Not unexpectedly, the State of Texas is arguing that the plaintiffs in the consolidated redistricting case shouldn’t get to see or use select emails that were exchanged between legislative staffers and lawmakers leading up to the controversial 2011 Texas redistricting plan. (See http://txredistricting.org/post/85551572481/state-of-texas-asks-court-to-reconsider-order-directing at the Texas Redistricting and Election Law Blog for links to the judge’s order and the text of the State’s motion to reconsider).
The problem the State faces is twofold. First, some of the most damaging emails have already come out in previous litigation. Second, while the State must be commended for its legal chutzpah, there isn’t actually any such thing as “legislative privilege” in the sense that the defendant is using that term.
To be sure, there is a longstanding and recognized principal in parliamentary law that members of a legislative body should be free to debate without fear of being sued for slander or defamation. In other words, the legislative privilege gives members of the Texas Legislature protection from politically motivated civil prosecution for engaging in legislative debate. You know, the old spirited give-and-take of the lawmaking process. Notice that the protection applies to things that are said right out there in the open – the legislative privilege is a type of traditional legislative immunity from legal prosecution.
The State of Texas is trying to argue that “legislative privilege” is like “attorney-client privilege” or “doctor-patient privilege;” that it is somehow a shield against having to reveal what a legislator or legislative staff member wrote or said.