Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff vs. ERIC H. HOLDER, JR., in His Official Capacity as Attorney General of the United States, Case No. 1:12-CV (RMC, DST, RLW) Three-Judge Court Defendant. REPLY IN SUPPORT OF PLAINTIFF S MOTION IN LIMINE TO PRECLUDE EVIDENCE, ARGUMENT, AND TESTIMONY SUGGESTING AN ADVERSE INFERENCE BASED ON TEXAS LEGISLATORS ASSERTION OF LEGISLATIVE PRIVILEGE The United States and Defendant-Intervenors contend that this Court should not only deny Texas motion in limine precluding any suggestion of an adverse inference based on the assertion of legislative privilege but that it should actually impose an adverse inference. As discussed in Texas reply, this position finds no support under the relevant precedent. More importantly, the United States and Defendant-Intervenors ignore the fact that Texas meets its burden under Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) even with the invocation of legislative privilege by its legislator witnesses. Throughout the legislative debate, Texas legislators who supported Senate Bill 14 repeatedly explained that the bill was intended to detect and deter election fraud as well as promote public confidence in the electoral system. Crawford regards photo-identification laws, like Senate Bill

2 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 2 of 13 14, as legitimate fraud prevention devices even when enacted in States with limited evidence of election fraud. Significantly, Crawford endorsed the very same legislative purposes expressed by the Texas Legislature despite the fact that no legislators were required to testify that detecting and deterring illicit conduct were the government body s true motives for enacting photo-identification requirements. The United States and Defendant-Intervenors suggestion that this Court should weigh the absence of legislator testimony at trial and the assertion of legislative privilege by any legislative witnesses against Texas reflects the parties refusal to accept the Supreme Court s holding in Crawford. REPLY ARGUMENT This Court should grant Texas motion in limine to preclude any evidence, argument, or testimony suggesting an adverse inference based on the assertion of legislative privilege by Texas legislators for the following reasons. As an initial matter, Texas motion to preclude evidence suggesting an adverse inference based on the assertion of the legislative privilege is not premature. Although the United States and Defendant-Intervenors argue that this Court should not consider Texas motion until the conclusion of trial to see how Texas relies on legislative testimony on the merits, they misconstrue the nature of Texas request. Texas seeks a pretrial ruling to preclude any evidence, argument, or testimony during trial that would suggest an adverse inference should be drawn based on the assertion of legislative privilege by Texas legislative witnesses. This 2

3 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 3 of 13 Court need not wait until the end of trial to issue such a ruling, especially since the harm will already be done with the introduction of such testimony. Similarly, the United States and Defendant-Intervenors assert that this Court should not consider this motion until trial in order to determine whether Texas will use the invocation of legislative privilege by any of its witnesses as both a sword and a shield. See Response Brief at 4. The cases cited by the United States and Defendant-Intervenors, however, do not lend any support to their argument. Instead, these cases merely establish the rule that a party waives privilege under a theory of issue-injection waiver when it raises an affirmative defense that makes [its] intent and knowledge of the law relevant. The Navajo Nation v. Peabody Holding Co., 255 F.R.D. 37, 44 (D.D.C. 2009) (citations omitted). Thus, these cases address the situation when a privileged communication must be disclosed due to waiver and do not provide any guidance as to when this Court should allow the drawing of an adverse inference. The United States and Defendant-Intervenors argue that an adverse inference is warranted here because the invocation of legislative privilege has prevented it from conducting discovery on certain issues. See Response Brief at 5. This argument ignores contrary case law, affirmed by the Supreme Court, that found no adverse inference is warranted in response to defendants invocation of legislative privilege regarding how [a state senate district] was drawn. Rodriguez v. Pataki, 308 F. Supp. 2d 346, 460 (S.D.N.Y. 2004) aff d 543 U.S. 997 (2004). Moreover, all of the cases that the United States and Defendant-Intervenors cite in 3

