Governor Elbridge Gerry gave the world the nickname "Gerrymandering." Shall we take the name of MARK REICHELDERFER and call it "REICHELDERFERING" as practiced in FLORI-DUH, the DUMBSHINE STATE?
The Associated Press predicts an "upheaval." There's the understatement of the year:
Florida's congressional districts rejected as gerrymandered
By BRENDAN FARRINGTON
Jul. 9, 2015 2:33 PM EDT
TALLAHASSEE, Fla. (AP) — The Florida Supreme Court ruled Thursday that the state's congressional maps don't meet the requirements of a voter-approved constitutional amendment that prohibits political lines from being drawn to favor incumbents or a political party. The court ordered the Legislature to try drawing the maps again.
The ruling means there could be an upheaval as incumbents seek re-election and candidates from both parties seek to fill open seats. Florida has 27 congressional districts and the ruling could affect 22 of them. The court ordered eight districts be redrawn, but in doing so, 14 districts that border might also have to be changed.
The court told the Legislature to act swiftly since qualifying for congressional races is approaching. Candidates must file their paperwork to get on the 2016 ballot during the first week in May.
The ruling chastised the Republican-led Legislature not only for working with political operatives to violate the constitution in order to benefit the GOP, but also for making important decisions behind closed doors and destroying documents and deleting emails when they knew the maps would be challenged in court.
"The Legislature itself proclaimed that it would conduct the most open and transparent redistricting process in the history of the state, and then made important decisions, affecting numerous districts in the enacted map, outside the purview of public scrutiny," the ruling said.
The court questioned whether the full extent of the political maneuver was exposed in the case.
"Since many of the e-mails were deleted or destroyed, we still may have only a partial picture of the behind-the-scenes political tactics," Justice Barbara Pariente wrote for the majority in the 5-2 opinion. Justices Charles Canady and Ricky Polston dissented.
The court recommended the Legislature make all its decision in public when it redraws the maps and to save all emails and documents related to the effort.
The Legislature will have to have the new maps ready by October, which will require a special session to approve them. House Speaker Steve Crisafulli and Senate President Andy Gardiner were reviewing the decision and neither planned to comment on it Thursday.
Florida has 17 Republican U.S. House members and 10 Democrats despite Democrats having an advantage in voter registration. Florida has 4.6 million Democrats and 4.2 million Republicans.
The ruling will affect districts held by Democratic Reps. Corrine Brown, Kathy Castor, Ted Deutch and Lois Frankel and Republican Reps. Mario Diaz-Balart, Carlos Curbelo, Ileana Ros-Lehtinen and David Jolly.
Brown, who's long, narrow, oddly-shaped district is often used as the most obvious case of a gerrymandered district, criticized the opinion. Her district is designed to contain a majority of African-Americans.
"Minority communities do not live in compact, cookie-cutter like neighborhoods, and excessive adherence to district 'compactness,' while ignoring the maintenance of minority access districts, fragments minority communities across the state," she said in a statement emailed by her office.
A coalition that included the League of Women Voters challenged the lines, saying Republicans who drew them up ignored the new constitutional requirements approved by voters in 2010. A lower court agreed that GOP leaders and operatives made a mockery of the amendment, but only ordered two central Florida districts be redrawn.
The Supreme Court said that wasn't good enough.
"This is a complete victory for the people of Florida who passed the Fair Districts Amendment. The court has made it abundantly clear that partisan gerrymandering will not be tolerated. We look forward to the legislature following the constitution and the directives of the court," said David King, a lawyer for the coalition.
House Speaker Steve Crisafulli and Senate President Andy Gardiner were reviewing the decision and neither planned to comment on it Thursday.
See below.
Republican operative MARC REICHELDERFER, the apparatchik who drew illegal, unconsitutiional Congressional district maps for Florida Republican legislature:"Genius map-drawer" or tortfeasing civil rights violating Republican criminal?
Thanks are due to Supreme Court Justice Barbara Pariente, who wrote the Court's opinion. Thanks are also due to the League of Women Voters, which led the groups that brought the case, to Judge Terry Lewis who heard the case (reversed on two evidentiary errors that led the Supreme Court to expand the remedy), to David King and other plaintiff's lawyers, and to Jacksonville trial lawyer Wayne Hogan, who wrote the Fair Districting Constitutional Amendments.
