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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS Plaintiff, vs. ERIC H. HOLDER, JR., in his official Capacity as Attorney General of the United States Defendant.

Case No. 1:12-cv-00128 RMC-DST-RLW

TEXAS RESPONSE TO MOTION TO COMPEL The United States continues to suggest that a States claim of evidentiary privilege can never prevail in a section 5 preclearance proceeding. See Memorandum of Points and Authorities in Support of the Attorney Generals Motion to Compel (Doc. 93.1) (DOJ Brief) at 2 (The intensely fact-driven inquiry required under Section 5 and the gravity of the interests at stake demand thorough consideration of all the available evidence.) (emphasis added). But the Supreme Courts decision in Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), requires an approach that is far more solicitous of the States interest in preserving the confidential communications of its elected officials. Requiring Texas to obtain preclearance from the Attorney General or from a federal court before it can implement a duly enacted law is already an affront to state

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sovereigntyespecially when the Supreme Court has already held that photo-identification requirements are constitutional and nondiscriminatory. See Crawford v. Marion County Election Bd., 553 U.S. 181 (2008). A ruling that conditions Texass request for preclearance on the disclosure of every confidential communication related to SB 14 would push section 5 beyond any conceivable post-Northwest Austin boundary on federal power. The

States objections are grounded in well-established evidentiary privileges, and the Court should deny the motion to compel. I. Texas Has Properly Asserted the Deliberative-Process Privilege. Texas has asserted the deliberative-process privilege over 89 documents from the office of the Governor. The deliberative-process privilege covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Dept of Interior v. Klamath Water Users

Protective Assn, 532 U.S. 1, 8 (2001) (citation and internal quotation marks omitted). As the Supreme Court has explained: The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions . . . by protecting open and frank discussion among those who make them within the Government. Id. at 8-9 (citation and internal quotation marks omitted). DOJ does not deny that the disputed documents fall within the description of the privilege in Klamath Water Users, nor does DOJ deny that

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these documents qualify as predecisional and deliberative under the deliberative-process rulings of the D.C. Circuit. See DOJ Brief at 6; see also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Senate of Puerto Rico v. U.S. Dept of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); cf. Declaration (Exh. 5). But DOJ asserts that the deliberative-process privilege does not apply if the cause of action is directed at the governments intent. DOJ Brief at 7 (quoting Elkins v. District of Columbia, 250 F.R.D. 20, 27 (D.D.C. 2008)). On this view, the deliberate-process privilege can never be invoked when a state law is challenged on the ground that it was enacted with an unlawful purpose. As DOJ sees matters, a litigants mere allegation of improper

purpose allows him to rummage through all of the state executives confidential communications related to his decision to sign or veto the law. DOJ notes that In re Subpoena Duces Tecum Served on the Office of the Comptroller, 145 F.3d 1422 (D.C. Cir. 1998), states that the deliberativeprocess privilege is not appropriately asserted . . . when a plaintiff's cause of action turns on the government's intent, and contends that this ruling shuts down any possible claim of deliberate-process privilege in section 5 preclearance proceedings. Id. at 1424. But In re Subpoena Duces Tecum does not extend as far as DOJ claims. First, the D.C. Circuit clarified its holding on petition for rehearing, and insisted that the deliberative-process privilege may still be asserted when a litigant challenges agency action as arbitrary and capricious under

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the APA.

See In re Subpoena Duces Tecum Served on the Office of the As the D.C. Circuit

Comptroller, 156 F.3d 1279, 1280 (D.C. Cir. 1998). explained:

