Courts & the Law, Defending Democracy, News

ACLU notifies US Supreme Court of new evidence in citizenship question case

The ACLU informed the U.S. Supreme Court on Thursday that new evidence about deceased mapmaker Tom Hofeller’s involvement in creating the 2020 Census citizenship question ran contrary to the Trump administration’s testimony in a recent hearing.

The high court is set to rule later this month on the legality of the Census question. The new evidence arose after Hofeller’s death, when his daughter Stephanie Hofeller Lizon turned over his hard drives and other digital files to the plaintiffs in Common Cause v. Lewis, a North Carolina partisan gerrymandering case making its way through state court.

The ACLU’s letter states that a district court hearing in the matter is set for June 5, but it wanted to let the high court know it asked for an order to show cause whether sanctions or other appropriate relief are warranted in light of the new evidence.

“The new evidence reveals that Dr. Thomas Hofeller, a longtime redistricting specialist, played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ and that Petitioners obscured his role through affirmative misrepresentations,” the letter states.

It’s not exactly clear if the new evidence can or will have an impact on the Supreme Court’s decision, but Election law expert Rick Hasen, Professor of Law and Political Science at UC Irvine, has speculated it won’t change the conservative votes on the court.

“Those justices, who are usually hostile to the Voting Rights Act, took at face value the government’s assertion that the question was necessary to protect Hispanic voters, despite uncontradicted evidence that voting rights advocates don’t need the census data to defend their cases and despite the Trump administration not bringing a single Voting Rights Act Section 2 case defending Hispanic voters,” Hasen wrote for Slate. “They pointed to foreign practices despite an aversion to citing other countries’ cases in opinions. Most disingenuously, some of the conservative justices rejected the uncontradicted scientific evidence—some offered by those working for the Census Bureau itself—that adding the question will depress turnout, especially among Hispanics.

These justices signaled that they were willing to defer to agency decision-making even when they have questioned such deference in other contexts. Never mind Ross’ real reason for including the citizenship question if Congress gives him broad discretion over how to craft the questionnaire.”

Hasen also discussed timing on Twitter — Census forms need to be printed in July, and the Supreme Court doesn’t typically consider evidence that’s not in the district court record.

“It doesn’t usually take evidence,” he tweeted about the court. “But this case is already unusual given the press of time. There was no opinion (as there usually would be) between the district court opinion and [the Supreme Court from second circuit]. If there WERE time, the Court could dismiss the case and send it back for more fact-finding in the district court, upon a motion from the plaintiffs. It would then consider whether to take the case again. But there’s no time for this.”

He tweeted that he was hard-pressed to think of another situation in which newly-discovered evidence would bear directly on an issue before the court with no time to remand the case back to a lower court.

An inaccurate Census county would have significant consequences not only because the data is used in drawing electoral districts but it also puts hundreds of millions of federal dollars at risk that are allocated based on the same data.

A spokesperson from the Justice Department has denied to media the accusations of Hofeller’s involvement in the developing to Census citizenship question. In one statement reported by the Associated Press, the Justice Department said “these eleventh-hour allegations by the plaintiffs, including an accusation of dishonesty against a senior Department of Justice official, are false.”

“That study played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census,” it said. “The Department looks forward to responding in greater detail to these baseless accusations in its filing on Monday.”

In the meantime, members of Congress and North Carolina officials are starting to weigh in on social media:

This is a case that North Carolina and the rest of the country appears to be keeping a close eye on.

In a sort-of unrelated hearing Thursday — attorneys in Common Cause v. Lewis participated in a teleconference to sort out some discovery issues. The Republican Party was asked by the plaintiffs to respond to a subpoena and they only did so today, at least a month after the deadline.

The Democratic Party was asked by the legislative defendants to turn over support scores. The Party refused and told a three-judge panel Thursday they didn’t think that information was pertinent to the case. The defendants argued the information was probative and necessary and they were entitled to it.

The panel took all matters under advisement to make a decision at a later time.

