IN THE SUPREME COURT OF IOWA

No. 22–0401

Submitted September 14, 2023—Filed February 23, 2024

SENATOR ROBY SMITH, SENATOR JIM CARLIN, SENATOR CHRIS COURNOYER,

SENATOR ADRIAN DICKEY, SENATOR JASON SCHULTZ, SENATOR DAN 

ZUMBACH, FORMER SENATOR ZACH WHITING, REPRESENTATIVE BROOKE BODEN, REPRESENTATIVE BOBBY KAUFMANN, REPRESENTATIVE CARTER NORDMAN, and REPRESENTATIVE JEFF SHIPLEY,

Plaintiffs,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,

Defendant.

Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

Nonparty legislators seek a writ of certiorari to quash subpoenas issued to 

them in underlying litigation challenging recent election legislation on the basis 

of a legislative evidentiary privilege. PETITION FOR WRIT OF CERTIORARI 

GRANTED; WRIT SUSTAINED.

Oxley, J., delivered the opinion of the court, in which all justices joined.

Brenna Bird, Attorney General; Samuel P. Langholz (until withdrawal), 

Chief Deputy Attorney General; W. Charles Smithson, Legal Counsel and 

Secretary of the Senate; and Eric H. Wessan (argued), Solicitor General, for 

plaintiffs.

David R. Fox (argued), Uzoma N. Nkwonta, Melinda K. Johnson, William 

K. Hancock, Alexander F. Atkins, and John M. Geise (until withdrawal), of Elias 

Law Group LLP, Washington, D.C.; and Shayla McCormally of McCormally & 

Cosgrove, PLLC, Des Moines, and for defendant.
2

Alan R. Ostergren of Alan R. Ostergren, PC, Des Moines, for amici curiae 

Republican National Committee, National Republican Senatorial Committee, 

National Republication Congressional Committee, and Republican Party of Iowa.
3

OXLEY, Justice.

In an effort to support its constitutional challenges to recent legislative 

changes to voting procedures, the League of Latin American Citizens of Iowa 

(LULAC) served subpoenas on several Iowa legislators, seeking discovery of communications the legislators had with third parties related to enactment of the 

legislation. The legislators, who were not parties to the underlying litigation, objected to the subpoenas, LULAC filed a motion to compel, and the district court 

granted the motion in part. The nonparty legislators filed a petition for writ of 

certiorari, arguing they are protected from compelled document production by a 

legislative privilege under the Iowa Constitution. 

This certiorari proceeding presents our first opportunity to address 

whether the Iowa Constitution—which lacks a speech or debate clause—nonetheless supports a legislative privilege that protects Iowa legislators from compelled production of documents related to the passage of legislation. The district 

court concluded that the Iowa Constitution provides a privilege, but the privilege 

is conditional rather than absolute. It then concluded that compelling, competing interests—specifically LULAC’s claims that the legislation amounts to unconstitutional viewpoint discrimination—require piercing the privilege with respect 

to most of the documents sought in the underlying litigation.

We now hold that the Iowa Constitution contains a legislative privilege that 

protects legislators from compelled document production and that the privilege 

extends to communications with third parties where the communications relate 

directly to the legislative process of considering and enacting legislation. However, we need not, and therefore do not, decide whether the legislative privilege 

is absolute or qualified. The district court applied the wrong analysis when it 

relied on gerrymandering cases, where some courts hold that “judicial inquiry 

into legislative intent is specifically contemplated as part of the resolution of the 
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core issue that such cases present.” Bethune-Hill v. Va. State Bd. of Elections, 

114 F. Supp. 3d 323, 337 (E.D. Va. 2015). The district court should have considered the underlying claims—which challenge changes to the voting procedures as violating individual voters’ constitutional rights—through the lens of 

the Anderson-Burdick balancing test. See Anderson v. Celebrezze, 460 U.S. 780, 

789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). That test balances the 

“character and magnitude” of the injury to the individual voters’ rights against 

the state’s justification for the changes, Anderson, 460 U.S. at 789, neither of 

which turn on legislative intent. Therefore, the individual legislators’ intent has 

little, if any, relevance to LULAC’s claims. Whether absolute or qualified, the legislative privilege protects the legislators from the requested document production.

I. Background Facts and Proceedings.

The League of Latin American Citizens of Iowa (LULAC) is part of the largest and oldest Latino civil rights organization in the United States, with more 

than 600 members in Iowa alone. In March of 2021, LULAC sued the Iowa Secretary of State and the Iowa Attorney General, challenging several provisions of 

two recently enacted state election laws under the Iowa Constitution. The challenged provisions shorten the time for voters to register, shorten the time to request and send absentee ballots, alter ballot receipt deadlines, limit who can 

return absentee ballots on behalf of another, and reduce polling place hours on 

election day, among other changes. See 2021 Iowa Acts chs. 12, 147 (codified at 

scattered sections of Iowa Code 2022). LULAC alleges the provisions, individually 

or collectively, are targeted at voters based on their political views and impose 

an unconstitutional burden on their members’ rights to vote, violate free speech 

protections, violate equal protection by subjecting absentee voters to arbitrary 

and disparate treatment, and amount to intentional viewpoint discrimination in 
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violation of free speech and equal protection. LULAC seeks declaratory and injunctive relief prohibiting enforcement of both statutes.

