The Fifth Circuit this week handed down its decision in La Union Del Pueblo Entero v. Abbott. This was a challenge to Texas’s SB 1 brought by organizations represented by the Elias Law Group. At issue was a discovery dispute inquiring into the motives of the legislature. The district court approved the discovery, and the state officials appealed. The Fifth Circuit reversed. Judge Willett wrote the opinion for the court, joined by Chief Judge Richman and Judge Weiner (lighted edited):
The Texas Legislature recently amended the Election Code as it relates to voter registration, voting by mail, poll watchers, and other aspects of election integrity and security.1 The United States, LULAC Texas, and dozens of other plaintiffs sued (together, “Plaintiffs”). They argued that the Legislature acted with racially discriminatory intent, and thus that the amendment violates the Constitution and the Voting Rights Act. The district court consolidated many of the suits. Plaintiffs then sought discovery from individual, non-party legislators related to the circumstances surrounding the amendment’s proposal and passage. The legislators produced some documents, but they withheld others, citing legislative privilege. . . .
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“[L]egislative privilege . . . is an evidentiary privilege governed by federal common law, as applied through Rule 501 of the Federal Rules of Evidence.” We begin by defining the privilege’s scope—that is, the many actions and documents that are within “the legislative process itself” and that the common-law privilege therefore traditionally protects. We next hold that the legislators here did not waive the privilege by communicating with individuals who are outside the Legislature. We conclude by explaining why the privilege does not yield in this case.
State lawmakers can invoke legislative privilege to protect actions that occurred within “the sphere of legitimate legislative activity” or within “the regular course of the legislative process.” “[T]he privilege is not limited to the casting of a vote on a resolution or bill; it covers all aspects of the legislative process.” As part of that process, lawmakers routinely “[m]eet with persons outside the legislature—such as executive officers, partisans, political interest groups, or constituents—to discuss issues that bear on potential legislation.” “Consequently, some communications with third parties, such as private communications with advocacy groups, are protected by legislative privilege . . . .” These cases teach, and we agree, that the legislative privilege’s scope is necessarily broad.
While our analysis begins with the privilege’s scope, it does not end there. Records are not protected from production just because they are within the privilege’s scope. Instead, like other privileges, the legislative privilege is “qualified” by exceptions that serve “the normally predominant principle of utilizing all rational means for ascertaining the truth.”
The district court properly concluded that the documents at issue “are subject to legislative privilege.” Likewise, on appeal, the parties agree that the legislators have properly invoked the privilege. That is, they agree that the documents fall within the privilege’s scope. For their part, the legislators rely on the privilege for each of the disputed documents. Plaintiffs, too, do not argue that the documents are non-legislative. Instead, they argue only that the privilege either “was waived” or “must yield.”
The legislators did not waive the legislative privilege when they “communicated with parties outside the legislature, such as party leaders and lobbyists.” . . .
Nor is this one of those “extraordinary instances” in which the legislative privilege must “yield.” . . .
This holds true even when constitutional rights are at stake. “The claim of an unworthy purpose does not destroy the privilege.” A court proceeding that probes legislators’ subjective intent in the legislative process is a “deterrent to the uninhibited discharge of their legislative duty.” . . .Even for allegations involving racial animus or retaliation for the exercise of First Amendment rights, the Supreme Court has held that the legislative privilege stands fast. . . .
The opinion could have a significant impact in an array of cases where parties are claiming intent-based voting rights claims in the Fifth Circuit.