FOR THE DISTRICT OF COLUMBIA STATE OF …moritzlaw.osu.edu/electionlaw/litigation/documents/...IN...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendant. ERIC KENNIE, et al., Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors, TEXAS LEGISLATIVE BLACK CAUCUS, et al., Defendant-Intervenors, VICTORIA RODRIGUEZ, et al., Defendant-Intervenors.

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CASE NO. 1:12-CV-00128 (RMC-DST-RLW) Three-Judge Court

DEFENDANT ERIC H. HOLDER’S MOTION TO COMPEL

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Defendant Eric H. Holder

(“Attorney General”) respectfully moves for an order compelling Plaintiff State of Texas to

Case 1:12-cv-00128-RMC-DST-RLW Document 166 Filed 06/05/12 of 5

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produce Texas Lieutenant Governor David Dewhurst for deposition pursuant to the Attorney

General’s notice of deposition. A memorandum in support of the Attorney General’s motion is

attached.

Date: June 5, 2012 Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

/s/ Risa Berkower T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO RISA BERKOWER DANIEL J. FREEMAN Attorneys Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: 1-800-253-3931 Email: [email protected]


CERTIFICATION OF COUNSEL

Pursuant to Rule 26(c)(1), undersigned counsel of record for the Attorney General hereby

certifies that counsel for the Attorney General conferred in good faith with counsel for the State

of Texas in an effort to resolve this discovery dispute without a contested motion. As that

conference did not resolve the dispute, this motion is necessary.

/s/ Risa Berkower Risa Berkower

U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530


CERTIFICATE OF SERVICE

I hereby certify that on June 5, 2012, I served a true and correct copy of the foregoing via the Court’s ECF system on the following counsel of record:

Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas [email protected] [email protected] [email protected] [email protected] Counsel for Plaintiff Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson [email protected] [email protected] [email protected] Counsel for Texas League of Young Voters Intervenors

J. Gerald Hebert [email protected] Chad W. Dunn Brazil & Dunn [email protected] Counsel for Kennie Intervenors Jon M. Greenbaum Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] [email protected] Ezra David Rosenberg Michelle Hart Yeary Dechert LLP [email protected] [email protected] Robert Stephen Notzon [email protected] Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates [email protected] Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice [email protected] [email protected] [email protected] Counsel for NAACP Intervenors


John Tanner [email protected] Nancy G. Abudu M. Laughlin McDonald Katie O’Connor Arthur B. Spitzer American Civil Liberties Union [email protected] [email protected] [email protected] [email protected] Counsel Texas Legislative Black Caucus Intervenors

Nina Perales Amy Pederson Mexican American Legal Defense & Educational Fund, Inc. [email protected] [email protected] Counsel for Rodriguez Intervenors /s/ Risa Berkower RISA BERKOWER U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]



STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendant. ERIC KENNIE, et al., Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors. TEXAS LEGISLATIVE BLACK CAUCUS, et al., Defendant-Intervenors, VICTORIA RODRIGUEZ, et al., Defendant-Intervenors.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

THE ATTORNEY GENERAL’S MOTION TO COMPEL THE DEPOSITION OF LIEUTENANT GOVERNOR DAVID DEWHURST

Defendant Eric H. Holder, Jr. (“Attorney General”) seeks to compel deposition testimony

from Texas Lieutenant Governor David Dewhurst (“Lieutenant Governor” or “Mr. Dewhurst”)

Case 1:12-cv-00128-RMC-DST-RLW Document 166-1 Filed 06/05/12 Page 1 of 15

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concerning the State of Texas’s (“Texas” or “the State”) claim that Texas’s photographic voter

identification law, Senate Bill 14 (2011) (“SB 14”), “neither has the purpose nor will have the

effect of denying or abridging the right to vote on account of race, color,” or language minority

status in violation of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. The Attorney

General has noticed Mr. Dewhurst’s deposition for June 8, 2012, and in response to such notice,

Texas indicated in an advisory to the Court that it will not produce him absent a subpoena.1

Advisory to the Court, May 21, 2012, ECF No. 131. Only now, after deposing numerous Texas

legislators during the weeks of May 14 and May 29 and three of Lieutenant Governor top aides2

As explained below, the full adjudication of Texas’s claim seeking judicial preclearance

under Section 5 requires this testimony because the Lieutenant Governor possesses unique

knowledge about the procedures employed under the Senate Rules to consider SB 14, the

development of SB 14’s highly restrictive identification requirements, and the legislative purpose

of SB 14. Mr. Dewhurst was also personally involved with the substantive development of SB

14 and predecessor legislation. Under well-settled precedent, Mr. Dewhurst’s possession of

personal knowledge on these highly relevant topics requires him to sit for a properly noticed

deposition. Because the necessity of Mr. Dewhurst’s testimony became evident only after the

May 29 and 30 depositions, the Attorney General respectfully requests that the Court grant leave

for the Attorney General to file this motion to compel out of time. Order, May 7, 2012, ECF No.

on May 29 and 30, 2012, has the need for the testimony of Lieutenant Governor Dewhurst

himself has become clear.