The trial in that case is set to begin July 15. There is a hearing in the district court level citizenship question case set for June 5. Read the ACLU letter here.

Courts & the Law, Defending Democracy, News

Hofeller files: GOP mapmaker helped develop Trump’s citizenship Census question

The master mapmaker behind North Carolina’s most contentious and allegedly gerrymandered voting districts apparently also played a role in developing the citizenship question proposed for the 2020 Census by the Trump administration.

Thomas Hofeller’s daughter, Stephanie Hofeller Lizon recently turned over several of his hard drives and digital files to voting rights group Common Cause as part of discovery in their North Carolina state partisan gerrymandering case Common Cause v. Lewis. The news released Thursday about Hofeller’s involvement in the 2020 Census question is the first bit of data released publicly from the “Hofeller files.”

The documents reveal for the first time the secret role played by Hofeller in orchestrating the addition of the citizenship question and the Justice Department’s Voting Rights Act rationale for it. The documents further show that Hofeller concluded in an unpublished 2015 study that the citizenship question would significantly harm the political power of Latino communities and be “advantageous to Republicans and Non-Hispanic Whites.”

“In his 2015 study, Dr. Hofeller concluded that adding a citizenship question to the 2020 Census was essential to using only citizens of voting age in redistricting, in lieu of the traditional practice of using total population,” a news release from Common Cause states. “He further found that adding the citizenship question, by facilitating the use of only citizens of voting age in redistricting, would cause heavily Latino legislative districts to lose population and allow Republican mapmakers to pack more Democratic voters into those districts.”

Private plaintiffs filed the documents outlining this information Thursday in the federal action challenging the addition a citizenship question to the 2020 Decennial Census, Department of Commerce v. State of New York, according to the voting rights group.

“The documents filed today further show that, in 2017, Dr. Hofeller helped ghostwrite a letter from the Department of Justice to the Department of Commerce requesting the addition of the citizenship question to the 2020 Census, supposedly to support the Justice Department’s enforcement of the Voting Rights Act,” their news release states.

The New York Times reported about the new development even before Common Cause did early Thursday morning in a significantly researched story the citing court documents that were filed the same day. The reporter there also talked to Hofeller’s daughter, who described how she came across his digital files and why she decided to turn them over to the plaintiffs in Common Cause v. Lewis.

“Sorting through Mr. Hofeller’s personal effects, looking for items she had asked her father to save for her, Stephanie Hofeller came across a clear plastic bag holding four external hard drives and 18 thumb drives, backups of data on Mr. Hofeller’s Toshiba laptop. Her mother gave Ms. Hofeller the backups, which turned out to hold some 75,000 files — family photographs and other personal data, but also a huge trove of documents related to Mr. Hofeller’s work as a Republican consultant.

Late last year, Ms. Hofeller said, she contacted the Raleigh office of the advocacy group Common Cause, seeking its help in finding a lawyer unconnected to her father to help settle his estate. Only after several conversations with a staff member there did she mention the hard drives in passing, she said, remarking almost jokingly that an expert on gerrymanders might find a lot in them that was of interest.

‘My understanding was that anything that would be on these hard drives was duplicative of things that had already been hashed out’ in court challenges to Mr. Hofeller’s maps, she said.”

The U.S. Supreme Court is set to rule on the legality of the citizenship question in just a few weeks — it’s not clear if and how these new documents could affect that ruling.

“This new evidence shows there was plan to undermine the integrity of our Census, manipulate redistricting and rig the elections for partisan advantage,” said Kathay Feng, national redistricting director of Common Cause. “Hofeller knew that adding the citizenship question to the census would erase millions of Latinos and other Americans from redistricting. Now that the plan has been revealed, it’s important for all of us – the courts, leaders, and the people – to stand up for a democracy that includes every American voice.”

Hofeller’s role in proposing the citizenship question is just one example of the type of information contained in the Hofeller files, which will likely continue to have far-reaching affects in more states than North Carolina. NC Policy Watch was the first media outlet to report the existence of the Hofeller files.

