Shapiro v. McManus

Filing 166

MEMORANDUM AND ORDER directing three-judge court of Judge Niemeyer, Judge Bredar, and Judge Russell affirms the orders of Judge Bredar dated January 31, 2017, and February 3, 2017. Signed by Judge Paul V. Niemeyer on 3/13/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
O. JOHN BENISEK, et al.,
Plaintiffs,
v.
LINDA H. LAMONE, et al.,
Defendants.

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Case No.: 1:13-cv-03233-JKB

COMMON CAUSE; THE BRENNAN CENTER
FOR JUSTICE AT N.Y.U. SCHOOL OF
LAW; THE CAMPAIGN LEGAL CENTER, INC.,
Amici Supporting Plaintiffs.

Michael B. Kimberly, Paul W. Hughes, Stephen M. Medlock, E. Brantly Webb, and
Micah D. Stein, MAYER BROWN LLP, Washington, D.C., for plaintiffs.
Jennifer L. Katz, Sarah W. Rice, and Kathryn M. Rowe, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for defendants.
Benjamin W. Thorpe, Emmet J. Bondurant, BONDURANT MIXSON AND ELMORE
LLP, Atlanta, Georgia, Gregory L. Diskant, PATTERSON BELKNAP WEBB AND
TYLER LLP, New York, New York, and Michael A. Pretl, Riverton, Maryland, for
Amicus Common Cause. Charles E. Davidow, Washington, D.C., Pietro Signoracci,
Robert A. Atkins, New York, New York, PAUL WEISS RIFKIND WHARTON AND
GARRISON LLP, and Michael Li, Thomas P. Wolf, New York, New York, for Amicus
The Brennan Center for Justice at N.Y.U. School of Law. Paul March Smith, JENNER
AND BLOCK LLP, Washington, D.C., for Amicus The Campaign Legal Center, Inc.
Argued: March 6, 2017
2017

Filed:

Before Niemeyer, Circuit Judge, and Bredar and Russell, District Judges.

March 13,

Judge Niemeyer wrote the opinion in which Judge Bredar and Judge Russell joined.

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MEMORANDUM AND ORDER

NIEMEYER, Circuit Judge:
The plaintiffs in this action challenge the constitutionality of Maryland’s
redistricting law enacted on October 20, 2011, alleging that the law violated their rights
under the First Amendment and Article I, Sections 2 and 4, of the U.S. Constitution.
Pursuant to 28 U.S.C. § 2284(a), this three-judge court was convened to hear and
determine the action.
Acting under § 2284(b)(3), Judge Bredar, a member of the three-judge court,
issued two discovery orders dated January 31, 2017, and February 3, 2017, in which he
rejected claims of legislative privilege asserted by witnesses whom the plaintiffs sought
to depose and from whom the plaintiffs sought documents. The witnesses, represented
by the Office of the Attorney General of Maryland, filed a motion for review of Judge
Bredar’s orders by the full court, as authorized by § 2284(b)(3).
The full court, having now received the parties’ memoranda and their oral
arguments at a hearing on March 6, 2017, affirms Judge Bredar’s orders.

I
A
Based on the results of the 2010 census, the State of Maryland was required to
redraw the lines of its eight congressional districts to ensure that each district had an
equal share of the State’s population.

Governor Martin O’Malley, a Democrat,

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established the Governor’s Redistricting Advisory Committee by executive order in July
2011, charging the Committee with “holding public hearings around the State and
drafting [a] redistricting plan[] for [his] consideration [that would] set the boundaries of
the State’s . . . 8 congressional districts following the 2010 Census.” Joint Stipulation
¶ 18.

