Citations
- 172 So. 3d 363
Full opinion text
PARIENTE, J.
In this appeal involving legal issues of first impression, we review a trial court’s finding that the 2012 “redistricting process” and the “resulting map” apportioning Florida’s twenty-seven congressional districts were “taint[ed]” by unconstitutional intent to favor the Republican Party and incumbent lawmakers. Cognizant that this Court’s role is not to select a redistricting map that performs better for one political party or another, but is instead to uphold the purposes of the constitutional provision approved by Florida voters to outlaw partisan intent in redistricting, the crux of what we must decide is whether the trial court gave the appropriate legal effect to its finding that the Florida Legislature drew the state’s congressional districts in violation of the Florida Constitution.
Added to the Florida Constitution in 2010, the Fair Districts Amendment sought to eliminate the age-old practice of partisan political gerrymandering — where the political party and representatives in power manipulate the district boundaries to their advantage — by forbidding the Florida Legislature from drawing a redistricting plan or an individual district with the “intent to favor or disfavor a political party or an incumbent.” Art. Ill, § 20(a), Fla. Const. “The desire of a political party to provide its representatives with an advantage in reapportionment is not a Republican or Democratic tenet, but applies equally to both parties.” In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83 So.3d 597, 615 (Fla.2012). As observed when a three-judge panel of a federal district court examined Florida’s last decennial congressional redistricting plan in 2002, the “raw exercise of majority legislative power does not seem to be the best way of conducting a critical task like redistricting, but it does seem to be an unfortunate fact of political life around the country.” Martinez v. Bush, 234 F.Supp.2d 1275, 1297 (S.D.Fla.2002).
With the voters’ approval of the Fair Districts Amendment, that unfortunate fact of political life was banned in Florida. Our citizens declared that the Legislature must “redistrict in a manner that prohibits favoritism or discrimination.” Apportionment I, 83 So.3d at 632. And the Eleventh Circuit Court of Appeals similarly declared •that “[f]ar from dictat[ing] electoral outcomes, the provision seeks to maximize electoral possibilities by leveling the playing field.” Brown v. Sec’y of State of Fla., 668 F.3d 1271, 1285 (11th Cir.2012) (internal quotation marks omitted).
Like the voters of Arizona, who adopted an independent redistricting commission recently upheld by the United States Supreme Court as consistent with the “fundamental premise that all political power flows from the people,” the Florida voters endeavored “to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature. v. Ariz. Indep. Redistricting Comm’n, No. 13-1314, — U.S. —, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704, 2015 WL 2473452, at *4, 21 (U.S. June 29, 2015). As the United States Supreme Court has recognized, “partisan gerrymanders ... [are incompatible] with democratic principles.” Id. at *4, —, 135 S.Ct. 2652, 2658 (alteration in original) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion)). In short, the Fair Districts Amendment was designed “to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’ ” Id. at *21, —, 135 S.Ct. 2652, 2677 (quoting Mitchell N. Berman, Managing Gerrymandering, 83 Texas L.Rev. 781, 781 (2005)).
Presented in this case with a first-of-its-kind challenge under the Fair Districts Amendment, the trial court found that the Legislature’s 2012 congressional redistricting plan was drawn in violation of the Florida Constitution’s prohibition on partisan intent. We affirm that finding. We conclude, however, that the trial court failed to give proper legal effect to its determination that, the Fair Districts Amendment was violated.
In reaching this conclusion, we recognize that the trial court had scant precedent to guide it in approaching the legal issues presented. And, we commend the trial court for the tremendous effort that was expended in deciding this novel challenge under the Fair Districts Amendment.
Nevertheless, we conclude that two legal errors significantly affected the trial court’s determination of the appropriate legal effect of its finding of unconstitutional intent. First, the trial court erred in determining that there was no distinction between a challenge to the “plan as a whole” — a challenge, in effect, to the map produced from the unconstitutional “process” — and a challenge to individual districts. Second, the trial court erred in the standard of review it applied, which was improperly deferential to the Legislature’s decisions after finding a violation of the Fair Districts Amendment’s prohibition on partisan intent. Although it found the existence of unconstitutional intent, the trial court relied solely on objective “tier-two” constitutional indicators, such as compactness and the use of political or geographical boundaries, rather than on the direct and circumstantial evidence of “tier-one” unconstitutional intent presented at trial.
In' other words, the trial court analyzed the Legislature’s map as if it had not found the existence of unconstitutional intent, affording deference to the Legislature where no deference was due. Once a direct violation of the Florida Constitution’s prohibition on partisan intent in redistricting was found, the burden should have shifted to the Legislature to justify its decisions in drawing the- congressional district lines.
Relying on the finding of unconstitutional intent, the challengers have urged that the entire plan should be redrawn. Certain factors support this approach, which would require the Legislature to begin the redistricting process anew on a blank slate. For example, we are aware that the starting point for drawing the 2012 congressional redistricting map was the 2002 map, which was drawn prior to the Fair Districts Amendment with, at that time, legally permissible partisan intent. In fact, the Legislature itself had, in defending against a racial gerrymandering claim directed at the 2002 map, “stipulated” that its intent “was to draw the congressional districts in a way that advantages Republican incumbents and potential candidates.” Martinez, 234 F.Supp.2d at 1340. We also acknowledge that a three-judge federal district court panel concluded that the Florida Legislature’s “overriding goal with respect to congressional reapportionment” in 2002 was to “maximize the number of districts likely to perform for Republicans.” Id. at 1300-01. These are considerations now explicitly outlawed by the Florida Constitution’s prohibition on partisan political gerrymandering.
