IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN
WEAVER, an individual; et al.,
Plaintiffs,
vs.
CASE NO. 2012-CA-000412
KEN DETZNER, in his official capacity
as Florida Secretary of State; PAMELA
JO BONDI, in her official capacity as
Attorney General; et al.,
Defendants.
____________________________________/
THE LEAGUE OF WOMEN VOTERS OF
FLORIDA; THE NATIONAL COUNCIL
OF LA RAZA; et al.,
Plaintiffs,
vs.
CASE NO. 2012-CA-000490
KEN DETZNER, in his official capacity
as Florida Secretary of State; THE FLORIDA
SENATE; et al.,
Defendants.
____________________________________/
ROMO PLAINTIFFS’ MOTION FOR CLARIFICATION OR, IN THE
ALTERNATIVE, RECONSIDERATION OF THE JANUARY 17, 2013 ORDER
GRANTING IN PART AND DENYING IN PART THE FLORIDA HOUSE OF
REPRESENTATIVES’ MOTION TO COMPEL DISCOVERY RELATED TO
ALTERNATIVE MAPS
The Romo Plaintiffs respectfully request that the Court clarify, or in the
alternative, reconsider its January 17, 2013 Order (the “Order”) to the extent that it
requires the disclosure of privileged communications with a non-testifying expert, NCEC
Services, Inc. (“NCEC”), including communications among and between NCEC, the
Florida Democratic Party (the “FDP”), and/or Plaintiffs’ counsel. 1 The Romo Plaintiffs
are producing map-related documents in response to the Court’s Order, but they seek
clarification or reconsideration with respect to the specific categories of documents
addressed in this motion.
As established by the accompanying affidavit of counsel for the Romo Plaintiffs,
John Devaney, NCEC was retained in anticipation of this litigation to provide consulting
services as a non-testifying expert.
The Florida Rules of Civil Procedure prohibit
discovery of non-testifying experts except upon a showing of “exceptional
circumstances” not present here. Fla. R. Civ. P. 1.280(b)(5)(B). Although the Romo
Plaintiffs made this argument in their opposition to the House of Representatives’
(“Defendants”) motion to compel, neither the Court’s oral ruling nor the Order evaluated
whether Defendants had made the requisite showing. As described below, Defendants
plainly failed to meet their burden. Accordingly, the communications with NCEC remain
protected by the work product privilege under well-established Florida law.
Furthermore, as written, the Order could be read to reach communications among
and between NCEC, the FDP, and Plaintiffs’ counsel, which are protected by the
attorney-client privilege. For these reasons, the Romo Plaintiffs request that the Court
clarify or, in the alternative, reconsider its ruling as it relates to these types of privileged
materials.
I.
BACKGROUND
Prior to initiating this litigation in February of 2012, counsel for the Romo
Plaintiffs engaged NCEC as a consulting expert, primarily to assist with evaluating the
1
The Romo Plaintiffs have conferred with counsel for Defendants and have been advised
that Defendants will oppose this motion. For ease of reference, the Order is attached as
Exhibit A to this brief.
2
Legislature’s 2012 congressional map when enacted (the “2012 Plan”) and preparing
alternative maps for potential use in these proceedings. Declaration of John Devaney
(“Devaney Decl.”) ¶ 2. Counsel never intended that any NCEC consultant would testify
at trial and all communications with NCEC were conducted with the understanding that
they were protected, under well-established Florida law, by privilege. Id. ¶ 3. In its
capacity as a consulting expert, NCEC was involved in several communications with the
client about potential alternative draft maps. NCEC was retained as a consulting expert
precisely because of its expertise in redistricting (specifically in mapdrawing), and its
involvement in client communications was necessary to assist counsel in rendering legal
advice to the client about potential alternative draft maps. These communications were
understood to be confidential. Id. ¶ 4.
Shortly after filing their Complaint, Plaintiffs requested that this Court consider
the matter on an expedited schedule. The Court rejected Plaintiffs’ request for expedited
consideration of the entire matter, but suggested that “[i]t may be possible . . . to separate
Plaintiffs’ ‘facial’ challenges to the legislation from the ‘as applied’ challenges, and to
resolve the former on an expedited basis.” (Ex. B at 2).
The Court explained that it
anticipated that the initial “facial” review would be “similar to that recently conducted by
the Florida Supreme Court in In re: Senate Joint Resolution of Apportionment 1176, No.
SC12-1 (Fla. S. Ct. March 9, 2012).” Id. In other words, there would be no discovery,
but Plaintiffs would be free to submit alternative maps against which to contrast the 2012
Plan. The Court directed Plaintiffs to file any such motion for facial review by March 26,
with a hearing to be held on April 16. Id. at 3.
3
As the Court envisioned, there was no testimony at the April hearing, only
argument from counsel regarding the facial validity of the 2012 Plan. Together with their
brief, Plaintiffs submitted an alternative map to provide an example of how the
Legislature might have drawn the new congressional district lines differently. In support,
Plaintiffs submitted a description of the data, software and criteria used in creating the
alternative map, the compactness scores for the map, the map’s population by district,
and reports on the map’s county boundaries, boundaries of voting tabulation districts and
constituents from prior districts. (Ex. C). Plaintiffs also submitted affidavits by counsel
explaining the process by which the objective data for analyzing the alternative map was
obtained (Ex. D), and by testifying expert Stephen Ansolabehere who analyzed and
assessed the facial validity of the alternative map (Ex. E). On April 30, the Court issued
an order denying Plaintiffs’ motion and specifically declining to find “that the [2012
Plan] is, on its face, in violation of the Florida State Constitution.” Order Denying
Motions for Summary Judgment 1.
As counsel has previously advised Defendants and this Court, the Romo Plaintiffs
do not intend to present the same alternative map submitted to the Court at the facial
review hearing at trial. Instead, the Romo Plaintiffs will present a different alternative
map, which is currently being prepared and which will be disclosed to Defendants,
together with an expert report and supporting data, by the Court’s disclosure deadline of
February 15, 2013. Devaney Decl. ¶ 5. In the meantime, Defendants have sought broad
discovery related to the now-irrelevant alternative map presented to the Court last Spring.
At a hearing held on December 11, 2012, the Court considered Defendants’
motion to compel and issued an oral ruling granting it in part and denying it in part. The
4
Court directed the parties to submit a proposed order implementing that ruling, but when
the parties attempted to reach agreement on the form of an order they discovered that
they had very different interpretations of the Court’s conclusion. As a result, the parties
submitted competing proposed orders. (Ex. F & G). The Order that the Court ultimately
issued on January 17, which appears to be a modified version of the Order submitted by
Plaintiffs, provides in relevant part:
[F]or any alternative map the Plaintiffs have or intend to present, either in
part or whole, as evidence in this case, Defendants are entitled to the
discovery requested, including documents and information relating to the
process by which alternative maps were prepared, identities of individuals
who prepared them, and activities and communications concerning
alternative maps.
(Ex. A at 2-3). Concerned that this language could be read to reach material that is
privileged under well-established Florida law, the Romo Plaintiffs felt it necessary to
seek clarification or, in the alternative, reconsideration. In the meantime, the Romo
Plaintiffs are complying with the Court’s order by producing map-related documents that
do not raise the concerns addressed here.
II.
ARGUMENT
A.
Communications With Non-Testifying Expert NCEC Regarding Alternative
Maps Are Protected By the Work-Product Privilege
Because NCEC was retained by Plaintiffs in anticipation of this litigation and will
not be called as a witness at trial, communications with NCEC are protected by the work
product privilege and may not be subject to discovery unless Defendants make a showing
of “exceptional circumstances.” Fla. R. Civ. P. 1.280(b)(5)(B). Defendants have not and
could not make this showing. The Court’s order granting in part and denying in part
Defendants’ motion to compel should either be clarified or modified, so as not to reach
communications with NCEC for the reasons discussed below.
5
Florida Rule of Civil Procedure 1.280(b)(5)(B) strictly limits discovery from nontestifying or consulting experts:
A party may discover facts known or opinions held by an expert who has
been retained or specially employed by another party in anticipation of
litigation or preparation for trial and who is not expected to be called as a
witness at trial, only . . . upon a showing of exceptional circumstances
under which is it impracticable for the party seeking discovery to obtain
facts or opinions on the same subject by other means.
Id. 2 In order “[t]o demonstrate a ‘need’ sufficient to compel discovery of work-product
materials, ‘a party must present testimony or evidence demonstrating that the material
requested is critical to the theory of the requestor’s case, or to some significant aspect of
the case.’” Nevin v. Palm Beach Cnty. Sch. Bd., 958 So.2d 1003, 1006-07 (Fla. 1st DCA
2007) (quoting Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003)).
Where, as in this case, the party seeking discovery has access to the same factual
information underlying the non-testifying expert’s opinions and is able to obtain its own
expert opinion regarding those facts, it cannot meet the “exceptional circumstances”
requirement. Id. at 1007.
The Florida District Courts of Appeal have strictly enforced this Rule, and
regularly quash orders entered by the circuit court where the court (1) fails to expressly
hear evidence on whether the exceptional circumstances requirement has been met; (2)
orders production of potentially-protected expert material prematurely (i.e., before the
expert has been identified as a trial witness); or (3) conducts the requisite exceptional
circumstances inquiry, but applies too broad a standard. See, e.g., Taylor v. Penske Truck
Leasing Co., 975 So.2d 588, 589 (Fla. 1st DCA 2008) (quashing order requiring
2
The Rule also provides that discovery may be obtained under the circumstances
provided for in Rule 1.360(b), but that rule is not relevant to this litigation.
6
disclosure of expert opinions and factual bases underlying plaintiff’s answers to
interrogatories where lower court failed to conduct an evidentiary hearing as to
exceptional circumstances); Muldrow v. State, 787 So.2d 159, 161 (Fla. 2d DCA 2001)
(quashing order “to the extent that it compelled disclosure of experts consulted for trial
but not listed as witnesses”); Horne v. K-Mart Corp., 558 So.2d 1079, 1080 (Fla. 4th
DCA 1990) (quashing order requiring production of video showing party’s “expert (not
yet designated for trial) performing and explaining tests on the venetian blind and the
adjustment cord” central to the personal injury suit where defendants had access to the
blind and photographs of the blind and could obtain a court order to gain access to
plaintiffs’ former home to view the window area). The strict rule against discovery of
consulting experts absent exceptional circumstances applies even when the expert in
question was formerly designated as a testifying expert, but has since been withdrawn.
Forman v. Fink, 646 So.2d 236, 237 (Fla. 3d DCA 1994). See also Durflinger v. Artiles,
727 F.2d 888, 891 (10th Cir. 1984) (finding equivalent federal rule violated when
defendants sought information from expert who had been listed as a trial witness for
plaintiffs but who plaintiffs subsequently advised defendants they would not be calling);
In re Shell Oil Refinery, 132 F.R.D. 437, 440-41 (E.D. La. 1990) (finding non-testifying
experts protected by the rule even where party initially disclosed expert’s reports “as
preliminary reports of experts it expected to call at trial” but decided not to call the
experts at trial prior to the court-imposed deadline for exchange of witness lists).
Under the law summarized above, communications with NCEC are clearly
protected by the work product privilege. NCEC was hired in the capacity of a consulting
expert to assist the Romo Plaintiffs in this litigation, and testimony from NCEC will not
7
be proffered at trial. Defendants were therefore required to produce evidence to support a
finding of “exceptional circumstances” in order to obtain discovery of communications
with or reports by NCEC. But Defendants produced no such evidence; the hearing on
their motion to compel considered only legal argument and at no point did the Court—
either in its oral ruling or its Order—conduct an inquiry into whether exceptional
circumstances permitted the discovery of communications with and materials prepared by
NCEC, a non-testifying expert. 3 For this reason alone, to the extent the Order could be
read to reach communications with and materials prepared by NCEC, it would depart
from the essential requirements of law and should be clarified or modified. See Taylor,
975 So.2d at 589.
But even if the Court had held an evidentiary hearing and conducted the requisite
analysis, Defendants would not have been able to meet their burden. It is undisputed that
Defendants have access to the same factual information that underlies the map submitted
at the facial review and are able to obtain their own expert opinion regarding those facts.
Nevin, 958 So.2d at 1007. The fact that Defendants would rather have this discovery to
demonstrate, for example, an inconsistency at trial, is not sufficient to establish the
exceptional showing of need required under Rule 1.280(b)(5)(B). Nevin, 958 So.2d at
1007.
3
Based on the transcript of the December 11th hearing, it appears that the Court’s
primary concern was ensuring there is a proper foundation for—and proper disclosure
of—any map that the Romo Plaintiffs present to the Court for possible adoption in place
of the 2012 Plan. (Ex. H). The Romo Plaintiffs’ production of the map that they intend
to introduce at trial, and all non-privileged documents and data relating to it, will provide
both the requisite foundation for the map’s admission and meet all disclosure
requirements.
