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 EMERGENCY MOTION TO STAY ORDER REJECTING 

REDISTRICTING MAP [DE94] 

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

“City”), moves for a stay of the Order Rejecting The Redistricting Map and Imposing a Court 

Ordered Remedial Map [DE 94] pursuant to the injunction set forth in this Court’s Order (the 

“Order”)(DE 60) adopting the Report and Recommendation (the “R&R”)[DE 52] granting 

Plaintiffs’ Motion for Injunction. DE 26. The City requests that this Court stay the injunction 

pending appeal. 

 The Court in the injunction found that the City’s redistricting map set forth in City of 

Miami Resolution 22-131 (the “Enjoined Plan”) unconstitutionally racially gerrymandered the 

City to preserve “three Hispanic districts, one Black district, and one Anglo district.” DE 60 

p.16; DE 94 pp.20-21. The Court then rejected the City’s new plan enacted in Resolution 23-271 

(the “New Plan”) finding that it failed to correct the prior racial predominance of the Enjoined 

Plan. DE 94 pp.27,35-39. The Court mandated that the City adopt a plan proposed by Plaintiffs 

(Plan 4 or the “Mandated Plan”) that did not just preserve that racial predominance, it 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 1 of 16
2

exacerbated it. The Court’s articulated purpose was to ensure that the new districting plan 

“completely corrects—rather than perpetuates—the defects that rendered the original districts 

unconstitutional or unlawful.” DE 94 p.16. The Mandated Plan still preserves three Hispanic 

districts as supermajorities. Indeed, it is mathematically impossible not to have three 

supermajority Hispanic majority districts, but the Court now maximally packs one Hispanic 

district in excess of 95%. DE 82-12 p.16. The Mandated Plan also makes the so-called Anglo 

District whiter. Compare Id. to DE 82-12 p.15. And, while everyone agrees on the 

constitutionality of creating a Voting Rights Act (“VRA”) Black District, the Court nevertheless 

rejected the City’s version of the district for not being narrowly tailored before mandating a plan 

that is not statistically significantly different.1

 Id. 

The Court emphasized core retention as a basis for finding racial predominance, but it 

divorced the notion of core retention from its context as a permissible traditional redistricting 

consideration. This is not a case of vote dilution. It is solely a case of alleged racial sorting, 

something that the Court has not “corrected.” In the name of changing the core for three 

supermajority Hispanic districts,2 it has intensified the racial sorting. The result imposes a very 

different map barely more than three months before an election, writes one commissioner out of 

his district, and substitutes Plaintiff’s political decisions for those of the City’s duly elected 

representatives. This violates the principal articulated in Purcell v. Gonzalez, 549 U.S. 1 (2006): 

 

1

 The Court has adopted an ephemeral distinction that the number may be narrowly tailored, but 

the City lacked sufficient evidence to establish it, and then the Court mandated a statistically 

similar number less than 2% off. This reverses the burden of proof. 

2

 The map imposed by the Court preserves 96.7% of the core of District 2, a plurality district, 

and 92.5% of the core of District 5, the Black district. DE 86-2 p.6. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 2 of 16
3

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

election.” 

This Motion is an emergency because the Court has directed compliance by tomorrow, 

July 31, 2023. 

 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 

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.”

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 3 of 16
4

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 

The Court acknowledged there is a “‘presumption of legislative good faith,’ even after a 

finding of past discrimination, and that the ‘burden of proof lies with [Plaintiffs], not the State’ to 

demonstrate the remedial map is unconstitutional.” DE 94 p.16 (quoting Abbott v. Perez, 138 S. 

Ct. 2305, 2324 (2018)). Of course, there has been no finding of past discrimination here, the 

previous ruling was an interlocutory injunction order. The Court nevertheless did not grant 

deference to the City Commission. It instead presumed discriminatory intent and then mandated 

a map with greater racial gerrymandering. 

Redistricting “is primarily the duty and responsibility of the State,” 

and “[f]ederal-court review of districting legislation represents a 

serious intrusion on the most vital of local functions. 

Abbott, 138 S .Ct. at 2324. This Court imposed a burden of proof on the City to provide nonracial reasons for districting decisions, and then it rejected those reasons as not being sufficiently

proven. The Court then imposed on the City a Mandated Plan that exacerbated the alleged racial 

sorting that caused it to issue the injunction in the first place. 