Under today's Florida Supreme Court decision, the legislature will be afforded 100 days within which to redraw: "We relinquish this case to the trial court for a period of 100 days from the date of this opinion, or Saturday, October 17, 2015, with directions that it require the Legislature to redraw, on an expedited basis, Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other districts affected by the redrawing, pursuant to the guidelines set forth in this opinion."
Elbridge Gerry gave the world the nickname "Gerrymandering." Shall we take the name of MARK REICHELDERFER and call it "MARK REICHELDERFERING as practiced in FLORI-DUH, the DUMBSHINE STATE?
Beautiful decision -- read it -- here it is -- what do y'all reckon?
Trial Judge Terry Lewis held:
[The challengers’] theory of the case regarding improper intent is that Republican leadership in the House and the Senate, their key staff members, and a small group of Republican political consultants conspired to avoid the effective application of the Fair District Amendments to the redistricting process and thereby successfully fashioned a congressional map that favors the Republican Party and its incumbents. The strategy they came up with, according to the [challengers], was to present to the public a redistricting process that was transparent and open to the public, and free from partisan influences, but to hide from the public another secretive process. In this secretive process, the political consultants would make suggestions and submit their own partisan maps to the Legislature through that public process, but conceal their actions by using proxies, third persons who would be viewed as “concerned citizens,” to speak at public forums from scripts written by the consultants and to submit proposed maps in their names to the Legislature, which were drawn by the consultants.
What is clear to me from the evidence, as described in more detail below, is that this group of Republican political consultants or operatives did in fact conspire to manipulate and influence the redistricting process. They accomplished this by writing scripts for and organizing groups of people to attend the public hearings to advocate for adoption of certain components or characteristics in the maps, and by submitting maps and partial maps through the public process, all with the intention of obtaining enacted maps for the State House and Senate and for Congress that would favor the Republican Party.
They made a mockery of the Legislature’s proclaimed transparent and open process of redistricting by doing all of this in the shadow of that process, utilizing the access it gave them to the decision makers, but going to great lengths to conceal from the public their plan and their participation in it. They were successful in their efforts to influence the redistricting process and the congressional plan under review here. And they might have successfully concealed their scheme and their actions from the public had it not been for the [challengers’] determined efforts to uncover it in this case.
The closer question is whether the Legislature in general, or the leadership and staff principally involved in drawing the maps, knowingly joined in this plan, or were duped by the operatives in the same way as the general public. The Defendants argue that if such a conspiracy existed, there is no proof that anyone in the Legislature was a part of it. If portions of the operatives’ maps found their way into the enacted maps, they say, it was not because leadership or staff were told or knew they came from this group, but rather because the staff, unaware of their origins, saw the proposals as improving the draft maps they were working on.
The most compelling evidence in support of this contention of the Defendants is the testimony of the staff members who did the bulk of the actual map drawing for the Legislature. I had the ability to judge the demeanor of Alex Kelly, John Guthrie and Jason Poreda at trial and found each to be frank, straightforward and credible. I conclude that they were not a part of the conspiracy, nor directly aware of it, and that significant efforts were made by them and their bosses to insulate them from direct partisan influence. I accept that their motivation in drawing draft maps for consideration of the Legislature was to produce a final map which would comply with all the requirements of the Fair District Amendments, as their superiors had directed them.
That being said, the circumstantial evidence introduced at trial convinces me that the political operatives managed to find other avenues, other ways to infiltrate and influence the Legislature, to obtain the necessary cooperation and collaboration to ensure that their plan was realized, at least in part. They managed to taint the redistricting process and the resulting map with improper partisan intent. There is just too much circumstantial evidence of it, too many coincidences, for me to conclude otherwise.
(Emphasis supplied.)
Our Florida Supreme Court held:
We also emphasize that since many of the e-mails were deleted or destroyed, we still may have only a partial picture of the behind-the-scenes political tactics. As the trial court found, “the Legislators and the political operatives systematically deleted almost all of their e-mails and other documentation relating to redistricting.” The Legislature did so even though it had acknowledged that litigation over the redistricting plan was “a moral certainty.” Indeed, if not for the production of some documents from the political consultants, including Marc Reichelderfer and Pat Bainter, there would be no record of the separate process undertaken by the consultants and no way to establish whether or not this process involved the collusion of the Legislature and ultimately affected the enacted map, as the trial court concluded.