8
Finally, the fact that Plaintiffs previously produced an alternative map that was
prepared with NCEC’s assistance does not strip NCEC of the protection afforded nontestifying experts. The Rule’s plain language applies to all experts retained to assist in
litigation who are not expected to testify at trial. NCEC clearly did not “testify” at the
April 16th facial review hearing, either in the presence of the Court or by affidavit. But
even if submission of the map alone could be construed as NCEC “testifying” (and there
is no legal basis for such a conclusion), that hearing was clearly not a “trial.” Not only
does the Rule provide no exception for discovery of experts who testify at preliminary
hearings, the First District Court of Appeal has expressly found that the Rule applies even
where consulting experts provide the sole source for documents produced in the course of
litigation. See Taylor, 975 So.2d at 589 (quashing order compelling plaintiffs to disclose
the expert opinions and factual bases for the answers to interrogatories in personal injury
action where plaintiff had no memory of the accident and relied on consulting experts to
answer interrogatories). In such cases, the party seeking the discovery still must produce
evidence that demonstrates an exceptional need for the information. Id. Because no such
need has been or could be demonstrated here, the Court’s order should be clarified or
modified to protect communications with and materials prepared by NCEC as required by
Rule 1.280(b)(5)(B).
B.
Communications Among NCEC, the FDP and Plaintiffs’ Counsel Are Also
Protected by the Attorney-Client Privilege
The Court’s Order should also be clarified or modified so as not to reach
privileged communications among NCEC, the FDP, and Plaintiffs’ counsel. 4 In the
4
In the same Order, the Court denied Defendants’ motion to compel communications
among and between the Romo Plaintiffs, Plaintiffs’ counsel and the FDP, recognizing
9
course of reviewing information potentially responsive to Defendants’ motion to compel,
Plaintiffs have become concerned that the Order could be interpreted broadly to reach
such communications. This would be improper under Florida law.
Under Florida law, “[a] communication between lawyer and client is
‘confidential’ if it is not intended to be disclosed to third persons other than: 1. Those to
whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those
reasonably necessary for the transmission of the communication.”
Fla. Stat. §
90.502(1)(c). Consistent with this definition, courts have long understood that “[t]he
attorney-client privilege extends to agents of the attorney where the confidential
communication was made for the purpose of assisting the attorney in rendering legal
advice to the client.” Graff v. Haverhill N. Coke Co., No. 1:09-CV-670, 2012 WL
5495514, at *15 (S.D. Ohio Nov. 13, 2012) (citing cases). See also Reginald Martin
Agency, Inc. v. Conseco Med. Ins. Co., 460 F. Supp. 2d 915, 921 (S.D. Ind. 2006)
(finding communications between client and consulting expert subject to the attorneyclient privilege); Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 616
(2007) (holding attorney-client privilege protects “statements made to or shared with
necessary agents of the attorney or the client, including experts consulted for the purpose
of facilitating the rendition of [legal] advice”); 2 Jack B. Weinstein & Margaret A.
Berger, Weinstein’s Evidence ¶ 503.12[5][b] at 503-312.4 (2012) (noting that the
attorney-client privilege is recognized as extending to non-testifying experts consulted by
that these documents are protected by the attorney-client privilege. (Ex. A at 2). As
explained in the opposition to Defendants’ motion to compel these communications, the
FDP and the Romo Plaintiffs share a common interest in this litigation and the FDP
facilitated some confidential and privileged communications with the Romo Plaintiffs.
See Romo Plaintiffs’ Opposition to Florida House of Representatives’ Motion to Compel
Production of Privileged Documents 2-3, 5-6.
10
attorneys where the expert obtains information from confidential communications with
the client). Unlike the work-product privilege that applies to consulting experts, “[t]he
attorney-client privilege is not subject to any balancing test and . . . cannot be discovered
by a showing of need, undue hardship, or some other competing interest.” Hagans v.
Gatorland Kubota, LLC/Sentry Ins., 45 So.3d 73, 76 (Fla. 1st DCA 2010).
For the reasons discussed above, communications with NCEC—whether
involving the FDP or not—are privileged under the work-product rule applicable to
consulting experts. But communications among NCEC and Plaintiffs’ counsel, which
involved the FDP and were made in furtherance of the rendition of legal services to
Plaintiffs and the FDP are also protected by the attorney-client privilege.
In these
conversations, NCEC was properly acting in its role as consulting expert as Plaintiffs’
counsel’s agent and the communications were (1) made for the purpose of assisting
Plaintiffs’ counsel in rendering legal advice to Plaintiffs and the FDP; (2) confidential;
and (3) reasonably necessary for the communication. Devaney Decl. ¶¶ 3-4. Because the
attorney-client privilege is absolute and there can be no showing of need or exceptional
circumstances that can displace it, the Court’s order should be clarified or modified to
except the privileged communications between NCEC, the FDP and Plaintiffs’ counsel.
III.
CONCLUSION
It is well-established that, under Florida law, discovery of a non-testifying expert
may only be had upon a showing of exceptional circumstances. Defendants have not and
could not make such a showing under the circumstances here. Accordingly, the Court’s
Order should be clarified or modified to exempt discovery of communications with and
documents prepared by Plaintiffs’ non-testifying expert NCEC.
In addition, the
communications between and among NCEC, the FDP and Plaintiffs’ counsel are
11
protected by the attorney-client privilege.
The Court’s order should be clarified or
modified to ensure the protection of these materials.
Respectfully submitted,
Dated: January 28, 2013
By:___/s/_Mark Herron_____
Mark Herron
Florida Bar No.: 199737
Email: mherron@lawfla.com
Robert J. Telfer III
Florida Bar No.: 128694
Email: rtelfer@lawfla.com
Angelina Perez
Florida Bar No.: 98063
Email: aperez@lawfla.com
MESSER CAPARELLO, P.A.
2618 Centennial Place
Tallahassee, FL 32308
Telephone: (850) 222-0720
Facsimile: (850) 558-0659
Marc Elias (admitted pro hac vice)
Kevin J. Hamilton (admitted pro hac vice)
John Devaney (admitted pro hac vice)
Abha Khanna (admitted pro hac vice)
Elisabeth Frost (admitted pro hac vice)
Noah Guzzo Purcell (admitted pro hac vice)
PERKINS COIE LLP
700 13th St., N.W., Suite 700
Washington, D.C. 20005-3960
Tel: (202) 654-6200
Fax: (202) 654-6211
Email: MElias@perkinscoie.com
Email: KHamilton@perkinscoie.com
Email: JDevaney@perkinscoie.com
Email: AKhanna@perkinscoie.com
Email: EFrost@perkinscoie.com
Email: Npurcell@perkinscoie.com
Attorneys for the Romo Plaintiffs
12
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by Electronic Mail this 28th day of January, 2013 to each of the following
parties on the attached service list:
__/s/ Mark Herron_____
Mark Herron
MESSER CAPARELLO, P.A.
2618 Centennial Place
Tallahassee, FL 32308
Telephone: (850) 222-0720
Email: mherron@lawfla.com
13
SERVICE LIST
Daniel E. Nordby, General Counsel
Florida House of Representatives
422 The Capitol
402 South Monroe Street
Tallahassee FL 32399-1300
Primary Email:
daniel.nordby@myfloridahouse.gov
Secondary Email:
Lynn.imhof@myfloridahouse.gov
Charles T. Wells
George N. Meros, Jr.
Jason L. Unger
Andy Bardos
GRAY ROBINSON, P.A.
Post Office Box 11189
Tallahassee, FL 32302
Primary Email:
charles.wells@gray-robinson.com
george.meros@gray-robinson.com
Secondary Email:
Croberts@gray-robinson.com
mwilkinson@gray-robinson.com
Primary Email:
jason.unger@gray-robinson.com
andy.bardos@gray-robinson.com
Secondary Email:
tbarreiro@gray-robinson.com
Michael A. Carvin
Louis K. Fisher
JONES DAY
51 Louisiana Avenue N.W.
Washington, D.C. 20001
macarvin@jonesday.com
lkfisher@jonesday.com
Miguel A. De Grandy
MIGUEL DE GRANDY, P.A.
800 Douglas Road, Suite 850
Coral Gables, FL 33134
mad@degrandylaw.com
George T. Levesque, General Counsel
The Florida Senate
404 South Monroe Street
Tallahassee, FL 32399-1100
Primary Email:
levesque.george@flsenate.gov
Secondary Email:glevesque4@comcast.net
carter.velma@flsenate.gov
Ronald G. Meyer
Lynn Hearn
MEYER, BROOKS, DEMMA & BLOHM.
P.A.
131 North Gadsden Street
P.O. Box 1547 (32302)
Tallahassee, FL 32301
rmeyer@meyerbrookslaw.com
lhearn@meyerbrookslaw.com
14
Jessica Ring Amunson
Michael B. DeSanctis
Kristen M. Rogers
Paul M. Smith
Christopher Deal
JENNER & BLOCK LLP
1099 New York Ave, N.W., Suite 900
Washington, D.C. 20001
jamunson@jenner.com
mdesanctis@jenner.com
krogers@jenner.com
psmith@jenner.com
cdeal@jenner.com
Stephen Hogge
STEPHEN HOGGE, ESQ., LLC
117 South Gadsden Street
Tallahassee, FL 32301
Stephen@stephenhoggeesq.com
J. Gerald Hebert
J. GERALD HEBERT, P.C.
191 Somervelle Street, Unit 405
Alexandria, VA 22304
Hebert@votelaw.com
Charles G. Burr
BURR & SMITH, LLP
Grand Central Place
442 W. Kennedy Blvd., Suite 300
Tampa, FL 33606
cburr@burrandsmithlaw.com
Allison J. Riggs
Anita S. Earls
SOUTHERN COALITION FOR SOCIAL
JUSTICE
1415 W. Highway 54, Suite 101
Durham, NC 27707
Allison@southerncoalition.org
anita@southerncoalition.org
Timothy D. Osterhaus, Deputy Solicitor
General
Blaine Winship, General Counsel
OFFICE OF THE ATTORNEY GENERAL
The Capitol, PL-01
Tallahassee, FL 32399
Timothy.osterhaus@myfloridalegal.com
Blaine.winship@myfloridalegal.com
Victor L. Goode
Dorcas R. Gilmore
NAACP
4805 Mt. Hope Drive
Baltimore, MD 21215-3297
vgoode@naacpnet.org
dgilmore@naacpnet.org
Gerald E. Greenberg
Adam M. Schachter
GELBER SCHACHTER & GREENBERG,
P.A.
1441 Brickell Avenue, Suite 1420
Miami, FL 33131
Primary Emails:
ggreenberg@gsgpa.com,
aschachter@gsgpa.com
Secondary Email:
dgonzalez@gsgpa.com
15
Harry O. Thomas
Christopher B. Lunny
RADLEY THOMAS YON & CLARK, P.A.
301 S. Bronough Street, Suite 200
Tallahassee, FL 32301-1722
Primary Email:
hthomas@radeylaw.com
Secondary Email:
jday@radeylaw.com
Primary Email:
clunny@radeylaw.com
Secondary Email:
cdemeo@radeylaw.com
Jon L. Mills (Miami Office)
Karen C. Dyer (Orlando Office
Elan M. Nehleber (Orlando Office_
BOIES, SCHILLER & FLEXNER, LLP
100 SE 2nd Street, Ste. 2800
Miami, FL 11313-2144
121 S Orange Avenue, Suite 840
Orlando, 32801-3233
Primary Emails:
jmills@bsfllp.com
enehleber@bsfllp.com
ecruz@bsfllp.com
Raoul G. Cantero
Jason N. Zakia
Jesse L. Green
WHITE & CASE, LLP
Southeast Financial Center, Ste. 4900
200 South Biscayne Boulevard
Miami, FL 33131
Primary Emails:
rcantero@whitecase.com
jzakia@whitecase.com
jgreen@whitecase.com
Ashley Davis
Assistant General Counsel
Florida Department of State
R.A. Gray Building
500 S. Bronough Street
Tallahassee, FL 32399
Telephone: (850) 245-6536
Cell: (850) 294-8018
Ashley.davis@dos.myflorida.com
D. Kent Safriet
Thomas R. Philpot
Hopping, Green & Sams, P.A.
