by Benjamin Lerude*
Courts have long recognized that legislative privilege—an evidentiary rule that allows legislators to avoid compelled disclosure of evidence related to aspects of the lawmaking process—is qualified, not absolute. This qualification enables plaintiffs to gain access to the evidence necessary to hold state legislatures accountable for laws predicated upon unconstitutional bias. However, two recent developments, operating in tandem, threaten to block plaintiffs from challenging biased legislation in the redistricting context: first, lower courts are expanding legislative privilege to obscure more of the state lawmaking process, and second, the Supreme Court has imposed new requirements for racial gerrymandering claims that demand from plaintiffs a heightened understanding of that process. In other words, voting rights plaintiffs are now expected to possess detailed knowledge of the motivations underpinning state legislation while some courts are simultaneously expanding legislative privilege to block them from acquiring that knowledge. This Contribution exposes this untenable position and argues that, in a legal system that already requires plaintiffs to prove discriminatory legislative intent to realize their civil rights, plaintiffs must have a viable means of piercing the veil of legislative secrecy. The longstanding qualifications and exceptions to legislative privilege must be maintained. Otherwise, state legislatures will be free to act with impunity, unbeholden to the constraints of the Constitution, and at great cost to their constituents.
Throughout United States history, civil rights advocates have challenged discriminatory state legislation by pointing to evidence of the bias-infected legislative processes that produced it.1 While the most sensitive aspects of the legislative process have long been protected by evidentiary privilege, courts have historically found that such privilege must at times yield to allow plaintiffs to bring vital constitutional and civil rights claims, in particular challenges to state voting rights legislation.2 Without this flexibility, it would be far harder for courts to identify and strike down legislative actions motivated by unconstitutional animus.
Two recent developments—the expansion of legislative privilege for state legislators and the ever-tightening of the racial gerrymandering standard—threaten to neutralize important civil rights litigation, specifically in the redistricting context.3 This Contribution first explains how courts have historically applied legislative privilege. It then discusses how several recent cases have broadened that application, further extending the shield of privilege over the state lawmaking process. The Contribution next explains how the recent Supreme Court case of Alexander v. South Carolina State Conference of the NAACP raised the bar for proving racial gerrymandering claims, such that clearing it requires obtaining far-reaching insight into legislative decision-making. Finally, the Contribution connects these two developments to expose how their collision may deny voting rights plaintiffs—and possibly other civil rights advocates—the ability to satisfy their prescribed burden and actualize essential constitutional rights.
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Legislative privilege, also called deliberative privilege, is an evidentiary rule that protects legislators from having to produce as evidence documents, communications, and other materials within the scope of their legislative activities.4 This privilege was originally derived from the U.S. Constitution’s Speech and Debate Clause, which states that “for any Speech or Debate in either House, [congressmembers] shall not be questioned in any other Place.”5 While the text of this clause extends privilege only to federal legislators, almost all state constitutions contain analogous clauses that grant legislative privilege to state legislators and are typically interpreted in line with the federal Constitution.6
Two traditional rationales underlie this privilege: “first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence.”7 From its earliest days, the protection has also been used to safeguard legislators’ free speech interests, out of fear that undue invasion into legislative communications might chill open discourse in the lawmaking process.8 However, the Supreme Court quickly recognized the privilege’s potential to “contravene the fundamental principle that ‘the public . . . has a right to every man’s evidence.’”9 It therefore established legislative privilege as qualified, to be “strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.’”10
Over time, courts developed a five-factor balancing test to assess whether a case presented a sufficiently transcendent “public good” that justified shielding legislators from compelled evidence production. This test calls for courts to evaluate: (1) the relevance of the evidence for which protection is sought; (2) the availability of other evidence; (3) the seriousness of the litigation and the issues involved; (4) the role of the government in the litigation; and (5) the possibility of future timidity by government employees who might come to realize that their secrets are violable.11 With these factors in mind, courts have often agreed that privilege must yield when “the [legislative] decision-making process is itself at issue,” as it is when a plaintiff’s burden turns on the legislative intent behind a challenged law.12
Importantly, the doctrine also recognizes that legislators can personally waive their privilege either voluntarily or indirectly. Waiver has traditionally been interpreted capaciously. For example, courts have held that a waiver of privilege “need not be explicit and unequivocal” and can occur when legislators testify about otherwise privileged matters or share “purportedly privileged communications . . . with outsiders” to the legislative process or with the public.13
But recent applications of the legislative privilege doctrine threaten to upend the balance struck by this framework by tipping the scales towards sweeping legislative privacy. Over the past few years, some lower courts presiding over challenges to state legislation have ignored the five-factor balancing test and unilaterally stretched the privilege so that more types of communication are covered and fewer constitute waiver. It is crucial that civil rights advocates recognize these shifts and push back against them to preserve the ability to successfully challenge discriminatory legislative action through litigation.
