p.19:20-21:15. The City gave directions to 

 

2

 “Anglo” is undefined. It is not a census term. The R&R uses it interchangeably with “white” but 

the Commission included Asians. DE 24-12 p.23:17-23; DE 24-18 p.56:16-18. Even in the 2013 

benchmark map, there was no White district. District 2 maintained a HVAP of 51.9% and a WVAP 

of 34.5% at the close of the 2020 census. DE 24-31 p 4. There is no “Anglo district” because even 

District 2 is more Hispanic than White (DE 52 p.40), and just elected a Hispanic commissioner. 

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draw districts with substantial equality of population, not mathematical equality. DE 24-11 

p.21:21-22:4. These directions were memorialized in adopted Resolution R-21-0485. DE 50-1. 

The Commission’s instructions to Mr. de Grandy in that official act were to: 

a. Comply with the United States Constitution and the Voting Rights Act; 

b. Maintain the core of existing districts to avoid voter confusion; 

c. Factor in voter cohesion; 

d. Achieve substantial equality of population as opposed to mathematical 

equality; and 

e. Maintain communities of interest and neighborhoods where feasible. 

DE 50-1. At the hearing, Mr. de Grandy testified that these were the directions he followed in 

drawing the districts. 

Critically, the R&R finds, without citation, that Plaintiffs’ expert attests there were 

alternative rejected maps that “would have had less of a discriminatory impact.” DE 52 p.77. This 

is simply incorrect. Dr. Abott made no such assertion, and Plaintiffs did not even argue it. Rather, 

Dr. Abott lays out the demographics of these alternative plans, demonstrating they are essentially 

the same, if not more concentrated in the alternatives.3 “All maps tended to shore up existing racial 

 

3

 Compare the Enacted Plan to the three alternative plans on page 24 of the R&R. DE 24-31 pp.23-

24. They all break up so-called traditional neighborhoods. In each alternative plan the Black 

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

Age Population (“BCVAP”) would be higher than the Enacted Plan. The White Voting Age 

Population (“WVAP”) of District 2, the so-called Anglo district, is either the same or a mere couple 

tenths of a percent lower in these plans, and 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 supermajorities, and there is no claim these minor variances would be significant. 

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compositions within individual Commission districts....” DE 24-31 p.16. There is no alternative 

plan where Miami does not maintain districts with supermajorities of Hispanic residents for one 

simple reason: the City has a supermajority of Hispanic residents. The R&R recommends an 

amorphous injunction: a “remedial plan with new district lines; that plan must not use race as a 

predominant factor in the design of any district unless that use of race is narrowly tailored to 

comply with a constitutionally permissible compelling government interest.” As described below, 

any such plan would closely resemble the existing plan. Because Plaintiffs fail to state a cognizable 

claim, the Court should deny the Motion for Preliminary Injunction. 

The City posed the question at the hearing and in its papers: what do Plaintiffs want 

specifically? Plaintiffs gave no substantive answer other than to say they do not have to give an 

alternative map. DE 39 p.10. They assert that they just want the map to be drawn in a way that is 

not race based. Id. As the City has asked, if it redraws the same map without considering race, 

would it then pass muster? Or, could the City simply adopt one of the alternative plans alluded to 

in the R&R, even though the racial and ethnic compositions are essentially identical? This is an 

important question, given the R&R’s analysis, because either (a) the map will pass muster if it is 

adopted without looking at race, even if it is the same map, or (b) no map can pass muster. 

It is undisputed the City had good reason to conclude that the Voting Rights Act (the 

“VRA”) required the preservation of a district where Black residents could elect a candidate of 

their choice.4 “[T]here is no dispute that the predominance of race in the design of District 5 was 

 

4

 To be clear, the VRA protects the rights of racial and language minorities to participate in the 

political process, it does not protect district boundaries or demographic make-up. See 52 U.S.C. § 

10301. Though Hispanics make up a supermajority of the City’s population, they are still protected 

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in furtherance of a compelling governmental interest.” DE 52 p.79. While the R&R finds race 

predominated in drawing the City’s Districts, it focuses primarily on areas surrounding District 5 

where it indisputably serves a compelling governmental interest. When discussing racial 

predominance in the other districts, the R&R makes no distinction between districting choices 

made regarding areas abutting District 5 and other areas unrelated to District 5. Instead, the R&R 

blurs the distinction between the two. 

