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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendant. ERIC KENNIE, et al., Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors. TEXAS LEGISLATIVE BLACK CAUCUS, et al., Proposed DefendantIntervenors, VICTORIA RODRIGUEZ, et al., Proposed DefendantIntervenors.

CASE NO. 1:12-CV-00128 (RMC-DST-RLW) Three-Judge Court


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The United States submits this brief in response to the Courts April 3 order to submit information that provides a factual basis in support of its request for discovery from Texas legislators. See Minute Order (Apr. 3, 2012). For the reasons the United States has set out in our written opposition to Texass motion for a protective order and at the April 3 hearing on that motion, we believe discovery from state legislators is authorized in Section 5 proceedings, and is not subject to a common-law privilege or an extraordinary instances test. See U.S. Mem. (Doc. 57). We submit this brief in response to the Courts order to explain the United States position that, if the Court nonetheless believes an extraordinary instances test applies here, that test has been met in this case. See Tr. at 18:21-19:1 (Apr. 3, 2012) (Ex. 1). If the Court concludes that an extraordinary instances standard applies, the United States narrow discovery requests certainly fall within this test for two principal reasons. First, throughout the 47-year history of Section 5 of the Voting Rights Act, contested judicial preclearance litigation has proven to be exceedingly rare: less than 0.02% of all covered changes in that time period have even been brought before this Court for judicial preclearance, and since January 1, 2011, only four involved contested litigation so far as opposed to a consent resolution. See Berman Decl. 9-10 (Ex. 2). The circumstances of this litigation are therefore extraordinary in a literal sense, because contested Section 5 preclearance litigation is so uncommon. Second, the record available to the United States at this point already contains significant circumstantial evidence that could support a finding of discriminatory intent. See Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-268 (1977) (identifying factors that

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can provide circumstantial evidence of a discriminatory purpose). 1 Among other evidence, records produced by the State of Texas indicate that S.B. 14 will disenfranchise at least 600,000 voters who currently lack necessary photo identification and that minority registered voters will be disproportionately affected by the law, based on both a greater likelihood of lacking a required form of photo identification and a lesser ability to obtain a necessary identification. Despite this impact, proponents of S.B. 14 repeatedly tabled numerous amendments that aimed to ameliorate the bills potential disenfranchisement of minority voters. In addition, proponents of photo voter identification requirements deviated from ordinary legislative procedures in order to circumvent legislative tools that ordinarily allow minority legislators to protect their constituents. Moreover, the legislative debate surrounding S.B. 14 and previous photo identification bills reveals a series of shifting justifications for the law, many of which lacked substantial grounding in fact. Given the nature of the evidence that is already available even before any significant formal discovery has been conducted, further inquiry into legislative purpose by way of the United States focused discovery requests is warranted in order for this Court to determine whether S.B. 14 complies with Section 5. Through its motion for a protective order, the State of Texas seeks to shield from discovery the very witnesses it identified in its initial disclosures and responses to interrogatories. Absent the United States targeted discovery regarding the legislative process

The United States does not have sufficient information at this time to state a position on whether Texas has or has not met its burden to establish that S.B. 14 was enacted without any discriminatory purpose. To fulfill its role as statutory defendant, the United States seeks formal discovery of legislators and staff so that it may, if warranted and necessary, rebut the States prima facie case.

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for S.B. 14, the State will essentially be permitted to present the proponents testimony by way of untested legislative history without cross examination. To provide the Court with a complete picture of direct and circumstantial evidence of discriminatory intent, the United States respectfully requests that the Court deny the States motion for a protective order and permit the United States to take discovery from legislators.
I. Indicia of Discriminatory Purpose Available at this Early Stage Support Formal Discovery.