Based on the findings and evidence in this case, however, we ultimately reject the challengers’ request that the entire plan must be redrawn or that this Court should, at this time, perform the task of redrawing the districts. Although we conclude that the trial court’s finding of unconstitutional intent required the burden to shift to the Legislature to justify its decisions regarding where to draw the lines, we also conclude that the challengers still must identify some problem with the Legislature’s chosen configuration. They did' so in this case with respect to Districts 5, 13, 14, 26, and 27 — showing a nexus between the unconstitutional intent and the district — as well as for Districts 21, 22, and 25, which they contended were problematic either for “tier-two” reasons or because the Legislature unjustifiably rejected a less favorable configuration.
Accordingly, while we affirm the trial court’s finding that the Legislature’s enacted map was “taint[ed]” by unconstitutional intent, we reverse the trial court’s order upholding the Legislature’s remedial redistricting plan. ■ We relinquish this case to the trial court for a period of 100 days from the date of this opinion, with directions that it require the Legislature to redraw, on an expedited basis, Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other districts affected by the redrawing, pursuant to the guidelines set forth in this opinion. We emphasize the time-sensitive nature of these proceedings, with candidate qualifying for the 2016 congressional elections now less than a year away, and make clear that we take seriously our obligation to provide certainty to candidates and voters regarding the legality of the state’s congressional districts. Upon the completion of the redrawing of the map, the trial court shall hold a hearing where both sides shall have an opportunity to present their arguments and any evidence for or against the redrawn map, and the trial court shall then enter an order either recommending approval or disapproval of the redrawn map.
We commend both parties for their professionalism in presenting the case to this Court and now proceed to discuss in detail the legal issues that have been raised on appeal, the background of this case, the evidence presented, and our legal reasoning.
I. CHALLENGE TO TRIAL COURT’S FINDINGS
On appeal in this Court, the challengers seek affirmance of the trial court’s finding of unconstitutional partisan intent in drawing the state’s congressional districts — a finding that was based on both direct and circumstantial evidence. Their primary contention of error, however, is that the trial court applied an unduly deferential standard of review, thereby precluding it from imposing a more meaningful remedy for its finding of unconstitutional intent to favor the Republican Party and incumbents.
The Legislature, while seeking affir-mance of the trial court’s approval of the remedial redistricting plan, nevertheless takes issue with the trial court’s finding of unconstitutional intent. In particular, the Legislature contests, first, the trial court’s finding of a connection between the evidence and the Legislature itself, including the trial court’s decision to ascribe the intent of a few individuals to the Legislature as a collective body. Second, the Legislature asserts that, even assuming the existence of unconstitutional intent, the trial court’s finding pertains solely to the two invalidated districts and not to the broader process or map as a whole. Accordingly, the Legislature argues that any remedy that may have been necessary has already been provided through the enactment of the remedial redistricting plan.
We address these issues in the following way. After setting forth a comprehensive overview of the factual and legal background of the case, including a review of the evidence relied on by the trial court in finding unconstitutional intent, our analysis begins by considering the “intent” standard and the trial court’s application of that standard in this case. Upon determining that the trial court appropriately framed the “intent” inquiry, we turn to the legal sufficiency of the trial court’s finding of unconstitutional intent. We conclude that competent, substantial evidence supports the trial court’s finding and that this finding pertains to the plan as a whole and not solely to the two invalidated districts. We then proceed to consider the proper legal effect of this finding as we review each challenged district. Finally, we address the remedy.
II. THE FLORIDA CONSTITUTION’S PROHIBITION ON PARTISAN POLITICAL GERRYMANDERING
In February 2012, “the Florida Legislature approved the decennial plan apportioning Florida’s twenty-seven congressional districts, based on population data derived from the 2010 United States Census.” League of Women Voters of Fla. v. Fla. House of Representatives (Apportionment IV), 132 So.3d 135, 139 (Fla.2013). After the adoption of the Legislature’s 2012 congressional redistricting plan, two separate groups of plaintiffs (“the challengers”) filed civil complaints in the Second Judicial Circuit Court in and for Leon County, challenging the validity of the plan under new state constitutional redistricting standards approved by the Florida voters in 2010 and now enumerated in article III, section 20, of the Florida Constitution. “Those standards, governing the congressional reapportionment process, appeared on the 2010 general election ballot as ‘Amendment 6’ and, together with their identical counterparts that apply to legislative reapportionment (‘Amendment 5’), were generally referred to as the ‘Fair Districts’ amendments.” Id. As this Court has previously noted, “[t]here is no question that the goal of minimizing opportunities for political favoritism was the driving force behind the passage of the Fair Districts Amendment.” Apportionment I, 83 So.3d at 639.
In Apportionment I, during this Court’s first review involving the new constitutional standards, we commended the Legislature for what it claimed at that time to be an unprecedented transparent redistricting process, in which the Legislature engaged in twenty-six public hearings around the state and obtained public input as it went about its task of redistricting. See 83 So.3d at 637 n. 35, 664. In truth, public input in redistricting was not unique to the 2012 process. The Legislature held thirty-three public hearings during the 1992 redistricting and twenty-four public hearings prior to the enactment of the 2002 map. See Martinez, 234 F.Supp.2d at 1288.
Based on the new constitutional standards that applied for the first time to the 2012 process, transparency became legally significant under the Florida Constitution. This Court explained that “if evidence exists to demonstrate that there was an entirely different, separate process that was undertaken contrary to the transparent effort in an attempt to favor a political party or an incumbent in violation of thé Florida Constitution, clearly that would be important evidence in support of the claim that the Legislature thwarted the constitutional mandate.” Apportionment IV, 132 So.3d at 149. Indeed, the challengers’ principal claim in this litigation challenging the constitutional validity of the Legislature’s 2012 congressional redistricting plan involved evidence of the type of “entirely different, separate process” this Court warned would be “important evidence” of a constitutional violation.