For example, the R&R quotes Commissioner Reyes’s statements in the penultimate 

meeting for the assertion that the overarching goal “was to preserve the racial composition of the 

Commission with three Hispanic commissioners, one Black commissioner, and one white 

Commissioner.” DE 52 p.35. Yet Commissioner Reyes only referenced District 5, the lone Black 

district required by the VRA: “[M]y main concern is to save that seat that now is occupied by Ms. 

King. And I will vote for any plan that will save that seat. Is that clear? So let’s get race out of 

this.” DE 24-16, 44:8-10. While the Commissioners frequently referenced a Black district and 

three Hispanic districts—references inescapably descriptive of Districts 1, 3, 4, and 5 because of 

the majority minority populations in those districts—the references to the remaining district as a 

“White” district were more a function of poorly-worded descriptors and not improper intent. There 

would inevitably be at least three Hispanic majority minority districts in any redistricting plan, but 

no district would ever have a white majority. DE 24-21 p.2. Commissioner Diaz de la Portilla aptly 

if inadvertently articulated this distinction in the afternoon session on March 11, 2021: “Our goal 

 

under the VRA. In a redistricting plan in which at least four of the five districts are inescapably 

majority minority districts, the discussion of race should not be surprising. There is no White 

majority district, and it would be impossible to make one. DE 24-21 p.2 (Abott report). 

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here is to have an African American district, for the lack of a better term, a white district, which is 

the coastal district, and three Hispanic districts.” District 2 is a coastal district by design, not a 

White district. See DE 24-14, 8:19-20. If it was intended to be a gerrymandered White district, an 

impossible task, it is an incompetent gerrymander: Hispanics make up the largest plurality in 

District 2. DE 52 p.40; DE 24-31 p.6. It is plain the Commission’s focus was preserving District 

5, because the other districts would invariably result in at least three, and possibly four, majority 

Hispanic districts. 

In another example, the R&R quotes from Plaintiffs’ expert, Dr. Abott, who primarily 

discussed moves into or out of District 5 as racially motivated. DE 52 pp.44-45.5 The areas are 

highlighted on the map from Dr. Abott’s report (page 41 of the R&R). 

 

5

 As discussed below, the redistricted areas not abutting District 5 were not racial motivated. 

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In its findings, the R&R addresses the shape and demographics of the districts. 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 allowing race to predominate redistricting decisions where 

it abuts District 5 is permissible. The R&R asserts that the WVAP increased in District 2 because 

of the change, rising from 34.5% to 37.4%. (DE 52 p.73) This is still a minority White district 

with a higher percentage of Hispanics. DE 52 p.40. 

 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. In discussing District 3, the R&R first addresses an 

area that does not adjoin District 5, the so-called irregular appendage at Area 13. This area was 

moved from District 2 to District 3, but the R&R concedes that Dr. Abott concluded that it was 

not moved for racial reasons. DE 52 p.45. The R&R even addresses Area 14/15, from District 3 to 

4. As Dr. Abott noted: “Area 14/15 did not strongly differ from the areas immediately surrounding 

it, either in District 3 or District 4.” DE 24-31 p.12. This move did not change the racial 

demographics of either district. As noted previously, the minority racial concentrations of every 

district decreased because of the redistricting, but this reflected the City’s population growth. 

Compare DE 24-31 p.4 with p.6. More importantly, the City is being dunned for redistricting 

moves even if they raise or lower concentrations of minority voters, or even keep them the same. 

In their Amended Complaint and in their Motion, Plaintiffs never claimed that any group 

had their vote diluted anywhere. They alleged that there was packing of groups, but only in the 

“colloquial” sense, not the legal sense. DE 39 p.3. In their reply brief, Plaintiffs abandoned 

defending the claim that any particular area being moved as part of the redistricting was 

impermissibly racially motivated. Instead their case changed and instead focused solely on the 

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argument that the redistricting “preserved” the core of areas originally drawn based on race. Id. at 

pp.3-6. In other words, this case ceased being about what the City did as part of the redistricting, 

and instead focused on what it did not do. Despite this, the R&R still goes through each 

redistricting area changed. Those changes to preserve District 5 were permissible, and the others 

were not racial, but were intended to equalize population. 

