May 28, 2014

Dean Cannon, mistrust, dumb ideas, political scientists and Day 7 of redistricting trial

Day Seven in Florida's precedent-setting redistricting trial may look like a sleeper for the few that are watching the soporific play-by-play on The Florida Channel but for the cognoscenti, the plot keeps getting thicker.

At stake is the 2012 congressional maps drawn by the Republican-led legislature and being challenged by a group of voters, led by the League of Women Voters and a group of Democrat-leaning plaintiffs. The court awaits the arrival of the secret documents from political operative Pat Bainter, unless the U.S. Supreme Court weighs in. Here are some developments from Wednesday: 

Plot line #1: What did the presiding officers know? 

Dean Cannon, the former House speaker during the 2012 redistricting session, testified under oath that he didn't know that his redistricting director was meeting with Washington redistricting attorney Ben Ginsberg, GOP political operatives Rich Heffley, Marc Reichelderfer and members of the House and Senate staff at Republican Party of Florida headquarters in December 2010 to discuss redistricting. But, had he been told, he said, he would have been "comfortable" with it.

“It was a good idea for anyone who had been involved or had been involved to get together with staff and legal counsel to figure out the rules of the road,’’ he said.

Reichelderfer testified last week that he attended the meeting to see if political consultants would "have a seat at the table" and current House Speaker Will Weatherford, who was then House redistricting chairman, testified they were told they wouldn't. 

Plaintiffs allege that Republican political consultants conspired with GOP staff to conduct a "shadow" redistricting process that used operatives to draw maps and have them submitted by members of the public. They claim that those maps then became the foundation of the legislature's final redistricting maps.

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Bainter now asks the U.S. Supreme Court to halt the release of docs by Florida's court

Not so fast. The ball has some bounce left. GOP political consultant Pat Bainter has asked the U.S. Supreme Court to stay the order by the Florida Supreme Court over the release of documents in the ongoing redistricting trial.

Florida's high court ruled 5-2 late Tuesday that 538 pages of emails, maps and planning documents of Bainter and his Gainesville-based political consulting firm must be allowed into the record – but only if the courtroom is closed. The ruling came even before a written opinion had been completed by the First District Court of Appeal and Bainter claims the forced disclosure of what he considers "trade secrets" will have a chilling effect on his First Amendment rights. 

On Wednesday, Bainter's attorney appeared in trial court and asked that the testimony of Bainter, and GOP political consultant Rich Heffley, wait until next week to give the federal court time to rule. Circuit Court Judge Terry Lewis said no. The Florida Supreme Court's ruling will hold, he said, until he is told to do otherwise. 

"If it's not relevant, it’s not admitted,'' Lewis told Kent Safriet, Bainter's attorney. "…Your interest in not having it admitted is not the same as whether something is relevant or not. If somebody doesn't object, they obviously think it's relevant. Whether you think it's relevant or your client thinks it's relevant is not the issue."

Safriet argued in 31-page appeal to the U.S. Supreme Court that disclosing the documents will violate Bainter's First Amendment rights and force him to disclose trade secrets. The information he wants kept from disclosure includes "names, contact information, and internal deliberations" of Bainter and his team as well as their employees, clients, and "other like-minded individuals regarding the redistricting process." Other documents include "data, analysis, and impressions crucial to [Data Targeting's] business as political consultants" as well as "grassroots members" and insight into his direct mail capabilities.

He argued that disclosure would harm Bainter's financial interests because competitors could "pick off" clients and cause irreparable harm. He also suggested that Bainter may be not answer "questions related to these privileged nad confidential materials" and could therefore be held in contempt of court.

"Disclosure of the privileged and confidential documents at trial (regardless of whether the proceedings are temporarily sealed) would chill the Applicants’ ability (along with that of other concerned citizens) to organize and participate with others in an effort to petition their government generally, and participate in Florida’s decennial redistricting process specifically,'' Safriet wrote in the emergency request. 

