North Carolina lawmakers say that they cannot be required to turn over communications and documents related to their most recent passage of a voter ID law because of an absolute legislative privilege.
Six voters are challenging the law, enshrined in Senate Bill 824, which the legislature passed in December 2018 after voters approved a constitutional amendment on the subject. Lawmakers subsequently overrode Gov. Roy Cooper’s veto of the bill, but the law has been enjoined from talking effect, pending the litigation. Meanwhile, attorneys for the plaintiffs have asked the court to compel some lawmakers to release emails and other materials related to the bill after they declined to do so, claiming legislative privilege.
Wake County Superior Court Judges Nathaniel Poovey, Vince Rozier and Michael J. O’Foghludha heard arguments in the case, Holmes v. Moore, via a Webex online video conference Wednesday.
Even though legislators are elected by the public to do public business, the process behind that business is generally kept secret, according to legislative privilege laws.
At issue in Holmes are two different versions of privilege. Lawmakers say they enjoy absolute privilege in state court, which means they would never have to turn over such discovery documents; attorneys for the plaintiffs argue they only have qualified privilege, which means in some extraordinary cases, immunity doesn’t apply.
“Time after time, this General Assembly has been found of employing improper racial considerations when passing laws … It’s against this backdrop of persistent malfeasance and with the fundamental right to vote at stake that plaintiffs move this court for certain discovery that will shine much needed light on the motivations of a General Assembly that has repeatedly abused the qualified legislative privilege – a privilege meant to safeguard legitimate legislative activity done in the public’s interest and not to provide cover for the personal or partisan interests of legislators in private,” said Jeff Loperfido, senior counsel with the Southern Coalition for Social Justice.
“In this extraordinary case where significant circumstantial evidence already exists suggesting that legislators have targeted African-Americans with discriminatory laws for the purpose of excluding them from political process, we believe privilege must yield.”
The Court of Appeals, which granted a preliminary injunction halting the law from taking effect this year, used the historical context of the General Assembly’s past racial motivations to make its decision, and Loperfido said the judges in this case should too.
In determining the issue of privilege, Loperfido said, the judges should consider five factors: the relevance of the information sought, the availability of other evidence, the seriousness of the litigation, the role of the government in the litigation, and the purpose of the legislative privilege.
“The threat that this is going to make it impossible to legislate in the state of North Carolina is an utter canard because of the extreme facts of this case as the Court of Appeals detailed,” Loperfido said.
Those facts, he said, include that “a substantially similar law was struck down as racially discriminatory, that the large majority of the same bad actors set out to do it again, that they rushed to put a law in place before they lost their super-majority power, that they did limited debate, limited public input, no new analysis, no new data on ID possession and then again withheld the same type of IDs that they knew were disproportionately held by African-Americans.”
“If all those extreme facts don’t justify scrutinizing what was being done here by, let’s say, defendants, then it’s hard to imagine a case that would,” he said. “And if not now, if production is not ordered in a case like this, it really sends the message to the legislators that it’s business as usual and we can write in secret discriminatory laws and get away with it.”
Pete Patterson, an attorney representing the legislative defendants, emphatically disagreed with the racial context Loperfido recounted for the court. He also rejected the idea that any legislative privilege should be set aside in the case.
Patterson cited North Carolina court decisions that “make clear” legislators have an absolute immunity from being compelled to turn over discovery in North Carolina courts, and those rulings were binding on the three-judge panel. He also pointed out that members of Congress also enjoy absolute privilege in federal courts.
“This case is the same,” he said.
Patterson argued in a brief to the court that legislative privilege enables legislators and staff to focus on their public duties without threat of distraction and protects legislators from costly litigation that would endanger democratic decision-making.
“Granting Plaintiffs’ motion to compel would destroy this privilege and the important protections that it ensures, leaving behind scant protection for legislators as they engage in their day-to-day service,” the document states.
Most of Patterson’s oral argument was devoted to exploring the way the concepts of absolute and qualified privilege as arguments have been treated in other court cases. He also said the plaintiffs never cited a voter ID case in which the legislative privilege was set aside.
Patterson said that in the event the court finds that only qualified immunity exists, he agreed with Loperfido on the five-point test the court should apply in order to determine if privilege should yield. He disagreed, however, as to how it should be applied to this case.
“We dispute heartily the relevance of the testimony that they are seeking,” he said. “The issue of this case is the intent of the legislature, not the intent of any individual legislators. Whatever was in the mind of individual legislators is of limited relevance to the judgement this court has to make in this litigation.”
He also said there is a bevy of alternative evidence available to the plaintiffs. Compelled discovery from individual lawmakers was not part of any of the prior cases which found the legislature had acted in a racially discriminatory fashion, he added.
“The legislative privilege is a bedrock principle of our representative form of government,” he said. “It protects the integrity of the legislature, and the plaintiffs can’t come in here and say, ’well, because we’ve accused them of acting in a racially discriminatory manner, somehow that means we get to go into their files and see what was there.’ That would turn legislative privilege on its head.”
Legislators can waive their privilege, and in this case, former Sen. Joel Ford (D-Mecklenburg) did that. He is an African-American who voted frequently during his term with the Republican Senate majority and in favor of SB 824; Republican lawmakers frequently point to his vote as evidence that the bill is not racially discriminatory.
Ford was deposed in the case, but the plaintiffs were told his emails were destroyed 90 days after he left office. Other lawmakers with whom he communicated about the voter ID legislation have not waived legislative privilege, so the plaintiffs have been denied their emails.
Judge Poovey asked the parties in Holmes whether a similar discovery issue has come up in the federal case – there is also litigation over the law working its way through federal court – but they said it had not.
He told the parties that the panel would take the arguments under consideration and make a ruling as soon as possible, possibly within two weeks.