When a party challenges agency action as arbitrary and capricious the reasonableness of the agency's action is judged in accordance with its stated reasons. Citizens to Preserve Overton Park, Inc. v. Volpe, 410 U.S. 402 (1971). Agency deliberations not part of the record are deemed immaterial. See Camp v. Pitts, 411 U.S. 138 (1973); United States v. Morgan, 313 U.S. 409 (1941). That is because the actual subjective motivation of agency decisionmakers is immaterial as a matter of lawunless there is a showing of bad faith or improper behavior. See Saratoga Dev. Corp. v. United States, 21 F.3d 445, 457-58 (D.C. Cir. 1994); Overton Park, 401 U.S. at 420. (Where there is no administrative record to review, the party challenging the agency action may inquire into the decisionmaking process in order to create such a record, but it does not necessarily follow that the party can also probe subjective motivations.) Whether or not under those circumstances it is accurate to refer to the agency's decisionmaking process as collateral, it is clear that the ordinary APA cause of action does not directly call into question the agencys subjective intent. And our holding that the deliberative process privilege is unavailable is limited to those circumstances in which the cause of action is directed at the agency's subjective motivation. Id. at 127980. DOJ does not cite the D.C. Circuits opinion on petition for rehearing, but it represents a significant qualification on the language that DOJ quotes from the earlier opinion. Only when a cause of action is directed at the subjective motivations of an agency will an assertion of deliberativeprocess privilege be precluded. But section 5 does not require a State to prove the subjective motivation of the governor who signed the law. The States burden is to

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demonstrate only that the qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color. 42 U.S.C. 1973c(a) (emphasis added). Section 5 looks to the purpose of the lawnot to the

subjective motivations of the individual legislators who voted for the law or the governor who signed it. And the purpose of the law is to be determined by publicly available evidence (such as committee hearings and floor debate) indicating what the statute is designed to accomplish. A Title VII

employment-discrimination suit brought against a government agency is a cause of action directed at the subjective motivations of government actors; a section 5 preclearance proceeding is not. Otherwise a State would be unable to carry its burden of proof under section 5 without demonstrating every single legislators personal reasons for supporting the law. And DOJ would be unable to administratively preclear any States change in voting laws without demanding this type of thought-process evidence from all members of the legislature, as well as the governor who signed the law. Yet DOJ

routinely preclears changes in voting laws without demanding evidence of the mental states of public officials who voted for or signed off on the new law. Second, even if this Court believed that the opinions in In re Subpoena Duces Tecum might be construed broadly to block Texas from asserting the deliberative-process privilege in this case, the Supreme Courts opinion in Northwest Austin precludes such a construction of these D.C. Circuit rulings.

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Northwest Austin recognized that section 5 imposes substantial federalism costs and expressed serious misgivings about the constitutionality of 5. 129 S.Ct. at 2511. But rather than invalidate section 5 on its face, the

Northwest Austin Court instructed the lower federal courts to interpret and apply the section 5 preclearance regime in a manner that mitigates its constitutionally questionable intrusions into state sovereigntyeven if that requires courts to bend the statutory language of section 5. Id. at 2514. It cannot be denied that a holding that renders the deliberative-process privilege categorically inapplicable to section 5 preclearance proceedings will aggravate section 5s intrusions on state prerogatives. It is bad enough that Texas has been forbidden to implement SB 14 for almost a yeareven though SB 14 is clearly constitutional under the Supreme Courts ruling in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), and even though no court has found that SB 14 conflicts with any provision of federal law or is likely to violate federal law. It is far worse for Texas to be told that it cannot have SB 14 considered for preclearance unless the governors office discloses every confidential communication related to that lawcommunications that would ordinarily be shielded from disclosure in litigation under the deliberative-process privilege. Throughout its brief, DOJ expresses dismay at the notion that a preclearance decision would rest solely on the publicly available evidence of a statutes purpose. See, e.g., DOJ Brief at 5. But courts typically resolve unconstitutional purpose challenges to state

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legislation by relying exclusively on the public record without demanding that legislators or executive-branch officials disclose internal communications or memoranda. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n.15 (1981); Loving v. Virginia, 388 U.S. 1, 11 (1967), Hunter v. Underwood, 471 U.S. 222 (1985); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993); Larson v. Valente, 456 U.S. 228, 25455 (1982); Edwards v. Aguillard, 482 U.S. 578 (1987); McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). And this is the only way that section 5s preclearance regime can be saved from a declaration of unconstitutionality. It cannot be that the disclosures of confidential communications in section 5 proceedings extend beyond the disclosures required in conventional cases, in which a plaintiff sues and alleges that a law was enacted with an unconstitutional motivation or purpose. DOJ also suggests that if the deliberative-process privilege applies in this case, it should yield to the federal governments showing of need. See DOJ Brief at 6, 9; see also In re Sealed Case, 121 F.3d at 737 (noting that the deliberative-process privilege is a qualified privilege that can be overcome by a sufficient showing of need.). DOJs analysis on this point is cursory; it offers only a conclusory assertion that the qualified privilege would yield to the documents critical relevance, the absence of other candid evidence that the State is willing to produce without protracted litigation, the seriousness

