Creatures of the Dark: Wisconsin GOP Caught Deleting Records, Again

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New federal court filings allege that hundreds of thousands of Republican redistricting files in Wisconsin were deleted last year, in defiance of court orders to turn over all documents. The deletions fit into a pattern of the Wisconsin GOP covering their tracks and could result in sanctions for the attorneys or individuals involved in deleting the files.

According to the April 18 court filings, a forensic analysis of computers used during redistricting indicates multiple files were deleted just after Republicans were instructed to turn them over to Democrats -- but before they had actually done so.

In January 2012, after the three-judge federal panel hearing a Democratic challenge to the redistricting maps ordered Republicans to produce all redistricting-related records, someone with the user name of an aide to Senate Majority Leader Scott Fitzgerald logged-on to GOP computers and deleted files and folders. In July, just after Democrats took control of the state senate and asked for the entire redistricting folder, another Fitzgerald aide's login was used to delete hundreds of thousands of records.

Though the legal challenge to the redistricting maps was resolved over a year ago, mounting evidence of deleted files and possible misrepresentation by Republicans and their attorneys led the court to order a forensic analysis of the computers to recover deletions and assess the level of wrongdoing.

The entire redistricting process has been marked by an unprecedented level of secrecy. And the stakes are high for the Republican legislature's law firm, Michael Best & Friedrich, whose lawyers have been sharply criticized by the court for their handling of the case. Republican National Committee Chair Reince Priebus is a partner at the Wisconsin-based firm, though he is currently on leave while he leads the RNC.

"Shameful" and "Needlessly Secret" Redistricting Kept Public in Dark

With Republicans in charge of the Assembly, Senate, and Governor's mansion after the 2010 election, they had the legislative majority to gerrymander congressional maps to their party's benefit, and did so in the offices of Michael Best & Friedrich, apparently to try and keep the process protected under attorney-client privilege. The maps were promptly challenged by immigrant rights group Voces de la Frontera, and the federal court hearing the case sharply criticized Republican lawmakers for conducting redistricting under a veil of secrecy and shutting the public out of the process, calling it "shameful," "sharply partisan," and "needlessly secret."

In December 2011, the court demanded that Republicans turn over nearly all documents related to redistricting, but the GOP and their lawyers at Michael Best & Friedrich continued working to keep the material confidential -- leading the court to fine the attorneys $17,500 in fees for filing frivolous motions.

As the federal court ruled on Wisconsin's maps in February of 2012, the Center for Media and Democracy (publishers of PRwatch.org) revealed that the American Legislative Exchange Council (ALEC) had invited legislators to redistricting conference calls, based on emails obtained through earlier open records requests to Senate Majority Leader Scott Fitzgerald.

The emails CMD obtained were not released to the lawyers challenging the maps. But they should have been. This failure to release all redistricting-related documents opened a new round of legal wrangling, with the court questioning what other documents Republican legislators and their lawyers had kept secret. Additional documents that should have been produced were found when Democrats took control of the state senate after the July 2012 recall elections and obtained access to the Republican redistricting file.

In February of 2013, the Court ordered Republicans to turn over computers used in redistricting for expert forensic analysis, because judges found that "fraud, misrepresentation, or misconduct" likely occurred.

According to the April 18 court filings, the analysis so far indicates files were deleted on at least two separate occasions: on January 6, "just after the Court's order [to turn over the documents] and just before the legislature's supplemental production," and on July 25, which was one week "after majority control of the state senate shifted [and] the new majority leader requested Michael Best's redistricting file," and one week before "Michael Best turned over its redistricting file to the new senate majority leader."

In other contexts, CMD has encountered patterns of Republican legislators deleting files, thanks to a loophole in the state open records law exempting legislators from records retention rules that apply to all other government officials. Sen. Fitzgerald -- whose office is at the center of the redistricting litigation -- in the past had released hundreds of documents in response to requests for ALEC-related records, but is now issuing replies like this one to a records request for ALEC communications: "If we did receive materials (from ALEC), either electronically or via mail, those materials were discarded upon receipt."

Taxpayer Costs of Defending Secrecy Continue to Rise

Recent court filings show that over $100,000 has been spent on the initial stages of the forensic analysis, largely because of the complexity of reconstructing deleted files. Wiping software that could have been used to remove electronic data and hide deleted files had been installed on some hard drives, further complicating the reconstruction. According to the court filings, two-thirds of the costs moving forward will be incurred in locating and reconstructing the deleted files. "Had data not been deleted, the investigation could proceed at a fraction of the cost," the filings state.

Plaintiffs are seeking to have the legislature -- or its attorneys -- cover the cost of the examination before continuing.

So far, taxpayers have been on the hook for at least $2 million in legal fees to defend the GOP's "shameful" redistricting effort, and costs will likely continue to rise.