While the inquiry into the facts concerning the passage and planned implementation of S.B. 14 has, to date, been limited to public documents and informal, unsworn interviews that could be conducted without subpoena power, the United States has nevertheless uncovered substantial indicia of a discriminatory purpose, including the anticipated effect of S.B. 14, the historical background leading up to the passage of the bill, and the nature of the legislative debate. 2 These facts are more than sufficient to demonstrate that depositions of Texas state legislators and discovery of documents lawmakers considered are warranted. A. Discriminatory Effect Data provided by the State demonstrate that as of September 2011, 603,892 of the States registered voters did not possess a Texas driver license or personal identification card. See September 2011 Voter Data (Ex. 3). Further data provided by the State these current as of

Under the framework set out in Arlington Heights and applied to Section 5 in Reno v. Bossier Parish School Board (Bossier Parish I), 520 U.S. 471 (1997), the important starting point for assessing whether the State can establish that the proposed plan was adopted free of a discriminatory purpose is the impact of the official action whether it bears more heavily on one race than another. Bossier Parish I, 520 U.S. at 489 (quoting Arlington Heights, 429 U.S. at 266). Beyond evidence of the effect of the change on the ability of minority voters to participate in the political process, a court must assess the historical background of the decision, particularly if it reveals a series of decisions undertaken with discriminatory intent; the sequence of events leading up to the decision; whether the challenged decision departs, either procedurally or substantively, from the normal practice; and contemporaneous statements and viewpoints held by the decision-makers. See id. (quoting Arlington Heights, 429 U.S. at 266-268).

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January 2012 show that 795,955 registered voters did not possess a Texas driver license or personal identification card. See January 2012 Voter Data (Ex. 4). 3 Even more staggering, the September 2011 data indicate that Hispanic registered voters were 46.5% more likely than nonHispanic voters (including Anglo, Black, and Asian voters combined) to lack these forms of identification, and the January 2012 data suggested that Hispanic registered voters were 120 percent more likely to lack these forms of photo identification. See September 2011 Voter Data; January 2012 Voter Data. 4 In both data sets, Hispanics made up 21.8% of all registered voters. See September 2011 Voter Data; January 2012 Voter Data. However, Hispanic voters represented 29% of voters who did not have a Texas drivers license or personal identification card in the September 2011 data and 38.2% in the January 2012 data. See September 2011 Voter Data; January 2012 Voter Data. Nor did the legislature include provisions in S.B. 14 to mitigate the laws apparent discriminatory effect. Although S.B. 14 requires the States Department of Public Safety (DPS) to issue an election identification certificate (EIC) at no cost to voters who do not possess one of the required forms of photo identification, the bill does nothing to reduce other practical and pecuniary obstacles faced by voters in obtaining such identification. Most notably, a first-time applicant must travel to a driver license office to obtain an EIC. See 37 Tex. Admin. Code 151.183 (proposed) (Ex. 6) (setting out application requirements). While this may not appear at first glance to be a significant barrier, the number and locations of driver license

During the administrative review process, the State provided two sets of data to the United States. See Letter from Hope Andrade, Secretary of State, State of Texas, to T. Christian Herren, Jr., Voting Section, U.S. Department of Justice (Oct. 4, 2011) (Ex. 5) (explaining methodology); January 2012 Voter Data (same).

The State did not provide data on whether African-American or Asian registered voters are also disproportionately affected by S.B. 14.

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offices, the limited availability of public transportation in Texas, and the vast geographic scope of the State erect real barriers for many minority voters. See Ellis Decl. 11 (Ex. 7) (describing the lack of an office within the 610 loop around inner-city Houston); Uresti Decl. 13-17 (Ex. 8); see also Driver License Offices (Sept. 9, 2011) (Ex. 9) (listing the 160 locations of driver license offices, which do not include offices in 81 Texas counties). 5 Moreover, a first-time applicant for an EIC must furnish either an expired driver license or personal identification certificate or a combination of two or more forms of supplemental documentation including at least one U.S. birth certificate, U.S. certificate of birth abroad, or a U.S. court order with a change of name or gender. See 37 Tex. Admin. Code 15.182 (proposed). Individuals lacking the required underlying documents must pay to obtain necessary copies, effectively negating the prohibition on charging a fee for an EIC. The least expensive option for a voter born in Texas is to pay $22 for a Texas birth certificate. See, e.g., Texas Dept of State Health Services, Certified Copy of a Birth Certificate, at http://www.dshs.state.tx.us/vs/reqproc/certified_copy.shtm (Ex. 11). This cost will in turn have a disparate impact on Hispanic voters who lack this documentation because Hispanic residents of Texas experience poverty at far greater rates than Anglos. See Joint Stipulations of Fact 4455, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Feb. 2, 2012) (Doc. 177) (Ex. 12). B. Historical Evidence The sequence of events prior to the enactment of S.B. 14 also provides circumstantial evidence that the bill may have been enacted with a discriminatory purpose. In short, proponents

According to the most recent American Community Survey three-year estimates released by the U.S. Census Bureau, 7.3% of Hispanic households in Texas do not have an available vehicle, as compared to 3.8% of non-Hispanic white households in the State. See U.S. Census Bureau, American Community Survey

2008-2010, Table S0201 (2011) (Ex. 10).

