Today the DOJ filed a motion seeking the production of the communications between members of the Texas legislature as to the real reasons for the adoption of SB 14. http://txredistricting.org/post/76368794502/doj-asks-court-in-voter-id-case-to-compel-texas-to
Lawyers for the Justice Department filed a motion with Judge Nelva Gonzales Ramos this afternoon asking her to compel the State of Texas to turnover documents in the Texas voter ID case that DOJ said the state was improperly withholding.
The filing said that the documents being withheld by the state on grounds of privilege were “necessary … to ascertain the Texas legislature’s motivation for enacting SB 14” and included “communications concerning SB 14 and prior photographic voter identification proposals amongst Lieutenant Governor David Dewhurst, Speaker Joe Straus, Senator Troy Fraser (Senate sponsor of SB 14), Representative Patricia Harless (House sponsor of SB 14), and their top aides.”
DOJ said it had been told by lawyers for Texas Attorney General Greg Abbott that the state was not willing to “conduct a search for documents unless each legislator expressly declined to assert a state legislative privilege.”
However, DOJ took issue with the state’s assertion of a broad legislative privilege, telling the court that:
Defendants’ assertion of a state legislative privilege is inappropriate because the important federal interest in prohibiting intentional discrimination in voting and the uniquely probative nature of the withheld documents must overcome a privilege claim based merely on theoretical interference in state lawmaking.
The motion said that even if the court were to find that a state legislative privilege existed under the Federal Rules of Evidence, the balancing test used by the courts - including the three-judge panel in the Texas redistricting case in San Antonio - warranted turnover of the documents:
When debating SB 14, key proponents did not speak to specific provisions included in or excluded from the bill or the unusual procedures used to enact the legislation and instead limited their public testimony to coordinated talking points. The documents and ESI [electronically stored information] being sought in discovery here would allow the Court to determine the credibility of legislative sponsors who refused to respond in public to questions posed by minority legislators. When Senator Royce West, a black state senator, asked Senator Troy Fraser whether SB 14 would ‘disproportionately affect African Americans and Hispanics,’ Senator Fraser merely replied, ‘I’m not advised.’ When Representative Rafael Anchía, an Hispanic state representative, asked Representative Patricia Harless whether she was aware of any studies conducted by a state agency ‘to project the number of voters that lack the required identification and what percentage of those voters are African American or Hispanic,’ she similarly responded, ‘No. Not advised.’
…
There is [ ] no alternative source for evidence of the contemporaneous and candid discussions of key legislative actors and their staff … [T]he public statements of legislative sponsors reflect repetitive, almost verbatim adherence to talking points and a refusal to engage publicly with the concerns of minority legislators.
…
The State of Texas, and specifically the Texas Legislature, plays a central role in this litigation. As a result, [State] Defendants have named legislators and their staff as prospective witnesses. When combined with the assertion of a state legislative privilege, this creates the potential for the improper use of a privilege as both a sword and a shield.
The motion also said the state was confusing legislative privilege with legislative immunity:
The State’s position glosses over the critical distinction between legislative immunity and recognition of a state legislative privilege. Legislative immunity protects legislators against personal liability for their ‘legitimate legislative activity.’ By contrast, this is a case brought by the United States in which no personal liability is at stake, and individuals who are immune from suit may nonetheless be compelled to testify in a related case.
DOJ also challenged the state’s assertion of an attorney-client privilege:
Defendants have withheld communications between multiple offices without establishing that an attorney employed by one legislator or official maintains an attorney-client privilege with a legislator who is not his or her employer. …
Defendants have also invoked the attorney-client privilege to withhold hundreds of pages of communications between individual legislators or legislative aides and attorneys for the Texas Legislative Council (TLC). Attorneys for the TLC, however, cannot maintain an attorney-client relationship with every one of the individual members of the Texas legislature. The TLC is a state legislative agency, and its statutory mandate does not authorize the provision of legal advice or the formation of an individual attorney-client relationship.
DOJ also said that a large number of the withheld documents seemed to concern policy or political rather than legal advice.
Here is a link to the actual brief filed by the DOJ
https://docs.google.com/file/d/0BxeOfQQnUr_gNlJmdjkzS1NRdEE/edit?pli=1 This is a well written brief and this will be key issue. The DOJ will no doubt make a similar filing in the North Carolina litigation.
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