Tensions mounted Wednesday more than a week before the special session on Senate redistricting is set to begin as House and Senate leaders acknowledged that staff had begun drafting maps using guidelines agreed to exclusively by House and Senate leaders and their lawyers, but the lawyer hired to represent Senate Democrats would not be allowed to take part in the process.
Senate Redistricting Chairman Bill Galvano acknowledged that the drawing of Senate districts is well underway by House and Senate staff for the three-week special session that begins Oct. 19. They are working in a sequestered space in the Senate redistricting suite and are being advised by the lawyers hired by the GOP-led Senate and House but, he said, the Senate Democrats will not have a separate lawyer at the table.
Senate Democrat Leader Arthenia Joyner told the Herald/Times she has hired Tallahassee attorney Mark Herron to represent the Senate Democrats in the redistricting process, using funds from the Florida Democratic Party, after Senate President Andy Gardiner twice rejected her request to allow the Democratic caucus to have its own lawyer advise them during the drawing of the Senate redistricting map.
“I had no choice,’’ Joyner said. "There is an inherent conflict because they drew the maps to favor Republicans. These same lawyers defended the maps and then admitted they violated the Constitution. Now, these lawyers are giving advice...Either fire them and get new lawyers, or hire us our own lawyers."
She said the Senate's current lawyers, former Supreme Court Justice Raoul Cantero and Jason Zakia, were the Senate’s lead lawyers defending the existing maps in the protracted legal battle over the congressional and Senate redistricting maps first adopted by lawmakers in 2012. Cantero's signature was on the stipulated settlement agreement admitting that the Senate map violated the state constitution's Fair Districts standards.
In a Sept. 25 letter to Gardiner, Joyner asked him to reconsider his decision not to finance separate counsel for the minority party, noting that Cantero and Zakia have “been at the forefront of the unconstitutional maps – both Congressional and Senate – since the redrafting process began” and “they cannot serve two masters.” Download Joyner letter to Gardiner
The letter came after an exchange between Galvano and House Redistricting Chairman Rep. Jose Oliva, R-Miami Lakes, over how the two chambers would develop draft Senate maps for the redistricting special session.
In a Sept. 17 letter to Oliva, Galvano said the House and Senate would “direct our attorneys to advise the map drawers on the specific types of methodologies to be used as well as other factors to be considered” and that “the methodologies and principles that guide the drawing of each map be documented, so that our members understand how each map was drawn and understand the parameters for proposing amendments if they wish to do so.” Download Chair Galvano to Chair Oliva
Oliva responded that the House and Senate legal counsel “would meet prior to the map-drawing process” and issue “a joint memo to the map drawers that outlines in writing the mutually agreed-upon methodologies. Download Chair Oliva Response
Herron said Wednesday he had been retained but was surprised to learn that the drafting of the Senate maps had begun and was still awaiting word of that joint memo detailing the principles each side would abide by.
"It's news to me it's underway,'' he told the Herald/Times. "I haven't seen the principles.”
Senate spokeswoman Katie Betta responded saying the guidelines "were sent from House and Senate attorneys to House and Senate Redistricting staff. Senators were not included and were not privy to the substance of the document."
She did not make a copy of the guidelines available but instead said it would be made public "at the same time everyone else, including the Senators, receives it."
Betta also said that Cantero and Zakia's firm, White and Case, "did not advise the Senate regarding the enacted Congressional map, nor did they play an active role in the development of the enacted Senate map. The Court has not declared unconstitutional any map developed during the time Justice Cantero and Mr. Zakia have been the Senate’s primary legal counsel for redistricting."
According to the contract with the firm, White and Case was hired in March 2012 after the court had rejected the Senate map and before the Senate had redrafted its map. With White and Case as its counsel in July, the Senate decided to settle the lawsuit against its redistricting map, acknowledging that the map violated the constitution.
Joyner noted that Cantero has been the lead counsel for the Senate and was in the deposition when former Senate redistricting staff director John Guthrie was deposed by challengers over the Senate map, a day after the Senate agreed to settle the case. As the Herald/Times first reported, Guthrie testified under oath that former Senate President Don Gaetz, R-Niceville, intentionally met individually with senators so they could “share their reactions” to draft Senate maps and avoid the public meeting requirements of Senate rules.
Galvano, R-Bradenton, said he agreed with Gardiner’s decision not to retain a separate lawyer for Democrats because Cantero and Zakia work for all 40-members of the Senate, not just the 26 Republicans.
“At this point they’re Senate lawyers and it’s all the Senate,’’ Galvano told the Herald/Times. “Both the maps that have passed through this process have been bipartisan so there hasn’t been a bright-line rule between Republicans and Democrats on what maps were passed and have gotten into the litigation process.
“So at this point the lawyers are only advising as to the interpretation of the law as its come through the Supreme Court and circuit court and what criteria they should use pursuant to the Constitution."
If Joyner asks to have her lawyer sit in, will he be allowed?
“At this point, her lawyer is not the Senate lawyer or the House lawyer and the procedure that has been established was: House and Senate staff, House and Senate lawyers, no members,’’ Galvano said. “So her counsel would be deemed independent counsel, not the chamber counsel so that’s how I think it would be viewed.”