1 The Attorney General’s notice of the deposition was proper since Mr. Dewhurst is a party. Fed. R. Civ. P. 31(a)(1); see Letter from Patrick K. Sweeten to the Court, May 25, 2012 (identifying Mr. Dewhurst as a Texas Senate officer entitled to assert state legislative privilege), attached as Ex. 4. Thus, a subpoena is not required. 2The Attorney General deposed Mr. Dewhurst’s deputy chief of staff, Julia Rathgeber, and his former deputy general counsel, Bryan Hebert, on May 29, 2012 and Mr. Dewhurst’s chief of staff, Blaine Brunson, on May 30.


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107. Further, given that fact discovery closes on June 15, 2012, the Attorney General

respectfully requests an expedited briefing schedule for this motion.

I. PROCEDURAL BACKGROUND

On May 1, 2012, the Attorney General advised Texas by letter that he might seek to

depose several witnesses, including Lieutenant Governor Dewhurst, and requested that Texas

indicate whether it would accept notice of a deposition for those witnesses. Letter from Jennifer

Maranzano, U.S. Department of Justice Attorney to Matthew Frederick, Texas Assistant

Attorney General, May 1, 2012, attached as Ex. 1.

During a May 3, 2012 status conference with the Court, the Court asked Texas to indicate

which witnesses on the Attorney General’s potential witness list it would produce pursuant to a

notice of deposition, and which witnesses it would not produce absent a subpoena. Texas

represented to the Court that a number of witnesses would appear pursuant to notices of

deposition, but that it would not produce the Lieutenant Governor pursuant to a notice on the

ground that he is a high-ranking official exempt from testifying. Status Conf. Tr. 89-92, May 3,

2012.

On May 7, 2012, the Court ordered that Texas certify it would not require the service of a

subpoena to produce any witnesses (or documents in the possession of a witness) from current

state legislators or their staff, the Texas Legislative Council, the Department of Public Safety, the

staff of the Secretary of State, the staff of the Lieutenant Governor, or the staff of the Governor,

but did not order such certification with regard to the Lieutenant Governor himself. Order at 5,

May 7, 2012, ECF No. 107.

On May 18, 2012, the Attorney General served Texas with a notice of deposition for Mr.

Dewhurst. Notice of Deposition, May 18, 2012, attached as Ex. 2. In response, counsel for


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Texas informed the Attorney General that it would not accept a notice in lieu of a “properly

issued subpoena by the appropriate Court,” even though Mr. Dewhurst is a party to this action.

See E-mail from Patrick Sweeten to Elizabeth Westfall, May 19, 2012 (refusing to accept notice

of deposition), attached as Ex. 3; Letter from Patrick K. Sweeten to the Court, May 25, 2012

(identifying Mr. Dewhurst as a Texas Senate officer entitled to assert state legislative privilege),

attached as Ex. 4. Still, Texas did not move for a protective order. Instead, on May 21, 2012,

Texas filed an advisory informing the Court that it would insist upon service of a subpoena on

Mr. Dewhurst and, without elaboration, characterized the notice of Mr. Dewhurst’s deposition as

defective. Advisory to the Court, May 21, 2012, ECF No. 131. Texas’s advisory cited no case

law for its assertion that the Attorney General was required to serve both a notice of deposition

and a subpoena on Mr. Dewhurst and sought no relief from the Court concerning the notice. The

advisory also does not contest the relevance of Mr. Dewhurst’s testimony. The Attorney General

has not withdrawn his notice of Mr. Dewhurst’s deposition for June 8, 2012.

The Attorney General noticed the depositions of three of Mr. Dewhurst’s staff

members—Blaine Brunson, Mr. Dewhurst’s chief of staff, Julia Rathgeber, Mr. Dewhurst’s

deputy chief of staff, and Bryan Hebert, Mr. Dewhurst’s former deputy general counsel—for

May 29 and 30, 2012. Texas produced privilege logs relevant to these witnesses on May 11 and

22, 2012. A review of these logs revealed that documents had been improperly withheld on

privilege grounds, and the Attorney General sought immediate relief from the Court to obtain

these documents in advance of the depositions. Relief was granted on May 28, 2012 and Texas

produced relevant documents late that evening. Order, May 28, 2012, ECF No. 154.