That case proceeded to discovery, which is where this certiorari action 

begins. In November and December of 2021, LULAC served third-party 

subpoenas on several nonparty state legislators, including Senators Jim Carlin, 

Chris Cournoyer, Adrian Dickey, Jason Schultz, Roby Smith, and Dan Zumbach;

former senator Zach Whiting; and Representatives Brooke Boden, Bobby 

Kaufmann, Carter Nordman, and Jeff Shipley (collectively “Legislators”). The 

subpoenas sought production of meeting documents and communications 

related to the Legislators’ consideration and enactment of the challenged election 

laws, including the proffered justifications for enactment and the prevalence or 

absence of voter fraud in Iowa elections. The subpoenas specifically limited the 

requests to documents from meetings or communications with “non-Legislators,” 

defined in the subpoenas to exclude current members of the general assembly, 

their predecessors, successors, employees, staff, agents, and representatives.

The Legislators objected to LULAC’s requests, asserting that legislative 

privilege and third-party privacy interests under article I, section 20 of the Iowa 

Constitution protect them from responding. LULAC filed a motion to compel, arguing that communications with third parties outside of the legislature were not 

protected by a legislative privilege, to the extent one even exists under Iowa law. 

Alternatively, LULAC argued that if a legislative privilege exists, it is qualified,

and the important constitutional rights at stake require abrogating the privilege 

in this case. After a hearing held on January 21, 2022, the district court granted 

LULAC’s motion to compel, in large part. 

The district court concluded that a legislative privilege exists under Iowa 

law, the privilege applies to the requested external communications, and its protection extended to the documents being sought by the subpoenas. Nonetheless, 
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the court held that the privilege is qualified and that it must give way to LULAC’s 

interests in this case where the privilege’s underlying purposes are outweighed 

by a compelling, competing interest. The court found that discovery into individual legislators’ intent is “highly relevant” to LULAC’s First Amendment claim, 

which challenges the law-making process itself by alleging the election laws were 

enacted to impose unjustified barriers on Latino voters’ ability to vote and participate in the political process. The court rejected the Legislators’ argument that 

individual legislators’ intent is irrelevant to interpretation of a statute because 

the claim turned on the reason for enactment, not the meaning of the enacted 

legislation. The court ordered the Legislators to comply with most of the subpoenas’ requests, but it denied LULAC’s motion to compel to the extent it sought the

Legislators’ work product that had not been subject to communications with 

nonlegislators. The court entered a protective order to maintain the confidentiality of documents produced in discovery.

On March 2, 2022, the Legislators filed a petition for writ of certiorari to 

challenge the discovery order, which we granted.1

II. Standard of Review.

We review discovery rulings by the district court for abuse of discretion. 

Jones v. Univ. of Iowa, 836 N.W.2d 127, 139 (Iowa 2020). “An abuse of discretion 

consists of a ruling which rests upon clearly untenable or unreasonable 

grounds.” Id. (quoting Lawson v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010)). 

However, the Legislators’ claim that the ruling violates the Iowa Constitution is 

1The Republican Party of Iowa and various Republican National Committees intervened 

in the underlying litigation, and LULAC served discovery on those parties seeking similar information. The district court’s order also addressed LULAC’s motion to compel discovery over the 

intervenors’ objections to the discovery requests, granting in part and denying in part LULAC’s 

motion to compel. This certiorari proceeding is limited to the nonparty Legislators’ challenge to 

the district court’s order directed to them. The intervenors filed an amicus brief supporting the 

Legislators’ position in this proceeding.
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reviewed de novo. Klouda v. Sixth Jud. Dist. Dep’t of Corr. Servs., 642 N.W.2d 

255, 260 (Iowa 2002).

III. Analysis.

This case presents our court with the first opportunity to determine 

whether a legislative privilege exists under Iowa law. Initially, we note there is no 

authority in Iowa that explicitly grants a legislative privilege. The Legislators (and 

their amici) urge us to find that an absolute legislative privilege exists premised 

on principles of separation of powers and article I, section 20 of the Iowa Constitution, which protects “[t]he people[’s] . . . right . . . [to] make known their opinions to their representatives.” LULAC contends that even if we find that some 

form of legislative privilege exists in Iowa, the district court did not abuse its 

discretion because it correctly determined that the privilege is qualified and 

should be abrogated in this case. We begin our analysis by addressing the existence of a legislative privilege under Iowa law. 

A. The Iowa Constitution Provides a Legislative Privilege. The 

Legislators assert they are exempted from responding to LULAC’s subpoena for 

documents related to their legislative duties under a legislative privilege. The 

legislative privilege the Legislators rely on is an evidentiary privilege that protects 

legislators “against both compulsory testimony and compulsory production of 

evidence.” Edwards v. Vesilind, 790 S.E.2d 469, 478 (Va. 2016); see also Brown 

& Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418, 420–21 (D.C. Cir. 

1995) (“A party is no more entitled to compel congressional testimony—or 

production of documents—than it is to sue congressmen.”). It is often invoked to 

prevent “evidence of legislative acts from being used against legislators in 

proceedings.” U.S. EEOC v. Wash. Suburban Sanitary Comm’n, 666 F. Supp. 2d 

526, 531 (D. Md. 2009); see also United States v. Johnson, 383 U.S. 169, 182–
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85 (1966) (addressing legislative privilege in criminal proceedings against 

senator). 

A legislative privilege “is a derivative of legislative immunity.” Wash.