Like Plaintiffs, the R&R then turns to the claim that the original districts were drawn based 

on race and that decision was preserved by the current map. DE 52 p.4,77-78. In so doing, the 

R&R primarily but impermissibly relies on post-enactment statements of prior intent of 

Commissioner Carollo—who was mayor, not a commissioner at the time. But such post-enactment 

statements are not proper indicia of legislative intent. Blanchette v. Connecticut Gen. Ins. Corps., 

419 U.S. 102, 132 (1974) (“[P]ost-passage remarks of legislators, however explicit, cannot serve 

to change the legislative intent of Congress expressed before the Act's passage); and Greater 

Birmingham Ministries v. Sec'y of State for State of Alabama, 992 F.3d 1299, 1324 (11th Cir. 

2021) (observing “determining the intent of the legislature is a problematic and near-impossible 

challenge” and rejecting the assertion that discriminatory intent could be found in the statements 

of one legislator, even where the legislator may be the sponsor). 

Additionally, the R&R’s reliance on various commissioners’ statement about their personal 

understanding of the history of the districts is misplaced. DE 52 p.65-66. For example, the R&R 

highlights Commissioner Carollo’s statement “[t]hen the outcome of that would be that guys like— 

that look like us, with last names like us, in the near future might not be elected necessarily from 

the districts that we represent,” and implies this was done to preserve “the racial balance of the 

commission.” DE 52 p.69. This statement is taken out of context. The Commissioner was talking 

about “them” being voted out of “their district” but that could not change the balance of the 

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Commission in a City that is 70% Hispanic. As shown in this Objection, there is no way to 

subdivide the City without creating at least three Hispanic Districts. 

The R&R puts the City in a mathematically impossible position. The City is 70% Hispanic. 

As demonstrated by the R&R, the Western parts of the City, which are the most compact, have the 

highest concentrations of Hispanic voters. It is impossible to create three districts that will not have 

a supermajority of Hispanic residents. Even if one were to intensively racially gerrymander the 

districts to overcome the existing residential segregations and evenly spread the Hispanic 

population out to make the supermajority as small as possible, one would still have five 70% 

Hispanic districts. This would be impermissible by definition because it would use race as the 

predominant factor without a compelling government interest, something the Equal Protection 

Clause forbids. DE 52 p.100. And according to Plaintiffs, this would violate the VRA because the 

City had to create a district where Black residents can elect a candidate of their choice. If one were 

to draw District 5 with a 48% BVAP—the number proffered by Plaintiffs—the district would be 

at most 52% HVAP, and the other four districts necessarily would be greater than 70% HVAP.6 

District 2 had to shed population. To move population from District 2 to Districts 3 or 4, 

that population would have to mostly come from Coconut Grove. Plaintiff’s pleadings and motion 

are replete with allegations railing against any division of Coconut Grove, but there is no evidence 

the City’s map drawer made this specific move for predominantly racial reasons. District 2 had 

one area in the South that adjoined District 4, which was not in Coconut Grove, because it was on 

 

6

 Ironically, the VRA Black district would potentially be a majority Hispanic district. For reasons 

discussed below, this would be problematic and could result in a district that would not perform 

for Black residents, as the Plaintiffs concede the existence of racially polarized voting. 

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the Northwest side of US-1 (the Golden Pines area, or Area 16). Areas 16 had an 81.8% HVAP 

(7,291/8,912). DE 24-6, p.9. Compare this to District 2 before redistricting, which had a 51.9% 

HVAP, or District 4 which had a 91.6% HVAP . DE 24-31 p.4. The Golden Pines area was the 

most Hispanic area of District 2, but still less than District 4. It lowered both District 4 and District 

2’s HVAP as a percentage, but necessarily raised the WVAP in District 2. The R&R argues the 

WVAP increased slightly in District 2 to find race predominated in the making of District 2. DE 