P.O. Box 6526
Tallahassee, FL 32314
Telephone: (850) 222-7500
Facsimile: (850) 224-8551
kents@hgslaw.com
dhealy@davidhealylaw.com
16
EXHIBIT A
EXHIBIT B
EXHIBIT C
IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN
WEAVER, an individual; WILLIAM
EVERETT WARINNER, an individual;
JESSICA BARRETT, an individual; JUNE
KEENER, an individual; RICHARD
QUINN BOYLAN, an individual; and
BONITA AGAN, an individual,
CASE NO. 2012-CA-00412
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State, and PAM
BONDI, in her official capacity as
Attorney General of the State of Florida,
Defendants.
THE LEAGUE OF WOMEN VOTERS OF
FLORIDA, et al.
CASE NO. 2012-CA-00490
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State; THE FLORIDA
SENATE; MICHAEL HARIDOPOLOS, in
his official capacity as President of the
Florida Senate; THE FLORIDA HOUSE
OF REPRESENTATIVES; and DEAN
CANNON, in his official capacity as
Speaker of the Florida House of
Representatives,
Defendants.
APPENDIX TO ROMO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
INJUNCTIVE RELIEF:
ROMO PLAINTIFFS’ PROPOSED CONGRESSIONAL MAP
72972-0003/LEGAL23201604.1
INDEX TO APPENDIX
TAB A:
Romo Plaintiffs’ Proposed Congressional Map (Statewide and Regional)
TAB B:
Description of Software, Data, and Criteria Used to Create Romo Map
TAB C:
Compactness Scores for Romo Map
TAB D:
Population by District for Romo Map
TAB E
Report on County Boundaries for Romo Map
TAB F
Report on Boundaries of Voting Tabulation Districts for Romo Map
TAB G
Report on Constituents From Prior Districts in Romo Plan
-272972-0003/LEGAL23201604.1
TAB A
72972-0003/LEGAL23201604.1
Proposed 2012 Florida Congressional Districts
Romo Map
Escambia
Holmes
Jackson
Santa Rosa
01
Walton
Washington
Leon
Calhoun
Jefferson
Hamilton
Madison
Baker
02
Bay
Liberty
Suwannee
Wakulla
Taylor
Gulf
Franklin
Nassau
04
Gadsden
Okaloosa
Duval
Columbia
Union
Clay
Bradford
Lafayette
St. Johns
03
06
Gilchrist
Alachua
Putnam
Dixie
Flagler
Levy
Marion
Volusia
24
Sumter
Citrus
07
27
Hernando
Seminole
Lake
08
Orange
05
Brevard
Pasco
26
Pinellas
10
11
Osceola
Polk
Hillsborough
09
Indian River
12
Manatee
Hardee
Highlands
15 Okeechobee
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TAB B
72972-0003/LEGAL23201604.1
Description of Data, Software, and Criteria Used in Creating Romo Plan
Redistricting Software
The proposed Romo Congressional Plan was created with Maptitude for Redistricting, Version 6.0.
Maptitude for redistricting is a special version of Maptitude that includes tools for creating, analyzing, and
mapping congressional, state legislative, city council, county commission, school, water, or any other type
of districts. The software was developed by Caliper Corporation, founded in 1983 and headquartered in
Newton, Massachusetts. The company is a worldwide technology leader in the development of geographic
information systems (GIS), Transportation Planning Software, and Traffic Simulation Software. Caliper
mapping and GIS software is used by organizations around the world including national governments,
government agencies of all types, major corporations, and numerous institutions of higher learning.
Maptitude for Redistricting is used by the Department of Justice and the majority of state legislatures. The
software incorporates geography and data from the most recent census.
Data Used
x 2010 Census Redistricting Population Data from the U.S. Census Bureau
x 2010 TIGER Census Geography from the U.S. Census Bureau
x Florida State and Federal General Election Results from 2006, 2008, and 2010 from data supplied
by the Florida Division of Elections
Criteria Followed
The Romo Congressional Plan was created by following the criteria in the Florida Constitution,
including Article III, Section 20, as well as the criteria in federal law, including Article I and the Fourteenth
Amendment to the U.S. Constitution and the Voting Rights Act.
TAB C
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! "#! EXHIBIT D
EXHIBIT E
IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN
WEAVER, an individual; WILLIAM
EVERETT WARINNER, an individual;
JESSICA BARRETT, an individual; JUNE
KEENER, an individual; RICHARD
QUINN BOYLAN, an individual; and
BONITA AGAN, an individual,
CASE NO. 2012-CA-00412
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State, and PAM
BONDI, in her official capacity as
Attorney General of the State of Florida,
Defendants.
THE LEAGUE OF WOMEN VOTERS OF
FLORIDA, et al.
CASE NO. 2012-CA-00490
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State; THE FLORIDA
SENATE; MICHAEL HARIDOPOLOS, in
his official capacity as President of the
Florida Senate; THE FLORIDA HOUSE
OF REPRESENTATIVES; and DEAN
CANNON, in his official capacity as
Speaker of the Florida House of
Representatives,
Defendants.
EXPERT AFFIDAVIT OF STEPHEN ANSOLABEHERE
1
EXPERT AFFIDAVIT OF STEPHEN ANSOLABEHERE
I. Background and Qualifications
1. I am a professor of Government in the Department of Government at Harvard
University in Cambridge, MA. Formerly, I was an Assistant Professor at the University
of California, Los Angeles, and I was Professor of Political Science at the Massachusetts
Institute of Technology, where I held the Elting R. Morison Chair and served as
Associate Head of the Department of Political Science. At UCLA and MIT, I taught PhD
level courses on applied Statistics in the Social Sciences. I directed the Caltech/MIT
Voting Technology Project from its inception in 2000 through 2004, am the Principal
Investigator of the Cooperative Congressional Election Study, a survey research
consortium of over 250 faculty and student researchers at more than 50 universities, and
serve on the Board of Overseers of the American National Election Study. I am a
consultant to CBS News’ Election Night Decision Desk. I am a member of the American
Academy of Arts and Sciences (inducted in 2007).
2. I have worked as a consultant to the Brennan Center in the case McConnell v. FEC,
540 US 93 (2003). I have testified before the U. S. Senate Committee on Rules, the U. S.
Senate Committee on Commerce, the U. S. House Committee on Science, Space, and
Technology, the U. S. House Committee on House Administration, and the
Congressional Black Caucus on matters of election administration in the United States.
I filed an amicus brief with Professors Nathaniel Persily and Charles Stewart on behalf of
neither party to the U. S. Supreme Court in the case of Northwest Austin Municipal
Utility District Number One v. Holder, 557 US (2009). I am consultant for the
2
Rodriguez plaintiffs in Perez v. Perry, currently before the District Court in the Western
District of Texas, and in United States v. State of Texas, currently before the District
Court in the District of Columbia; I consulted for the Guy plaintiffs in Guy v. Miller in
Nevada state court.
3. My areas of expertise include American electoral politics and public opinion, as well
as statistical methods in social sciences. I am author of numerous scholarly works on
voting behavior and elections, with particular focus on the application of statistical
methods. This scholarship includes articles in such academic journals as the Journal of
the Royal Statistical Society, the American Political Science Review, the American
Economic Review, the American Journal of Political Science, Legislative Studies
Quarterly, the Quarterly Journal of Political Science, Electoral Studies, and Political
Analysis.
I have published articles on issues of election law in the Harvard Law
Review, Texas Law Review, Columbia Law Review, New York University Annual
Survey of Law, and the Election Law Journal, for which I am a member of the editorial
board. I have coauthored three scholarly books on electoral politics in the United States,
The End of Inequality: Baker v. Carr and the Transformation of American Politics,
Going Negative: How Political Advertising Shrinks and Polarizes the Electorate, and
The Media Game: American Politics in the Media Age. I am coauthor with Ted Lowi,
Ben Ginsberg, and Ken Shepsle of American Government: Power and Purpose, a college
textbook on American government. My curriculum vita with publications list is
attached to this report.
3
4. I have been hired by the Romo Plaintiffs to analyze the Florida Congressional plans
with respect to partisanship, incumbency, race, compactness, and respect for political
subdivision boundaries. I am retained for a rate of $400 per hour, which is my standard
consulting rate.
II. Sources of Information
5. I consulted the following sources in addressing the factual issues discussed below. I
used MyDistrictBuilder and relevant Block Assignment, Shape Files, and Data files
available through the Florida Senate Redistricting Website. The weblink to the Current
2002 Florida Congressional District Map is
http://www.flsenate.gov/Session/Redistricting/Plan/fl2002_con. The weblink to the
Enacted 2012 Florida Congressional District Map (C9047) is
http://www.flsenate.gov/Session/Redistricting/Plan/h000c9047.
I consulted statistical reports available from the Florida Senate Redistricting Website and
the Florida House redistricting website:
http://www.myfloridahouse.gov/Sections/Redistricting/Redistricting2012.aspx.)
Election results and voter registration data and maps are available
at: http://mydistrictbuilder.wordpress.com/opendata/..
The “Redistricting Plan Data Report” for each plan provides information on the number
of municipal boundaries and county lines crossed by each district. The file “Census and
ACS Summary Statistics” provides information on the total populations and population
deviations of each district in each plan and on the racial composition of the districts.
4
The firm NCEC provided me with necessary files corresponding to the districts defined
in the Romo Map discussed throughout this report. Statistics on aggregate voter
registration in Florida are available at:
http://election.dos.state.fl.us/voter-registration/statistics/elections.shtml#2000
Finally, I consulted data from the National Exit polls for 2008 and 2010 for the state of
Florida. Available at: http://www.cnn.com/ELECTION/2008/results/polls/#FLP00p1,
and http://www.cnn.com/ELECTION/2010/results/polls/#val=FLG00p1.
These data are also available through the Roper Center
(http://www.ropercenter.uconn.edu/elections/common/state_exitpolls.html#.T2zYxo4ZD
XU).
5
IV. FINDINGS
Overview
6. The Florida Constitution establishes several criteria across which to evaluate any
Congressional District map. These are (1) representation of minority groups, (2) not
intentionally favoring or disfavoring a party in any district, (3) not intentionally favoring
or disfavoring an incumbent in any district, (4) geographic compactness, and (5) respect
for county, municipal and other political boundaries.
7. This report assesses the 2002 Florida Congressional Map (Current Map), the 2012
Enacted Florida Congressional Map (Enacted Map), and the Proposed Romo Florida
Congressional Map (Romo Map) along all five dimensions.
8. I find that the Enacted Map worsens geographic compactness in at least two
Congressional Districts (CDs). It has one extremely non-compact district (CD 5) that
cuts 8 county lines, 6 city lines, and 85 Voting Tabulation District lines. The Romo Map
has fewer districts that are highly non-compact than in the in Enacted Map, and the CDs
that are not compact in this plan are also not compact in the Enacted Map.
9. In terms of party, I find that the Current Map and the Enacted Map favor Republicans
and disfavor Democrats. I analyze two very close recent elections in Florida – the 2008
Presidential race and the 2010 Governor race. Under the Current Map and the Enacted,
the Republican candidate received pluralities of the votes in over 60 percent of the
districts. Using the 2008 Presidential vote as a measure, the Democrat won 51 percent of
6
the vote but the Republican won pluralities in 17 of 27 CDs and the Democrat won
pluralities in 10 CDs under the Enacted Map. The Romo Map treats the parties fairly.
Republicans won the plurality of the 2008 Presidential vote in 14 CDs and Democrats
won the plurality in 13 CDs under the Romo Map. Geographic dispersion of population
cannot account for the biases in the Current Map or the Enacted Map, as the Romo Map
avoids highly non-compact CDs and would produce a configuration of districts that fairly
divides districts between parties on the basis of statewide votes.
10. In terms of racial representation, I find that neither the Enacted Map nor the Romo
Map reduces the number of districts in which Blacks are a majority of the Voting Age
Population. The Romo Map increases by nearly 400,000 persons the number of Blacks
who would reside in districts in which they could elect their preferred candidates.
11. As part of my assessment of racial representation, I provide a functional analysis
based on voting behavior of racial groups statewide. I find that Blacks vote cohesively in
the State of Florida, but Hispanics show little or no cohesion. I also find low levels of
cohesion among Whites statewide.
12. In terms of incumbency, the Romo Map, on average, makes more substantial
changes in the composition of districts that the Enacted Map did. The average Percent of
Population from the Core District is 70 percent in the Enacted Map and 65 percent in the
Romo Map.
7
13. The Romo Map demonstrates that across the board improvements on every
dimension are possible and available. Comparison of that Map with the Current Map and
the Enacted Map highlights three areas where further reconfiguration of districts may be
required -- particularly around Jacksonville Area, the Orlando Area, and in the TampaSaint Petersburg Area.
Political Geography
14. Compactness is an instructive starting point to see how district boundaries divide the
geography of the state, and how current districts correspond to those in the Enacted Map.
