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.