A. The May 11 Meeting Is Not Direct Evidence of Racial Gerrymandering 

The Court placed undue emphasis on statements made at a May 11, 2023 meeting 

wherein Commissioner Diaz de la Portilla suggested going to single member districts. He and 

Commissioner Reyes observed that in a city that is 70% Hispanic, that would likely lead to an all 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 4 of 16
5

Hispanic Commission. The Court has taken this as an announcement of an intention to racially 

sort. 

[T]he May 11 Meeting is better understood as the Commissioners 

explaining why they believed their initial approach when enacting 

the Enjoined Plan (i.e. creating the gerrymandered districts), was 

the correct approach, and after some discussion, unanimously 

directing De Grandy to maintain the racial breakdown of each 

district in a new map. 

DE 94 p.24. Determining legislative intent from statements by a minority of the Commission is 

always problematic. 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). 

In this case, there was no expressed intent to racially sort; the Court is inferring it. That 

inference is mistaken. The Commission is due a presumption of good faith, not the opposite. 

Moreover, the Commissioners were commenting on a mathematical reality of a city with a 

supermajority Hispanic population that is likely to elect three Hispanic districts and a district that

will perform for the Black candidate of choice—a reality reflected in every map considered by 

the Court. At-large elections have a likelihood of electing an all Hispanic Commission. Single 

member districts will all have a VRA protected Black District and then unavoidably have three 

Hispanic districts because the remainder of the City is 75% Hispanic. DE 82-2 p.9:1-8. 

Moreover, redistricting differs from other kinds of state 

decisionmaking in that the legislature always is aware of race when 

it draws district lines, just as it is aware of age, economic status, 

religious and political persuasion, and a variety of other 

demographic factors. That sort of race consciousness does not lead 

inevitably to impermissible race discrimination. 

Shaw v. Reno, 509 U.S. 630, 646 (1993). The Court improperly inferred bad faith from an 

acknowledgment of a demographic fact. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 5 of 16
6

The foregoing mathematical reality is demonstrated by the fact that each of Plaintiffs’ 

four plans racially sort the City into three Hispanic Districts, a coastal district with the highest 

white population and a VRA protected Black district. All plans have a coastal District 2 that is a 

non-minority majority. 3 Compare DE 82-24 to 34-37. In, fact Plaintiffs’ Maps 2, 3 and 4 have a 

greater White Voting Aged Population (WVAP) in District 2 than the Enacted Plan. Compare 

DE 82-1 p.15 to 16. All of the plans have a Voting Rights Act (“VRA”) protected Black District 

5 in the North. The only difference between Plaintiffs’ plans, including the Mandated Plan, and 

the New Plan is that Plaintiffs exacerbate the racial sorting. 

B. Circumstantial Evidence Does Not Establish Racial Gerrymandering 

The Court placed undue emphasis on the notion of core retention, divorcing it from its 

context. DE 94 p.16. “[R]etaining previous occupants in new legislative districts” is a traditional 

redistricting criterion. Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at *3 

(E.D. Wis. May 30, 2002)(citing Karcher v. Daggett, 462 U.S. 725, 740 (1983);). See also 

Larios v. Cox, 300 F. Supp. 2d 1320, 1334 (N.D. Ga. 2004). Core retention can only be suspect 

insofar as it perpetuates the harms of a racial gerrymander. The Court talismanically invoked the 

term core retention not to reduce racial predominance, but to exacerbate it. The Court has relied 

heavily upon Jacksonville Branch of NAACP v. City of Jacksonville (“Jacksonville II”), No. 

3:22-cv-493-MMH-LLL, 2022 WL 17751416, at *11 (M.D. Fla. Dec. 19, 2022), throughout 

 

3

 This so-called “Anglo” district is a misnomer since District 2 has no racial or ethnic majority. 

Plaintiffs said they didn’t “designate” an Anglo access district (DE 82-2 p.6), but they created 

one in each plan and preserved the Whitest community in Miami, Coconut Grove, inviolate. 

