NAACP asks Republican political consultant Chris Brown to communicate with lawmakers on redistricting

BIRMINGHAM – The NAACP is seeking a subpoena of documents and communications between Chris Brown, the owner of a political consulting firm called Red State Strategies, and members of the state House and Senate as part of an ongoing legal battle over redistricting.

A three-judge panel heard testimony and arguments Thursday in Birmingham on whether the subpoena should be quashed on legislative privilege grounds. The panel included U.S. District Judge Stanley Marcus and U.S. District Judges Anna Manasco and Terry Moorer. No decision was made at Thursday’s hearing.

The arguments between the two sides generally revolved around whether Brown had to comply with a subpoena from plaintiffs seeking redistricting communications with several lawmakers who were Red State clients and are not directly involved in the unresolved litigation over Alabama’s redistricting.

The lawmakers who invoked their legislative immunity to quash the subpoena in their correspondence with Brown on redistricting include: State Senator Dan Roberts (R-Mountain Brook), State Senator Will Barfoot (R-Pike Road), former State Senator Clay Scofield (R-Guntersville), State Representative Jim Carns (R-Vestavia Hills), State Representative Jamie Kiel (R-Russellville), State Representative Arnold Mooney (R-Indian Springs), State Representative Ernie Yarbrough (R-Trinity), State Representative Mack Butler (R-Rainbow City) and State Representative Rick Rehm (R-Dothan).

Kathryn Sadasivan, an attorney with the NAACP Legal Defense and Educational Fund, argued for Thursday’s subpoena to be granted.

Sadasivan said in a document filed in May that Brown’s communications with lawmakers were not subject to legislative confidentiality.

“In 2023, the Alabama Legislature passed Senate Bill 5 (SB5), a redistricting plan that would have created only one congressional district in which Black voters would have the opportunity to elect their preferred candidate, despite instructions from the U.S. Supreme Court and this Court that such a plan violates Section 2 of the Voting Rights Act (VRA),” Sadasivan said. “RedState contacted members of the Alabama Legislature to advocate for SB5 and other watering-down congressional district maps. Text messages created by RedState show that Christopher Brown, the owner of RedState, communicated with Senator Steve Livingston, the chair of the Senate Committee on Redistricting.

“Brown advised Senator Livingston on the specific black voting age populations (BVAP) of potential alternative maps, offered alternative maps that intentionally 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 persons or groups outside the Legislature. These communications between RedState and others are not subject to any claim of legislative privilege. But these communications may be important evidence of a violation of the Constitution or the VRA.”

The NAACP has included texts in a May document between Livingston and Brown. Brown tweeted by a television news reporter about Joe Reed’s objection to the redistricting that was to be done by a court-appointed special counsel in September 2023. Livingston responded, “Really,” and Brown wrote back, “Power grab.”

Christopher Weller, a lawyer representing the group of lawmakers seeking to overturn the subpoena, said in court Thursday that communications between Brown and the lawmakers should be protected because of legislative privilege and precedent.

“I think there is no doubt in this case that Mr. Brown was involved in the legislative process and that he had ongoing relationships with my clients, these nonpartisan legislators,” Weller said. “That’s extremely important because we need to protect the legislature and its ability to interact with its constituent groups, interest groups, advisers and other people so that they can develop and craft the best possible legislation that represents their people. If the court allows disclosure of confidential communications, it will limit the ability of legislators and these groups to have open discussions and actually consider things.”

Weller continued: “The question of how far the judiciary can intervene in the legislature in this context is a fine line.”

Albert Jordan, an attorney representing Red State Strategies, compared the subpoena to one issued in 2022 in another Justice Department case against the Eagle Forum of Alabama, which related to the nonprofit’s legislative activities promoting the Alabama Vulnerable Child Compassion and Protection Act (VCAP), which banned transgender hormones and surgeries for anyone under 19. The Summons was lifted by a federal judge in October 2022.

“I would urge the court to find the privilege to be broad. The law says it is extraordinarily broad. If for some reason it is not protected by legislative privilege, I am reminded of another case that occurred in the last year or so where the Justice Department and plaintiffs in a case involving health care sought to seize all communications between an organization that lobbied the legislature pro bono and the legislature to prove discrimination,” Jordan said in court Thursday.

“It has been recognized that there is a kind of private privilege as well. Even though this argument is strictly focused on legislative privilege, when you look at the end result of this process, you are actually dealing with someone who wants to participate in the process and is deterred by having to spend a lot of time and money just because some legislator has produced a document.”

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