A ruling on a motion to quash subpoenas requiring Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston -- who make up the state Board of Apportionment -- to testify at an upcoming preliminary injunction hearing in a lawsuit regarding redistricting is currently up in the air as litigants in the case prepare to go to court on Tuesday.
The ACLU of Arkansas filed suit on Dec. 29 on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel, challenging the new state House district boundaries approved by the Board of Apportionment, a three-member board tasked with setting new legislative maps based on information from the U.S. census every 10 years. Also filed was a motion for a preliminary injunction and request for expedited briefing and consideration.
At issue is the number of Black majority districts approved by the Board of Apportionment, which approved 11 Black majority districts out of 100 total House districts, which the plaintiffs say dilutes the overall strength of Black voters in Arkansas, who make up about 16% of the population of the state. To achieve parity with Black voters and to meet the legal requirements of Section 2 of the Voting Rights Act of 1965, plaintiffs said, would require the drawing of 16 majority Black districts.
Included with the original complaint were illustrative examples of maps that would redraw the 100 House districts with 16 majority Black districts included.
Attorneys for both sides argued Thursday before U.S. District Judge Lee Rudofsky during a two-hour telephone hearing on the motion to quash the subpoenas, which was filed last Friday in federal court.
Attorneys for the Board of Apportionment argued in the motion and in court on Thursday that the testimony sought by the plaintiffs' attorneys would not be relevant because the case is not about their motivations in approving the challenged maps and that any testimony related to internal motivations and deliberations is shielded by legislative privilege and deliberative process privilege.
The attorneys also argued that relevant testimony could be provided by lower-level staff members to avoid disrupting state government business by requiring testimony from the highest-level elected officials.
Deliberative process privilege is a form of executive privilege that protects information showing the process by which a government agency reached a particular decision or crafted a specific policy from disclosure to third parties. Legislative privilege protects statements made by members of the legislature or in papers published as a part of legislative business.
But because the three board members are not legislators, argued the plaintiffs' attorneys, legislative privilege does not apply, nor does deliberative process privilege because the testimony being sought doesn't deal with pre-decisional deliberations. The plaintiffs' attorney said they would seek testimony regarding the board members' justification for the new maps and not the deliberations that went into drawing them.
Dylan Jacobs, an attorney with Rutledge's office, also argued the defendants' position that the three board members are shielded from being compelled to testify by the apex doctrine, a common law doctrine that holds the top-level members of an organization may be shielded from deposition or testimony if the court concludes the information may be obtained by questioning lower-level members of the organization.
"Even if at some point the officers' testimony could be relevant in this case," Jacobs said, "there's nothing that says the plaintiffs can't seek to depose them at a later date."
But Rudofsky pointed out that the plaintiffs had agreed to examine lower-level witnesses first before getting to the three Board of Apportionment members.
"Doesn't that satisfy the apex witness rule?" he asked.
Jacobs said the apex witness rule typically deals with depositions that can be scheduled out weeks or months in advance. The immediate issue, he said, is that the hearing the board members have been subpoenaed to appear at is set to begin in just a few days.
"We're less than a week out ... we don't know what time or what order," he said. "There's a lot of unknowns here and I think that plays into the analysis."
But Jonathan Topaz, an attorney with the ACLU representing the plaintiffs, said the only way to understand the thought process behind the new maps is to question the only people involved in the process with the decision-making authority: the board members themselves.
"Why, when presented with evidence from plaintiffs' groups that drawing more majority Black districts was possible and that they were not in compliance with Section 2, that they decided not to include more majority Black districts," Topaz said, "what they believed Section 2 requires and what steps the decision-makers took to comply with Section 2."
The preliminary injunction hearing is set to begin at 1 p.m. Tuesday. In order to decide the matter quickly in an effort to not disrupt the filing period for the 2022 elections, Rudofsky said he will hold court beginning at 9 a.m. on Wednesday and each day following until the matter is decided, including the possibility of holding a rare Saturday session.
"I have every interest in getting to the end of this and a decision quickly," he said. "We will go as late into the evening as is feasible without us all getting unnecessarily exhausted.
Rudofsky said he would take the motion under advisement and issue a ruling no later than Monday. He raised the possibility he may hold the motion in abeyance until testimony from lower-level staffers is completed to determine if more information is needed from the board members themselves.