BIRMINGHAM — The NAACP is attempting to subpoena documents and communications between Chris Brown, owner of a political consulting firm called Red State Strategies, and members of the State House and Senate as part of an ongoing redistricting lawsuit.
A three-judge panel heard testimony and arguments in Birmingham Thursday regarding whether to quash the subpoena on legislative privilege grounds. The panel included U.S. Circuit Judge Stanley Marcus and U.S. District Judges Anna Manasco and Terry Moorer. No decision was made at Thursday's hearing.
The arguments between both sides generally centered around whether Brown should have to comply with a subpoena from plaintiffs seeking communications regarding redistricting with several legislators who were Red State clients and aren’t directly involved in the unresolved litigation of Alabama’s congressional and State Senate maps.
Lawmakers invoking legislative privilege to try to quash the subpoena in their communications with Brown on redistricting include: State Sen. Dan Roberts (R-Mountain Brook), State Sen. Will Barfoot (R-Pike Road), former State Sen. Clay Scofield (R-Guntersville), State Rep. Jim Carns (R-Vestavia Hills), State Rep. Jamie Kiel (R-Russellville), State Rep. Arnold Mooney (R-Indian Springs), State Rep. Ernie Yarbrough (R-Trinity), State Rep. Mack Butler (R-Rainbow City) and State Rep. Rick Rehm (R-Dothan).
Kathryn Sadasivan, an attorney with the NAACP Legal Defense and Educational Fund, argued for letting the subpoena proceed on Thursday.
Sadasivan said in a May filing that Brown’s communications with the legislators weren’t subject to legislative privilege.
“In 2023, the Alabama legislature enacted Senate Bill 5 (SB5), a redistricting plan that included only one congressional district in which Black voters would have an opportunity to elect their candidate of choice, despite directives from the U.S. Supreme Court and this Court that such a plan violated Section 2 of the Voting Rights Act (VRA)," Sadasivan said. "RedState contacted members of the Alabama legislature to advocate for SB5 and other dilutive congressional maps. Text messages produced by RedState show that Christopher Brown, RedState’s proprietor, communicated with Senator Steve Livingston, the chair of the Senate redistricting committee.
"Brown advised Senator Livingston on the specific Black voting age populations (BVAP) of potential alternative maps, offered alternative maps that deliberately lowered the BVAP in proposed new districts, and made negative remarks about Joe Reed, the Black leader of the Alabama Democratic Conference, the Black caucus of the Alabama Democratic Party. It is likely that RedState communicated similar information and opinions to other members of the legislature or other people or groups outside of the legislature. These communications between RedState and others are not subject to a claim of legislative privilege. But these communications can be important evidence of a constitutional or VRA violation.”
The NAACP attached texts in a May filing between Livingston, who has waived his legislative privilege, and Brown. Brown texted a tweet from a television news reporter about Joe Reed objecting to redistricting maps drawn by a court-appointed special master in September 2023. Livingston replied, “Really,” and Brown texted back, “Power grab.”
Christopher Weller, an attorney representing the group of legislators seeking to quash the subpoena, said on Thursday in court that the communications between Brown and the legislators should be shielded due to legislative privilege and legal precedent.
“In this case, I don’t think there’s any dispute at this point that Mr. Brown was brought into the legislative process and that he had ongoing relationships with my clients, these non-party legislators,” Weller said. “It is extremely important because we have to protect the legislative branch and their ability to have interactions with their constituents groups, with interest groups, with consultants, and other people so that they can come up with and formulate the best legislation possible that is representative of their folks. If the court allows the disclosure of communications that are privileged then that is going to impede the ability for legislators and those groups to have frank discussions and to actually look at things.”
Weller continued, “It’s a fine line of how far the judiciary should encroach upon the legislative branch in this.”
Albert Jordan, an attorney representing Red State Strategies, compared the subpoena to one in 2022 in a different case from the Department of Justice to Eagle Forum of Alabama related to the non-profit's legislative activities promoting the Alabama Vulnerable Child Compassion and Protection Act (VCAP), which banned transgender hormones and surgeries for people under 19. That subpoena was quashed by a federal judge in October 2022.
“I’d urge the court to find the privilege broad The law says it’s exceedingly broad. If for some reason it’s not protected by legislative privilege, it makes me think of another case that’s been here the last year or so where the Department of Justice and plaintiffs in a case involving medical care sought to grab all communications between an organization that was lobbying without pay to the legislature for all their communications with the legislature in an effort to establish discrimination,” Jordan said on Thursday in court.
“It was recognized there is a sort of private privilege too. Even though this argument focuses strictly speaking on legislative privilege, if you get down to the end results of this process then what you really have is somebody that wants to participate in the process and is intimidated from doing so if he has to spend lots of time and money just because some legislator ended up with a document.”
To connect with the author of this story or to comment, email caleb.taylor@1819News.com.
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