There is an unrelated hearing today at 1 p.m. in Common Cause v. Lewis. Check back with NC Policy Watch for updates about that hearing or follow @mel_bough on Twitter for live updates. The trial is set for July 15.

Read the Thursday filings below.



2019 05 30 Letter Motion Dckt 587 0 (Text)



Courts & the Law, Defending Democracy, News

NC Board of Elections recommends salary increase for executive director

The State Board of Elections wants its new executive director to start her tenure with a raise.

Members voted unanimously Thursday to recommend a salary of $140,000 for Karen Brinson Bell, who will take over at the agency June 1. Kim Strach, who has been at the helm for just over six years currently makes $110,762. The new salary is contingent on approval by the Office of State Human Resources.

Democrats on the five-member State Board ousted Strach last week in an effort, they said, to steer the agency’s focus to election administration ahead of 2020. Republicans had pushed to keep Strach in the position, but were out-voted.

Board Chairman Bob Cordle said when he first took over his role, he was surprised after talking to staff to find out how much Strach made.

“I thought it was horribly underpaid and that she has been for some time,” he said.

He asked Josh Lawson, general counsel for the State Board, to look into salaries and how they might seek an increase for the executive director. Lawson told members for context that the Mecklenburg County elections director made about $30,000 more than Strach.

“Our executive director ought to make at least a similar amount of money as the director of Mecklenburg County,” Cordle replied, proposing that she make $135,000 per year.

Republican member David Black amended that proposal to $140,000 because he thought Strach earned it given the events of the past several months — primarily the absentee ballot fraud investigation in the 9th congressional district.

Lawson told Board members it was highly likely the salary increase would be approved.

Lawson turned in his resignation to align with Strach’s departure. The State Board also voted unanimously Thursday to designate Katelyn Love as acting general counsel, effective at the close of business May 31.

Love joined the agency as special counsel in 2016 and was promoted to the position of deputy general counsel in 2017, according to a news release. She is a graduate of the University of North Carolina at Chapel Hill and Duke University School of Law. She previously served as associate counsel at U.S. Citizenship and Immigration Services.

The State Board also certified the results of the 3rd congressional district primary election, which was held April 30, and unanimously set a one-stop early voting plan for Greene County for the second primary in the same district.

Defending Democracy, News

Mark Meadows denounces fellow Republican’s call for Trump impeachment

Mark Meadows

Justin Amash

WASHINGTON — North Carolina Republican Rep. Mark Meadows denounced his GOP colleague and longtime political ally who has called for President Trump’s impeachment.

In the face of blowback from his party, Michigan Republican Rep. Justin Amash doubled down on his arguments that Trump  “engaged in impeachable conduct.” Amash sparred openly with the top House Republican and drew rebukes from members of his own conservative House Freedom Caucus.

“We don’t agree with Justin,” Freedom Caucus Chairman Meadows told reporters as lawmakers returned to Washington to vote on Monday evening. Amash and Meadows were among the nine members who founded the caucus back in 2015, with the aim of shrinking the government.

Meadows and Rep. Jim Jordan (R-Ohio), another founding member, said Monday that they had just come from a Freedom Caucus board meeting where lawmakers were unanimously opposed to Amash’s position. Meadows and Jordan have been among Trump’s most vocal defenders in the wake of Special Counsel Robert Mueller’s investigation.

“I think he’s wrong. I just think Justin’s wrong on this,” Jordan said. “We had a board meeting and every single member of the House Freedom Caucus board felt he was wrong.” Amash was not at that meeting, Jordan said, but he had spoken separately with Amash after his public call for Trump’s impeachment.

Jordan said he doesn’t expect an effort to remove Amash from the Freedom Caucus and Meadows said the group hadn’t had discussions of that nature.

