TALLAHASSEE -- The Florida Supreme Court may have ruled last week that the state’s legislative leaders must turn over their redistricting documents in the simmering legal feud, but legislators say they turned over thousands of records they considered appropriate and destroyed everything else.
It was all a part of the routine document destruction process allowed by law, lawyers for the Republican-controlled House and Senate said in court documents filed on Wednesday.
The lawsuit was brought last year against the Florida Legislature by the League of Women Voters and 11 individuals. If the court agrees with the challengers, new maps may have to be drawn for the 2014 election cycle.
The challengers are asking House Speaker Will Weatherford and Senate President Don Gaetz to provide them with a detailed description of when and what records the legislative leaders allowed to be purged.
Among the documents they are seeking are emails, text messages, voice messages, handwritten notes, social media messages, Dropbox files, “and any other electronically stored information” on “all computers, cellular phones, smart phones, blackberries, tablets or other devices” used by House and Senate members.
If the members are using their personal devices to discuss redistricting, they want all that data as well.
It’s the latest wrinkle in an already lengthy case that is using a 2010 amendment to the state Constitution to challenge the Legislature’s intent when it conducted the once-a-decade reapportionment for legislative and congressional district boundaries.
The challengers filed the case in February 2012 alleging that lawmakers violated the amendments when they drew districts that favored incumbents, Republican candidates, and intentionally diminished the ability of racial and language minorities to elect representatives of their choice.
They attempted to question legislators, staff members and their political consultants and get access to their emails and text messages. But lawyers for the Republican leaders claimed that legislators should be exempt from that kind of scrutiny or it could have a “chilling effect” on the reapportionment process.
In a 5-2 ruling, the Florida Supreme Court last week rejected that argument and, for the first time, acknowledged that while legislative privilege does exist in Florida, it is not absolute.
“this type of ‘chilling effect’ was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent,” wrote Justice Barbara Pariente in the majority opinion
Weatherford and Gaetz have not commented on the ruling. Their lawyers have told the court that none of the documents sought by the plaintiffs have been “deleted, destroyed, lost, misappropriated, or otherwise became unavailable for production” and that they produced more than 20,000 documents in response to the request.
The lawyers acknowledge, however, “during the legislative redistricting process, the Legislative Parties maintained and disposed of legislative records in accordance with record-retention policies embodied in the rules of the Florida House of Representatives and the Florida Senate.”
That raises the question of whether there were documents lawyers were trying to shield through legislative privilege and, if so, do those documents still exist?
Federal rules prohibit document destruction when a party has a reasonable sense that the records could become part of the case and Florida lawmakers have known that a lawsuit challenging their maps was highly likely.
Gaetz, for example, told the Fort Myers News Press in November 2010 that he opposed the constitutional amendments and said: “I predict there will be a deep rut beaten to the courthouse — that’s what the supporters of Amendments 5 and 6 wanted.”
Sen. John Thrasher, R-St. Augustine, told Sunshine State News in December 2010 that “everything we say and do now in light of 5 and 6 and the intent language is subject to the review of some court.”
Lawyers for the House and Senate say that they turned over more than 20,000 documents in 2012 and the challengers never complained. The House and Senate’s lawyers argue that it was the job of the challengers to ask them to protect any communications from destruction and they failed to do it.
In its response filed with the court Wednesday, the Senate’s lawyers wrote:
“...the Legislative Parties offered to ‘ask legislators and legislative staff who participated in the redistricting process to search their personal and campaign email accounts as well as their personal mobile devices for information responsive to Plaintiffs’ document requests,’ and offered to arrange a mutually convenient time for the production of such documents. You never responded.
“Nonetheless, the Senate asked legislators and legislative staff who participated in the redistricting process to search their personal computers, handheld devices and email accounts for information concerning the redistricting process.”
The next step, legal experts say, is to determine how permanent the Legislature’s destruction of documents is. The challengers may have to hire a forensic computer expert to dig deep into the House and Senate computer servers to uncover evidence of legislative intent, said Gerry Herbert, a former Justice Department lawyer who is representing the League of Women Voters in the Florida case.
It took forensic computer analysts to discover pivotal documents in a Texas redistricting case last year, he said. A federal court determined last year that Republican lawmakers in Texas had discriminatory intent when it drew their congressional district and the court invalidated the map.
The key piece of evidence: an email from an attorney for a congressman to the staff member drawing the map for the Texas speaker of the House. He described how he must employ the “nudge factor” to make a congressional elect a Republican by swapping out high turnout Latino precincts with low turnout precincts but maintaining the ethnic composition.
Hebert has represented challengers and governments in dozens of redistricting cases over six decades and said he always advises his clients “do not destroy any communications or documents.”