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of photo identification requirements resorted to legislative maneuvers to subvert normal procedural protections, fanned unsubstantiated fears about noncitizens voting illegally, and refused to address the concerns of minority legislators who sought to protect the voting rights of their constituents. In 2007, the Texas House passed Bill 218 (2007) (H.B. 218) after contentious debate. For example, during a House committee hearing on the bill, an African-American legislator, Representative Marc Veasey, raised questions about the effects of photo identification requirements on minority communities. In response, then-Chairman Leo Berman, in a breach of legislative protocol, ordered Representative Veasey from the dais. See Veasey Decl. 13-14 (Ex. 13). Due to uniform opposition by minority senators and their allies, proponents of the bill failed to meet the two-thirds vote requirement for debate in the Texas Senate. See Tex. Sen. J. 80th Leg., Regular Sess. Sixty-Second Day, at 2063-64 (May 15, 2007) (Ex. 14); see also Ellis Decl. 4; Uresti Decl. 6-9. At the start of the next legislative session in 2009, Senator Tommy Williams proposed a resolution to suspend the so-called two-thirds rule for legislation relating to photo identification for voting. Despite vehement opposition from racial minority Senators about changing a timehonored Senate tradition for one particularly divisive area of legislation, the Senate adopted this resolution. See Tex. Sen. J. 81st Leg., Regular Sess. Second Day, at A-1 to -76 (Jan. 14, 2009) (Ex. 15); Ellis Decl. 5; see also LULAC v. Perry, 548 U.S. 399, 458 (2006) (Stevens, J., concurring in part and dissenting in part) (describing the only other targeted abolition of the longstanding two-thirds rule in Texas modern history as a procedural irregularit[y]). Senator Troy Frasers voter identification bill, Senate Bill 362 (2009) (S.B. 362), passed the Senate by a simple majority. During the House floor debate on S.B. 362, Representative Betty Brown 7

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alleged voting by illegal aliens and held up a stack of papers to support her claim, but the papers were later shown to be a mere prop. See Anchia Decl. 6 (Ex. 16). 6 As the result of a slow committee process and a late-session House filibuster, the 2009 legislative session ended without passage of S.B. 362. See Ellis Decl. 6. C. The Legislatures Consideration of S.B. 14 Governor Perry and the Texas legislature took a series of steps in January 2011 that eliminated the possibility that minority legislators could prevent passage of a photo voter identification bill. First, Senator Fraser introduced S.B. 14 on January 12, and Governor Perry soon thereafter declared the bill to be a legislative emergency, which allowed for its immediate consideration by the legislature. See Ellis Decl. 8. 7 In the Senate, S.B. 14 bypassed consideration by a committee and was brought straight to the floor for consideration by the Committee of the Whole. See Ellis Decl. 6-7; Uresti Decl. 10. S.B. 14 again passed the Senate based on a single-subject suspension of the two-thirds rule. See Veasey Decl. 15. In the House, the bill was referred to the Select Committee for Voter Identification and Fraud, a committee formed solely to consider S.B. 14. While the formation of special committees is not unusual, special committees do not ordinarily consider only one bill, as was the case with S.B. 14. See id. 16; Anchia Decl. 7. The bill passed from committee in less than a month and

Representative Brown also suggested that Asian-American voters who might experience problems with mismatches between transliterated legal names and common names used on identity documents should adopt names that are easier for Americans to deal with. R.G. Radcliffe, Lawmaker Defends Comments on Asians, Houston Chron., Apr. 8, 2009 (Ex. 17). The Texas legislature may not consider non-emergency bills until sixty days into the 140 day legislative session. See Tex. Const. art. III, 5(b), 24(b); see also Ellis Decl. 8; Uresti Decl. 12; Veasey Decl. 15.

