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The court handling the challenges to the voting law changes enacted by the General Assembly last session ruled today that the doctrine of legislative immunity did not give legislators absolute protection from having to disclose some emails and other documents generated while those changes were being considered.

“North Carolinians have a right to know what motivated their lawmakers to make it harder for them to vote,” said Dale Ho, director of the ACLU’s Voting Rights Project. “Legislators should not be shrouding their intentions in secrecy. The people deserve better.”

In League of Women Voters of North Carolina et al. v. North Carolina, Magistrate Judge Joi Elizabeth Peake wrote:

The Court concludes that while the judicially-created doctrine of “legislative immunity” provides individual legislators with absolute immunity from liability for their legislative acts, that immunity does not preclude all discovery in the context of this case; instead, claims of legislative immunity or privilege in the discovery context must be evaluated under a flexible approach that considers the need for the information in the context of the particular suit presented, while still protecting legislative sovereignty and minimizing any direct intrusion into the legislative process.

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The Court must consider the context of this suit under the Voting Rights Act in making a particularized determination of the extent of any privilege, balancing the need for obtaining the information with the impact on legislative sovereignty and the need to “insure that legislators are not distracted from or hindered in the performance of their legislative tasks.”  In undertaking this inquiry, the Court notes that many of the documents requested by the subpoenas and discovery requests involve communications with outside parties or are other documents that are considered public records under state law. Requiring production of those documents is not unduly burdensome or invasive of the legislative process. However, other categories of documents may require further scrutiny in balancing the competing interests. In addition, the protections of the attorney-client privilege and work product doctrine can also be claimed by the individual legislators, and those issues have not been addressed in detail as to the specific requests presented.

“Today’s ruling is good news for every North Carolinian who values integrity and transparency in our elections,” Chris Brook, legal director for the ACLU of North Carolina, added. “The public has a right to know how and why officials drafted legislation making it harder for North Carolinians to vote, and with today’s ruling, we can hopefully get to the bottom of those questions.”

Read more here about this chapter of the litigation pending in federal court in Winston-Salem.

Read the court’s full order here.

PlaceMattersBTCThis blog post is part of a series called Place Matters. The other posts can be accessed here, here, and here.

The Voting Rights Act subjected 40 percent of North Carolina’s counties to the mandatory “pre-clearance” regulations of Section 5, requiring approval of the Department of Justice or the courts before electoral changes that might weaken the voting power of African American. The evisceration of this landmark legislation by the 2013 U.S. Supreme Court decision in Shelby County v. Holder—and subsequent the omission of North Carolina from the covered jurisdictions in newly introduced voting rights legislation—leaves racially excluded communities particularly vulnerable to political isolation and electoral powerlessness.

The UNC Center for Civil Rights’ State of Exclusion report looked at majority-minority North Carolina communities of color (over 75 percent) and measured a variety of factors impacting the quality of life for residents of those communities. The data with regard to political representation was telling, and emphasizes the need for expanding, rather than eliminating, effective policies measures to address the continuing legacy of discrimination in elections. Read More

Voter IDAttorneys in the voting rights cases will be back in federal court in Winston-Salem tomorrow morning, asking U.S. District Judge Thomas Schroeder to order that state lawmakers must release e-mail and other communications related to the passage of North Carolina’s sweeping voter suppression law. Lawmakers have so far refused to do so, citing “legislative immunity.”

“What exactly are they hiding?” said Dale Ho, director of the ACLU’s Voting Rights Project. “North Carolinians have a right to know the thinking and motivation behind lawmakers’ decision to make it harder for them to vote. Instead, legislators are concealing their intentions and cloaking their process in secrecy. The people deserve better.”

The state NAACP, the League of Women Voters and the Justice Department filed separate lawsuits in federal court in Greensboro shortly after Gov. Pat McCrory signed House Bill 589, contending that the new law’s voter ID and other provisions violated the U.S. Constitution and the Voting Rights Act.

The court has since consolidated those actions and set them for trial in summer 2015, but the judge has indicated that he will consider suspending the voting changes for the November 2014 elections.

The parties are now knee-deep in the discovery process, and in December plaintiffs subpoenaed several GOP lawmakers, asking them to produce documents they received or sent relating to the voting changes ultimately passed by the General Assembly.

Among the documents sought are 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 prove that those legislators had a discriminatory purpose in enacting House Bill 589 – a critical element in proving plaintiffs’ constitutional claims and in obtaining future preclearance relief under Section 3 of the Voting Rights Act.

Emails disclosed in the 2011 Texas redistricting battle, for example, revealed that lawmakers there contemplated drawing voting lines in a way that might diminish the Hispanic vote.

But legislators here have asked the court to quash the subpoenas, claiming that they are completely protected from suit by virtue of the doctrine of “legislative immunity,” which, they say, “encompasses all aspects of the legislative process and forbids plaintiffs from seeking any production at all from the legislative movants.”

Read more about the cases, and the dispute before the court tomorrow here.

 

Another day, another editorial condemning the efforts of legislative leaders to claim “immunity” when it comes to disclosing documents related to their passage last year of the “monster” voter suppression law.

This is from this morning’s edition of Raleigh’s News & Observer:

“Now their actions are all the more suspicious because they are hiding from public disclosure. They’re saying they don’t have to give up the emails and other documents they generated as part of their public actions because they’re protected by ‘legislative immunity.’

Their court documents get more insulting. Read More

ICYMI, the lead editorial in the Charlotte Observer is a good one. It explains — much as NC Policy Watch Courts and Law reporter Sharon McCloskey did in this story yesterday — why the claims of legislative leaders of that “legislative immunity” somehow insulates them from disclosing the real reasons behind the voter suppression bill passed last session are completely bogus. After exploring the recent hubbub surrounding the bizarre comments of Senator Bill Rabon in the puppy mill controversy, the editorial puts it this way:

“The legislators say they are protected by ‘legislative immunity,’ which they claim not only shields them from ‘arrest or civil process for what they do in legislative proceedings,’ but also having to reveal the conversations they had during the crafting of that legislation.

Are they right? Read More