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January 06, 2012


Karl Kurtz

After reading the case, Peter Wattson, former Minnesota Senate Counsel, offers this helpful and more detailed summary:

"The portion of the order relating to legislative privilege turns on the failure of members of the Texas Legislature to assert the privilege earlier in the proceedings. The privilege must be asserted by a member to protect the member or that member’s staff.

"The D.C. Court (considering VRA section 5 preclearance of the Texas redistricting plans) said the legislative privilege was waived by the members and their staff when they were deposed in the San Antonio case (considering VRA section 2 and other challenges to the plans). Those who were deposed did not object to testifying (presumably in favor of the plans). The Texas attorney general represented to the San Antonio court that he had informed the members who were mentioned in the testimony and they did not object to the testimony being received by that Court.

"Texas then identified key members of the legislative staff who had testified in San Antonio to be witnesses for Texas in the D.C. court, but objected to their being deposed before trial. Texas did not identify any member who asserted legislative privilege as to this new deposition testimony.

"Under the circumstances, the D.C. court found the waiver in the San Antonio case carried over to the D.C. case. Just to be sure, the Court ordered counsel for the State of Texas to canvass any senators not previously contacted to determine whether they asserted privilege as to any of the documents under consideration in the D.C. case and to produce any documents as to which no privilege has been raised."

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