Courts & the Law, News

Hofeller files: Consulting firm mapmaker co-founded makes ownership claim over his documents

The battle over deceased GOP mapmaker Thomas Hofeller’s digital files is heating up, and a three-judge panel will hear arguments today about why they should put the kibosh on plaintiffs’s possession of them in a state partisan gerrymandering case.

Geographic Strategies, a political consulting firm Hofeller co-founded, filed a motion in June in Common Cause v. Lewis claiming to be the true custodian and owner of many “highly confidential and privileged electronic files” produced without its knowledge by the mapmaker’s daughter, Stephanie Lizon Hofeller.

“Those files contain research and analysis that Geographic Strategies performed for its clients,” the motion states. “In addition, the documents reveal Geographic Strategies’ proprietary methods for analyzing and constructing redistricting maps that the company considers its trade secrets.”

The company asked the court to designate the entirety of the “Hofeller files” as “highly confidential” under an existing protective order to protect the confidentiality of its business records.

“The designation, if given promptly, would prohibit the plaintiffs and those in privity with them from continuing to publish Geographic Strategies’ confidential trade secrets to the world through leaking this data to the media,” the document states.

It should be noted that none of the Hofeller files have actually been made available “to the world.” The plaintiffs filed one document in Wake County Superior Court that alleged the files revealed lawmakers lied to a federal court during redistricting proceedings and misled the public about the process. But, the files themselves were not published, and lawmakers have said the plaintiffs are bluffing.

The plaintiffs did file some documents in an unrelated Census case that showed Hofeller secretly orchestrated the Trump Administration’s addition of a citizenship question on the 2020 Census. But, the information directly contested the Administration’s testimony at the U.S. Supreme Court in a case over the legality of the question.

Hofeller’s co-founder, Dalton Lamar Oldham, filed an affidavit with the court that states he is now the sole owner of Geographic Strategies. Oldham, an attorney from South Carolina, said he has a nationwide clientele of legislators, political parties, organizations and candidates whom he represents in the realm of election law.

The consulting firm was founded in 2011 — Oldham was president and Hofeller was treasurer. Representing clients in redistricting litigation, “a very fact intensive area of the law,” would not be possible without the assistance of a highly-skilled demographic expert and Oldham said he considers almost all of Hofeller’s work and files to be either attorney work product privileged, First Amendment protected or both.

“Dr. Hofeller’s files could and likely do contain hundreds of redistricting plans, emails, expert reports, commissioned studies for clients other than those concerned with the North Carolina redistricting case at issue in this case,” the affidavit states. “Although I am informed attorneys for the plaintiffs had issued a subpoena for Geographic Strategies, LLC prior to this controversy, I have never been served with the subpoena to produce documents in this case, was never provided the opportunity to undertake a review, and never consented to the production of any of its documents.”

If the court does not deem the Hofeller files highly confidential, Geographic Strategies asks in its motion to be declared the producing party of the documents so that it can designate which files should not be seen or shared.

It anticipates an argument from the plaintiffs that they should identify particular documents that constitute confidential trade secrets, privileged communications or work product, but says that would be frivolous because they don’t have access to the documents.

“Had Ms. [Lizon] Hofeller broken into the Geographic Strategies offices and stolen its documents to deliver to plaintiffs, no court would entertain an objection that the company could not specifically identify the precise documents that were stolen,” states a footnote in the motion. “This situation is no different.”

Lizon Hofeller reported getting her father’s documents from her mother and reached out to Common Cause NC to offer them up for the court case. Attorneys subsequently filed a subpoena to get the documents, which none of the defendants objected to at the time.

The three-judge panel today will also hear a motion from the legislative defendants asking to exclude filed and materials produced by Lizon Hofeller, though that court document has not yet been made available to the public. They will also hear a motion from the plaintiffs asking for direction from the court in the case.

Read the full Geographic Strategies motion below and Oldham’s affidavit. Follow reporter Melissa Boughton on Twitter for live updates from the hearing, which starts at 10 a.m.