We further understand that “taking the politics out of politics” is itself a difficult challenge, considering that partisan political gerrymandering was the norm for both political parties during prior redistricting processes in this state. Nevertheless, the facts that we recount provide the backdrop as to why we reject the Legislature’s defense—which focuses on the political consultants’ efforts to “influence the redistricting process” and “make themselves relevant” despite their “exclusion from the decision-making process”—that depicts the political consultants and a few errant staffers as independent, self-motivated culprits, individuals who did not have the ability to and did not, in fact, influence the Legislature’s decisions regarding where to draw the lines. And, finally, we emphasize that a finding of unconstitutional intent to favor a political party or incumbent does not necessarily mean that those who made the decisions acted with “malevolent or evil purpose,” which is not required for a finding of unconstitutional intent under the Fair Districts Amendment. Apportionment I, 83 So. 3d at 617.
Slip op. at 20-21.
Our Florida Supreme Court further found:
B. EVIDENCE OF UNCONSTITUTIONAL INTENT
A month after the Florida voters approved the Fair Districts Amendment during the November 2010 general election, then-Speaker of the House Dean Cannon authorized a meeting in December 2010 at the headquarters of the Republican Party of Florida, involving Republican political consultants and legislative staffers, to discuss the upcoming redistricting process. This gathering was described by one of the consultants at trial as a meeting of “people that, prior to passage of the [new constitutional standards], would have generally been involved in the redistricting process.”
The four key political consultants in attendance, who became major figures in the redistricting trial, were (1) Rich Heffley, (2) Frank Terraferma, (3) Marc Reichelderfer, and (4) Pat Bainter. Heffley is a consultant who has worked with
- 22 -
many Republican legislators and candidates for public office, including Senator Don Gaetz, the Chairman of the 2012 Senate Committee on Reapportionment. Heffley had been involved in prior redistricting processes in Florida in 1992 and 2002 and, by the summer of 2011, was being paid $10,000 per month by the Republican Party of Florida for unspecified redistricting services. Terraferma is also a consultant who has worked for a number of Republican legislators and candidates, including Representative Will Weatherford, the Chairman of the 2012 House Redistricting Committee. Terraferma had previously been hired by Heffley to work for the Republican Party of Florida and went back to work for the party as Director of House campaigns in 2011. He was described by employees of a national Republican organization, in an invitation for a meeting held in Washington, D.C., in June 2011 with key individuals involved in the redistricting process, as a “genius map drawer.” Reichelderfer is another consultant who has worked with several Republican legislators and candidates, including former Speaker Dean Cannon. Reichelderfer is also one of Cannon’s longtime personal friends, dating back over twenty years to their days together as Young Republicans. He was, at the time of the 2012 redistricting, considered part of Cannon’s “inner circle,” and he had a good working relationship with Heffley. Bainter is the owner of a Gainesville, Florida, based political consulting firm known as Data Targeting, Inc., which has as one of its largest clients the
- 23 -
Republican Party of Florida. Between January of 2011 and November of 2012, the Republican Party of Florida paid Data Targeting, Inc., almost $3 million for consulting, polling, and direct mail services.
These four consultants, along with employees of the Republican Party of Florida, met in the initial December 2010 meeting with Alex Kelly, the staff director for the House Redistricting Committee; Chris Clark, the chief legislative aide for Senator Gaetz; and attorneys for the Legislature. At a second meeting the following month, in January 2011, the consultants met with Senator Gaetz, Representative Weatherford, Alex Kelly, and Kelly’s Senate counterpart, John Guthrie.
These meetings were not open to the public and there is no record of what was discussed. As the trial court stated, “[n]o one who testified at trial about [the meetings] seemed to be able to remember much about what was discussed, though all seemed to agree that the political consultants were told that they would not have a ‘seat at the table’ in the redistricting process,” as they had during redistricting in years past. According to the trial court, “[n]o one clearly articulated what that meant exactly, but there was testimony that they were told that they could still participate in redistricting through the public process ‘just like any other citizen.’ ”
Reichelderfer, the consultant who has worked with then-Speaker Cannon, testified that one topic of discussion at the meetings, as the trial court noted, was
- 24 -
“whether a privilege could be identified to prevent disclosure of redistricting- related communications among political consultants, legislators, and legislative staff members.” The conclusion reached at the meetings, according to the trial court, was “that no privilege would apply.” After the first meeting, in December 2010, Reichelderfer prepared a memorandum that included the following question: “Communication with outside non-lawyers—how can we make that work?”
