TALLAHASSEE
Gov. Ron DeSantis’ political strategy has won national attention for his ability to shrewdly select culture war issues and use a compliant Florida Legislature to advance them.
But while the agenda has drawn more than 15 lawsuits, it has so far yielded few legal victories, and cost Florida taxpayers nearly $17 million in legal fees to date.
In case after case, courts have scaled back, thrown out, or left in legal limbo rules and laws that impose restrictions on social media giants, limit voting, curb gender-related healthcare, influence speech in the workplace, college campuses and classrooms and create new crimes for peaceful protests.
DeSantis has had a few successes. Courts sided with the administration’s challenge to the U.S. Centers for Disease Control’s safety rules for cruise companies. An appeals court reinstated the state’s ban on mask mandates in school districts during the peak of the COVID-19 pandemic, and the same appellate court refused to put on hold the governor’s congressional redistricting map that gave Republicans four additional seats in the U.S. House.
Trial court rulings are also pending on lawsuits challenging his ousting of a Democratic state attorney, relocating migrants from Texas to Martha’s Vineyard, the congressional redistricting map, a new 15-week abortion ban, and a measure requiring viewpoint surveys of students at employees on university campuses.
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But of the 15 culture war policies under fire from critics who say they violate constitutional rights, only the bans on vaccine passports and mask mandates are in the clear.
The cost to taxpayers for these legal battles has been at least $16.7 million, according to transaction disclosures posted on the state’s contract web site and reviewed by the Miami Herald and Tampa Bay Times.
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But DeSantis’ critics say the governor’s win-loss record is irrelevant to him. They see his strategy as one intended to garner headlines and use the state treasury to pursue performative policies intended to appeal to voters in the Republican base as he positions himself to run for president in 2024.
“Most people who go to court actually want to win,’’ said Bob Jarvis, a professor of law at Nova Southeastern University. “That is not DeSantis’ objective. He is all about winning the news cycle.”
To DeSantis’ supporters, however, the governor’s penchant for engaging in issues destined for litigation is a winning formula that demonstrates a willingness to challenge institutions at a time when the public is angry and distrusting of government and corporations.
They point to his 19-point win over Democratic challenger Charlie Crist in his reelection bid, new national polls that show him beating former President Donald Trump in a 2024 GOP primary, and moves by other Republican-led states to adopt similar policies as evidence he has effectively tapped into a cultural zeitgeist in polarized times.
“We fight the woke in the Legislature,” DeSantis said in his election night victory speech. “We fight the woke in the schools. We fight the woke in the corporations. We will never, ever surrender to the woke mob. Florida is where woke goes to die.”
READ MORE: The culture wars have their day in court: Where DeSantis has won and lost
DeSantis has never defined what he means by “woke,” but the conservative editorial magazine National Review considers it “progressive overreach” and compared the Florida governor’s political strategy to that of former President Donald Trump.
“As with Trump, DeSantis’s political aggressiveness wins him admirers,’’ wrote staff writer Madeleine Kearns in November. “The tactics that some conservatives consider morally or philosophically dubious appear only to intensify his popularity.”
Conservative shift
But to conservatives in the middle of the political spectrum like David French, a lawyer, writer and former contributor to National Review, DeSantis “personifies the emergence of the big government conservative … a faction on the right that wants to use government power to directly confront the most disliked institutions.”
“This is a big change on the right because previously for decades before these last couple of years, state legislatures were tending to pass laws that protected free speech in corporations as opposed to suppressing it,’’ French said in an interview.
“Because he has the Florida Legislature in the palm of his hand, he is able to do things and pass things in the real world that nobody else in Congress can,’’ he said.
As a result, the carefully chosen fights garner DeSantis “an enormous amount of attention on right wing media, which is more radicalized than the conservative leaning public.’’
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But, French warns, DeSantis’ political philosophy that infringes on business freedoms by “expanding government authority” could run into problems with judges appointed by Republicans at the behest of the conservative Federalist Society.
“The coalition of people most likely to reject this approach are not the Democrat-appointed but the Republican-appointed judges of this last generation: originalists and texturalists who have taken a dim view of government efforts to expand control over speech,’’ he said.
DeSantis’ Press Secretary Bryan Griffin said the ultimate goal of the governor’s policies “is to do what is right and best for the people of Florida. Ask those who are bringing the lawsuits about the cost to taxpayers that they are incurring.”
He said many of the lawsuits “have been brought by activist groups against duly enacted pieces of legislation. They can’t win at the ballot box, so they turn to the courts seeking to enact their agenda by judicial fiat.”
“We will not back down, and we will offer the best defense possible,’’ he said.
READ MORE: Another Florida voter fraud case dismissed. Miami judge rejects statewide prosecutor
Jarvis said that DeSantis, who graduated from Harvard Law School, “didn’t get his law degree out of a crackerjack box” and “should know” that many of the policies he has pushed will be dismantled by the courts.
“He does not care if he wins or loses. In fact, if he wins, he can say, ‘See, I was right.’ And, if he loses, it’s just as good as winning because then he can say, ‘there’s a liberal conspiracy and we have to get the libs out,’ Jarvis said.
“But when your goal is not to win or lose, and you have a blank check from the taxpayers then really it’s all about: ‘Will this lawsuit generate headlines? And will this allow me to control the narrative?,’’’ he said.
French agrees with Jarvis that DeSantis knows the courts will scale back his agenda.
“He’s strategically picking these fights and the dynamic is really interesting because in many of the cases he has to know he is likely to lose in court,’’ French said. “But I don’t see him paying any political price for losing these lawsuits.”
French believes establishment Republicans are gravitating to DeSantis because, unlike Trump, they don’t see him as erratic and willing to defy the rule of law.
But Jarvis disagrees, pointing to DeSantis’ Florida Supreme Court nomination of Renetha Francis, the Palm Beach County circuit court judge who was not eligible to serve because she had not been a member of the bar for 10 years.
The court threw out the appointment. After she reached the required term, DeSantis appointed her again.
There are other instances in which DeSantis has seemingly picked a court fight. Legislative staffers wrote a legal analysis warning that the prohibition on social media sites permanently banning political candidates, among other things, might violate the First Amendment, but lawmakers passed it and DeSantis signed it into law. A federal district court threw out the law as unconstitutional and an appeals court, which included Republican judges, agreed.
And although House and Senate Republicans initially resisted DeSantis’ push to diminish Black voting districts in the congressional map, DeSantis threatened to veto their plan, so they relented and passed it anyway. The map is the subject of multiple lawsuits.
Democrat wants more transparency
State Sen. Tina Polsky, a Boca Raton Republican, said taxpayers should not be footing the bill to defend “laws intended to be political stunts.”
“Everything I think he does is just for the headline because he’s running for president,’’ she said. “And he doesn’t care if it’s constitutional, doesn’t care how much taxpayer money they have to spend defending it in court.”
She said she is filing legislation to require more transparency in the hiring of private law firms, including a request for proposal process that would impose more competition into the selection process and explain why Florida’s roster of state-employed lawyers cannot be used.
“We shouldn’t just go with DeSantis as friends and the highest bidder because that’s basically what’s happening and we’re paying a fortune,’’ Polsky said this week.
This story was originally published December 22, 2022 6:00 AM.