52 p.73. This finding ignores the realities of both the map and the math. Had Area 16 stayed in 

District 2, it would have been necessary to intensely gerrymander the southern part of the City, 

ignore the significant boundary of US-1, further break up traditional neighborhoods like Coconut 

Grove and all for racial reasons.7 It is a Catch-22. And it cannot be overstated that District 2 was 

the only district that needed to shed population. Overall, the racial changes to any of the districts 

were insignificant. DE 52 p.40. Whether a move changes the racial makeup of a district to 

concentrate it or dilute it, it should not be presumed to have been made for predominantly racial 

reasons. See Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018) (recognizing the presumption of good 

faith that attaches to legislative redistricting plans). 

The R&R also incorrectly finds that the division of traditional neighborhoods supports the 

finding that race predominated in the designs of Districts 1, 2, 3, and 4. DE 52 p.75-76. This finding 

underscores the impossible situation created by the R&R. The division of neighborhoods for racial 

 

7

 When the NAACP entities addressed the Commission, they requested that the City not break up 

the historic West Grove into two different districts and not dilute the Black vote in District 5. DE 

24-14 p.14. The City honored that request and then got sued for not breaking up Coconut Grove 

more and for not diluting the Black vote in District 5. 

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reasons to preserve District 5 is permissible as discussed above. The division of Coconut Grove is 

also faulted by the R&R as breaking up a traditional neighborhood thus demonstrating race 

predominated as a factor. Coconut Grove is in District 2, which had to lose population. As the 

R&R pointed out, District 2 had the highest proportion of white population. To keep the whiter 

Coconut Grove intact would be to preserve the white population in District 2, which the R&R also 

said shows that race predominated. DE 52 p.73. If the City cannot keep it together and cannot 

break it apart, the City cannot draw a map. The same issue applies to Brickell. To keep it together 

in District 2 preserves District 2’s WVAP and demonstrates racial motive, but to break it up divides 

a traditional neighborhood and does the same. 

The R&R also incorrectly found that splitting neighborhoods between the three Hispanic 

Districts was evidence of racial motive: Silver Bluff and Shenandoah between Districts 3 and 4; 

Flagami between Districts 1 and 4; and Little Havana among Districts 1, 3 and 4. DE 52 p.75. 

These divisions did not disenfranchise or dilute any community. They were race neutral in effect. 

Yet the R&R found that any division of any traditional neighborhood proved the districting was 

predominantly for racial reasons without regard to whether there was any racial effect. 

The R&R found that: 

The shapes of the borders, the racial makeup of the Commission Districts, and 

the splitting up of neighborhoods, all support a finding that race predominated 

in the City’s design of Districts 1, 2, 3, and 4 and that these districts were drawn 

in furtherance of the Commission’s express goal to preserve the composition of 

the Commission as having three Hispanic seats, one Black seat, and one Anglo 

or Anglo-access seat. 

DE 52 p.71. The shapes of the borders, the splitting of neighborhoods, and the design of the 

districts do no such thing. Rather, the R&R’s analysis, if adopted by the Court, will create a 

situation where any map made by the City will be unconstitutional. Once one draws a performing 

Black district required under the VRA, one will have three supermajority Hispanic districts and a 

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coastal district with a racial plurality of Hispanic and White voters. No redistricting decision could 

be made where Plaintiffs or a future plaintiff could not point to a section of the R&R to claim that 

that decision was impermissible. Conversely, if the R&R’s position is these districts are only made 

impermissible because they were created in the context of the Commissioners’ statements, then an 

identical map would be acceptable as long as it is adopted without the offending racial justification 

discussion. But taken at face value, the R&R would create a round robin where different 

constituencies could shoot down every possible combination. 

