EL PASO, Texas (CN) — A federal judge has ordered Texas Governor Greg Abbott to turn over documents in an ongoing dispute over proposed election maps in Texas — including documents stored online through a Dropbox link.
In a lawsuit that started last year, the League of United Latin American Citizens and other civil rights groups allege that new Texas congressional maps "unlawfully dilute the voting strength of Latinos." With around 4 million new residents in the 2020 census, Texas is the only state set to gain two new congressional seats.
Numerous civil and voting rights groups have joined the suit, which asks for a permanent injunction requiring Texas lawmakers to redraw the maps. So has the U.S. Department of Justice, which argued in a filing in November that the consolidated case raised "important questions" about possible violations of the Voting Rights Act.
This latest order — issued by U.S. District Judge David Guaderrama, an Obama appointee, on Wednesday — marks an escalation in disputes over discovery in the case.
Because redistricting in Texas is done by elected lawmakers — not a nonpartisan panel — those lawmakers have argued they have legislative privilege and should not be required to fully comply with discovery orders. They've filed hundreds of pages detailing what they say is "confidential communications" related to redistricting, including documents from decades ago.
So far, Guaderrama has appeared skeptical of those arguments. In a separate order last month, he ruled that Texas lawmakers had "advanced an overbroad conception" of legislative privilege and needed to turn over more documents.
The “seriousness" of the lawsuit, which involves allegations of “intentional discrimination” against minority voters, warranted such an order, he said.
In his new order on Wednesday, Guaderrama reached similar conclusions about Texas Governor Greg Abbott, who last year called a special legislative session dedicated to redistricting.
Like lawmakers, Abbott had asserted various privileges in an effort to avoid complying with subpoenas. He also said he wasn't sure he could sign into a Dropbox containing redistricting materials.
Again, Guaderrama was unconvinced.
Because Abbott is a governor and not a state representative, he "cannot invoke…legislative privilege" as he has tried to do, Guaderrama wrote. Nor can he invoke the work product doctrine, which products documents prepared for litigation, because calling a special session of the legislature is part of the "ordinary course of business” of a Texas governor.
Guaderrama also tossed other privilege arguments made by the governor — including arguing he was protected by attorney-client privilege.
"The mere fact that an attorney touches a document does not necessarily mean that the attorney-client privilege protects that document," Guaderrama wrote. The documents Abbott was withholding, he noted, contained not just legal but also "strategy" advice.
In a novel argument, Abbott also said he wasn't sure he could access a Dropbox containing redistricting materials. However, as Guaderrama noted, it wasn't clear if he'd even tried to access the online data-storage service.
"Governor Abbott has not only refused to produce documents accessible via the [Dropbox] link, but he has also refused to attempt to access the documents," Guaderrama wrote, citing filings from civil rights groups. Because Texas has "control" over its own "electronically-stored information," Abbott must turn over documents from the Dropbox, Guaderrama ruled.
As the 2022 midterm elections approach, this fight over redistricting is just one of the legal headaches facing Texas officials.
In a separate case, which the Department of Justice has also joined, voting and civil rights groups are also fighting Senate Bill 1, a new election-security law that they say violates the U.S. Constitution, the Voting Rights Act and the Americans with Disabilities Act.
Texas officials say the law is intended to improve "trust and confidence in our elections," but critics argue the law empowers "partisan poll watchers" and infringes on "protected political speech" with “vague criminal penalties." They've presented disabled Texas voters who they say could be harmed if the law remains in place.
A separate federal judge — Xavier Rodriguez, a George W. Bush appointee — has consistently declined to throw out that case. In a ruling last week, he found that the new law could "clearly" have discriminatory effects on voting rights.
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