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then passed the full House. See History: SB 14, Legislative Session 82(R), Texas Legislature Online (Ex. 18). As a matter of substance, S.B. 14 requires in-person voters to present photo identification and severely limits the acceptable forms of ID, unlike the voter identification bills from prior sessions, H.B. 218 and S.B. 362, which would have allowed voters to present either photo identification or two forms of non-photo identification. Compare S.B. 14, 82d Leg. 9, 14 (Doc. 25-1), with S.B. 362, 81st Leg. 6, 10 (Tex. 2009) (Senate engrossed version) (Ex. 19), and H.B. 218, 80th Leg. 7, 11 (Tex. 2007) (House engrossed version) (Ex. 20). During the legislative debates in both chambers, opponents of S.B. 14 forcefully and repeatedly stated their concerns that the bill would adversely impact minority voters. See Anchia Decl. 10; Ellis Decl. 12; Uresti Decl. 13; Veasey Decl. 19. Supporters of the bill did not produce any information or analysis to alleviate these concerns and frequently appeared unmoved and unconcerned that the bill might harm minority voters. For example the bills sponsor, Senator Fraser, demonstrated no concern or interest in determining the impact of S.B. 14 on minority voters. In response to one question about the effect of S.B. 14 on minority voters, Senator Fraser did not answer the question and instead, cited a public opinion poll that suggested support for photo identification requirements. See Tex. Sen. Tr. 82d Leg., Regular Sess. Fifth Day, at 27 (Jan. 25, 2011) (Ex. 21). When asked by Senator Rodney Ellis, an African-American, whether he would support an amendment requiring the Secretary of State to make an annual report concerning the impact of S.B. 14 on women, the elderly, the disabled, and racial or ethnic minorities, Senator Fraser responded that the opponents of S.B. 14 would get their report from the Department of Justice and the U.S. Supreme Court. See Tex. Sen. Tr. 82d Leg., Regular Sess. Fifth Day Continued, at 201 (Jan. 25, 2011) (Ex. 22). Throughout the brief debate on S.B. 9

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14, proponents refused to engage in any meaningful, substantive discussion concerning the burden that the bill would impose on minority voters. During the Senate debate, Senator Fraser answered question after question about S.B. 14 with the response that he was not advised or that a particular question should be addressed to the Secretary of State. See Ellis Decl. 13; Uresti Decl. 18. Representative Patricia Harless, who carried the bill in the House, similarly refused to answer member questions about the bill or respond substantively to concerns about the effects of the bill. See Anchia Decl. 9. Moreover, both chambers rejected amendments that would have required the State to capture information on the effect of S.B. 14 on minority voters. See, e.g., Tex. H.J. 82d Leg., Regular Sess. Fortieth Day at 1015 (Mar. 23, 2011) (Ex. 23) (rejecting Amendment 54, which would have required the Secretary of State to keep records showing racial demographics of eligible, in-person voters who did present required photo identification); id. at 1016 (rejecting Amendment 55, which would have allowed use of registration certificates as voter identification if the Secretary of State determined that a majority of the voters in a prior election who lacked required photo identification were racial or ethnic minorities). Minority legislators proposed eighty amendments of which only seven were ultimately included in S.B. 14. See History: SB 14, Legislative Session 82(R), supra. 8 Most of these amendments would have expanded the types of photo identification permitted or otherwise sought to decrease the obstacles faced by voters without one of the required forms of identification. For example, Senator Judith Zaffirini and Representative Veasey each proposed amendments in their respective chambers to allow a voter with a voter registration certificate but

This figure includes amendments proposed and withdrawn.


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not photo identification to certify his or her identity in an affidavit and vote a regular ballot. Both amendments were tabled. See Tex. Sen. J. 82d Leg., Regular Sess. Fifth Day at 117 (Ex. 24) (Amendment 10); Tex. H.J. 82d Leg., Regular Sess. Fortieth Day at 966-67 (Amendment 11). Senator Robert Duncan offered an amendment to count provisional ballots of individuals who certify in an affidavit that they are indigent. This amendment passed in the Senate but was removed from the bill in the House. Compare Tex. Sen. J. 82d Leg., Regular Sess. Fifth Day at 137-38 (Amendment 40), with S.B. 14, supra. Representative Borris Miles introduced an amendment to target the bills voter education program at low-income and minority voters. The House passed this amendment, but the conference committee removed it. Compare Tex. H.J. 82d Leg., Regular Sess. Fortieth Day at 982 (Amendment 27), with S.B. 14, supra. Representative Naomi Gonzales proposed an amendment to include tribal identification among the allowable forms of identification, and Representative Roberto Alonzo proposed an amendment to allow any state identification to be used for voting. Neither amendment was included in the final legislation. Compare Tex. H.J. 82d Leg., Regular Sess. Fortieth Day at 977 (Amendment 20), and id. at 984-85 (Amendment 30), with S.B. 14, supra. Against this entire backdrop, and based upon their experience in the legislative process, numerous minority legislators in Texas have stated that they believe that S.B. 14 was passed with discriminatory purpose. See Anchia Decl. 17; Ellis Decl. 17; Uresti Decl. 19; Veasey Decl. 22. 9 Some opponents of S.B. 14 characterized the 82d Legislature in Texas as having a tense

