WASHINGTON, D.C. — On Wednesday, May 17, the 5th U.S. Circuit Court of Appeals reversed a lower court’s decision compelling four Republican members of the Texas Legislature — Sen. Bryan Hughes, Sen. Paul Bettencourt, Rep. Briscoe Cain and Rep. Andrew Murr — to produce nearly 300 documents related to Texas’ omnibus voter suppression law, Senate Bill 1. This decision stems from a lawsuit filed by multiple voting rights and civic organizations challenging S.B. 1 for violating the Voting Rights Act, Americans With Disabilities Act and U.S. Constitution.
Although these four Republican legislators are not defendants in the case, they were served with third-party subpoenas from four sets of plaintiffs (LULAC Texas, Texas AFT, Texas Alliance for Retired Americans and Voto Latino) seeking documents and communications that the plaintiffs believed would shed light on the legislative process surrounding S.B. 1.
On May 25, 2022, a district court judge ordered the legislators to produce the subpoenaed documents and rejected their arguments that a large portion of documents were privileged (meaning they could not be shared with the plaintiffs because they were protected by legislative, investigative or attorney-client privilege). The four legislators subsequently appealed this order to the 5th Circuit, and the lower court paused its order requiring the legislators to produce the documents as the appeal proceeded. The 5th Circuit heard oral argument regarding this matter on Aug. 2, 2022.
In today’s decision reversing the district court’s order, the 5th Circuit concluded that “the legislative privilege’s scope is necessarily broad.” “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 decision continued.
As a result of yesterday’s decision, the legislators will not have to produce the documents requested by the plaintiffs pertaining to S.B. 1. A trial in the lawsuit over S.B. 1 is scheduled for Sept. 11, 2023.
This is not the only discovery issue ongoing in the 5th Circuit pertaining to Texas legislators: In a different federal lawsuit challenging the state’s maps drawn with 2020 census data, multiple sets of Republican legislators are fighting deposition and document subpoenas because they do not want to share how they drew the new districts. Notably, the 5th Circuit paused the legislators’ appeal in the redistricting lawsuit pending an outcome in the appeal over S.B 1. In turn, yesterday’s ruling from the 5th Circuit will affect how the appeal in the redistricting case will proceed.