Specifically, the challengers argued that the Legislature cooperated and collaborated with partisan political operatives aligned with the Republican Party to produce a redistricting plan that was drawn in contravention of article III, section 20, with the intent to favor incumbents and the Republican Party, which was the controlling political party in the Legislature at the time of the 2012 redistricting. Before the approval of the Fair Districts Amendment, this Court had previously acknowledged, in 1992, that there was “little doubt that politics played a large part” in the adoption of prior redistricting plans in this state, explaining that the protection of incumbents and favoritism of one party over another was inevitable — and certainly “not illegal.” In re Senate Joint Resolution 2G, Special Apportionment Session 1992 (In re Apportionment Law-1992), 597 So.2d 276, 285 (Fla.1992). But at that time, such partisan intent was not legally prohibited.
The acceptability of partisan political gerrymandering in this state dramatically changed in 2010. With “fairness” as its “focus,” the Fair Districts Amendment now “expressly prohibits” redistricting “practices that have been acceptable in the past, such as crafting a plan or district with the intent to favor a political party or an incumbent.” Apportionment I, 83 So.3d at 605, 607, 616. These “express new standards” thus afford Florida citizens “explicit constitutional protection” under article III, section 20, of the Florida Constitution, “against partisan political gerrymandering.” Apportionment IV, 132 So.3d at 138-39.
Specifically, article III, section 20, of the Florida Constitution, provides in its entirety as follows:
In establishing congressional district boundaries:
(a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect represen-' tatives of their choice; and districts shall consist of contiguous territory.
(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection (a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
(c) The order in which the standards within subsections (a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.
Art. Ill, § 20, Fla. Const.
Under article III, section 20, “there is no acceptable level of improper intent.” Apportionment I, 83 So.3d at 617. The prohibition on improper partisan intent in redistricting applies, “by its express terms,” to “both the apportionment plan as a whole and to each district individually” and does not “require a showing of malevolent or evil purpose.” Id. A finding of partisan intent therefore renders the Legislature’s redistricting plan constitutionally invalid, as the Florida Constitution expressly “outlaw[s] partisan political gerrymandering.” Apportionment TV, 132 So;3d at 137. As we explained in Apportionment I:
The Florida Constitution now expressly prohibits what the United States Supreme Court has in the past termed a proper, and inevitable; consideration in the apportionment process.
Florida’s express constitutional standard, however, differs from equal protection political gerrymandering claims under either the United States or Florida Constitutions. Political gerrymandering claims under the Equal Protection Clause of the United States Constitution focus on determining when partisan districting as a permissible exercise “has gone too far,” so as to “degrade a voter’s or a group of voters’ influence on the political process as a whole.”
In contrast to the federal equal protection standard applied to political gerrymandering, the Florida Constitution prohibits drawing a plan or district with the intent to favor or disfavor a political party or incumbent; there is no acceptable level of improper intent. It does not reference the' word “invidious” as the term has been used by the United States Supreme Court in equal protection discrimination cases, and Florida’s provision should not be read to require a showing of malevolent or evil purpose.
83 So.3d at 616-17 (citations omitted).
“Florida’s constitutional provision prohibits intent, not effect,” which is to say that a map that has the effect or result of favoring one political party over another is not per se unconstitutional in the absence of improper intent. Id. at 617. “Thus, the focus of the analysis must be on both direct and circumstantial evidence of intent.” Id. “One piece of evidence in isolation may not indicate intent, but a review of all of the evidence together may lead this Court to the conclusion that the plan was drawn for a prohibited purpose.” Id at 618. The relevant inquiry for discerning improper partisan intent “focuses on whether the plan or district was drawn with this purpose in mind.” Id.
A. TRIAL COURT’S FINDING OF UNCONSTITUTIONAL INTENT
The challengers’ claim of unconstitutional intent in the enacted congressional redistricting plan was that the Legislature communicated and collaborated with partisan political operatives, in the shadow of the Legislature’s purportedly open and transparent redistricting process, to produce a map favoring Republicans and incumbents. After hearing all the evidence presented during a twelve-day bench trial held from late May to early June 2014, and evaluating the credibility of all the witnesses, the trial court found that the challengers had proven their case and concluded that the Florida Legislature’s enacted 2012 congressional redistricting plan was drawn in violation of article III, section 20.
The introductory paragraph of the trial court’s judgment stated that “districts 5 and 10 were drawn in contravention of the constitutional mandates of Article III, Section 20,” but, in its discussion throughout the course of its forty-one-page order, the trial court more generally referred to and found that a group of partisan political operatives “conspire[d] to manipulate and influence the redistricting process ” and succeeded in “infiltrating] and influencing] the Legislature, to obtain the necessary cooperation and collaboration” to “taint the redistricting process and the resulting map with improper partisan intent.” (Emphasis supplied.)
Specifically, the trial court stated, in pertinent part, as follows:
[The challengers’] theory of the case regarding improper intent is that Republican leadership in the House and the Senate, their key staff members, and a small group of Republican political consultants conspired to avoid the effective application of the Fair District Amendments to the redistricting process and thereby successfully fashioned a congressional map that favors the Republican Party and its incumbents. The strategy they came up with, according to the [challengers], was to present to the public a redistricting process that was transparent and open to the public, and free from partisan influences, but to hide from the public another secretive process. In this secretive process, the political consultants would make suggestions and submit their own partisan maps to the Legislature through that public process, but conceal their actions by using proxies, third persons who would be viewed as “concerned citizens,” to speak at public forums from scripts written by the consultants .and to submit proposed maps in their names to the Legislature, which were drawn by the consultants.
What is clear to me from the evidence, as described in more detail below, is that this group of Republican political consultants or operatives did in fact conspire to manipulate and influence the redistricting process. They accomplished this by writing scripts for and organizing groups of people to attend the public hearings to advocate for adoption of certain components or characteristics in the maps, and by submitting maps and partial maps through the public process, all with the intention of obtaining enacted maps for the State House and Senate and for Congress that would favor the Republican Party.