Another question included in the Reichelderfer memorandum was, “Evolution of maps—Should they start less compliant and evolve through the process—or—should the first map be as near as compliant as possible and change very little?” Reichelderfer acknowledged at trial that it was “possible” he discussed with Speaker Cannon the issues identified in this initial memo he prepared. The trial court would later reference Reichelderfer’s memo in rejecting part of the Legislature’s argument that there could be “no improper partisan intent in the drafting of the maps” because, the Legislature asserted, “as things progressed, each succeeding map that was drawn was an improvement over the one before it in terms of compactness, leaving cities and counties intact and following geographical boundaries.” “Coincidentally,” the trial court stated, “that corresponds with a strategy suggested from Reichelderfer’s notes, i.e., start with less compliant maps and work toward a more compliant map.”
- 25 -
The trial court found that there was “no reason to convene two meetings just to tell active political partisans of the Republican Party that they would not ‘have a seat at the table.’ ” The trial court also noted “a few curious things about these meetings and their connection to subsequent events that are troubling.”
Specifically, even though the consultants supposedly had no “seat at the table,” the trial court found that they continued to be involved in the process. In June 2011, an e-mail was sent from Senator Gaetz’s e-mail address to legislators to provide information about upcoming public hearings regarding redistricting. A “blind copy” of this e-mail was sent to Heffley, the consultant under contract with the Republican Party of Florida, and to Terraferma, the “genius map drawer.” The trial court found that this was evidence that either Senator Gaetz or “someone in his office” was “keeping these operatives in the loop.”
Another e-mail, sent in October 2011 from Terraferma to Representative Weatherford, reported that Kirk Pepper, the Deputy Chief of Staff for then-Speaker Cannon, was “huddled on a computer” at the Republican Party of Florida’s headquarters, working with consultant Heffley on “[c]ongressional redistricting if I had to guess?” Pepper acknowledged at trial that he must have been speaking with Heffley at the Republican Party of Florida’s headquarters at the time, but stated that he “never met with Rich Heffley about redistricting.” He had no explanation as to why Terraferma, whom Pepper had previously worked with at the Republican
- 26 -
Party of Florida, would have thought otherwise. The trial court found that it was “possible that Terraferma was mistaken or simply speculating without any basis,” but this communication caused the trial court to “wonder why [Terraferma] would make this assumption if Pepper really had nothing to do with the redistricting process.”
As it turned out, Pepper acted as a conduit between the consultants and the Legislature. According to testimony relied on by the trial court, Cannon staffer Pepper “regularly” provided advance, non-public copies of draft redistricting maps to consultant Reichelderfer. The evidence, which came from document production by Reichelderfer since, as the trial court noted, neither Pepper nor Speaker Cannon preserved any records, demonstrated that between November 2011 and January 2012, Pepper transmitted to Reichelderfer—through his personal e-mail account, a “Dropbox” account he later deleted, and a thumb drive—at least twenty-four draft congressional redistricting maps prepared by the Legislature, mostly before they were released to the public. In some instances, Pepper sent Reichelderfer maps the Legislature prepared but never released to the public.
Although Pepper testified at trial that he acted “without Speaker Cannon’s approval” and, in retrospect, considered his decision to provide Reichelderfer with maps to have been “a mistake,” Pepper was later hired by Cannon’s private firm after Cannon left office. Cannon described Pepper as “a loyal employee,” but
- 27 -
testified that he did not know about Pepper’s transmission of maps to Reichelderfer until it was reported in the media during the litigation in this case.
While they denied doing so, the trial court found that Pepper and Reichelderfer “communicate[d] about the political performance of the maps.” In one instance, after Reichelderfer expressed concerns that the draft of a Central Florida district occupied by incumbent Republican Representative Daniel Webster was “a bit messed up,” Pepper asked Reichelderfer, “[p]erformance or geography?” Reichelderfer acknowledged during testimony at trial that “performance” in that context would “[g]enerally” refer to the political performance of the district, although there is no record of his response to Pepper. Reichelderfer testified that he could not recall whether or how he answered that question. He spoke on the phone “regularly” with Pepper but denied having “specific conversations about political performance.”