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of the instant litigation, and the role of the federal government as statutory defendant. See DOJ Brief at 9. DOJ does not offer any theory that

distinguishes a sufficient showing of need from an insufficient one, and its reference to the seriousness of the instant litigation implies that it envisions no scenario in which a State could successfully assert the deliberative-process privilege in section 5 preclearance proceedings. See DOJ Brief at 9; see also id. at 2 (The intensely fact-driven inquiry required under Section 5 and the gravity of the interests at stake demand thorough consideration of all the available evidence.) (citation and internal quotation marks omitted). But this Court has already rejected DOJs suggestion that every section 5 preclearance proceeding qualifies as an extraordinary instance that categorically overrides state legislative privilege. See Order (Doc. 84) at 23. It should similarly reject DOJs efforts to eliminate the deliberate-process privilege from all section 5 preclearance proceedings. II. Northwest Austin Compels This Court to Construe State Legislative Privilege Broadly in Section 5 Preclearance Proceedings. As this Court recognized in its Order of April 20, 2012, the proper scope of the state legislative privilege remain[s] somewhat uncertain. Order (Doc. 84) at 2. Given this uncertainty, it is prudent for the State to preserve the privilege by appropriately asserting itand if this Court compels discovery the State will proceed accordingly. But if the State

voluntarily answers these discovery requests, then the defendants will claim that the State waived the privilege. In addition, the Supreme Courts opinion

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in Northwest Austin requires courts to minimize the intrusions on state sovereignty caused by section 5s constitutionally dubious preclearance regime. This requires courts to apply the state legislative privilege as

broadly as possible in section 5 preclearance proceedings. States should not have to disclose their legislators confidential communications as a condition for courts to consider preclearing their laws. DOJ contends that the state legislative privilege should not extend to communications between a legislator and state executive-branch officials, but DOJ overstates the extent to which existing judicial authority supports that proposition. DOJ, for example, cites Hutchinson v. Proxmire, 443 U.S. 111 (1979), to support its contention that the state legislative privilege cannot protect documents held by state executive agencies. But Hutchison involves only the Speech and Debate Clauses immunity from prosecution or civil liability, rather than the evidentiary privilege associated with the Speech and Debate Clause. Hutchinson says that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. Id. at 127 (emphasis added). DOJ quotes the Supreme Court out of context when it asserts that the Speech or Debate privilege does not extend to statements outside the Chamber. DOJ Brief at 10 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979)). The Hutchison opinion was talking

about liability from suit for statements made outside the chamber; it has

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nothing to say about the discoverability of documents held outside the chamber. Indeed, none of the cases that DOJ cites explicitly considers and rejects the notion that confidential communications between a legislator and agency officials related to pending legislation are privileged from discovery. DOJ notes that it is unaware of any cases in which the Speech or Debate privilege or a state legislative privilege has been invoked to protect documents outside the possession of a legislative official, let alone upheld. DOJ Brief at 12. But neither is there any case (of which we are aware) that holds the opposite, and given this absence of controlling authority the constitutional-avoidance mandate of Northwest Austin comes into play. Declaring that the States can win judicial preclearance of a law only if they disclose every confidential communication between a state legislator and agency officials related to that law will aggravate the intrusions on state sovereignty caused by a section 5 regime that already pushes the constitutional boundaries of federal power. After Northwest Austin, courts must take every step to alleviate these constitutionally dubious burdens on States that fall within section 5s outdated coverage formula. Even if this Court is unwilling to extend the rubric of state legislative privilege to cover these confidential communications between legislators and agency officials, or even if the affected legislator is willing to waive the privilege, this Court should nevertheless block DOJs efforts to obtain these

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communications under Rule 26(b)(2)(C)(iii).