The Governor selected Jeanne D. Hitchcock — a Democrat who was the

Appointments Secretary in the Governor’s Office and who had been the Deputy Mayor of
Baltimore when O’Malley had been the Mayor — to chair the Committee. And he
appointed four other individuals to be members of the Committee: (1) State Senate
President Thomas V. Mike Miller, Jr., a Democrat; (2) House of Delegates Speaker
Michael E. Busch, a Democrat; (3) Richard Stewart, a businessman who had chaired the
Governor’s reelection campaign in Prince George’s County, a Democrat; and (4) James J.
King, a businessman from Anne Arundel County who had previously served in the House
of Delegates, a Republican.
The Advisory Committee held 12 public hearings across the State in the summer
of 2011, receiving approximately 350 comments from members of the public. The
Committee also solicited submissions of plans by third parties for its consideration.
Although the Committee held public hearings and solicited public comments, it was
“exempt by law from the Maryland Open Meetings Act.” Joint Stipulation ¶ 27. The
Committee prepared a draft redistricting plan using a computer software program called
Maptitude for Redistricting Version 6.0, and, when doing so, it had access to the State
Board of Elections’ statistical data, including “address-level voter registration data” and
“address-level voter-history data.” Id. ¶ 29. Using the Maptitude software program to
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analyze this data, the Committee would have had the ability “to determine how the
outcome of historical elections would have changed . . . if the proposed plan had been in
place in prior years.” Id. ¶ 30.
The Advisory Committee completed its proposed map on October 4, 2011, with
King, the Committee’s lone Republican, casting the sole dissenting vote. After posting
the map online and receiving additional comments from the public, the Governor
announced on October 15 that he would submit to the legislature a map that was
substantially the same as the Advisory Committee’s proposal. See Joint Stipulation ¶ 33.
Two days later, on October 17, Senate President Miller introduced the Governor’s
proposed redistricting map as Senate Bill 1 at a special legislative session. That same
day, the Senate Committee on Reapportionment and Redistricting, along with the House
Rules Committee, held a joint hearing on Senate Bill 1 and voted to approve the bill.
After adopting minor technical amendments, the Senate passed the bill the next day,
October 18, sending it to the House of Delegates, which, after making additional
technical amendments, passed it on October 19. The Senate concurred in the House’s
technical amendments, and the Governor signed Senate Bill 1 into law on October 20,
2011, three days after it had been introduced. See Md. Code Ann., Elec. Law §§ 8-701 to
-709.
The enacted Plan created eight congressional districts that were equal in
population according to the adjusted 2010 census data. The changes effected by the Plan,
however, were far more extensive than those needed to achieve population equality, and
the reshuffling was particularly extensive with respect to Maryland’s Sixth Congressional
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District. Historically, the Sixth District had consistently included all of the State’s five
most northwestern counties — Garrett, Allegany, Washington, Frederick, and Carroll
Counties — as well as various portions of Baltimore, Howard, Montgomery, and Harford
Counties, and it had been represented in Congress by Representative Roscoe Bartlett, a
Republican, since 1992. At the time of the 2010 congressional election — the last held
prior to the 2011 redistricting — 46.68% of the Sixth District’s eligible voters were
registered as Republicans, while 35.84% were registered as Democrats, and
Representative Bartlett won reelection that year by a margin of 28.2%. Joint Stipulations
¶¶ 8, 10.
Under the 2011 Plan, the new Sixth District retained Garrett, Allegany, and
Washington Counties, as well as roughly half of Frederick County’s population. The
Plan moved to other districts the remainder of Frederick County, all of Carroll County,
and the portions of Baltimore and Harford Counties that had previously been part of the
Sixth District, and in their place it added approximately 350,000 residents from
Montgomery County. Thus, under the 2011 Plan, roughly half of the Sixth District’s
residents live in Montgomery County, which has well over twice as many registered
Democrats as registered Republicans.
“One widely understood consequence of the Plan was that it would make it more
likely that a Democrat rather than a Republican would be elected as representative from
the [Sixth] District.”

Joint Stipulation ¶ 31.