They made a mockery of the Legislature’s proclaimed transparent and open process of redistricting by doing all of this in the shadow of that process, utilizing the access it gave them to the decision makers, but going to great lengths to conceal from the public their plan and their participation in it. They were successful in their efforts to influence the redistricting process and the congressional plan under review here. And they 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.
The closer question is whether the Legislature in general, or the leadership and staff principally involved in drawing the maps, knowingly joined in this plan, or were duped by the operatives in the same way as the general public. The Defendants argue that( if such a conspiracy existed, there is no proof that anyone in the Legislature was a part of it. If portions of the operatives’ maps found their way into the enacted maps, they say, it was not because leadership or staff were told or knew they came from this group, but rather because the staff, unaware of their origins, saw the proposals as improving the draft maps they were working on.
The most compelling evidence in support of this contention of the Defendants is the testimony of the staff members who did the bulk of the actual map drawing for the Legislature. I had the ability to judge the demeanor of Alex Kelly, John Guthrie and Jason Poreda at trial and found each to be frank, straightforward and credible. I conclude that they were not a part of the conspiracy, nor directly aware of it, and that significant efforts were made by them and their bosses to insulate them from direct partisan influence. I accept' that their motivation in drawing draft maps for consideration of the Legislature was to produce a final map which would comply with all the requirements of the Fair District Amendments, as their superiors had directed them.
That being said, the circumstantial evidence introduced at trial convinces me that the political operatives managed to find other avenues, other ways to infiltrate and influence the Legislature, to obtain the necessary cooperation .and collaboration to ensure that their plan was realized, at least in part. They managed to taint the redistricting process and the resulting map with improper partisan intent. There is just too much circumstantial evidence of it, too many coincidences, for me to conclude otherwise.
(Emphasis supplied.)
Having reviewed the trial court’s factual findings and the record, and viewing the evidence in the light most favorable to the trial court’s finding of unconstitutional intent, we set forth the following relevant factual background of the case. See Berges v. Infinity Ins. Co., 896 So.2d 665, 676 (Fla.2004) (explaining that it “is not the function of this Court to substitute its judgment for that of the trier of fact”); Markham v. Fogg, 458 So.2d 1122, 1126 (Fla.1984) (stating that an appellate court “should not substitute its judgment for that of the trier of fact” as long as there is competent, substantial evidence to support the findings, and concluding upon review of conflicting evidence that there was “ample credible evidence adduced at the trial to sustain the trial judge’s findings”); see also Hausdorff v. Hausdorff, 913 So.2d 1267, 1268 (Fla. 4th DCA 2005) (viewing the evidence in the light most favorable to the challenged judgment in ■ evaluating whether competent, substantial evidence supported the trial court’s rulings); Mesick v. Loeser, 311 So.2d 132, 136 (Fla. 2d DCA 1975) (findings by the lower court as a trier of fact come to the appellate court “clothed with a heavy presumption of correctness and where there is substantial competent evidence to sustain the actions of the trial court,” the appellate court cannot substitute its own opinion on the evidence but “must indulge every fact and inference in support of that judgment,” which is the equivalent of a jury verdict). We note, given the nature of the challengers’ claim, that circumstantial evidence is often essential in proving a conspiracy— and indeed may be the only type of evidence available. See Anheuser-Busch, Inc. v. Campbell, 306 So.2d 198, 199 (Fla. 1st DCA 1975) (“It is a well settled rule that circumstantial evidence is admissible in civil conspiracy cases.”); see also Resnick v. State, 287 So.2d 24, 26 (Fla.1973) (holding that a criminal conspiracy need not be proved by only direct evidence).
As we recount the facts, we emphasize that not every meeting held or every communication made was improper, illegal, or even violative of the letter of the Fair Districts Amendment. We set forth the pertinent facts in the record because, collectively, the evidence that the challengers were able to uncover after a protracted discovery process demonstrates a different scenario than the entirely open and transparent process touted by the Legislature when this Court considered the original apportionment challenges to the state Senate and House maps in Apportionment I. This is, indeed, what the trial court — which heard and considered all this evidence— found.
We also emphasize that since many of the e-mails were deleted or destroyed, we still may have only a partial picture of the behind-the-scenes political tactics. As the trial court found, “the Legislators and the political operatives systematically deleted almost all of their e-mails and other documentation relating to redistricting.” The Legislature did so even though it had acknowledged that litigation over the redistricting plan was “a moral certainty.” Indeed, if not for the production of some documents from the political consultants, including Marc Reichelderfer and Pat Bainter, there would be no record of the separate process undertaken by the consultants and no way to establish whether or not this process involved the collusion of the Legislature and ultimately affected the enacted map, as the trial court concluded.
We further understand that “taking the politics out of politics” is itself a difficult challenge, considering that partisan political gerrymandering was the norm for both political parties during prior redistricting processes in this state. Nevertheless, the facts that we recount provide the backdrop as to why we reject the Legislature’s defense — which focuses on the political consultants’ efforts to “influence the redistricting process” and “make themselves relevant” despite their “exclusion from the decision-making process” — that depicts the political consultants and a few errant staffers as independent, self-motivated culprits, individuals who did not have the ability to and did not, in fact, influence the Legislature’s decisions regarding where to draw the lines. • And, finally, we emphasize that a finding of unconstitutional intent to favor a political party or incumbent does not necessarily mean that those who made the decisions acted with “malevolent or evil purpose,” which is not required for a finding of unconstitutional intent under the Fair Districts Amendment. Apportionment I, 83 So.3d at 617.
