Florida Supreme Court holds testy hearing on secret evidence used in redistricting trial

Associated Press | 09/18/2014

TALLAHASSEE, Florida — A bitter dispute pitting Republican political consultants against groups who challenged Florida's congressional map spilled out in front of the state's highest court on Friday.

The Supreme Court has been asked to decide whether or not secret evidence should have been used during a landmark redistricting trial. The evidence, which included 31 pages of emails and documents, was reviewed by the judge but has not been made public.

The documents belong to employees of a Gainesville-based GOP political consulting firm who were not directly named in the lawsuit that challenged Florida's 27 congressional districts. But the groups that sued, which included the League of Women Voters of Florida, contend the documents proved that the consultants worked in concert with Republican legislators to violate the state's Fair Districts amendments.

Those amendments say legislators cannot draw up districts to favor incumbents or a political party. A circuit judge in July ruled that two congressional districts were improperly drawn to aid Republicans so legislators changed them during an August special session. Judge Terry Lewis cited the secret evidence as crucial in helping him reach his verdict.

Justices, who have no timetable to rule on the evidence dispute, held an hour-long hearing during which attorney Kent Safriet argued that his clients have First Amendment rights that allow them to keep their political activities private.

He said the evidence should have never been used by Lewis and should remain under seal. The hearing even turned testy at the very end where Safriet began arguing that redistricting amendments were possibly unconstitutional if they eclipsed his client's free speech rights.

Pat Bainter, president and owner of Data Targeting, went even further in a statement, calling the ongoing tussle over the evidence "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." Bainter said that the "very institutional integrity of the Florida Supreme Court is at stake in this matter."

Justice Barbara Pariente, however, was skeptical with those arguments.

She pointed out that his clients did not assert a First Amendment privilege on the documents until after a judge had held his client in contempt for failing to turn them over as initially requested. She said she was concerned that Bainter and his employees had engaged in an "obfuscation of legitimate discovery requests."

Justice Ricky Polston pointed out that the requested documents were included in the original subpoena to Bainter and his company and suggested that he had waived his right to contest the request when he did not initially object to it.

John Mills, an attorney representing the coalition groups that sued the Legislature, said Bainter initially insisted to the groups that that he was following the redistricting process for "fun" while the documents show he was helping circumvent the restrictions put in place. Mills also said there were "zero reasons" for any of the documents to remain private.

Media organizations, including The Associated Press, have also asked in a friend of the court brief for the documents to be released.

The hearing did show the intense partisan nature of the ongoing battle over redistricting as Safriet quoted comments made by Democratic consultants about trying to get more Jewish voters into districts. Those comments were included in documents that the Republican-controlled Legislature had obtained during the course of the lawsuit. Bainter in his statement lashed out at Democrats since a national Democratic group has helped pay the legal bills of one of the groups suing.

State campaign finance records show that Bainter's law firm has been paid nearly $500,000 in the last two years by the Republican Part of Florida to work on the case.

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