Suburban Sanitary Comm’n, 666 F. Supp. 2d at 531 (addressing the differences 

between legislative immunity and legislative privilege). While legislative privilege 

derives from legislative immunity, they are distinct, and it is important to 

recognize that distinction. See Am. Trucking Ass’ns v. Alviti, 14 F.4th 76, 86 n.6 

(1st Cir. 2021) (“[F]ollowing the Supreme Court’s lead in United States v. Gillock, 

445 U.S. 360, 368–73, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980), we use ‘immunity’ 

only when discussing potential liability and ‘privilege’ only when referring to 

evidentiary issues.”). “Legislative immunity . . . protects legislators from suit 

arising from their legitimate legislative actions.” Wash. Suburban Sanitary 

Comm’n, 666 F. Supp. 2d at 531 (emphasis added). Where it applies, it is 

absolute—protecting legislators not only from civil liability but also from being 

sued in the first place. See Dombrowski v. Eastland, 387 U.S. 82, 84–85 (1967) 

(per curiam) (“[L]egislators engaged ‘in the sphere of legitimate legislative 

activity,’ should be protected not only from the consequences of litigation’s 

results but also from the burden of defending themselves.” (citation omitted)).

Legislative privilege is an evidentiary privilege that serves to protect a legislator 

from being required to produce documents or testify in court proceedings. It may 

arise in situations like here where the legislator is not a party to the underlying 

suit. See Am. Trucking, 14 F.4th at 88, 90–91 (granting writ of mandamus to 

nonparty state officials seeking to quash subpoena issued in a case challenging

the constitutionality of a state statutory scheme under the dormant Commerce 

Clause). 

The Legislators urge us to equate the absolute legislative immunity we 

have previously recognized to an absolute legislative privilege. In Teague v. 
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Mosely, we recognized that absolute immunity can protect local officials from 

civil liability where county supervisors were sued for allegedly failing to provide 

safe conditions after an inmate was assaulted in a county jail. 552 N.W.2d 646, 

649 (Iowa 1996). 

When officials are threatened with personal liability for acts taken 

pursuant to their official duties, they may well be induced to act with 

an excess of caution or otherwise to skew their decisions in ways 

that result in less than full fidelity to the objective and independent 

criteria that ought to guide their conduct. In this way, exposing government officials to the same legal hazards faced by other citizens 

may detract from the rule of law instead of contributing to it.

Id. (quoting Forrester v. White, 484 U.S. 219, 223 (1988)). But we were also careful to limit the immunity to officials acting in a legislative capacity, as opposed 

to an administrative capacity, because “immunity [from liability] is justified and 

defined by the functions it protects and serves, not by the person to whom it 

attaches.” Id. (quoting Forrester, 484 U.S. at 227). Facing civil liability is far different from being forced to turn over documents, particularly when the legislator 

is not even a party to the suit and does not face personal liability. 

Given the distinction between immunity and privilege, we proceed to consider the origins of legislative immunity and its derivative legislative privilege to 

determine whether a legislative privilege exists under the Iowa Constitution. 

In the federal system, legislative immunity derives from the United States 

Constitution’s Speech or Debate Clause, which provides: 

Senators and Representatives . . . shall in all Cases, except Treason, 

Felony and Breach of the Peace, be privileged from Arrest during 

their Attendance at the Session of their respective Houses . . . ; and 

for any Speech or Debate in either House, they shall not be questioned in any other Place.

U.S. Const. art. I, § 6. The roots of the Speech or Debate Clause can be traced 

back to political problems in the English Parliament, predating the United States 

Constitution. See Tenney v. Brandhove, 341 U.S. 367, 372 (1951) (“The privilege 
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of legislators to be free from arrest or civil process for what they do or say in 

legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.”). “England’s experience with monarchs exerting pressure on members of Parliament by using judicial process to make 

them more responsive to their wishes led the authors of our Constitution to write 

an explicit legislative privilege into our organic law.” Gillock, 445 U.S. at 368–69. 

“[T]he purpose of this clause was ‘to prevent intimidation (of legislators) by the 

executive and accountability before a possibly hostile judiciary.’ ” Powell v. 

McCormack, 395 U.S. 486, 502 (1969) (quoting Johnson, 383 U.S. at 181); see 

also Doe v. McMillan, 412 U.S. 306, 311, 316 (1973) (stating that the Clause aims 

to prevent intimidation of legislators by the Executive or a possibly hostile judiciary). Thus, the separation-of-powers doctrine is an important rationale underlying the Speech or Debate Clause. Gillock, 445 U.S. at 369–70.

While the legislative immunity doctrine that is derived from the Speech or

Debate Clause protects members of Congress from facing civil liability, federal 

courts recognize that an additional evidentiary privilege stems from the doctrine 

as well. See Johnson, 383 U.S. at 180–85 (holding that federal prosecutors could 

not question a senator about a speech he gave on the House floor that helped 

form the basis for bribery charges against him). To safeguard “legislative immunity and to further encourage the republican values it promotes,” courts have recognized a corresponding privilege “against compulsory evidentiary process” that 

can be applied “whether or not the legislators themselves have been sued.” EEOC

v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011). In other 

words, the evidentiary privilege helps protect the legislative immunity granted by 

the Speech or Debate Clause. 

Identifying the exact source of the evidentiary privilege is complicated. The 

United States Supreme Court has recognized that the “last sentence of the 
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[Speech or Debate] Clause provides Members of Congress with two distinct privileges.” Gravel v. United States, 408 U.S. 606, 614 (1972). Recall that that sentence provides that congressmembers are “privileged from Arrest during their 

Attendance at the Session of their respective Houses,” and that they “shall not 

be questioned in any other Place” “for any Speech or Debate in either House.” 

