Courtroom clash pits Florida Democrats, Republicans in epic redistricting battle

Published May 18, 2014

TALLAHASSEE — If the legions of lawyers were armed with swords and clad in medieval dress, the state's latest redistricting fight could be Florida's Game of Thrones.

The epic struggle for the control of Florida's congressional map comes to center stage in a Tallahassee courtroom on Monday, complete with intertwining plot lines, side battles and, like any ancient drama, the quest for power — getting it and keeping it.

The 2012 congressional map drawn by the Republican-controlled Legislature is being challenged by a coalition of Democratic-leaning groups and seven individuals led by the League of Women Voters — referred to as the "League of Women Vipers" in emails from Republican political consultants.

But this is no fantasy tale. Experts say it is likely to be one of the most precedent-setting trials in state history as the court takes on a new role as the extra eyes on the redistricting process because of the Fair Districts rules etched into the Florida Constitution by voters in 2010.

For the first time, the rules prohibit lawmakers from drawing maps to benefit incumbents or political parties, and the new districts must adhere to geographic and political boundaries. The court will decide if the Republicans in power will hold onto the political boundaries for the rest of the decade, or be forced to draw a new one that could favor more Democrats.

"Florida voters said to the Legislature: you get to keep the pen, but we're going to have the court looking over your shoulder,'' said Justin Levitt, a redistricting expert at Loyola Law School in Los Angeles, who maintains the website,

"The court didn't have that role before the constitutional amendments, and part of the trial coming up is going to be how vigorously they take that responsibility."

The court fight has already been intense as skirmishes emerged over whether legislators can be put under oath to discuss the maps, and whether the secret emails of their political operatives can be made part of the record.

The Florida Supreme Court made history in December with its landmark ruling that legislators can be deposed in the case, while the bitter fight over the secret documents is still brewing.

At stake is the 2012 congressional map that gave Florida two new seats and resulted in Republicans winning 17 of the state's 27 districts, while Democrats saw a net gain of three districts.

The challengers say that the map should be thrown out and redrawn by the court, specifically four districts — those held by Democratic U.S. Reps. Corrine Brown of Jacksonville and Kathy Castor of Tampa, and Republican U.S. Reps. Dan Webster of Orlando and David Jolly of Indian Shores.

The coalition claims legislators not only violated the new redistricting rules, they hired a team of political consultants to coordinate with legislative staff "to conduct a separate redistricting process that was not only apart from the public process — but actually perverted the public process itself."

Legislators say they carefully abided by the rules, conducted months of public hearings around the state and, according to Senate President Don Gaetz, established "the most interactive, inclusive redistricting process in the state history."

Legislators are asking the court to reject the lawsuit and pay their attorneys fees.

According to court documents, the GOP lawyers claim the coalition's legal bills are being paid primarily by the National Democratic Redistricting Trust, a Washington-based organization run by three former members of the Democratic Congressional Campaign Committee. In addition to Florida, the trust is challenging GOP-drawn redistricting plans in Texas, Nevada and Missouri. The League of Women Voters, whose lawsuit was merged with the lawsuit by the seven individuals, denies any affiliation with the Democratic Party and vigorously rejects that its lawsuit is paid for by the trust.

"It's been constant fundraising to pay for this,'' said Lisa Hall, spokeswoman for the League. "We are outnumbered two-to-one in the number of lawyers, and the other side is using taxpayer money to fund their effort."

The two-week trial will be broadcast live online by The Florida Channel. The star witnesses will be Gaetz, R-Niceville, House Speaker Will Weatherford, R-Wesley Chapel, former House Speaker Dean Cannon, R-Orlando, as well as many of their political consultants and staff.

The latest side battle involves 538 pages of secret emails, maps and planning documents that the political consultants hired by the Republican Party consider confidential trade secrets.

Court documents show that during the lengthy redistricting process House and Senate leaders from both parties relied on consultants to advise them on drawing maps and predicting the fate of their candidates in the next election.

But when lawyers for the coalition asked for the details from political operative Pat Bainter and his Gainesville-based Data Targeting, a massive fight erupted.

Bainter's lawyers, paid for by the Republican Party, argued that releasing the documents would be exposing his company's trade secrets and that would cause irreparable harm.

Circuit Court Judge Terry Lewis held Bainter and his partners in contempt for not releasing the information, then appointed former Florida Supreme Court Justice Major Harding to review 1,833 pages.

Harding concluded all the documents could remain secret, but Lewis carried out a separate review and decided that 538 pages were relevant to the case and would be made public if introduced during the trial.

The GOP lawyers then asked Lewis to clear the courtroom if the documents were discussed. Lewis rejected that idea, and the lawyers appealed to the First District Court of Appeal seeking a last-minute stay.

Late Friday, the appeals court agreed to temporarily stop any public release of the documents, and gave lawyers until the close of business on Monday to show them to the court.

Although many of the documents aren't public yet, a 92-page list of exhibits that could be offered by the coalition's lawyers is packed with politically tantalizing details.

One exhibit describes an email from Cannon, the former House speaker, to Republican consultant Marc Reichelderfer "re the Senate's extra $10 million for redistricting, and the House's secret slush fund."

Another exhibit notes that Reichelderfer, who was a lobbyist and party operative, was given advance knowledge that the maps proposed by Senate staff "were coming out 11/28/11."

Reichelderfer acknowledged in a deposition that he and other GOP political consultants privately met with staff members working for Gaetz and Cannon to "brainstorm" about redistricting. He also testified that Cannon's top aide, Kirk Pepper, provided him with a copy of the congressional redistricting maps weeks before the Legislature's maps were made public so that he could provide advice and input to Cannon and others.

At a May 9 hearing reported by the Associated Press, George Meros, an attorney representing the Florida House, told the court that Pepper made a "terrible mistake" and had "breached the duty he owed to the speaker'' when he let Reichelderfer see 23 maps before they became public.

But, Meros said, "politics did not get into the redistricting suite" and while Gaetz and Weatherford were "loyal" Republicans, the maps were not drawn with political outcomes in mind.

Meros and other lawyers will also call Scott Arceneaux, executive director of the Florida Democratic Party, as a witness.

Arceneaux acknowledged in a deposition that Democrats submitted an alternate congressional map intended to benefit Democratic U.S. Rep. Ted Deutch of Delray Beach and U.S. Rep. Debbie Wasserman Shultz, D-Weston, who chairs the Democratic National Committee. The proposed map, which was never adopted, also would have created a Democratic majority in the district held by U.S. Rep. Vern Buchanan, R-Sarasota.

While no one is predicting Florida's legal storm of swords will produce much more than a war of words, Rep. Brown does not appreciate the efforts of her Democrat colleagues.

If the map is thrown out and rewritten, she said, Florida could end up with less minority representation, not more.

"We have 27 districts, three African-Americans and two Hispanics,'' said Brown, who was the first black elected in 100 years after the court rejected a map drawn by a Democratically-controlled Legislature in 1992. Her snaked-shaped district was named one of "America's most gerrymandered congressional districts" last week by the Washington Post.

"If we're not careful, we could lose the gains that we've made," she said.

Contact Mary Ellen Klas at Follow her on Twitter @MaryEllenKlas