This understanding turned out to be

accurate. At the time of the 2012 congressional election — the first held under the 2011
Plan — 33.32% of the Sixth District’s eligible voters were registered as Republicans, and
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44.11% were registered as Democrats. Id. ¶ 53. In that election, Democratic candidate
John Delaney, a newcomer to politics, defeated Bartlett by a 20.9% margin. Id. ¶ 54.
Representative Delaney won reelection in 2014 and again in 2016, albeit by smaller
margins.
B
The seven plaintiffs in this action, registered Republicans who lived in the Sixth
District prior to the 2011 Plan’s enactment, challenge the constitutionality of the Plan
under the First Amendment and Article I, Sections 2 and 4, of the U.S. Constitution.
Their second amended complaint, which names as defendants the Chair and the
Administrator of the State Board of Elections (the “State”), alleged that those responsible
for the 2011 Plan “purposefully and successfully flipped [the Sixth District] from
Republican to Democratic control by strategically moving the [D]istrict’s lines by reason
of citizens’ voting records and known party affiliations.” Second Am. Compl. ¶ 1. They
alleged that “[t]he drafters of the Plan focused predominantly on the voting histories and
political-party affiliations of the citizens of the State in deciding how to” redraw the Sixth
District’s lines and that they “did so with the clear purpose . . . of diluting the votes of
Republican voters and preventing them from electing their preferred representatives in
Congress.” Id. ¶ 6. They alleged further that the Plan achieved its intended effect,
imposing a significant burden on the former Sixth District’s Republican voters by
preventing them “from continuing to elect a Republican representative . . . , as they had in
the prior ten congressional elections.” Id. ¶ 7(b). And they maintained that “the State
cannot justify the cracking of the [Sixth] District by reference to geography or
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compliance with legitimate redistricting criteria.” Id. ¶ 7(c). Based on these allegations,
the plaintiffs claimed in essence that the Plan’s redrawing of the Sixth District’s
boundaries constituted unlawful retaliation in violation of their rights under the First
Amendment and Article I.
In a memorandum opinion dated August 24, 2016, we denied the State’s motion to
dismiss the plaintiffs’ second amended complaint, concluding that the plaintiffs had
adequately alleged a justiciable claim for relief. Shapiro v. McManus, No. 1:13-cv03233-JKB, 2016 WL 4445320, at *1, 13 (D. Md. Aug. 24, 2016). We held that to
succeed on their claims, the plaintiffs would have to prove three elements: first, “that
those responsible for the map redrew the lines of [their] district with the specific intent to
impose a burden on [them] and similarly situated citizens because of how they voted or
the political party with which they were affiliated”; second, “that the challenged map
diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and
concrete adverse effect”; and third, “that, absent the mapmakers’ intent to burden a
particular group of voters by reason of their views, the concrete adverse impact would not
have occurred.” Id. at *10. With respect to the intent element, we emphasized that it
would not be sufficient “merely [to] prov[e] that the legislature was aware of the likely
political impact of its plan and nonetheless adopted it.”

Id. at *11.

Rather, we

concluded, the plaintiffs “must rely on objective evidence to prove that, in redrawing [the
Sixth District’s] boundaries, the legislature and its mapmakers were motivated by a
specific intent to burden the supporters of a particular political party.” Id. We further
indicated that this objective evidence could be “either direct or circumstantial.” Id.
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C
As part of their discovery efforts in this case, the plaintiffs served notices of
deposition and subpoenas on the four Democratic members of the Governor’s
Redistricting Advisory Committee — that is, Hitchcock, Miller, Busch, and Stewart — as
well as on Senator C. Anthony Muse 1 and Delegate Curt S. Anderson. 2 The plaintiffs
represent that they “intend to question [the witnesses] regarding (among other things)
their intent and motivations for drawing the lines of the Sixth Congressional District as
they did, the data that they used and how they used it, and the vote dilution that resulted
from the Plan as enacted.” In response, the Maryland Office of the Attorney General,
representing the State and the witnesses, indicated its intent to file motions to quash the
subpoenas served on the members of the Advisory Committee, as well as the current and

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Senator Muse was the only Democratic Senator who voted against the 2011 Plan.
On the day that the Senate voted on the bill, he stated that the Plan “parcels out minority
populations — voters — to other very different communities in order to strengthen the
chances of a Democrat being elected.” Joint Stipulation ¶ 42(a).
2

Delegate Anderson voted in favor of the Plan. Describing the briefing Hitchcock
provided to the House and Senate Democratic Caucuses about the Advisory Committee’s
proposed plan on October 3, 2011, Anderson stated, “It reminded me of a weather
woman standing in front of the map saying, ‘Here comes a cold front,’ and in this case
the cold front is going to be hitting Roscoe Bartlett pretty hard.” Joint Stipulation ¶ 46.
And, on the day Senate Bill 1 was introduced, he stated in an interview, “What we’re
doing is we are trying to get more, in terms of — currently we have two Republican
districts and six Democratic Congressional districts and we’re going to try to move that
down to seven and one, with the additional Congressional district coming more out of
Montgomery county and going into western Maryland that would give the Democrats
more.” Id. ¶ 47.