Geographic Strategies Motion (Text)

Courts & the Law, Defending Democracy, News

Plaintiffs ask three-judge panel to halt voter ID implementation

A three-judge panel is considering blocking North Carolina’s latest attempt to require a photo ID at the ballot box because the plaintiffs in a lawsuit allege the new law is racially discriminatory and will result in eligible voters being disenfranchised.

“North Carolina is not operating on a blank slate here — the legislature has been trying for years now to enact voter ID,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice.

She represents six voters who filed the lawsuit the day Senate Bill 824 was enacted. North Carolina voters passed a constitutional amendment in the fall that requires a photo ID to vote, but it was broad and the bill implementing it is narrow in terms of what type of identification will be accepted.

Two of the plaintiffs are disabled and don’t have photo IDs but have spent a considerable amount of time trying to get them; two are students who are likely to get caught in the hurdle ahead of which schools IDs will be permitted and which won’t; and the two other individuals have photo IDs and used them the last time a voter ID law was enacted but still were disenfranchised by having their votes thrown out of the March 2016 primary.

Riggs said the evidence of disenfranchisement in that primary is a good indicator of how the voter ID law will be implemented again. She presented evidence that the law bears more heavily on one group than another, that the legislative process and history shows ill intent, that lawmakers made decisions relying on data that condemned the previous law and that the legislative process was a departure from the norm.

Even with a reasonable impediment provision in the previous voter ID law — legislators’ “fail safe” — 184 votes cast with that declaration were thrown out, according to information from the State Board of Elections. The majority of those affected were Black voters.

“The reasonable impediment provision does almost nothing to save a law that severely burdens the right to vote,” said Riggs.

An attorney for the legislative defendants, David Thompson, said the legislation passed was modeled on a successful similar measure in South Carolina and that it permits every person who has the right to vote to do so.

He criticized the plaintiffs and said they could not find a single person who wouldn’t be able to vote under the new law. He said the measure was one of the most lenient voter ID laws in the country.

Thompson rebuked the statistics Riggs presented and asked why an African-American Democratic lawmaker would support the bill if it was racially discriminatory. He was referring to Joel Ford, a Senator at the time who is no longer in office.

“The bottom line is that there’s a presumption of good faith,” he said. “Speculation does not give them standing.”

Paul Cox, who represents the state and the State Board of Elections, agreed that the voter ID law was not overly burdensome and asked the three-judge panel not to issue an injunction. If they did though, he asked that internal preparation still be allowed to go on in the event the law was eventually upheld.

The three-judge panel is Judge Nathaniel Poovey, of Catawba, Burke and Caldwell counties, Judge Michael O’Foghludha, of Durham and Judge Vince Rozier, of Wake County. Poovey said they hope to have a decision in the case within a week or two.

Courts & the Law, Defending Democracy, News

U.S. Supreme Court temporarily blocks Census citizenship question based on ‘contrived’ rationale

The Trump Administration’s rationale for creating a citizenship question for the 2020 Census questionnaire “seems to have been contrived,” so the U.S. Supreme Court effectively blocked it by sending its case back to the agency to try explaining it again.

Chief Justice John Roberts wrote the surprise ruling. He didn’t object to the citizenship question itself, but rather took issue with the justification for the question.

“Altogether, the evidence tells a story that does not match the explanation the Secretary [of Commerce Wilbur Ross] gave for his decision,” he wrote. “In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).”

It wasn’t clear how the high court would come down on the issue, since newly discovered documents from the late renowned GOP mapmaker Thomas Hofeller cast doubt on the Trump Administration’s justification for including a citizenship question in its national head count.

The conservative majority on the high court seemed poised to uphold the legality of the citizenship question, but the evidence from Hofeller – found in documents turned over by his daughter after his death – contradicted testimony from the Trump Administration and caused a flurry of lower court filings and rulings.

None of the new evidence appeared to have played a role in Thursday’s opinion.

Attorneys for the Trump Administration told justices it wanted the citizenship question included in the 2020 Census to help enforce federal voting rights laws.