The Attorney General deposed Mr. Brunson, Mr. Hebert, and Ms. Rathgeber on May 29

and 30, 2012. During these depositions it became clear that these witnesses lacked knowledge


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about significant events related to the purpose, development, and passage of SB 14. When

asked, these witnesses uniformly acknowledged that only Mr. Dewhurst would possess personal

knowledge of these events. The witnesses also were unable to answer questions about some of

the newly-produced documents for the same reason. Accordingly, the Attorney General now

seeks to compel Texas to comply with the Lieutenant Governor’s notice of deposition.

II. LEGAL STANDARD

A. Motion to Compel

If a party refuses to produce a witness for a properly noticed deposition, the noticing

party may move to compel the witness’s attendance. See Fed. R. Civ. P. 37(d)(1)(A)(i). A party

seeking to compel discovery bears an initial burden of showing that the discovery is relevant

under Rule 26. See, e.g., The Navajo Nation v. Peabody Holding Co., Inc., 255 F.R.D. 37, 46

(D.D.C. 2009). Upon making that showing, however, the burden shifts to the non-moving party

“‘to explain why discovery should not be permitted.’” Id. (quoting Jewish War Veterans of the

United States of America, Inc. v. Gates, 506 F. Supp. 2d 30, 42 (D.D.C. 2007). Further, where

the non-moving party seeks to withhold discovery on the basis of privilege, that party bears the

burden of proving that the privilege covers all of the information sought. In re Lindsey, 158 F.3d

1263, 1270 (D.C. Cir.1998).

B. High-Ranking Official Doctrine

The Federal Rules of Civil Procedure generally permit discovery through deposition.

Fed. R. Civ. P. 30. In most cases, Rule 26’s basic relevancy requirements place the only limit on

who may be deposed. Payne v. Dist. of Columbia, 279 F.R.D. 1, 5 (D.D.C. 2011). Recognizing

that this Rule could impose a significant burden on high-ranking officials who are involved in

lawsuits solely due to actions taken in their official capacity, however, courts have required


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parties seeking such depositions to make a stronger showing of need. As this Court has

explained, a party seeking the deposition of a high-ranking official must establish that the official

possesses “some personal knowledge about the matter” and “that the information cannot be

obtained elsewhere.” Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C.1998) (emphasis in original).

Application of this doctrine does give courts a gate-keeping function over the depositions

of high ranking officials, but depositions are still required where the official has personal

knowledge relevant to resolving the claims at issue. See, e.g., Payne v. Dist. of Columbia, --- F.

Supp. 2d ----, No. 20-cv-679, 2012 WL 1662524 (D.D.C. May 14, 2012) (ordering deposition of

District of Columbia mayor); Coleman v. Schwarzenegger, No. Civ S-90 0520, 2008 WL

3843292 (E.D. Cal. Aug. 14, 2008) (ordering deposition of California governor); Bagley v.

Blagojevich, 486 F. Supp. 2d 786 (C.D. Ill. 2007) (requiring deposition of Illinois governor); see

also Marisol A. v. Guiliani, No. 95-cv-10533, 1998 WL 158948 (S.D.N.Y. Apr. 1, 1998)

(ordering deposition of New York governor if State was “unwilling or unable” to provide

witnesses who could testify to “the factual information . . . on which [the governor’s] decisions

were based”). Rather than barring every deposition of high-ranking officials, this heightened

standard merely serves to ensure that such officials’ time is not wasted on irrelevant matters or to

obtain evidence that is equally available through other witnesses. In re Cheney, 544 F.3d 311,

314 (D.C. Cir. 2008) (requiring substitute witness where high-ranking official did not possess

unique knowledge); Byrd v. Dist. of Columbia, 259 F.R.D. 1, 6 (D.D.C. 2009) (explaining that

courts must balance a party’s “significant interest in preparing for trial” with the burden to the

official). Indeed, as the Supreme Court has recognized, even “sitting presidents have responded

to court orders to provide testimony and other information with sufficient frequency that such


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interactions between the Judicial and Executive Branches can scarcely be thought a novelty.”

Clinton v. Jones, 520 U.S. 681, 704 (1997).

III. ARGUMENT

A. Texas Must Produce Dewhurst for a Deposition Absent a Protective Order From This Court

Unless and until Texas seeks a protective order from this Court concerning the Attorney

General’s notice of deposition, Texas must produce Mr. Dewhurst for a deposition as specified in

the notice. Fed. R. Civ. P. 37(d)(2) (requiring a party’s attendance at a deposition “unless the

party failing to act has a pending motion for a protective order under Rule 26(c)”). Although

Texas has had ample opportunity to seek such an order, it has chosen not to do so. Accordingly,

absent the entry of a protective order, Texas cannot disregard a proper notice. See Charles Alan

Wright & Arthur R. Miller, 8A Federal Practice & Procedure § 2107 (“a party who fails to

appear on notice . . . is liable to the penalties of Rule 37(d)”) (3d ed. 2012).