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former members of the Maryland General Assembly who seek to assert their state
legislative privilege.
The plaintiffs also served document subpoenas on the members of the Advisory
Committee, 3 as well as Senator Richard Madaleno. 4 In response, the Office of the
Attorney General stated that Hitchcock, the Chair of the Advisory Committee, was not
able to locate any documents responsive to the subpoena, while Stewart produced eleven

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The plaintiffs’ third-party document subpoenas sought, among other things:

• “All external communications relating to the planning or drafting of Maryland’s 2011
congressional redistricting plan with . . . (a) the Governor; (b) Maryland House
Redistricting Committee; (c) Maryland Senate Redistricting Committee; (d) Any
current or former member of the Maryland General Assembly, including their staff or
agents; (e) Any current or former member of the United States Congress, including
their staff or agents; (f) Any current or former officer, member of leadership, or staff
member of the Democratic National Committee, including their staff or agents; (g)
Any current or former officer, member of leadership, or staff member of the
Democratic Congressional Campaign Committee, including their staff or agents; or
(h) Any current or former officer, member of leadership, or staff member of the
Maryland Democratic Party.”
• “All external Communications between or among You and third parties (including
consultants, experts, constituents, and members of the press) related in any way to
Maryland’s 2011 congressional redistricting process, its goals, or its results during the
Relevant Time Period.”
• “All interim or draft maps or reports related to Maryland’s 2011 congressional
redistricting plan, whether electronic or in hard copy, provided to You by any third
party or by You to any third party during the Relevant Time Period.”
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Senator Madaleno voted in favor of the Plan. In a taped interview on September
13, 2011, he stated, “What you see going on elsewhere is clearly in other states that are
Republican controlled they are drawing maps to try to take out Democrats, so I think
there is pressure on saying look, if they are playing that game elsewhere, then in states
like Maryland where democrats control we’ve got to do the opposite.” Joint Stipulation ¶
40(a).

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pages of emails and six email attachments. Senate President Miller, House Speaker
Busch, and Senator Madaleno produced less than 150 pages in total, and they asserted
state legislative privilege as the basis for withholding 36 responsive documents.
On January 4, 2017, the plaintiffs filed a motion (1) to compel the four Advisory
Committee members to provide deposition testimony and (2) to compel Miller, Busch,
and Madaleno to produce the documents that they had withheld based on legislative
privilege. A few days later, the Office of the Attorney General, acting on behalf of four
Advisory Committee members, filed a motion for a protective order and to quash the
deposition subpoenas served on them “on the ground that their legislative privilege
against compulsory evidentiary process protects them from being compelled to testify in
this matter about their legislative activity.” Not long thereafter, Anderson and Muse also
filed a motion for a protective order and to quash the deposition subpoenas served on
them, similarly invoking legislative privilege.
In a memorandum and order dated January 31, 2017, Judge Bredar, the member of
this three-judge court overseeing discovery and other preliminary matters, 5 granted the
plaintiffs’ motion to compel and denied the motion for a protective order filed by the four
Advisory Committee members, concluding that, in the circumstances of this case, “the
legislative privilege claimed by the Non-Parties must yield to the discovery requests of

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See 28 U.S.C. § 2284(b)(3) (“In any action required to be heard and determined
by a district court of three judges . . . [a] single judge may conduct all proceedings except
the trial, and enter all orders permitted by the rules of civil procedure except as provided
in this subsection”).

