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Court: NC Legislators Must Reveal Documents, Purpose Behind Challenged Voting 'Reform'

Saturday, 05 April 2014 11:32 By Ernest A Canning, The Brad Blog | News Analysis
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A U.S. District judge has ruled that Republican legislators in North Carolina must provide documents revealing their work in passing and implementing a radical election reform bill which, when it was passed last year, was described by opponents as the "worse-than-anyone-would-have-ever-imagined voter suppression bill."

Late last week, U.S. District Court Magistrate Judge Joi Elizabeth Peake issued an Order [PDF] in which she rejected a blanket refusal by NC Republican state legislators to provide any documents that relate to the question of whether the sweeping legislation known as the Voter Information Reform Act ("VIVA" aka HB 589) amounted to nothing less than a racially-motivated attempt to deprive African-Americans of their constitutional right to vote.

As we observed when the law was hastily enacted last year, among the law's myriad ways of making registration and voting much more difficult, VIVA includes "draconian polling place Photo ID restrictions (despite the absence of any evidence of polling place impersonation in the state), shortens the early voting period and eliminates NC's very successful same-day voter registration program."

VIVA was quickly passed last year on the heels of the U.S. Supreme Court's controversial, 5-4 decision in Shelby County v. Holder. The decision resulted in the gutting of a central provision of the federal Voting Rights Act. Before that, most of the measures in VIVA could not have taken effect unless they received advance approval from either the U.S. Department of Justice (DoJ) or a federal court. Such approval could have been obtained only if NC established that VIVA was neither intended to nor would have the effect of denying or abridging the right to vote on account of race, color or being the member of a language minority.

The new ruling may help plaintiffs establish violations of both the still-standing elements of the Voting Rights Act and the U.S. Constitution. Moreover, the order to compel documentation concerning the law's genesis in NC, if upheld, could also have a broader national significance...

Hiding the evidence?

As the DoJ explained in its Opposition [PDF] to the NC state legislators' motion to quash, all three plaintiffs (the NAACP, League of Women Voters and the DoJ) in the consolidated federal legal challenge to VIVA, allege "that HB 589 was enacted with the purpose of, and will have the result of, denying or abridging the right of minority voters to vote on account of race or color."

In order to support those allegations, the DoJ added, the NAACP served subpoenas upon NC state legislators, seeking "a range of documents relating to the consideration and implementation of HB 585, including…documents reflecting legislative purpose, documents, received by State Legislators from individuals and groups outside the North Carolina General Assembly, such as constituents, lobbyists and public interest groups; and factual data and reports relating to, for example, rates of possession of photo identification among North Carolina voters, and the costs and other impacts of HB 589." Access to those records is vital, the DoJ argued, because those state "legislators...are likely to have first-hand knowledge relating to the development and passage of HB 589."

The NC state legislators, the DoJ added, "took the position that the doctrine of legislative immunity categorically bars Plaintiffs from seeking any discovery from State Legislators."

Judge Peake rejected the GOP legislators' "absolute immunity" claim. While state lawmakers are immune from personal liability for their legislative acts, the U.S. Supreme Court ruled in Arlington Heights v. Metropolitan Housing Corp. (1977) that a state legislator could be called to testify concerning the purpose of a law affecting voting rights. Subsequent case law establishes that, when it comes to civil discovery, state legislators possess only a "qualified" privilege and that documents must be produced so long as the request is not "unduly burdensome or invasive" of the legislative process.

Significantly, while she stopped short of compelling responses to all categories of documents sought by plaintiffs, Judge Peake ruled that requiring production of documents that "involve communications with outside parties" is neither "unduly burdensome" nor "invasive of the legislative process."

A long and ugly history of discrimination

As The BRAD BLOG explained last August, shortly after the first two lawsuits against VIVA had been filed by the NAACP and League of Women Voters, the complaints allege that the "blight" of racial discrimination has remained ever-present in the Tar Heel State over the better part of the past three decades.

The League's complaint detailed the state's long and well-documented history of racial discrimination:

Over the past 30 years in North Carolina, there have been 30 successful cases brought under Section 2 of the Voting Rights Act and 40 objections to discriminatory changes to voting laws lodged by the Department of Justice under Section 5...Based on concerns about intimidation at the polling place, the United States Department of Justice sent federal observers to North Carolina to help enforce federal voting rights laws that protect ballot access in the November 2012 general election.

That complaint went on to describe how the state's history of discriminatory behavior in elections continues through the present day:

Up through recent history, political campaigns in North Carolina have been characterized by overt or subtle racial appeals, including discriminatory tactics … in elections deliberately and demonstrably designed to keep African Americans from registering and turning out to vote.

Those allegations are based on information that is in the public record. In accordance with the judge's ruling last week, plaintiffs may now require documents maintained by the individual Republican state legislators, in order to establish a link to this sordid past. That ugly past itself, however, is already well established.

Nationally significant implications

While the parties will have to create "privilege logs," allowing the court to rule which documents must be produced and which documents remain privileged (and thus can be withheld), Judge Peake's determination that communications between the state's Republican legislators and "outside parties" are not privileged documents could have nationally significant implications.

VIVA is but one example of the recent coordinated, nationwide GOP voter suppression effort that was aptly described by civil rights litigator Judith Browne Dianis, in testimony before a U.S. Senate Judiciary Subcommittee in 2011 as "the largest legislative effort to roll back voting rights since the post-Reconstruction era."

The effort is national in character because it has been concocted by Republicans along with the Koch brothers-funded, Paul Weyrich co-founded American Legislative Exchange Council (ALEC), an organization of rightwing legislators and corporations seeking to pass "model legislation" on issues from election reform to so-called "stand your ground" gun laws to other so-called "free-market" initiatives.

The speed with which the NC GOP was able to ram through what the NAACP described as an "armada of amendments" to VIVA would surprise only those who are unfamiliar with the ALEC scheme to privatize the legislative process; secretly drafting, delivering and, in those states where the GOP maintains a legislative majority, passing ALEC-model bills, such as polling place Photo ID restrictions, all without any meaningful public debate.

Similar bills have been introduced in various state legislatures by one or more of some 2,000 ALEC legislative members. It seemed little coincidence that NC's state Sen. Tom Apodaca (R), who, within hours of the U.S. Supreme Court's decision in Shelby County announced, "Now we can go with the full bill," just happens to be a legislative member of ALEC.

"Before the bills are publicly introduced in state legislatures by ALEC politicians or alumni in the governor’s offices," according to Lisa Graves, whose Center for Media and Democracy obtained copies of more than 800 ALEC model bills, "they will be cleansed of any reference to the secret corporate voting or who really wrote them."

Judge Peake's ruling reveals that plaintiffs' discovery has been sought, in part, to support a contemplated motion for a preliminary injunction that would seek to prevent VIVA's controversial, voter suppression provisions from being implemented before the upcoming 2014 elections. If the plaintiffs obtain a preliminary injunction, it could potentially prevent many, largely minority voters in NC from being disenfranchised. In addition to providing access to information that may support a preliminary injunction, Judge Peake's ruling could potentially serve to expose the role that ALEC has played in aiding and abetting voter suppression in the Tar Heel State, and elsewhere.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Ernest A Canning

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).


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