By BRANDON LARRABEE
THE NEWS SERVICE OF FLORIDA
The Florida Supreme Court on Thursday unanimously rejected a Republican political consultant’s efforts to keep his redistricting records private, promising to give the public its first glimpse of documents that helped lead to the state’s congressional districts being thrown out this summer.
While different justices signed onto two separate opinions about the case, both found that Pat Bainter and his consulting firm, Data Targeting, Inc., waited too long to claim that releasing some of the documents would violate his First Amendment rights.
The documents were requested by voting-rights organizations challenging the state’s congressional districts.
Writing for five members of the court, Justice Barbara Pariente used unusually harsh language to paint Bainter’s efforts as part of a months-long stalling tactic as the battle over the congressional map played out in a Leon County court.
“We simply do not countenance and will not tolerate actions during litigation that are not forthright and that are designed to delay and obfuscate the discovery process,” Pariente wrote.
In the opinion, the court ruled that Bainter tried for months to keep the documents shielded without saying that releasing them would violate his First Amendment rights. Bainter only made that claim after a Leon County judge held Bainter and the company in contempt, Pariente wrote.
“By responding to the deposition questions and acknowledging discussions with other political consultants without ever revealing the true nature of those communications or asserting a First Amendment privilege, in conjunction with the failure to timely assert this qualified privilege after the deposition testimony and months of additional hearings, we conclude that Bainter waived his ability to later claim that the documents revealing these communications were privileged on that basis,” Pariente wrote.
Joining Pariente in the opinion were Chief Justice Jorge Labarga and Justices R. Fred Lewis, Peggy Quince and James E.C. Perry. In a separate opinion, Justices Ricky Polston and Charles Canady supported the outcome. It was a rare, unified decision from a court that has often splintered on redistricting opinions.
The voting-rights groups, which include the League of Women Voters of Florida, argued that the Republican-dominated Legislature drew congressional districts that violated the anti-gerrymandering “Fair Districts” constitutional requirements, approved by voters in 2010.
The documents were used during the trial, but have remained under seal. The public was barred from the courtroom during Bainter’s testimony.
“Today’s ruling from the Florida Supreme Court will finally force sunshine into the shadow process that has robbed the citizens of Florida of their right to fair representation in Congress,” said David King, one the coalition’s lawyers, in a statement following the decision. ” … We think it is beyond time to lift the veil of secrecy and ensure that all proceedings going forward are open and fully transparent.”
Several media organizations also filed a “friend of the court” brief arguing for the documents’ release.
It isn’t clear when the records might be released. The court said motions to have the justices rehear the case are due by Nov. 20.
During oral arguments in September, justices noted that before Bainter made the First Amendment arguments, he denied having much of a role in redistricting, saying that maps he drew were just a hobby of his.
But relying at least in part on the sealed documents from Bainter’s firm, Leon County Circuit Judge Terry Lewis ruled in July that GOP consultants managed to taint the redistricting process by submitting maps under the name of another individual.
In his decision in July throwing out two congressional districts that he said were unconstitutionally gerrymandered to benefit Republicans, Lewis wrote that the documents were “very helpful to me in evaluating whether (the voting rights groups) had proved that first prong of their theory.”
Lewis found that a congressional map drawn up in 2012 violated the Fair Districts requirements, which spurred the Legislature to hold a special session in August to redraw lines. The judge signed off on the revised districts, though voting-rights groups have appealed.
The Supreme Court has set oral arguments in that case for March 4.
While the trial about the congressional map is finished, there is still a looming legal battle over the future of state Senate districts. John Mills, an attorney for the voting rights groups, said in September that a Supreme Court ruling in favor of the plaintiffs on the records issue could make the judge overseeing the Senate case more likely to admit documents from Bainter’s trove into the new trial.