A. Comparison of the Enacted Map and the Current Map
15. Table 1 presents a correspondence between the current districts and the enacted
districts. Each enacted district is listed next to the current district from which it derives
the highest share of its population.
16. The most widely used compactness score in districting is the Reock measure. This
measure compares the area of the actual district to the area of the smallest circle that
encompasses that district (also known as the smallest bounding circle). The idea behind
the score is that a circle is the most compact shape possible, and the most compact
possible district would itself be a circle. The score is the percent of the area of the
inscribed circle that is accounted for by the area of the district. It is not possible to draw
a legal map that consists solely of circles, but other compact shapes, such as hexagons,
could fill the entire area of a state. The area of these other highly compact shapes would
8
be quite close to the inscribing circle.
Highly elongated districts, for instance, would
have relatively small areas compared with the smallest circle that inscribes them. The
Figures in Table 1 were derived from the Maptitude redistricting software.
17. There is no firm guideline for what is “compact,” but rules of thumb have emerged.
First, a perfectly square district would have a Reock score of .6366 (area of square inside
area of circle). Second, districts with very low Reock scores, below 0.2 or 0.1, are widely
viewed as not compact.
18. Because Reock is a ratio of the district’s area to an inscribing area, an average Reock
score for an entire plan is difficult to interpret. The sum of the denominators (areas in the
inscribing circles) do not necessarily correspond to the area of the entire state. The same
problem arises with many other measures. Consequently, the Reock measure is more
readily interpreted as a description of characteristics of specific districts. It indicates
where compactness has increased or decreased, and it is useful for flagging problem
districts.
19. Table 1 presents the Reock measures for the Current Map and the Enacted Map.
20. Under the Current Map there are 6 CDs with Reock values of .2 or less. These are
CDs 3, 4, 8, 18, 21, and 22. I consider these to be highly non-compact districts.
9
21. Under the Enacted Map, CDs 5, 22, and 26 have Reock values below .2. In two of
these CDs, the Enacted Map worsened the compactness noticeably. These are new CDs 5
and 26 under the Enacted Map. In addition, CD 22 was highly non-compact under the
Current Map, and remains so in the Enacted Map.
22. Under the Current Map, CD 3 was one of the least compact districts, with a Reock
score of .14. The district does not abut a state border or coast. Under the Enacted Map,
CD 3 is renumbered CD 5. New CD 5 draws 80% of its population from old CD 3. The
Reock score of new CD 5 is .09. Since Reock is a ratio, this represents a substantial
decrease in compactness: a drop of .05, from .14 to .09 in this case, is a 36% decrease in
compactness. CD 5 is the least compact district in terms of the Reock measure in all
three of the maps considered here.
23. New CD 5 under the Enacted Map connects Jacksonville to Orlando, 143 miles to the
South. Along the way new CD 5 cuts 8 counties’ boundaries, the most of any district in
the Enacted Map. The districts with the next highest number of county crossings are new
CDs 3, 17, and 25, with 4 each.
New CD 5 crosses 6 cities’ boundaries, the third most
of any district in the Enacted Map. It trisects the city of Orlando and halves Jacksonville,
Gainesville, Sanford, Apopka, and Orange Park.
24. New CD 5 also has by far the most cuts (85) of Voting Tabulation Districts (VTDs).
The VTD splits created by the boundaries of CD 5 also create a large number of VTD
splits in CD 4 (in Jacksonville) and CD 10 (in Orlando) – the districts with the next
10
highest number of splits in VTDs (of 42 and 34, respectively). The large number of cuts
in Voting Tabulation Districts (VTDs) is of concern, because VTDs correspond to
precincts. The very large number of split VTDs in CD 5 will require county officials to
redraw many precincts is the map, and by a wide margin.
25. The shape of new CD 5 also affects the geography of surrounding districts,
particularly CDs 4, 7, and 10. New CD 4 forms a box around the northern end new CD 5
in Baker, Duval, and Nassau Counties, but new CD5 forms a jagged cut in the middle of
the Duval area, capturing part of the City of Jacksonville. New CD 5 snakes southward
cutting several counties and municipalities. In Seminole County it takes a chunk out of
the center of new CD 7, which would otherwise be a nicely compact district. CD 5
extends an arm into CD 7 and captures part of the City of Sanford, cutting county lines.
New CD 5 cuts into the center of Orlando nearly severing the eastern part of CD 10 from
the rest of this district, which represents Orlando and areas west of the city. As discussed
below, its construction also converts old CD 8 (new CD 10) from one in which
Democrats won a majority of votes to one in which Republicans win a majority of votes,
and prevents the creation of another district in the Orlando area in which Blacks have the
opportunity to elect their preferred candidates.
26. New CD 26 draws 59% of its population from old CD 25. It became less compact
because new CD 26 now includes the Florida Keys, whose natural features make the
district less compact.
11
27. CD 22 – which corresponds roughly to the same district in both maps – had a low
compactness score under the Current Map, and the 2012 model did not have a more
compact shape. CD 22 under the Enacted Map is a long narrow district stretching from
Palm Beach southward to Fort Lauderdale. New CD 22 draws 57% of its population
from old CD 22. It has a Reock score of .18. Most of the non-compactness arises from
the fact that the district runs along the shore, but some of the non-compactness also
occurs because of the boundaries of CD 20. New CD 20 intrudes from the north into CD
22 and captures parts of Lantana and Hypoluxo. CD 20 also intrudes from the south into
CD 22 and captures parts of Pompano Beach.
28. New CDs 13 and 14 also violate political and spatial geography in significant ways.
New CD 13 represents most of Pinellas County, and New CD 14 represents most of the
City of Tampa. However, new CD 14 jumps across the Tampa Bay and splits the City of
Saint Petersburg in half. The southern part of Saint Petersburg becomes part of new CD
14 and the rest of Saint Petersburg is assigned to new CD 13.
B. Comparison of the Romo Map and the Current Map
29. The Romo Map offers an alternative to configuration to the Enacted Map. Table 2
shows the correspondence between the districts proposed under the Romo Map and the
Current Map. The Table also displays the Reock scores for the proposed districts under
the Romo Map. The Figures in Table 2 were derived from the Maptitude redistricting
software.
12
30. The Romo Map begins by splitting in half the most overpopulated district in the
Current Map, current CD 22, to create one of two new CDs in the state—Proposed CD
27. The Romo Map then splits another highly overpopulated district, current CD 8, to
create the core of a second new district, proposed CD 26. Old CD 7 is also highly over
populated, and it and old CD 6 are used in reconstructing CDs 3 and 6.
31. Under the Romo Map, there are 2 CDs with Reock scores of .2 or less, compared
with 6 in the Current Map and 3 in the Enacted Map. Under the Romo Map, the districts
with very low compactness scores are proposed CDs 22 and 25. Proposed CD 22
corresponds to old CD 22 and, like the original district, is a long stretch along the coast.
Proposed CD 25 corresponds to CD 25 in the Current Map, and, as in the Enacted Map,
becomes much less compact because of the Keys. The Romo map makes noticeable
improvements on the Enacted Map in the Jacksonville area, the Orlando area, and the
Tampa-Saint Petersburg area.
32. The Romo Map takes a new approach to the Jacksonville area. It reconfigures old
CD 3 and creates a much more compact district in North Florida to represent Blacks in
the Jacksonville and Gainesville areas. Proposed CD 3 in the Romo Map creates a new
district largely out of old CDs 3 and 6. Proposed CD 3 has a Reock score of .27 – it is
twice as compact as old CD 3 and three times as compact as new CD 5 in the Enacted
Map. Also, old CD 4 in the Current Map has a Reock score of .18, and the Romo Map
improves that to .35.
13
33. The separation of CD 3 from Central Florida, allows for improvements in the
Orlando area. The Romo Map creates proposed CDs 7, 8, and 26 in Orlando, and they
have Reock scores of .35, .45, and .50, respectively. These CDs are a noticeable
improvement in compactness over current CDs 7, 8, and 24, which have Reock scores of
.22, .20, and .54.
34. In the Tampa-Saint Petersburg area, the Romo Map places CD 11 entirely inside
Hillsborough County, and it places Saint Petersburg entirely inside CD 10. It reduces
cuts in county and municipal boundaries without reducing the ability of Blacks in current
CD 11 to elect their preferred candidates.
35. The Romo Map increases substantially the compactness of CD 18 from .10 to .43.
36. The Romo Map also reduces the number of county line cuts created by CDs. Under
the Enacted Map, 46 counties are left whole, but there are a total of 61 county boundary
crossings, because some counties cross multiple boundaries. Under the Romo Map, 44
counties are left whole, but there are a total of 57 county boundary crossings. The Romo
Plan also creates fewer split VTDs, requiring less re-precincting. Under the Enacted
Map, 352 VTDs are split, compared with 202 split VTDs in the Romo Map.
37. In sum, geographic coherence is one important dimension by which to judge district
plans under Florida’s Constitution. The Enacted Plan improves on the Current Map on
average, but it worsens some districts; in particular the compactness of old CD 3 becomes
14
36% worse. The Romo Map offers an alternative approach, by minimizing the number
of highly non-compact districts while achieving more modest improvements in the more
compact current districts. As a result, the Romo Map achieves a reduction in the number
of highly non-compact districts in the Current Map from 6 to 2, and it does not render any
already non-compact districts substantially worse.
Party
38. The Florida Constitution states that three factors are of primary importance in
evaluating a plan: party, race and ethnicity, and incumbency. The remainder of this
report focuses on these three factors, with particular emphasis on party and race.
39. Intent to favor or disfavor a party in drawing a district is a first-tier consideration.
Systematic patterns in voting data can be indicative of intentions (as is the case with
determinations under Section 2 of the Voting Rights Act; see Thornburg v. Gingles, 478
U. S. 30 (1986)) and require closer investigation. I present here information on the
aggregate effects of the plans on election outcomes, as I find that the Current and Enacted
Maps contain substantial, plan-wide advantages for the Republicans.
40. I began my analysis of partisanship by examining party registration data provided by
the Office of the Florida Secretary of State. In 2000, there were 8,880,396 registered
voters in the State of Florida. Of these, 7,327,962 registered as either a Republican or a
Democrat, and 3,853,524 were Democrats, and 3,474,438 were Republicans. Based on
these data, there were 379,086 more registered Democrats than Republicans in the State
15
Florida in 2000. Also, Democratic registration comprised 52.6% of the two-party
registration (i.e., all persons who registered as either a Republican or a Democrat).
41. As of February 1, 2012, there were 12,264,831 registered voters in the State of
Florida. Of these, 9,325,398 (76% of all registrants) registered as either a Republican or
a Democrat. There were 4,952,688 registered Democrats, and 4,372,710 registered
Republicans. Based on these data, there are 579,978 more registered Democrats than
Republicans in the State Florida as of February 1, 2012.
Also, Democratic registration
comprised 53.1% of the two-party registration (i.e., all persons who registered as either a
Republican or a Democrat).
42. The registered voters in the State of Florida are somewhat more Democratic than
Republican in their party preferences. Over the past decade, Democratic registration has
not fallen.
43. Registration is one form of electoral choice; recent elections provide a similar picture
of how Floridians vote. Two recent close statewide elections are ideal for evaluating the
partisan orientation of districting plans in the State of Florida. According to election
reports publicly available from the Florida Secretary of State, in the 2008 Presidential
race, Democrat Barack Obama received 51.4% of all votes cast for the Democrat or
Republican, and John McCain received 48.6% of all votes cast for the Democrat or
Republican. In the 2010 Governor race, Republican Rick Scott won 50.6% of the votes
cast for Democrat or Republican, and Democrat Alex Sink received 49.4%.
16
44. These two elections, because they were so close, provide a good baseline against
which to assess the extent to which the lines drawn favor one party over another. In a
nearly tied election, we expect the parties to win nearly equal shares of seats if the maps
were drawn in a way so as to not favor one party over another.
45. In the Current Map, John McCain won a plurality of votes for President in 2008 in 15
of 25 CDs and Barack Obama won a plurality of votes in 10 of 25 CDs. In other words,
the existing map has a built in advantage for the Republicans. Even when the Democratic
candidate won a majority of votes statewide (in this case Obama), that vote only
translated into majorities of 40% of U. S. House seats.
46. In the Enacted Map, John McCain won a plurality of votes for President in 2008 in
17 of 27 CDs and Barack Obama won a plurality of votes in 10 of 27 CDs.
47. In the Romo Map, John McCain won a plurality of votes for President in 2008 in 14
of 27 CDs and Barack Obama won a plurality of votes in 13 of 27 CDs. Under this map,
in an election when the votes are split 50-50, the seats are also split approximately 50-50.
Neither party wins a large majority of seats when it does not win a majority of votes.