The protections from unduly

burdensome discovery in Rule 26(b)(2)(C) do not require a finding of evidentiary privilege, but allow courts to limit discovery whenever the burden or expense of the proposed discovery outweighs its likely benefit. FED. R. CIV. P. 26(b)(2)(C)(iii). Here, the burdens imposed on Texas are of constitutional significance, as they force Texas to disclose confidential communications as a condition for allowing one of its duly enacted laws to go into effect. DOJ describes the States interest in avoiding these compelled disclosures as a weak comity interest, but that dismissive characterization cannot be squared with Northwest Austin (a decision that DOJ nowhere cites or acknowledges in its brief). This Court cannot so blithely disregard

Northwest Austin in weighing the competing interests in these discovery disputes. III. The Communications Between the Texas Legislative Council and the Individual Legislators Are Subject to the Attorney-Client Privilege. The Texas Legislative Council is a non-partisan agency of the legislative branch of state government. TEX. GOVT CODE 323.001(a). Its membership comprises the Lieutenant Governor, the Speaker of the State House of Representatives, the Chair of the State House Administration Committee, six senators and five House members. Id. 323.001(b). Its

statutory duties include assist[ing] the legislature in drafting proposed legislation. Id. 323.006(a)(7). The Council also may perform other

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services or functions for either house of the legislature or other legislative agencies upon agreement with the house or agency. Id. 323.006(b). The Texas Legislative Council employs approximately 50 attorneys. See Declaration of Jeff Archer (Exh. 1) (Archer Declaration) 3. By statute, [c]ommunications . . . between a member of the legislature or the lieutenant governor or an assistant or employee of the council that relate to a request by the official for information, advice, or opinions from an assistant or employee of the council are confidential. TEX. GOVT CODE 323.017 (emphasis added). In addition [i]nformation, advice, and opinions given privately by an assistant or employee of the council to a member of the legislature, or the lieutenant governor, acting in the persons official capacity, are confidential. Id. (emphasis added). Council employees have no authority to waive the

confidentiality protections prescribed by Texas statute. But the member or lieutenant governor may choose to disclose all or a part of the communications, information, advice, or opinions to which this section applies, and such a disclosure does not violate the law of this state. Id. The Council relies on confidentiality to discharge its statutory responsibilities as a department of the Texas Legislature. See Archer

Declaration 7; Declaration of Senator Tommy Williams (Exh. 2) (Williams Declaration) 5. Council Legislators will not seek its assistance if they believe could conceivably become public in court

communications

proceedings or through Public Information Act requests.

Williams

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Declaration 5.

This need for confidentiality, when combined with

Northwest Austins admonition to minimize section 5s intrusions on state sovereignty, should lead this Court to recognize an evidentiary privilege for these confidential communications under FED. R. EVID. 501. DOJ denies that any privilege can attach to the attorney-client communications involving legislators and Council employees, and specifically disclaims the possibility of an attorney-client relationship between Council attorneys and legislators. But an attorney-client privilege will apply when: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Cobell v. Norton, 226 F.R.D. 67, 87 (D.D.C. 2005) (quoting Alexander v. FBI, 193 F.R.D. 1, 4 (D.D.C. 2000)); Alexander v. FBI, 192 F.R.D. 42, 45 n. 2 (D.D.C. 2000); Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984))). The relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and . . . (a) the lawyer manifests to the person consent to do so . . . . RESTATEMENT (THIRD)
OF THE