Despite asking, “[p]erformance or geography?” Pepper testified at trial that he did not want to know from Reichelderfer if there was a problem with the political performance of that particular district. Instead, he provided a lengthy explanation that his question was a “sarcastic” response to remind Reichelderfer “to be quiet,” because they were not supposed to talk about redistricting or the political implications of certain maps. Pepper stated of his question, “[i]t’s like if you were talking to someone that you knew very well and had known for a long
- 28 -
period of time, you could say something in writing that other people might take differently than you meant it.” The trial court discredited Pepper’s explanation as “very unusual and illogical.”
After receiving maps from Cannon staffer Pepper, Reichelderfer modified the maps to increase the Republican performance of the districts, and he and the other consultants traded numerous maps back and forth with each other. Of significance, the trial court found that some of Reichelderfer’s modifications corresponded to the actual decisions the Legislature ultimately made.
In one graphic example, cited by the trial court, Reichelderfer’s revisions changed the performance of Districts 5, 7, 9, and 10 from four Democratic performing or leaning seats to two Democratic and two Republican performing seats, as eventually reflected in the actual map enacted by the Legislature. Another map, which was known to have been drawn by Terraferma, shared eleven identical districts with a map submitted through the public process by an individual named Alex Posada, who denied ever creating or submitting the map and stated that he had not authorized anyone to submit a map using his name.
For his part, Reichelderfer described his interest in the Legislature’s maps as important to him “professionally” to “know the lay of the land,” similar to Bainter’s explanation that his interest was an “after-the-fact” one merely for the sake of his own “[k]nowledge”—even though the evidence presented at trial
- 29 -
demonstrated that the consultants spent considerable time, including weekends, early mornings, and late nights, making revisions to draft maps, and even though communications between these consultants regarding the maps referred to having “a job to do,” wanting to “spread” the maps “around,” and “[h]ead[ing] up” to Tallahassee to “[t]ell[] folks to look at” certain maps.
The trial court found that the consultants “did their best to evade answering direct questions” at trial, “often using semantic distinctions to avoid admitting what they had done.” As this Court previously noted with respect to documents produced by Bainter that included communications among the consultants regarding maps, “the documents support[ed] the challengers’ claim that Bainter was not just drawing maps out of casual ‘after-the-fact interest,’ but was actively engaged in an extensive process to draw maps favorable to a particular political party or incumbent and facilitate the submission of those maps to the Legislature through ‘shell people’ without any indication that the maps were drawn by the political consultants.” Apportionment VI, 150 So. 3d at 1129. For instance, one e- mail produced by Bainter stated that a Republican activist in Gainesville was “getting” him “10 more people at least,” while another e-mail indicated that if one of the consultants could “think of a more secure and failsafe way to engage our people, please do it.”
- 30 -
The trial court found that the Bainter documents “evidenced a conspiracy to influence and manipulate the Legislature into a violation of its constitutional duty” to redistrict in a neutral, non-partisan fashion, and explained that those documents were “very helpful” in demonstrating not only that the consultants “were submitting maps to the legislature” through third parties, but “how extensive and organized that effort was, and what lengths they went to in order to conceal what they were doing.” The trial court also found it “hard to imagine” that the legislative leaders and staffers who allegedly told these consultants that they could not be involved, other than through the public process, “would not have expected active participation in the public redistricting process by those political consultants at the meetings” and would not have questioned both why the consultants were not in attendance at the public hearings and why none of the maps coming from the public had any of the consultants’ names on them. “I would think,” the trial court opined, “that the staff and legislative leaders would find [this lack of public participation by the consultants] extremely strange, that they might even ask why not. But they didn’t.”
According to the trial court, however, the consultants had no need to publicly participate in order to influence the Legislature’s redistricting plan. Throughout the process, Reichelderfer was in direct contact with Speaker Cannon. In one late November 2011 e-mail from Cannon to Reichelderfer, which copied
- 31 -
Pepper, Cannon commented that “we are in fine shape” as long as “the Senate accommodates the concerns that you [Reichelderfer] and Rich [Heffley] identified in the map that they put out tomorrow.”
Cannon testified at trial that these “concerns” he was referring to were that the House and Senate “not roll out maps that were either completely inconsistent with one another or designed to show some inadequacy in terms of either minority representation or defect in [the House’s] maps,” so that reconciliation between the two chambers would be difficult. The trial court found Cannon’s explanation to be “a stretch given the language used.”