B. EVIDENCE OF UNCONSTITUTIONAL INTENT
A month after the Florida voters approved the Fair Districts Amendment during the November 2010 general election, then-Speaker of the House Dean Cannon authorized a meeting in December 2010 at the headquarters of the Republican Party of Florida, involving Republican political consultants and legislative staffers, to discuss the upcoming redistricting process. This gathering was described by one of the consultants at trial as a meeting of “people that, prior to passage of the [new constitutional standards], would have generally been involved in the redistricting process.”
The four key political consultants in attendance, who became major figures in the redistricting trial, were (1) Rich Heffley, (2) Frank Terraferma, (3) Marc Reichel-derfer, and (4) Pat Bainter. Heffley is a consultant who has worked with many Republican legislators and candidates for public office, including Senator Don Gaetz, the Chairman of the 2012 Senate Committee on Reapportionment. Heffley had been involved in prior redistricting processes in Florida in 1992 and 2002 and, by the summer of 2011, was being paid $10,000 per month by the Republican Party of Florida for unspecified redistricting services. Terraferma is also a consultant who has worked for a number of Republican legislators and candidates, including Representative Will Weatherford, the Chairman of the 2012 House Redistricting Committee. Terraferma had previously been hired by Heffley to work for the Republican Party of Florida and went back to work for the party as Director of House campaigns in 2011. He was described by employees of a national Republican organization, in an invitation for a meeting held in Washington, D.C., in June 2011 with key individuals involved in the redistricting process, as a “genius map drawer.” Rei-chelderfer is another consultant who has worked with several Republican legislators and candidates, including former Speaker Dean Cannon. Reichelderfer is also one of Cannon’s longtime personal friends, dating back over twenty years to their days together as Young Republicans. He was, at the time of the 2012 redistricting, considered part of Cannon’s “inner circle,” and he had a good working relationship with Heffley. Bainter is the owner of a Gaines-ville, Florida, based political consulting firm known as Data. Targeting, Inc., which has as one of its largest clients the Republican Party of Florida. Between January of 2011 and November of 2012, the Republican Party of Florida paid Data Targeting, Inc., almost $3 million for consulting, polling, and direct mail services.
These four consultants, along with employees of the Republican Party of Florida, met in the initial December 2010 meeting with Alex Kelly, the staff director for the House Redistricting Committee; Chris Clark, the chief legislative aide for Senator Gaetz; and attorneys for the Legislature. At a second meeting the following month, in January 2011, the consultants, met with Senator Gaetz, Representative Weather-ford, Alex Kelly, and Kelly’s Senate counterpart, John Guthrie.
These meetings were not open to the public and there is no record of what was discussed. As the trial court stated, “[n]o one who testified at trial about [the meetings] seemed to be able to remember much about what was discussed, though all seemed to agree that the political consultants were told that they would not have a ‘seat at the table’ in the redistricting process,” as they had during redistricting in years past. According to the trial court, “[n]o one clearly articulated what that meant exactly, but there was testimony that they were told that they could still participate in redistricting through the public process ‘just like any other citizen.’ ”
Reichelderfer, the consultant who has worked with then-Speaker Cannon, testified that one topic of discussion at the meetings, as the trial court noted, was “whether a privilege could be identified to prevent disclosure of redistricting-related communications among political consultants, legislators, and legislative staff members.” The conclusion reached at the meetings, according to. the trial court, was “that no privilege would apply.” After the first meeting, in December 2010, Reichel-derfer prepared a memorandum that included the following question: “Communication with outside non-lawyers — how can we make that work?”
Another question included in the Rei-chelderfer memorandum was, “Evolution of maps — Should they start less compliant and evolve through the process — or— should the first map be as near as compliant as possible and change very little?” Reichelderfer acknowledged at trial that it was “possible” he discussed with Speaker Cannon the issues identified in this initial memo he prepared. The trial court would later reference Reichelderfer’s memo in rejecting part of the Legislature’s argument that there could be “no improper partisan intent in the drafting of the maps” because, the Legislature asserted, “as things progressed, each succeeding map that was drawn was an improvement over the one before it in terms of compactness, leaving cities and counties intact and following geographical boundaries.” “Coincidentally,” the trial court stated, “that corresponds with a strategy suggested from Reichelderfer’s notes, i.e., start with less compliant maps and work toward a more compliant map.”
The trial court found that there was “no reason to convene two meetings just to tell active political partisans of the Republican Party that they would not ‘have a seat at the table.’ ” The trial court also noted “a few curious things about these meetings and their connection to subsequent events that are troubling.”
Specifically, even though the consultants supposedly had no “seat at the table,” the trial court found that they continued to be involved in the process. In June 2011, an e-mail was sent from Senator Gaetz’s email address to legislators to provide information about upcoming public hearings regarding redistricting. A “blind copy” of this e-mail was sent to Heffley, the consultant under contract with the Republican Party of Florida, and to Terraferma, the “genius map drawer.” The trial court found that this was evidence that either Senator Gaetz or “someone in his office” was “keeping these operatives in the loop.”
Another e-mail, sent in October 2011 from Terraferma to Representative Weatherford, reported that Kirk Pepper, the Deputy Chief of Staff for then-Speaker Cannon, was “huddled on a computer” at the Republican Party of Florida’s headquarters, working with consultant Heffley on “[cjongressional redistricting if I had to guess?” Pepper acknowledged at trial that he must have been speaking with Heffley at the Republican Party of Florida’s headquarters at the time, but stated that he “never met with Rich Heffley about redistricting.” He had no explanation as to why Terraferma, whom Pepper had previously worked with at the Republican Party of Florida, would have thought otherwise. The trial court found that it was “possible that Terraferma was mistaken or simply speculating without .any basis,” but this communication caused the trial court to “wonder why [Terraferma] would make this assumption if Pepper really had nothing to do with the redistricting process.”