They claimed not to “pack Hispanics” into three districts, but they did. DE 82-12 p.16. Districts 

1, 3 and 4 are supermajority districts in every plan, and District 4 in exceeds 95% HVAP in each 

of Plaintiffs’ proposals. Id. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 6 of 16
7

these proceedings. But that was a case of vote dilution. There the new plan still diluted the 

votes of minority voters, and the Court replaced it with a plan that did not dilute those votes. 

This is not a case of vote dilution. Plaintiffs have never even alleged it. It is solely a case of 

alleged racial sorting, something that the Court has not “corrected,” but rather intensified. It 

would be akin to the Jacksonville Court finding the municipality’s plan still diluted minority 

votes and then replacing it with a plan with greater packing and more dilution. The Court 

observed that there is insufficient time to appoint a special master and therefore simply adopted 

one of Plaintiffs’ plans. DE 94 p.41. 

The Commissioners focused on legitimate, non-racial criteria, such as political 

considerations, where they had invested substantial district resources, and where candidates 

reside. DE 94 p.12. The Court nevertheless disregarded those publicly-expressed reasons 

because it found those considerations “had the impact of perpetuating, rather than completely 

correcting, the constitutional infirmities.” Id.

4

 That finding is belied by the fact that each of 

Plaintiffs’ plans, including the Mandated Plan all resulted in the same racial demographics. If it 

is inconceivable that a plan could be adopted for race neutral reasons that would still perpetuate 

the alleged constitutional infirmity of racial sorting, than the Mandated Plan is unconstitutional 

for perpetuating the same Constitutional infirmity. The Court highlights that “areas that were 

approximately 90% HVAP were shuffled among Districts 1, 3, and 4—‘creating the illusion they 

 

4

 The Court also outright rejected that partisan considerations formed any part of the New Plan. 

DE 94 p.40. The Court bases this on the statements of one commissioner. Id. The political 

consideration was laid out in the record after consultations with the Commissioners. DE 82-2 

p.9:9 to 11:2; DE 77 pp.24-25. When it comes to political gerrymandering, courts lack 

jurisdiction to undo what is essentially a political question. Rucho v. Common Cause, 139 S. Ct. 

2484, 2507-08 (U.S. 2019). Yet that is what the Court did in the Mandated Plan. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 7 of 16
8

changed while maintaining their demographics.’” DE 94 p.27. This is precisely what the 

Mandated Plan does. In the Enjoined Plan those districts were 89.5%, 88.3% and 89.5% 

Hispanic Voting Age Population (HVAP) respectively. DE 82-12 p.14. In the New Plan they 

are 89.7%, 84.5% and 90%. Id. p.15. In the Mandated Plan they are 85.8% 85.1% and 95.6% 

respectively. Id. p.16. The Mandated Plan simply shuffles Hispanics from Districts 1 and 3 to 

District 4 to effect maximal packing in District 4. Likewise the Court observed District 2 

“retains a large Anglo population.” DE 94 p.27. The White Voting Age Population (WVAP) in 

the New Plan is 36.5%. In the Enjoined Plan it was 37.4%. In the Mandated Plan it is 37.9%. 

The only real difference between the New Plan and the Mandated Plan is that the Commission 

was entitled to a presumption of constitutionality and good faith, the Plaintiffs and the Court are 

not. 

As it did in the injunction, the Court focuses on District 5 to finds alleged racial 

gerrymandering. The Court’s discussion of the borders of Overtown and Morningside are 

misplaced. Racial motivations are not unconstitutional where, like here, it is a VRA protected 

district as the Court acknowledges. DE 94 p.4 n.2. The Court goes onto find that there is 

insufficient evidence District 5 is narrowly tailored. DE 94 pp.38-39. 

As the R&R found, which was adopted and became part of the injunction, 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. Yet this is precisely the burden the Court is now imposing. 

When a State justifies the predominant use of race in redistricting on the basis of 

the need to comply with the Voting Rights Act, “the narrow tailoring requirement 

insists only that the legislature have a strong basis in evidence in support of the 

(race-based) choice that it has made.” ... [T]he 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.” 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 8 of 16
9

Bethune-Hill v. Va. State Bd. of Elections (Bethune-Hill I), 580 U.S. 178, 187 (2017)(quoting 

Alabama Legis. Black Caucus v. Alabama (ALBC I), 575 U.S. 254 (2015)). The City does not 

have to prove that it pared the majority down to the minimum with mathematical precision. 