Moreover, there is reason to believe that the purported reason for this bill, to ensure electoral integrity and prevent voter fraud, may be pretextual given the apparent dearth of evidence of actual voter fraud, even after a reported two year investigation by the Office of the Texas Attorney General. Reportedly, this enforcement effort by the Texas Attorney General led to only 26 prosecutions, almost all of which involved black or Hispanic voters, and none of which involved in-person voter impersonation that might be remedied by a photo identification requirement. See Wayne Slater, Texas Attorney Generals Two-


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racial climate with significant anti-Hispanic rhetoric. See Anchia Decl. 16. In the same legislative session in which it passed S.B. 14, the Texas Legislature considered the controversial sanctuary cities legislation, and created three statewide redistricting plans that have been challenged as racially discriminatory in purpose and effect in separate trials under Sections 2 and 5 of the Voting Rights Act. See H.B. 12, 82d Leg. (Tex. 2011) (House engrossed version) (Sanctuary Cities) (Ex. 27); H.B. 150, 82d Leg. (Tex. 2011) (House Redistricting); S.B. 31, 82d Leg. (Tex. 2011) (Senate Redistricting); S.B. 4, 82d Leg., 1st Spec. Sess. (Tex. 2011) (Congressional Redistricting); see also, e.g., Texas v. United States, No. 1:11-cv-1303, 2011 WL 6440006 (D.D.C. Dec. 22, 2011) (denying summary judgment in Section 5 preclearance litigation); Order, Perez v. Perry, No. 5:11-cv-360 (W.D. Tex. Mar. 19, 2012) (Doc. 691) (providing an interim remedy for the Congressional plan) (Ex. 28). Legislators tied the passage of S.B. 14 to a fear of the rapid growth of the Hispanic population in Texas and anxiety concerning illegal immigration. See Anchia Decl. 5; Veasey Decl. 11. 10 Representative Anchia responded that photo identification requirements for voters were sold on the backs of Latinos. Anchia Decl. 5. These statements by first-hand witnesses of the process by which

Year Effort Fails to Unravel Large-Scale Voter-Fraud Schemes, Dallas Morning News, May 18, 2008 (Ex. 25); see also Ralph Blumenthal, 2 Voter Rights Cases, One Gripping a College Town, Stir Texas, N.Y. Times, May 28, 2008 (Ex. 26) (describing the impact of these investigations on minority communities). Lawmakers public communications regarding photo voter identification repeatedly raised the issue of illegal immigration as a rationale for passing a strict photo voter identification bill. See, e.g., David Dewhurst, A Letter from Lt. Governor David Dewhurst on Voter I.D. Bill, May 16, 2007, reprinted in The Week in the Rearview Mirror, Tex. Weekly (May 21, 2007) (Ex. 29) (With eight to 12 million illegal aliens currently living in the U.S., the basic American principle of one person, one vote, is in danger.); W. Gardner Selby, House Republicans Squeak Through Voter ID Mandate, Austin Am. Statesman, Apr. 24, 2007 (Ex. 30) (Brown said her proposal was designed to keep illegal aliens, noncitizens and other people otherwise not qualified from voting.).