48. In the Current Map, Rick Scott won a plurality of votes for Governor in 2010
statewide and in 17 of 25 CDs. Alex Sink won 49% of votes, but only won a plurality of
votes in 8 of 25 CDs.
17
49. In the Enacted Map, Rick Scott won a plurality of votes for Governor in 2010 in 17
of 27 CDs and Alex Sink won a plurality of votes in 10 of 27 CDs. Under the Enacted
Map, Sink won a plurality in only 37% of CDs.
50. In the Romo Map, Rick Scott would win a plurality of votes for Governor in 2010 in
15 of 27 CDs, and Alex Sink would won a plurality in 12 of 27 CDs. Scott won a
plurality of votes statewide (by less than 1 percent) and wins a majority of seats.
51. The Republican Party’s advantage in the Enacted Map reflects biases throughout the
Current Map, but it also results from changes in particular districts. A specific instance
where the redrawing of district boundaries converts a Democratic district to a Republican
district occurs in new CD 10 under the Enacted Map. In current CD 8 under the Current
Map, Obama won 52.1 and McCain won 47.2% of the votes in 2008 and Sink won 48.1
and Scott won 48.1% of the vote in 2010. New CD 10 draws 59% of its population from
old CD 8. Obama would win 47.2% and McCain would win 52.0% of the vote for
President in 2008 under the new lines in the Enacted Map. Sink would win 43.8% and
Scott would win 52.3% of the vote for Governor in 2010. The difference is a 4 to 5 point
swing in the vote in the Republican direction. The swing is enough to change the district
to one that was either tied or slightly favoring the Democrats to one that clearly favors the
Republicans.
18
52. It is worth noting that the boundaries of CD 10 under the Enacted Map are affected
by the reconfiguration of new CD 5 in the Orlando area.
Racial Representation
53. Florida’s constitution protects against reductions in the representation of Blacks.
54. I focus on Blacks as opposed to Hispanics because, as discussed in Section B below,
Blacks statewide express a clear and distinct political preference in elections statewide,
but Hispanics do not. Thus, creation of districts in which Blacks have the ability to elect
their preferred candidates clearly affects the representation of that minority group.
A. Majority Black Districts
55. One, but certainly not the only, criterion for determining how much representation
Blacks receive under a given map is a simple count of the number of CDs in which that
group is a majority of the Voting Age Population (VAP). VAP is a widely used as a
standard because that captures measure the eligible electorate.
56. The Current Map contains two districts in which Blacks are a majority of the Voting
Age Population. These are CDs 17 and 23.
19
57. One other district, CD 3, is 49.9% Black Voting Age Population under the Current
Map.1 In CD 3, 48.8% of the population are Non-Hispanic Blacks of Voting Age, and
1.1% are Hispanic Blacks of Voting Age. Current CD 3 is under populated by 37,000
persons, so further changes in the district will be required simply to maintain equal
populations, and CD 3 is already one of the least compact districts in the Current Map.
58. The Enacted Map creates three districts in which Blacks are a majority of the Voting
Age Population. These are new CDs 5, 20, and 24. New CD 5 draws 81% of its
population from CD 3 from the Current Map and is 50.06% Black VAP. New CD 20
draws 73% of its population from current CD 23 and is 50.06% Black VAP. New CD 24
takes 80% of its population from current CD 17 and is 54.9% Black VAP.
59. The Enacted Map achieves a third majority Black district by extending the
boundaries of old CD 3, making the new CD 5 even less compact.
60. The Romo Map creates two districts in which Blacks are a majority of Voting Age
Population. These are CDs 17 and 23. CD 17 is 56.7% Black Voting Age Population,
and CD 23 is 51.4% Black Voting Age Population. The Romo Map, then, keeps the
same the number of majority Black Voting Age Population districts as in the Current
Map.
1
See the report “District Summary Population Report” at
http://www.flsenate.gov/Session/Redistricting/Plan/fl2002_con.
20
61. In sum, neither the Romo Map nor the Enacted Map reduces the number of Majority
Black VAP CDs. The Enacted Map increases that number by 1, but it does so by making
a new CD 5 that is highly non-compact and that extends from North Florida into Central
Florida.
62. The racial composition of a district does not necessarily mean that a district can or
will likely elect candidates preferred by a minority voters. There may be some majority
Black VAP districts that do not function as districts where Blacks in fact elect their
preferred candidates, and there may be districts in which Blacks can elect their preferred
candidates even though they are not a majority of the Voting Age Population. To
address the question of racial representation fully requires a functional analysis of
districts.
B. Functional Analysis, Part I: Voting Patterns of Blacks, Hispanics, and Whites
63. The starting point for any assessment of the implications of a map for minority
representation and voting rights is an analysis of the voting behavior of the various racial
groups in a state. Such analysis is used in conjunction with examination of district
composition and electoral outcomes to determine (1) where it is appropriate to draw
minority districts, (2) whether it is feasible to draw minority districts, (3) what form those
districts might take, (4) in which districts minority-preferred candidates win and lose, and
(5) whether a given configuration of districts strengthens or weakens minority
representation in a given area or statewide.
21
64. Specifically, if there is low or no voting cohesion among Hispanics or Whites, it
may be possible to create more districts in which Blacks can elect their preferred
candidates than is possible if all Black-opportunity districts are majority Black districts.
In a circumstance of relatively high cohesion among Blacks and low cohesion among
Whites, it may even be detrimental to Black representation and voting rights to pack them
into a small number of majority Black CDs.
65. I undertake such a functional analysis here following the approach outlined by the
Supreme Court of the United States indicates in Thornburg v. Gingles and followed in
subsequent voting rights cases. The first step of the analysis is to answer three factual
questions laid out by the Supreme Court of the United States. (1) Is the population of a
given minority group sufficiently numerous in a given area that a district can be created?
(2) Do minority groups vote cohesively as a group? (3) Do Whites vote cohesively as a
group and against the preferences of the minority voters (so called White Bloc Voting)?
These questions are called the three Gingles Preconditions. I focus on the second and
third in the analysis in this section.
66. In addition to these questions, reductions or increases in the ability of minorities to
elect their preferred candidates also depend on the rate at which others not in that group
vote in line with that group and, ultimately, on the incidence with which candidates
preferred by that group can win. I consider these matters with respect to specific areas
and districts in the next section.
22
67. The Supreme Court in Gingles pointed to two sorts of data analyses that may be
performed to addressing these questions. In particular, the Court instructed that exit poll
data or ecological regression analysis of the correlations between racial composition of
Voting Tabulation Districts and election returns may be used to measure the vote
preferences of different racial groups in a state or area. I perform such analyses for the
two elections examined in the previous section, the 2008 Presidential Election and the
2010 Governor election.
68. Statewide exit poll results indicate distinct voting patterns for Blacks, Hispanics, and
Whites. Exit Polls were conducted in the State of Florida by Edison Mitofsky Research
as part of the national exit polls in 2008. The national exit polls conducted in Florida in
2008 and 2010, have a margin of error of plus or minus 1.7 percentage points.2
69. Blacks in Florida vote cohesively. In the 2008 Presidential election, 96% Blacks in
the State of Florida voted for Obama and 4% voted for McCain. In the 2010 Florida
Governor election, 93% Blacks voted for Sink and 6% voted for Scott.
70. Hispanics statewide show little or no cohesion. In 2008, 57% of Hispanics voted for
Obama and 42% voted for McCain. In 2010, 48% of Hispanics voted for Sink and 50%
voted for Scott.
2
Summaries of the exit polls by state may be accessed online through any number of
outlets, such as CNN http://www.cnn.com/ELECTION/2008/results/polls.main/) Data
files for the exit polls are available through the Roper Center
(http://www.ropercenter.uconn.edu/elections/common/state_exitpolls.html#.T2zYxo4ZD
XU).
23
71. Whites show low levels of cohesion statewide. In 2008, 42% of Whites voted for
Obama and 56%% voted for McCain. In 2010, 41% of Whites voted for Sink and 56%
voted for Scott.
72. I performed ecological regression analyses and arrived at nearly identical estimates
as arise from the exit polls. Approximately 90 to 95% of Blacks voted for Sink or
Obama. Approximately 55% of Hispanics voted for Obama and approximately 49%
voted for Sink. Approximately 55 to 60% of Whites voted for McCain or Scott.
73. In sum, Blacks vote cohesively in the State, but Hispanics do not. Whites show low
levels of voting cohesion. Although a majority of Whites vote for different candidates
than those preferred by Black voters, a significant share of White voters do vote for the
same candidates as Blacks. Given the low levels of cohesion among Hispanics and
Whites, it may be possible to create districts in which Blacks can elect their preferred
candidates without having to create majority Black VAP CDs. Whether the maps do so
depends on a second aspect of the functional analysis.
C. Functional Analysis, Part II: Electoral Performance of Specific Districts
74. A second component of a functional analysis is to assess which districts actually
function for the election of candidates preferred by minority voters. Whether a district is
functioning depends on a variety of factors, including registration, the voting behavior of
groups, turnout, and, racial composition of districts. The simplest way to gauge whether a
24
district functions for minority voters is whether candidates preferred by minority voters
reliably win majorities of votes in the districts in question. I perform such an analysis
with respect to the current majority Black CDs, the districts in the Jacksonville area, the
districts in the Orlando area, and the districts in the Tampa-St. Petersburg area.
(i) Current CDs 17 and 23
75. All three maps examined here create majority Black VAP districts corresponding to
current CDs 17 and 23. In the Enacted Map these are CDs 24 and 20, respectively, and
in the Romo Map these are CDs 17 and 23, respectively.
76. In all three maps, the Black-preferred candidates won substantial majorities in the
two elections examined, i.e., the 2008 Presidential election and the 2010 Governor
election. This pair of CDs in all three maps functions as districts in which Blacks have
the ability to elect their preferred representatives.
(ii) Jacksonville Area
77. There is a significant Black population in City of Jacksonville and other nearby areas
in North Florida, including Gainesville. Most of this population is represented through
Current CD 3.
Blacks of Voting Age are not a majority of the VAP in Current CD 3;
Current CD 3 is already highly non-compact, and Current CD 3 is under populated by
37,000 persons.
25
78. Current CD 3 is a functioning district in which Black-preferred candidates win. In
2008, Obama won 70.6% of the vote and McCain won 28.5% of the vote. In 2010, Sink
won 65.5% of the vote and McCain won 31.6% of the vote.
79. New CD 5 corresponds to current CD 3. In 2008, Obama won 70.5% and McCain
won 28.8% of the vote. In 2010, Sink won 65.4% and Scott won 31.8% of the vote.
80. In the Romo Map, CD 3 captures the northern part of current CD 3, especially the
Jacksonville area, including Gainesville and Palatka. It keeps the district entirely in
North Florida and does not extend into the Orlando area. It also draws a substantial
portion of its population from current CD 6.
81. In proposed CD 3 under the Romo Map, Obama won 59.9% and McCain won 39.2%
of the 2008 presidential vote. Sink won 56.7% of the vote and Scott won 40.6% of the
vote for Governor in 2010.
82. In sum, in all three maps’ districts Blacks do or can elect their preferred in candidates
in the Jacksonville area.
(iii) Orlando area
83. In the Current Map, the Orlando area, including Orange and Seminole Counties is
divided into four districts. These are CDs 3, 8, 7, and 24. The city of Orlando is itself
divided among CDs 3, 8, and 24.
26
84. Setting aside CD 3 (discussed above), Black-preferred candidates win in 1 of the
current CDs in the Orlando area. Current CD 8 is a closely divided district. In current
CD 8, Obama won 52.1% and McCain won 47.2% of the vote for President in 2008.
Sink won 48.1% and Scott won 48.1% of the vote for Governor in 2010. In current CDs
7 and 24, Black-preferred candidates do not win. In current CD 7, Obama won 45.6%
and McCain won 53.2% of the vote for President in 2008. Sink won 41.9% and Scott
won 54.1% of the vote for Governor in 2010. In current CD 24, Obama won 48.5% and
McCain won 50.4% of the vote for President in 2004. Sink won 44.3% and Scott won
51.7% of the vote for Governor in 2010.
85. The Enacted Map divides the Orlando area into CDs 5, 7, 9, and 10, and all four
divide the City of Orlando.
86. Setting aside CD 5 (discussed above), Black-preferred candidates win pluralities in 1
of the other districts in the Orlando area under the Enacted Map. In new CD 9, Obama
won 60.2% and McCain won 39.0% of the vote for President in 2008. Sink won 53.0%
and Scott won 43.3% of the vote for Governor in 2010. In the remaining CDs, Blackpreferred candidates do not win. In new CD 7, Obama won 49.1% and McCain won
49.9% of the vote for President in 2008. Sink won 45.7% and Scott won 50.5% of the
vote for Governor in 2010. In new CD 10, Obama won 47.2% and McCain won 52.0%
of the vote for President in 2008. Sink won 43.8% and Scott won 52.3% of the vote for
Governor in 2010.