The emergency appeal to the nation's highest court continues what has been nearly two-years of legal battles over the documents held by Bainter, the owner of Data Targeting, a GOP political consulting firm. His lawyers say that he and his partners, Matt Mitchell and Michael Sheehan "are caught in the crossfire through non-party subpoenas and discovery."

The plaintiffs allege that Bainter and his partners conspired with GOP consultants and legislative staff to create a "shadow" redistricting process that attempted to protect incumbents and Republican candidates in violation of the Fair District amendments to the state constitution.

Bainter, whose legal bills are being paid by the Republican Party of Florida, argues that the U.S. Supreme Court should issue an emergency stay "to keep the proverbial cat in the bag" and to preserve his ability to later petition this court if it wants to appeal any ruling out of Florida.

"The Applicants are simply political consultants,'' Bainter's lawyers write. "They align with the Republican Party and conservative causes, and as a result are thus vilified by the Democratic-Respondents. But this does not mean that the Non-Parties conspired to violate the law as Respondents suggest."

Background here. 

Continue reading "Bainter now asks the U.S. Supreme Court to halt the release of docs by Florida's court" »

May 27, 2014

Supreme Court requires GOP consultant Bainter to release redistricting docs in trial

The ping pong over secret redistricting documents ended Tuesday as the Florida Supreme Court ruled that 538 pages of emails, maps and planning documents of a GOP political operative must be allowed into the record in the ongoing redistricting trial – but only if the courtroom is closed.

The 5-2 ruling by the state’s high court was a victory for the voters groups who are challenging the congressional maps drawn by the Legislature and alleging that a “shadow” redistricting process was conducted by political consultants and operatives in an attempt to unconstitutionally influence the legislature’s drawing of the 2012 maps.

But the ruling was also a triumph for Pat Bainter, and his company Data Targeting, who sought to have shield his confidential conversations from the public. Trial court Judge Terry Lewis had ruled that Bainter’s documents could remain confidential unless they were entered as evidence in the trial but the First District Court of Appeal reversed that decision and ordered the documents to remain sealed. 

The plaintiffs in the case, led by the League of Women voters, asked the high court for an expedited review and argued, in briefs that were kept under seal, that the documents should be opened and allowed in court.

Because the case is ongoing and the justices have not had time to determine whether the documents should be allowed in public, the justices ordered Lewis to “maintain the confidentiality of the documents by permitting any disclosure or use only under seal of the court and in a courtroom closed to the public.''

The ruling protects Bainter in the event any documents are deemed “trade secrets” as his lawyers argue but also allows the trial to continue. The trial is in its second week and faces a tight deadline of next Wednesday for completion.

The First Amendment Foundation and some news organizations are reviewing the ruling to decide whether they will take a position on the issue.

"This litigation is unique because it impacts the statewide operation of government and the validity of Florida’s current system of government through the alleged unconstitutionality of the 2012 apportionment plan,'' the majority wrote in the opinion signed by Justices Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry. Download Sc14-987

Justice R. Fred Lewis concurred with an opinion. Justices Ricky Polston and Charles Canady dissented, with an opinion.

The high court decision came even before the appeals court released its written opinion. The court had ordered the documents sealed late in the day on Thursday but was expected to make its findings and determine the rule of law in a written opinion that has not yet been issued.

Polston blasted that order of events as “truly unprecedented” and chastised the majority as “simply guessing at what the First District’s opinion will state as the basis for its ruling in order to engage in the active trial management.” 

He also accused the court of unconstitutionally pre-empting the appellate court.

 “In short, this Court has predetermined appellate error and awarded the petitioners full relief in the trial court by requiring admission of evidence,’’ Polston wrote.

Polston also noted that "Florida’s constitution does not grant this Court the jurisdiction to generally weigh in on evidentiary rulings and discovery disputes in ongoing civil trials." 

