Opponents of Florida’s congressional redistricting plan attempt to shield lawmakers from testifying

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Andrew Warren suspended by Ron DeSantis
Gov. Ron DeSantis(AP Photo/Chris O'Meara). 2022.

By Jim Saunders ©2022 The News Service of Florida

TALLAHASSEE — Opponents of a congressional redistricting plan pushed through the Legislature by Gov. Ron DeSantis are fighting an effort to shield key lawmakers from testifying in a constitutional challenge to the plan.

Attorneys for voting-rights groups and other plaintiffs urged a judge this week to reject a request by six lawmakers and five current and former legislative staff members for a protective order that would prevent depositions.

In a document filed Monday, attorneys for the plaintiffs focused, in part, on a Florida Supreme Court decision that led to lawmakers testifying in legal battles after the 2012 redistricting process. Information emerged during the 2012 litigation about behind-the-scenes roles that Republican political operatives played in helping draw maps.

The plaintiffs’ attorneys urged Leon County Circuit Judge J. Lee Marsh to reject the “attempt to obstruct plaintiffs’ ability to obtain highly relevant and critical discovery in this case by moving to quash depositions of a specific subset of legislators and staff who were central to the redistricting process. The trial court and the Florida Supreme Court required similarly situated individuals to provide such testimony in the last redistricting cycle, and this court should do the same.”

The Republican-controlled Legislature passed the congressional redistricting plan during an April special session. The plan, which is in effect for the Nov. 8 elections, could add as many as four Republicans to the state’s congressional delegation.

The opponents filed the lawsuit in April, alleging that the plan violates a 2010 “Fair Districts” constitutional amendment, which set standards for the once-a-decade reapportionment process. The lawsuit names as defendants Secretary of State Cord Byrd, the Senate and the House, though individual legislators have been dismissed as defendants.

Attorneys for the House and Senate on Oct. 10 filed a motion seeking to block the depositions of House Speaker Chris Sprowls, R-Palm Harbor; Sen. Aaron Bean, a Fernandina Beach Republican who is a top lieutenant to Senate President Wilton Simpson; Senate Reapportionment Chairman Ray Rodrigues, R-Estero; Senate Congressional Reapportionment Chairwoman Jennifer Bradley, R-Fleming Island; House Redistricting Chairman Tom Leek, R-Ormond Beach; and House Congressional Redistricting Chairman Tyler Sirois, R-Merritt Island. Also, the motion seeks to shield current and former staff members including House Chief of Staff Mat Bahl.

The Legislature’s motion contended, in part, that the lawmakers and staff members are shielded by “legislative privilege.”

“The legislative privilege — rooted in the Florida Constitution’s separation of powers — protects the legislative process from inhibition and interference and yields only in the most exceptional circumstances,” said the motion filed by attorneys from the Shutts & Bowen and GrayRobinson law firms. “The facts presented in this case do not support the extraordinary intrusion that plaintiffs propose to make upon a co-equal branch of government.”

The motion also cited what is known as the “apex doctrine,” which generally prevents depositions of high-ranking officials if information can be obtained in other ways. The motion said the doctrine applies to the lawmakers and Bahl.

In the document filed Monday, attorneys for the plaintiffs disputed that legislative privilege or the apex doctrine should shield lawmakers.

“In (a ruling in the 2012 litigation), which is binding on this court, the Florida Supreme Court already decided that the compelling interest in vindicating the Fair Districts amendments outweighs the purposes of the qualified legislative privilege that might otherwise shield legislators from the discovery process in a normal civil case,” the plaintiffs’ attorneys wrote.

Also, they accused the Legislature of trying to slow down the case so that the disputed redistricting plan can remain in effect for the 2024 elections.

“Movants’ (the lawmakers and staff members) resistance should be recognized for what it is: an effort to run out the clock, or at least delay plaintiffs’ access to discovery long enough to preclude relief in time for the next election cycle,” the plaintiffs’ attorneys wrote. “Neither law nor equity supports their claim.”

Litigation about 2012 redistricting plans ultimately led to the Legislature redrawing congressional and state Senate maps. Districts ordinarily are redrawn every 10 years after the U.S. census.

DeSantis played an unusually large role in this year’s congressional redistricting process, with lawmakers accepting a plan he proposed during the special session. In part, the plan has been controversial because it is expected to reduce the number of Black U.S. House members.

As the House and Senate seek to prevent the depositions, DeSantis’ administration also is trying to block the release of a wide range of documents to plaintiffs in the case. The administration in September sought a protective order, contending that the documents are shielded by legislative and “executive” privilege — a contention that the plaintiffs dispute.

Marsh has scheduled a hearing Thursday.

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