27
87. The Romo Map creates an additional district in which Blacks have the ability to elect
their preferred candidates in the Orlando area. The Romo Map divides the Orlando area
into CDs 7, 8, and 26. The other two maps divide the black population of the city of
Orlando across 3 districts and breaks Seminole County. The Romo Map divides Orlando
in half, keeps one of those CDs (8) wholly inside Orange County, and also keeps
Seminole County whole.
88. Setting aside CD 5 (discussed above), Black-preferred candidates win pluralities in 2
of the other districts in the Orlando area under the Romo Map. In proposed CD 8, Obama
won 57.8% and McCain won 41.5% of the vote for President in 2008. Sink won 53.7%
and Scott won 43.4% of the vote for Governor in 2010. In proposed CD 26, Obama won
60.8% and McCain won 38.5% of the vote for President in 2008. Sink won 53.8% and
Scott won 42.6% of the vote for Governor in 2010. In proposed CD 7, Obama won
46.0% and McCain won 53.1% of the vote for President in 2008. Sink won 42.6% and
Scott won 53.3% of the vote for Governor in 2010.
89. As discussed above, the Orlando area CDs proposed under the Romo Map are much
more compact than under the Current Map. The Romo Map also cuts many fewer county
boundaries than either the Current Map or the Enacted Map in this area.
28
90. In sum, it is possible to create an additional district in Orlando in which Blackpreferred candidates win. The opportunity to create such a district is diminished by the
configuration of new CD 5 in the Enacted Map.
(iv) Tampa and Saint Petersburg
91. In the Current Map CD 11 encompasses most of the City of Tampa in Hillsborough
County, and jumps over Tampa Bay to include a portion of the City of Saint Petersburg.
Current CD 10 represents most of Saint Petersburg and most of the remainder of Pinellas
County. In the Enacted Map CD 14 also includes most of the City of Tampa Bay and
jumps across Tampa Bay to capture part of the City of Saint Petersburg. Enacted CD 14
captures a larger portion of Saint Petersburg somewhat than CD 11 did. These districts
cross the Pinellas and Hillsborough County lines and they cross the municipal boundary
of the City of Saint Petersburg.
92. As shown in the Romo Map, it is not necessary the Pinellas County or Saint
Petersburg City boundaries to ensure that Blacks can elect their preferred candidates.
The Romo Map draws CD 11 entirely within Hillsborough County and CD 10 entirely
within Pinellas County.
93. Current CD 11, Proposed CD 11 (Romo), and Enacted Map CD 14 each contain
approximately the same Black Voting Age Population.
29
94. The Black-preferred candidates win clear majorities of the votes in elections for
President in 2008 and Governor in 2010 in CD 11 in the Current Map, CD 14 in the
Enacted Map, and CD 11 in the Romo Map.
95. In Current CD 10, Enacted CD 13, and Proposed CD 10 (Romo), Obama wins a
majority of votes and Sink wins a plurality of votes. Hence, the boundary change with
the Romo Map would not alter the outcomes in CD 10.
96. In sum, it is possible to construct highly compact CDs in the Tampa and Saint
Petersburg area that cross fewer county and municipal lines and that maintain the same
number of CDs in which Blacks have the ability to elect their preferred candidates as
under the Current Map or under the Enacted Map.
D. Representation of Blacks
97. The overall effects of the Current, Enacted, and Romo Maps can be seen through a
simple calculation: a count of the number of Black persons covered by districts
throughout the State of Florida in which Black-preferred candidates win.
98. Using MyDistrictBuilder, I calculated the number of Blacks in districts won by
Obama or won by Sink, the Black-preferred candidates, and the number of Blacks in
districts won by McCain or won by Scott. These results are in Table 3.
30
99. Under the Current Map, in the 10 CDs won by Obama in 2008 there were 1,798,627
Blacks, and in the 15 CDs won by McCain in 2008 there were 1,402,036 Blacks. In the 8
CDs won by Sink in 2010 there were 1,754,279 Blacks, and in the 17 CDs won by Scott
in 2010 there were 1,446,384 Blacks.
100. In other words, under the Current Map, approximately 55% of Blacks lived in
districts in which Black-preferred candidates won in 2008 and 2010.
101. Under the Enacted Map, in the 10 CDs won by Obama in 2008 there were 1,843,116
Blacks, and in the 15 CDs won by McCain in 2008 there were 1,357,547 Blacks. In the 8
CDs won by Sink in 2010 there were 1,929,293 Blacks, and in the 17 CDs won by Scott
in 2010 there were 1,271,370 Blacks.
102. In other words, under the Enacted Map, approximately 58% of Blacks would live in
districts in which Black-preferred candidates won in 2008 and 2010.
103. Under the Proposed Romo Map, in the 13 CDs won by Obama in 2008 there were
2,162,798 Blacks, and in the 14 CDs won by McCain in 2008 there were 1,037,865
Blacks. In the 12 CDs won by Sink in 2010 there were 2,167,349 Blacks, and in the 15
CDs won by Scott in 2010 there were 1,033,314 Blacks.
104. In other words, under the Proposed Romo Map, approximately 67% of Blacks
would live in districts in which Black-preferred candidates won in 2008 and 2010. That
31
is 12 percentage points more than the Current Map and 9 percentage points more than the
Enacted Map.
105. In sum, the Enacted Map improves somewhat on the number of Blacks in districts
in which their preferred candidates win a majority of votes. There are approximately
150,000 more Blacks in districts in which Black-preferred candidates (Obama and Sink)
won the more votes than their opponents. The Romo Map improves even more along that
dimension. There are approximately 400,000 more Blacks in districts in which Blackpreferred candidates (Obama and Sink) won the more votes than their opponents.
Incumbency
106. One way to gauge the degree to which the map protects incumbents is the extent to
which incumbents draw most of their new districts from population that they already
represented. The state witnessed substantial population growth resulting in 2 new CDs
and that growth occurred unevenly throughout the state. As a result, I expect to observe
substantial changes in many districts simply to adjust for population changes. Keeping
most districts the same would be indicative of a higher degree of incumbent protection
overall. The less change there is in districts the more incumbents are allowed to build up
an incumbency advantage.3
3
See Stephen Ansolabehere, James M. Snyder, Jr., and Charles H. Stewart III, “Old
Voters, New Voters, and the Personal Vote: Using Redistricting to Measure the
Incumbency Advantage” American Journal of Political Science 44 (2000): 17-34.
32
107. For each district I determined the Core District as the current CD from which a
proposed or new CD draws the highest percent of its population. Using Maptitude the
percent of the population of each district that derived from its core district. I also
consulted the report “District by Existing District – Shares of Population” on the Florida
Senate Redistricting Website for Plan H000C9047.
108. In the Enacted Map, the average percent from the Core District across all 27 CDs is
69.8 percent. There are 9 CDs in which less than 60% of the population comes from its
Core CD. There are 8 CDs in which over 80% of the population comes from the Core
CD.
109. In the Romo Map, the average percent from the Core District across all 27 CDs is
64.8 percent. There are 11 CDs in which less than 60% of the population comes from its
Core CD. There are 4 CDs in which over 80% of the population comes from its Core
CD.
Conclusions
110. The Romo map complies with the stipulations of the Florida Constitution
concerning race, party, and incumbency, as well as geographical compactness.
111. Across all criteria considered, the Romo Map offers substantial improvements over
the Current Map and over the Enacted Map. On geography, the Romo Map avoids highly
non-compact CDs, and it has a lower total number of county line crossings. On race, it
33
keeps the same the number of Black Majority CDs, increases the number of Black
opportunity CDs in Orlando, and increases the number of Blacks in districts where Blackpreferred candidates win majorities of the vote. On party, it provides a map that treats
both parties fairly and ensures majority rule for whichever party wins a majority of votes.
On incumbency, it has It produces more turnover in district population and thus less
incumbency protection.
112. When contrasted with the Current Map and the Enacted Map, the Romo Map
highlights specific areas where improvements in districts maybe achieved. In particular,
the Romo Map suggests a new approach to representation of Blacks in the Jacksonville
area and a new configuration of CD 3 that keeps the same the number of functioning
Black CDs in North Florida. Reconfiguration of CDs in the Orlando area can increase by
the number of districts in which Blacks have the ability to elect their preferred
candidates. Finally, there is the opportunity to improve the configuration of current CDs
10 and 11 (new CDs 13 and 14) without reducing the ability of Blacks to elect their
preferred candidates. This would eliminate the unnecessary division of Pinellas County
and the City of Saint Petersburg under the Current Map and the Enacted Map.
34
Table 1. Congressional Districts under the Current Florida Map and the Enacted Map,
and their Geographic Compactness
Current Map
Enacted Map (9047)
CD
01
02
03
04
05
06
07
08
Population
Deviation
-2,187
41,174
-37,290
48,073
233,188
116,382
116,097
109,263
Reock
(A/Ac)
.38
.28
.14
.18
.43
.26
.22
.20
09
10
11
12
13
14
15
16
57,204
-62,456
-22,546
145,854
61,460
162,611
117,225
101,366
.29
.40
.28
.37
.51
.24
.34
.38
17
18
19
20
21
22
23
24
25
-41,185
16,445
40,074
-4,618
-2,844
-2,086
-12,238
102,888
110,831
.39
.10
.21
.28
.20
.15
.38
.54
.48
CD
01
02
05
04
11
03
06
09
10
12
13
14
15
16
19
08
17
18
24
27
21
23
25
22
20
07
26
35
% of Pop
from
Core CD
94.9%
91.2%
80.7%
85.8%
58.5%
65.7%
72.3%
36.7%
56.2%
56.8%
83.5%
84.9%
53.0%
96.0%
97.8%
79.1%
37.1%
65.3%
79.8%
66.6%
76.2%
65.6%
51.1%
56.5%
73.4%
50.6%
68.6%
Reock
.38
.46
.09
.45
.49
.56
.33
.48
.39
.41
.46
.36
.45
.44
.26
.34
.66
.51
.38
.46
.28
.27
.40
.18
.48
.56
.18
Table 2. Congressional Districts under the Current Florida Map and the Proposed Romo
Map and their Geographic Compactness
Current Map
Proposed Romo Map
CD
01
02
03
04
05
Population
Deviation
-2,187
41,174
-37,290
48,073
233,188
Reock
(A/Ac)
.38
.28
.14
.18
.43
06
07
116,382
116,097
.26
.22
08
109,263
.20
09
10
11
12
13
57,204
-62,456
-22,546
145,854
61,460
.29
.40
.28
.37
.51
14
15
16
17
18
19
20
21
22
23
24
25
162,611
117,225
101,366
-41,185
16,445
40,074
-4,618
-2,844
-2,086
-12,238
102,888
110,831
.24
.34
.38
.39
.10
.21
.28
.20
.15
.38
.54
.48
36
CD
01
02
% of Pop
from
Core CD
94.9%
89.0%
04
05
27
03
06
24
08
26
09
10
11
74.9%
63.9%
42.0%
47.3%
31.0%
55.5%
51.0%
39.4%
59.7%
80.0%
77.8%
.35
.56
.32
.27
.45
.31
.45
.50
.29
.57
.27
12
13
14
15
16
17
18
19
20
21
22
23
07
25
46.5%
62.4%
100.0%
76.6%
74.1%
87.8%
69.3%
72.8%
76.5%
49.8%
59.9%
75.9%
29.2%
62.5%
.46
.30
.27
.33
.45
.39
.43
.30
.27
.34
.15
.50
.35
.18
Reock
.35
.44
Table 3. Numbers of Black Persons Residing in Districts in which Black Preferred
Candidates won a Majority of the Democratic or Republican Vote under the Current
Map, the Enacted Map, or the Proposed Romo Map
CURRENT MAP
Number of Blacks
Number
of CDs
Won By Obama
Won By McCain
1,798,627
1,402,036
10
15
Won By Sink
Won By Scott
1,754,279
1,446,384
8
17
ENACTED MAP
Number of Blacks
Number
of CDs
Won By Obama
Won By McCain
1,843,116
1,357,547
10
17
Won By Sink
Won By Scott
1,929,293
1,271,370
10
17
ROMO MAP
Number of Blacks
Number
of CDs
Won By Obama
Won By McCain
2,162,798
1,037,865
13
14
Won By Sink
Won By Scott
2,167,349
1,033,314
12
15
37
STEPHEN DANIEL ANSOLABEHERE
Department of Government
Harvard University
1737 Cambridge Street
Cambridge, MA 02138
sda@gov.harvard.edu
EDUCATION
Harvard University
University of Minnesota
Ph.D., Political Science
B.A., Political Science
B.S., Economics
1989
1984
PROFESSIONAL EXPERIENCE
ACADEMIC POSITIONS
2008-present
1998-2009
1995-1998
1993-1994
1989-1993
Professor, Department of Government, Harvard University
Elting Morison Professor, Department of Political Science, MIT
(Associate Head, 2002-2005)
Associate Professor, Department of Political Science, MIT
National Fellow, The Hoover Institution
Assistant Professor, Department of Political Science,
University of California, Los Angeles
FELLOWSHIPS AND HONORS
American Academy of Arts and Sciences
Carnegie Scholar
Goldsmith Book Prize for Going Negative
National Fellow, The Hoover Institution
Harry S. Truman Fellowship
2007
2000-02
1996
1993-94
1982-86
1
PUBLICATIONS
Books
2012
American Government, 12th edition, W.W. Norton. With Benjamin Ginsberg,
Ted Lowi, and Kenneth Shepsle
2008
The End of Inequality: One Person, One Vote and the Transformation of American
Politics. W. W. Norton.