The majority noted that the "statewide importance" of the litigation and the "lack of Florida precedent" regarding the secret documents, made it likely that that the appellate court would have referred the issue to the high court.  

"In order to maintain the status quo during the ongoing trial, preserve this Court’s ability to completely exercise the eventual jurisdiction it is likely to have to review the First District’s decision, and prevent any irreparable harm that might occur if the Petitioners are prevented from using the challenged documents, we conclude that we must grant the petition and stay the enforcement of the First District’s reversal of the circuit court, pending the completion of the trial,'' the court concluded.

The ruling will create some challenges for Lewis, who has allowed the trial to be broadcast daily on public broadcasting’s The Florida Channel.

Lewis was told of the ruling and the potential for a closed courtroom at the end of the redistricting hearing on Tuesday. “I wasn't about to close it without someone telling me," he said.



May 23, 2014

GOP official doesn't know how his maps made it into public plan, final proposal

Frank Terraferma Redistricting trialA Republican Party of Florida official testified Friday that maps he drew and gave to a GOP redistricting consultant were identical to a map submitted by a member of the public, significant parts of which were used by lawmakers in the final congressional map.

The testimony of Frank Terraferma, director of House campaigns for RPOF, came as lawyers for the League of Women Voters and a coalition of voters are trying to show in circuit court that “legislators and staffers collaborated” with political operatives to conduct a "shadow" redistricting process "that was not only apart from the public process — but actually perverted the public process itself.”

The groups are challenging the state’s congressional map and accusing legislators of violating the 2010 constitutional amendment requiring them to draw districts that do not protect incumbents or members of a party. The trial is in its fifth day.

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Redistricting challengers ask Supreme Court for emergency ruling in secret docs

A coalition of voters challenging Florida's congressional maps filed an emergency petition in the Florida Supreme Court Friday, asking the court to allow documents from political operatives who advised legislators to become part of the ongoing redistricting trial.

The court has given respondents until 3:30 p.m. to reply.  Download SC14-987

The First District Court of Appeal ruled Thursday that 538 pages of maps, emails and memos are confidential “trade secrets” that may not be entered as evidence in the trial that is now in its fifth day in circuit court in Leon County. As a result, portions of the appeal and the attachments will remain under seal, attorneys said.

The ruling was a setback to League of Women Voters and seven Florida voters who are suing the state for violating the law that prohibits legislators from protecting political parties and incumbents when redistricting the state’s congressional boundaries. Download Motion to expedite briefing (00087321)

The plaintiffs have spent the first four days of the trial arguing that “legislators and staffers collaborated” with political operative Pat Bainter, of Data Targeting, and other partisan operatives “to conduct a separate redistricting process that was not only apart from the public process — but actually perverted the public process itself.”

They said in their motion that they want the Supreme Court to act quickly because "if the Court does not grant interim relief, it will lose the ability to grant the Plaintiffs the primary remedy they seek in this litigation—the redrawing of congressional districts before the 2014 election."

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May 22, 2014

Day Three of redistricting: Window into reality and the defense of secret deals as 'entirely proper'

Senate President Don Gaetz testified under oath Wednesday that it was “entirely proper” for him to meet in secret with House Speaker Will Weatherford to reach a deal over a congressional map as part of the Legislature’s once-a-decade redistricting process.

Gaetz, R-Niceville, who along with Weatherford was chairman of his chamber’s redistricting maps in 2011-12, told the court that he and Weatherford met twice and agreed to settle on the Senate’s map design for the final joint congressional map. It included a provision that boosted the number of black voters in the meandering congressional District 5, a Democrat-majority district that slices through dozens of towns to collect black voters from Jacksonville to Orlando.

“It was entirely proper, it was entirely ordinary that we would meet as two committee chairs to work out differences,’’ Gaetz said during more than three hours of testimony.

The entire congressional map, particularly District 5, is being challenged as unconstitutional by a coalition of voters led by the League of Women Voters. They contend the redrawn map violates the “Fair Districts” standards added to the state Constitution by voters in 2010. It requires that districts may not be drawn to protect incumbents and or political parties.