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Plaintiffs.” For the same reasons, Judge Bredar denied Anderson and Muse’s motion for
a protective order in an order dated February 3, 2017. 6
On February 9, 2017, the four members of the Advisory Committee, as well as
Anderson, Muse, and Madaleno (collectively, the “witnesses”), filed a motion for review
by us of the January 31 and February 3 discovery orders and for a stay of those orders. 7
See 28 U.S.C. § 2284(b)(3) (“Any action of a single judge may be reviewed by the full
court at any time before final judgment”). That same day, we entered an order staying
the January 31 and February 3 orders pending our review.
II
At the threshold, the witnesses argue that neither state legislators nor nonlegislator members of the Advisory Committee may be compelled to testify in
depositions or to produce certain documents, as their communications related to the
redistricting process are shielded by an absolute legislative privilege. We reject this
threshold argument. While all of the witnesses can, in theory, benefit from the federal

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This order also denied a motion for a protective order to modify the deposition
subpoena served on Robert Garagiola, a former State Senator. Garagiola later waived his
legislative privilege and participated in a deposition and so that ruling is not before the
three-judge court.
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Before seeking a stay and review of the discovery orders, Senate President
Miller, House Speaker Busch, and Senator Madaleno produced several of the documents
that they had previously withheld on the basis of legislative privilege. They continue to
withhold 14 documents that represent “communications between legislators and
communications between legislators and their close aides containing opinions and
advice.”

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common law doctrine of legislative privilege, that privilege is qualified, not absolute, in a
context such as this redistricting litigation.
The federal system “has broadly recognized the right ‘of legislators to be free from
arrest or civil process for what they do or say in legislative proceedings.’” EEOC v.
Wash. Suburban Sanitary Comm’n (“WSSC”), 631 F.3d 174, 180 (4th Cir. 2011) (quoting
Tenney v. Brandhove, 341 U.S. 367, 372 (1951)). Legislative immunity for U.S. Senators
and Representatives derives from the Speech and Debate Clause, U.S. Const., Art. I, § 6,
and it extends broadly to bar criminal prosecution or civil suit based on “anything
‘generally done in a session of the House [or Senate] by one of its members in relation to
the business before it.’” Gravel v. United States, 408 U.S. 606, 624 (1972) (quoting
Kilbourn v. Thompson, 103 U.S. 168, 204 (1881)).
While the Speech and Debate Clause by its terms protects only federal officials,
the Supreme Court has developed a similar doctrine of immunity that shields state,
regional, and local officials from civil liability based on their actions taken “in the sphere
of legitimate legislative activity.” Tenney, 341 U.S. at 376; see also Bogan v. ScottHarris, 523 U.S. 44, 54–55 (1998) (holding that the doctrine protects local officials);
Lake Country Estates v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405 (1979) (same
for regional officials); Supreme Court of Va. v. Consumers Union of U.S., Inc., 446 U.S.
719, 732–33 (1980) (same for suits seeking injunctive relief). This common law doctrine
is rooted in principles of comity and in a history of immunity for state legislators that
predates the Constitution. See Spallone v. United States, 493 U.S. 265, 279 (1990)
(“[A]ny restriction on a legislator’s freedom undermines the ‘public good’ by interfering
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with the rights of the people to representation in the democratic process”); Tenney, 341
U.S. at 372 (“Freedom of speech and action in the legislature was taken as a matter of
course by those who severed the Colonies from the Crown and founded our Nation”).
Moreover, in order to “safeguard this [state] legislative immunity and to further
encourage the republican values it promotes,” courts have recognized a corresponding
privilege “against compulsory evidentiary process” that can apply “whether or not the
legislators themselves have been sued.” WSSC, 631 F.3d at 181. Because legislative
immunity and legislative privilege are motivated by the same policy of comity, courts
apply them in a parallel manner. See, e.g., Gravel, 408 U.S. at 608 (in declining to quash
grand jury subpoena for Senator’s aide, relying on cases establishing legislative immunity
from suit).
All of the witnesses here, including the non-legislator members of the Committee,
are eligible to seek legislative privilege. The doctrine protects not only legislators, but
also “officials outside the legislative branch . . . when they perform legislative functions”
or engage in “integral steps in the legislative process.” Bogan, 523 U.S. at 55 (holding
that local officials performing legislative functions are protected by legislative immunity
and indicating that a governor’s choice to sign or veto a bill therefore would be
protected); see also Consumers Union, 446 U.S. at 731–34 (shielding state supreme court
and its chief justice from liability for promulgating disciplinary rules). Here, the four
members of the Committee who were served with subpoenas — the two state legislators
and the two non-legislators — worked together to draw a new congressional district map
that was substantially the same as the one adopted by the General Assembly and signed
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into law by the Governor. This was a quintessentially legislative process, and thus all of
the Committee members are at least eligible for legislative privilege.
That does not mean, however, that the witnesses can automatically have the
plaintiffs’ discovery requests quashed. While legislative privilege is undoubtedly robust,
the Supreme Court’s decisions make clear that the privilege does not absolutely protect
state legislative officials from discovery into communications made in their legislative
capacity.
Most clearly repudiating an absolute nature of the privilege is the Supreme Court’s
decision in United States v. Gillock, 445 U.S. 360 (1980). There, the Court allowed a
state senator’s legislative acts, including his introduction of a bill and several of his floor
statements, to be used as evidence in a federal bribery prosecution against him. Although
it recognized that the “denial of a privilege to a state legislator may have some minimal
impact on the exercise of his legislative function,” the Court explained that “where
important federal interests are at stake, as in the enforcement of federal criminal statutes,
comity yields.” Id. at 373 (emphasis added); see also id. at 372 (distinguishing Tenney,
which granted immunity for “civil action[s] brought by a private plaintiff to vindicate
private rights”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268
(1977) (leaving open the possibility that, “[i]n some extraordinary instances[,] the
members [of a legislative body] might be called to the stand at trial to testify concerning

