Filing Targets State Lawmakers' Communications Over Voter ID

In the latest development in Texas’ battle with the Obama administration over the state’s voter ID law, the U.S. Department of Justice is urging a federal court to deny the state’s request to keep certain communications between lawmakers, staff and constituents out of upcoming court proceedings.

In a court filing dated Thursday, the department argued that it should be allowed to “depose those legislators believed to have had the most active role in drafting, introducing, and advocating for SB 14.” The law requires that voters furnish photo identification before casting a ballot.

The filing was in response to the state’s request for a protective order, in which it argues that the communications in question should be excluded based on state privilege.

In January, Attorney General Greg Abbott filed suit against the department in a D.C. district court arguing that Texas’ voter ID law should be implemented immediately. Abbott recently amended the petition to directly challenge the constitutionality of Section 5 of the Voting Rights Act, however. The section mandates that the Department of Justice or the federal courts review and preclear laws that affect voting practices in Texas and 15 other states that have had a history of racial discrimination.

Texas filed its petition for preclearance in July but was denied the request this month. The department ruled that the state did not submit enough information to prove the bill would not infringe upon the voting rights of minorities.

Abbott argues that the department’s denial of Texas’ ability to protect the integrity of its elections is an affront to state sovereignty, a theme his revisits in the plea to prevent lawmakers from being deposed.

“In the unique setting of Section 5 preclearance litigation, courts must apply the state legislative privilege broadly to minimize intrusion on state sovereignty and preserve the integrity of the legislative process,” the filing reads. “Section 5 stands at odds with the basic constitutional principle of coequal sovereignty, not only by prohibiting duly enacted state laws from taking immediate effect, but also by carving out a subset of states for disfavored treatment based on a badly outdated coverage formula.”

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.”

The opposing sides have until April 5 to amend their pleadings or join additional parties. Depositions, if allowed, would begin April 9, according to a scheduling order the court issued Tuesday. The court also ruled that it would not consider the constitutionality of Section 5 of the Voting Rights Act unless it denies preclearance of the voter ID law. A July 9 trial date has been set for that case, meaning the law will not be in effect for the May 29 primaries.