What were state GOP lawmakers’ intentions when they enacted House Bill 589, one of the most restrictive voting laws in the nation?
That’s the question the groups challenging the law want answered by legislators they served with subpoenas last December, asking for emails, letters, reports and other records used when pushing for voting law changes in 2013.
Plenty has transpired since then. The voting cases pending in Winston-Salem ran through the federal courts all the way to the U.S. Supreme Court on the issue of a stay of the new law’s provisions, pending the November elections.
Now though the court and the parties are digging in as a mid-summer 2015 trial date looms.
And in an order issued yesterday, U.S. Magistrate Judge Joi E. Peake told state lawmakers they could no longer hide behind a claim of legislative privilege and withhold certain categories of communications relevant to the claims asserted in the pending cases.
Among the documents sought are lawmakers’ communications with constituents, state agencies, lobbyists and political organizations regarding the reasons for voting law changes; studies and reports on voter fraud, race and ethnicity of voters; and analyses of costs associated with administering the new provisions.
State lawmakers’ files may be one of the few sources of proof for plaintiffs hoping to establish that those legislators had a discriminatory purpose in enacting House Bill 589 – a critical element in proving certain of plaintiffs’ constitutional claims and in obtaining future preclearance relief under Section 3 of the Voting Rights Act.
In her ruling, Peake held that communications between legislators and third parties regarding House Bill 589 are not privileged and must be disclosed. “Third parties” would include any person or group beyond lawmakers and their staff — constituents, state agencies, lobbyists and political organizations, for example.
Peake also ruled that communications between lawmakers and outside counsel before the lawsuits were filed on August 12, 2013 are not automatically privileged and may also be subject to disclosure. The state defendants must provide a log of any such communications being withheld as privileged, with sufficient detail for the parties and the court to assess whether they can be withheld or should be produced.
Communications between lawmakers and staff, however, remain privileged and need not be identified on a log or otherwise disclosed.
The state defendants still have the option of objecting to Peake’s order and asking for a review by the judge handling the cases, U.S. District Judge Thomas Schroeder.
If that happens, it may be January before documents start arriving, according to Allison Riggs, an attorney from the Southern Coalition for Social Justice representing groups challenging the law.
“We’re pleased with the ruling,” Riggs said. “We’re eager to get this relevant discovery and build the case for trial next summer. The state needs to comply with the order and produce this discovery quickly.”
For more background on the dispute over documents in the voting cases, read here.
Read Judge Peake’s order here.