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May 21, 2014

Gaetz is grilled about Senate maps, secret meetings -- and what the Senate didn't do

Gaetz redistricting trial

Florida’s precedent-setting redistricting trial is on its third day with Senate President Don Gaetz under oath, being grilled in detail about the deal he reached in secret with the House and Senate on the congressional map.

Gaetz, R-Niceville, who was in charge of the Senate redistricting effort in 2011-12, told the court there were two meetings between him and his counterpart in the House, current House Speaker Will Weatherford, in which they agreed to settle on the Senate’s map design for the final joint congressional map. The proposal boosted the number of black voters in the meandering congressional district that stretches from Jacksonville to Orlando and is the subject a lawsuit brought by the League of Women Voters and a coalition of voters.

The groups contend that the congressional seats violate the "Fair Districts" standards added to the state constitution by voters in 2010 which says that says districts cannot be drawn in a way to favor incumbents or members of a political party. 

Weatherford acknowledged during testimony on Tuesday that the map was the subject of an amendment introduced with no discussion by Rep. Steve Precourt, R-Orlando, chairman of the House’s congressional redistricting committee after Gaetz and Weatherford had reached the deal.

Gaetz told the court that there was no requirement for them to notify the public of the meeting but claims "the door was open" and anyone could have walked in. Under cross examination, he said the map received bi-partisan support of the committee 21-5.

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May 20, 2014

Weatherford: I never asked staff to make Brown's district more compact

Weatherford redistricting trialFor the first time in state history, House Speaker Will Weatherford took the stand in the redistricting trial over the state's congressional districts Tuesday and defended the congressional map the Republican-controlled legislature drew. Story here. 

Weatherford, R-Wesley Chapel, defended the map, and the decision to boost the black population in the meandering congressional district held by U.S. Rep Corrine Brown, D-Jacksonville. He acknowledged he never asked his staff to make the district more compact but supported the Senate version in a compromise that brought the number of black majority voters in the district over 50 percent. 

The distict, which stretches through several counties, was first drawn by a federal court in 1996 to increase the odds of electing a black to Congress and has been a central objection in the now-pending lawsuit against the congressional districts drawn by the GOP-controlled legislature. Brown has held the seat since then.

Plaintiffs allege that Republicans sought the district and Brown, the incumbent, supported it because it helps to pack Democrats into a district in a way to make adjoining districts stronger for Republicans. The multi-county district became the foundation of the map that legislators ultimately approved in 2002 and again in 2012. The 2012 map came despite new constitutional guidelines approved in 2010 that Florida's districts be compact -- and not reduce minority representation.

Weatherford, who headed the House redistricting effort, testified on Tuesday that the compromise "made the map better" because it reduced the number of cities and counties that were divided. When pressed under questioning, he also said he never asked staff to try to make the Jacksonville-based minority district more compact. 

"We relied heavily upon counsel and staff to make sure it was drawn in a legal manner,'' he said. It was the first time a sitting legislator has been called to testify in a pending lawsuit and the first on redistricting. The Florida Supreme Court ruled in December in a landmark decision that legislative privilege is secondary to the protections in the constitution, which prohibit legislators from redrawing maps with the intent of favoring for an incumbent or political party.

Plaintiff's lawyer David King pressed Weatherford: "You never gave your staff any direction to try to draw it in a more compact manner?"

Weatherford repeatedly avoided a direct answer: "I don't remember asking my staff to draw District 5, aside from asking them to draw in a way that was legally complaint."

Later, King asked about the seven proposed congressional maps and noted that none of them deviated from what King called the "serpentine district."

"We drew the best set of maps we thought we could,'' Weatherford said. "We wanted to give members as much opportunity to see the different methods in drawing a map but there is more than one way to draw legally compliant maps."