The evidence also revealed that Cannon asked Reichelderfer and Heffley, who was described as being “close” to Senator Gaetz, to serve, as the trial court put it, “as go betweens for leadership of the two chambers regarding the redistricting process.” According to testimony relied on by the trial court, the asserted reason for Reichelderfer’s and Heffley’s involvement was “purportedly because of a lack of a good working relationship between the Speaker of the House and the President of the Senate.”
The trial court was skeptical of that explanation, however, stating that “by all accounts, the actual staff members of each chamber who were working on the maps got along well with each other, as did the chairmen of the redistricting committees.” The trial court actually found the staff members who testified at trial
- 32 -
to be “straightforward and credible” and “not a part of the conspiracy.” In any event, the trial court specifically found that “in their insider roles, Heffley and Reichelderfer did not have to speak directly to staff map drawers, or even leadership, to infect and manipulate the map drawing and adoption process.”
At trial, Reichelderfer admitted to discussing “global” redistricting concerns with Speaker Cannon, but denied talking to Cannon “specifically about individual maps.” Reichelderfer lived near Cannon, their families spent time together, Reichelderfer saw Cannon on the weekends, and Reichelderfer met with Cannon to discuss issues he was dealing with as Speaker.
Reichelderfer also correctly informed other consultants about which of the Legislature’s draft maps was most “relevant,” meaning which was most likely to advance in the process. Among the seven congressional maps released to the public by the House on December 6, 2011, the map identified by Reichelderfer as the map most likely to advance was the map that was revised to become the House’s final proposed congressional map. At trial, Reichelderfer could not “recall specifically” how he knew that map to be the most likely to advance in the process, simply stating that if he “had that information for sure,” he wouldn’t have used the qualifier “I think” in his response. He testified that he “could have” just thought it “was the easiest to pair up with the Senate version of the map.”
- 33 -
Communications among the consultants revealed particular emphasis on certain areas of the map. For instance, in one e-mail referencing a configuration in a draft map that kept District 14 contained entirely within Hillsborough County—a configuration less favorable to Republicans than the configuration ultimately enacted, which crossed Tampa Bay to pick up voters from Pinellas County in District 14—Terraferma noted to Heffley that “Tampa is far from perfect.” The enacted configuration of Districts 13 and 14—where District 14 includes a portion of Pinellas County, rather than being strictly within Hillsborough—produced one safe Democratic seat and one seat that either party could win, rather than two naturally-occurring seats favorable to Democrats. This was the configuration preferred by the consultants.
In another e-mail between Terraferma, Heffley, and Reichelderfer sent on the same day the Senate released a public map that did not divide the City of Homestead—a division considered by the consultants to be important to favor Republicans—Terraferma noted that District 26 was “pretty weak.” Heffley responded, “The [H]ouse needs to fix a few of these,” and Terraferma, copying Reichelderfer, responded, “yes.” The enacted configuration did, indeed, split the City of Homestead between Districts 26 and 27, which turned one Republican district and one Democratic district into two Republican-leaning districts.
- 34 -
The decision to split Homestead was one of several key decisions made in a non-public meeting between Senator Gaetz, Representative Weatherford, and the two staff directors of the respective redistricting committees. While the meeting of two legislators in private does not result in a violation of article III, section 4(e), of the Florida Constitution—which requires all meetings between “more than two members” of the Legislature to be open to the public—the lengths to which the legislators went to avoid triggering the requirements for a public meeting in the final stages of negotiating and making changes to the districts raises questions as to the motivation of the Republican leadership. It also stands in stark contrast to statements from that leadership proclaiming that the 2012 redistricting process would be the most open and transparent in Florida’s history. And, it can be readily distinguished from other legislative decisions where private negotiations are undertaken, since redistricting involves “a constitutional restraint on the Legislature’s actions.” Apportionment IV, 132 So. 3d at 147.
Indeed, many final revisions that affected numerous districts in some way— such as the decision to push the Black Voting Age Population (BVAP) of District 5 over 50%, add an appendage to District 10, split Homestead, and increase the Hispanic Voting Age Population (HVAP) of Districts 9 and 14—were made in this non-public meeting that occurred after the House and Senate had each passed their versions of the congressional map. The decisions regarding District 5 and District
- 35 -
10 specifically contributed to the trial court’s decision to invalidate those two districts.
There was, in general, either conflicting or vague testimony as to why certain decisions were made in this meeting, including that the decisions were necessary to comply with the federal Voting Rights Act or some other policy concern. Because the meeting was not public, however, there is no official record of the reason for these decisions, which ultimately benefitted the Republican Party.
