A case of dubious document destruction in Florida redistricting challenge

BRADENTON HERALD EDITORIAL board | Bradenton Herald | 12/20/2013

Suspicious. Very suspicious. The latest twist in Florida's questionable integrity in the elections process came this week with revelations that the Legislature destroyed documents connected to implementation of two 2010 amendments to the state Constitution.

Those "FairDistricts" amendments are designed to prevent the gerrymandering of legislative and congressional boundaries typically utilized by the political party in power to protect incumbents or gain other partisan election advantages.

The Florida Supreme Court ruled last week that legislators and staff must testify in a lawsuit brought by the League of Women Voters, Common Cause and others about their motives in the reapportionment process in advance of the 2012 election. The plaintiffs claim that emails will prove GOP legislators plotted with Republican Party officials and political consultants to rig districts for partisan benefits — strictly banned by the amendments.

The court further ruled that legislators must hand over documents related to the case. Lawmakers maintain thousands of records have been given to the plaintiffs, documents they determined appropriate. That alone raises a red flag. How can one side in a lawsuit judge what's relevant? That's like a defendant determining which evidence he'll supply in a case in order to ensure a favorable verdict and hide the truth.

While Republicans claim the document destruction was merely routine, the public has been denied the right to judge this material on its contents. Federal law forbids document destruction under the circumstances that surround this Florida case — namely, when one party has a reasonable belief such records would be swept up in a lawsuit.

Key quotes in case

Senate President Don Gaetz expressed that opinion in a November 2010 newspaper interview, stating: "I predict there will be a deep rut beaten to the courthouse — that's what the supporters of Amendments 5 and 6 wanted."

State Sen. John Thrasher went further in another published report, saying, "Everything we say and do now in light of 5 and 6 and the intent language is subject to the review of some court."

Then why did GOP leaders allow the document destruction — labeled so blithely as routine by lawyers for the Republican-controlled House and Senate when it was anything but?

The plaintiffs now want House Speaker Will Weatherford and Gaetz to describe the contents of the purged records and the timing of their deletion.

The challengers rightfully seek emails; text, voice and social media messages; and other electronically stored material on electronic devices employed by legislators.

Gaetz and Weatherford owe the plaintiffs and the public a detailed explanation.

All of the currently available records would still be hidden from view had the Supreme Court not rejected the GOP argument that claimed lawmakers should be exempt from scrutiny due to legislative privilege; otherwise, lawyers suggested, a "chilling effect" would be cast over reapportionment.

In a strong rebuke that is a victory for transparency and the public, Justice Barbara Pariente wrote in the majority opinion: "... this type of 'chilling effect' was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent."

Privilege 'not absolute'

The court majority further concluded that legislative privilege "is not absolute and may yield to a compelling, competing interest." Indeed, the FairDistricts amendments explicitly ban improper legislative intent, justices stated in citing the foundation for trumping privilege.

That, too, is a victory for the public. A fair and balanced redistricting process is vital to a robust democracy, one that favors voters over political parties in a nonpartisan manner.

Plaintiffs may have to resort to forensic computer analysis in an attempt to recover deleted messages and material, as happened in a Texas case last year. The victorious plaintiffs found an email which convinced a federal court that Republican lawmakers did have discriminatory intent in redrawing a congressional district. The court invalidated the map.

The Florida plaintiffs seek a similar fate for the 2012 maps drawn for state Senate and congressional districts. With the Supreme Court's ruling, that case will deservedly proceed.

The question now becomes whether the deleted data can be recovered and whether the information contains key evidence.

Should the latter come true, GOP legislators have much to answer for.

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