The rubber’s about to meet the road in the voting rights lawsuits pending in federal court here as the parties start to ask the hard questions.
What were state GOP lawmakers’ intentions when they enacted House Bill 589, one of the most restrictive voting laws in the nation?
That’s the question the groups challenging the law want answered by the handful of legislators they served with subpoenas in December, asking those lawmakers to produce emails, letters, reports and other records used when pushing for voting law changes last session.
The lawmakers responded last week with an opening salvo in what might become an extended battle, claiming to be completely insulated from any obligation to produce those communications.
But if the court in Greensboro follows decisions from others across the country resolving voting cases, those lawmakers may have to start digging through their files and come up with some answers.
“This is a place where courts have rarely spoken, but clearly the concern that legislative officials might not be acting with the best interests of their public in mind has caused this issue to arise more frequently,” said Justin Levitt, a voting law expert and professor at Loyola Law School.
In Florida, Texas, Wisconsin and other states, courts are taking a deliberate approach, weighing legislators’ needs to be free from harassing questions about their decision-making processes with the needs of citizens suspicious of those lawmakers’ motives – and in the end, ordering the disclosure of at least some information.
What were they thinking?
The state NAACP, the League of Women Voters and the Justice Department filed separate lawsuits in federal court in Greensboro shortly after Gov. Pat McCrory signed House Bill 589, contending that the new law’s voter ID and other provisions violated the U.S. Constitution and the Voting Rights Act.
The court has since consolidated those actions and set them for trial in summer 2015, but U.S. District Judge Thomas Schroeder has indicated that he will consider suspending the voting changes for the November 2014 elections.
The parties are now knee-deep in the discovery process, and in December plaintiffs subpoenaed several GOP lawmakers, asking them to produce documents they received or sent relating to the voting changes ultimately passed by the General Assembly.
Among the documents sought are communications with constituents, state agencies, lobbyists and political organizations regarding the reasons for voting law changes; studies and reports on voter fraud, race and ethnicity of voters; and analyses of costs associated with administering the new provisions.
State lawmakers’ files may be one of the few sources of proof for plaintiffs hoping to establish that those legislators had a discriminatory purpose in enacting House Bill 589 – a critical element in proving plaintiffs’ constitutional claims and in obtaining future preclearance relief under Section 3 of the Voting Rights Act.
Emails disclosed in the 2011 Texas redistricting battle, for example, revealed that lawmakers there contemplated drawing voting lines in a way that might diminish the Hispanic vote.
But legislators here have asked the court to quash the subpoenas, claiming that they are completely protected from suit by virtue of the doctrine of “legislative immunity,” which, they say, “encompasses all aspects of the legislative process and forbids plaintiffs from seeking any production at all from the legislative movants.”
That’s a misplaced argument, since immunity arises to protect lawmakers from being sued and held personally liable for their legislative actions, according to Michael Crowell, a voting rights expert and professor at University of North Carolina’s School of Government.
With the exception of Sen. Phil Berger and Rep. Thom Tillis, none of the subpoenaed lawmakers have been sued in the federal cases pending in Greensboro.
Instead the court will consider the question of legislative privilege – whether lawmakers can be forced to testify or otherwise disclose information about what they discussed in connection with their legislative actions.
Hiding behind the privilege
At the heart of the legislative privilege lies the notion that lawmakers should be free to deliberate and otherwise go about their duties without distraction or intervention by the judicial or executive branches of government.
In the majority of states, that privilege is constitutionally based, but not in North Carolina.
And while North Carolina has a statute that defines to some degree who is protected from having to disclose legislative communications, there’s little case law on the scope of the privilege here.
“It’s come up from time to time in redistricting cases,” Crowell said, ”but generally what has happened is that legislators have waived the privilege because they have things they want to say.”
Courts elsewhere have said that the legislative privilege is a qualified one, ruling that while there may be good reasons to protect lawmakers’ decision-making, the privilege should not trump the need for information in cases where fundamental rights are at stake. The Florida Supreme Court ruled that way in December – ordering state lawmakers to testify and produce documents in a redistricting case there — as did a federal court in the Texas redistricting battle earlier this month.
Courts addressing the applicability of the legislative privilege have parsed requests for disclosure in a deliberate way, Justin Levitt said.
Who’s being asked? What are they being asked for – how central does it cut to the legislative deliberative process? And can the information sought be obtained by other means or from other sources? Those are the kinds of questions courts are asking, he added.
In the end, it’s a balance between the context of the ask, the protection of lawmakers’ deliberative processes, and the reasons that the information might be needed.
That last factor, in voting rights cases, weighs heavily in favor of disclosure.
“When we talk about voting, about redistricting, we’re talking about the very heart of the democratic process, and it’s important to protect that process,” Michael Crowell said. “So while there are good reasons for the legislative privilege, these voting issues rise to such a level that they may outweigh any need for legislative privilege.”