The only issue with District 5 is whether the City gave it an excessively high percentage 

of Black residents by setting it at a mere 50.3% BVAP. The R&R couched this in evidentiary 

terms. It does not find that the number was too high. Rather it states that, while the number need 

not be precise, and while the City has no duty to memorialize the analysis or compile a 

comprehensive record, and while Mr. de Grandy testified that he performed the analysis, the R&R 

concluded there was insufficient evidence to support strict scrutiny. DE 52 pp.82-86. The R&R 

would grant Plaintiff’s preliminary injunction and leave the number to be decided, but this should 

be resolved now. The R&R conceded that the population did not have to be set precisely. DE 52 

p.82 (citing Bethune-Hill v. Va. State Bd. of Elections (Bethune-Hill I), 580 U.S. 178, 195-96 

(2017)). Otherwise governments would be “trapped between the competing hazards of liability” 

under the Voting Rights Act and the Equal Protection Clause. Id. at 196. If Plaintiffs prevail on

their number, it effectively sandwiches the City between 50.3% and 48% BVAP. This is the exact 

danger about which the Supreme Court warned. If they don’t prevail, however, it stays at 50.3%. 

Either way, the injunction should not issue. 

The City’s plan had BVAP at a mere 50.3%. Plaintiff’s expert, Dr. Moy did not opine that 

Black voters in District 5 need any particular percentage of the voting age citizens to elect the 

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candidates of their choice. He simply analyzed past races to conclude that there is racially polarized 

voting. DE 24-32 p.58. For example, the Plaintiffs and the R&R highlight one race discussed by 

Dr. Moy where he concluded that for the Black preferred candidate to prevail, they would need to 

be 49% of the registered voters (or 48% of VAP). DE 39 p.8 & DE 52 p.85 (both citing DE 24-32 

p.55). He also opined for the Latino candidate to prevail in that race, they would only need to be 

44% of the voters. Id. In other words, decreasing the percentage of Black voters to 49% by 

increasing the percentage of Hispanic voters to 44% would cause it to no longer be a district where 

Black candidates could elect the candidate of their choice, even with 49%. Dr. Moy did not opine 

that any particular percent was needed. He opined that there was racially polarized voting—a fact 

not in dispute and compels the conclusion a majority minority district should have been drawn. 

To undercut the facial validity of a bare 50%,8 the R&R observed that the BCVAP is 58%. 

DE 52 p.85. This line of reasoning is based on a misreading of Negron v. City of Miami Beach, 

113 F.3d 1563, 1569 (11th Cir. 1997), in Plaintiffs’ briefing. The City is aware of no case that 

required a City, when drawing a district under the VRA, to base it on the citizen population.9 

Negron stood for the inverse. To prove a dilution case, a plaintiff needed to establish that they had 

a sufficiently large and compact minority voter population to elect a representative, and that the 

population was divided among districts to dilute their impact. In Negron, the Court stated that if a 

plaintiff claims they have sufficient numbers to create a majority minority district in compliance 

with the VRA, but there are not enough voting eligible minority residents to allow that minority 

 

8

 50.3% is hardly “uncritical majority-minority district maximization.” DE 52 p.86. 

9

 Legislatures are not required to draw boundaries by citizenship rather than total population. 

Evenwel v. Abbott, 578 U.S. 54, 58 (2016). 

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group to elect their desired representative, it is impossible for them to meet the standard. But the 

opposite is not true. Not all citizens vote, or even can vote. Plaintiffs proffered evidence that only 

52.76% (25,307/47,958) of registered voters in District 5 were Black as of February 1, 2023. DE 

24-93 p.37. It also ignores the population trend. Black registered voters were down from 56.86% 

the previous year (26477/45562). DE 24-93 p.35. As laid out in the City’s response memorandum, 

Plaintiffs’ own filings show that the Black population in the City of Miami decreased in both 

relative and absolute terms in each cycle; there were 10% fewer Black residents in the City in 2023 

as compared to the previous census. 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). Despite the foregoing, and Mr. de Grandy’s testimony about why that trend 

was occurring due to gentrification—and that he drew the district to perform not just for the next 

election but the next decade, DE 24-15 2:6-14—the R&R finds that “no analysis grounded in any 

data was conducted into population trends” and no models were done. DE 52 p.84-85. The trend 

is a fact, not an opinion. Modelling may play a role to rebut the fact of this demographic trend and 

argue that, despite it, there would be a reversal. But no one argued that. An actual existing trend 

need not be modeled. It exists. An expert need not say, “yes, that is a decrease.” 

