The parties in the Texas redistricting cases exhaustively briefed and argued the issue of legislative privilege, so the emergence anew of a privilege dispute in the voter ID case seems more than a little distinctly deja vue to many observers.
And in responses filed this afternoon, both the Justice Department and intervenors in the voter ID case threw sharp barbs at the State of Texas’ request that the D.C. district court block the depositions of 12 Republican legislators who were closely involved with the voter ID bill.
DOJ officials called the state’s claim of privilege “novel” and, quoting from Judge Collyer’s opinion in the preclearance case, said “’[t]here is no state legislative privilege identified in the Federal Rules of Evidence and the D.C. Circuit has never recognized one.’”
Instead, DOJ argued - as it did in the redistricting cases - that the state was confusing “legislative immunity” with “legislative privilege” and that it was well-established that “[i]ndividuals who are immune from suit may nonetheless be compelled to testify.”
DOJ lawyers also said that - whatever privilege existed - it was at best qualified and had to yield in voting rights cases to the need to obtain evidence of discriminatory intent that likely was not readily obtainable from merely reviewing the public record.
Minority intervenors in the case echoed that concern, arguing that “Texas’ all-encompassing claim of legislative privilege … would preclude disclosure of any information from the legislative process other than what the legislators themselves have placed in the public record.”
Noting that Texas did not address the privilege opinions from the redistricting cases, the intervenors said “the significant federal interests at stake in a Section 5 preclearance action, and the key nature of legislators’ testimony and documents, counsel against the recognition of any legislative privilege.”
The state has until Monday, April 2, to file a reply brief.
DOJ’s response can be found here.
The intervenors’ response can be found here.