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***This story has been updated late Wednesday to include new comments from both Mary Ellen Klas and Miami Herald Managing Editor Monica Richardson addressing the situation. The updates include minor edits to the transcript of a recorded conversation after getting clarification and analysis from Klas and others. 

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A Miami Herald reporter covering a mid-November Senate redistricting committee hearing was caught after the hearing on an audio recording in which she pushes a Democrat member of the committee to ask for sensitive racial analysis data for a specific senate district. The Herald’s Tallahassee bureau chief, Mary Ellen Klas, was recorded on November 17 by a Senate staffer during a routine media “gaggle” following the hearing. In the audio file, obtained via a public records request by The Capitolist, Klas can be heard advocating for Democrat State Senator Randolph Bracy to make a request for the racial demographic analysis.

She then suggests that the analysis could benefit litigation expected to be filed by Democrat-leaning third party groups.

Several partisan groups have already taken preliminary steps signaling they intend to use the courts to nullify legislative maps they don’t like, which could swing the balance of political power in both Tallahassee and Washington D.C.

Senator Bracy did not respond to an email seeking comment for this story.

The most explosive portion of the recording comes around the 4 minute mark, where Klas can be overheard pushing Bracy to request the controversial voter performance data in Senator Jason Pizzo’s district, specifically for the purpose of tipping the scales in future litigation:

Klas: “That’s the age old redistricting debate, right? ‘Cause there’s the minority majority districts, and the minority access districts. Access means you don’t necessarily have a majority, but you have enough to maybe elect one in a primary, which is Senator Pizzo’s situation, and obviously he’s not a minority, but um, it…it does, you know, to me, that’s, that debate should be flushed out and we should hear about it in public forums like this. If nobody asks these questions, they don’t get it on the record and if it’s not on the record, they aren’t gonna be held to it when [unintelligible] go to court.” 

Bracy: “That’s a good point. Well…that’s what [unintelligible] I hear what you’re saying…[unintelligible]…maybe we’ll…get you something…[unintelligible].” 

Klas: “I think it’s…[unintelligible]. As a reporter, the more questions you guys ask, the better we can explain it.” 

Update: In a late night email to The Capitolist, Klas claims some parts of the conversation with Bracy were transcribed incorrectly. However all of the differences appear to be minimal and immaterial. The original recording is difficult to hear in some parts due to background noise. Any obvious errors in our original report have been corrected above, however, Klas still insists in an email that she actually said “…if it’s not on the record, they aren’t held to it when they go to court.”

Our ruling: after listening to the recording again and seeking input from others, it is difficult to distinguish if Klas says “you” “we,” or “they.” But it doesn’t matter, because none of those specific words change the overall thrust of the conversation between Klas and Bracy, nor our reporting on the incident, which plainly shows Klas pushing Bracy to create a legislative record specifically to strengthen potential court challenges (regardless of who brings those challenges) against the legislature.

Senate President Steps In

In addition to the audio recording, The Capitolist also obtained a letter sent from Senate President Wilton Simpson to Miami Herald Executive Editor Monica Richardson five days after the incident. In the letter, Simpson rips Klas for “inappropriate” behavior and accuses her of blatant advocacy for partisan third party groups that are closely aligned with the Democratic Party. The letter reads in part:

“…it appears Mary Ellen Klas has crossed the line of reporting and informing to advocating for organizations that will bring litigation against the Legislature. As you will read below, she literally asked a State
Senator to pose questions before the committee in order to build a record for litigation.” 

Simpson, who has a history of holding outsiders accountable when they violate Senate rules or decorum, specifically called Klas’s comments into question [note: there are minor differences between Klas’s comments as quoted in Simpson’s letter versus The Capitolist’s transcription of the audio file, but they are minor and immaterial]. From Simpson’s letter:

In a media gaggle following the meeting of the Select Subcommittee on Legislative Reapportionment, Ms. Klas encouraged a Senator to inquire with professional staff regarding election performance in a proposed state senate district. Specifically, whether or not the district would perform for a minority candidate, noting that the current Senator who represents the district, is not a minority. Ms. Klas stated that questions and debate surrounding election performance in this district should be established in the legislative record prior to review by the courts.