LAW GOVERNING LAWYERS 14 & cmt. c (2000) (cited in discussion by

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Goldstein v. SEC, 451 F.3d 873, 878 (D.C. Cir. 2006)). The clients subjective beliefs play an integral role in ascertaining whether an attorney-client relationship exists. See, e.g., In re Lieber, 442 A.2d 153, 156 (D.C. 1982). Legislators who seek assistance from Legislative Council attorneys in drafting legislation manifest the intent that Council attorneys provide legal services. See, e.g., Williams Declaration 3.1 Legislative Council attorneys are not mere scriveners: Legislative drafting is a lawyers job, not because lawyers have any exceptional facility with words but because mastery of existing law is called for at every stage in the performance of a legislative drafting assignment. Harry W. Jones, Bill-Drafting Services in Congress and the State Legislatures, 65 HARV. L. REV. 441, 441-42 (1952). Drafting legal opinions and legislation parallels the drafting of any legal document and unquestionably represents the practice of law. See TEX. GOVT CODE 81.101(a) (practice of law means a service including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge the legal effect of which under the facts and conclusions involved must be carefully determined.); cf. In re Devaney, 870 A.2d 53, 57 (D.C. 2005) (drafting codicil is a legal service); In re Amalgamated Dev. Co., 375 A.2d 494, 499 (D.C. 1977) (drafting patent application is a legal service).

See also Declaration of Representative Dennis Bonnen (Exh. 3); Declaration of Representative David Simpson (Exh. 4); Declaration of Representative Patricia Harless (Exh. 6). The State of Texas is still awaiting declarations from several individual legislators. If requested by the Court, Texas will supplement the record with additional declarations to establish the privilege as to each legislator.

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By establishing a legal division within the Legislative Council to draft legislation, Texas has followed the example of many states and the federal government. See Jones, Bill-Drafting Services, supra, at 451 (The present writers preference is for a separate legislative counsels office, directly responsible to the legislature, like the congressional office and the offices in California, Massachusetts, New Jersey, New York and a few other states.). The legal character of the work that these offices perform is beyond serious dispute. See, e.g., Reed Dickerson, Professionalizing Legislative Drafting: A Realistic Goal?, 60 A.B.A. J. 562, 563-64 (1974); Charles B. Nutting, The Professional Responsibility of Draftsmen, 47 A.B.A. J. 1014, 1014 (1961). For instance, the Office of Legislative Counsel for the United States House of Representatives asserts that its attorneys provide drafting and other legal services, and all communications with the Office are confidential and subject to the attorney-client relationship.2 It is no accident that legislators direct their bill drafting requests to Council attorneys rather than nonattorney Council employees. See, e.g., Williams Declaration 3. legislators making these requests seek legal advice. The

See id.; Archer

Declaration 3. And by performing the drafting assignments that legislators request of them, Council attorneys manifest consent to provide the requested legal services. See Archer Declaration 3; Williams Declaration 3.

Office of Legislative Counsel for the United States House of Representatives, About Us, http://www.house.gov/legcoun/about.shtml (last visited Apr. 30, 2012).
2

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The protections available under Texas statute also inform the subjective beliefs of individual legislators regarding confidentiality. Texas legislators believe that their communications with Legislative Council will never become public. Williams Declaration 3. This belief is reasonable because that protection is explicit in the Texas Government Code. TEX. GOVT CODE 323.017 speaks to whether Texas legislators make their

communications confidentiallythat is, without the presence of strangers. Cobell, 226 F.R.D. at 87; see also Convertino v. U.S. Dept of Justice, 674 F. Supp. 2d 97, 110 (D.D.C. 2009) (In order for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable.). The relationship between legislators and Council attorneys is one in which the legislators [are] or s[eek] to become [clients] of Legislative Council attorneys. Cf. Cobell, 226 F.R.D. at 87. This is so because legislators and Council attorneys manifest an intent to create an attorney-client relationship through their interactions. See RESTATEMENT (THIRD)
OF THE

LAW GOVERNING LAWYERS 14 & cmt. c (2000); Archer Declaration 5; Declaration of Senator Tommy Williams 3. But the communications between legislators and Council attorneys also satisfy the remaining elements of the attorney-client privilege. Council attorneys are members of the bar. Archer Declaration 3. They act as lawyers in connection with many of the communications at issue (bill files and legal opinions). Archer

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Declaration 9.

