Courts & the Law, Defending Democracy, News

BREAKING: Republican attorneys send legislature prohibited partisan data during remedial mapmaking

The law firm representing Republican legislative leaders in an ongoing partisan gerrymandering case may have just polluted the remedial mapmaking process by sending them partisan data prohibited from use. 

A court last week ordered lawmakers to draw new House and Senate maps after they used unconstitutional partisan gerrymandering to create the 2017 legislative maps, diluting Democratic voting strength. They have 10 days to enact new districts.

The redistricting committees from both chambers met today for the first time to begin the process. They had decided to use baseline maps produced by a plaintiffs’ expert in Common Cause v. Lewis, Jowei Chen.

Chen created 2,000 simulated maps for each chamber for the two-week Common Cause trial — 1,000 maps using only traditional redistricting criteria and 1,000 maps using that criteria and taking incumbency protection into account. Lawmakers did not have the maps and asked both their counsel and the plaintiffs’ counsel for the information.

Chen agreed to send the appropriate map data to lawmakers Monday evening, but in the meantime, Ogletree Deakins — the law firm for the defense — sent the experts’ original files, which contain extensive partisan data, including the partisan scoring of the simulated maps, according to an email sent to the legislature.

The court expressly prohibited lawmakers from using or considering any partisan data at all in the remedial process.

Attorneys for the plaintiffs asked legislative staff to immediately delete the email containing the partisan data and to destroy the data if they already downloaded it. The email also asks staff to inform the plaintiffs if the information was shared with anyone.

The email from Ogletree Deakins was sent just after 4:20 p.m. Monday, and it was sent to all members of the House redistricting committee in addition to legislative staff. The email response to the legislature from the plaintiffs’ attorneys was sent about 20 minutes later. It’s not clear if the initial email containing the partisan data was an accident or intentional.

Both committees remain in recess, but are expected to return shortly. Follow reporter Melissa Boughton on Twitter for live updates.

Courts & the Law, Defending Democracy, News

The New Yorker releases its review of secret Hofeller files

The secret files of the GOP’s most infamous deceased mapmaker, Thomas Hofeller, were obtained by The New Yorker, despite a court order that marks them “confidential” until at least Sept. 17, according to a story the magazine released online today.

David Daley, the author of Ratf**ked: Why Your Vote Doesn’t Count, wrote the article but did not identify how he obtained the Hofeller files. Ratf**ked details how Republicans gained control of state legislatures across the country, and Daley is expected to release another book about gerrymandering later this year.

Before his death, in August, 2018, [Hofeller] saved at least seventy thousand files and several years of e-mails,” the article states. “A review of those records and e-mails — which were recently obtained first by The New Yorker — raises new questions about whether Hofeller unconstitutionally used race data to draw North Carolina’s congressional districts, in 2016. They also suggest that Hofeller was deeply involved in G.O.P. mapmaking nationwide, and include new trails for more potential lawsuits challenging Hofeller’s work, similar to the one on Wednesday which led to the overturning of his state legislative maps in North Carolina.

Hofeller’s files were turned over after his death by his daughter to the plaintiffs in Common Cause v. Lewis, a North Carolina partisan gerrymandering case that was decided earlier this week. A three-judge panel ruled North Carolina lawmakers unconstitutionally used partisan gerrymandering to dilute the collective Democratic vote and ordered new maps to be drawn in two weeks.

There were only about 35 of the 75,000-plus Hofeller files released during the two-week Common Cause trial. The rest of the 75,000-plus documents were designated by the three-judge panel as confidential for 60 days so the political consulting firm Hofeller co-founded could sort through them and determine which documents they could claim ownership of or some other claim of right.

The firm, Geographic Strategies, had initially asked the court to mark the entirety of the Hofeller files as “highly confidential” or to destroy all the documents. The documents were initially designated as confidential until Tuesday, but there was a joint order yesterday extending that time frame to Sept. 17.

The order marking the files as confidential only appeared to apply to parties to the Common Cause case — not any third parties who might have already had access to them.

The reporting about what the Hofeller files contain is not a complete surprise — it appears to confirm what many have speculated about for years: that the mapmaker’s bottom line was to entrench the Republican Party in power for as long as possible, even if it meant discriminating against Black or Democratic voters.

Hofeller’s files include dozens of intensely detailed studies of North Carolina college students, broken down by race and cross-referenced against the state driver’s-license files to determine whether these students likely possessed the proper I.D. to vote. The studies are dated 2014 and 2015, the years before Hofeller helped Republicans in the state redraw its congressional districts in ways that voting-rights groups said discriminated on the basis of race. North Carolina Republicans said that the maps discriminated based on partisanship but not race. Hofeller’s hard drive also retained a map of North Carolina’s 2017 state judicial gerrymander, with an overlay of the black voting-age population by district, suggesting that these maps—which are currently at the center of a protracted legal battle — might also be a racial gerrymander.

Other files provide new details about Hofeller’s work for Republicans across the country. Hofeller collected data on the citizen voting-age population in North Carolina, Texas, and Arizona, among other states, as far back as 2011. Hofeller was part of a Republican effort to add a citizenship question to the census, which would have allowed political parties to obtain more precise citizenship data ahead of the 2020 redistricting cycle. State legislative lines could then have been drawn based on the number of citizen voters, which Hofeller believed would make it easier to pack Democrats and minorities into fewer districts, giving an advantage to Republicans.