The R&R rejected a bare 50% majority as arbitrary. It is not arbitrary. It is mathematically 

the definition of a majority. In the voting context over 50% wins, under 50% loses.10 It is also the 

threshold required to bring a claim under Section 2 of the VRA. It is a paradox to conclude that a 

plaintiff must assert that a minority population is sufficiently large and geographically compact to 

draw a majority minority district to state a valid claim, but it is constitutionally impermissible to 

 

10 While the Commissioners had good reason to be concerned that 50% might not be sufficient for 

future elections in light of the demographic trends, they set the BVAP at barely over 50% anyway. 

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draw that same district in the first instance. To argue it is arbitrary, Plaintiffs alleged, and the R&R 

accepted, that a less than 50% population would vote in coalition with others to allow them to elect 

a candidate of their choice. This would upend the VRA. See Bartlett v. Strickland, 556 U.S. 1, 15 

(2009) (“Nothing in § 2 grants special protection to a minority group's right to form political 

coalitions.”). In Negron, the Eleventh Circuit found that the Plaintiffs did not establish a claim 

under the VRA because they did not have 50% Hispanic majority that would be eligible to vote. 

113 F.3d at 1563. Plaintiffs are asking this Court to make reversible error. No published case of 

which the City is aware has ever found that an election district that needed to be created under the 

VRA nevertheless had to be created at less than 50%. 

The R&R concludes at the end “[t]hus, the City should be required to redistrict applying 

these principles, which does not necessarily lead to the conclusion that the Black voters’ influence 

would be diminished in a revised plan.” DE 52 p.99. As the City pointed out, District 5’s 

population is smaller than the surrounding areas. The Black vote is not alleged to be diluted in any 

other district. The City protected the District by not moving more non-Black residents into it. If it 

lowers the BVAP percentage by moving more non-Black voters in, it will dilute that vote without 

a corresponding increase elsewhere. If it moves some Black voters out of District 5 to lower the 

majority a percent or two, more non-Black residents must move in, and a percent or two in a 

different district would not give Black voters meaningful influence there. Plaintiffs do not even 

claim that Black voter influence is diminished elsewhere or could be increased. Despite the R&R’s 

optimism, there is no way to redistrict without diminishing Black voter influence and jeopardizing 

the slim majority in District 5, other than to leave it as it is. 

In summation, the Court concluded that race was the predominant factor in placing a 

significant number of voters within a particular district. That was permissible regarding District 5. 

Case 1:22-cv-24066-KMM Document 55 Entered on FLSD Docket 05/13/2023 Page 16 of 23
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Regarding the other districts, demographic reality was the most significant factor. It would be 

impossible to create districts that did not have supermajorities of Hispanics. The test for racial 

gerrymandering is not merely whether race was discussed, but whether it actually resulted in a 

racial gerrymander of a significant number of voters. Cooper v. Harris, 581 U.S. 285, 291 (2017) 

(quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)). The redistricting changes themselves did 

not result in any racial gerrymandering, and the lines of the districts can be shimmied about but 

they won’t significantly change the racial makeup of the districts. The plaintiffs do not contend 

that any group’s vote was diminished anywhere. This is a racial gerrymandering case without a 

racial gerrymander. 

C. Plaintiffs Face Threshold Standing Issues. 

As set forth in the Motion to Dismiss, and will not be fully restated but which is 

incorporated here, Plaintiffs assert a shotgun pleading. Racial gerrymandering claims are brought 

on a district by district basis. Each Plaintiff must have standing to support their individual claim 

as to each particular district they challenge. The Complaint is full of alleged challenges to 

districting decisions that are irrelevant, that undermine their claims, or that were done 25 years 

ago. The R&R finds that their harms were not based on the decisions of 25 years ago but “new 

harms” from the current plan. DE 52 p.94. As set forth in the City’s filings, no one was harmed by 

any redistricting choice. The R&R also finds they bring a whole map challenge. Id. p.59. 

“A racial gerrymandering claim, however, applies to the boundaries of individual districts. 