4 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 4 of 13 support of this argument are inapposite. For instance, although the United States and Defendant-Intervenors rely on International Union, United Automobile, Aerospace & Agr. Implement Workers of America v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972), this case addresses the application of an adverse inference as a sanction when a party has relevant evidence within his control and fails to produce such material during discovery. Id. at None of the cases they cite address the scenario present here whether a proper assertion of legislative privilege by a testifying witness can give rise to an adverse inference. Just as the adverse inference rule is inapplicable where a party has a constitutional right to suppress the evidence in question (i.e., where the evidence would chill his First Amendment protections), this Court should not burden the proper exercise of the assertion of legislative privilege by attaching an adverse inference to the failure to testify on protected matters. Without citing any authority whatsoever, the United States and Defendant- Intervenors also contend that an adverse inference is proper because the assertion of legislative privilege is comparable to the assertion of the Fifth Amendment privilege in a civil proceeding. See Response Brief at 4. This argument, however, ignores precedent refusing to apply an adverse inference based on the invocation of legislative privilege. See Rodriguez, 308 F. Supp. 2d at 460. This is because the contours of the legislative privilege, like the privileged enjoyed by federal legislators under the Speech and Debate Clause, are different than those granted by the Fifth Amendment s prohibition against self-incrimination. Like the Speech and Debate 4

5 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 5 of 13 Clause, the purpose of the legislative privilege is to protect the independence and integrity of the legislature by not questioning individual legislators for their legitimate legislative acts. Cf. Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 416 (D.C. Cir. 1995) (legislative privileges and immunities designed to prevent intimidation by the executive and accountability before a possibly hostile judiciary) (quoting United States v. Johnson, 383 U.S. 169, 181 (1966)). This is similar to the objectives of the attorney-client privilege, as both privileges seek to encourage frank communications between parties without adverse effect. By contrast, the Fifth Amendment privilege acts as a bar that allows an individual to refuse to give information that is compelled, testimonial, and incriminating. As a result, because the attorney-client privilege is more analogous to the legislative privilege, this Court should find precedent holding that the imposition of an adverse inference based on the assertion of the attorney-client privilege applies equally to the assertion of legislative privilege. Importantly, if this Court were to draw an adverse inference or even allow evidence suggesting such an inference, it would make the assertion of legislative privilege meaningless in the Section 5 context. The United States and Defendant- Intervenors claim that this Court should essentially look past the federalism concerns the Supreme Court recognized in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 202 (2009), to draw an adverse inference based on the invocation of the legislative privilege. See Response Brief at 6-7. But it is precisely the constitutional concerns raised in Northwest Austin that led this 5

6 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 6 of 13 Court to define the scope of the legislative privilege in a Section 5 proceeding with as little intrusion on state sovereignty as possible. See Order at (Doc. 167) 4 n.2; see also Order (Doc. 154) at 6-7. As the plaintiff in this section 5 proceeding, it is Texas choice as to what evidence it intends to rely on to demonstrate that Senate Bill 14 was not enacted with a discriminatory purpose. Because Texas legislative witnesses have chosen to invoke legislative privilege as to testimony that would reveal their mental impressions, opinions, motivations, and thought processes, Texas relies on the extensive public record and statements by legislators describing the general purpose of Senate Bill 14 to demonstrate the intent of the Texas Legislature as a whole. If this Court concludes that Texas has failed to carry its burden on account of insufficient legislator testimony, then its decision will reflect that conclusion. But it cannot, as the United States and Defendant-Intervenors suggest, draw an adverse inference or assume that the absence of legislator testimony means there was a discriminatory purpose in passing Senate Bill 14. If this was true, covered jurisdictions would be forced to bear the burden of an adverse inference every time they properly invoked their right to assert legislative privilege. Finally, the fact that Texas intends to call three legislators as witnesses at trial has no effect on this Court s treatment of the legislative privilege. Texas legislators called as witnesses by the State will testify to the purpose of the legislature as a whole in enacting SB 14 and about public statements they made on the record during the legislative process. See Notice of Plaintiff s Live Witness List (Doc. 196). This testimony will not address matters protected by the legislative 6