Moreover, to the extent that Texas claims that Mr. Dewhurst is exempt from testifying

under the high-ranking official doctrine, May 3, 2012 Tr. at 89-92, Texas bears the burden of

raising and proving this exemption through a motion for protective order. See, e.g., Payne, 279

F.R.D. at 5-6; Alexander, 186 F.R.D. at 4. In light of the highly compressed discovery schedule

in this case, however, and in an effort to expedite resolution of the parties’ dispute concerning

Mr. Dewhurst’s deposition, the Attorney General now seeks to compel the appearance of Mr.

Dewhurst for a deposition through this motion.

B. The High-Ranking Official Doctrine Does Not Bar the Lieutenant Governor’s Deposition

The high-ranking official doctrine does not shield Mr. Dewhurst from a deposition in this

case because he has unique, personal knowledge of facts necessary to resolve whether SB 14 was


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enacted with discriminatory purpose under Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977). As explained below, the depositions of the Lieutenant

Governor’s key staff members made clear that only Mr. Dewhurst himself has personal

knowledge of key facts surrounding the sequence of events leading up to the decision to

introduce SB 14 in the Texas senate; the mechanics of the senate’s decision to adopt unique

procedural rules for its consideration of the bill; the purpose behind these departures from

normal past practice; whether the Lieutenant Governor was on notice of facts indicating the bill

would have a retrogressive effect on minority voters; and facts concerning whether fears of non-

citizen voting were used as a pretextual justification for the bill—all of which are highly relevant

to assessing circumstantial evidence of intentional discrimination under Arlington Heights. 429

U.S. at 267-68.

1. Mr. Dewhurst Has Unique Procedural Powers as President of the Texas State Senate and Personal Knowledge of Procedural Decisions Concerning Voter Identification Legislation that Deviated from Past Practice

The 2011 Senate Rules gave the Lieutenant Governor broad powers over the procedural

workings of the Senate, as well as significant discretion over key procedural decisions that

impacted SB 14’s consideration and passage. Texas Senate Rules, 82nd Legislature, Jan. 19,

2012, attached as Ex. 5. In particular, during the 2011 legislative session, the Rules provided

that the Lieutenant Governor decided all questions of order subject to appeal by any member

(Rules 1.01, 5.15), named members to perform the duties of the chair (Rule 1.01), gave the

deciding vote in the event of a tie vote (Rule 6.18), referred bills to committee (Rule 7.06),

signed all bills passed by the legislature (Rule 7.23), appointed committees and subcommittees

(Rule 11.01), appointed chairs and vice chairs of committees (Rule 11.04), and selected and

appointed conference committees (Rule 12.01). Further, when the Committee of the Whole


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Senate (“COTW”) was in session, the Lieutenant Governor had the right to debate and vote on

all questions (Rule 13.03).

During their depositions, Mr. Dewhurst’s staff lacked vital knowledge about the purpose

of significant procedural decisions concerning SB 14 and recent predecessor voter identification

legislation in which Mr. Dewhurst was involved. In accordance with long-standing Senate

practice, Senate rules usually require that two-thirds of senators vote in favor of bringing a bill to

the floor for a vote. This rule was suspended in 2009 and 2011, however, only for voter

identification legislation, and the rule changes were crucial to bringing SB 14 to a vote. Despite

testimony that the Lieutenant Governor was personally involved in this unusual rule change, Mr.

Dewhurst’s staff were unable to testify about how he was involved with that decision. Hebert

Dep. 214:5-21, May 29, 2012, attached as Ex. 6; Rathgeber Dep. 167:5-18, May 29, 2012,

attached as Ex. 7; Brunson Dep. 105:15-106:21, May 30, 2012, attached as Ex. 8.

The Lieutenant Governor’s staff similarly had incomplete knowledge of the process

through which the Lieutenant Governor assigned voter identification legislation to committees.

In the Senate, the Lieutenant Governor ordinarily refers legislation to committees according to

topic, and election-related bills are routinely assigned to the State Affairs committee—indeed, in

2005 and 2007, the Lieutenant Governor assigned voter identification bills from the House to

that committee. In 2009 and 2011, however, he chose to refer voter identification bills to the

Senate Committee of the Whole, which allowed Mr. Dewhurst himself to participate in debate

and voting. Mr. Dewhurst’s staff could not explain the purpose of this deviation from past

practice. Brunson Dep. 92:21-93:1 (noting that it is not common for a bill to be referred directly

to the Committee of the Whole); Hebert Dep. 63:11-25 (does not know why Mr. Dewhurst

convened the Committee of the Whole to consider two voter identification bills); Hebert Dep.