The attorney-client communications relate to facts

communicated to the Council attorneys by legislators for the purpose of securing primarily an opinion of law or legal services. Id. Legislators do not make the communications for the purpose of committing a crime or tort. Archer Declaration 6; Williams Declaration 4. They have also claimed all applicable privileges and have not waived them. Archer Declaration 10; Williams Declaration 2, 8. Communications to a legislative agency, such as the Council, also constitute quintessential legislative acts protected by the legislative privilege. See Gravel v. United States, 408 U.S. 606, 615-16 (1972); Jewish War Veterans v. Gates, 506 F. Supp. 2d 30, 53 (D.D.C. 2007) (What, then, are the legislative acts protected by the Speech or Debate Clause? [It] at the least includes delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing material at Committee hearings. . . . [O]ther acts . . . are indisputably legislative in nature, such as the actual drafting of legislation or negotiating with other Members over it.) (internal citations omitted); Archer Declaration 4; Williams Declaration 7. Attorney involvement is not necessary for the legislative privilege to

attach. See Gravel, 408 U.S. at 616-17 (1972) (privilege extends to aides).

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The Legislative Council exists for no reason other than to assist legislators in discharging the duties of their elected offices. Declaration 3, 6. Archer

Legislative Council communications made for the

purpose of advancing legislative acts are therefore protected from disclosure by the legislative privilege. This is true for all documents reflecting

communications between legislators and Legislative Council employees even if those employees are not attorneys. Archer Declaration 4. The bill files that make up the bulk of Council documents responsive to DOJs discovery requests result directly from the confidences in the attorneyclient and legislative relationships. Without these confidences, the bill files would not exist, and legislators would rely solely on their own staff to draft legislation. After Northwest Austin, this Court cannot condition the States request for preclearance on a discovery ruling that disrupts the trusted relationship between state legislators and the Texas Legislative Council. DOJ relies heavily on a vacated district-court panel opinion from the Texas redistricting litigation, which rejected a claim of an attorney-client relationship between state legislators and the Texas Legislative Council. See Texas v. United States, 279 F.R.D. 24 (D.D.C. 2012), vacated, No. 1:11-cv01303 (Doc. 136) (D.D.C. Jan. 6. 2012). District-court panel decisions do not represent binding precedent in this court, so the previous panels analysis should be followed only to the extent it is persuasive. Here is the relevant discussion from the earlier panel opinion:

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Texas declares that the Texas Legislative Council has an attorney-client relationship with all members of the Legislature. Texas Resp. at 8. It seeks to protect three memoranda prepared by Attorney David Hanna which contain[ed] legal analysis of the proposed redistricting plans which clearly reflect material, mental impressions, opinion, conclusions, strategy, and analyses developed in anticipation of possible legal disputes. Id. at 7. The argument reflects what appears to be customary and habitual thinking that assumes a legal privilege between the Legislature and the legal division of the Council. The Court can find none. The Texas Government Code expresses no such relationship or expectation. Texas does not explain why it agrees that the three map-drawers could not have an attorney-client relationship with the entire Legislature but the lawyers at the Texas Legislative Council do have an attorney-client relationship with every one of the individual members of the State House and Senate. Without the threshold evidence of an attorney-client relationship, In re Sealed Case, 737 F.2d at 9899, there can be no privilege. Texas offers no evidence to satisfy the elements of an attorney-client relationship between the Council and the Legislature. 279 F.R.D. at 34 (footnote omitted). following remarks: While Texas argues that the statute provides strong evidence that the legislators believed their communications with [the Texas Legislative Council] to be protected by the attorney-client and legislative privileges, Texas Resp. at 89, the statute says no such thing and the habits of the years do not transform confidentiality to avoid public inquiry into attorney-client privilege when demanded as part of litigation. Id. at 35 n.14. We respectfully submit that these excerpts from the vacated panel opinion from the Texas redistricting litigation are not persuasive on this point, and even if they were persuasive, they would not control here. First, the panel opinions analysis is conclusory; it never explains why the affidavits In a footnote, the Court added the

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that Texas offered failed to provide threshold evidence of an attorney-client relationship. Although the panel opinion notes that the Texas Government Code expresses no such [privileged] relationship or expectation, the existence or non-existence of an evidentiary privilege under state law does not control whether a privilege should be recognized as a matter of federal common law under Fed. R. Evid. 501. Id. at 34. Second, the panel opinion does not consider or discuss whether Northwest Austin requires an approach that is more solicitous of the States interest in preserving the confidentiality of communications between the legislators. Finally, the States perceived

failure to provide threshold evidence of an attorney-client relationship in the redistricting litigation does not preclude the State from attempting to make the necessary showing in this litigation, and the State has done so by its thorough description of the relationship between the state legislators and the Texas Legislative Council. CONCLUSION The motion to compel should be denied.

