The Justice Department is objecting to Texas' voter ID law under Section 5 of the Voting Rights Act, a statute which requires states with a history of discrimination to have changes to their voting laws precleared by federal officials. Texas is arguing they shouldn't have to turn over material about their deliberations even though the state has the burden of proving the law doesn't have a discriminatory purpose or effect.
"These discovery requests represent an unwarranted federal intrusion into the operations of the Texas Legislature, and threaten to push section 5's already-questionable incursions on state prerogatives past the constitutional breaking point," Texas argued.
DOJ countered last week that testimony of legislators and staff "typically provides crucial evidence bearing on the central findings that courts must make in Section 5 declaratory judgment cases."
Samuel Bagenstos, a former official in the Justice Department's Civil Rights Division, told TPM that while states have tried to avoid turning over their deliberations before but the argument hasn't been successful.
"It's not the first time I've ever seen anyone make this argument, but it's not a winning argument," Bagenstos said. "If a court were to accept that argument, it would totally undermine the way the statute is supposed to work. How can you look at intention without asking them questions?"
Texas has been using the suit over their voter ID law to launch an attack on Section 5 of the Voting Rights Act, which the state maintains is unconstitutional. DOJ's analysis of two sets of data provided by the state (Texas wouldn't say which set was more accurate) found that Hispanic registered voters in Texas were either 46.5 percent or 120 percent more likely than average voter to lack a form of photo ID.
Texas likely has good reason to want to keep their internal communications on the voter ID law under wraps: emails uncovered in the course of a suit over Texas redistricting maps showed that members of Congress tried to dilute the impact of Hispanic voters by spreading them out between their districts.
"I would think that the fact that embarrassing and problematic information came out in the Texas redistricting case... would make them want to keep embarrassing info out," Bagenstos said.