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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 BRANCH OF THE NAACP; 

CLARICE COOPER; YANELIS VALDES; 

JARED JOHNSON; and ALEXANDER 

CONTRERAS, 

 Plaintiffs, 

v. 

CITY OF MIAMI, 

 Defendant. 

________________________________________/ 

DEFENDANT’S MEMORANDUM OF LAW IN RESPONSE TO PLAINTIFFS’ 

OBJECTIONS TO THE CITY’S PROPOSED INTERIM REMEDIAL PLAN 

 

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Defendant, City of Miami (the “City”) responds to the Objections filed by Plaintiffs [DE 83 & DE 

82]. On June 14, 2023, the City of Miami passed Resolution 23-271, adopting a new redistricting 

plan for the City, the Enacted Plan, which it filed with this Court. DE 77. It was not an interim 

remedial plan as labelled by Plaintiffs. Their attacks on the Enacted Plan are moot. This is 

addressed in the City‘s separate Motion to Dismiss which will not be reprised here. 

Prior to the injunction, Plaintiffs were vague about any specifics that they sought. The 

thrust of Plaintiffs’ complaints, both originally and in the current objection, was to decry the racial 

division of the City of Miami into three Hispanic Districts, a Black District and what they called 

an “Anglo” District. After the injunction issued, Plaintiffs then proposed four of their own maps, 

all of which divide the City into three Hispanic Districts, a Black District and a coastal District 

with a large White population. Plaintiffs’ proposed maps are fundamentally similar to the City’s. 

The Enacted Plan 

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All five plans have a coastal District 2 that is a non-minority majority. 1 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. While Plaintiffs previously 

accused the City of “packing” Black voters into District 5 by looking at Black Citizen Voting Age 

Population (BCVAP), Plaintiffs and the City now seem to be essentially in agreement on the size 

 

1

 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. Id. 

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of that District. Plan 3’s BCVAP is 56.5% and Plan 4’s BCVAP is 55.8% compared to the City’s 

57.4%. Compare DE 82-1 p.15 to 16; Exhibit A. If their plan is narrowly tailored, then so is the 

City’s. See Exhibit B (Alford Report). 

Rather than starting with the Enjoined Plan or the plan passed in 2013, the starting place 

for the Enacted Plan was Plaintiff’s own Plan 2.2

 The entire process was explained by the City’s 

consultant, Mr. De Grandy. DE 82-2 p.8:3-16:13. Plaintiffs also created a VRA-protected Black 

district in the North, a coastal district, and three Hispanic districts in the West. The parties agree 

on the general parameters. Plaintiffs vacillated over what parts of Overtown should be included 

in District 5, if at all, but their later plans include parts of it.3 There are two common themes in 

Plaintiffs maps: (1) they preserve the integrity of Coconut Grove within a single coastal district, 

and (2) they keep the more politically conservative western part of the City packed into a single 

district, District 4. Neither of those goals is constitutionally required. It is clear that Plaintiffs' 

goal is to simply substitute their political judgment for that of the elected City Commission. 

One primary difference between Plaintiffs’ proposed plans and the Enacted Plan, is that 

Plaintiffs pack the Hispanic in the western part of the City into District 4 so that District 1 no 

 

2

 The City saw Plan 3 the night before the meeting and Plan 4 when Plaintiffs filed the objection. 

3

 Plaintiffs quibble over the boundaries of Overtown, an undefined neighborhood, and cite to the 

boundaries of the Overtown Advisory Board in the City Code (§2-1051), [DE 83 pp.14-16; DE 

82-12 (Abott report)], which states that the boundaries of this purely advisory board are 

approximate and meant to be construed expansively. Plaintiffs are simply substituting their 

judgment for Commissioner King’s. Regardless, as a VRA District, Plaintiffs concede race is a 

valid consideration as long as it is narrowly tailored, which the Plaintiffs can no longer dispute. 

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longer has any part of the Flagami area. Plaintiffs’ plans remove the most conservative voters 

from District 1 by pushing it further East, making it a more liberal seat on the Commission. Id. 

9:9-10:22. This also removes the downtown area from District 5, which Commissioner King 

sought as an economic engine for her district, the poorest district. Id. 12:12-13:13. As with District 

5, many of the requests by Commissioners were geared toward maintaining communities in which 

they had invested District resources. Id. 11:23-12:5. That is why District 5 sought to maintain 

Overtown (id. 12:12-13:13); District 4, Shenandoah (id. at 15:2-12); and District 3, Little Havana 

(id. 15:13-17). Commissioners publicly allocated blocks based on where they had invested 

resources in parks. Id. 35:11-36:23. In light of the moves, they also reallocated other 

neighborhoods on the record to maintain population variances at acceptable levels. Id. 35:11-

39:10. All of this was done without any discussion of race. 