As it turned out, Pepper acted as a conduit between the consultants and the Legislature. According to testimony relied on by the trial court, Cannon staffer Pepper “regularly” provided advance, nonpublic copies of draft redistricting maps to consultant Reichelderfer. The evidence, which came from document production by Reichelderfer since, as the trial court noted, neither Pepper nor Speaker Cannon preserved any records, demonstrated that between November 2011 and January 2012, Pepper transmitted to Reichelder-fer — through his personal e-mail account, a “Dropbox” account he later deleted, and a thumb drive — at least twenty-four draft congressional redistricting maps prepared by the Legislature, mostly before they were released to the public. In some instances, Pepper sent Reichelderfer maps the Legislature prepared but never released to the public.
Although Pepper testified at trial that he acted “without Speaker Cannon’s approval” and, in retrospect, considered his decision to provide Reichelderfer with maps to have been “a mistake,” Pepper was later hired by Cannon’s private firm after Cannon left office. Cannon described Pepper as “a loyal employee,” but testified that he did not know about Pepper’s transmission of maps to Reichelder-fer until it was reported in the media during the litigation in this case.
While they denied doing so, the trial court found that Pepper and Reichelderfer “communicatefd] about the political performance of the maps.” In one instance, after Reichelderfer expressed concerns that the draft of a Central Florida district occupied by incumbent Republican Representative Daniel Webster was “a bit messed up,” Pepper asked Reichelderfer, “[p]erformance or geography?” Reichel-derfer acknowledged during testimony at trial that “performance” in that context would “[generally” refer to the political performance of the district, although there is no record of his response to Pepper. Reichelderfer testified that he could not recall whether or how he answered that question. He spoke on the phone “regularly” with Pepper but denied having “specific conversations about political performance.”
Despite asking, “[p]erformance or geography?” Pepper testified at trial that he did not want to know from Reichelderfer if there was a problem with the political performance of that particular district. Instead, he provided a lengthy explanation that his question was a “sarcastic” response to remind Reichelderfer “to be quiet,” because they were not supposed to: talk about redistricting or the political implications of certain maps. Pepper stated of his question, “[fit’s like if you were talking to someone that you knew very well and had known for a long period of time, you could say something in writing that other people might take differently than you meant it.” The trial court discredited Pepper’s explanation as “very unusual and illogical.”
After receiving maps from Cannon staffer Pepper, Reichelderfer modified the maps to increase the Republican performance of the districts, and he and the other consultants traded numerous maps back and forth with each other. Of significance, the trial court found that some of Reichel-derfer’s modifications corresponded to the actual decisions the Legislature ultimately made.
In one graphic example, cited by the trial court, Reichelderfer’s revisions changed the performance of Districts 5, 7, 9, and 10 from four Democratic performing or leaning seats to two Democratic and two Republican performing seats, as eventually reflected in the actual map enacted by the Legislature. Another map, which was known to have been drawn by Terraf-erma, shared eleven identical districts with a map submitted through the public process by an individual named Alex Posada, who denied ever creating or submitting the map and stated that he had not authorized anyone to submit a map using his name.
For his part, Reichelderfer described his interest in the Legislature’s maps as important to him “professionally” to “know the lay of the land,” similar to Bainter’s explanation that his interest was an “after-the-fact” one merely for the sake of his own “[k]nowledge” — even though the evidence presented at trial demonstrated that the consultants spent considerable time, including weekends, early mornings, and late nights, making revisions to draft maps, and even though communications between these consultants regarding the maps referred to having “a job to do,” wanting to “spread” the maps “around,” and “[h]ead[ing] up” to Tallahassee to “[t]ell[] folks to look at” certain maps.
The trial court found that the consultants “did their best to evade answering direct questions” at trial, “often using semantic distinctions to avoid admitting what they had done.” As this Court previously noted with respect to documents produced by Bainter that included communications among the consultants regarding maps,, “the documents supported] the challengers’ claim that Bainter was not just drawing maps out of casual ‘after-the-fact interest,’ but was actively engaged in an extensive process to draw maps favorable to a particular political party or incumbent and facilitate the submission of those maps to the Legislature through ‘shell people’ without any indication that the maps were drawn by the political consultants.” Apportionment VI, 150 So.3d at 1129. For instance, one email produced by Bainter stated that a Republican activist in Gainesville was “getting” him “10 more people at least,” while another e-mail indicated that if one of the consultants could “think of a more secure and failsafe way to engage our people, please do it.”
The trial court found that the Bainter documents “evidenced a conspiracy to influence and manipulate the Legislature into a violation of its constitutional duty” to redistrict in a neutral, non-partisan fashion, and explained that those documents were “very helpful” in demonstrating not only that the consultants “were submitting maps to the legislature” through third parties, but “how extensive and organized that effort was, and what lengths they went to in order to conceal what they were doing.” The trial court also found it “hard to imagine” that the legislative leaders and staffers who allegedly told these consultants that they could not be involved, other than through the public process, “would not have expected active participation in the public redistricting. process by those political consultants at the meetings” and would not have questioned both why the consultants were not in attendance at the public hearings and why none of the- maps coming from the public had any of' the consultants’ names on them. “I would think,” the trial court opined, “that the staff and legislative leaders would find [this lack of public participation by the consultants] extremely strange, that they might even ask why not. But they didn’t.”
According to the trial court, however, the consultants had no need to publicly participate in order to influence the Legislature’s redistricting plan. Throughout the process, Reichelderfer was in direct contact with Speaker Cannon. In one late November 2011 e-mail from Cannon to Reichelderfer, which copied Pepper, Cannon commented that “we are in fíne shape” as long as “the Senate accommodates the concerns that you [Reichelderfer] and Rich [Heffley] identified in the map that they put out tomorrow.”