One example of a key decision made during this non-public meeting was the decision to push the BVAP of District 5 over 50%. Although he could not recall specifics, Representative Weatherford testified that making District 5 a majority- minority district was “important to the Senate” and that the Senate made a “compelling case” for raising the BVAP of the district over 50%. The highest BVAP for District 5 in any of the House’s draft maps was slightly over 48%. Senator Gaetz testified that the Senate believed it was important to increase the BVAP to over 50% to protect against a federal Voting Rights Act challenge, and that he also favored keeping the City of Sanford in the district, which the House’s version of the map did not do.
Before Representative Weatherford met with Senator Gaetz, Speaker Cannon met separately with Representative Weatherford and staff in another non- public meeting. Speaker Cannon anticipated that the Senate would ask to make
- 36 -
District 5 a majority-minority district and apparently instructed the House during this non-public meeting to agree to the Senate’s request. Ensuring that the BVAP of District 5 ended up over 50% was of particular concern to Reichelderfer, the consultant who was part of Speaker Cannon’s “inner circle.”
At trial, Reichelderfer testified, without specificity, that he believed pushing the BVAP of District 5 over 50% was important “to comply with the Federal Voters Rights Act,” based on a general recollection of discussions with lawyers whose names he could not recall. He thought it would be “politically damaging” if the map was invalidated because of a successful Voting Rights Act challenge, even though the 2002 version of District 5 did not have a BVAP of over 50% and was not invalidated during Voting Rights Act litigation. See Martinez, 234 F. Supp. 2d at 1307 (noting that the BVAP of the 2002 version of District 5 was “only” 46.9%, but that the district “will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice”). At the same time, increasing the BVAP of District 5—as occurred from early versions of the Legislature’s draft maps to the enacted version—decreased the Democratic performance of surrounding districts.
The trial court found the Legislature’s justification for making District 5 a majority-minority district to be “not compelling” and invalidated the enacted version of District 5. The Legislature’s decision—made in a non-public meeting,
- 37 -
after Cannon’s instruction in a separate non-public meeting, consistent with a concern Reichelderfer had long expressed—is therefore circumstantial evidence of collusion between the Legislature and the consultants, particularly where the trial court found there to have been no showing that it was legally necessary to create a majority-minority district.
There is no record from the time many of these key decisions were made to explain the Legislature’s reasoning. This is, of course, partly because the final decisions were made in a non-public meeting. But it is also because the Legislature, as the trial court found, deleted almost all e-mails and documentation related to redistricting.
Former Speaker Cannon testified that his e-mails were automatically deleted after six months unless specifically saved as having “significant archival or legal significance.” If that were the case, then exchanges between Speaker Cannon and consultant Reichelderfer that occurred in late November 2011—discovered from document production by Reichelderfer—would not have been deleted until May 2012 unless they were intentionally deleted before that time. But May 2012 was several months after the lawsuit was filed in this case, naming Cannon as a party and making a reality what the Legislature itself had previously acknowledged, as far back as December 2012, to have been “a moral certainty” from “start to finish” during the redistricting process—that records related to redistricting would be
- 38 -
sought by the challengers and relevant to adjudicating the constitutionality of the Legislature’s redistricting plan.
Ultimately, based on the evidence the challengers uncovered and presented at trial, the trial court found that there was “just too much circumstantial evidence” and “too many coincidences” to reach any conclusion other than that the political operatives had “infiltrate[d] and influence[d] the Legislature” in order to “obtain the necessary cooperation and collaboration” to “taint the redistricting process and the resulting map with improper partisan intent.” While it is sometimes said that it is “hard to believe in coincidence,” the trial court determined in this case that, as the saying goes, it was “even harder to believe in anything else.” After reviewing all the evidence, both direct and circumstantial, the trial court thus concluded that the plan was drawn with improper partisan intent.
Slip op, at 22-38
…
And, the Legislature informed the trial court in this case that litigation “was ‘imminent’ long before the days preceding the filing of” the challengers’ lawsuit. From “start to finish,” the Legislature asserted, the 2012 redistricting process, “more than any other, was conducted in an atmosphere charged with litigation.”
To be sure, the Legislature did preserve some records related to redistricting—documents showing, for instance, the time and location of public meetings or other generally benign details of the process. But the Legislature saved virtually no communications among legislators and staff and none of the communications—which, as a result of this case, we now know to have occurred— involving the outside political consultants.
