TEXAS REDISTRICTING & ELECTION LAW

In an order issued this afternoon, the panel in the voter ID case declined to issue the blanket protective order sought by the State of Texas to bar depositions of 14 key legislators involved with the voter ID bill on grounds of legislative privilege.

While disagreeing with the Justice Department that “every litigated Section 5 case under the Voting Rights Act … constitutes an ‘extraordinary instance’ warranting a need to 'intru[de] into the workings’ of the state legislature,” the court also found that the relief sought by the state was too broad:

That said, we think it inappropriate to carve out the contours of such a privilege in a blanket protective order that preemptively shields legislators and their staffs from discovery requests.  Such an order - which would put us in the uncomfortable position of deciding potential issues before we even know whether they will arise - strains our preference for adjudicating concrete issues as they come.  

The court noted that some legislators might choose to waive the legislative privilege, as they did in the redistricting case, and that “whether and how the privilege applies may depend on whether Texas chooses to rely on legislative testimony on the merits.”

The court said instead that:

If any legislators assert the privilege in response to specific requests for depositions or to justify withholding the production of specific communications, Defendants can move to compel in the appropriate court and Texas can oppose the motion or renew its motion for a protective order.  At that point, the precise scope of the privilege can be determined.

The court’s order can be found here.