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the purpose of the official action,” while recognizing that “even then such testimony
frequently will be barred by privilege”). 8
Thus, we reject the witnesses’ claim of absolute privilege in this context. Instead,
we conclude that, in deciding whether legislative privilege protects a state legislative
actor from discovery, we must balance the significance of the federal interests at stake
against the intrusion of the discovery sought and its possible chilling effect on legislative
action. This balancing inquiry ensures that legislative privilege, like all evidentiary
privileges, applies “only to the very limited extent that . . . a public good transcend[s] the
normally predominant principle of utilizing all rational means for ascertaining truth.”
Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting Elkins v. United States, 364
U.S. 206, 234 (1960) (Frankfurter, J., dissenting)).

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The witnesses rely on this “extraordinary circumstances” language from
Arlington Heights and argue that the circumstances of this case are by no means
extraordinary. As explained in Part III of this opinion, we disagree. Indeed, if anything,
we think that Arlington Heights counsels against recognizing an absolute privilege here.
In Arlington Heights, the Supreme Court held that plaintiffs challenging an official action
under the Equal Protection Clause must prove not just that the action had a discriminatory
impact, but that the decisionmaker acted with discriminatory intent. 429 U.S. at 265. In
evaluating whether the evidence introduced at trial adequately showed that the Village’s
denial of the plaintiff’s rezoning request was motivated by racially discriminatory intent,
the Court cited trial testimony from a Village Board member, who had been called to the
stand by the plaintiff, and explained that “[n]othing in her testimony supports an
inference of invidious purpose.” Id. at 270. Moreover, the Court assumed for the sake of
argument that a Board member could be called to the stand for questioning “about their
motivation at the time they cast their votes,” and it endorsed the plaintiff’s questioning of
Board members “about materials and information available to them at the time of
decision.” Id. n.20. This sort of nuanced evaluation of legislative testimony suggests that
the Court did not view the Board members’ privilege as absolute.

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Drawing on these principles, courts ruling on claims of legislative privilege in
redistricting cases have frequently adopted a five-factor standard that facilitates case-bycase evaluation of the competing interests at stake. This standard, which derives from
cases on deliberative-process privilege for executive actors, requires a court evaluating a
claim of legislative privilege to take into account the relative weight of: (1) the relevance
of the evidence sought, (2) the availability of other evidence, (3) the seriousness of the
litigation, (4) the role of the State, as opposed to individual legislators, in the litigation,
and (5) the extent to which the discovery would impede legislative action. See, e.g.,
Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 337–38 (E.D. Va. 2015);
Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11-C-5065, 2011
WL 4837508, at *7 (N.D. Ill. Oct. 12, 2011). The first three factors aim to capture the
federal interests at stake — courts are more likely to require disclosure of
communications that are highly relevant, difficult to obtain elsewhere, and will assist in
the enforcement of public rights — while the final two factors reflect our comity interest
in minimizing intrusion into the State’s legislative process.
Judge Bredar’s January 31 and February 3 orders endorsed and relied upon this
five-factor standard in concluding that the witnesses were not entitled to legislative
privilege, and we now affirm his decision to use that standard. We therefore turn to apply
it to the discovery requests at issue here.