For example, the Fifth Circuit’s recent descriptions of legislative privilege are much more expansive than the qualified privilege described above. In La Union del Pueblo Entero v. Abbott (hereinafter “LUPE”), the court characterized legislative privilege as “necessarily broad” and encompassing “all aspects of the legislative process.”14 It described the legislative process as inclusive of communications between legislators and a vast array of other actors, such as “executive officers, partisans, political interest groups, or constituents.”15 This list carves deeply into the default principle, discussed above, that communications with third parties may be subject to waiver.16 Instead, the court treated these communications as bringing third parties into the legislative process rather than taking place outside of it.17 According to the LUPE court, the principle that communications with non-legislators can amount to waiver “would swallow the [privilege] rule whole”18—even though that principle is the standard courts have long applied and legislatures have not been subject to mountains of discovery as a result (contrary to the LUPE Court’s concerns). Finally, to support its broader conceptualization of legislative privilege, the Fifth Circuit repeatedly drew from cases addressing legislative immunity,19 conflating these two distinct principles. This conflation is consequential because legislative immunity, which shields legislators from prosecution for actions taken within the ambit of their official responsibilities, is generally a more developed doctrine that strongly favors legislators.
For example, courts are historically more willing to grant legislative immunity since it is more burdensome for legislators to be compelled to respond to over-zealous or frivolous lawsuits than it is to respond to discovery requests,20 which arise after litigation has already been screened as having at least some merit. Based on such differences, courts have established more rigid rules for legislative immunity than for legislative privilege.21 It is therefore strategic for privilege-happy courts to coopt protective language from the legislative immunity context to bolster legislative privilege doctrine, to the benefit of legislators.
The section of the 2023 LUPE opinion that addresses legislative privilege has been cited at least six times in the eighteen months since its release. In a related case less than one year later, the Fifth Circuit doubled down, citing the fresh 2023 LUPE opinion as authority for the notion that privilege does not yield “even for allegations involving racial animus” or when “constitutional rights are at stake.”22 This language ignores the five-factor balancing test from Rodriguez, which requires weighing precisely those kinds of concerns. Instead, the Fifth Circuit reversed the lower court’s finding, reached after applying the Rodriguez test, that “the need for accurate fact finding outweighs any chill to the legislature’s deliberations.”23 In so doing, the Fifth Circuit protected state legislators from having to disclose communications regarding Texas’ notorious Senate Bill 1, which was widely criticized as an antidemocracy law intended to make voting harder for people of color and those with disabilities.24
The 2023 LUPE decision has also been cited outside the Fifth Circuit. In Mi Familia Vota v. Hobbs, the District of Arizona borrowed LUPE’s characterization of pro-waiver arguments as “an indirect attack on [legislative] privilege’s scope” and relied upon LUPE to conclude that third party communications can indeed be protected by legislative privilege.25 The court then denied the plaintiffs’ motion to compel production of at least thirty-eight communications between legislators and third parties as part of its challenge to Arizona’s recent restrictive voting law.26
Additionally, in In re North Dakota Legislative Assembly, the Eighth Circuit raised concerns about “the distraction of incessant litigation” to justify flattening the Rodriguez balancing test and imposing an “absolute bar to interference” wherever legislators are operating within the “sphere of legitimate legislative activity.”27 Though the Supreme Court vacated this decision as moot,28 the Eighth Circuit opinion reflects the trend of casting aside the nuanced five-factor balancing test in favor of sweeping privilege over any materials remotely within the scope of a legislator’s responsibilities. It also provides another example of courts repurposing strong language from the legislative immunity doctrine within the legislative privilege context, even though immunity and privilege raise different concerns and are governed by different standards, as discussed above.
