Republican state lawmakers are resisting complying with subpoenas for emails and texts from 2021 when they passed a law taking the “permanent” out of the early voting list. The discovery battle is likely part of the reason they changed their rules this year to allow text messages to be deleted immediately and official emails after just 90 days.

The lawmakers – who were not named in yesterday’s report to the judge – have turned over 33,000 records to plaintiffs attorneys, but are claiming “legislative privilege” to avoid turning over an undisclosed number of other emails and texts.

Late this afternoon, U.S. District Court Judge Dominic Lanza said the “seeming complexity of the issues” makes the usual informal process of resolving discovery disputes difficult. He is asking the Plaintiffs to file a Motion to Compel the lawmakers to comply, and will resolve the issues that way.

Several groups sued to prevent SB1485 from taking effect, and changing the “permanent early voting list” to the “active early voting list” and instructing counties to not automatically mail early ballots to voters who had failed to return them within the preceding elections.

The plaintiffs claimed that the motivations of the Republican majority was to disproportionately impact minorities. The litigation has been proceeding since then, and became more urgent after efforts to stop the law through a referendum petition drive fell short.

No one has yet been removed from the early voting list yet, and there is some confusion on the requirements in the bill.

In the Joint Report filed yesterday, the Plaintiffs argue that there are two key reasons the GOP lawmakers must turn over the records. “First, the legislators cannot assert legislative privilege over communications they or their staff had with third parties. Legislative privilege protects “candor in . . . internal exchanges” within the legislature.” They acknowledge that a different federal judge in Arizona ruled otherwise, but said that was flawed and almost all other decisions support their position. “Second, even as to documents to which legislative privilege applies, that privilege is not absolute.”

Then, the lawmakers’ attorneys (Phoenix firm Gallagher & Kennedy) present their basic arguments. “First, federal courts, including a well-reasoned decision from Judge Campbell of this District, have found communications between legislators and third parties created in connection with legislative activity protected by the legislative privilege….Second, the Legislators’ interest in maintaining the privilege over these disputed documents overcomes the Plaintiffs’ claimed need to obtain the privileged material.”

This battle will take place as lawmakers are already deleting texts to/from constituents, lobbyists, etc, and as they are about to start deleting emails, under their new rules. 

We are unaware of any legal actions to challenge the new rules. And, Arizona’s Law is seeking comment from attorneys and parties on both sides of this now-active dispute, and will update as warranted.

“AZ Law” includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona’s Politics on the internet. 

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