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85:17-87:20 (Mr. Dewhurst would be aware of communications with his staff concerning

assignment of SB 14 to the COTW); Rathgeber Dep. 180:8-16 (does not know why Mr.

Dewhurst assigned 2009 voter identification legislation to the COTW).

Further, Mr. Dewhurst’s staff could not offer testimony to explain either the mechanics or

the purpose of the unusual timing of Mr. Dewhurst’s notice to the Senate of the COTW’s

consideration of SB 14. The COTW is the only Senate committee for which the Lieutenant

Governor may call committee meetings. However, the Lieutenant Governor gave his Senate

colleagues only four days advance notice that the COTW would be convened to address SB 14;

moreover, his office provided this notice after business hours, after the Senate had recessed for

the weekend and many members had returned to their districts across the state. See Letter from

Sen. Letitia Van de Putte to Sen. Robert Duncan, Jan. 21, 2011, attached as Ex. 9; Hebert Dep.

247:13- 249:19 (Lieutenant Governor would know when he directed notice be provided to all

senators of the convening of the Committee of the Whole to consider SB 14).3

Finally, staff were unable to explain the Lieutenant Governor’s role in the Governor’s

designation of voter identification legislation as a legislative emergency in 2011. This

designation was crucial to SB 14’s passage, as it allowed the Senate to consider SB 14 in the first

few days of the 2011 legislative session and ahead of other important legislation that could have

taken legislators’ time and attention away from SB 14. Mr. Brunson indicated that it was

Although

documents produced by Texas demonstrate that some senators raised concerns about this timing,

when asked about these concerns in deposition, the Lieutenant Governor’s staff were unable to

provide testimony about the decision. See, e.g., Hebert Dep. 249:9-19.

3 Mr. Dewhurst’s deputy chief of staff, Julia Rathgeber, similarly could not testify about the timing of Senate votes called by Mr. Dewhurst on precedessor legislation in 2007. Rathgeber Dep. 136:16-24.


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“possible” that Mr. Dewhurst requested that Governor Perry designate voter identification

legislation as part of the Governor’s emergency call, Brunson Dep. 64:20-65:7; see also Hebert

Dep. 236:16-237:4 (the Lieutenant Governor “might know” if he requested that SB 14 be placed

on the emergency calendar), but neither he nor other staffers were able to provide specific

information. See Hebert Dep. 235:14-236:18 (not aware of whether the Lieutenant Governor

requested the designation of SB 14 as emergency legislation); Rathgeber Dep. 206:22-25 (did not

know if the Lieutenant Governor asked the Governor to give voter identification legislation an

emergency designation); Rathgeber Dep. 238:3-19 (identifying the Lieutenant Governor and the

Governor as the only people able to testify to communications between them concerning the

emergency designation).

In sum, the Lieutenant Governor’s role in the Senate significantly impacted SB 14’s

consideration and passage. Since the depositions of his top aides made clear that only Mr.

Dewhurst can explain both the process and the purpose of these crucial decisions, the high-

ranking official doctrine cannot bar his testimony.

2. Only Mr. Dewhurst Can Testify to Whether He Was Aware of Concerns that Voter Identification Legislation Would Disproportionately Impact Minority Voters

The knowledge of key decision-makers that a voting change will have a retrogressive

effect on minority voters is highly relevant circumstantial evidence of discriminatory purpose

under Arlington Heights. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 488-89 (1997)

(discussing Arlington Heights analysis). As last week’s depositions made clear, Mr. Dewhurst

was certainly a key decision maker; he was solely in charge of the procedural mechanisms in the

Senate, and his deputy general counsel, Mr. Hebert, was one of three people to draft SB 14 and

its 2009 predecessor bill, SB 362.


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Last week’s depositions also revealed, however, that only Mr. Dewhurst can answer

questions as to whether he knew about concerns that voter identification requirements, including

SB 14, would disproportionately impact minority voters. See Rathgeber Dep. 82:1-22 (unable to

recall whether interest groups met with Mr. Dewhurst concerning voter identification);

Rathgeber Dep. 135:5-136:14 (testifying that she is unaware of whether the Lieutenant Governor

knew that predecessor legislation to SB 14 might disproportionately impact minority voters);

Rathgeber Dep. 199:12-200:24 (unable to testify to whether concerns about voter identification

legislation impacted the Lieutenant Governor’s views); Rathgeber Dep. 313:6-9 (unable to testify

to whether the Lieutenant Governor believes SB 14 to have a discriminatory purpose); Hebert

