Abbott seeks to block DOJ from getting Voter ID depositions
The Statesman has a good story on Sunday, by Tim Eaton, about Attorney General Abbott’s efforts to prevent twelve state legislators involved in Voter ID legislation from giving depositions to officials with the Department of Justice.
Abbott increasingly acts like a politician instead of a lawyer. His move this week to ask a Washington, D.C. court to allow the legislators involved in the battle over the Voter ID to avoid giving deposition testimony is really putting a thumb on the scales of justice. This is a lawsuit. Why shouldn’t DOJ, as one of the parties, have the right to depose witnesses? What are the federal rules of civil procedure for, if not this? Abbott would scream bloody murder if the shoe were on the other foot and he was attempting to depose witnesses.
According to the Statesman, The U.S. Department of Justice, which is facing off against Abbott’s office in a case in which the Attorney General seeks to have Texas’ voter ID law go into effect for the upcoming elections, has asked to depose or question under oath the Senate author of the voter ID bill, Troy Fraser; the House sponsor, Patricia Harless; and other lawmakers. What is Abbott’s justification for keeping key legislators from being deposed? State’s rights, of course: “an unwarranted intrusion into the operations of the Texas Legislature.” Let me see if I understand this. Requiring legislators to give testimony about the passage of a bill is an unwarranted intrusion into the operations of the Legislature. What does the Legislature do other than pass legislation? What else is “the operations of the Legislature?”
The state makes three arguments:
(1) A determination of whether a discriminatory purpose exists must be made by examining publicly available sources — such as legislative history, floor debates, and the historical background of the decision.” These are good sources, but they are not the only sources. In a normal lawsuit, parties are deposed about the conversations they have had that might shed light on the parties’ intent. Why is a lawsuit on Voter ID any different, especially since the crucial issue from DOJ’s perspective is the intentions of the members. Their private intentions should not be regarded as any more sacred than their public intentions.
(2) The state, however, regards DOJ’s request as a violation of a protected legislative privilege. The Texas Constitution protects what legislators say in debate, but it offers no protection for personal communications among members. If Senator A speaks ill of Senator B on the floor, it is protected speech. If Senator A has a private conversation with Senator B about legislation, no privilege attaches.
(3) Abbott argues that allowing litigants to “traipse through every communication of those legislators simply by alleging that a state law was enacted with an impermissible purpose, then state lawmakers will be chilled from engaging in the communications necessary to perform their jobs properly.” A lawsuit is a lawsuit. In the normal course of litigation, the court can deal with the issue of which communications are privileged and which are not. There is no reason why a lawsuit over Voter ID should be tried under different rules than any other lawsuit.
Out Of The Loop says:
Paul, what other lawmakers were subpoenaed?
Reply »
Legal Eagle says:
If DOJ could depose lawmakers during the redistricting case, they’ll be allowed to depose lawmakers during the Voter ID case. They both involve Section 5 of the Voting Rights Act.
If the law is compliant with the Voting Rights Act, state lawmakers have nothing to worry about.
Bottom line: A meritless motion prepared and filed by political neophytes.
Reply »
paulburka Reply:
March 25th, 2012 at 10:23 pm
You guys write really fast. I barely had this item posted before you were all over it.
Reply »
Teddy says:
It’s called Google Reader, Paul.
Reply »
Joe says:
The Justice Department’s insistence on taking depositions from Texas legislators is a case of do as we say, not as we do.
Justice has filed motions for protective orders in other cases to prevent parties who have sued the federal government from taking depositions from members of Congress. Justice is certainly on safe ground in that regard. The U.S. Supreme Court has found that the speech clause in the U.S. Constitution protects members of Congress and their staff from compelled questioning and document production.
Federal courts do not recognize legislative privilege for Texas legislators on document production requests in court cases. But on the issue of deposing state legislators, federal courts are governed by this in civil cases:
Federal Rule of Evidence provides: “the privilege of a witness … shall be governed by the
principles of the common law as they may be interpreted by the courts of the United States.” But, “in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness … shall be determined in accordance with State law.”
State law offers no specific speech protection for legislators against compelled questioning, but since members of Congress are protected by law from providing testimony and records, then it ought to be good enough for state legislatures.
If the state adopted a speech protection measure similar to the federal one, Texas legislators would be on the same playing field as members of Congress.
Reply »
Hill Country says:
Paul,
What are the individual legislators witnesses to? Their own personal opinions? The only point of deposing the legislation’s author, etc. would be to try to prove that member’s intent was to discriminate against minorities when he authored the bill. But, intent is not relevant to the legal question of whether Texas’ Voter ID law violates the Voting Rights Act.
Let’s say that the individual legislator had discriminatory animus when voting for, authoring, etc. a piece of legislation. Unlikely, but under your conspiracy, I’ll assume the hypothetical. So, what? Last I checked, it takes a majority in each chamber (really 2/3 in the Senate) to pass a bill.
Let’s say that a majority of members in each chamber had discriminatory animus when passing the Voter ID bill. So, what? The “intent” behind the members’ votes is immaterial. The law stands or falls on its own four corners.
If this were a constitutional challenge to the law under strict scrutiny, the STATE would have to justify a compelling state interest (along with the other two prongs), not the individual member. And, this won’t be a constitutional challenge because the U.S. Supreme Court has already upheld the constitutionality of Voter ID.
