By Jim Saunders
©2022 The News Service of Florida.
TALLAHASSEE — After pushing a congressional redistricting plan through the Legislature this spring, Gov. Ron DeSantis’ administration is fighting to prevent the release of documents to plaintiffs in a lawsuit challenging the plan.
Attorneys for the plaintiffs this week asked a Leon County circuit judge to reject a DeSantis administration request to shield it from having to release a wide range of documents related to redistricting.
The administration in September sought a protective order, contending that the documents are shielded by “legislative” and “executive” privilege. The requested documents range from communications related to the anti-gerrymandering “Fair Districts” constitutional amendments that voters passed in 2010 to communications with U.S. House leaders and the Republican National Committee.
“The plaintiffs ask to peer behind the legislative record, public statements and public records that serve as sources for the intent and effect behind the (redistricting) bill being challenged,” the administration’s Sept. 6 motion said. “The legislative and executive privileges — rooted in the Florida Constitution’s express and structural separation of powers, as well as longstanding common law — stand in the plaintiffs’ way.”
But in a filing Monday, attorneys for the plaintiffs disputed the arguments about legislative and executive privilege and pointed to the “intricately involved” role the governor’s office played in creating the redistricting plan, which is expected to add as many as four Republicans to the state’s congressional delegation.
“In a case such as this, where movants (DeSantis and J. Alex Kelly, a deputy chief of staff) drew the redistricting maps that are at issue in this case, neither privilege can justify movants’ refusal to respond to plaintiffs’ narrow discovery requests seeking information that goes to the very heart of this case,” the filing said.
The plaintiffs, including groups such as the League of Women Voters and individual voters, filed the lawsuit in April, alleging that the redistricting plan violates a Fair Districts amendment that applies to congressional districts. The Fair Districts amendments set standards for the once-a-decade reapportionment process.
The lawsuit names as defendants Secretary of State Cord Byrd, the Senate and the House. It does not name DeSantis and Kelly as defendants. Circuit Judge J. Lee Marsh has scheduled a trial in August 2023.
The Republican-dominated Legislature passed the redistricting plan during an April special session after DeSantis vetoed an earlier version. DeSantis’ office proposed the map that ultimately passed, with GOP lawmakers not offering alternatives during the special session.
While the plan is being challenged in state and federal courts, it is being used in the November elections. Based on past voting trends, it could increase the number of Republicans in the congressional delegation from 16 to 20.
DeSantis contended the redistricting plan would prevent racial gerrymandering. But opponents argued it would diminish the chances of electing Black candidates by making changes such as overhauling a North Florida district that in recent years elected Al Lawson, a Black Democrat.
The plaintiffs’ request for documents is based, in part, on a Florida Supreme Court ruling after the 2012 redistricting process. Justices required disclosure of documents that showed behind-the-scenes involvement of Republican operatives with lawmakers in drawing maps.
Ultimately, legal challenges led to the Legislature needing to redraw the 2012 congressional and state Senate maps. The disputes in 2012 centered on the Legislature, not then-Gov. Rick Scott.
In Monday’s filing, the plaintiffs’ lawyers argued that Florida courts have never recognized the concept of executive privilege and that DeSantis is not covered by legislative privilege.
“No Florida court has ever suggested Florida’s governor may invoke a legislative privilege, for good reason,” the filing said. “As the governor himself has argued, his role in approving and vetoing legislation is an executive power, not a legislative power.”
The filing also contends that many documents involve communications with third parties and, as a result, could not be covered by legislative privilege. As an example, it seeks communications between the governor’s office and Andy Foltz, a political consultant who was identified as helping the DeSantis administration on redistricting.
“Communications between the governor’s office and Foltz, as well as any other outside consultant, are plainly discoverable,” the filing said. “They are also highly relevant to plaintiffs’ claims. In the last (2012) redistricting cycle, for example, the Florida Supreme Court found that discovery revealing the Legislature’s discussions with redistricting consultants was highly probative of unlawful partisan intent.”
But in the Sept. 6 motion, lawyers for the DeSantis administration said the governor’s reasons for vetoing the initial redistricting plan and approving the special-session plan are already public. As an example, Kelly, who was a point man for DeSantis on the issue, testified before the Legislature.
The motion contended that the legislative privilege extends to DeSantis.
“The legislative privilege is essential to the proper functioning of the legislative and executive branches within their respective roles in the legislative process,” the motion said. “Both branches depend on participants being able to freely act on legislation, as members of the legislative branch propose, consider and vote on legislation, while the executive branch fulfills its responsibilities incident to the power to approve or veto legislation.”
In the brief, the administration’s lawyers acknowledged that executive privilege is “not yet specifically recognized in Florida” but said it is “rooted in the Florida Constitution’s text and structure” and should shield the documents.
“Though both the governor’s basic rationale (race neutrality) and Mr. Kelly’s testimony (his district-by-district presentation before the Florida Legislature) are already public, any further inquiry through the subpoenas at issue would have a chilling effect on the Executive Office of the Governor and the processes undertaken when promoting and supporting legislation,” the motion said.