Judge rules Gov. DeSantis, top aide can be deposed in redistricting case

A Leon Circuit judge says plaintiffs in a redistricting lawsuit may depose Gov. Ron DeSantis and a top aide.

Circuit Judge Lee Marsh issued an order on Oct. 27 quashing efforts to protect DeSantis and Deputy Chief of Staff Alex Kelly from being forced to testify. The decision makes way for both to answer questions in videotaped depositions.

Kelly drew Florida’s new congressional map, one approved by the Legislature on April 21, after DeSantis vetoed a map produced by the Legislature during the Regular Session.

The Governor’s involvement, unprecedented in modern Florida history, drew immediate criticism for producing a map with 20 districts won by Republican Donald Trump in 2020 and just eight won by Democrat Joe Biden. Trump won Florida that year by just 3 percentage points.

The map he vetoed from the Legislature has 18 Trump districts and 10 Biden districts. Notably, the Legislature’s map had been crafted by House redistricting committee staff led by staff director Leda Kelly, Alex Kelly’s wife.

Shortly after DeSantis signed the map drawn by his staff, civil rights advocates sued, contending the map intentionally diminished the voting power of Black Floridians by eliminating two districts where Black voters control the outcome of elections. In one of those, the map forced incumbent Democratic U.S. Rep. Al Lawson to run in a different Republican-leaning district against Republican U.S. Rep. Neal Dunn.

DeSantis publicly argued during the legislative process that prior maps, which drew Lawson’s district to span from Tallahassee to Jacksonville, violated the equal protection clause of the U.S. Constitution by using racial motivations to draw lines.

Plaintiff attorneys in a state lawsuit argued in a hearing earlier this month that both DeSantis and Kelly need to answer questions about how the map was crafted.

Marsh cited a Florida Supreme Court decision regarding Florida’s redistricting process in the last decade. Then, Justices determined legislative privilege did not protect elected lawmakers from testifying because the state constitution outlaws “improper legislative ‘intent’ in the congressional reapportionment process.”

Ultimately, lawmakers had to testify about the reapportionment case in court, and Justices determined a congressional map approved by the Legislature was drawn to benefit the Republican Party in violation of the constitution. That led to the Supreme Court replacing the congressional map mid-decade.

“In this case, plaintiffs alleged that the Governor (through his staff) drew the congressional district map that was ultimately enacted into law,” Marsh wrote in his court order. That means courts need to hear from DeSantis and from Kelly in order to determine if the map was crafted in violation of the constitution.

Marsh also notes several exceptions were allowed in the consideration process for the congressional map. The cartography was submitted through a public portal, but while all other submissions required disclosure of all individuals who collaborated on the mapmaking process, Kelly shared no such information.

Ultimately, Marsh dismissed arguments by DeSantis’ Office that executive privilege would protect DeSantis or Kelly from testifying in the case, largely because both acted not in an executive capacity but a legislative one in crafting a map that would be sent to the Legislature for consideration.

But Marsh does say depositions and evidence in the case will only be allowed pending in camera review to see if any communications presented there are protected by attorney-client privilege.

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