U.S. Const. art. I, § 6. Immunity from civil liability (and from being sued) stems 

largely from the first part of the Speech or Debate Clause’s privilege against arrest, see Gravel, 408 U.S. at 614, although courts have also recognized that the 

“shall not be questioned” protection does some work to make the immunity absolute, see, e.g., Am. Trucking, 14 F.4th at 86–87 (quoting only the second part 

of the Clause in identifying the source for absolute legislative immunity from 

suit). 

The protection from being “questioned in any other Place,” U.S. Const. art. 

I, § 6, has been read as the source of the evidentiary privilege based on the recognition that “[t]he Speech or Debate Clause was designed to assure a co-equal 

branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch,” Gravel, 408 U.S. at 616 

(finding the Speech or Debate Clause exempted a senator from answering questions about occurrences during a congressional subcommittee meeting); see also 

Edwards, 790 S.E.2d at 477 (addressing identical clause in the Virginia Constitution and concluding that “[t]he term ‘questioned’ should be understood broadly 

to mean ‘subjected to examination by another body’ ”). Thus, while the legislative 

privilege helps protect the legislative immunity provided by the Federal Speech 

or Debate Clause, courts have relied on the “shall not be questioned” portion of 

the Clause to identify the source for the evidentiary privilege.

The Speech or Debate Clause by its express terms applies only to congresspersons, not state legislators. Nonetheless, federal courts have recognized 
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that the federal common law provides a similar legislative immunity that protects 

state and local lawmakers from civil liability for actions taken in their legislative 

capacities. See Tenney, 341 U.S. at 376 (holding that state legislators were entitled to absolute immunity from suit under federal common law and concluding 

that in enacting 42 U.S.C. § 1983 Congress did not, without more specific language, intend § 1983 liability to “impinge on a tradition so well grounded in history and reason”); see also Bogan v. Scott-Harris, 523 U.S. 44, 49–52 (1998) (extending absolute immunity to local legislators). 

While federal common law provides absolute legislative immunity to state 

lawmakers, the accompanying evidentiary privilege is qualified. See Doe v. 

Pittsylvania County, 842 F. Supp. 2d 906, 920 (W.D. Va. 2012) (“In contrast to 

the privilege enjoyed by members of Congress under the Speech or Debate 

Clause, there is no absolute ‘evidentiary privilege for state legislators [in federal 

prosecutions] for their legislative acts.’ Nor has the Court recognized an absolute 

testimonial privilege for state or local legislators in civil cases.” (citation omitted)

(quoting Gillock, 445 U.S. at 373)). The distinction stems from principles of 

federalism and the federal government’s supremacy over the states. See Gillock, 

445 U.S. at 369–70. Whereas separation-of-powers principles demand that the 

federal judiciary treat the federal legislature as a coequal branch of government, 

the Supremacy Clause in article VI, section 2 of the United States Constitution 

gives the federal judiciary greater license to interfere with state legislative 

functions when necessary to protect federal interests. “That is because the 

separation-of-powers rationale underpinning the Speech or Debate Clause does 

not apply when it is a state lawmaker claiming legislative immunity or privilege 

[in federal court].” Am. Trucking, 14 F.4th at 87 (recognizing nonetheless that 

“federal courts will often sustain assertions of legislative privilege by state 
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legislatures except when ‘important federal interests are at stake,’ such as in a 

federal criminal prosecution” (quoting Gillock, 445 U.S. at 373)). 

State courts have also addressed legislative privilege under their respective 

state constitutions. Forty-three states have adopted a speech or debate clause 

into their state constitutions modeled directly after the Federal Clause. See 

Developments in the Law—Privileged Communications, 98 Harv. L. Rev. 1450, 

1615 n.129 (1985) (noting that since Tenney v. Brandhove, which identified fortyone states with identical speech or debate clauses, Alaska and Hawaii were 

admitted to the union and adopted the full protection of the federal speech or 

debate clause). Notably, the Iowa Constitution does not have a speech or debate 

clause, a point LULAC relies on to argue that the Iowa Constitution does not 

provide a legislative privilege. However, article III, section 11 of the Iowa 

Constitution does provide some of the same protections: “Senators and 

Representatives, in all cases, except treason, felony, or breach of the peace, shall 

be privileged from arrest during the session of the General Assembly, and in 

going to and returning from the same.” Nonetheless, we cannot ignore that while 

our constitution includes the privilege against arrest, it omits the “shall not be 

questioned in any other place” language included in the Federal Speech or 

Debate Clause and that of forty-three other states. Notably, the United States 

Supreme Court noticed the missing “shall not be questioned” provision from our 

constitution, see Tenney, 341 U.S. at 375 n.5 (noting forty-one states have the 

same protection as the Federal Speech or Debate Clause; five states, including 

Iowa have only a “freedom from arrest” provision; and only Florida provides no 

constitutional privileges for its legislators), as has the Iowa Attorney General, see

1979 Op. Iowa Att’y Gen. 174 (1980) (“Noticeably absent from the Iowa 

constitutional scheme is a provision ensuring that legislators will not be held 

accountable in any other tribunal or place for their speeches and debates.”). See 
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also Steven F. Huefner, The Neglected Value of the Legislative Privilege in State 

Legislatures, 45 Wm. & Mary L. Rev. 221, 236–37, 237 n.54 (2003) (identifying 

Iowa as one of “seven states entirely without any constitutional language 

granting the [legislative] privilege”).

Although many state courts have found a broad legislative privilege under 

their state constitutions, we must be cautious in following those state courts, 

given the differences between their constitutional language compared to ours. 