It applies district-by-district.” Alabama Legis. Black Caucus v. Alabama, 575 U.S. 254, 262 (2015) 

(emphasis added). A plaintiff who complains of gerrymandering, but who does not live in a 

gerrymandered district, “assert[s] only a generalized grievance against governmental conduct of 

which he or she does not approve.” Gill v. Whitford, 138 S. Ct. 1916, 1930 (U.S. 2018) (citing 

Case 1:22-cv-24066-KMM Document 55 Entered on FLSD Docket 05/13/2023 Page 17 of 23
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United States v. Hays, 515 U.S. 737, 745 (1995)). Plaintiffs who complain of racial 

gerrymandering in their State cannot sue to invalidate the whole State’s legislative districting map; 

such complaints must proceed “district-by-district.” Id. (citing Alabama Legis. Black Caucus). 

The R&R, like the Plaintiffs, matches no particular plaintiff to any particular redistricting 

decision that affected their particular district. The R&R states that their harm arises from “[w]hen 

the [government] assigns voters on the basis of race, it engages in the offensive and demeaning 

assumption that voters of a particular race, because of their race, ‘think alike, share the same 

political interests, and will prefer the same candidates at the polls.’” DE 52 p.89 (quoting Miller, 

515 U.S. at 911–12). The harms flow from “racial sorting.” Id. (quoting Bethune-Hill, 580 U.S. 

at 187). The City understands why observations at the Commission meetings raised concerns, and 

does not seek to make light of it. The issue here is that comments on their own are not enough 

because they are not directly or causally linked to the drawing of any particular line or any decision 

to place a group of voters within or without a district based on their race. Plaintiffs were not 

actually racially sorted. No impermissible racial gerrymander occurred, and it is impossible to 

create districts that will not have substantially the same demographics. Neither the Plaintiffs nor 

the R&R claim otherwise. Plaintiffs have not made a case they were harmed either by the core 

districts remaining the same or by any redistricting change. 

D. The Plaintiffs Unduly Delayed Seeking Preliminary Injunctive Relief. 

The ordinance being challenged was enacted in March, 2022. This case was filed in 

December 2022, nine months later. Plaintiffs then waited two more months before filing the 

Motion. A special election was held on February 27, 2023, and another election is coming on 

November 7, 2023. DE 26 pp.2, 4. Moreover, the challenge essentially boils down at an attack on 

decisions not made in March 2022, but made 25 years earlier. 

Case 1:22-cv-24066-KMM Document 55 Entered on FLSD Docket 05/13/2023 Page 18 of 23
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The R&R brushes off the Special Election because it did not involve most of the challenged 

districts. DE 52 p.96. This is inaccurate. Plaintiffs bring a “whole map challenge.” Id. p.59. While 

the special election was for District 2, the redistricting plan shed parcels from District 2, making 

cascading movements through Districts 1, 3, 4, and 5, thus all were affected if one accepts the 

reasoning that each move was constitutionally infirm. If the R&R is correct that District 2 was 

drawn to create a White district (that incidentally elected a Hispanic candidate), then elections 

have undoubtedly occurred under affected districts. Given the R&R’s conclusion that the 

Organizational Plaintiffs had standing to challenge all Districts (DE 52 p.55), and given that no 

Individual Plaintiff resides in District 1, the Special Election affected every Plaintiff. 

If Plaintiffs are challenging decisions that have been in place for 25 years and simply 

preserved in 2022, then Plaintiffs as a group are 25 years too late. The R&R’s conclusion that 25 

years of elections are irrelevant because Plaintiffs are suing for “new harms” is inconsistent with 

the R&R’s findings that the redistricting “preserved the cores” of racially segregated districts. DE 

52 pp.4, 77-78. The redistricting itself reduced concentrations of Black and Hispanic residents. 

The alleged harms have been in place for every election cycle. If anything, the current plan lessens 

those alleged harms. The R&R observes that not each Plaintiff had standing for all of the 25 years, 

but that avoids the issue. Engage Miami was founded in 2015. It may not have delayed 25 years, 

but it did for 7. GRACE, formed in 2019, delayed 3 years, and did not challenge the 2020 or 2021 

elections. Even Plaintiff Johnson allowed the 2021 election to go unchallenged. The R&R’s 

rejection that the challenge was “25 years” too late misses the point. Plaintiffs’ delay is undeniable. 

