Just over a week ago, it was North Carolina legislators ordered by the court to cough up documentation relating to passage of new, draconian restrictions on voting rights in their state. Now, legislators in Texas are facing much the same thing, as that state’s extreme polling place Photo ID restrictions also face legal and Constitutional challenge.
By way of an eight-page Order [PDF] issued late last week, U.S. District Court Judge Nelva Gonzales Ramos has directed the State of Texas to serve upon the U.S. Department of Justice (DoJ) documents that relate to the question of whether “state legislators, contrary to their public pronouncements, acted with discriminatory intent in enacting SB 14,” the Lone Star State’s polling place Photo ID restriction law.
That law had previously been found to be discriminatory against minority voters in TX, and thus rejected by both the DoJ and a federal court panel as a violation of the Voting Rights Act (VRA). It was then re-enacted by the state of Texas almost immediately after the U.S. Supreme Court gutted a central provision of the VRA in the summer of 2013.
As reported by The BRAD BLOG last September, the DoJ, and Rep. Marc Veasey (D-TX), filed separate federal lawsuits (now consolidated into a single case, Veasey v. Perry) in which they allege that the Photo ID law enacted by the Texas legislature (SB 14) violates another section of the VRA, Section 2, as well as the U.S. Constitution.
The documents in question, created by Republican officials and lawmakers, which must now be turned over to the court, may shed light on the actual intent of those officials in enacting the restrictive voting law…
The DoJ’s case cites previous findings made by the unanimous three-judge, U.S. District Court panel in Washington D.C., which had denied the state’s request that it preclear SB 14 under Section 5 of the VRA. In that previous case, the court found: “Undisputed record evidence demonstrates that racial minorities in Texas are disproportionately likely to live in poverty and, because SB 14 will weigh more heavily on the poor, the law will likely have retrogressive effect” on their right to vote.
When rejecting the law as discriminatory under Section 5 in 2012, the DoJ had determined [PDF], as based on the state’s own statistics, that the law would have disproportionately disenfranchised registered Hispanic voters in the state. They found that registered Hispanics are anywhere from 46% to 120% more likely than non-Hispanics to lack the type of state-issued Photo ID that would now be required to vote under SB 14’s restrictions.
The new DoJ complaint also alleges that the Lone Star State’s Photo ID law is part of a desperate, racially motivated attempt by state Republicans to cling to power in the face of demographic changes that will — if accompanied by unobstructed, small-“d” democratic access to the polls — reduce white voters in Texas, and with them, the TX GOP, to (ironically enough) minority status.
As the DoJ explained in a supplement [PDF] to its motion to compel the release of documentation relating to legislative deliberation before enactment of the law, Texas refused to turn over a wide array of relevant documents, including “numerous communications concerning SB 14 and prior photographic voter identification proposals amongst Lieutenant Governor David Dewhurst, Speaker Joe Straus, Senator Troy Fraser (Senate sponsor of SB 14), Representative Patricia Harless (House sponsor of SB 14), and their top aides.”
Texas Republicans asserted that they could conceal such evidence because of what they claim to be an “absolute” legislative privilege — this despite numerous cases in which courts have not only held otherwise, but have relied upon such things as emails between legislators as evidence of discriminatory intent, according to the DoJ filing.
Federal judges, in this case, and in the pending federal challenge to North Carolina’s massive election “reform” bill have now both rejected the effort by Republicans to hide documentary evidence of discriminatory intent behind a shield of “absolute” legislative privilege.
As occurred in the North Carolina case, Judge Gonzales recognized the existence of a “qualified” legislative privilege to protect such documents from being released. The question as to whether documents must be produced is arrived at by applying a five-part test: “(1) the relevance of the evidence sought to be protected; (2) the availability of other evidence; (3) the seriousness of the litigation and the issues involved; (4) the role of the government in the litigation; and (5) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.”
That five-part test weighs the need for confidentiality amongst legislators and their aides against the need to eliminate “racial discrimination in voting — the bedrock of this country’s democratic system of government,” as described by Ramos in her ruling.
The court found that factors one through four all weighed in favor of disclosure, with three of the five strongly favoring disclosure.
The court ruled that individual state legislators and the Texas Legislative Council (TLC) are not parties to this lawsuit. Therefore, any records they had not already placed in the possession of the state of Texas must be obtained by a subpoena, as opposed to a notice to produce. The court also ruled that 54 members of the state legislature have already waived their qualified legislative privilege.
In order to limit the degree of intrusion, however, the court declined “to fully pierce the legislative privilege at this point by authorizing complete and public disclosure.” Instead, the court ordered that the documents be produced to the DoJ “under seal,” with the question of which documents must be disclosed to the public, as well as which documents should be admitted into evidence, being deferred until the time of trial.
Trial in the case is scheduled to begin before Judge Ramos on Sept. 2, 2014.
The TX Photo ID restriction law is being defended by the state’s Republican Attorney General Greg Abbot, who will be on the general election ballot this November as he faces off in the Gubernatorial race against Democratic nominee Wendy Davis.
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