In past cases involving challenges to state laws, members have tried to interject their “legislative intent” into the legal proceeding (re: Sen. Patrick’s rejected amicus briefs to Judge Sparks in recent challenge to sonogram law). The Courts have categorically responded when legislators trying to do this with “we don’t care.”
I think the legislators’ personal reasons for their votes should be protected. They have to vote and have to defend their record.
If you’re going to criticize Gen. Abbott for being “political,” then call a spade a spade. This DOJ attack on Texas’ state sovereignty over a state law that the Supreme Court has affirmed elsewhere is nothing but political.
Reply »
paulburka Reply:
March 26th, 2012 at 8:13 am
By saying that the DOJ is attacking state sovereignty, you are “assuming the answer.” The issue is whether it is an attack on state sovereignty. Why should the rules for a Voter ID lawsuit be any different from the rules for any other lawsuit?
Reply »
Blue Dogs Reply:
March 26th, 2012 at 9:09 am
Burka, this is why the Texas GOP is in serious danger of being extinct in 18 years from now because of crap like this.
You gotta wonder if this is gonna come back and haunt them sooner or later.
Reply »
anita says:
Hill Country, your conclusion is simplistic and undermines your point. Everyone knows different standards apply and the laws differ in scope and substance.
Let’s be honest here — throughout the debate on the bill in both chambers, the sponsors refused to answer questions about intent, deflected questions to the SOS, who in turn provided no information on the basis of the need for the legislation.
Abbott knows better. He shouldn’t let partisan hacks determine the policy here.
Reply »
JohnBernardBooks says:
“Abbott increasingly acts like a politician instead of a lawyer”
Atty Gen Holder can be a politician but Atty Gen Abbott cannot…..it’s written in the dem handbook.
Reply »
truth says:
Holder has political instincts. Abbott does not.
Reply »
Blue Dogs Reply:
March 26th, 2012 at 9:09 am
Truth, Abbott has also discriminated against minorities by going after them with false lawsuits and he even refused to give Anthony Graves the money that he was owed for being falsely imprisoned.
Reply »
jph says:
So far, Paul, it seems those who disagree with your point are arguing that since the people we don’t like are bad guys who do things we don’t like, we should allowed to be equally bad and do what they don’t like. Good enough for a schoolyard, but it doesn’t strike me as an argument good enough for a bunch of folks who claim they are all about the rule of law.
Reply »
linda says:
I can understand perfectly why Abbott would not
want Troy Fraser to be deposed. Fraser wouldn’t be able to answer the questions with any clarity, and couldn’t give more than name, rank and serial number without some Repug. holding his puppet strings and whispering in his ear.
Reply »
paulburka Reply:
March 26th, 2012 at 8:14 am
I was going to post the same thing. Fraser has never been able to explain his bill.
Reply »
anita Reply:
March 26th, 2012 at 4:30 pm
It was embarrassing to watch both sponsors struggle with the most basic questions about their proposals, but Fraser was absolutely pathetic. He did not understand how the voting process worked prior to his bill, nor how his bill would change it. He didn’t engage — he just directed any question to the Secretary of State. Sen. Davis tried to pin him down to an answer, but he just kept with the same tired lines about fraud (which, of course, he could not substantiate). I’ve watched the Senate for 20+ years, and I’d never seen anything handled as poorly by a floor sponsor. I imagine the transcript from that day has received plenty of attention from DOJ.
Reply »
Russ Reply:
March 28th, 2012 at 6:51 pm
After reading transcripts on the Redistricting Maps, and seeing how bad the behavior of legislative staff and sponsors of the maps passed out of the Lege was; it is no suprise in my view to see Abbott attempt to do something like this manuever to circumvent another fiasco that embarrasses Texas, again.
Anonymous says:
Abbott has been all about politics for years — nothing new. He’s a puppet just like Perry, but he has a brain so he doesn’t have to go to his consultants to find out what he’s supposed to think.
Reply »
Blue Dogs Reply:
March 26th, 2012 at 9:10 am
Anon, the question should be is Abbott acting as an independent statewide elected officeholder or is he Perry’s puppet ?
Reply »
Anonymous Reply:
March 26th, 2012 at 11:54 am
Blue Dogs, it’s pure politics either way given the statewide electorate. We’ve got NO leaders in this state.
Reply »
Blue Dogs Reply:
March 26th, 2012 at 1:20 pm
You can blame Bush Jr., for handing the state to wild out-of-control idiots when he vacated the Texas governorship on December 21, 2000: this is where things went downhill.
anita says:
No, you can’t. Perry has allowed a shadow government of interest groups to call the shots, effectively turned our state government over to the TPPF and others. The Republican party has allowed this to happen — they’ve shown no leadership whatsoever.
Reply »
donuthin Reply:
March 27th, 2012 at 7:02 am
I assume that is what BD implied in his statement; that it is Bush’s fault that he left Perry in charge who did all the things you mention.
Reply »
Pat says:
This eventual Troy Fraser deposition is going to be hilarious…
Reply »
donuthin Reply:
March 27th, 2012 at 7:00 am
We don’t need anyone from outta state to hear or read his testimony. We have been embarrassed enough by Perry’s absurd presidential run.
Reply »
paulburka says:
What was Bush supposed to do? Not accept the presidency?
Reply »
Blue Dogs Reply:
March 27th, 2012 at 11:53 am
Burka, if the GOP has a primary for Lieutenant Governor in 1998 had taken place, someone other than Perry would have won.
Reply »