Dep. 228:9- 229:10 (unable to remember whether the Lieutenant Governor responded to a letter

from Senators expressing concern that all the racial and ethnic minority Senators were opposed a

predecessor voter identification bill); Brunson Dep. 68:18-24 (unaware of whether any groups

representing minority voters were in support of a predecessor voter identification bill); Brunson

Dep. 143:22-144:6 (unaware if Texas produced or considered whether a less retrogressive

identification requirement was available); Brunson Dep. 121:3-16 (testifying that there were not

many discussions about the bases for the Lieutenant Governor’s support for SB 14); Brunson

Dep. 124:21-125:14 (unaware of whether DPS did an analysis to determine how many people

would need an election identification certificate). Given the importance of this evidence to the

Arlington Heights analysis, Bossier, 520 U.S. at 488-89, Mr. Dewhurst should be compelled to

comply with the Attorney General’s notice of deposition.


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3. Mr. Dewhurst is the Only Person Who Knows Whether His Public Statements Advanced Non-Citizen Voting as a Pretextual Justification for Photographic Voter Identification Laws

Finally, only Mr. Dewhurst has personal knowledge of the purpose of his own

contemporaneous public statements that advocated for stricter voter identification laws as a

means of preventing “illegal aliens” from voting. Since SB 14 does not address non-citizen

voting, this evidence is relevant to whether SB 14 was enacted with pretextual justifications that

masked discriminatory purpose.4

4 Indeed, as several witnesses have already acknowledged, including legislators themselves, SB 14 was not intended to prevent non-citizens from voting. See, e.g., Pena Dep. 135:12-17, 138:8-19, June 1, 2012 (Rep. Pena stated voter identification legislation was not intended to prevent non-citizen voting), attached as Ex. 10; Patrick Dep. 292:22-293:1, May 30, 2012 (Sen. Patrick stated he did not recall any statements by other legislators linking SB 14 to non-citizen voting), attached as Ex. 11; Rathgeber Dep. 281:14-20 (voter identification legislation was not intended to prevent non-citizen voting); see also McGeehan Dep. 217:1-5, May 31, 2012 (acknowledging that the Secretary of State’s office did not conduct any analysis to determine whether only citizens could obtain the identification required by SB 14), attached as Ex. 12.

Arlington Heights, 429 U.S. at 268 (identifying

contemporaneous statements by members of a decisionmaking body as “highly relevant” of

discriminatory purpose). During their depositions, however, Mr. Dewhurst’s staff were unable

to explain both the numerous public statements by Mr. Dewhurst that link photographic voter

identification with preventing non-citizen voting, and Mr. Dewhurst’s statements that equate

voter identification laws with immigration policy. Brunson Dep. 120:2-9 (unsure whether SB 14

was designed to prevent noncitizens from voting); Rathgeber Dep. 147:10-22 (identifying Mr.

Dewhurst as the best person to testify to communications concerning photo identification as a

means of preventing noncitizens from voting); Rathgeber Dep. 284:17-23 (same); Rathgeber

Dep. 303:5-21 (unable to testify as to why Mr. Dewhurst publicly associated voter identification

with preventing noncitizens from voting); Rathgeber Dep. 311:13-24 (unable to testify as to why

Mr. Dewhurst publicly associated voter identification with immigration reform); Rathgeber Dep.


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312:20-313:1 (same). Rather, as Mr. Dewhurst was identified as the only person who could

explain these statements, see, e.g., Rathgeber Dep. 147:10-22, his deposition is proper.

4. Mr. Dewhurst Has Unique Knowledge About the Substantive Drafting Process for SB 14 and Predecessor Voter Identification Legislation in the Senate

Finally, Lieutenant Governor Dewhurst played a central role in the development and

drafting of SB 14 and previous photo identification legislation. Mr. Dewhurst is the only person

who can testify to his own views of the substantive development of SB 14’s requirements, as

well as the evolution of the Senate’s voter identification legislation over time. Rathgeber Dep.

143:13-24 (identifying Mr. Dewhurst as the only person who could explain his public statements

concerning which types of identification should be accepted for voting); Rathgeber Dep. 251:13-

25 (identifying Mr. Dewhurst as the only person who could testify to the purpose of his choice

not to seek inclusion of additional forms of identification during the development of SB 14).

Accordingly, his deposition is properly taken.


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III. CONCLUSION

For the reasons set out above, this Court should grant the Attorney General’s motion to

compel the testimony of Lieutenant Governor Dewhurst and enter the proposed order attached to

the instant motion.

Date: June 5, 2012 Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

/s/ Risa Berkower ________ T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO RISA BERKOWER DANIEL J. FREEMAN Attorneys Voting Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530



STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendant. ERIC KENNIE, et al., Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors. TEXAS LEGISLATIVE BLACK CAUCUS, et al., Defendant-Intervenors, VICTORIA RODRIGUEZ, et al., Defendant-Intervenors.