For instance, the Supreme Court of Virginia held that legislators enjoyed absolute legislative privilege with respect to communications made “within the legislative sphere” between legislators and their staff or “alter egos.” Edwards, 790 

S.E.2d at 482–83 (reversing the circuit court in part, noting that it could not 

“speculate as to potentially privileged communications involving third parties” 

given the early stages of discovery). The Edwards v. Vesilind court relied on “[t]he 

term ‘questioned’ ” in its speech or debate clause, giving it a broad application 

in concluding the privilege was absolute, where it applied. Id. at 477. Similarly, 

Maryland’s highest court found a broad legislative privilege stemmed, at least in 

part, from article 10 of the Maryland Declaration of Rights, providing “[t]hat freedom of speech and debate, or proceedings in the Legislature, ought not to be 

impeached in any Court of Judicature,” to quash a subpoena seeking documents 

and testimony from legislators related to drafting redistricting plans. In re 2022 

Legis. Districting of the State, 282 A.3d 147, 193–98 (Md. 2022) (quoting Md. 

Const. Declaration of Rights art. 10). While the majority in that opinion did not 

characterize the privilege as absolute, one dissent recognized it as such. Id. at 

233 (Getty, C.J., dissenting). 

Yet the missing protection against “being questioned” from article III, 

section 11 of the Iowa Constitution does not mean there is no legislative privilege. 

Florida is one of two states lacking any legislative protections in its constitution. 
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Despite “the absence of a Speech or Debate Clause and the strong public policy 

. . . favoring transparency and public access to the legislative process,” the 

Florida Supreme Court still found a legislative privilege exists. League of Women 

Voters of Fla. v. Fla. House of Representatives, 132 So. 3d 135, 144–45 (Fla. 

2013). It relied on the doctrine of separation of powers, a doctrine expressly 

included in the Florida Constitution. Id. (“[The] privilege is based on the principle 

that ‘no branch may encroach upon the powers of another,’ and on inherent 

principles of comity that exist between the coequal branches of government.” 

(citation omitted) (quoting Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 

264 (Fla. 1991))). The court clarified the privilege was not absolute, however, and 

“may yield to a compelling, competing interest.” Id. at 143. 

Turning to our constitution, we conclude that three provisions of the Iowa 

Constitution support recognizing a legislative privilege: article III, section 1, 

which expressly provides for separation of powers between the three branches of 

government; article III, section 11, which gives senators and representatives a 

“privilege[] from arrest during the session of the general assembly;” and article I, 

section 20, which protects “[t]he people[’s] . . . right . . . [to] make known their 

opinions to their representatives.” Iowa Const. art. I, § 20; id. art III, §§ 1, 11.

The principles behind separation of powers are evident in most discussions of 

legislative privilege. See, e.g., Edwards, 790 S.E.2d at 476 (“Legislative privilege 

arose in the young American nation from the same underlying principles [of freedom of speech and legislative immunity in parliamentary law], combined with 

the uniquely American emphasis on separation of powers and representative 

government.”); League of Women Voters of Fla., 132 So. 3d at 144 (“These factors, 

however, are not conclusive because there is another important factor that 

weighs in favor of recognizing the privilege—the doctrine of separation of powers.”). Even though the United States Constitution lacks an express separation-
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of-powers provision, federal courts still recognize that the Speech or Debate 

Clause is one facet of a larger separation-of-powers design. See United States v. 

Brewster, 408 U.S. 501, 508 (1972) (“Our speech or debate privilege was designed to preserve legislative independence, not supremacy.”). 

As we already noted, article III, section 11’s protection against arrest 

serves a similar purpose as the Speech or Debate Clause, even absent the “questioned in any other place” clause. See id. at 521 (“We recognize that the privilege 

against arrest is not identical with the Speech or Debate privilege, but it is closely 

related in purpose and origin.”); Powell, 395 U.S. at 503–05 (explaining that the 

arrest clause ensures “that legislators are free to represent the interests of their 

constituents” without risk of being taken to court). “The immunities of the 

Speech or Debate Clause were not written into the Constitution simply for the 

personal or private benefit of Members of Congress, but to protect the integrity 

of the legislative process by insuring the independence of individual legislators.” 

Brewster, 408 U.S. at 507. In the same way, article III, section 11 enables legislators to exercise their constitutional duties free from threats to their personal 

liberty that could unduly affect the legislative decision-making process. 

Finally, article I, section 20 reinforces our conclusion that the Iowa 

Constitution includes a legislative privilege. See Iowa Const. art. I, § 20 

(protecting the right of the people “to assemble together to counsel for the 

common good; to make known their opinions to their representatives and to 

petition for a redress of grievances”). This provision expresses the importance 

our constitution places on legislators’ role in our tripartite system of government 

to act as their constituents’ voices. See Knorr v. Beardsley, 38 N.W.2d 236, 245 

(Iowa 1949) (“The people, then, have vested the legislative authority inherent in 

them, in the general assembly.”). It also emphasizes the significance of citizen 

involvement in the legislative process. See Mathis v. Palo Alto Cnty. Bd. of 
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Supervisors, 927 N.W.2d 191, 196 (Iowa 2019) (citing article I, section 20 as 

authority for the proposition that “[l]obbying our government is every citizen’s 

constitutional right”). The people’s ability to communicate with their elected 

representatives is vital to the effective exercise of legislative functions. The 

protection of citizens’ role in the legislative process helps ensure the separation 

of powers and supports finding a legislative privilege that limits the unelected 

judicial branch’s power to interfere with elected representatives’ performance of 

official duties. See, e.g., League of Women Voters of Fla., 132 So. 3d at 146 

(recognizing a legislative privilege to “ensure that the separation of powers is 

maintained so that the Legislature can accomplish its role of enacting legislation 

in the public interest without undue interference”). We conclude from these 

provisions, taken together, that a legislative privilege inherently flows from the 

Iowa Constitution. 