Ms. Klas stated in describing a minority access seat: “Access means you don’t necessarily have a majority, but you have enough to maybe elect one in a primary, which is Senator Pizzo’s situation, and obviously he’s not a minority, but it does, you know, to me, that debate should be flushed out and we should hear about it before the courts get this. If nobody asks these questions, they don’t get it on the record and if it’s not on the record, they aren’t held to it and we go to court.”

University of Florida “expert witness” connection

Also in the letter, Simpson took issue with Klas’s article, written the day of the incident, where she included commentary from a person Simpson describes as a “so-called redistricting expert.” Simpson says Klas failed “to identify [the person] as a professional expert witness who stands to profit in the redistricting litigation against the state.”

From the letter alone, it isn’t clear who Simpson is referring to, but in Klas’s story, she includes quotes from Michael McDonald, a University of Florida political science professor who has frequently testified in elections-related cases. Of note, he is one of several UF professors involved in a federal lawsuit against the school seeking, among other things, an injunction that would prevent UF from blocking faculty members like him from being paid to testify as an expert in lawsuits. Klas also covered that story for the Herald.

There are significant similarities between McDonald’s comments provided to Klas in her November 17th story and the recorded comments she made to Bracy earlier that day, which would explain another of the accusations Simpson levels against Klas. In his letter, he references questions sent from Klas asking the Senate’s general counsel to conduct what Simpson describes as “an unconstitutional analysis of racially polarized voting in a proposed Senate district.”

A Senate Reapportionment Committee directive issued in October by Senator Ray Rodrigues sought to eliminate input from partisan influences outside the committee, which would preclude McDonald’s analysis being provided to Bracy through Klas or anyone else outside of Senate staff. The committee operates under the Fair Districts constitutional amendments that prohibit partisan interference in the process and set strict rules about how maps must be drawn and when racial demographic voter performance data can be considered.

Through a spokesperson, Simpson declined to comment on the matter, and instead referred back to the November 22 letter.

“Through this series of interactions between Ms. Klas, Senators, staff, and counsel, it has become clear that she is seeking to pre-litigate the 2022 redistricting cycle, pitting Senate counsel against expert witnesses frequently used by plaintiffs in litigation against the state, thereby creating a manipulated legislative record to be used in the courts.”

The letter from Simpson also notifies the Miami Herald that Bracy and Senate staff have been directed to ignore Klas’s comments and questions to avoid violating the state constitution and the integrity of the redistricting process.

“Unfortunately, Ms. Klas has crossed the line between reporting and interfering,” the letter said. “To address the serious nature of this interference, staff directed the Senator to disregard the suggestions she made when contemplating future requests for information and analysis from professional staff. Senate counsel has advised staff to disregard and not answer deliberately litigious questions that would inappropriately influence the redistricting process.”

UPDATE: The Miami Herald and Mary Ellen Klas respond

In the initial aftermath of Simpson’s letter to the Herald, it was not clear what action, if any, the paper planned to take to address the matter, and some speculation swirled that Klas may have been removed from the redistricting beat.

Helping to fuel that speculation: Klas’s last story on redistricting was published December 2nd, about a week after the receipt of Simpson’s letter, but that story focused primarily on the Florida House rather than the Senate. Since then, only one other story, published December 30th, has covered redistricting. That was written by a different reporter who typically had not covered redistricting prior to Simpson’s letter.

When initially asked by The Capitolist if Klas had been removed from the redistricting beat, or if the December 30th story by a different reporter was because of a holiday break, the Herald’s managing editor Monica Richardson at first declined to elaborate.

“I responded and replied to Senator Simpson’s letter after it was received and have no further comment at this time,” she wrote in an email.

Hours later, Klas responded and Richardson changed course, each reaching out separately via email. Klas referred all questions about the matter to Senior Editor Dave Wilson, but did confirm via email that she will return as the lead reporter on redistricting issues.

A second email from Richardson confirmed that the Herald is standing by Klas and called the criticism an “unfair attack” on the Herald and a “personal attack” on Klas.

“Simpson alleges that comments and questions made by Klas were inappropriate for a journalist,” Richardson said. “As I told the senator in my written reply, the Herald disagrees.”

Here’s the full audio recording of the incident (transcribed comments can be heard at approximately the 4-minute mark):

Here’s the full text of Simpson’s letter:

Click to access 11.22.21-Ms.-Monica-Richardson-Miami-Herald.pdf