Virginia Pols Must Turn |Over Redistricting Docs

RICHMOND, Va. (CN) - The Virginia House of Delegates must produce the majority of documents sought by the plaintiffs in a lawsuit claiming a 2011 redistricting plan was crafted to disenfranchise black voters, a federal judge ruled.

Senior U.S. District Judge Robert Payne's May 26 ruling was a victory for the 12 plaintiffs who claim "bizarrely-shaped" house voting districts included in the plan were drafted based on a "purely racial classification of voters" that was both arbitrary and unconstitutional.

Virginia House Speaker William J. Howell denied the allegations intervened in the case to argue that documents requested by the plaintiffs to bolster their case are protected by legislative and attorney-client privilege.

Howell argued on behalf of the entire House of Delegates that because its members do not represent the individual interests of the delegates involved in the 2011 remapping, they do not have to divulge privileged documents on those lawmakers' behalf.

Together, court documents say, the house, speaker and plaintiff voters agreed to seek documents from individual lawmakers directly. Of the 29 lawmakers served, 4 agreed to supply documents while the remaining 25 either denied or ignored the request.

"That letter informed the affected delegates that the house had custody of the responsive emails to or from the delegates; that the house did not represent the delegates; and that it was the responsibility of the individual delegates to waiver or assert the legislative privilege," Judge Payne wrote.

He continued: "The house argues that it may not waive the legislators' privilege and that by producing documents it would be doing do. This is not the case. The house has reached out to the legislators in question and advised them of their rights to waive or assert their privilege. Thus, the house is not 'waiving' the privilege against their wishes. The legislators waived the privilege and their documents must be produced."

Payne said the redistricting case "presents a most unusual circumstance because the individual legislators (who must prove the privilege) are not parties and the notice drafted by the plaintiffs and the intervenors simply instructed the legislators to 'assert' the privilege (or not) and did not instruct how the privilege, once asserted, must be proved."

"One does not prove entitlement to legislative (or, indeed, any) privilege simply by asserting it," the judge said. "Counsel for the intervenors may work with individual legislators and/or their aides to help 'prove up' their claims of privilege and minimize the burden imposed. The house cannot, however, undertake this analysis on its own."

Payne went on to say the public policy issue at hand warrants the element of transparency sought by constituents.

"The court is not inclined to hold that a judicially crafted evidentiary privilege based on federal common law can, with unflinching and absolute effect, trump the need for direct evidence that is highly relevant to the adjudication of public rights guaranteed by federal statutory law and the Constitution, especially where no threat to legislative immunity itself is presented," he wrote.

"As John Adams wrote, an assembly 'should be, in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them,'" the judge said. "Courts have readily recognized the 'seriousness of the litigation' in racial gerrymandering cases ... The Plaintiffs allege an undoubtedly serious deprivation of rights. This factor weighs heavily in favor of disclosure."

"The question of whether the state thought it appropriate to use specific racial percentages in an attempt to comply with the requirements of the Voting Rights Act is one that is particularly important to this litigation, regardless of the subjective motivations purportedly driving individual legislators' final voting decisions," Payne wrote. "The availability of alternate evidence will only supplement - not supplant - the evidence sought by the plaintiffs ... Plaintiffs need not 'confine their proof' to circumstantial evidence."

Despite the order to turn over house documents, legal counsel for the intervenors, Baker Hostetler are not obligated to provide documents in their possession, Payne ruled.

The documents in question, written by legal advisors to the Virginia Republican Party during the 2011 redistricting, also appear in Page v. The Virginia Board of Elections, a separate case alleging voters rights violations stemming from the 2011 redistricting process.

But because the documents held by their attorneys and not by the intervenors themselves, Baker Hostetler is not required to produce them, Payne held.

Representatives of the parties declined to comment when contacted by Courthouse News.

A hearing on the lawsuit is scheduled to begin on July 7.

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