B. The Scope of the Legislative Privilege Under the Iowa Constitution 

Extends to Communications with Third Parties Related to Consideration 

and Enactment of Legislation. We next consider the scope of the legislative 

privilege. LULAC intentionally limited the subpoenaed documents to communications with third parties in an attempt to avoid infringing on the legislative process. The requested communications must fall within the scope of the legislative 

privilege to be protected, regardless of whether the privilege is absolute or qualified. 

The requested documents here relate directly to enacting legislation, so 

from that perspective, they are legislative in nature. The United States Supreme 

Court has explained that conduct falls within the legitimate legislative sphere 

when the activities are “an integral part of the deliberative and communicative 

processes by which Members participate in committee and House proceedings 
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with respect to the consideration and passage or rejection of proposed legislation.” Gravel, 408 U.S. at 625; see also Eastland v. U.S. Servicemen’s Fund, 421 

U.S. 491, 504 (1975) (“[T]he power to investigate is inherent in the power to make 

laws because ‘[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended 

to affect or change.’ ” (alteration in original) (quoting McGrain v. Daugherty, 273 

U.S. 135, 175 (1927))). 

But LULAC limited its requests to communications with third parties outside the legislators’ immediate circle of advisors. Recent federal appellate court 

decisions have concluded that the legislative privilege under federal common law 

protects communications between state legislators and outside third parties. In 

In re North Dakota Legislative Assembly, the United States Court of Appeals for 

the Eighth Circuit held that “[c]ommunications with constituents, advocacy 

groups, and others outside the legislature are a legitimate aspect of legislative 

activity. The use of compulsory evidentiary process against legislators and their 

aides to gather evidence about this legislative activity is thus barred by the legislative privilege.” 70 F.4th 460, 464 (8th Cir. 2023). The Fifth Circuit similarly 

held that state legislators’ communications with third parties were protected 

from discovery after finding that the legislative privilege was not waived merely 

because the requested information had been communicated outside the legislature: “An exception for communications ‘outside the legislature’ would swallow 

the rule almost whole, because ‘[m]eeting with “interest” groups . . . is a part and 

parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider.’ ” La Union Del 

Pueblo Entero v. Abbott, 68 F.4th 228, 236 (5th Cir. 2023) (alteration and omission in original) (quoting Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980)). 

While the court acknowledged that the legislative privilege could be waived in 
19

certain circumstances—such as when legislators publicly reveal the information—it was not waived there because “the legislators did not send privileged 

documents to third parties outside the legislative process; instead they brought 

third parties into the process.” Id. at 236–37. 

On the other hand, the Supreme Court of Virginia has limited the scope of 

its constitution’s legislative privilege to communications with only those third 

parties who act as the agent, or alter ego, of the legislator. See Edwards, 790 

S.E.2d at 481. Edwards addressed whether communications with individuals 

beyond a legislator’s paid staff fell within the absolute privilege protected by the 

Virgina speech or debate clause. Id. at 481–82. The court held that communications between legislators and consultants or constituents were protected as long 

as they met an alter ego test: “Provided the legislator has requested the constituent or third party’s assistance in the performance of a legislative act, the privilege applies to that individual as much as to any other alter ego.” Id. at 483. The 

court went on to limit its holding, explaining: “However, unsolicited communications and acts taken by the constituent or third party on his or her own initiative 

will not satisfy this test, even when closely connected to legitimate legislative 

activity.” Id.

Our reliance on article I, section 20, protecting citizens’ involvement in the 

legislative process, as supporting recognition of a legislative privilege leads us to

adopt the reasoning of the federal courts and conclude that the protection provided to the Legislators’ communications with third parties is not limited to only 

those third parties acting as the Legislators’ agents. If the legislative privilege 

extended only to individuals whom a legislator has asked to act on her behalf, a 

citizens’ unsolicited communications to his legislator about specific legislation 

would fall outside the legislative privilege. The subject of the communication is 

what provides the limiting principle. 
20

LULAC’s subpoenas target communications containing information about 

the enactment and consideration of the election legislation. Because the 

Legislators engaged in and received those communications “with respect to the 

consideration and passage or rejection of proposed legislation,” Gravel, 408 U.S. 

at 625, the information falls within the sphere of legislative activity regardless of 

whether it originated from persons outside the legislature. Therefore, we 

conclude that the Legislators’ communications with third parties regarding the 

election legislation fall within the scope of the legislative privilege. 

C. The Requested Communications Are Not Relevant to LULAC’s 

Claims and Are Therefore Protected by the Legislative Privilege. The 

Legislators urge us to apply an absolute legislative privilege, under which our 

analysis would stop once we conclude that the requested discovery falls within 

its protection. LULAC argues that to the extent we recognize a privilege, we 

should affirm the district court’s application of a qualified privilege and conclude 

that the need for the discovery outweighs the privilege. LULAC asserts that the 

Legislators’ communications with third parties will provide evidence that the 

election legislation was enacted to intentionally discriminate against its members 

based on their viewpoints. However, delving into the motive or purpose of 

individual legislators to determine the constitutionality of legislative action is 

confined to cases where such inquiry is required by the very nature of the 

constitutional question presented. See, e.g., United States v. O’Brien, 391 U.S. 

