Lawmakers, DeSantis admin members can be questioned in lawsuit against Florida redistricting

click to enlarge Florida's Capitol building in Tallahassee - Adobe
Florida's Capitol building in Tallahassee

A Leon County circuit judge has ruled that key state lawmakers and a top aide to Gov. Ron DeSantis can be questioned about a controversial congressional redistricting plan that passed in April.

Judge J. Lee Marsh, in two rulings dated Thursday, cleared the way for depositions of six lawmakers, five current and former legislative staff members and J. Alex Kelly, a deputy chief of staff to DeSantis. He also ordered the DeSantis administration to provide documents sought by plaintiffs challenging the redistricting plan, though he will privately review the documents to determine whether they should be shielded.

The House, Senate and the DeSantis administration had sought protective orders to prevent the depositions and disclosure of documents. The lawsuit alleges that the redistricting plan violates a 2010 “Fair Districts” constitutional amendment that set guidelines for reapportionment.

The rulings, posted on the Leon County clerk of courts’ website Friday, placed some limits on questions that the lawmakers, staff members and Kelly can face.

“The appropriate line in this case is where the doors to the House and Senate meet the outside world,” Marsh wrote in the decision involving lawmakers. “Accordingly, each legislator and legislative staff member may be questioned regarding any matter already part of the public record and information received from anyone not elected to the Legislature, their direct staff members or the staff of the legislative bodies themselves. They may not be questioned as to information internal to each legislative body that is not already public record (e.g., their thoughts or opinions or those of other legislators.)”

Similarly, the judge wrote in the ruling about the governor’s office: “The appropriate line in this case is where the doors to the governor’s office meet the legislative chambers and the outside world. Accordingly, Mr. Kelly may be questioned regarding any matter already part of the public record and information received from anyone not part of the governor’s office. He may not be questioned as to information internal to the governor’s office that is not already public record (e.g., the thoughts or opinions of staff or those of the governor).”

The Republican-controlled Legislature passed the congressional redistricting plan after it was proposed by DeSantis. Opponents, including groups such as the League of Women Voters of Florida, filed the lawsuit in April, alleging that the plan violates the Fair Districts amendment.

The plan is expected to increase the number of Republicans in Florida’s congressional delegations, with the GOP possibly picking up four seats in the Nov. 8 election, according to analyses of past voting trends.

The case focuses heavily on Congressional District 5, which in recent years stretched from Jacksonville to west of Tallahassee and elected U.S. Rep. Al Lawson, a Black Democrat. The plan put District 5 in the Jacksonville area and diminished the chances that it will elect a black candidate. Lawson this year is running in another North Florida district against Republican U.S. Rep. Neal Dunn.

Kelly was a point man for DeSantis on the redistricting issue. Also, attorneys for the plaintiffs want to question House Speaker Chris Sprowls, R-Palm Harbor; Senate Reapportionment Chairman Ray Rodrigues, R-Estero; Sen. Aaron Bean, a Fernandina Beach Republican who is a top lieutenant to Senate President Wilton Simpson and is running for Congress this year; Senate Congressional Reapportionment Chairwoman Jennifer Bradley, R-Fleming Island; House Redistricting Chairman Tom Leek, R-Ormond Beach; and House Congressional Redistricting Chairman Tyler Sirois, R-Merritt Island. In addition, they want depositions of current and former legislative staff members including House Chief of Staff Mat Bahl.

Attorneys for the Senate and House argued that lawmakers should be shielded from depositions by the legal concept of legislative privilege and what is known as the “apex doctrine.” That doctrine generally prevents depositions of high-ranking officials if information can be obtained in other ways. Also, the DeSantis administration cited legislative and executive privilege and the apex doctrine.

An important issue in the dispute has centered on a Florida Supreme Court decision that led to lawmakers testifying in legal battles after the 2012 redistricting process. Information emerged during the 2012 litigation about behind-the-scenes roles that Republican political operatives played in helping draw maps.

That litigation ultimately forced the Legislature to redraw congressional and state Senate maps. Districts ordinarily are redrawn every 10 years after the U.S. census.

Marsh, who held a hearing last week, expressed apprehension in both of Thursday’s rulings but pointed to the precedent from the 2012 litigation.

“While this court has great concerns about allowing plaintiffs to intrude into the internal processes of a separate co-equal branch of government, the binding precedent … provides little relief to the legislators and staff other than protection from revealing their thoughts or impressions or the thoughts or impressions shared with legislators by staff or other legislators,” he wrote in the ruling about the Legislature.

In ruling on documents that the plaintiffs seek from the governor’s office, Marsh said he would conduct what are known as “in camera” reviews to determine whether the materials are privileged. He gave the DeSantis administration 30 days to submit the materials.


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