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.
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