Tue April 1, 2014
How 'Legislative Immunity' Fits Into NC Voting Lawsuits
Last week a federal judge ruled that some North Carolina lawmakers will have to release emails they exchanged with lobbyists as they were working on the state's sweeping new election law. The judge's order addresses a key question in the lawsuits brought by the U.S. Justice Department and others against the state: How far does the concept of legislative immunity go?
First of all, what is legislative immunity?
It's a judicial doctrine that exists so that lawmakers don't have to worry about constantly defending themselves from lawsuits as they do their jobs. Lawmakers have an absolute immunity from being sued personally for the laws they pass. But that's not what the U.S. Justice Department, the NAACP and other plaintiffs are doing here. They're suing the state in general.
So how did legislative immunity come into play?
The plaintiffs asked to see lawmakers' emails and other communication records as they crafted the election overhaul last year. The plaintiffs argue some of the changes in the overhaul are discriminatory, including cutting the number of early voting days and requiring photo ID to vote. And they say they need to see how lawmakers talked about those changes in emails and other communications in order to determine intent, which is a crucial part of the lawsuits. But the state's lawyers argued that legislative immunity protects lawmakers from having to produce those things.
And what did the judge decide?
Judge Joi Peake ruled that just because legislators are immune from civil liability, that doesn't mean they have an absolute privilege to refuse to produce any kinds of emails or documents. For example, the judge ordered lawmakers to turn over emails with third parties, like lobbyists. But beyond that, the judge told the two sides to meet and hash out what other kinds of communications they think they should or shouldn't have to produce. So if the sides disagree about emails just between lawmakers, for example, then the judge will have to weigh back in.
The bottom line for now is this: lawmakers won't get the extremely broad immunity they want, but the Justice Department and other plaintiffs may not get all the emails and documents they want, either.