7 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 7 of 13 privilege nor can they, because the privilege belongs to both parties to a communication, not just the legislator testifying at trial and is precisely the type of evidence this Court has held is relevant to the Section 5 inquiry. The United States and Defendant-Intervenors continue to fail to understand that Section 5 is directed at, and turns on, overall legislative purpose and not the purpose or motivation of individual actors. Order (Doc. 128) at 3 (internal citations omitted). What they construe as selectively favorable testimony is nothing more than evidence of the overall purpose of the legislature as stated in the public record. As a result, Texas does not intend to selectively permit these witnesses to testify on favorable facts and then avoid cross-examination on topics by asserting the privilege. CONCLUSION For the reasons stated herein, Texas motion in limine should be granted. 7

8 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 8 of 13 Dated: June 29, 2012 Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JONATHAN F. MITCHELL Solicitor General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON Principal Deputy Solicitor General ARTHUR C. D ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General 209 West 14th Street P.O. Box Austin, Texas (512) ADAM K. MORTARA JOHN M. HUGHES Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL Tel: (312) Fax: (312) Counsel for the State of Texas 8

9 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 9 of 13 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document is being served by CM/ECF and/or electronic mail on June 29, 2012 on the following: Elizabeth Stewart Westfall Jennifer Lynn Maranzano Daniel J. Freeman Bruce I. Gear Meredith E.B. Bell-Platts U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC (202) /Fax: (202) elizabeth.westfall@usdoj.gov: daniel.freeman@usdoj.gov bruce.gear@usdoj.gov: jennifer.maranzano@usdoj.gov Meredith.Bell-Platts@usdoj.gov Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX (281) chad@brazilanddunn.com J. Gerald Hebert Attorney at Law 191 Somerville Street, #405 Alexandria, VA Telephone: hebert@voterlaw.com Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon 9

10 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 10 of 13 Ezra D. Rosenberg Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ (609) /Fax: (609) Jon M. Greenbaum Mark A. Posner Robert A. Kengle LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW, Suite 400 Washington, DC (202) Myrna Perez Ian Arthur Vandewalker Wendy Robin Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY (646) /Fax: (212) Robert Stephen Notzon 1507 Nueces Street Austin, TX (512) Fax: (512) Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland (410)

11 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 11 of 13 Jose Garza 7414 Robin Rest Dr. San Antonio, Texas (210) (phone) Gary L Bledsoe Law Office of Gary L. Bledsoe and Associates 316 West 12th Street, Suite 307 Austin, Texas (512) garybledsoe@sbcglobal.net Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Douglas H. Flaum, Michael B. de Leeuw Adam Harris FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York (212) douglas.flaum@friedfrank.com; michael.deleeuw@friedfrank.com adam.harris@friedfrank.com Ryan Haygood, Natasha M. Korgaonkar Leah C. Aden, Dale E. Ho Debo P. Adegbile, Elise C. Boddie NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York (212) / (212) rhaygood@naacpldf.org; nkorgaonkar@naacpldf.org laden@naacpldf.org; dadegbile@naacpldf.org dho@naacpldf.org; eboddie@naacpldf.org Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams 11

12 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 12 of 13 John Kent Tanner 3743 Military Road, NW Washington, DC (202) Nancy Abudu, Katie O Connor Laughlin McDonald AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC 230 Peachtree Street NW, Suite 1440 Atlanta, GA (404) nabudu@aclu.org: koconnor@aclu.org lmcdonald@aclu.org Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION S CAPITAL 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C (202) artspitzer@gmail.com Lisa Graybill, Rebecca Robertson AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowan Street Houston, Texas (713) lgraybill@aclutx.org: rrobertson@aclutx.org Penda Hair, Kumiki Gibson ADVANCEMENT PROJECT 1220 L Street, NW, Suite 850 Washington, DC (202) phair@advancementproject.org: kgibson@advancementproject.org Counsel for Justice Seekers, League of Women Voters of Texas, Texas Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright, Southwest Workers Union and La Union Del Pueblo Entero 12

13 Case 1:12-cv RMC-DST-RLW Document 248 Filed 06/29/12 Page 13 of 13 Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX (210) Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorneys General 13