In isolation, this trend forces voting rights advocates to adjust their discovery strategies to gain the necessary understanding of the decision-making behind challenged legislation. While frustrating and inconvenient, this hurdle on its own might be surmountable. But the trend becomes far more consequential when viewed in light of recent developments of the racial gerrymandering standard, which addresses discriminatory intent in redistricting.
In Alexander v. South Carolina State Conference of the NAACP, from the Supreme Court’s most recent term, the Court raised the standard for plaintiffs challenging redistricting maps as unconstitutional racial gerrymanders.29 In the wake of Shelby County v. Holder, which struck down the preclearance regime of the Voting Rights Act,30 racial gerrymandering claims have become a vital tool for voters of color—particularly Black and Latine voters—to actualize their voting rights through the courts.31 For decades, racial gerrymandering claims have been governed by the racial predominance standard, which requires plaintiffs to prove that race was the “predominant factor motivating the legislature’s” drawing of an alleged gerrymander.32 When race predominates, it means a legislature subordinated the goals traditionally prioritized in redistricting (e.g., maintaining compact or contiguous districts, keeping together communities with shared interests) in favor of “racial considerations,” unconstitutionally shifting voters across districts based primarily on their race.33 In other words, race was “the overriding reason for choosing one map over others.”34 Plaintiffs can prove racial predominance by providing either direct or circumstantial evidence.35
In Alexander, the Court raised that burden significantly. In the words of the dissent, the majority added a “novel [roadblock]”36 to the racial predominance burden by requiring plaintiffs to provide an alternative congressional map showing that the legislature could have achieved all of its “legitimate political objectives . . . while producing ‘significantly greater racial balance.’”37 But as the dissent called out,38 the Court explicitly rejected this exact requirement only seven years prior in Cooper v. Harris and instead described alternative maps as “merely an evidentiary tool to show that such a substantive violation has occurred.”39 In Alexander, the majority recharacterized Cooper as saying that where direct evidence is unavailable, “‘only [an alternative] ma[p]’ . . . can ‘carry the day.’”40 Now, if plaintiffs do not provide an alternative map, courts are instructed to draw an “adverse inference” against them and interpret the absence as “an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were based on a permissible, rather than a prohibited, ground.”41 Alexander also directs courts to favor legislatures with a “presumption of legislative good faith” when evaluating redistricting legislation.42 This pro-legislature move is strikingly consistent with the expansion of legislative privilege discussed above.
It remains to be seen how courts will apply these instructions. However, it is apparent that plaintiffs cannot create responsive alternative maps—maps that take into account the “permissible grounds” that legislatures cite to defend their redistricting decisions—if they cannot identify what legislatures’ purported grounds are. After Alexander, plaintiffs have two paths to meet their burden: providing direct evidence of racial predominance—difficult to come by in 2024—or submitting alternative maps that account for any justifications legislatures could claim explain their alleged gerrymanders. Both paths require evidence of legislative process and decision-making. Neither can be traveled if legislative privilege absolutely blocks access to such information. In this way, Alexander supercharges the negative consequences of the expansion of legislative privilege.
Finally, it is important to recognize that the expansion of legislative privilege could threaten discriminatory intent cases beyond the voting rights context. For example, several of the factors recognized within the traditional discriminatory intent analysis address the motivations and procedures of the legislature.43 The paradigmatic articulation of the discriminatory intent standard is that legislatures must have enacted legislation “‘because of’, not merely ‘in spite of’” its anticipated discriminatory effect.44 Overly protective legislative privilege prevents plaintiffs from isolating and proving the ‘because.’ In a time when legislatures are emboldened to pass legislation targeting historically marginalized communities,45 it is essential that plaintiffs have the ability to pierce the veil of legislative secrecy and expose lawmakers’ unconstitutional animus.
Something has to give: plaintiffs cannot be told both that their burden rests on identifying the motivations of legislators and that legislative privilege blocks them from accessing that information. It is more important than ever that courts recognize legislative privilege as qualified, not absolute.
