State officials shielded from testifying on elections law

Sen. Dennis Baxley speaks during the Marion County Delegation at the Klein Conference Center at the College of Central Florida in Ocala, Fla. on Thursday, Oct. 7, 2021. [Bruce Ackerman/Ocala Gazette] 2021.

A federal judge has shielded seven Republican lawmakers and Gov. Ron DeSantis’ office from having to testify about a controversial new elections law — including testifying about any involvement by the governor’s office in trying to block three University of Florida professors from serving as expert witnesses.

Chief U.S. District Judge Mark Walker released a 22-page decision Thursday that quashed subpoenas issued by attorneys for groups challenging the constitutionality of the law (SB 90), which the Republican-controlled Legislature passed in April.

Plaintiffs in two partially consolidated cases sought testimony in depositions from a representative of DeSantis’ office, Sen. Dennis Baxley, R-Ocala; Sen. Jim Boyd, R-Bradenton; Sen. Jeff Brandes, R-St. Petersburg; Sen. Joe Gruters, R-Sarasota; Sen. Kathleen Passidomo, R-Naples; Rep. Erin Grall, R-Vero Beach; and Rep. Blaise Ingoglia, R-Spring Hill.

Sen. Dennis Baxley speaks during the Marion County Delegation at the Klein Conference Center at the College of Central Florida in Ocala, Fla. on Thursday, Oct. 7, 2021. [Bruce Ackerman/Ocala Gazette] 2021.

But Walker cited what are known as “legislative privilege” and “executive privilege” in finding that the state officials do not have to testify.

Much of the ruling was based on legislative privilege. Walker wrote that the “fundamental concern” of legislative privilege is not to maintain confidentiality. He said it is designed to “prevent parties from harassing legislators — or the governor — for actions those legislators take in their legislative capacity.”

Also, quoting legal precedent, he wrote, “To allow plaintiffs to pry into the most sensitive aspects of the legislative process would ‘chill legislative debate’ and ‘discourage earnest discussion within governmental walls.’”

Plaintiffs’ attorneys last month also sought to depose a representative of the governor’s office about efforts by the University of Florida to prevent professors Dan Smith, Michael McDonald and Sharon Austin from serving as expert witnesses for the law’s opponents. The plaintiffs sought information about communications between the governor’s office and people in the university system about the law or expert witnesses.

“Plaintiffs intend to ask the governor’s office — which leads the ‘executive branch of the state of Florida’ — whether it played a role in this decision,” plaintiffs’ attorneys wrote in a court document last week. “Plaintiffs are legitimately concerned that prosecution of this litigation may be impeded by the efforts of ‘the executive branch of the State of Florida’ to prevent testimony from or intimidate plaintiffs’ experts on key issues — including racially discriminatory intent and racially disparate impact — and are clearly entitled to explore these issues in discovery.”

But Walker rejected the request based on the governor’s office claim of executive privilege.

“Whether the governor’s office played a role in the University of Florida’s decision to prohibit professors from serving as witnesses in this case — or whether the university’s denial was simply vorauseilender Gehorsam (a German phrase meaning anticipatory obedience) — does not tend to make any fact supporting the parties’ claims or defenses more likely,” Walker wrote. “Although this case is about the alleged degradation of our core democratic values, plaintiffs seek to explore allegations of the degradation of different, though no less important, democratic values that are not at issue before this court.”

Nevertheless, Walker added a footnote that indicated the University of Florida’s actions could still become an issue as the challenges move forward.

“To be clear, this court is not saying there is no issue here, only that any potential issue raised by the university’s actions are not before this court at this time,” the footnote said. “For example, this court might get involved if plaintiffs’ allegations lead to the initiation of other civil claims or cases, or if a witness is prevented from appearing pursuant to a valid subpoena. … This issue could also come before this court if the United States Attorney’s Office decides to pursue its own investigation and initiate criminal proceedings. … However, because such allegations are not at issue before me now, this court declines to allow plaintiffs to turn over these particular rocks.”

The law, a top priority of DeSantis, was one of the most-controversial issues of this spring’s legislative session and quickly drew legal challenges from several groups such as the Florida State Conference of the NAACP, Common Cause, Disability Rights Florida and Florida Rising Together.

At least four lawsuits are pending in federal court. Among other things, the law made it harder for Floridians to cast ballots by mail and added restrictions to drop boxes, where voters can drop off completed ballots. Plaintiffs contend, in part, that the law was designed to suppress voting by groups such as Black Floridians.

In seeking information about how the law was developed, plaintiffs’ attorneys sought to depose key legislators. For example, Passidomo is chairwoman of the powerful Senate Rules Committee and is the incoming Senate president; Baxley is chairman of the Senate Ethics and Elections Committee; Gruters doubles as chairman of the Republican Party of Florida; Grall during the spring legislative was chairwoman of the House Public Integrity & Elections Committee; and Ingoglia is a former chairman of the Republican Party of Florida and played a lead role in passing the law in the House.

Attorneys for the state said the Legislature had already agreed to turn over many documents to the plaintiffs, as the documents would be covered by public-records laws. But they objected to lawmakers being required to testify.

Walker cited the disclosure of the documents as one of the reasons that he was quashing the subpoenas of the lawmakers.