Whether state legislative privilege is an absolute bar to discovery in civil rights litigation involving potential voting rights violations or whether such privilege can be overcome by important federal interests

No question identified. : APPLICATION TO EXTEND TIME TO FILE PETITION FOR WRIT OF CERTIORARI TO: The Honorable Brett M. Kavanaugh, Circuit Justice for the Highth Circuit Pursuant to Supreme Court Rule 13.5, Petitioners Turtle Mountain Band of Chippewa Indians, Spirit Lake Tribe, Collette Brown, Wesley Davis, and Zachary King respectfully request that the time to file their petition for a writ of certiorari in this matter be extended for 60 days up to and including Monday February 5, 2024. JUDGMENT FOR WHICH REVIEW IS SOUGHT The Court of Appeals issued its opinion (App. A) on June 6, 2023 and denied rehearing en banc on September 6, 2023 over the dissent of Judge Kelly (App B.). The Eighth Circuit granted a petition for a writ of mandamus filed by Respondents and directed the district court to quash subpoenas to various former and current legislators and legislative staff in an underlying action challenging certain North Dakota legislative districts as violating Section 2 of the Voting Rights Act. JURISDICTION This Court has jurisdiction over the judgment under 28 U.S.C. § 1254(1). Under Supreme Court Rules 13.1, 13.3, and 30.1, a petition for a writ of certiorari is currently due to be filed on or before December 5, 2023. Petitioners are filing this Application more than ten days before that date. S. Ct. R. 13.5. Respondent Michael Howe, in his official capacity as Secretary of State, is unopposed to the requested extension. At the time of this filing, Respondents North Dakota Legislative Assembly, et al., had not responded to the request for a position. Petitioners will notify the Court of their position once it is communicated to them. REASONS JUSTIFYING AN EXTENSION OF TIME 1. The decision below created a circuit split regarding the scope of legislative privilege in civil cases. The court held that state legislative privilege is an “absolute bar” that applies whenever legislators are “acting in the sphere of legitimate legislative activity.” App. A at 3 (internal quotation marks omitted). As a result, current and former legislators could neither be deposed nor required to produce documents in response to civil discovery requests. The court likewise held that the subpoena recipients could not be required to submit a privilege log. App. A at 4. The court denied the petition for a writ of mandamus with respect to a particular legislator who had waived the privilege through prior testimony in the case. App. A at 6-7. Judge Kelly concurred in part and dissented in part. Judge Kelly concluded that the legislative privilege is qualified, can be overcome by important federal interests (including enforcing the Voting Rights Act), can be waived, and that a privilege log “is an appropriate mechanism for resolving privilege disputes that may arise.” App. A at 9. The panel majority’s decision conflicts with other circuits, which have held that legislative privilege can be overcome in some cases to vindicate important federal interests. See LULAC Tex. v. Hughes, 68 F.4th 228, 236 (5th Cir. 2023); Jackson Mun. Airport Auth. v. Harkins, 67 F.4th 678, 687 (5th Cir. 2023); Am. Trucking Ass’ns, Inc. v. Alviti, 14 F.4th 76, 87 (1st Cir. 2021); Lee v. City of Los Angeles, 908 F.3d 1175, 1188 (9th Cir. 2018); Jefferson Cmty. Health Care Ctrs, Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624 (5th Cir. 2017); In re Hubbard, 803 F.3d 1298, 1311 (11th Cir. 2015). The panel’s decision also is inconsistent with this Court’s decision in United States v. Gillock, 445 U.S. 360, 372-73 (1980). In Gillock, this Court held that state legislators do not enjoy the same privilege as federal legislators in criminal cases. The Court reasoned that members of Congress enjoy a privilege rooted in the Constitution’s Speech or Debate Clause while state legislators enjoy only a qualified privilege. Jd. at 373. That qualified privilege is based on principles of comity and yields “where important federal interests are at stake.” Id. Here, the panel majority concluded t