 Plaintiffs confuse the procedural posture of this case and the question for the Court. This 

Court did not invalidate the City’s previous plan. It entered a preliminary injunction. Plaintiff’s 

citation of case law lifting the burden of proof is misplaced.4

 Plaintiff still bears the burden of 

establishing that “race was the predominant factor motivating the legislature’s decision to place a 

significant number of voters within or without a particular district.” Cooper v. Harris, 581 U.S. 

285, 291 (2017) (emphasis added)(quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)); see also 

Abbott v. Perez, 138 S.Ct. 2305, 2324 (2018)(“The allocation of the burden of proof and the 

presumption of legislative good faith are not changed by a finding of past discrimination.”). There 

is still a presumption of good faith that applies to the Enacted Plan; thus, even if a move changes 

 

4

 The plan in Wilson v. Jones, 130 F. Supp. 2d 1315, 1322 (S.D. Ala.), was invalidated after a full 

trial. 45 F.Supp.2d 945 (S.D.Ala 1999). 

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the racial makeup of a district, it should not be presumed to have been made for predominantly 

racial reasons. See Abbott, 138 S. Ct. at 2324 (2018) (recognizing the presumption of good faith 

that attaches to legislative redistricting plans). The City’s consultant and the Commissioners 

explained their motives on the record.5

 The City maintains the ethnically uniform Flagami in two 

districts for political considerations.6 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). Faced with this, Plaintiffs submit the report of Dr. Abott who seeks 

to opine on the credibility of the Commissioners’ assertions.7 The only question for the Court is 

whether race was a predominant motive for placing significant numbers of individuals within or 

without a particular district. It is absurd to claim it is when Plaintiff’s own plans have essentially 

the same racial breakdown. They do not seek to undo any racial gerrymander. They simply seek 

to usurp the Commission’s role and draw the districts to serve their own political preferences. 

Perhaps the most suspect of Plaintiff’s political preferences is their insistence on 

preserving all of the Coconut Grove neighborhoods together, thus causing their District 2 in most 

plans to have a higher WVAP than the Enacted Plan. Most of the people who spoke at the meeting 

were from Coconut Grove urging that Coconut Grove stay “united.” DE 82-2 18:2-27:5. Plaintiffs 

are using race as a proxy to achieve this goal. The Commission observed that Coconut Grove is a 

 

5

 Plaintiffs, claiming altruistic motives, fail to provide any record evidence of who drew their map, 

what data was used, or any testimony under oath about the how the map was constructed. 

6

 Plaintiffs assert the Court must be wary of political data closely correlated with race (DE 83 p.6), 

but the division of Flagami is not a racial division. Plaintiffs consolidate an area that has been 

split for almost three decades, with no explanation and no public demand to do so. 

7

 As set forth in the separate motion to strike, this is an inappropriate area for expert testimony. 

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large area that consists of separate neighborhoods. DE 82-2 39:11-41:5. The Commission had 

valid, non-racial reasons for the lines it drew. Coconut Grove is in District 2 which had to shed 

population. Commissioner Carollo has a house in Coconut Grove, and the Enjoined Plan 

incorporated that part of Coconut Grove into his District 3.8

 DE 24-22. In granting the injunction, 

this Court noted that the incorporation was an irregular “foot” and observed that Commissioner 

Reyes’s proposed plan which smoothed out the foot, would have “less discriminatory impact.” 

Compare R&R (DE 52 p.77 & Order (DE 60 p.14) to Motion (DE 26 p.19) and Abott Report (DE 

24-31 pp.20-21). This ruling was explained to the Commission and incorporated into the Enacted 

Plan. DE 77 p.31; DE 82-2 14:4-8. 

Dr. Abott asserts that moving that same area (Area 11) is now racially motivated. DE 82-

12 pp.6-7, 13. Drawing Commissioner Carollo’s house into his district is not a “racial motivation” 

no matter how many experts seek to opine to the contrary. Dr. Abott now refers to District 2, the 

so-called “Anglo District” from the injunction motion, as the most racially “diverse” (DE 82-12 

p.6), and Plaintiffs urge this Court to adopt their plans many of which have a higher WVAP in 

District 2 than the Enacted Plan. They attacked the Enjoined Plan for alleged racial segregation 

and now urge this Court to impose greater racial segregation. 

