Florida Senate accuses lawyer who submitted redistricting map of violating rules

The Florida Senate has accused a staff attorney for the ACLU of Florida of misinformation after he appeared as a private citizen before a redistricting committee to present a map he had drawn but failed to identify his employer, which had no role in the submission.

Senate Committee Chair Ray Rodrigues, R-Estero, sent a memo to all 40 senators on Nov. 22 accusing Nicholas Warren of violating Senate rules when he presented his map at a Nov. 17 committee meeting without identifying himself as a staff attorney for the ACLU of Florida.

Warren testified that he submitted the map to show the committee it was possible to avoid putting two Black communities on opposite sides of Tampa Bay into the same Senate district.

Warren suggested changing to six districts to allow legislators to keep the Black-majority Senate District 19 compact in Hillsborough County while also keeping two-thirds of Pasco County in a single Senate district. By contrast, the Senate maps divide them into three different districts, he said.

But because Warren failed to identify his employer, Rodrigues said he violated the rules.

“In the past, it is this kind of misrepresentation during public testimony that has directly led to the court invalidating legislatively produced maps,’’ Rodrigues wrote, a reference to the fact that in 2012 Florida courts invalidated the Legislature’s Senate and congressional maps after legislators allowed political operatives to secretly submit partial maps.

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ACLU of Florida Political Director Kirk Bailey said in a statement that “while we have a general interest in the outcome of reapportionment and redistricting, we have not taken a position concerning any map presented by anyone to the Florida Legislature.”

The Senate changed its rules this year regarding map submissions and now requires anyone who attempts to address legislators in a public meeting to submit a disclosure form that indicates if they are a lobbyist or getting expenses paid. The rules also prohibit legislators from considering maps submitted by the public, unless a lawmaker explicitly requested the map in writing.

A map-drawing aficionado, ACLU employee

Citing reporting by the Miami Herald, Rodrigues said in the memo that he learned that Warren is a staff attorney of the ACLU, “an entity with an interest in redistricting, as evidenced by litigation filed in other states,” and suggested Warren attempted to deceive legislators when he testified before the Select Subcommittees on Congressional and Legislative Reapportionment.

“I am bringing Mr. Warren’s affiliation with the ACLU to your attention as you consider whether or not to incorporate his suggestions or maps in any future directives to staff,’’ Rodrigues wrote.

Warren, who worked for the Florida Supreme Court on redistricting litigation in the 2010 cycle and is an expert on redistricting, said in a letter to senators that his employer had no role in his submissions.

“I am not a registered lobbyist, and I received nothing of value for my appearance, except the satisfaction of ‘appropriately and actively participat[ing] in this once-in-a-decade process in a tangible and meaningful way,’ ” Warren wrote on Dec. 8. “I drew my plans and gave my testimony on my own personal time, using my own personal resources.”

Bailey, the ACLU political director, noted that Warren filled out the Senate forms completely as required by the new Senate rules. He added that the rules “do not require an individual to disclose their employer. When Mr. Warren testified and submitted materials, he did so as an individual citizen, as is his right.”

Ellen Freidin, who heads Fair Districts Now, the 501(c)(3) which works to ensure that Florida’s 2022 districts are drawn in compliance with the Fair Districts Amendments of the Florida Constitution, called Rodrigues’ criticism of Warren a “false equivalency.”

“During the last redistricting cycle legislative leaders illegally conspired with political operatives to submit maps that had been prepared by Republican partisans to benefit the Republican Party,’’ Freidin said in a statement Thursday. “It is understandable that current legislators would want to guard against such fraudulent activity this cycle.

“However, to ban a citizen’s suggestion from consideration, simply because he is employed by a civil rights organization that had absolutely nothing to do with the suggested map, is an outrageous false equivalency and only serves to chill citizen involvement in the redistricting process even more than it has already been chilled by lack of opportunity and high hurdles for participation.”

Under the Fair Districts amendments to the Florida Constitution, legislators may not diminish the voting strength of Black and Hispanic voters. The Senate staff, advised by outside attorneys, drew maps that preserve a 30-year configuration of the Black-majority district, Senate District 19, by linking part of the district in Tampa with another Black community in St. Petersburg.

In his submission, Warren’s proposal revises six Senate districts from the staff-drawn maps published “to avoid SD 19 crossing the bay.”

In doing so, he argued, the plan does a better job of keeping communities of St. Petersburg and Gulfport intact and Pinellas County whole.

“Population changes in this region mean that it is no longer necessary to connect Tampa and St. Pete to avoid diminishing minority voters’ ability to elect candidates of choice in SD 19,’’ Warren wrote in his submission.

Warren’s testimony at the Nov. 17 meeting prompted Sen. Randolph Bracy, an Orlando Democrat, to ask the Senate staff to draw a minority-majority Senate district in the Tampa region without linking predominantly Black communities in Tampa and St. Petersburg.

Bracy said Senate staff has told him to expect that map when legislators return for their 60-day session next week.

Speaking to reporters after the committee meeting, Bracy said he had questions about the staff-drawn maps and whether they were clustering Black voters into districts unnecessarily, a tactic known as “packing.”

“What constitutes diminishment, because it seems like it can be a gray area sometimes?’’ he asked.

He wondered if, by increasing the number of Black voters in one district that already elects a Black candidate, that could make the adjacent district “less likely to elect a Black candidate because of how they’re configuring it?”

The question is central to the Florida Supreme Court review, which is required for the maps to become law. The court has ruled that to understand whether a group of minority voters vote cohesively enough as a bloc to elect a candidate of its choice, legislators must do what is called a functional analysis. The process involves reviewing how a district voted in general elections, then assessing the demographic makeup of the primary election, and how the minority population has voted.

How functional analysis works

For example, if a district is composed of 45% Black voters and the district backed Joe Biden with 60%+ of the vote, the conclusion is that the district could give Blacks the opportunity to elect a candidate of their choice in congressional or legislative races.

But the Florida Senate has not provided a complete functional analysis of its minority districts, raising questions about what standards staff used.

The Senate has published what it calls a “functional analysis” of its maps that shows voter turnout, election results and racial demographics for each proposed district but does not evaluate how those voters perform in a primary and whether Blacks can elect candidates of their choice in districts with less than a majority of Black voters.

As the online news site the Tributary has detailed, Florida courts struck down portions of the Legislature’s congressional map in 2015 because it did not do the functional analysis that provided the supporting evidence needed to show it was legally necessary to draw a Black-majority congressional district that stretched from Orlando to Jacksonville.

The Herald/Times has asked Senate staff to explain how it determined which districts should be protected from minority diminishment, and how it decided for which districts to conduct a functional analysis.

The Herald/Times also asked the staff to provide its analysis of voting patterns of voters of various races within certain districts and whether African Americans and Hispanics were voting in coalition, especially in primaries. The newspapers have yet to receive answers.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas