Tomorrow, the DC Court will hear “oral argument on the State of Texas’ request to block the depositions of 12 Republican legislators who were involved with the voter ID bill, including State Sen. Dan Patrick and state representatives Debbie Riddle and Leo Berman as well as Speaker Joe Straus”.
The only voter ID anyone should need
The motion also sought to bar discovery of written communications between members of the Legislature, communications between legislators and their staffs, and communications between legislators and their constituents, regarding the bill.
The motion said that efforts by the Justice Department and intervenors to obtain the documents and depositions were barred by a “long recognized” legislative privilege and “represent[ed] an unwarranted federal intrusion into the operations of the Texas Legislature” that “threaten[ed] to push section 5’s already-questionable incursions on state prerogatives past the constitutional breaking point.”
The state said that recognizing legislature privilege in cases like this would “not interfere with the judicial preclearance process because it does not prevent litigants from establishing that a state law was enacted with a racially discriminatory purpose.” Instead, the state argued that a “racially discriminatory purpose can be determined from publicly available documents, the relevant history surrounding the enactment, and common sense.”
You can see the motion here. Burka was not impressed.
Abbott increasingly acts like a politician instead of a lawyer. His move this week to ask a Washington, D.C. court to allow the legislators involved in the battle over the Voter ID to avoid giving deposition testimony is really putting a thumb on the scales of justice. This is a lawsuit. Why shouldn’t DOJ, as one of the parties, have the right to depose witnesses? What are the federal rules of civil procedure for, if not this? Abbott would scream bloody murder if the shoe were on the other foot and he was attempting to depose witnesses.
According to the Statesman, The U.S. Department of Justice, which is facing off against Abbott’s office in a case in which the Attorney General seeks to have Texas’ voter ID law go into effect for the upcoming elections, has asked to depose or question under oath the Senate author of the voter ID bill, Troy Fraser; the House sponsor, Patricia Harless; and other lawmakers. What is Abbott’s justification for keeping key legislators from being deposed? State’s rights, of course: “an unwarranted intrusion into the operations of the Texas Legislature.” Let me see if I understand this. Requiring legislators to give testimony about the passage of a bill is an unwarranted intrusion into the operations of the Legislature. What does the Legislature do other than pass legislation? What else is “the operations of the Legislature?”
A couple of Burka’s commenters made the points that such internal communications cause Abbott and the state a fair amount of heartburn during the redistricting preclearance trial, and that some of the legislators Abbott is trying to protect, including SB14 sponsor Sen. Troy Fraser, weren’t exactly articulate and knowledgeable about the legislation they were pushing at the time it was being debated. The Justice Department filed its response on Thursday.
The department argues however, that: “Discovery seeking to determine whether the state can meet its burden that the change was not motivated by discriminatory purpose is an appropriate inquiry. Therefore, the discovery at issue here is relevant. Texas bears the burden of establishing that SB 14 has neither a discriminatory effect nor a discriminatory purpose.”
It adds that there has never been any state legislative “privilege identified in the federal rules of evidence and the D.C. Circuit has never recognized one.”
Indeed, the DOJ quoted Judge Rosemary Collyer from the redistricting preclearance trial on that point in its response. The numerous intervenors in the case also filed a response. The state has till today to respond to the response, then there will be the status conference tomorrow. The trial itself is scheduled for July 9, but the constitutional issues the state wants to bring up won’t be addressed until and unless preclearance is denied, so it’s unlikely they can be heard in time for a final ruling this year. A busy and eventful year just keeps getting more so.
Talking Points Memo has more, including some pertinent quotes.
“Samuel Bagenstos, a former official in the Justice Department’s Civil Rights Division, told TPM that while states have tried to avoid turning over their deliberations before but the argument hasn’t been successful.
“It’s not the first time I’ve ever seen anyone make this argument, but it’s not a winning argument,” Bagenstos said. “If a court were to accept that argument, it would totally undermine the way the statute is supposed to work. How can you look at intention without asking them questions?” “
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