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S.B. 14 was developed and enacted are indicia of discriminatory purpose more than sufficient to warrant discovery of legislators and their staff. II. Permitting the United States to Depose and Request Documents from Key State Legislators and their Staff will Lead to the Discovery of Critical Evidence. To meet its prima facie burden that S.B. 14 was enacted without any discriminatory purpose, the State will likely offer the legislative record and cite statements of supporters of the bill. 11 Such statements are hearsay, and if this Court were to admit the legislative record after having barred discovery and testimony from legislators under a state legislative privilege, the United States would be unable to test the veracity of hearsay declarants through crossexamination or documentary impeachment. In turn, should the State present a prima facie case, the burden of production will shift to the United States to produce evidence to rebut the States case. As discussed above, on its face, the legislative record includes statements from which a fact finder may reasonably infer that the legislature acted with discriminatory purpose in enacting S.B. 14. Additionally, opponents of the bill may provide testimony about amendments offered and rejected, concerns about the impact of the bill on minority voters, the procedural deviations in consideration of S.B. 14, and the racial climate surrounding the 82d Legislature that bolster a reasonable inference that S.B. 14 was enacted with a discriminatory purpose. The bills opponents, however, are unlikely to have

As a covered jurisdiction under Section 5, the State of Texas must prove that S.B. 14 was enacted without any discriminatory purpose. If Texas presents sufficient evidence to establish a prima facie case, the burden of production then shifts to the United States, which as the statutory defendant, must offer evidence sufficient to rebut the States case. While the burden of proof remains on the State, see 42 U.S.C. 1973c(a); Georgia v. United States, 411 U.S. 526, 538 (1976), the United States nevertheless plays an essential role as statutory defendant, see 42 U.S.C. 1973c(a); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966).



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access to much if any information about the development and advancement of S.B. 14 that occurred outside of the public record and domain. The complex task of assessing a jurisdictions motivation in enacting voting changes,
Bossier Parish Sch. Bd. v. Reno (Bossier Parish I), 520 U.S. 471, 488 (1997), cannot be adequately

conducted if each of the key witnesses who drafted, proposed, and advocated for S.B. 14 is permitted to withhold testimony and documents. Texas admits that the bills sponsors, Senator Troy Fraser and Representative Patricia Harless, their respective staff, and key supporters of the bill, including Representative Jose Aliseda, Representative Larry Gonzales, and Representative Aaron Pea are central witnesses. 12 At the same time, the State has argued for application of legislative privilege that is exceptionally expansive. While the State has moved for a protective order to shield the entire state legislature from discovery on the basis of legislative privilege, the State can point only to at least three unidentified legislators who are asserting legislative privilege. Tr. at 9:26-10:5 (Apr. 3, 2012). Further, the State argues, unconvincingly, that communications that extend outside of the legislature, between legislators and constituents, must be protected from disclosure. See Proposed Order (Doc. 34-4). 13

Prior to receipt of any discovery from the State, the United States advised Texas by letter that it sought to depose ten legislators and might seek to depose two additional legislators. See Letter from Jennifer Maranzano, U.S. Department of Justice, to Jonathan Mitchell, Solicitor General, Office of the Attorney General of Texas (Mar. 19, 2012) (Doc. 34-1). The legislators identified by the United States included: Senator Fraser and Representative Harless, the legislators who carried S.B. 14 in the Senate and the House respectively; Representative Joe Straus, the Speaker of the Texas House; Representative Dennis Bonnen, the chair of the House Committee on Voter Identification and Fraud; and other legislators who sponsored past photo identification bills, were members of committees that considered election-related legislation, or were strong public supporters of S.B. 14.


But cf., e.g., Doe v. McMillan, 412 U.S. 306, 313 (1973) (Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct though generally done, is not protected legislative activity. (quoting Gravel v. United States, 408 U.S. 606, 625 (1972))); Chastain v. Sundquist, 833 F.2d 311, 314 (D.C. Cir. 1987) (Should a member choose to publish even an


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To look behind the scripted legislative record, the United States should be permitted to seek discovery from legislators and their staff concerning the historical progression of photo identification bills in the States recent legislatures and the increasing restrictive and onerous provisions in those bills. Discovery should also be permitted from the sponsors and key proponents of S.B. 14 on the reasons for rejection or adoption of particular amendments to the bill, the lack of response to questions related to the impact of S.B. 14 on minority voters, and the apparent failure to consider minority voters access to necessary forms of photo identification and obstacles associated with obtaining an EIC. Additionally, discovery of legislators and staff should include inquiry into the numerous procedural deviations associated with the consideration and enactment of S.B. 14. The testimony and documents obtained from these witnesses will inform whether there is direct or circumstantial evidence of discriminatory purpose that is directly relevant to the States statutory claim. 14

exact copy of a speech delivered in Congress, however, he loses his constitutional protection. (citing Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979))).