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III
In applying the first factor — the relevance of the evidence — we consider the
degree to which the evidence sought is relevant to the issues in the litigation at hand. In
doing so, we readily conclude that the evidence sought here focuses on core issues in the
litigation. As we stated in our denial of the defendants’ motion to dismiss, the plaintiffs
must prove that “in redrawing a district’s boundaries, the legislature and its mapmakers
were motivated by a specific intent to burden the supporters of a particular political
party.” Shapiro, 2016 WL 4445320, at *11 (emphasis added). Thus, in seeking to
depose the witnesses who were involved in drawing the map, the plaintiffs are clearly
seeking evidence necessary to prove this specific intent.
The witnesses argue, nonetheless, that the depositions in particular should not be
permitted because they would seek to reveal subjective evidence of intent and motivation
rather than objective evidence, which we have held is required to prove intent. Stated
otherwise, they argue that the plaintiffs propose to ask them directly about their
unexpressed thoughts and motivations, which is not an effort to pursue objective
evidence.

For purposes of discovery, however, the distinction is not significant.

Unexpressed thoughts and expressed thoughts are closely related, and the line between
the two is so fine that questions of unexpressed thoughts could reasonably lead to
evidence of expressed thoughts and other objective evidence of intent. Thus, while only
objective evidence is sufficiently reliable to prove intent in these circumstances, the
plaintiffs may in discovery inquire into the witnesses’ unexpressed thoughts with the

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purpose of obtaining admissible objective evidence of intent, which is a core issue in this
litigation.
Turning to the second factor — the availability of other evidence — we conclude
that the limited availability of other evidence weighs in favor of the plaintiffs, especially
since direct evidence, as well as circumstantial evidence, may be used to prove the
element of intent. Shapiro, 2016 WL 4445320, at *11; see also Bethune-Hill v. Va. State
Bd. of Elections, No. 15-680, 2017 WL 774194, at *9 (U.S. Mar. 1, 2017) (holding that
plaintiffs in racial gerrymandering cases may rely on “direct evidence of the legislative
purpose and intent,” even where the lines of the electoral map are consistent with
traditional redistricting criteria). To be sure, the plaintiffs do have access to many
relevant documents, including “transcripts of public hearings of the [Advisory
Committee], electronic versions of maps, election and voter data, bill files, draft maps
considered by the [Committee],” and other similar pieces of evidence produced by the
redistricting process. While this evidence is valuable, it is not a substitute for the ability
to depose a witness and obtain direct evidence of motive and intent, thus avoiding the
potential ambiguity of circumstantial evidence. See Bethune-Hill, 2017 WL 774194, at
*9 (explaining that, because “[t]raditional redistricting principles . . . are numerous and
malleable,” there may be cases where a legislature acted with impermissible racial
motivation yet the electoral map was nevertheless consistent with those traditional
principles).
Application of the third factor — the seriousness of the litigation and the issues
involved — strongly favors the plaintiffs, as the witnesses concede. The plaintiffs have
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alleged that the method by which certain Maryland voters selected their congressional
representative denied a large portion of those voters their constitutional rights, and few
issues could be more serious to preserving our system of representative democracy.
Shapiro, 2016 WL 4445320, at *9 (“[W]hen a State draws the boundaries of its electoral
districts so as to dilute the votes of certain of its citizens, the practice imposes a burden
on those citizens’ right to ‘have an equally effective voice in the election’ of a legislator
to represent them” (quoting Reynolds v. Sims, 377 U.S. 533, 565 (1964)).
Application of the fourth factor — consideration of the role of the State as
compared to that of individual legislators — also weighs in favor of the plaintiffs. When
individual legislators are the targets of litigation, the possibility of their suffering
individualized consequences can significantly increase the need for legislative privilege.
But here, the witnesses have no personal stake in the litigation and face no direct adverse
consequence if the plaintiffs prevail. The plaintiffs have brought their suit not against
individual state legislators but against the State’s agents who are, in their official
capacity, responsible for the electoral process in Maryland, and the adverse impact on the
individual legislators is minimal.
Application of the fifth and final factor — whether allowing the plaintiffs to obtain
the evidence would impede state legislative action — presents the closest question.
There is a good deal of force to the witnesses’ argument that questioning legislators about
the conversations in which they engaged as they redrew legislative districts strikes at “the
very core” of that protected by the legislative privilege and can tend to undermine the