367, 382–83 (1968) (rejecting defendant’s argument—that “the 1965 Amendment 

is unconstitutional as enacted” since Congress’s purpose in implementing the 

law was “to suppress freedom of speech”—because “under settled principles the 

purpose of Congress, as [defendant] uses that term, is not a basis for declaring 

this legislation unconstitutional”) Therefore, we must carefully consider how the 

requested communications fit into LULAC’s underlying claims.
21

We believe the district court applied the wrong framework to LULAC’s 

claims. As we explain, an individual legislator’s intent is not relevant when 

LULAC’s claims are considered under the proper framework, and the legislative 

privilege therefore precludes the requested production even if we recognized only 

a qualified privilege. We need not, and do not, decide whether the legislative 

privilege we adopt today is qualified or absolute. Either way, it protects the 

Legislators in this case. 

The district court rightly rejected the Legislators’ argument that the views 

of individual legislators are irrelevant to legislative intent in the context of statutory interpretation, noting that count IV of LULAC’s petition was “not based on 

the interpretation of the statutes” but was a challenge to “the law-making process itself.” Instead, the district court applied a First Amendment free speech 

framework to conclude that legislative intent is relevant to count IV, asserting 

intentional viewpoint discrimination. The district court relied on Shapiro v. 

McManus as recognizing that laws enacted with “ ‘the purpose and effect of burdening a group of voters’ representational rights’ can be analyzed within the 

framework of [the] First Amendment’s free speech protections.” (Quoting Shapiro,

203 F. Supp. 3d 579, 596 (D. Md. 2016).) Because that free speech analysis requires the challenging parties to produce evidence of specific intent, the district 

court concluded that the requested documents would shed light on legislative 

intent, making it highly relevant to LULAC’s claim and leading the district court 

to grant the motion to compel.

The district court’s reliance on Shapiro is misplaced. Shapiro was a redistricting case where the asserted injury was vote dilution based on political party. 

203 F. Supp. 3d at 598. Initially, we note that Shapiro is a legal dead-end. The 

United States Supreme Court subsequently held that the political gerrymandering challenge to Maryland’s congressional redistricting that was raised in Shapiro
22

presented a nonjusticiable political question. See Rucho v. Common Cause, 139 

S. Ct. 2484, 2506–07 (2019) (“We conclude that partisan gerrymandering claims 

present political questions beyond the reach of the federal courts. Federal judges 

have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”).

Putting that legal hurdle aside, even racial gerrymandering cases like 

Bethune-Hill v. Virginia State Board of Elections raise significantly different issues 

than those posed by the election legislation challenged in this case. Some courts 

have stated that “[r]edistricting litigation presents a particularly appropriate 

circumstance for qualifying the state legislative privilege because judicial inquiry 

into legislative intent is specifically contemplated as part of the resolution of the 

core issue that such cases present.” Bethune-Hill, 114 F. Supp. 3d at 337; see 

also League of Women Voters of Fla., 132 So. 3d at 147 (concluding the legislative 

privilege was outweighed by the “compelling, competing interest [of] ensuring 

compliance with article III, section 20(a) [of the Florida constitution], which 

specifically outlaws improper legislative ‘intent’ in the congressional 

reapportionment process”); cf. J. Pierce Lamberson, Note, Drawing the Line on 

Legislative Privilege: Interpreting State Speech or Debate Clauses in Redistricting 

Litigation, 95 Wash. U. L. Rev. 203, 203 (2017) (recognizing “that [state] Speech 

or Debate Clause protections [are being] watered down in the redistricting 

context” and advocating for use of independent commissions for redistricting to 

avoid “weaken[ing] Speech or Debate Clause protections”). And even then, some 

federal courts applying the federal common law legislative privilege have rejected 

“call[s] for a categorical exception [to the legislative privilege] whenever a 

constitutional claim directly implicates the government’s intent.” Lee v. City of 
23

Los Angeles, 908 F.3d 1175, 1188 (9th Cir. 2018) (noting a categorical “exception 

would render the privilege ‘of little value.’ ” (quoting Tenney, 341 U.S. at 377)). 

We also reject LULAC’s reliance on cases involving Fifth Amendment equal 

protection challenges to voting laws as intentionally racially discriminatory. See, 

e.g., Harness v. Watson, 47 F.4th 296 (5th Cir. 2022) (en banc) (per curiam). 

Voting laws like the disenfranchisement provision added to the Mississippi Constitution are analyzed under “the Arlington Heights standard,” which applies to 

laws “that are facially neutral but have racially disproportionate effects.” Id. at 

303 (emphasis added). Under that “standard, ‘[p]roof of racially discriminatory 

intent or purpose is required to show a violation of the Equal Protection Clause.’ ” 

Id. at 303–04 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 

U.S. 252, 265 (1977)). 

But there is a distinct difference between claims of intentional discrimination premised on race, a suspect class for Fifth Amendment purposes, and those 

premised on political viewpoint. See Brnovich v. Democratic Nat’l Comm., 141 

S. Ct. 2321, 2349 (2021) (“The spark for the debate over mail-in voting may well 

have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives.”); Rucho, 139 S. Ct. at 2502 (“Unlike 

partisan gerrymandering claims, a racial gerrymandering claim does not ask for 

a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. 

A partisan gerrymandering claim cannot ask for the elimination of partisanship.”). Thus, intentional discrimination involving a suspect class does not provide the proper framework, either.

We believe the district court should have applied the balancing approach 

set out by the United States Supreme Court in Anderson v. Celebrezze, 460 U.S. 

