TALLAHASSEE – A divided appeals court ruled Wednesday that Florida legislators should not be questioned under oath about whether they "intended" to gain partisan advantage when they re-drew congressional maps last year.
Two sets of groups have challenged the lines for Florida's 27 U.S. House seats, including some voting-rights groups such as the Florida League of Women Voters, the National Council of La Raza, Common Cause and others.
The legal fight is one front of multi-pronged litigation against both the congressonal and state Senate maps lawmakers re-drew following the 2010 U.S. Census.
The Florida Supreme Court is currently weighing whether to allow left-leaning groups to continue fighting the maps through deeper evidence-gathering than the high court had to work with last year when it OK'd them ahead of the 2012 elections.
Earlier this year, the groups also got a Leon County judge to allow them to start deposing legislative leaders and get access to records protected from public release.
But the First District Court of Appeal overruled that circuit court decision Wednesday, agreeing with lawyers for the House and Senate that they are shielded by legislative privilege from having to give testimony under oath about their intentions or turn over the records.
"The harm resulting from the [circuit court] order cannot be remedied on appeal because once the depositions are held and the documents are produced, the privilege is lost and the proverbial cat is out of the bag," Appeals court Judge T. Kent Wetherell II wrote for the majority of the three-judge appeals panel.
He went on to write that "because the legislative record details what individual legislators did in the reapportionment process, it appears that the true purpose of the depositions ... is to learn why these individuals did what they did, which is precisely the type of information the legislative privilege is intended to protect."
Joining him was Judge Scott Makar, while Chief Judge Robert T. Benton II dissented, writing that "partisan political shenanigans are not 'state secrets.'" He added that "how and why the Legislature redistricts is a matter of paramount public concern."
Already, both sides have unearthed email indicating that both Republican and Democratic lawmakers and consultants working for them drew versions of maps that would have produced more favorable partisan outcomes. Republicans turned to Gainesville-based Data Targeting, which has run Senate leadership races.
The Fair Districts Now coalition, in turn, used two Washington, D.C. voter-targeting firms – NCEC and Strategic Telemetry -- to design draft maps to try and reduce the number of minorities in black-held seats and engineer partisan outcomes of races. None of those maps ever became law, though.
For instance, one October 2011 email from Strategic Telemetry to Miami lawyer Ellen Freidin, who headed the Fair Districts coalition, identified "mapping principles" that included protecting the seat for U.S. Rep. Debbie Wasserman Schultz of Weston, the Democratic National Committee chair, and other Democratic incumbents, as well as to "increase the number of safe Democratic seats and competitive seats."
Subsequently, Fair Districts balked and a company staffer scrubbed the partisan objectives from the list "after my discussion" with Freidin.
In another email, the consultants discussed the need to "scoop" more Jewish voters into Wasserman Schultz's district.
"The First DCA opinion upheld the legislative privilege and protected the ability of legislators to draw fair maps," House Speaker Will Weatherford, R-Wesley Chapel, and Senate President Don Gaetz, R-Niceville, said in a joint statement. "The court's opinion protects legislators from being intimidated by outside interests who would seek to bully or intimidate them and ultimately seek to use the Redistricting process for their own nefarious purposes."
Amendments 5 and 6, passed by 63 percent of voters in 2010, expressly prohibited lawmakers from drawing legislative and congressional districts with an "intent" to gerrymander. The Florida Supreme Court has already ruled once that lawmakers violated the reform when they drew the Senate maps – prompted a re-write last spring.
The groups challenging the maps said they were still reviewing the opinion.
"We continue to believe that the public has a right to know what occurred in the backrooms where these maps were created," said Adam Schachter, lawyer for League of Women Voters and Common Cause. "We will pursue all available appellate options."