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 REPLY IN SUPPORT OF OBJECTIONS TO REPORT AND 

RECOMMENDATION DE 52 

Defendant, City of Miami (the “City”), files this reply in support of its objections 

(“Objections” DE 55) 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 Miro (collectively, “Plaintiffs”) Expedited Motion for Preliminary 

Injunction (the “Motion” DE 26), and in reply to the Response Memorandum of Law (the 

“Response” DE 57) filed by Plaintiffs. 

The City filed a motion for leave to file a reply yesterday because the Local Rules do not 

provide for one. Because the Motion was unopposed, and the Reply was promised to be filed by 

today, the City is filing it now in so that it will be available to the Court if it grants the request. 

This case is unique. Plaintiffs would have a court, for the first time, find that a majorityminority district required for compliance with Section 2 of the Voting Rights Act (“VRA”) had to 

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be drawn at less than a majority—the threshold for obtaining review under the Gingles Section 2 

analysis. As stated in the Objections, this is unprecedented. Plaintiffs attempt to make a strawman 

of the City’s argument and state that the City asserted “it had trouble finding published cases where 

courts have approved maps with VRA-protected districts under 50% BVAP.” DE 57 p.5. That is 

inaccurate. The City said it was unaware of any case that “found that an election district that 

needed to be created under the VRA nevertheless had to be created at less than 50%. DE 55 p.15. 

A plaintiff needs a sufficiently geographically compact majority to even bring a VRA challenge. 

Negron v. City of Miami Beach, 113 F.3d 1563, 1569 (11th Cir. 1997). In Plaintiffs’ view of the 

world, a plaintiff could bring a VRA challenge with less than 50% as long as they had a coalition, 

which flies in the face of Gingles.

1

 Additionally, even where the Gingles test is met, Plaintiffs’ 

interpretation would allow governments to refuse to create majority-minority districts. It would 

invalidate the Gingles test and spell an end for majority-minority districts, even when they may be 

drawn in a compact manner. Plaintiffs would make this a test case: how much must a potential 

majority-minority district be reduced below a majority before it no longer complies with the VRA? 

They mislead the Court with a string cite that does not support their position: 

In Jacksonville Branch of NAACP v. City of Jacksonville (Jacksonville III), 2022 WL 

17751416 (M.D. Fla. Dec. 19, 2022), the Court 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. 

In re Senate Joint Resol. 100, 334 So. 3d 1282, 1289 (Fla. 2022), the Court found there 

was no vote dilution in those minority districts under a state standard that blended standards set 

 

1

 This is impermissible. 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.”). 

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forth in Section 2 and section 5 of the VRA—which advance two different standards. See In re 

Senate Joint Resol. of Legislative Apportionment 1176, 83 So. 3d 597, 619-20 (Fla. 

2012)(explaining the difference between Section 2’s vote dilution analysis and Section 5’s 

retrogression analysis). The Court, interpreting state constitutional standards, never concluded 

that the Section 2 of the VRA mandated majority-minority districts that were not majorities. In 

fact, it observed 

In voting rights parlance, a “majority-minority district” is one in 

which voters of a minority group constitute a majority of the 

district's voting-age population. The existence of a minority group 

“sufficiently large and geographically compact to constitute a 

majority in [a] reasonably configured legislative district” is one of 

“three threshold conditions for proving vote dilution under” section 

2 of the Voting Rights Act. Cooper v. Harris, ––– U.S. ––––, 137 S. 

Ct. 1455, 1470, 197 L.Ed.2d 837 (2017) (explaining the threshold 

vote dilution criteria established in Thornburg v. Gingles, 478 U.S. 

30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)). 

Id. at 1288 n.5. 

In In re Senate Joint Resol. 2G, 601 So. 2d 543, 546 (Fla. 1992), the Court concluded that 

section 2 of the VRA did not mandate a majority-minority district to be created due to the extreme 

gerrymandering that would be needed; but the Department of Justice’s plan that prevented the 

district from being drawn in a manner that avoided retrogression—that is a diminishment in the 

minority’s ability to elect its candidate of choice—was appropriate.2

 The Plaintiffs seek to blur 

the distinction between Section 2 and Section 5—two very different standards. And of course, 

Section 5 is no longer enforceable. See Shelby Cnty., Ala. v. Holder, 570 U.S. 529 (2013) 

(invalidating the VRA’s coverage formula and preclearance requirement that triggered the 

Department’s review of certain voting changes under Section 5 of the VRA). 

