GOP consultant says 'integrity' of court is at stake over redistricting

Mary Ellen Klas | Miami Herald | 09/19/2014

TALLAHASSEE - One of Florida’s top Republican political consultants stopped short of accusing the state Supreme Court of lacking “integrity” Friday if it rules that he must disclose emails in a case brought under the state’s new anti-gerrymandering laws.

Pat Bainter, whose firm Data Targeting has battled for two years to keep the documents private in a lengthy legal battle over the state’s redistricting maps, argued on Friday that the release of his emails violates his First Amendment right to anonymous political speech.

But after the justices — who have had access to the documents — raised doubts about Bainter’s argument, he issued a blistering statement.

“Today’s Supreme Court hearing is the culmination of a legal assault and press sensationalism as to whether or not I, a private citizen, have the right to petition my government without fear of a political inquisition into my private matters,” he wrote after the oral arguments. “After today’s hearing, it is clear to me that, as interpreted by the Florida Supreme Court, Amendments 5 & 6 are unconstitutional because they criminalize political speech based upon its content.”

Dan Gelber, a former state senator who has advised the voters groups that brought the challenge to the redistricting maps, criticized Bainter’s remark as “an obvious attempt to bully and intimidate the court,’’ he said. “They’re trying to put pressure on the seven justices who are going to make a ruling.”

Circuit Judge Terry Lewis ruled in July that GOP legislative leaders, guided by Bainter and other Republican consultants, drew two congressional districts that intentionally favored incumbents in violation of the Fair District amendments to the constitution. While his criticism of the districts was mild, he blasted the political consultants for conducting a “secret, organized campaign” to subvert the redistricting process in violation of the state constitution.

Lewis rejected Bainter’s claim that he had a First Amendment right to keep secret documents that were requested by a coalition of voters groups challenging the congressional districts. But the judge kept the documents sealed as Bainter challenged the ruling.

On Friday, Justice Barbara Pariente questioned whether Bainter raised the First Amendment claim only after he had appeared to exhaust all other arguments. She suggested that Bainter may have been “double-dealing” and that the First Amendment claim “seems like an afterthought.”

“How parties or non-parties conduct themselves in litigation and whether they are being forthright about privleges they want to assert” may be the more important question, she said.

Bainter’s response, released to the media, also suggested that the court system was working with the Democratic Party and the media to target him. Several news organizations, including the Miami Herald, have filed a friend of the court brief arguing that the documents admitted in trial should be disclosed because of the public’s need to monitor the actions of the court in the high profile case.

“The Democrats have manipulated a more than willing legal system to coerce me by legal threat to reveal my private internal political opinions, analysis, expertise and even trade secrets, even though I am neither elected to office nor employed by the Legislature,” Bainter wrote. He said then said the “Democratic Party funded legal posse, teamed with a well-funded media team, [was] attempting to obliterate the U.S. Constitution by using legal threat to quell individual citizens from participating in Democracy.”

Bainter’s attorney D. Kent Safriet told Pariente during the hearing that he waited to assert his First Amendment privilege only because he didn’t believe it was necessary at first.

When Bainter was first deposed by the lawyers for the voters’ groups, he was under the impression he was being questioned about “his interactions with legislators regarding redistricting,” Safriet said. But he became concerned when it became clear “that the inquiry was going far beyond that” and into communications he had with other members of his Gainesville-based political consulting team.

Justice Ricky Polston noted, however, that “just because you don’t do something doesn’t give you a privilege. You have to assert that privilege.”

John S. Mills, attorney for the League of Women Voters, one of the groups that brought the case, argued that Lewis looked at the documents in private and noted in his ruling that they helped him conclude the role the consultants had in influencing the maps.

“Read how it came out at trial,” he told the Supreme Court. “It was absolutely devastating.”

He urged the court to reject Bainter’s argument. “You can’t have a First Amendment right to petition the government [to act] in a corrupt manner,” he said. “There’s no First Amendment right to bribe … or to do a political gerrymander.”

Mary Ellen Klas can be reached at meklas@MiamiHerald.com and @MaryEllenKlas


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