Cannon testified at trial that these “concerns” he was referring to were that the House and Senate “not roll out maps that were either completely inconsistent with one another or designed to show some inadequacy in terms of either minority representation or defect in [the House’s] maps,” so that reconciliation between the two chambers would be difficult. The trial court found Cannon’s explanation to be “a stretch given the language used.”
The evidence also revealed that Cannon asked Reichelderfer and Heffley, who was described as being “close” to Senator Gaetz, to serve, as the trial court put it, “as go betweens for leadership of the two chambers regarding the redistricting process.” According to testimony relied on by the trial court, the asserted reason for Reichelderfer’s and Heffley’s involvement was “purportedly because of a lack of a good working relationship between the Speaker of the House and the President of the Senate.”
The trial court was skeptical of that explanation, however, stating that “by all accounts, the actual staff members of each chamber who were working on the maps got along well with each other, as did the chairmen of the redistricting committees.” The trial court actually found the staff members who testified at trial to be “straightforward and credible” and “not a part of the conspiracy.” In any event, the trial court specifically found that “in their insider roles, Heffley and Reichelderfer did not have to speak directly to staff map drawers, or even leadership, to infect and manipulate the map drawing and adoption process.”
At trial, Reichelderfer admitted to discussing “global” redistricting concerns with Speaker Cannon, but denied talking to Cannon “specifically about individual maps.” Reichelderfer lived near Cannon, their families spent time together, Reichel-derfer saw Cannon on the weekends, and Reichelderfer met with Cannon to discuss issues he was dealing with as Speaker.
Reichelderfer also correctly informed other consultants about which of the Legislature’s draft maps was most “relevant,” meaning which was most likely to advance in the process. Among the seven congressional- maps released to the public by the House on December 6, 2011, the map identified by Reichelderfer as the map most likely to advance was the map that was revised to become the House’s final proposed congressional map. At trial, Rei-chelderfer could not “recall specifically” how he knew that map to be the most likely to advance in the process, simply stating that if he “had that information for sure,” he wouldn’t have used the qualifier “I think” in his response. He testified that he “could have” just thought it “was the easiest to pair up with the Senate version of the map.”
Communications among the consultants revealed particular emphasis on certain areas of the map. For instance, in one email referencing a configuration in a draft map that kept District 14 contained entirely within Hillsborough County — a configuration less favorable to Republicans than the configuration ultimately enacted, which crossed Tampa Bay to pick up voters from Pinellas County in District 14 — Terrafer-ma noted to Heffley that “Tampa is far from perfect.” The enacted configuration of Districts 13 and 14 — where District 14 includes a portion of Pinellas County, rather than being strictly within Hillsbor-ough — produced one safe Democratic seat and one seat that either party could win, rather than two naturally-occurring seats favorable to Democrats. This was the configuration preferred by the consultants.
In another e-mail between Terraferma, Heffley, and Reichelderfer sent on the same day the Senate released a public map that did not divide the City of Homestead — a division considered by the consultants to be important , to favor Republicans — Terraferma noted that District 26 was “pretty weak.” Heffley responded, “The [H]ouse needs to fix a few of these,” and Terraferma, copying Reichelderfer, responded, “yes.” The enacted configuration did, indeed, split the City of Homestead between Districts 26 and 27, which turned one Republican district and. one Democratic district into two Republican-leaning districts.
The decision to split Homestead was one of several key decisions made in a nonpublic meeting between Senator Gaetz, Representative Weatherford, and the two staff directors of the respective redistricting committees. While the meeting of two legislators in private does not result in a violation of article III, section 4(e), of the Florida Constitution — which requires all meetings between “more than two members” of the Legislature to be open to the public — the lengths to which the legislators went to avoid triggering the requirements for a- public meeting in the final stages of negotiating and making changes to the districts raises questions as to the motivation of the Republican leadership. It also stands in stark contrast to statements from that leadership proclaiming that the 2012 redistricting process would be the most open and transparent in Florida’s history. And, it can be readily distinguished from other legislative decisions where private negotiations are undertaken, since redistricting involves “a constitutional restraint on the Legislature’s actions.” Apportionment IV, 132 So.3d at 147.
Indeed, many final revisions that affected numerous districts in some way — such as the decision to push the Black Voting Age Population (BVAP) of District 5 over 50%, add an appendage to District 10, split Homestead, and increase the Hispanic Voting Age Population (HVAP) of Districts 9 and 14 — were made in this non-public meeting that occurred after the House and Senate had each passed their versions of the congressional map. The decisions regarding District 5 and District 10 specifically contributed to the trial court’s decision to invalidate those two districts.
There was, in general, either conflicting or vague testimony as to why certain decisions were made in this meeting, including that the decisions were necessary to comply with the federal Voting Rights Act or some other policy concern. Because the meeting was not public, however, there is no official record of the reason for these decisions, which ultimately benefitted the Republican Party.
One example of a key decision made during this non-public meeting was the decision to push the BVAP of District 5 over 50%. Although he could not recall specifics, Representative Weatherford testified that making District 5 a majority-minority district was “important to the Senate” and that the Senate made a “compelling case” for raising the BVAP of the district over 50%. The highest BVAP for District 5 in any of the House’s draft maps was slightly over 48%. Senator Gaetz testified that the Senate believed it was important to increase the BVAP to over 50% to protect against a federal Voting Rights Act challenge, and that he also favored keeping the City of Sanford in the district, which the House’s version of the map did not do.
Before Representative Weatherford met with Senator Gaetz, Speaker Cannon met separately with Representative Weather-ford and staff in another non-public meeting. Speaker Cannon anticipated that the Senate would ask to make District 5 a majority-minority district and apparently instructed the House during this non-public meeting to agree to the Senate’s request. Ensuring that the BVAP of District 5 ended up over 50% was of particular concern to Reichelderfer, the consultant who was part of Speaker Cannon’s “inner circle.”