Further, Plaintiffs admit that the new districts would have to be set by August 1. DE 26 

p.36. “[A] party seeking a preliminary injunction must generally show reasonable diligence. That 

is true in election law cases as elsewhere.” Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018). Yet, 

Case 1:22-cv-24066-KMM Document 55 Entered on FLSD Docket 05/13/2023 Page 19 of 23
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Plaintiffs waited nine months after the City passed the redistricting ordinance to file their lawsuit, 

and an additional two months to seek preliminary injunctive relief. The R&R recognizes this delay 

was problematic [DE 52 p.95], but concluded that it was justified because, as Plaintiffs “explain 

in their reply” they needed the time to prepare their case. DE 52 p.95. Plaintiffs put on no evidence 

other than argument of counsel to justify or excuse the delay. Rather, the R&R implies that the 

City bore the burden to prove that the delay was “intentional, strategic, or even negligent.” That 

is not the standard. Plaintiffs must show reasonable diligence where there has been delay.11

The R&R also finds the Purcell principle inapplicable because the next election is not until 

November. 12 DE 52 p.97,99. The Miami-Dade County Supervisor of Elections requires any new 

plan be in place by August 1, 2023. If the Court issues an injunction, that deadline will be a mere 

two months away. DE 52 p.10. Any new plan would have to go through a public hearing process, 

be adopted by the Commission, face an inevitable challenge,13 and have to be resolved. 

The R&R concedes that the Supreme Court found that issuing an injunction four months 

 

11 Plaintiffs had a year to work on the Injunction; the City had thirty days to respond. Given the 

timetable, the City had a mere ten calendar days to object to a 101 page R&R (actually less given 

the late filing of the R&R and the last day being a Saturday), and had to do so before the transcript 

of the hearing was even prepared. The delay certainly was a strategic benefit to Plaintiffs. The 

City objects to being forced to object to a 101 page R&R under such a foreshortened schedule. 

12 “Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam) teaches that ‘federal district courts 

ordinarily should not enjoin state election laws in the period close to an election.’” DE 52 p.97. 

13 As stated above, in light of the comprehensive R&R faulting every decision regardless of racial 

effect, a challenge to any plan is essentially guaranteed. 

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before an election would fit within the Purcell principle. Any injunction here would only enjoin 

using the old plan, it would not put the new plan in place. A new plan in place by August 1 would 

be barely more than three months before the November 7, 2023 election. Moreover, it is not simply 

the administration of the election at issue: there are the issues of voter confusion and candidate 

qualifying that are implicated. The Purcell harms of voter confusion and consequent incentive to 

remain away from the polls are squarely present here. This is particularly true if the end result is a 

massive change to the Districts rather than a minor change such as the adoption of one of the 

alternative plans referred to by the R&R. Because the R&R leaves it an open question, it 

acknowledges that “ the consideration of the Purcell principle may be required [by] the time at 

which a final ruling on the Expedited Motion is entered.” DE 52 p.99. 

All of this is compounded by Plaintiffs’ refusal to propose any specifics other than to repeat 

they do not have to provide alternative plans to bring a challenge. While they may sit back under 

some circumstances and take shots at subsequent adopted remedial plans, they cannot do so in one 

breath, and then say in the next breath they have not unreasonably delayed and that the Purcell

principle is inapplicable. Because of the foregoing, the City respectfully submits that Purcell

applies right now. The scheduled election should go forward on the current map, the case should 

proceed to a January trial on the merits, and the process should not be rushed. 

WHEREFORE, the City respectfully objects to the Report and Recommendation (DE 52), 

and requests this Court deny Defendant Plaintiffs’ Expedited Motion for Preliminary Injunction 

(DE 26). 

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Respectfully submitted, 

By: s/ George T. Levesque 

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 

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 

Case 1:22-cv-24066-KMM Document 55 Entered on FLSD Docket 05/13/2023 Page 22 of 23
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CERTIFICATE OF SERVICE 

I hereby certify that on March 13, 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/ George T. Levesque 

George T. Levesque 

Case 1:22-cv-24066-KMM Document 55 Entered on FLSD Docket 05/13/2023 Page 23 of 23