“This rationale is difficult to accept,” Robert’s wrote of the voting rights explanation. “One obvious problem is that the DOJ provided no basis to believe that more precise data would in fact help with Voting Rights Act enforcement.”

Challengers argued the question would lead to Hispanic and immigrant households refusing to fill out the Census, which would create inaccurate data. Inaccurate data in communities could mean a loss of federal funds, resources and fair political representation.

The census occurs every 10 years and provides a count of all individuals living in the U.S. The last census in 2010 asked 10 questions about characteristics such as age, sex and homeownership status. There hasn’t been a broad citizenship question since at least 1950.

North Carolina receives more than $16 billion annually in federal funding from census-guided programs, including school lunches, Medicaid and Section 8 housing.

This is a breaking news story and an updated version will be posted at ncpolicywatch.com.

Courts & the Law, Defending Democracy, News

U.S. Supreme Court won’t wade into partisan gerrymandering; NC 2016 congressional map stands

The U.S. Supreme Court ruled today that partisan gerrymandering claims present political questions beyond the reach of the federal courts.

“The initial difficulty in settling on a ‘clear, manageable and politically neutral’ test for fairness is that it is not even clear what fairness looks like in this context,” wrote Chief Justice John Roberts in the 5-4 opinion. “There is a large measure of ‘unfairness’ in any winner-take-all system.

“Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”

The 5-4 opinion along party lines drives a nail into the coffin of an issue that has long plagued North Carolina and other state legislatures that use political data as a major consideration in the redistricting process to entrench its political party in power.

Attorneys argued the sibling cases at the high court in March, Rucho v. Common Cause and Rucho v. League of Women Voters, in March, but partisan gerrymandering has been an ongoing battle in North Carolina for years. The nonjusticiable ruling also applies to the Democratic partisan gerrymandering case from Maryland, Benisek v. Lamone.

Today’s outcome has been described by voting rights advocates and attorneys arguing against partisan gerrymandering as the worst possible outcome for democracy.

All four Democrat-appointed justices dissented in the opinion, which Justice Elena Kagan wrote.

“Of all times to abandon the Court’s duty to declare the law, this was not the one,” she wrote. “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”

Partisan gerrymandering also is being challenged in the state courts – Common Cause v. Lewis is set for trial July 15. If the case makes it up to the state Supreme Court, there is still a chance partisan gerrymandering could be outlawed in North Carolina.

This is a breaking news story. You can read an updated version here.

Courts & the Law, Defending Democracy, News

Tomorrow: The wait will be over for SCOTUS rulings on gerrymandering, Census

The wait for the U.S. Supreme Court to weigh in on partisan gerrymandering will be over tomorrow.

Chief Justice John Roberts announced Wednesday the high court’s final five opinions would come down at 10 a.m. Thursday — they include the highly anticipated North Carolina sibling cases on partisan gerrymandering (are political considerations in the redistricting process ever unconstitutional?) and the case on the legality of the 2020 Census citizenship question.

Both are cases that affect the state and have potential to affect the entire nation, but the latter became a little more complicated after new evidence of racial intent was brought to light from the Hofeller files — documents that GOP renowned mapmaker Thomas Hofeller’s daughter turned over after his death to the plaintiffs in a state partisan gerrymandering case.

The sibling cases are Rucho v. Common Cause and Rucho v. League of Women Voters; the citizenship case is Commerce Department v. New York. The other cases the court is expected to rule on are Benisek v. Lamone, the Maryland partisan gerrymandering case, Mitchell v. Wisconsin and Carpenter v. Murphy.

There have been 64 opinions from the high court this term, many of which have included interesting lineups. Kimberly Robinson, of Bloomberg Law, reported on Twitter this morning that every Republican-appointed justice on the court has crossed over this term to give Democratic-appointed justices a win in closely-divided cases.

Stay tuned Thursday morning for the final Supreme Court opinions this term. Follow reporter Melissa Boughton on Twitter for live updates as the opinions are announced.