* Benjamin Lerude is a J.D. Candidate (2025) at New York University School of Law. This Contribution was developed from an issue encountered and researched during a summer internship with the NAACP Legal Defense & Educational Fund.
1. See, e.g., Lane v. Wilson, 307 U.S. 268, 277 (1939) (holding an Oklahoma “grandfather clause” voter registration policy unconstitutional under the Fifteenth Amendment’s prohibition of racial discrimination in voting); Gomillion v. Lightfoot, 364 U.S. 339, 347–48 (1960) (finding that an electoral map could only have been drawn with one purpose in mind: to deprive Black voters of political power); Romer v. Evans, 517 U.S. 620, 634–35 (1996) (finding that an amendment forbidding anti-discrimination policies protecting lesbian, gay, and bisexual individuals was designed “not to further a proper legislative end but to make [these individuals] unequal to everyone else”).
2. See, e.g., Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100 (S.D.N.Y. 2003) (describing the legislative privilege as “at best, one which is qualified” and granting access to certain materials relevant to the New York legislature’s enacted redistricting plans).
3. See generally La Union del Pueblo Entero v. Abbott, 68 F.4th 228 (5th Cir. May 17, 2023) (addressing legislative privilege); In re N.D. Legis. Assembly, 70 F.4th 460 (8th Cir. 2023) (addressing legislative privilege), cert granted, judgment vacated sub nom. Turtle Mountain Band of Chippewa Indians v. N.D. Legis. Assembly, 144 S. Ct. 2709 (July 2, 2024); Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1 (2024) (addressing racial gerrymandering). These cases are each discussed in detail later in this Contribution.
4. See Danielle Bolong, Legislative Privilege of Federal and State Officials from Discovery of Information Concerning Discriminatory Intent, 76 A.L.R. Fed. 3d Art. 4 (originally published in 2022).
5. U.S. Const. art. I, § 6, cl. 1.
6. See Steven F. Huefner, The Neglected Value of the Legislative Privilege in State Legislatures, 45 Wm. & Mary L. Rev. 221, 224 (2003) (noting that 43 state constitutions contain a provision granting legislative privilege analogous to that of the U.S. Constitution).
7. United States v. Gillock, 445 U.S. 360, 369 (1980).
8. See, e.g., Miller v. Transamerican Press, Inc., 709 F.2d 524, 528 (9th Cir. 1983) (recognizing that “the [deliberative] privilege also protects freedom of speech in the legislative forum”).
9. Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).
10. Id. (quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting)).
11. Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100–01 (S.D.N.Y. 2003) (providing a widely-cited articulation of the five factors) (deriving these factors from In re Franklin Nat’l Bank Secs. Litig., 478 F. Supp. 577, 583 (E.D.N.Y. 1979)).
12. Acorn v. Cnty. of Nassau, No. CV 05-2301(JFB)(WDW), 2008 WL 708551, at *4 (E.D.N.Y. Mar. 14, 2008); see also In re Subpoena Duces Tecum Served on Off. of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. June 26, 1998) (“Appellant’s primary argument is that the common law deliberative process privilege is not appropriately asserted . . . when a plaintiff’s cause of action turns on the government’s intent. We agree.”), on reh’g in part, 156 F.3d 1279 (D.C. Cir. Oct. 6, 1998).
13. Favors v. Cuomo, 285 F.R.D. 187, 210–13 (E.D.N.Y. 2012) (acknowledging various means through which legislative privilege might be waived) (citation omitted). See also, e.g., Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11 C 5065, 2011 WL 4837508, at *10 (N.D. Ill. Oct. 12, 2011) (asserting that communications between legislators and “outsiders to the legislative process” do not retain privilege); Plain Local Sch. Dist. Bd. of Educ. v. DeWine, 464 F. Supp.3d 915, 921–22 (S.D. Ohio 2020) (holding that legislative privilege does “not bar discovery concerning communications with non-privileged third parties . . . such as constituents or lobbyists”).
14. 68 F.4th 228, 235–36 (5th Cir. May. 17, 2023).
15. Id.
16. See, e.g., Favors, 285 F.R.D. at 212.
17. Id. at 237 (“[L]egislators did not send privileged documents to third parties outside the legislative process; instead they brought third parties into the legislative process. That decision did not waive the privilege.”).