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PROPOSED ORDER

Upon consideration of Defendant Eric H. Holder’s Motion for to Compel, Memorandum

of Points and Authorities in Support thereof, Plaintiff State of Texas’s opposition memorandum,

and Defendant Holder’s reply memorandum.


It is hereby ORDERED that Defendant Eric H. Holder’s request to file his Motion to

Compel after the deadline of May 21, 2012 for filing motions to compel, see Order, May 7, 2012,

ECF No. 107, is GRANTED; and it is

FURTHER ORDERED that Defendant Holder’s Motion to Compel is GRANTED; and

it is

FURTHER ORDERED that Texas shall produce Lieutenant Governor David Dewhurst

for a deposition on June 8, 2012, or at a date to be agreed upon by the parties that is no later than

June 15, 2012.

SO ORDERED this ___ day of _______, 2012.

_____________________ ROSEMARY COLLYER United States District Judge

_____________________ DAVID S. TATEL United States Circuit Judge

_____________________ ROBERT L. WILKINS United States District Judge


JULIA RATHGEBER MAY 29, 2012

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1 But if you can answer without revealing 2 that, you may answer.3 A. The Committee of the Whole doesn't have 4 standing staff. It's not a standing committee that 5 operates during every session and, therefore, there's no 6 one there to manage any background research during an 7 interim.8 Q. (By Ms. Berkower) So if -- if the Committee of 9 the Whole considered a bill during the regular session,

10 would the Lieutenant Governor then have to decide to 11 assign an interim charge to a different committee?12 A. No. I assume he has the ability to charge the 13 Committee of the Whole with studying something as well.14 It's not prohibited in the rules.15 Q. But it's never happened, to your knowledge?16 A. Not to my knowledge.17 Q. And doesn't sound like it would be very 18 practical?19 A. That's my thought.20 Q. So after the 2009 legislative session ended, 21 did you speak to anyone else in the Lieutenant 22 Governor's Office about a subsequent voter ID bill to be 23 introduced in the next legislative session?24 A. Not that I remember. Unless it was an interim 25 committee charge during that time. I'm sorry, I didn't

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1 check.2 Q. Do you know if you discussed any news articles 3 with other legislative -- sorry -- lieutenant Governor's 4 staff members about voter ID during that interim period?5 A. I remember reading quite a few news article 6 following the session on voter ID, but I don't know that 7 our staff gave them to me. It my have been I just read 8 them in the clips or -- just because I read that kind 9 stuff or read legislative issues in the clips.

10 Q. What do you remember reading about voter ID?11 A. I know there were a series of articles. Some 12 of them mentioned the polling data where the public was 13 generally, like, 70 percent favorable on the voter ID 14 legislation. I remember articles that were 15 pro-supportive of voter ID and articles that were 16 opposed to voter ID initiatives. That's generally all I 17 remember.18 Q. Do you remember the details of any of the 19 arguments in favor or against voter ID?20 A. Not that I can attribute to a specific news 21 article.22 Q. Generally, what were the arguments in favor or 23 against?24 MR. FREDERICK: Object to relevance.25 Q. (By Ms. Berkower) If you remember.

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1 A. Yeah, I mean, during the course of looking at 2 all the voter ID bills, I think there's, besides the 3 people who have been proponents of legislation have said 4 we need to have a process that ensures the integrity of 5 the voting process, One Person, One Vote, and you know 6 that the person making the vote is the person whose name 7 is on the voter registration rolls, and that that 8 enhances the integrity of the process. And then 9 opponents to the process have generically said not

10 everybody has an ID; therefore, we shouldn't keep them 11 from voting just because they don't have an ID.12 Q. Did any of these arguments impact your views on 13 any futures voter ID legislation that may be introduced?14 MR. FREDERICK: Objection, legislative 15 privilege.16 Instruct you not to answer.17 MS. BERKOWER: I asked if it impacted, not 18 how it impacted.19 MR. FREDERICK: Can you ask the question 20 again, please.21 Q. (By Ms. Berkower) I said did any of the news 22 articles -- or in so many words I said. Did any of the 23 news articles impact your views on any future voter ID 24 legislation that may be introduced?25 MR. FREDERICK: Same objection.

