Redistricting trial ends but conclusion is far from certain

June 5, 2014 

TALLAHASSEE -- Florida’s precedent-setting redistricting trial came to a partial close Wednesday as lawyers wrapped up by agreeing to submit their closing arguments to the judge in writing in the next week.

It was an unconventional end to a 13-day trial that lifted the veil on the once-a-decade process of redrawing political boundaries. The testimony showed that the process, touted by legislators as historically transparent, was rife with murkiness.

A map was filed under a fraudulent name and no one is investigating. Legislators testified they routinely deleted redistricting records. A legislative staffer admitted to giving a flash drive of maps to a GOP political operative two weeks before they became public. Phone records of a House speaker and his right-hand man, sought for more than a year, were never produced. And legislative leaders acknowledged they met secretly with their staff and political operatives to discuss strategy.

Will the secrecy that clouded the process be enough for the court to force a redrawing of the 2012 congressional map approved by legislators and signed by the governor before the midterm elections?

Leon County Circuit Judge Terry Lewis will now decide. A ruling is expected by the end of the month.

If Lewis invalidates the maps, it could force the state’s congressional boundaries to be redrawn, but that is unlikely to have an impact on the November election. The case is expected to be appealed and ultimately resolved by the Florida Supreme Court. Any change in the political lines for Congress would have a ripple effect on other races, though not until the 2016 election cycle.

“It’s likely whatever happens here, it’ll be appealed one way or another,” Lewis conceded at the close of the trial.

The plaintiffs, a coalition of voters led by the League of Women Voters and seven Democratic-leaning individuals, say that if anything proves illegal map drawing, it was this case. They argue that Republican legislators and staffers collaborated with political consultants to create “a shadow redistricting process” that protected incumbents and the GOP in violation of the Florida Constitution.

They relied on hours of expert testimony to argue that the maps attempted to pack Democrats into several safe seats, while giving the GOP districts designed for Republicans to win comfortably. They singled out districts held by U.S. Rep. Corrine Brown, D-Jacksonville, as being intentionally “packed” with minorities in an attempt to make the surrounding districts held by Reps. John Mica, R-Winter Park, and Daniel Webster, R-Winter Garden, safer for Republicans.

Plaintiffs’ lawyer John Devaney said those and other examples prove the partisan bias that the Florida Supreme Court has ruled nullifies the maps under the state’s “Fair District” standards.

Legislative lawyers counter that the political shenanigans are just a sideshow and don’t prove legislators broke the law. They say the lawyers for the voters’ groups never established a link between the political operatives and the final maps, and the presiding officers of the Legislature testified under oath that they did not violate the law.

“They all have said they did not intend to favor or disfavor any party or incumbent, and we think that all the parties have done here is put up innuendo,” said Raoul Cantero, a former Florida Supreme Court justice who is representing the Senate.

The case is the first time legislators were bound by the new “Fair District” rules prohibiting them from intentionally drawing districts that favor incumbents or political parties. Voters approved the “Fair Districts” constitutional amendments in 2010 by more than 63 percent, over the objections of the Republican-controlled Legislature.

As the trial ended Wednesday, it featured the same sense of uncertainty with which it began.

Lewis gave the parties to the lawsuit a tight hearing schedule, ordering them to complete witness testimony Wednesday. But when the case ran long, he ordered the lawyers to submit their closing arguments, as well as their proposals for how he should resolve the case, to him by the end of next week.

It was one of many odd turns in a case that has seen a host of surprises.

The case began with the plaintiffs barred by a First District Court of Appeal ruling that prevented them from entering the testimony of GOP political operative Pat Bainter.

Bainter fought to keep emails, maps and planning documents related to redistricting from being entered at trial, saying the disclosure would infringe on his First Amendment rights.

A week into the trial, the Florida Supreme Court overturned the appeals court’s ruling and said Bainter’s documents could be admitted if they were relevant to the case — but only behind closed doors. The result: Reporters and the public were removed from the courtroom and the live television stream was shut off to allow Bainter to testify for three hours. The impact that had on the case remains unknown to the public.

For the first time in state history, sitting legislators were called to testify after the Florida Supreme Court ruled they could not claim legislative privilege in a redistricting case.

House Speaker Will Weatherford, R-Wesley Chapel, and Senate President Don Gaetz, R-Niceville, were called to the stand. Each acknowledged they met out of the public eye to reach agreement on a final congressional map.

“The door was open,’’ Gaetz testified.

Also testifying was former House Speaker Dean Cannon, R-Orlando, whose deputy chief of staff Kirk Pepper admitted to giving proposed House maps to GOP political consultant Marc Reichelderfer because he was “trying to do something nice, for a friend of mine.” By the end of the hearing Wednesday, neither Cannon nor Pepper had turned over their phone records to the plaintiffs after nearly a year.

The depositions of the vice chairman of the House Redistricting Committee and the co-chairs of the congressional redistricting committee — former state Rep. Steve Precourt, R-Orlando, Rep. Doug Holder, R-Sarasota, and state Sen. John Legg, R-New Port Richey — were also entered into evidence.

Each of them testified that they knew few details about the deal worked out between Weatherford and Gaetz and asked few questions, if any, before presenting it to their committee for a vote. Their testimony revealed they relied on staff to produce the maps and handle the details while they were unfamiliar with many of the terms and concepts inherent in producing a map that met the Fair Districts tests.

Frank Terraferma✔ and other political operatives testified how proposed maps with shadowy names such as “Sputnik,” “Schmedloff” and “Frankenstein” were created and then secretly shared during the months legislative staff were also drawing maps.

The trial also provided a window into how the legislators avoid creating a paper trail under the state’s public records law, which exempts them from disclosing any records relating to draft legislation. Gaetz, Weatherford and the other lawmakers said that after the redistricting maps were passed by the Legislature, they destroyed related emails as part of their routine records housekeeping, even though they expected a lawsuit over the maps.

But the biggest surprise of the trial came when former Florida State University College Republican Jose Posada emerged as a witness for the plaintiffs in mid-trail. The 24-year-old testified that his identity was falsely used to submit a redistricting map that, the plaintiffs said, was used as the foundation for as many as seven districts in the final map.

During the hearing, the plaintiffs never linked Posada’s map to a political operative but used his claims to raised doubts about the veracity of legislators and their staff.

The plaintiffs’ lawyers noted that Gaetz named Posada as an example of a member of the public whose suggestion was used as the basis of drawing Districts 4 and 5 in the final map.

Congressional District 5, held by U.S. Rep. Corrine Brown, a Democrat, meanders through 10 counties. The plaintiffs said it should have been drawn more compactly.

The NAACP has sided with the Republican-led legislature in the case, and called several witnesses who testified that Brown has been more responsive to the needs of the black community than any of their previous congressmen. Brown, a former state senator, was the first black elected to Congress in 100 years after a court drew the black-majority district in 1992.

Brown worked with Republicans to bring the legal challenge that led to the court drawing the district 20 years ago. She joined U.S. Rep. Mario Diaz Balart, R-Miami, in an unsuccessful attempt to challenge the Fair District Amendment 6 in 2012 and still defiantly opposes the amendments and the lawsuit.

She called her fellow Democrats who back the lawsuit “Dudley do-righters” who want “a district that looks a certain way -- how about it perform a certain way?,’’ she said.

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