1996
Going Negative: How Political Advertising Divides and Shrinks the American
Electorate (with Shanto Iyengar). The Free Press.
1993
Media Game: American Politics in the Television Age (with Roy Behr and
Shanto Iyengar). Macmillan.
Recent Articles in Refereed Journals
Forthcoming
“Movers, Stayers, and Registration” Quarterly Journal of Political Science
(with Eitan Hersh and Ken Shepsle)
Forthcoming
“Pants on Fire: Misreporting, Sample Selection, and Participation” Political
Analysis (with Eitan Hersh)
Forthcoming
“Does Survey Mode Still Matter?” Political Analysis (with Brian Schaffner)
2012
“Arizona Free Enterprise v. Bennett and the Problem of Campaign Finance”
Supreme Court Review
2012
“The American Public’s Energy Choice” Daedalus (with David Konisky)
2011
“When Parties Are Not Teams: Party positions in single-member district and
proportional representation systems” Economic Theory 49 (March)
DOI: 10.1007/s00199-011-0610-1
2011
“Profiling Originalism” Columbia Law Review vol. 111
(with Jamal Greene and Nathaniel Persily).
2010
“Partisanship, Public Opinion, and Redistricting” Election Law Journal (with
Joshua Fougere and Nathaniel Persily).
2
2010
“Primary Elections and Party Polarization” Quarterly Journal of Political Science
(with Shigeo Hirano, James Snyder, and Mark Hansen)
2010
“Constituents’ Responses to Congressional Roll Call Voting,” American
Journal of Political Science (with Phil Jones)
2010
“Race, Region, and Vote Choice in the 2008 Election: Implications for
the Future of the Voting Rights Act” Harvard Law Review April, 2010. (with
Nathaniel Persily and Charles H. Stewart III)
2010
“Residential Mobility and the Cell Only Population,” Public Opinion Quarterly
(with Brian Schaffner)
2009
“Explaining Attitudes Toward Power Plant Location,” Public Opinion Quarterly
(with David Konisky)
2009
“Public risk perspectives on the geologic storage of carbon dioxide,”
International Journal of Greenhouse Gas Control (with Gregory Singleton and
Howard Herzog) 3(1): 100-107.
2008
“A Spatial Model of the Relationship Between Seats and Votes” (with William
Leblanc) Mathematical and Computer Modeling (November).
2008
“The Strength of Issues: Using Multiple Measures to Gauge Preference Stability,
Ideological Constraint, and Issue Voting” (with Jonathan Rodden and James M.
Snyder, Jr.) American Political Science Review (May).
2008
“Access versus Integrity in Voter Identification Requirements.” New York
University Annual Survey of American Law, vol 63.
2008
“Voter Fraud in the Eye of the Beholder” (with Nathaniel Persily) Harvard Law
Review (May)
2007
“Incumbency Advantages in U. S. Primary Elections,” (with John Mark Hansen,
Shigeo Hirano, and James M. Snyder, Jr.) Electoral Studies (September)
2007
“Television and the Incumbency Advantage” (with Erik C. Snowberg and
James M. Snyder, Jr). Legislative Studies Quarterly.
2006
“The Political Orientation of Newspaper Endorsements” (with Rebecca
Lessem and James M. Snyder, Jr.). Quarterly Journal of Political Science vol. 1,
issue 3.
3
2006
“Voting Cues and the Incumbency Advantage: A Critical Test” (with Shigeo
Hirano, James M. Snyder, Jr., and Michiko Ueda) Quarterly Journal of
Political Science vol. 1, issue 2.
2006
“American Exceptionalism? Similarities and Differences in National Attitudes
Toward Energy Policies and Global Warming” (with David Reiner, Howard
Herzog, K. Itaoka, M. Odenberger, and Fillip Johanssen) Environmental Science
and Technology (February 22, 2006),
http://pubs3.acs.org/acs/journals/doilookup?in_doi=10.1021/es052010b
2006
“Purple America” (with Jonathan Rodden and James M. Snyder, Jr.) Journal
of Economic Perspectives (Winter).
2005
“Did the Introduction of Voter Registration Decrease Turnout?” (with David
Konisky). Political Analysis.
2005
“Statistical Bias in Newspaper Reporting: The Case of Campaign Finance”
Public Opinion Quarterly (with James M. Snyder, Jr., and Erik Snowberg).
2005
“Studying Elections” Policy Studies Journal (with Charles H. Stewart III and R.
Michael Alvarez).
2005
“Legislative Bargaining under Weighted Voting” American Economic Review
(with James M. Snyder, Jr., and Michael Ting)
2005
“Voting Weights and Formateur Advantages in Coalition Formation: Evidence
from Parliamentary Coalitions, 1946 to 2002” (with James M. Snyder, Jr., Aaron
B. Strauss, and Michael M. Ting) American Journal of Political Science.
2005
“Reapportionment and Party Realignment in the American States” Pennsylvania
Law Review (with James M. Snyder, Jr.)
2004
“Residual Votes Attributable to Voting Technologies” (with Charles Stewart)
Journal of Politics
2004
“Using Term Limits to Estimate Incumbency Advantages When Office Holders
Retire Strategically” (with James M. Snyder, Jr.). Legislative Studies Quarterly
vol. 29, November 2004, pages 487-516.
2004
“Did Firms Profit From Soft Money?” (with James M. Snyder, Jr., and Michiko
Ueda) Election Law Journal vol. 3, April 2004.
2003
“Bargaining in Bicameral Legislatures” (with James M. Snyder, Jr. and Mike
Ting) American Political Science Review, August, 2003.
4
2003
“Why Is There So Little Money in U.S. Politics?” (with James M. Snyder, Jr.)
Journal of Economic Perspectives, Winter, 2003.
2002
“Equal Votes, Equal Money: Court-Ordered Redistricting and the Public
Spending in the American States” (with Alan Gerber and James M. Snyder, Jr.)
American Political Science Review, December, 2002.
Paper awarded the Heinz Eulau award for the best paper in the American Political
Science Review.
2002
“Are PAC Contributions and Lobbying Linked?” (with James M. Snyder, Jr. and
Micky Tripathi) Business and Politics 4, no. 2.
2002
“The Incumbency Advantage in U.S. Elections: An Analysis of State and Federal
Offices, 1942-2000” (with James Snyder) Election Law Journal, 1, no. 3.
2001
“Voting Machines, Race, and Equal Protection.” Election Law Journal, vol. 1,
no. 1
2001
“Models, assumptions, and model checking in ecological regressions” (with
Andrew Gelman, David Park, Phillip Price, and Larraine Minnite) Journal of
the Royal Statistical Society, series A, 164: 101-118.
2001
“The Effects of Party and Preferences on Congressional Roll Call Voting.”
(with James Snyder and Charles Stewart) Legislative Studies Quarterly
(forthcoming).
Paper awarded the Jewell-Lowenberg Award for the best paper published on
legislative politics in 2001. Paper awarded the Jack Walker Award for the best
paper published on party politics in 2001.
2001
“Candidate Positions in Congressional Elections,” (with James Snyder and
Charles Stewart). American Journal of Political Science 45 (November).
2000
“Old Voters, New Voters, and the Personal Vote,” (with James Snyder and
Charles Stewart) American Journal of Political Science 44 (February).
2000
“Soft Money, Hard Money, Strong Parties,” (with James Snyder) Columbia Law
Review 100 (April):598 - 619.
2000
“Campaign War Chests and Congressional Elections,” (with James Snyder)
Business and Politics. 2 (April): 9-34.
1999
“Replicating Experiments Using Surveys and Aggregate Data: The Case of
Negative Advertising.” (with Shanto Iyengar and Adam Simon) American
5
Political Science Review 93 (December).
1999
“Valence Politics and Equilibrium in Spatial Models,” (with James Snyder),
Public Choice.
1999
“Money and Institutional Power,” (with James Snyder), Texas Law Review 77
(June, 1999): 1673-1704.
1997
“Incumbency Advantage and the Persistence of Legislative Majorities,” (with Alan
Gerber), Legislative Studies Quarterly 22 (May 1997).
1996
“The Effects of Ballot Access Rules on U.S. House Elections,” (with Alan
Gerber), Legislative Studies Quarterly 21 (May 1996).
1994
“Riding the Wave and Issue Ownership: The Importance of Issues in Political
Advertising and News,” (with Shanto Iyengar) Public Opinion Quarterly 58:
335-357.
1994
“Horseshoes and Horseraces: Experimental Evidence of the Effects of Polls on
Campaigns,” (with Shanto Iyengar) Political Communications 11/4 (OctoberDecember): 413-429.
1994
“Does Attack Advertising Demobilize the Electorate?” (with Shanto Iyengar),
American Political Science Review 89 (December).
1994
“The Mismeasure of Campaign Spending: Evidence from the 1990 U.S. House
Elections,” (with Alan Gerber) Journal of Politics 56 (September).
1993
“Poll Faulting,” (with Thomas R. Belin) Chance 6 (Winter): 22-28.
1991
“The Vanishing Marginals and Electoral Responsiveness,” (with David Brady and
Morris Fiorina) British Journal of Political Science 22 (November): 21-38.
1991
“Mass Media and Elections: An Overview,” (with Roy Behr and Shanto Iyengar)
American Politics Quarterly 19/1 (January): 109-139.
1990
“The Limits of Unraveling in Interest Groups,” Rationality and Society 2:
394-400.
1990
“Measuring the Consequences of Delegate Selection Rules in Presidential
Nominations,” (with Gary King) Journal of Politics 52: 609-621.
1989
“The Nature of Utility Functions in Mass Publics,” (with Henry Brady) American
Political Science Review 83: 143-164.
6
Special Reports and Policy Studies
2010
The Future of Nuclear Power, Revised.
2006
The Future of Coal. MIT Press. Continued reliance on coal as a primary power
source will lead to very high concentrations of carbon dioxide in the atmosphere,
resulting in global warming. This cross-disciplinary study – drawing on faculty
from Physics, Economics, Chemistry, Nuclear Engineering, and Political Science
– develop a road map for technology research and development policy in order to
address the challenges of carbon emissions from expanding use of coal for
electricity and heating throughout the world.
2003
The Future of Nuclear Power. MIT Press. This cross-disciplinary study –
drawing on faculty from Physics, Economics, Chemistry, Nuclear Engineering,
and Political Science – examines the what contribution nuclear power can make to
meet growing electricity demand, especially in a world with increasing carbon
dioxide emissions from fossil fuel power plants.
2002
“Election Day Registration.” A report prepared for DEMOS. This report analyzes
the possible effects of Proposition 52 in California based on the experiences of 6
states with election day registration.
2001
Voting: What Is, What Could Be. A report of the Caltech/MIT Voting
Technology Project. This report examines the voting system, especially
technologies for casting and counting votes, registration systems, and polling place
operations, in the United States. It was widely used by state and national
governments in formulating election reforms following the 2000 election.
2001
“An Assessment of the Reliability of Voting Technologies.” A report of the
Caltech/MIT Voting Technology Project. This report provided the first
nationwide assessment of voting equipment performance in the United States. It
was prepared for the Governor’s Select Task Force on Election Reform in Florida.
Chapters in Edited Volumes
2012
“Voting Technology” in Margin of Victory: How Technologists Help Politicians
Win Elections, ABC-CLIO.
2010
“Dyadic Representation” in Oxford Handbook on Congress, Eric Schickler, ed.,
Oxford University Press.
7
2008
“Voting Technology and Election Law” in America Votes!, Benjamin Griffith,
editor, Washington, DC: American Bar Association.
