RALEIGH — North Carolina legislators can’t ignore subpoenas seeking documents that could provide insight on the development and approval of last year’s elections overhaul law being challenged in court, a federal judge ruled Thursday.
Attorneys for a civil rights group suing to throw out portions of the law demanded emails and other correspondence from more than a dozen state legislators, including House Speaker Thom Tillis and Senate leader Phil Berger. The legislators said a legal doctrine gave them the privilege of keeping their documents private.
After hearing oral arguments and reading briefs, U.S. Magistrate Judge Joi Peake said the lawmakers don’t have blanket immunity, especially when it involves litigation challenging state laws under the U.S. Voting Rights Act. That’s because Congress made the reasons for passing legislation a key element in determining whether election changes are discriminatory and should be struck down, she wrote.
“Where Congress has acted to place legislative motive directly at issue, the judicially-created doctrine of legislative privilege should not absolutely preclude all discovery, as long as sufficient protection for legislators and legislative independence is preserved,” Peake wrote.
Several advocacy groups, voters and the U.S. government want to block provisions of the 2013 law approved by the General Assembly, saying they will erode voting rights, particularly among minorities. The challenged provisions include a photo identification requirement to vote in person, the reduction of the number of early voting days and the elimination of same-day voter registration during the early voting period.
The plaintiffs are collecting documents as they prepare to ask a judge in July to block enforcement of the provisions for the November elections while the lawsuit continues. A trial isn’t expected until 2015. The photo ID requirement doesn’t take effect until 2016.
Attorneys who helped sue praised the decision, which still leaves room for legislators to prevent the release of some documents.
“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,” Chris Brook, legal director for the state chapter of the American Civil Liberties Union, said in a release.
A law firm defending the state and the State Board of Elections in the lawsuits doesn’t comment on pending litigation, a firm attorney said. The state attorney general’s office, which is also representing some defendants, is sure to review the ruling, spokeswoman Noelle Talley said Thursday night. Gov. Pat McCrory, who signed the bill into law, also is a named defendant.
During a court hearing last month, a state attorney said case law was clear legislators can’t be forced to offer evidence without their consent. Any rulings can be appealed.
Peake wrote that it seems many documents requested in the subpoenas already are considered public records, such as communications between legislators and outside parties. Other categories of documents may require further scrutiny, she said. They could include emails between legislators or with General Assembly staff.
Others may be subject to other types of protection, such as attorney-client privilege. But Thursday’s ruling opens the door for potentially more documents that can speak to the legislators’ reasoning, said Allison Riggs, another attorney for the plaintiffs.
Peake asked attorneys for both sides to work out what should be disclosed or withheld and present disagreements to her in about 10 years, presumably for her to resolve.