Overturning an appellate court ruling, the Florida Supreme Court on Tuesday ordered a Tallahassee judge to allow a GOP consultant's documents to be considered in a trial about the Legislature's 2012 redistricting effort, a move one justice called "unprecedented."
A coalition of voting rights groups, including the League of Women Voters, contend congressional maps are unconstitutional because Republican operatives worked through "public front persons" to submit maps to the Legislature. The groups say the maps violate the voter-approved "Fair Districts" amendments, which bar lawmakers from drawing districts that favor political parties or incumbents.
Tuesday's Supreme Court ruling deals with documents the groups say demonstrate "the surreptitious participation of partisan operatives in the apportionment process" that will show "a parallel redistricting process," which was "conducted in the shadows" in an effort to create maps that favor Republicans and incumbents.
The 5-2 ruling, released late Tuesday while testimony in the second week of the trial was still underway, ordered Leon County Circuit Judge Terry Lewis to allow the plaintiffs in the lawsuit to use hundreds of pages of documents produced by GOP political consultant Pat Bainter and his Gainesville-based consulting firm, Data Targeting, Inc. The 10-page emergency order allows the documents to remain closed to the public.
In a concurring opinion, Justice R. Fred Lewis admonished the 1st District Court of Appeal for last week siding with Bainter, who wanted to keep secret 538 pages of documents he claimed contained trade secrets. "The First District has, by preventing consideration of these documents during trial, jeopardized the stability and integrity of our governmental structure and authorized those who interact with the Florida Legislature on a critical matter such as redistricting to operate under a veil of secrecy. This outcome should be most disconcerting to any supporter of our democratic form of government," Lewis wrote.
But Chief Justice Ricky Polston wrote that the Supreme Court had acted too hurriedly in overturning the appellate court's preliminary order. "The majority?s action in this case is truly unprecedented," Polston wrote in a dissent joined by Justice Charles Canady. "Moreover, by requiring admission of the evidence at issue, rather than a proffer pending review by this court of the yet-issued First District opinion, the majority has adjudicated the opinion not yet written to be in error.
David King, a lawyer representing the voting groups in the circuit court trial, said that Tuesday's ruling likely would mean that Bainter's testimony would be closed to the public. The documents in question could also affect testimony of GOP operative Rich Heffley.
As testimony at the Leon County courthouse was ending for the day, King told the judge about the Supreme Court decision allowing for the use of the documents and permitting them to be kept under wraps.
"As long as they're telling me to do it, I'll do it," Lewis said. Lewis said he needs the trial to end by June 4. Former House Speaker Dean Cannon is expected to be among the witnesses testifying Wednesday.
Earlier Tuesday, Republican Party of Florida staffer Frank Terraferma admitted that maps drawn by him and submitted to the Legislature under someone else's name ultimately wound up in the plan now being challenged. As he did on Friday, Terraferma, who directs state House campaigns for the party, testified that he had shared congressional and legislative maps he drew with other GOP state party and legislative aides but that he had no idea what became of them.
"There was definitely sharing going around," Terraferma confirmed. "I had no copyright on them. I'm certainly more than happy that they were submitted." Several of the maps drawn by Terraferma were identical to those offered to the Legislature by Alex Posada, a Florida State University engineering student. Nine months after he submitted the maps, Posada went to work for Tampa-based Strategos Public Affairs, co-founded by House Speaker Will Weatherford's brother Drew. Prior to becoming speaker, Will Weatherford chaired the committee in charge of the once-a-decade redistricting process.
"I do not know Mr. Posada and have no knowledge of his work,” Weatherford said in an e-mail Tuesday. Posada could not be reached for comment, but Strategos partner Bill Coletti said that Posada was hired at the recommendation of a Tampa priest. "We were not asked to hire him by anybody," Coletti told The News Service of Florida on Tuesday. Posada worked for the company for about a year and left "to do other things" in August of 2013, Coletti said.
Terraferma said he did not know Posada or any of the other members of the public who submitted maps for the consideration as lawmakers took their first stab at creating new districts under the "Fair Districts" restrictions.
"You never, ever asked Mr. Heffley, 'What are you doing with my maps?' " King asked.
"I have no idea what other people may have done with stuff I may have drawn," Terraferma said at one point.
King also questioned Terraferma about email exchanges in which he and other GOP operatives discussed the maps, and about a visit to Washington, D.C. with Heffley less than a week before the Nov. 1, 2011, deadline for the maps to be submitted to the Legislature to "talk about redistricting" with Ben Ginsberg, a nationally renowned lawyer with close links to the Republican National Committee. Terraferma said he did not recall the meeting before King told him that the pair spent the night at the lawyer's house.