2007
What Did the Direct Primary Do to Party Loyalty in Congress” (with
Shigeo Hirano and James M. Snyder Jr.) in Process, Party and Policy
Making: Further New Perspectives on the History of Congress, David
Brady and Matthew D. McCubbins (eds.), Stanford University Press, 2007.
2007
“Election Administration and Voting Rights” in Renewal of the Voting
Rights Act, David Epstein and Sharyn O’Hallaran, eds. Russell Sage Foundation.
2006
“The Decline of Competition in Primary Elections,” (with John Mark Hansen,
Shigeo Hirano, and James M. Snyder, Jr.) The Marketplace of Democracy,
Michael P. McDonald and John Samples, eds. Washington, DC: Brookings.
2005
“Voters, Candidates and Parties” in Handbook of Political Economy, Barry
Weingast and Donald Wittman, eds. New York: Oxford University Press.
2003
“Baker v. Carr in Context, 1946 – 1964” (with Samuel Isaacharoff) in
Constitutional Cases in Context, Michael Dorf, editor. New York: Foundation
Press.
2002
“Corruption and the Growth of Campaign Spending”(with Alan Gerber and James
Snyder). A User’s Guide to Campaign Finance, Jerry Lubenow, editor. Rowman
and Littlefield.
2001
“The Paradox of Minimal Effects,” in Henry Brady and Richard Johnston, eds.,
Do Campaigns Matter? University of Michigan Press.
2001
“Campaigns as Experiments,” in Henry Brady and Richard Johnson, eds., Do
Campaigns Matter? University of Michigan Press.
2000
“Money and Office,” (with James Snyder) in David Brady and John Cogan, eds.,
Congressional Elections: Continuity and Change. Stanford University Press.
1996
“The Science of Political Advertising,” (with Shanto Iyengar) in Political
Persuasion and Attitude Change, Richard Brody, Diana Mutz, and Paul
Sniderman, eds. Ann Arbor, MI: University of Michigan Press.
1995
“Evolving Perspectives on the Effects of Campaign Communication,” in Philo
Warburn, ed., Research in Political Sociology, vol. 7, JAI.
1995
“The Effectiveness of Campaign Advertising: It’s All in the Context,” (with
Shanto Iyengar) in Campaigns and Elections American Style, Candice Nelson and
James A. Thurber, eds. Westview Press.
8
1993
“Information and Electoral Attitudes: A Case of Judgment Under Uncertainty,”
(with Shanto Iyengar), in Explorations in Political Psychology, Shanto Iyengar
and William McGuire, eds. Durham: Duke University Press.
Working Papers
2009
“Sociotropic Voting and the Media” (with Marc Meredith and Erik Snowberg),
American National Election Study Pilot Study Reports, John Aldrich editor.
2007
“Public Attitudes Toward America’s Energy Options: Report of the 2007 MIT
Energy Survey” CEEPR Working Paper 07-002 and CANES working paper.
2006
"Constituents' Policy Perceptions and Approval of Members' of Congress" CCES
Working Paper 06-01 (with Phil Jones).
2004
“Using Recounts to Measure the Accuracy of Vote Tabulations: Evidence from
New Hampshire Elections, 1946 to 2002” (with Andrew Reeves).
2002
“Evidence of Virtual Representation: Reapportionment in California,” (with
Ruimin He and James M. Snyder).
1999
“Why did a majority of Californians vote to lower their own power?” (with James
Snyder and Jonathan Woon). Paper presented at the annual meeting of the
American Political Science Association, Atlanta, GA, September, 1999.
Paper received the award for the best paper on Representation at the 1999 Annual
Meeting of the APSA.
1999
“Has Television Increased the Cost of Campaigns?” (with Alan Gerber and James
Snyder).
1996
“Money, Elections, and Candidate Quality,” (with James Snyder).
1996
“Party Platform Choice - Single- Member District and Party-List Systems,”(with
James Snyder).
1995
“Messages Forgotten” (with Shanto Iyengar).
1994
“Consumer Contributors and the Returns to Fundraising: A Microeconomic
Analysis,” (with Alan Gerber), presented at the Annual Meeting of the American
Political Science Association, September.
1992
“Biases in Ecological Regression,” (with R. Douglas Rivers) August, (revised
February 1994). Presented at the Midwest Political Science Association Meetings,
9
April 1994, Chicago, IL.
1992
“Using Aggregate Data to Correct Nonresponse and Misreporting in Surveys”
(with R. Douglas Rivers). Presented at the annual meeting of the Political
Methodology Group, Cambridge, Massachusetts, July.
1991
“The Electoral Effects of Issues and Attacks in Campaign Advertising” (with
Shanto Iyengar). Presented at the Annual Meeting of the American Political
Science Association, Washington, DC.
1991
“Television Advertising as Campaign Strategy: Some Experimental Evidence”
(with Shanto Iyengar). Presented at the Annual Meeting of the American
Association for Public Opinion Research, Phoenix.
1991
“Why Candidates Attack: Effects of Televised Advertising in the 1990 California
Gubernatorial Campaign,” (with Shanto Iyengar). Presented at the Annual
Meeting of the Western Political Science Association, Seattle, March.
1990
“Winning is Easy, But It Sure Ain’t Cheap.” Working Paper #90-4, Center for the
American Politics and Public Policy, UCLA. Presented at the Political Science
Departments at Rochester University and the University of Chicago.
Research Grants
1989-1990
Markle Foundation. “A Study of the Effects of Advertising in the 1990
California Gubernatorial Campaign.” Amount: $50,000
1991-1993
Markle Foundation. “An Experimental Study of the Effects of Campaign
Advertising.” Amount: $150,000
1991-1993
NSF. “An Experimental Study of the Effects of Advertising in the 1992
California Senate Electoral.” Amount: $100,000
1994-1995
MIT Provost Fund. “Money in Elections: A Study of the Effects of Money on
Electoral Competition.” Amount: $40,000
1996-1997
National Science Foundation. “Campaign Finance and Political Representation.”
Amount: $50,000
1997
National Science Foundation. “Party Platforms: A Theoretical Investigation of
Party Competition Through Platform Choice.” Amount: $40,000
1997-1998
National Science Foundation. “The Legislative Connection in Congressional
10
Campaign Finance. Amount: $150,000
1999-2000
MIT Provost Fund. “Districting and Representation.” Amount: $20,000.
1999-2002
Sloan Foundation. “Congressional Staff Seminar.” Amount: $156,000.
2000-2001
Carnegie Corporation. “The Caltech/MIT Voting Technology Project.”
Amount: $253,000.
2001-2002
Carnegie Corporation. “Dissemination of Voting Technology Information.”
Amount: $200,000.
2003-2005
National Science Foundation. “State Elections Data Project.” Amount:
$256,000.
2003-2004
Carnegie Corporation. “Internet Voting.” Amount: $279,000.
2003-2005
Knight Foundation. “Accessibility and Security of Voting Systems.” Amount:
$450,000.
2006-2008
National Science Foundation, “Primary Election Data Project”
2008-2009
Pew/JEHT. “Measuring Voting Problems in Primary Elections, A National
Survey.” Amount: $300,000
2008-2009
Pew/JEHT. “Comprehensive Assessment of the Quality of Voter Registration
Lists in the United States: A pilot study proposal” (with Alan Gerber).
Amount: $100,000.
2010-2011
National Science Foundation, “Cooperative Congressional Election Study,”
$360,000
2010-2012
Sloan Foundation, “Precinct-Level U. S. Election Data,” $240,000.
Professional Boards
Editor, Cambridge University Press Book Series, Political Economy of Institutions and
Decisions.
Member, Board of Overseers, American National Election Studies, 1999 to present.
Member, Board of the Reuters International School of Journalism, Oxford University, 2007 to
present.
11
Contributing Editor, Boston Review, The State of the Nation.
Editorial Board of American Journal of Political Science, 2005 to present.
Editorial Board of Legislative Studies Quarterly, 2005 to present.
Editorial Board of Public Opinion Quarterly, 2006 to present.
Editorial Board of the Election Law Journal, 2002 to present.
Editorial Board of the Harvard International Journal of Press/Politics, 1996 to 2008.
Editorial Board of Business and Politics, 2002 to Present.
Scientific Advisory Board, Polimetrix, 2004 to 2006.
Special Projects and Task Forces
Principal Investigator, Cooperative Congressional Election Study, 2005 – present.
MIT Energy Innovation Study, 2009-2010.
MIT Energy Initiative, Steering Council, 2007-2008
Co-Director, Caltech/MIT Voting Technology Project, 2000-2004.
Co-Organizer, MIT Seminar for Senior Congressional and Executive Staff, 1996-2007.
MIT Coal Study, 2004-2006.
MIT Energy Research Council, 2005-2006.
MIT Nuclear Study, 2002-2004.
Voting Technology Task Force Leader, Election Reform Initiative of the
Constitution Project, 2001 to 2002.
12
EXHIBIT F
EXHIBIT G
IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN
WEAVER, an individual; et. al,
Plaintiffs,
vs.
CASE NO. 2012-CA-00412
KEN DETZNER, in his official capacity
as Florida Secretary of States, PAMELA
JO BONDI, in her official capacity as
Attorney General,
Defendants.
_______________________________/
THE LEAGUE OF WOMEN VOTERS OF FLORIDA;
THE NATIONAL COUNCIL OF LA RAZA;
et al.,
Plaintiffs,
vs.
CASE NO. 2012-CA-00490
KEN DETZNER, in his official capacity
as Florida Secretary of State; THE FLORIDA SENATE;
et al.,
Defendants.
_________________________________/
ORDER RESOLVING DISCOVERY MOTIONS
Before the Court are (i) “The Florida House of Representatives’ Motion to Compel Romo
Plaintiffs to Produce Privilege-Log Documents,” filed November 29, 2012, (ii) “The Romo
Plaintiffs’ Motion to Compel Materials Withheld By the Legislative Defendants On Grounds of
Attorney-Client Privilege and Attorney Work Product,” filed October 29, 2012, and (iii) “The
Florida House of Representatives’ Motion to Compel or, in the Alternative, Motion in Limine,”
filed October 10, 2012. The Court having reviewed the motions, responses, and other pertinent
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materials, having heard argument of counsel, and being otherwise fully informed, it is hereby
ordered and adjudged as follows:
1.
The Florida House of Representatives’ Motion to Compel Romo Plaintiffs to
Produce Privilege-Log Documents is DENIED.
2.
The Romo Plaintiffs’ Motion to Compel Materials Withheld By the Legislative
Defendants On Grounds of Attorney-Client Privilege and Attorney Work Product, is
GRANTED. The Court finds, under the circumstances of this case, that the Legislative
Defendants have not met their burden to show that documents generated before the legislative
enactment at issue was passed are privileged from disclosure. Therefore, no later than January
10, 2013, the Legislative Defendants shall produce all documents listed in their privilege logs
that were created before February 9, 2012, and are identified with yellow highlighting in Exhibits
A, B, and C of the Romo Plaintiffs' Motion to Compel. The Court further finds that the
Legislative Defendants have not met their burden to show that documents generated for purposes
of other litigation that has now concluded are privileged from disclosure. Therefore, no later
than January 10, 2013, the Legislative Defendants shall produce all such documents listed in
their privilege logs that were created for purposes of other litigation that has now concluded and
are identified with yellow highlighting in Exhibits A, B, and C of the Romo Plaintiffs' Motion to
Compel. The remaining yellow-highlighted documents in Exhibits A, B, and C of the Romo
Plaintiffs' Motion to Compel contain insufficient descriptions for the Court to evaluate the
assertions of privilege. Therefore, the Legislative Defendants shall submit such documents for in
camera inspection no later than January 7, 2012.
3.
The Florida House of Representatives’ Motion to Compel or, in the Alternative,
Motion in Limine is GRANTED IN PART AND DENIED IN PART. The Court finds that for
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any alternative map to be relied on by Plaintiffs at trial in this case, Plaintiffs shall produce nonprivileged documents and information relating to the process by which alternative maps were
prepared, the identities of individuals who prepared them, and activities and communications
concerning alternative maps. The Court further finds that although the requested materials are
discoverable, they are not necessarily admissible, and any determinations regarding admissibility
will be made at the appropriate time. The motion is denied in all other respects, including to the
extent it seeks documents and information related to "redistricting" and "the redistricting process
generally." Because the Court fully disposed of the motion to compel, the Court need not
address the Motion’s alternative request for an order granting in limine relief. No later than
January 10, 2013, consistent with this Order, Plaintiffs shall produce the documents addressed in
the motion to compel, shall respond to the interrogatories addressed in the motion to compel, and
shall respond to the requests for admission addressed in the motion to compel.
DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this _____
day of January, 2013.
___________________________________
TERRY P. LEWIS, Circuit Judge
Copies to all counsel of record
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EXHIBIT H