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1 You can answer whether or not they did.2 A. Not that I remember. But I don't think my 3 personal views are relevant. I don't sponsor or author 4 legislation.5 Q. (By Ms. Berkower) But you advise the Lieutenant 6 Governor on legislation, don't you?7 A. Mostly I provide him the information, pros and 8 cons, and he makes up his own mind.9 Q. But if you do research and you supervise the

10 research, don't you gather it together and pick what you 11 think is most relevant and provide that to him?12 MR. FREDERICK: Objection, assumes facts 13 not in evidence.14 A. We do provide him briefing materials on a 15 regular basis. But he makes up his own mind how he 16 feels about issues.17 Q. (By Ms. Berkower) So is he the only one we can 18 ask about his views on issues?19 MR. FREDERICK: Objection, relevance.20 Objection, calls for speculation.21 A. I wouldn't presume to talk for him.22 Q. (By Ms. Berkower) Is he the only person who can 23 speak for him?24 A. I would assume so, yes.25 Q. Did you speak to any legislators or their staff

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237

1 correspondence system, so, yes, that would happen 2 through the same process. I, personally, did not 3 received any separate e-mails associated with that.4 Q. How did your office respond to communications 5 from constituents?6 A. We -- we respond with a letter.7 Q. Did you suggest or make any changes to the bill 8 based on input you got from constituents?9 A. I know that there were some changes made on the

10 Floor that -- on -- during Senate deliberation of 11 legislation, that was based on information that they 12 heard during the Committee of the Whole process.13 Q. What were those?14 A. I know there were some details associated with 15 free IDs -- voter ID -- I mean, the DPS allowing for 16 free voting IDs and how that would be handled. Those 17 changes happen on the Floor and not in the Committee of 18 the Whole, though.19 Q. And that was in response to testimony or in 20 response to concerns raised by constituents?21 A. Well, they're the same. Testimony is typically 22 from constituents as well. I know that was part of the 23 discussion at some point.24 Q. Well, you said that there were also people 25 coming from out of state to testify?

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1 A. Yes. But we had an awful lot of testimony from 2 people from in state as well.3 Q. Did you have communications about SB 14 with 4 any officials in the government -- sorry, Governor's 5 Office?6 A. Like I said, I know that they called to tell us 7 they were going to issue an emergency order with voter 8 ID in it but that was like immediately before issuing 9 it. Other than that, I'm not aware of it.

10 Like I said, the Governor and the Speaker 11 and the Lieutenant Governor have weekly breakfasts, and 12 I'm sure they discussed the fact that that was going to 13 be an item coming up, at that breakfast, but I was not 14 there at the breakfast.15 Q. So if we wanted to know about any 16 communications about SB 14 between the Lieutenant 17 Governor and the Governor, would we need to ask either 18 the Lieutenant Governor or the Governor?19 A. Yes.20 MR. FREDERICK: Objection, calls for 21 speculation.22 Q. (By Ms. Berkower) Did you have communications 23 with any state or local election officials about SB 14?24 A. Yes.25 Q. Who?

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1 A. Let's see. We talked to the Secretary of 2 State's Office, to Coby Shorter. And I want to say that 3 we did have communications with some of the local 4 election officials about what would be required for 5 training and what sort of needs they might have to 6 implement the legislation.7 Q. Do you remember which local election officials 8 you spoke with?9 A. No.

10 Q. Do you remember what counties they were from?11 A. I know we talked to someone from Harris 12 County. I don't remember beyond that.13 Q. Was it George Hammerline?14 A. I remember that name, but I can't remember the 15 conversation.16 Q. Was it Skipper Wallace?17 A. I know we've talked to Skipper Wallace, yes.18 Q. What was the nature of your conversation with 19 the person you mentioned from the State, Colby?20 A. Coby Shorter is an Assistant Secretary of State 21 and he would have asked him, "How much money do you 22 need? What kind of implementation efforts need to 23 happen?" The Secretary of State's Office manages the 24 election for the state.25 Q. What did he tell you?

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1 MR. FREDERICK: I'm going to object.2 And just caution you to not to reveal the 3 substance of any communication with the Secretary of 4 State's Office --5 THE WITNESS: Okay.6 MR. FREDERICK: -- directly involving 7 pending legislation. You may, however, identify the 8 general subject matter of your conversations.9 A. Well, I think I already did. What we would

10 have talked to them about is, "What do you need in order 11 to implement this?" They were the people who developed 12 the fiscal note, or the request for the fiscal note, in 13 order to fund this.14 Q. Did you, for the Lieutenant Governor, exchange 15 any drafts of SB 14 or amendments with anyone?16 A. Prior to the amendments being heard on the 17 Floor, I think they asked the senators if they wanted to 18 distribute a packet. And if the senators would like to 19 submit their amendments in advance, we put them in order 20 of where they fall in the bill and then distributed 21 those to the senators. That was immediately prior to 22 the hearing on the Floor. And it wasn't mandatory, it 23 was just an efficiency issue.24 So we would have gathered the amendments 25 if they chose to submit them, put them into a packet in

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