Data sleuths decoded Florida's redistricting conspiracy

Mary Ellen Klas | Tampa Bay Times | 09/05/2015

TALLAHASSEE — The legal team that uncovered the shadow redistricting process that invalidated Florida's congressional and Senate districts didn't rely just on maps and cloak-and-dagger emails to prove that legislators broke the law.

The best clues came in the form of data — millions of census blocks — delivered electronically and found in the files of political operatives who fought for two years to shield it.

The Florida Supreme Court ruled 5-2 in July that lawmakers were guilty of violating the anti-gerrymandering provisions of the Florida Constitution and ordered them to redraw the congressional map.

It was a landmark ruling that declared the entire process had been "tainted with improper political intent" — a verdict so broad that it prompted an admission from the state Senate that lawmakers had violated the Constitution when they drew the Senate redistricting plan in 2012. The Legislature has scheduled a special session in October to start over on that map.

But the breakthrough for the legal team — lawyers for the League of Women Voters, Common Cause, a coalition of Democrat-leaning voters and their redistricting experts — came just days before the May 19, 2014, trial on the congressional map was set to begin.

After two years of legal challenges, Florida justices ruled that emails, maps and accompanying data produced by political consultants and related to redistricting must be produced and could be discussed at trial. The challengers had already learned that the Legislature's maps selectively shed and added populations to congressional districts to improve the performance for incumbent candidates, but they had only circumstantial evidence that the maps found on the computers of the political consultants played a role.

Using a matrix that reviewed 400,000 precincts covering 27 districts in each map, the lawyers and their experts "were able to trace the evolution of the maps and figure it out," said David King, of Orlando-based King, Blackwell, Zehnder and Wermuth, the lead lawyer for the League of Women Voters and Common Cause.

Behind the maps were the data files — census block statistics such as population, voting age, party registration and ethnic makeup. Each census block has unique characteristics, like DNA. By comparing the census block data from maps produced by the Legislature to those produced by the political operatives, a pattern emerged.

The documents showed that Republican operatives Marc Reichelderfer and Frank Terraferma had produced dozens of congressional and Senate maps that included components identical to those enacted by legislators.

Email chains relating to the Senate maps also showed that portions of at least two publicly-submitted maps — from GOP political consultant Alex Patton and Republican Party activist Remzey Samarrai — were identical to those drawn by the operatives as well as the final Senate map.

Requests for an interview with the legal teams representing the House and Senate were not answered. But the record shows that, until the Senate admitted violating the law, they argued that the political operatives had no influence on the Legislature's final maps.

The political consultants "sought out ways to appear relevant," the Legislature's lawyers wrote in their closing argument to the congressional trial last year. "But their efforts never merged with the map-drawing efforts of the Legislature, and the political consultants and the other members of the public, whatever their intent, never infected the sterile walls of the redistricting suites."

The first place the challengers looked for clues was in the House's batch of seven proposed congressional maps in November 2011.

Daniel Smith, an elections expert and University of Florida political science professor, was among the experts hired by the League of Women voters in 2012 to analyze the redistricting maps drawn by the Legislature for evidence that the process had been used to favor incumbents or political parties.

Moonlighting and working from home, Smith examined what made the House's drafts different, looking for shifts that would tilt the 27 available congressional seats more Republican.

"The mapmakers in Tallahassee — either the state legislative staff or Republican operatives — were literally going down to the census block level and figuring out what the performance of a district was by moving people in or out of key districts," he said. "Each map exposed the decisions by leadership."

He found that to help U.S. Rep. Dan Webster, R-Winter Haven, the maps moved Democrats out of his district and into Democrat U.S. Rep. Corrine Brown's sprawling north-south district.

"Dan Webster's residence was actually in Corrine Brown's district but that was because there were so many Democrats in that census block and precinct that his house came with it," Smith said. "The final map tipped the minority voters in Brown's district for the first time over 50 percent plus."