“Right now we’re trying to understand why Justin took the position he did,” Meadows said. “We don’t agree with his position. It’s a poorly informed decision, a conclusion that’s certainly faulty.” Meadows added that hopeful about “convincing” Amash and “sharing documents with him that he has not seen.”

Meadows and Jordan said they don’t expect any other Republican lawmakers to join Amash. “I think he’s going to be alone,” Jordan said.

House Minority Leader Kevin McCarthy slammed Amash in an interview Sunday with Fox News, saying, “He votes more with Nancy Pelosi than he ever votes with me. It’s a question whether he’s even in our Republican conference as a whole.”

Amash fired back on Monday, telling reporters, “I think everyone knows he’s lying. That is typical Kevin.”

Several other House Republicans on Monday highlighted Amash’s long-standing willingness to split from his party. Read more

Courts & the Law, Defending Democracy, News

Democracy NC releases new report detailing impact of early voting uniform hours requirement

Without the last Saturday of early voting, more than half of North Carolina’s 100 counties may lose weekend voting altogether, according to a new report from Democracy NC.

The report, titled “Greater Costs, Fewer Options: The Impact of the Early Voting Uniform Hours Requirement in the 2018 Election,” found that the uniform weekday hours requirements under Senate Bill 325 drained local resources and led many counties to reduce Early Voting sites and weekend voting options in the 2018 midterm election.

The measure requires counties to keep satellite early voting sites open from 7 a.m. to 7 p.m. on weekdays, which massively increased staffing costs. It also explicitly eliminated the popular last Saturday of early voting for all elections after 2018. Legislation was passed just before the election to add the last Saturday back in 2018 only. Democracy NC’s research found that the removal of this popular weekend option in future elections would disproportionately impact young voters, Black and Latinx voters, and voters in rural counties.

Senior Researcher Sunny Frothingham, who authored the report, said the changes under SB 325 not only forced counties across North Carolina to reduce popular polling hours and options in 2018, but also, without legislative changes, will set the stage for more limited access to early voting in 2020’s high-profile presidential election cycle.

“Over the last decade, North Carolina has become infamous for some of the nation’s most harmful voter suppression tactics — including Senate Bill 325, which forced the majority of counties to reduce the number of weekend hours and almost half to eliminate popular voting sites” she said. “Under current law, counties will face the same constraints moving forward, and North Carolinians will lose access to the heavily-used last Saturday in all future elections, including 2020.”

The report acknowledges that 2018 was a high turnout election statewide compared to 2014, but notes that site changes chipped away at county-level performance, especially in rural counties where the distance between voters and early voting sites increased the most.

Other key findings in the report, according to the voting rights organization are:

• Following the passage of SB 325, 43 counties reduced the number of early voting sites offered in 2018 compared to 2014, 51 counties reduced the number of weekend days offered, and 67 counties reduced the number of weekend hours.
• Of the eight rural Eastern counties where a majority of registered voters are Black (Hertford, Edgecombe, Bertie, Northampton, Halifax, Vance, Warren, Washington), four of those counties (Bertie, Northampton, Halifax, and Vance) reduced sites under SB 325, all but Halifax County reduced weekend days, and all eight reduced the number of weekend hours during early voting. None of the eight counties increased sites or weekend options.

Democracy NC Executive Director Tomas Lopez called on the legislature to take immediate action and take up House Bill 893. The 2019 proposal, which was referred to the House Committee on Elections and Ethics Law last month, would restore the early voting law to pre-2013 flexibility, return the mandatory last Saturday of early voting and provide maximum flexibility to county Boards of Elections to design early voting schedules that could vary across satellite sites.

“While uniform voting hours are not inherently negative, as implemented, S325 makes it harder for voters to have their voices heard and for election officials to provide the robust early voting opportunities that North Carolina voters expect and deserve,” he said. “The 2020 election cycle starts early and will involve many more voters than cast ballots in 2018 — it’s time for lawmakers to consider legislation that would give North Carolina’s counties back the flexibility needed to make the best decisions for their resources and voters.”

Read the full report below.



Impact of S325 (Text)