The Legislature had no specific policy requiring it to preserve communications regarding redistricting, even though it knew litigation was certain to occur, and admits that its record-retention policies applied in the same manner to redistricting as they applied to all types of legislative business. The House’s policy, for example, specified that “records that are no longer needed for any purpose and that do not have sufficient administrative, legal, or fiscal significance to warrant their retention shall be disposed of systematically.” Fla. H.R. Rule 14.2(b) (2010-2012).
To the extent the Legislature argues that it had no reason to know it needed to preserve these records because it could not have anticipated this Court’s
- 50 -
decision in Apportionment IV rejecting its broad claim of legislative privilege over communications related to redistricting, the Legislature had, according to testimony at trial, determined as early as January 2011 that no privilege would apply to any of its communications with outside political consultants. In other words, the Legislature clearly knew that communications between, for instance, Speaker Cannon and consultant Reichelderfer would not be privileged, that they would be sought in litigation, and that litigation was certain to occur. Yet, Speaker Cannon did not preserve these records—and the only reason we now know these communications occurred is because records were produced during the litigation by Reichelderfer. The same is true of non-public draft redistricting maps sent to Reichelderfer by legislative staffer Kirk Pepper, using a personal e-mail account and a since-deleted “Dropbox” account.
The trial court stated that there was “no legal duty on the part of the Legislature to preserve these records, but you have to wonder why they didn’t,” given that litigation was certain to occur. Although the Legislature’s failure to preserve records apparently did not violate a specific rule of legislative procedure regarding records retention—even though at least some of these records likely did have sufficient legal significance to have warranted their retention—Florida courts have, in any event, found a duty to preserve evidence in other circumstances when a party should reasonably foresee litigation. See Am. Hospitality Mgmt. Co. of
- 51 -
Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (noting holdings that “a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”). And this Court, in rejecting the Legislature’s broad claim of legislative privilege in Apportionment IV, clearly held that the “purpose behind the voters’ enactment of the article III, section 20(a), standards will be undermined” if “the Legislature alone is responsible for determining what aspects of the reapportionment process are shielded from discovery.” 132 So. 3d at 149.
Even in the absence of a legal duty, though, the spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence. As this Court explained in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 (Fla. 2005), Florida courts may impose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer under such circumstances that the evidence would have contained indications of liability. If the evidence was negligently destroyed, a rebuttable presumption of liability may arise. Id. at 347. In other words, as recognized by the Fourth District Court of Appeal, “an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) (quoting Martino v. Wal-Mart
- 52 -
Stores, Inc., 835 So. 2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So. 2d 342); see also Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824, 826 (Fla. 4th DCA 2002) (stating that “[c]ases in which evidence has been destroyed, either inadvertently or intentionally, are discovery violations” that may be subject to sanctions).
The trial court was, therefore, justified in drawing an adverse inference against the Legislature in adjudicating the challengers’ claim of unconstitutional partisan intent. And we too must consider the Legislature’s “systematic[] delet[ion]” of redistricting records in evaluating whether the trial court’s finding is supported by competent, substantial evidence.
Turning to the merits of the trial court’s finding, we have little trouble concluding that competent, substantial evidence of unconstitutional intent exists in the record.
Slip op. at 49-52
….
The trial court’s error in failing to properly analyze the challenge to the plan “as a whole” was compounded by its error in the deferential standard of review it applied after finding the existence of unconstitutional intent. Certainly, we recognize the difficult task the trial court faced, considering numerous issues of first impression and attempting to be faithful to this Court’s redistricting decisions. And we commend the trial court for the superb and professional manner in which it handled this difficult litigation.
But, we conclude nevertheless that the trial court failed to recognize the critical differences between this Court’s “facial” review of the state legislative redistricting plans in Apportionment I and the nature of the fact-based claims presented in this case. This legal error in the standard of review, as with the legal error in not recognizing the independent significance of the challenge to the plan “as a whole,” led to the trial court’s failure to give any independent legal significance to its finding of unconstitutional intent when examining the challenges
- 64 -
to individual districts. Once the trial court found unconstitutional intent, there was no longer any basis to apply a deferential standard of review; instead, the trial court should have shifted the burden to the Legislature to justify its decisions in drawing the congressional district lines.
Slip op. at 63-64
No comments:
Post a Comment