But the data showed that mapmakers went beyond saturating Brown's district with black voters. "They also sought other Democratic-performing white census blocks to pack into that district," he said. "It made sure those Democrats were not in the adjacent competitive district."

As Smith compared 400,000 census blocks on each of nearly 100 maps, he found "a unique aggregation of census blocks" that didn't exist in the 2002 congressional map used by lawmakers as their baseline. Yet these pieces existed "across different maps — from maps drawn prior to any public map, all the way to the final adopted map," he said.

One map, titled "Perfect Pieces" by Reichelderfer, "contained the fundamental structure for subsequent maps introduced by the Florida House," Smith wrote in his analysis.

Legislative lawyers tried to block Smith's report from being entered into evidence at trial, and the plaintiffs never called Smith as a witness. But Smith said the conclusions were unavoidable: The similarity between Reichelderfer's maps and the ones enacted by legislators "can't be a coincidence. There has to be some grander coordination going on."

Meanwhile, Gainesville-based Data Targeting, led by veteran GOP operative Pat Bainter, had argued that the release of their redistricting documents would violate his First Amendment rights to free speech and association and have a chilling effect on his ability to perform his job as a Republican consultant.

After the first release of some maps and emails in the fall of 2012, Bainter and others fought more aggressively for the release of additional documents. Their lawyers counter-sued the plaintiffs but lost.

Bainter, who was paid $3 million by the Republican Party of Florida for consulting in 2011 and 2012, ultimately took his case to the U.S. Supreme Court, which chose not to intervene. Finally, on the eve of the trial, the Florida Supreme Court ruled that Bainter would have to release the documents but they could remain confidential.

This new stack of maps contained crucial pieces relating to the political operatives' role in the Senate's redistricting process. King said the developments were "devastating" to the Legislature's claims that operatives were not involved.

The lawyers had spent months developing circumstantial evidence that the operatives were creating maps designed to influence the final map-drawing process by having people they recruited submit maps through the public submissions process.

"But what we hadn't really appreciated was how much information was flowing back to the political operatives — which put them in a position to give advice to legislators about the political performance of the proposed maps," King said.

One of those maps, entitled "mcarvin.zip" was produced by Terraferma, the RPOF's top map drawer. It was provided in a zip file on Oct. 28, 2011, to a Washington, D.C., lawyer named Michael Carvin who was hired to work for the state Senate.

Eight days later, another pivotal player — Rich Heffley, a veteran GOP consultant who was paid to handle redistricting issues for the party and to consult for Senate President Don Gaetz — wrote in an email that this was to be the Senate map released to the public. Terraferma then sent a note to Mike Wild at the Republican National Committee offices about the map, weeks before senators ever saw it.

Relying on a computer program they developed, Stanford political scientist Jonathan Rodden and University of Michigan professor Jowei Chen then compared the maps drawn by the political operatives with those drawn by legislative staff.

The conclusion: 14 of the Senate's 40 districts drawn by the operatives in the fall of 2011 were identical to those drawn by the Senate staff on Nov. 23, 2011, in a draft map called SO9. The districts survived and were included in the final map approved by the Senate.

"It showed that Senate work products were in the hands of the political operatives months before any of the members of the committee on reapportionment had seen it," King said.

George Meros, a lawyer representing the House, argued that the political operatives ultimately did not influence the maps to benefit Republicans and pointed to the GOP congressional losses in the 2012 election as proof. But both the trial court and Florida Supreme Court rejected those arguments and concluded there was "circumstantial evidence of collusion between the Legislature and the consultants."

Circuit Court Judge Terry Lewis said when he invalidated the congressional map in 2014 that the operatives "might have successfully concealed their scheme and their actions from the public had it not been for the (challengers') determined efforts to uncover it in this case."

For King, the head of a six-member law firm who had never before handled a redistricting lawsuit, the case was like "piecing together a puzzle."

"It's just like any other case except you've got maps," King said. "The maps tell a story and you've got to interpret them."


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