Plaintiffs also claim race was the primary motive because, at the start of the Consultant’s 

presentation, he critiqued Plaintiffs’ plans for racial packing. At no other point was race discussed

except to the extent it was necessary to confirm that District 5 would be a VRA performing district. 

Other than that, racial data was not presented. In order to falsely accuse the City Commission of 

redistricting based upon race and to baselessly assert that the Commission voted to bunch together 

ethnic borders to have an “Afro American . . . and non-Hispanic white . . . in representing the city 

 

8

 Florida Law Chapter 2023-101, § 2, effective July 1, 2023, did not apply to the Enacted Plan. 

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of Miami” (DE 83 pp.8-9), Plaintiffs cite to a May 11 meeting, not the June 14 meeting adopting 

the Enacted Plan. At the May 11 meeting, redistricting plans were not considered and the 

consultant was not present. Plaintiffs fill their brief with snippets of quotes from the meeting, 

taken out of context, or simply misleadingly editorialized. The transcripts speak for themselves 

and are utterly devoid of racial intent. On May 11, the Commission considered whether to abandon 

districts and go back to at-large elections “as it used to be before.” DE 82-1 2:7-13. A 

Commissioner discussed what was on the record from 1997, “why single member districts were 

created back then” to reflect the diversity of the City and provide an opportunity to elect an African

American and a non-Hispanic White. Id. 4:16-21 (emphasis added). Commissioner Reyes 

summarized the ACLU’s position, in which they accused the City of gerrymandering, and said that 

at-large districts could eliminate diversity on the Commission. 

I’m gonna say the ACLU, they’re claiming that it was not fair. You see? You be 

careful what you wish for because the way that we have been dealing for a long 

time, every time that they have been since day one when their boundaries were 

drawn, it was to assure diversity in the city of Miami. And the only way that we 

can assure diversity of the city of Miami is by – I’m going to call a spade a spade – 

but gerrymandering. We have to bunch together ethnicity, ethnic borders in order 

to be able to have Afro American, make sure that they are represented, and nonHispanic white in the – in representing the city of Miami. So, if they are – now they 

are accusing us of gerrymandering, if we go now on and instead of having districts 

and we don’t draw the districts to assure ourself that we have that representation. 

You have a point there and see, what do they think, because they are going to be 

the culprit of eliminating diversity in the city of Miami government. 

Id. 6:2-14. Commissioner Diaz de la Portilla stated that if they had at-large districts the City would 

probably elect five Hispanics. Id. 7:20-21. Commissioner Reyes agreed this could be the effect. 

Id. 13:11-14. Commissioner Reyes wanted to preserve the VRA District 5 and to weigh all options. 

Manolo Reyes: And accepted by us. Therefore, I am suggesting that we ask our 

expert, Mr. De Grandy, to redraw a map, and – I mean, meet with us and start 

redrawing a map, that will guarantee that ten years from now we’re going to have 

the diversity in this – in the, in the, in the, in the city government and we are going 

to elect an Afro American to a seat, that they’re going to be properly represented, 

as well as other groups. And it is not binding, the maps, it’s not binding, but I think 

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that we should be prepared. Be prepared because I don’t want a judge to draw the 

map. We – I agree with you. We, if we’re going to draw a map, we draw the map. 

That is my suggestion, I don’t know if you guys agree with it and – 

Alex Díaz de la Portilla: Yes I do. And also, to explore obviously my original point 

of the pocket item is to explore the at large districts to look at a possible alternatives, 

that’s directive. This will be the motion, right, including yours as an amendment 

to what we’re doing, we’ll do it together. 

Manolo Reyes: Yes. 

Alex Díaz de la Portilla: Look at all the possible options, that gives this 

policymaking body the options. 

Id. 17:9-23. The Commissioners were also concerned about not being drawn out of their districts. 

Id. 18:7:12. Plaintiffs took that discussion of at-large districts and tortured it into a direction to 

draw three Hispanic Districts, an Anglo District and a Black District. It is simply not the case. 

Plaintiffs also throw out a red herring, attacking the notice process. DE 83 p.5, DE 83-1. 

Plaintiffs cannot pursue a claim in Federal Court that a State entity failed to comply with State 

law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121-25 (1984). Additionally, the 

Supreme Court in North Carolina v. Covington (“Covington II”), 138 S. Ct. 2548, 2553 (2018), 

cited by Plaintiffs, overturned findings that some of the Districts created as part of the remedial 

process in that case violated a State Constitutional ban on mid-year redistricting. 

