The battle over the disclosure of information relating to the passage of controversial voting law changes last summer continues in federal court, as state lawmakers yesterday filed an objection to a magistrate’s order requiring them to produce at least some documents they’d claimed were absolutely protected under the doctrines of legislative immunity and legislative privilege.
In that order, U.S. Magistrate Judge Joi Elizabeth Peake adopted a flexible approach, finding that at a minimum, certain documents — communications with constituents or other third-parties, for example — were not protected and should be produced, and that other documents might likewise have to be disclosed if the need for them in the voting rights context outweighed any intrusion on the legislative process.
That’s an approach that courts elsewhere have adopted — in Florida, Texas, and Wisconsin, for example — weighing the need of legislators to be free from harassing questions about their decision-making processes with the needs of citizens suspicious of those lawmakers’ motives – and in the end, ordering the disclosure of at least some information.
“This is a place where courts have rarely spoken, but clearly the concern that legislative officials might not be acting with the best interests of their public in mind has caused this issue to arise more frequently,” said Justin Levitt, a voting law expert and professor at Loyola Law School.
The lawmakers’ objection means that disclosure of their documents will be further delayed as U.S. District Judge Thomas Schroeder, who is presiding over the three cases pending in Winston-Salem, reviews the magistrate’s ruling and affirms, overrules or modifies its terms.
The court has been pushing the parties in the cases to hasten the disclosure of information with a view towards the filing of papers seeking to delay implementation of the voting changes so that, at least during the upcoming November elections, voters will maintain the full range of voting options they previously had — extended early voting and same-day registration, for example.
Those papers are tentatively scheduled for filing in May, with a hearing to be held some time in July.