“Developing a Speech or Debate Clause Framework for Redistricting Litigation”

Christopher Asta has posted this draft on SSRN (NYU Law Review).  Here is the abstract:

The Speech or Debate Clause of the U.S. Constitution protects legislators from being “questioned” at trial about their legislative acts. This protection shields legislators from being prosecuted or sued based on those acts and also sometimes protects them from having to testify about those acts at trial. While this protection is important in certain circumstances to safeguard the independence and proper functioning of the legislature, it can also be problematic when plaintiffs need to prove an invidious legislative purpose to challenge a law. This is especially the case in the redistricting context, where the standards to analyze both racial and partisan gerrymandering claims require information regarding legislative intent. Yet a close look into court interpretations of the Speech or Debate Clause, and the legislative privilege that stems from it, finds a confusing and conflicting set of opinions regarding when such protections should and should not apply. This confusion has made it difficult for courts to address legislative privilege questions properly and may lead courts to protect and uphold redistricting legislation more than is warranted. This Note surveys the jurisprudential landscape of Supreme Court and lower court Speech or Debate Clause opinions to develop a straightforward and consistent framework for addressing all Speech or Debate Clause disputes and then applies that framework to the questions that arise during redistricting litigation. This proposed framework should help encourage courts to allow legislative intent to come to light at trial and may therefore leave courts better able to adjudicate gerrymandering disputes.

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