“The law cannot insist that a state legislature, when redistricting, determine 

precisely what percent minority population § 5 demands.” The question is 

whether the State had “good reasons” to believe a 55% BVAP floor was 

necessary to avoid liability under § 5. The State did have good reasons under 

these circumstances. Holding otherwise would afford state legislatures too little 

breathing room, leaving them “trapped between the competing hazards of 

liability” under the Voting Rights Act and the Equal Protection Clause. 

Id. at 196 (citations omitted). 

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.5 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). 

 

5 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.”) 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 9 of 16
10

To undercut the facial validity of a bare 50%,6 the injunction observed that the BCVAP 

of the Enjoined Plan was 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. No 

case has required a City, when drawing a district under the VRA, to base it on the citizen

population.7

 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 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. 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). 

This is truly novel because no case has ever held that. The Court in Jacksonville Branch 

of NAACP v. City of Jacksonville (“Jacksonville III”), No. 3:22-cv-493-MMH-LLL, 2022 WL 

 

6

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

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

7

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

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

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 10 of 16
11

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 finding that there was insufficient proof that Alford’s 

analysis was presented prior to the passage of the New Plan. 

The Order does not address the question of whether District 5 in the New Plan is actually 

narrowly tailored. It nevertheless goes on to adopt a plan with very similar percentages. The 

BVAP in the Mandated Plan is 48.4% and in the New Plan it is 50.3%. In the Injunction, this 

Court focused on the BCVAP. The BCVAP in the Mandated Plan is 55.8%. In the New Plan it 

is 57.4%. Bearing in mind that mathematical precision is not required, if the Mandated Plan is 

constitutional, then so is the New Plan. The Court has enjoined a constitutional plan three 

months before an election. 

III. 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 on the eve 

of an election deadline. The Court has substantially changed the shapes of districts where 

commissioners have already been running, and drawn one commissioner out if his district. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 11 of 16
12

Compare DE 24-22 to DE 94 p.15. 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. 

The Court drew an incumbent out of the districts he represents 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. 

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. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 12 of 16
13

IV. 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 when the alleged racial districts 

were first drawn. 

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 alleged harms have been 

in place for every election cycle. If anything, the New Plan lessens those alleged harms, and the 

Mandated Plan exacerbates them. 

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, 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. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 13 of 16
14

V. 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 next election is November 7, 

2023, three months and a week away. 

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. This Court is “tinkering” with the election law less than four months before an 

election by mandating a new plan that significantly changes three incumbants’ districts. This 

new plan was not even disclosed by Plaintiffs until three weeks ago. The Court then issued an 

order mandating that plan Sunday, July 30, 2023, directing a submission of all materials 

necessary to implement it the next day, one day before the deadline provided by the Miami-Dade 

County elections department. DE 94 p.6. 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). The Order throws out the core of districts for the entire 

redistricting plan that have been in place since 1997 and draws an incumbent out of his district. 

The change is sweeping and disruptive. Purcell is present. The injunction should be stayed. 

VI. Public Interest 

The Order 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 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 14 of 16
15

not meet its burden of establishing that it had sufficient support for selecting 50%. The 

Mandated Plan dilutes their vote in District 5, automatically creating risk of a section 2 VRA 

challenge. As set forth above, the Mandated Plan throws the upcoming election into chaos 

makes sweeping changes to three districts that have elections in November, and draws an 

incumbent out of his district, arguably in violation of the residency requirements. Staying the 

injunction serves the public interest. 

Certificate of Emergency 

After reviewing the facts and researching applicable legal principles, I certify that this 

motion in fact presents a true emergency (as opposed to a matter that may need only expedited 

treatment) and requires an immediate ruling because the Court would not be able to provide 

meaningful relief to a critical, non-routine issue after the expiration of seven days. I understand 

that an unwarranted certification may lead to sanctions. 

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 Sunday, July 30, 2023 with opposing counsel. They 

did not respond. Because the order issue on a Sunday and required compliance by the next day, 

this motion is being filed. 

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

 Dated this 30th day of July, 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 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 15 of 16
16

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 

CERTIFICATE OF SERVICE 

 I hereby certify that on July 30, 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. 

Case 1:22-cv-24066-KMM Document 97 Entered on FLSD Docket 07/30/2023 Page 16 of 16