Recent efforts by state lawmakers to withhold documents in the voting rights cases pending in federal court have garnered plenty of attention in the press, and rightly so (see Rob Schofield’s posts here, here, and here).
As we pointed out earlier this week, similar attempts in other cases have been met with resistance from judges, who view the underlying voting issues to be far more compelling than lawmakers’ claims of a privilege intended to insulate them from the distractions of litigation. In some places, that legislative privilege has its roots in state constitutional speech protections, but North Carolina’s constitution has no such speech and debate provision.
And, as experts pointed out, lawmakers often waive any such privilege because they presumably have something to say — and nothing to hide.
But one important fact has gone overlooked in this discussion: This is not the first time in recent history that state lawmakers have withheld information in a critical voting rights case under the guise of privilege.
Just last year in the redistricting case pending in state court, some of the same individuals represented by the same attorneys pulled off a similar stunt, with the blessing of the Supreme Court.
At the time that redistricting plans were being drafted in 2010, state law provided that legislative communications regarding the plans remained confidential, but only until a plan was signed into law. At that point, they became public records. In the lawsuit that followed, though, lawmakers claimed that communications regarding the redistricting plans that went through their attorneys were protected by the attorney-client privilege.
The state Supreme Court agreed, writing in Dickson v. Rucho that because the state law lifting the veil of secrecy off legislative redistricting communications did not expressly include attorney-client communications, the court would not presume such a waiver. It would be up to the legislature to change the law so that communications with attorneys, like other privileged redistricting communications, became public once a plan was enacted.
So what did the General Assembly do?
Just the opposite. Now attorney-client communications remain privileged even after a redistricting plan is enacted.
Ordinarily that might be a wise approach, given the importance of confidentiality in most attorney-client situations.
But here’s the practical result: In the legislative setting, if lawmakers wants to discuss something controversial with each other, something that might reveal a true motive for enacting laws touching upon fundamental rights — like voting — all they have to do is talk to each other through their attorney.
Then, mum’s the word.