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Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General ADAM W. ASTON ARTHUR C. DANDREA Assistant Solicitors General 209 West 14th Street P.O. Box 12548 Austin, Texas 70711-2548 (512) 936-1695

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CERTIFICATE OF SERVICE I certify that on April 30, 2012, I served the following via CM/ECF or email on the following counsel of record: Elizabeth Stewart Westfall, David J. Freeman, Bruce I. Gear U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: elizabeth.westfall@usdoj.gov Email: daniel.freeman@usdoj.gov Email: bruce.gear@usdoj.gov Jennifer Lynn Maranzano U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305-0185 Email: jennifer.maranzano@usdoj.gov Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: chad@brazilanddunn.com J. GERALD HEBERT 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 Email: hebert@voterlaw.com Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon JOHN K. TANNER 3743 Military Road, NW Washington, DC 20015 202-503-7696 Email: john.k.tanner@gmail.com 22

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MOFFATT LAUGHLIN McDONALD NANCY GBANA ABUDU KATIE OCONNOR American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, NW Suite 1440 Atlanta, Georgia 30303-1227 (404) 523-2721/(404) 653-0331 (fax) Email: lmcdonald@aclu.org Email: nabudu@aclu.org Email: koconnor@aclu.org LISA GRAYBILL REBECCA ROBERTSON American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas 77004 (713) 942-8146 Email: lgraybill@aclutx.org Email: rrobertson@aclutx.org PENDA HAIR KUMIKI GIBSON Advancement Project 1220 L Street, NW, Suite 850 Washington, DC 20005 (202) 728-9557 Email: phair@advancementproject.org Email: kgibson@advancementproject.org Counsel for Texas Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Reverend Peter Johnson, Reverend Ronald Wright and Donald Wright Mark A. Posner LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 307-1388 Email: mposner@lawyerscommittee.org Ezra D. Rosenberg Pro Hac Vice Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 23

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Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: ezra.rosenberg@dechert.com Email: michelle.yeary@dechert.com Ian Vandewalker Pro Hac Vice Myrna Perez Wendy Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 Tel: (646) 292-8362 Fax: (212) 463-7308 Email: ian.vandewalker@nyu.edu Email: myrna.perez@nyu.edu Email: wendy.weiser@nyu.edu Myrna Perez Pro Hac Vice Ian Vandewalker Pro Hac Vice THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 (646) 292-8329 / (212)463-7308 (fax) Email: myrna.perez@nyu.edu Email: ian.vandewalker@nyu.edu Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland 21215-3297 (410) 580-5120 (phone) Email: vgoode@naacpnet.org Robert S. Notzon The Law Office of Robert Notzon 1507NuecesSt. Austin, Texas 78701 (512) 474.7563 (phone) Email: Robert@notzonlaw.com Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr.

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San Antonio, Texas 98209 (210) 392-2856 (phone) Email: garzapalm@aol.com Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives
Pro Hac Vice Ryan Haygood Natasha M. Korgaonkar Leah C. Aden Debo P. Adegbile Dale E. Ho NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 / (212) 226-7592 (fax) Email: rhaygood@naacpldf.org Email: nkorgaonkar@naacpldf.org Email: laden@naacpldf.org Email: dho@naacpldf.org Email: dadegbile@naacpldf.org Email: eboddie@naacpldf.org

FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Douglas H. Flaum Michael B. de Leeuw One New York Plaza New York, New York 10004-1980 (212) 859-8000 Email: douglas.flaum@friedfrank.com
Email: michael.deleeuw@friedfrank.com

Email: adam.harris@friedfrank.com Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams Nina Perales MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 / 210-224-5382 (fax) Email: nperales@maldef.org

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Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General of Texas

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