The District Court's decision to override the legislature's remedial map on that basis 

was clear error. “[S]tate legislatures have primary jurisdiction over legislative 

reapportionment,” ... and a legislature's “freedom of choice to devise substitutes 

for an apportionment plan found unconstitutional, either as a whole or in part, 

should not be restricted beyond the clear commands” of federal law.... A district 

court is “not free ... to disregard the political program of” a state legislature on other 

bases. ... Once the District Court had ensured that the racial gerrymanders at issue 

in this case were remedied, its proper role in North Carolina's legislative districting 

process was at an end.

Id. at 2554-55 (citations omitted). 

Lastly, Plaintiffs launch a scurrilous attack on Commissioner King based upon a snippet 

of a conversation allegedly eavesdropped upon by Plaintiff’s counsel. Injecting himself as a 

witness, Plaintiffs’ counsel claims he overheard Commissioner King talking about not wanting 

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“white affluent” areas in her district. Because he was eavesdropping, counsel provides no context 

and cannot quote even a complete sentence. 9 His more contemporaneous text only provided that 

she said she didn’t want some white affluent areas... Perhaps she was simply saying that she did 

not want people from the White affluent areas dictating her redistricting decisions. The majority 

of the public to speak were from Coconut Grove. The Morningside Community was split between 

Districts 2 and 5 and members of the public complained. The Commissioners from District 2 & 5 

publicly discussed keeping that community together and where it should go. DE 82-2 43:15-46:23. 

Even though District 5 is a VRA protected District and race could constitutionally be considered, 

there was nothing nefarious about the conversation or the decision. 

The lynchpin of the injunction and Plaintiff’s case was whether the 50.3% BVAP of 

District 5 was arbitrary or whether the City had a sufficient basis for deeming it sufficiently 

narrowly tailored. If it was sufficiently narrowly tailored, then none of the so-called racial 

gerrymandering around it would be constitutional. As set forth in the report of John Alford, the 

BVAP and BCVAP of District 5 are narrowly tailored. Exhibit B. As Dr. Alford observes, if the 

56.5% BCVAP of Plaintiffs’ Plan 3 is narrowly tailored then so is the City’s 57.4.% BCVAP. 

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 

 

9

 Plaintiffs’ counsel’s only quoted sentence is “I’m looking out for the minorities.” DE 82-17 ¶ 

20. One would think that would be part of every Commissioner’s job. Plaintiff’s counsel also 

implies that she was speaking with counsel at the time. If he could overhear conversations in the 

room with counsel, he was professionally obligated to remove himself, not take notes. 

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to satisfy the Voting Rights Act, “even if a court does not find that the actions were 

necessary for statutory compliance.” 

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). Dr. Alford demonstrates that the performance in District 5 may 

not be as robust as Dr. Moy claims, noting recent primary elections involving Black and White 

candidates show much narrower margins than those observed by Dr. Moy.10 Exhibit B. 

As Dr. Alford points out, the remainder of Plaintiff’s case is really about swapping 

population between the three Hispanic districts to claim their plans are “more different” from the 

Enjoined Plan, and to change the political performance of those districts. Exhibit B. It is not a 

contest to see who can create the most compact districts or the most different. Plaintiffs are not a 

competing Commission. As longs as the Enacted Plan is not unconstitutional, it cannot be enjoined 

in order to swap Plaintiff’s political decisions for the elected Commission’s decisions. 

The City respectfully requests that the Court not disturb the duly adopted map in Resolution 

23-271, and dismiss the Complaint as moot. If the Court is inclined to conduct an evidentiary 

hearing, the City requests the opportunity to depose Plaintiffs’ witnesses and experts. 

 

There is no duty to memorialize the analysis at the meeting or compile a comprehensive record. 

Bethune Hill, 580 U.S. at 194-95. 

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 Respectfully submitted, 

GRAYROBINSON, P.A.

333 S.E. 2nd Avenue, Suite 3200 

Miami, Florida 33131 

Telephone: (305) 416-6880 

Facsimile: (305) 416-6887 

 By: s/ Christopher N. Johnson 

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 

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 

CITY OF MIAMI 

VICTORIA MENDEZ, 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 

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CERTIFICATE OF SERVICE 

 I hereby certify that on July 12, 2023, I electronically filed the foregoing with the Clerk of the 

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

counsel of record or pro se parties either via transmission of Notice of Electronic Filing generated by 

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

receive electronically Notices of Electronic Filing. 

 By: s/ Christopher N. Johnson 

Christopher N. Johnson, Esq. 

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