Weatherford said the final congressional map was a compromise agreed to between Weatherford and Senate President Don Gaetz, who led the Senate redistrictin effort.

"We knew and we believed that our map was superior to the Senate map, particularly as it relates to cities and counties splits,'' he said.

Kirk Pepper, House speaker's aide, says he gave redistricting maps to friend as a favor

Pepper Redistricting testimony

In the second day of the redistricting trial on Florida's congressional maps, Kirk Pepper, the former deputy chief of staff to former House Speaker Dean Cannon, provided a window into the friendly and revolving world between political consultants and legislative staff.

Under oath in the second day of the trial in Leon County Circuit Court, Pepper acknowledged for the first time that he not only supplied maps to political consultant and friend Marc Reichelderfer before they were available to public, he supplied them on two flash drives.

Reichelderfer, a consultant to Cannon, testified Monday that he did not know how he obtained the maps although he did recall receiving some from Pepper. Pepper has since gone to work for Capitol Insight, the lobbying firm founded by Cannon.

Why was it acceptable for a House insider provide the work product of the House legislative staff to a political operative before the public had access? 

"In hindsight I wouldn’t do that again but it was intended to help a friend who was cut out of the process [from which] he makes his living,'' Pepper testified. He later elaborated: "I was making him aware of it so that he, as a friend, would know where the political landscape is going the landscape in which he makes his living in. I was trying to do something nice for a friend of mine."

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Day One of redistricting trial: Reichelderfer endures for 6 hours, focus is his special access

ReichelderferFlorida’s two-week redistricting trial began with a bang Monday as Republican political consultant and lobbyist Marc Reichelderfer admitted he had access to more than two dozen secret maps drawn by the Legislature’s staff weeks before they were available to the public. He also said he recommended modifications to pending maps.

But Reichelderfer, a longtime consultant to former House Speaker Dean Cannon, repeatedly denied having any role in influencing the outcome of the maps produced by the Republican-controlled Legislature, which is prohibited from drawing political boundaries to benefit political parties and incumbents.

“I did not tell them how to draw the maps. I didn’t tell them where to draw the lines on the map, and I didn’t tell them which maps to pick,” Reichelderfer said during his six hours of testimony.

He was the first witness in the high-stakes redistricting trial before Leon County Circuit Judge Terry Lewis as plaintiffs attempt to invalidate the 2012 congressional districts approved by lawmakers in a bipartisan vote.

A coalition of voter groups, led by the League of Women Voters and joined by seven Democrat-leaning individuals, claim that the congressional map violates the state’s Fair District amendments because it unfairly gives an advantage to incumbents, packs black voters into Democratic seats to benefit Republicans in adjacent districts, and was designed by Reichelderfer and other political consultants to “undermine the public redistricting process.”

“Legislators and staffers collaborated . . . to conduct a separate redistricting process that was not only apart from the public process — but actually perverted the public process itself,” the coalition claims in court documents.

Lawyers for the Legislature reject the claims, and argue that the 2012 congressional elections, in which four incumbent Republicans — Allen West of West Palm Beach, Sandy Adams of Orlando, Cliff Stearns of Ocala and David Rivera of Miami — lost their reelection bids is evidence that the maps were not biased in their favor.

Reichelderfer, who has also been a consultant to Republican state Sens. John Thrasher and John Legg, said he met twice with GOP consultants Rich Heffley and Pat Bainter and House and Senate legislative staff members to find a way to get “a seat at the table” when lawmakers redrew the legislative and congressional maps. But, he said, lawyers concluded they should have no role.

He came to the meeting with a list of questions to consider as legislators drew a Central Florida Hispanic seat that could influence the neighboring district of incumbent U.S. Rep. Dan Webster, R-Winter Garden. He also suggested that the number of African-American voters in the district held by Rep. Corinne Brown, D-Jacksonville, should be increased above 50 percent.

He also wanted them to cover the topic: “Communication with outside non-lawyers — how to make that work?” More here.

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