780, and Burdick v. Takushi, 504 U.S. 428, to determine whether the requested 
24

documents are relevant to LULAC’s constitutional claims. The underlying 

premise of LULAC’s lawsuit challenges the election laws as burdening their 

members’ individual rights to vote by making the voting process more difficult 

and less accessible. Whether premised on free speech or equal protection, 

challenges to voting regulations as burdening individual voters’ access to the 

polls are more properly considered based on the severity of the burden under the

Anderson-Burdick balancing approach. See Crawford v. Marion Cnty. Election 

Bd., 553 U.S. 181, 204 (2008) (Scalia, J., concurring in judgment) (“To evaluate 

a law respecting the right to vote—whether it governs voter qualifications, 

candidate selection, or the voting process—we use the approach set out in 

[Burdick].”); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 344 (1995) 

(describing Anderson and Burdick as cases where the Court “reviewed election 

code provisions governing the voting process itself”); Daunt v. Benson, 956 F.3d 

396, 406–07 (6th Cir. 2020) (“The Anderson-Burdick test may apply to First 

Amendment claims as well as to Equal Protection claims.”). We adopted the 

Anderson-Burdick framework in recent voting rights challenges under the Iowa 

Constitution. Democratic Senatorial Campaign Committee v. Pate involved a 

dispute over an emergency election directive issued by the secretary of state 

concerning the dissemination of absentee ballot request forms leading up to the 

November 2020 general election during the COVID-19 pandemic. 950 N.W.2d 1, 

2–3, 6–7 (Iowa 2020) (per curiam). We employed the Anderson-Burdick balancing 

test to reject the plaintiffs’ claim that the revised procedures impermissibly 

burdened voting rights in violation of article II, section 1 of the Iowa Constitution, 

as well as the due process and equal protection clauses of the Iowa Constitution. 

Id. at 6–7 (putting the claims “in perspective” and concluding the burden of 

providing a few additional items of personal identification on the request form 

was not so great to “forc[e] us to rewrite Iowa’s election laws less than a month 
25

before the election”). We again used the balancing test in League of United Latin 

American Citizens of Iowa v. Pate to reject a requested temporary injunction to 

block enforcement of a recently enacted election law that limited how county 

auditors could correct defective absentee ballot requests. 950 N.W.2d 204, 209 

(Iowa 2020) (per curiam) (concluding the state’s interest in ensuring the person 

completing an absentee request form is in fact the registered voter supported the 

changed procedure). We believe this framework provides the correct analysis for 

LULAC’s constitutional challenges here.

The Anderson-Burdick test applies to challenges to “generally-applicable 

and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson, 460 U.S. at 788 n.9. This is a flexible standard 

that balances “the character and magnitude of the asserted injury to the rights 

protected by the First and Fourteenth Amendments that the plaintiff seeks to 

vindicate” against “the precise interests put forward by the State as justifications 

for the burden imposed by its rule.” Id. at 789. In Burdick, the United States 

Supreme Court succinctly explained the balancing test as follows:

Under this standard, the rigorousness of our inquiry into the 

propriety of a state election law depends upon the extent to which a 

challenged regulation burdens First and Fourteenth Amendment 

rights. Thus, as we have recognized when those rights are subjected 

to “severe” restrictions, the regulation must be “narrowly drawn to 

advance a state interest of compelling importance.” But when a state 

election law provision imposes only “reasonable, nondiscriminatory 

restrictions” upon the First and Fourteenth Amendment rights of 

voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions.

See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citation omitted) (first quoting 

Norman v. Reed, 502 U.S. 279, 289 (1992); then quoting Anderson, 460 U.S. at 

788). 
26

Under the Anderson-Burdick framework, legislative intent is not part of the

court’s analysis. Rather, courts employ an “analytical process comparable to that 

used by courts ‘in ordinary litigation,’ ” McIntyre, 514 U.S. at 345 (quoting 

Anderson, 460 U.S. at 789), by weighing the state’s interests against the 

respective interests of injured voters and assessing the extent to which the 

contested voting restrictions are justified by the state’s interests, id. Thus, even 

if a voting restriction is found to be severe and subject to a higher level of scrutiny 

under the balancing test, it is the state’s regulatory interest—not the individual 

legislator’s intent—that determines whether the restriction violates voters’ 

constitutional rights.

At this stage of the litigation, the intent of individual legislators has little, 

if any, relevance to LULAC’s claims. See Crawford, 553 U.S. at 203–04 (majority 

opinion) (“[I]f a nondiscriminatory law is supported by valid neutral justifications, 

those justifications should not be disregarded simply because partisan interests 

may have provided one motivation for the votes of individual legislators. The state 

interests identified as justifications for SEA 483 are both neutral and sufficiently 

strong to require us to reject petitioners’ facial attack on the statute.”). Unless 

and until a showing is made that that framework should be supplanted, the 

communications LULAC seeks by subpoena from the Legislators will not further 

its underlying claims, and there is no reason to abrogate the legislative privilege 

in this case, even if we determined it to be a qualified privilege. Cf. Bethune-Hill, 

114 F. Supp. 3d at 337 (abrogating the common law legislative privilege afforded 

state legislators was “particularly appropriate” in redistricting litigation where 

“legislative intent is specifically contemplated as part of the resolution of the core 

issue” involved). 
27

IV. Conclusion.

We reverse the district court’s judgment granting in part LULAC’s motion 

to compel and remand with instructions to quash the subpoenas.

PETITION FOR WRIT OF CERTIORARI GRANTED; WRIT SUSTAINED.