In De Grandy v. Wetherell, 794 F. Supp. 1076, 1088, 1089 n.5 (N.D. Fla. 1992), the Court 

 

2

 The Gingles test requires sufficient compactness. 

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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%. 

Plaintiffs would have this Court strip District 5 of its VRA-protected status and convert it 

from a majority-minority district to an influence district, even though a majority-minority district 

meeting the Gingles test can be created. They invite this Court to commit error, end District 5 as 

a majority-minority district, and set up a VRA challenge. 

Plaintiffs continue to insist that 50% of voting age population is arbitrary, even though it 

is the threshold for a VRA case. Given the precedent of Gingles, any number from 1-100% may 

be arbitrary except 50%. Plaintiffs also try to give a misleading impression that District 5’s Black 

voter registration did not go down from 2022 to 2023 by stating that District 5’s borders changed. 

DE 57 p.6-7. The border did change, but that is not why registered voters declined. There was a 

citywide decline in Black registered voters. Compare DE 24-92 p.75 to DE 24-93 p.76 (declining 

from 34,340 to 33,557). That’s a 2.28% decline in one year. Plaintiffs are urging this Court to end 

District 5 as a VRA Black majority-minority district. 

The R&R found fault with nearly every decision that the City made or did not make. That 

will make the map undrawable. Plaintiffs have withheld disclosing any specificity whatsoever 

because their map inevitably will contain the same sorts of decisions. They do dispute that any 

map will be nearly identical demographically unless it is intensively gerrymandered with race as 

the predominant factor to evenly distribute ethnicities, which is impermissible. Even then the maps 

will be nearly identical demographically. Plaintiffs’ response hints for the first time that they are

seeking a sweeping yet undisclosed change (DE 57 p.10), which inevitably will be constitutionally 

infirm based on the reasoning of the R&R, but they seek to delay this reveal as close to the deadline 

for submitting a map to the County as possible. This is not like a normal suit between two private 

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parties that can enter into a settlement agreement to accept anything. Any map the City implements 

still must pass constitutional muster. And if the reasoning of the R&R is applied, no map can. 

Plaintiffs have no response other than to say “don’t worry about it now.” Plaintiffs cannot play 

that game, and still say that they have not delayed or that Purcell does not apply. They took a year 

to prepare the motion for injunction, which was voluminous and contained two expert reports, yet 

they proposed no alternative map. That is more than suspect, it is telling. An alternative map may 

not be an absolute requirement for a constitutional challenge, but it is for a preliminary injunction 

this close to an election. 

The deliberate delay of the process alone is grounds for denying a preliminary injunction. 

Plaintiffs, once more employing a strawman, claim the City is prognosticating that they will bring 

a challenge. The Response seems to settle that they will. No amount of “good faith” can overcome 

the impossible parameters that the City now faces under the R&R’s rubric as detailed in the 

Objection. Nevertheless, the City’s fears are not limited to just the Plaintiffs’ challenges. Plaintiffs 

do not speak for every voter. Anyone who feels that their ox was gored by the new map will be 

able to bring a challenge and point to the R&R to show why their neighborhood should not have 

been split or why they are being racially gerrymandered. 

As the City pointed out in the Objection, Purcell is applicable right now. The R&R 

conceded Purcell is relevant and may apply as we get closer. DE 52 p.99. Plaintiffs claim the 

Purcell principle was waived (DE 57 p.9), even though it was raised, but it is not waivable.3

 

 

3

 We are doubtful that the Purcell principle is subject to the ordinary 

rules of waiver (or perhaps more accurately here, forfeiture). As 

when considering jurisdictional limitations, we have an independent 

obligation to “weigh ... considerations specific to election cases.”. 

When we are “[f]aced with an application to enjoin” voting laws 

close to an election—or, as here, a request to stay such an 

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Further, Plaintiffs lodged no objection to the R&R on this point. Purcell must be considered. 

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). 

 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 

 

 

injunction—we are “required to weigh” the injunction's impact for 

an upcoming election. 

League of Women Voters of Fla., Inc. v. Florida Sec. of State, 32 F.4th 1363, 1371 n.4 (11th Cir. 

2022)(citations omitted).

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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 19, 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 

Case 1:22-cv-24066-KMM Document 59 Entered on FLSD Docket 05/19/2023 Page 7 of 7