Given that Republican legislators and Gov. Pat McCrory came into office promising greater transparency than was practiced by the Democrats they ousted, you’d think they’d be more than willing to produce supporting documentation for the state’s new voter ID law.
Part of the rationale for that law, after all, was the argument that voter identification just wasn’t transparent enough. But apparently, transparency is a one-way street when it comes to peering behind the legislative curtain. Senate leader Phil Berger, House Speaker Thom Tillis and a group of lawmakers involved in shaping the new voting requirements are trying to block subpoenas that would require them to turn over emails and other documents related to the “rationale, purpose and implementation” of the law. The information is being sought by several voting rights groups, including the League of Women Voters of North Carolina, the American Civil Liberties Union and the NAACP, which are asking the court to intervene. A federal hearing is scheduled for this summer on whether implementation of the new measures should be delayed until a trial takes place. The photo ID requirement, which would take effect in 2016, is the major change in the laws, although early voting and same-day registration are also affected.
Republican lawmakers can rightfully claim there’s a principle of legislative immmunity at stake here that they don’t want to weaken. They argue that immunity should protect them from having to answer in a civil proceeding for the actions they’ve taken in the legislative arena. And in fact, legislative immunity is a legal concept firmly embedded in both state and federal law. However, it’s one thing to protect legislators from legal repercussions relating to the performance of their duties. It’s another to use the immunity shield to withhold information or documentation relating to the justification for a particular law. Also, legislators have in the past complied with court orders to produce documents. During the criminal investigation of former N.C. House Speaker Jim Black, for example, the General Assembly obeyed subpoenas seeking records, including emails.
So there’s precedent on both sides of this issue. But there should be a high bar for lawmakers to clear in claiming they need to keep this type of information from the public. Withholding email communications and other materials germane to the voter ID debate doesn’t serve the cause of transparency, but it does raise concerns about legislative machinations and motivations. The question is, are legislators resisting these requests purely on principle — or is there something they’d rather the public not know about the “rationale, purpose and implementation” of this highly controversial law?