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legislators’ ability to speak freely and thereby chill a key aspect of the state legislative
process.
It is no doubt true that conversations between and among legislators play a vital
role in crafting the substance of legislation. In some contexts, the importance of these
conversations would militate in favor of protecting them in the interest of comity. But
these conversations could also be the most probative evidence of intent in this case
because they relate to moments when unconstitutional intent may have infected the
legislative process. Because of the importance of the federal interests at stake and
because the evidence of these conversations may be crucial to their vindication, we
conclude that “comity yields,” Gillock, 445 U.S. at 373, and therefore hold in this case
that legislative privilege does not protect conversations and other communications
between and among legislators.
We believe that weightier concerns favoring comity are implicated when we
consider conversations and other communications between each legislator and his or her
staff. Legislator-staff communications are often devoted to discussing ideas to which
neither party to the communication is committed for purposes of legislative action —
such as testing the soundness of ideas by positing wide-ranging positions — and such
communications would be less valuable in determining the intent behind the actual
legislative action. Indeed, these communications can resemble the deliberations of a
judge with his or her clerks. It is important therefore that courts recognize and give yet
greater respect to the legislative privilege as it applies to these communications.

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But just as legislator-to-legislator communications can provide highly relevant
evidence of intent, so too can these legislator-staff communications. They may, for
instance, reveal strategies on how to implement a plan to which the legislator is already
committed and thus may provide direct evidence of specific intent.

Moreover,

communications about crucial aspects of the redistricting process may, at times, have
been conducted entirely through legislative staff, such as where a staff member may have
spoken directly with an expert employed in the mapmaking process and then relayed the
contents of that conversation to the legislator.

Prohibiting discovery into such

conversations and communications could thus obscure important evidence of the purpose
and intent of the legislative action.
In the circumstances of this case, therefore, we strike a balance, recognizing that,
while some legislator-staff communications may be of limited value, potentially
containing even misleading information, others may provide direct evidence of specific
intent. Accordingly, while we conclude that the important federal interests at stake in this
case involving an allegedly unconstitutional redistricting plan outweigh the comity
interest in protecting these legislator-staff communications, we will allow the legislator
witnesses to seek post-testimony protection for those legislator-staff communications that
do not provide evidence of specific intent. To that end, each legislator witness will be

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able, before his or her testimony becomes public, 9 to file a motion for a protective order,
should the parties not be able to agree on one. 10

For the reasons given, this three-judge court of Judge Niemeyer, Judge Bredar,
and Judge Russell affirms the orders of Judge Bredar dated January 31, 2017, and
February 3, 2017. 11
Dated this 13th day of March, 2017.
For the Three-Judge Court
/s/
Paul V. Niemeyer
United States Circuit Judge

9

In affording this protection from public dissemination, we presume that persons
attending the witnesses’ depositions will be limited to the parties, the witness being
deposed, and their attorneys.
10

Although we conclude that legislative privilege must yield in the context of
legislator-staff communications, we nonetheless will, in any post-testimony motion for a
protective order, consider other issues that can be raised under Federal Rule of Civil
Procedure 26(b)(1) and Federal Rules of Evidence 401 and 403.
11

In scheduling the depositions of the witnesses, we direct the parties to
accommodate President Miller and Speaker Busch and allow them to postpone their
depositions until after the conclusion of the regular session of the General Assembly on
April 10, 2017, but no later than May 1, 2017.

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