At trial, Reichelderfer testified, without specificity, that he believed pushing the BVAP of District 5 over 50% was important “to comply with the Federal Voters Rights Act,” based on a general recollection of discussions with lawyers whose names he could not recall. He thought it would be “politically damaging” if the map was invalidated because of a successful Voting Rights Act challenge, even though the 2002 version of District 5 did not have a BVAP of over 50% and was not invalidated during Voting Rights Act litigation. See Martinez, 234 F.Supp.2d at 1307 (noting that the BVAP of the 2002 version of District 5 was “only” 46.9%, but that the district “will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice”). At the same time, increasing the BVAP of District 5 — as occurred from early versions of the Legislature’s draft maps to the enacted version — decreased the Democratic performance of surrounding districts.
The trial court found the Legislature’s justification for making District 5 a majority-minority district to be “not compelling” and invalidated the enacted version of District 5. The Legislature’s decision — made in a non-public meeting, after Cannon’s instruction in a separate non-public meeting, consistent with a concern Reichelder-fer had long expressed — is therefore circumstantial evidence of collusion between the Legislature and the consultants, particularly where the trial court found there to have been no showing that it was legally necessary to create a majority-minority district.
There is no record from the time many of these key decisions were made to explain the Legislature’s reasoning. This is, of course, partly because the final decisions were made in a non-public meeting. But it is also because the Legislature, as the trial court found, deleted almost all emails and documentation related to redistricting.
Former Speaker Cannon testified that his e-mails were automatically deleted after six months unless specifically saved as having “significant archival or legal significance.” If that were the case, then exchanges between Speaker Cannon and consultant Reichelderfer that occurred in late November 2011 — discovered from document production by Reichelderfer — would not have been deleted until May 2012 unless they were intentionally deleted before that time. But May 2012 was several months after the lawsuit was filed in this case, naming Cannon as a party and making a reality what the Legislature itself had previously acknowledged, as far back as December 2012, to have been “a moral certainty” from “start to finish” during the redistricting process — that records related to redistricting would be sought by the challengers and relevant to adjudicating the constitutionality of the Legislature’s redistricting plan.
Ultimately, based on the evidence the challengers uncovered and presented at trial, the trial court found that there was “just too much circumstantial evidence” and “too many coincidences” to reach any conclusion other than that the political operatives had “infiltrate[d] and influence[d] the Legislature” in order to “obtain the necessary cooperation and collaboration” to “taint the redistricting process and the resulting map with improper partisan intent.” While it is sometimes said that it is “hard to believe in coincidence,” the trial court determined in this case that, as the saying goes, it was “even harder to believe in anything else.” After reviewing all the evidence, both direct and circumstantial, the trial court thus concluded that the plan was drawn with improper partisan intent.
C. STEPS AFTER FINDING UNCONSTITUTIONAL INTENT
Despite its finding of unconstitutional partisan intent, however, the trial court invalidated only Districts 5 and 10, rejecting challenges to seven other individual districts. The trial court determined that there was no “distinction” between a challenge to the plan as a whole and a challenge to specific districts, and therefore “focused on those portions of the map” that it found to be “in need of corrective action in order to bring the entire plan into compliance with the constitution.”
Its finding of unconstitutional intent notwithstanding, the trial court applied a deferential standard of review in analyzing each challenged district, “deferring to the Legislature’s decision to draw a district in a certain way, so long as that decision does not violate the constitutional requirements.” Believing that the “more reliable” indicators of whether the plan was drawn with the intent to favor a political party or incumbent were the tier-two constitutional measures, the trial court “first examine[d] the map for apparent failure to comply with tier-two requirements of compactness and utilization of political and geographical boundaries where feasible, then consider[ed] any additional evidence that supports the inference that such districts are also in violation of tier-one requirements.”
Applying this analysis as to District 5, the trial court noted that the decision to increase the BVAP of District 5 over 50% was made at a non-public meeting at the end of the redistricting process and ultimately found that there was no showing “that it was legally necessary to create a majority-minority district.” The trial court therefore concluded that the challengers had proved “that District 5 unnecessarily subjugates tier-two principles of compactness” and that “portions of District 5 were drawn to benefit the Republican Party, in violation of tier-one.” .
As to District 10, the trial court noted an “odd-shaped appendage” and found that the challengers had “shown that the district could be drawn in a more compact fashion, avoiding this appendage.” The trial court therefore concluded, based in part on an inference it drew from the existence of the odd-shaped appendage that had no legal justification, that District 10 was drawn to benefit the Republican Party and the incumbent.
Accordingly, the trial court required Districts 5, 10, and “any other districts affected thereby” to be redrawn. But the trial court rejected the challenges to Districts 13,14, 21, 22, 25, 26, and 27, concluding that the challengers had not met their burden to demonstrate unconstitutionality and had not shown more than “de minim-is” tier-two violations.
As a remedy, the challengers urged the trial court to adopt one of their remedial plans, draw its own remedial plan, or hire an independent expert to draw a remedial plan. After a hearing, the trial court declined the challengers’ suggestions and determined that the Legislature should redraw the plan.
The Legislature held a special session in August 2014 to enact a remedial redistricting plan. During this session, the chairs of the respective redistricting committees again conducted non-public meetings with staff and counsel to negotiate the features of the revised plan. The Legislature made modest changes to correct the specific tier-two deficiencies identified in Districts 5 and 10, and, after the plan was signed into law, the trial court held another hearing to consider the validity of the revised plan and whether it could be implemented in time for the 2014 elections.
Concluding that the challengers’ objections to the validity of the remedial plan were without merit, the trial court approved the Legislature’s remedial redistricting plan and ordered the then-impending 2014 elections to proceed under the unconstitutional 2012 plan due to time constraints, with the remedial plan to take effect for the 2016 elections.