In the recently tried litigation in this Court concerning whether Texas statewide redistricting plans complied with Section 5 of the Voting Rights Act, see Texas v. United States, 2011 WL 6440006 (D.D.C. Dec. 22, 2011), highly relevant evidence of racial discriminatory purpose would not have been discovered but for the ability of the United States and intervenors to engage in document discovery and depositions of state legislators and legislative staff. For example, the United States learned prior to the States motion for summary judgment that Representative John Garza had insisted that his district include regions of Bexar County known for low Hispanic turnout while recognizing that he would not be allowed to eliminate the Hispanic majority in his district. See Declaration of Representative Joe Farias (Oct. 19, 2011) (Ex. 31). Only when the United States received documents from legislative staff was it revealed that the Speaker of the Houses staff had planned to devise just such districts, in which the superficial appearance of a Hispanic majority nevertheless would not create a Hispanic ability to elect a candidate of choice. See Email from Eric Opiela to Gerardo Interiano (Nov. 19, 2010) (Ex. 32). Similarly, the United States learned prior to summary judgment that the map proposed by the chairman of the Texas House Committee on Redistricting violated the retrogression standard advanced by the State, see Deposition of Ryan Downton, Oct. 20, 2011, at 133:13-135:7 (Ex. 33), but only further discovery of analysis pre-dating that release proved that the Chairman had ignored warnings of a retrogressive effect. See David Hanna, Possible Retrogression Issues for Black and Hispanic Districts in Proposed Plan H110 (Apr. 12, 2011) (Ex. 34) (analyzing a pre-release plan nearly identical to the Chairmans plan). Legislative depositions


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CONCLUSION For the reasons set out above, if this Court were to recognize a state legislative privilege and to apply an extraordinary circumstances test, the factual circumstances of the instant litigation nonetheless merit full legislative discovery. Circumstantial evidence of discriminatory purpose already gathered supports the United States discovery requests, and the legislators and staff from whom discovery is sought are crucial witnesses to the States statutory claim. The United States respectfully requests that this Court deny the State of Texass motion for a protective order. Date: April 10, 2012 Respectfully submitted, RONALD C. MACHEN, JR. United States Attorney District of Columbia THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

/s/ Elizabeth S. Westfall T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO DANIEL J. FREEMAN Attorneys Voting Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

were also necessary to probe the veracity of mapmakers. Although the State claimed to have relied on the local political knowledge of State Representatives to explain divisions of precincts along racial lines on the boundaries of the District in which Representative Aaron Pea resides, see Deposition of Gerardo Interiano, Oct. 20, 2011, at 174:4-176:23 (Ex. 35), Representative Pea admitted in response to specific questions that he was not familiar with the precincts at issue. See Deposition of Representative Aaron Pea, Oct. 19, 2011, at 163:17-25, 168:17-169:5, 172:19-173:4 (Ex. 36). This purpose evidence arose from the same session of the Texas legislature that passed the identification requirement in S.B. 14.


Case 1:12-cv-00128-RMC-DST-RLW Document 69

Filed 04/10/12 Page 17 of 17

CERTIFICATE OF SERVICE I hereby certify that on April 10, 2012, I served a true and correct copy of the foregoing via the Courts ECF system on the following counsel of record: Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Office of the Attorney General of Texas jonathan.mitchell@oag.state.tx.us adam.aston@oag.state.tx.us matthew.frederick@oag.state.tx.us Counsel for Plaintiff J. Gerald Hebert hebert@voterlaw.com Chad W. Dunn Brazil & Dunn chad@brazilanddunn.com Counsel for Kennie Intervenors Ryan Haygood NAACP Legal Defense and Education Fund rhaygood@naacpldf.org Counsel for Texas League of Young Voters Intervenors Mark A. Posner Lawyers Committee for Civil Rights mposner@lawyerscommittee.org Ezra David Rosenberg Dechert LLP ezra.rosenberg@dechert.com Counsel for NAACP Intervenors John Tanner john.k.tanner@gmail.com Counsel Texas Legislative Black Caucus Proposed Intervenors Nina Perales Mexican American Legal Defense & Educational Fund, Inc. nperales@maldef.org Counsel for Rodriguez Proposed Intervenors

/s/ Daniel J. Freeman DANIEL J. FREEMAN U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 daniel.freeman@usdoj.gov

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