18. Id. at 236.
19. See, e.g., id. at 238–39 (citing Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (addressing whether individual members of the California State Legislature were covered by legislative immunity—not legislative privilege—for actions taken “within the sphere of legislative activity”)).
20. Tenney, 341 U.S. at 373–74, 377 (discussing legislative immunity’s purpose of “enabling [legislators] to execute the functions of their office without fear of prosecutions, civil or criminal” and protecting them from “the cost and inconvenience and distractions of a trial”).
21. See, e.g., id. at 376 (establishing that state legislative immunity for actions taken “within the sphere of legislative activity” is absolute rather than qualified); Favors, 285 F.R.D. at 211–12 (contrasting the more relaxed legislative privilege standard with legislative immunity, which can only be waived explicitly).
22. La Union del Pueblo Entero v. Abbott, 93 F.4th 310, 323 (5th Cir. Feb. 16, 2024).
23. La Union del Pueblo Entero v. Abbott, 2022 WL 1667687, at *6–7 (W.D. Tex. May 25, 2022), rev’d 68 F.4th 228 (5th Cir. 2023).
24. See, e.g., Leah Tulin & Gabriella Sanchez, Texas’s Voter Suppression Law Is On Trial, Brennan Ctr. for Just. (Sept. 14, 2023), https://www.brennancenter.org/our-work/analysis-opinion/texas-voter-suppression-law-trial; Vanessa Williamson & Ellis Chen, Texas voting case demonstrates the need for new preclearance system, Brookings Inst. (Sept. 27, 2023), https://www.brookings.edu/articles/texas-voting-case-demonstrates-the-need-for-new-preclearance-system/.
25. 682 F. Supp.3d 769, 782 (D. Ariz. 2023) (quoting LUPE, 68 F.4th at 236).
26. Id.
27. 70 F.4th 460, 463 (8th Cir. 2023).
28. Turtle Mountain Band of Chippewa Indians v. N.D. Legis. Assembly, 144 S. Ct. 2709 (July 2, 2024).
29. 602 U.S. 1, 33 (2024) (“The circumstantial evidence falls far short of showing that race, not partisan preferences, drove the districting process, and none of the expert reports offered by the Challengers provides any significant support for their position.”).
30. 570 U.S. 529, 556–57 (2013).
31. See, e.g., Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254 (in which the Court struck down Alabama’s state legislative map in response to a racial gerrymandering claim brought by Black plaintiffs).
32. Miller v. Johnson, 515 U.S. 900, 916 (1995).
33. Id.
34. Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 190 (2017).
35. Miller, 515 U.S. at 916.
36. Alexander, 602 U.S. at 70 (Kagan, J., dissenting).
37. Id. at 34–35 (quoting Easley v. Cromartie, 532 U.S. 234, 258 (2001)).
38. Id. at 68–70 (Kagan, J., dissenting).
39. See 581 U.S. 285, 318–20 (rejecting the argument that an alternative map is required to satisfy the racial predominance burden).
40. Alexander, 602 U.S. at 34–35 (quoting Cooper, 581 U.S. at 322) (emphasis added). The majority’s quotations and alterations are deliberately preserved here to demonstrate the piecemeal nature of the Court’s invocation of Cooper.
41. Id. at 35 (quotations omitted).
42. Id. at 10.
43. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977) (listing as relevant to the discriminatory intent inquiry the sequence of events leading up to the legislature’s decision, departures from normal legislative procedure, and legislative history).
44. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
45. See, e.g., State Legislators Propose 300 Anti-LGBTQ Bills as GLAAD Releases Updated Reporter Guide, Resources, GLAAD (Feb. 10, 2023), https://glaad.org/releases/state-legislators-propose-300-anti-lgbtq-bills-glaad-releases-updated-reporter-guide/ (describing the volume and content of anti-LGBTQ bills proposed nationwide in early 2023); Ishena Robinson, Anti-CRT Mania and Book Bans Are the Latest Tactics to Halt Racial Justice, NAACP Legal Def. Fund (last visited Nov. 6, 2024), https://www.naacpldf.org/critical-race-theory-banned-books/ (describing the discriminatory nature of “anti-truth” bills banning books on and the teaching of Black history).