The files, according to The New Yorker, also documented his work in other states, including Massachusetts, Mississippi, Alabama, Virginia and Florida. The majority, though, pertained to his work in North Carolina.

The magazine describes one of Hofeller’s “clearest and ugliest gerrymanders” in North Carolina, and maybe the nation, as the congressional-district line that cuts in half the nation’s largest historically black college, North Carolina A&T State University, in Greensboro. It also went into great detail about what his files regarding those lines entailed.

Hofeller’s files, though, show that he created giant databases that detailed the racial makeup, voting patterns, and residence halls of more than a thousand North Carolina A&T students. He also collected similar data that tracked the race, voting patterns, and addresses of tens of thousands of other North Carolina college students. Some spreadsheets have more than fifty different fields with precise racial, gender, and geographic details on thousands of college voters.

A spreadsheet named “NC College Voters for ZIP ID” contains voter data for more than 23,100 North Carolina university students, including thousands in Greensboro. The detail for the North Carolina A&T students is precise: students are sorted by residence hall. That means that Hofeller knew which A&T students lived in Aggie Village, on the north side of campus, and which resided in Morrow or Vanstory Halls, on the south side—along with a detailed racial breakdown and information about their voting status. As Hofeller sought to create two reliably Republican congressional districts, his computer contained information on the precise voting tendencies of one of the largest concentrations of black voters in the area.

And if Hofeller cross-referenced that spreadsheet against another included on his hard drive, this one saved as “80 pct College Voters on Non-Match List”—which identified 5,429 North Carolina college students who appeared to lack the necessary I.D. required to cast a ballot at the time he drew the congressional maps—he could have crafted this line along Laurel Street, with even greater specificity about who would and would not be likely to vote.

The magazine goes into great depth about more files and even emails from Hofeller. When he worried about a blue wave rebuking President Donald Trump undoing his handiwork across the country, the mapmaker still made assurances about his work in North Carolina.

In an August, 2016, e-mail to a consultant to California Senate Republicans, Hofeller expressed frustration about Trump’s hold over the Party, and confidence that his maps would survive any blue wave. “Meanwhile the GOP continues to bury its collective heads in the sand or in other higher places. Trump is only a product to this stupidity,” he wrote. “Do not worry about us in North Carolina in terms of redistricting. Even in the coming political bloodbath we should still maintain majority control of the General Assembly. The Governor cannot veto a redistricting map, so the Democrats hope is that the Obamista judiciary will come to their rescue.”

E-mails suggest that Hofeller’s commitment to the Republican cause never wavered. The day after receiving a grim prognosis for lung cancer and a kidney tumor, Hofeller wrote a friend that he didn’t plan to slow down. “I still have time to bedevil the Democrats with more redistricting plans before I exit,” he wrote, on May 21st. “Look my name up on the Internet and you can follow the damage.”

Read the full New York Times article here.

Courts & the Law, Defending Democracy, News

Two of ‘Exonerated Five’ share stories of injustice in criminal system to heal, help others

Yusef Salaam and Raymond Santana, two members of the “Exonerated Five,” spoke to Duke Law School students Tuesday about experiencing injustice in the criminal system. (Photo by Melissa Boughton)

If North Carolina leaders are serious about addressing racism in the criminal justice system, they should start by putting themselves in the shoes of the accused.

That was the advice this week from Yusef Salaam, who served almost seven years in prison for a rape and assault he didn’t commit.

“If we can look at somebody as a human being, it changes the dynamic and speaks to them really in a different way,” he said. “That’s the basic and most easiest thing that can be done.”

Salaam spoke at Duke Law School this week along with Raymond Santana, both formerly referred to as part of the “Central Park five,” and now referred to as the “exonerated five.” Their stories of surviving the injustice of the criminal justice system were featured in a 2012 Ken Burns documentary and a Netflix miniseries directed by Ava DuVernay called “When They See Us” that was released this year.

Salaam, Santana, Anton McCray, Kevin Richardson and Kevin Wise were teenagers when they were arrested in 1989 in connection with the attack of Trisha Meili, a 28-year-old jogger was brutally assaulted and raped in New York’s Central Park.

They were railroaded by the police and depicted as monsters by the media. They spoke to Duke Law students about how racial bias tainted their case and about the flaws in the system that led to their false confessions, including police coercion and the vulnerability and pressure of being juveniles in interrogations.

“That playing field was uneven going on,” said Santana, who gets asked a lot how he could have confessed to a crime he didn’t commit. “It sets the stage for a false confession to take place.”

Santana was 15 years old when he was interrogated for hours by police about Meili’s attack. He said he didn’t know what Miranda rights were, and the good cop/bad cop tactic detectives used created a pressure that forced him to agree to facts he didn’t even know about.

The teenagers didn’t even write their own confessions – they signed a document written formally by police.

“The injustice here is that we thought people would see that, that society as a whole would be like, ‘wait a minute, something doesn’t make sense,” Santana said. “But they didn’t.”

The men were exonerated in 2002 through DNA evidence. They won a civil rights settlement years later against New York.

A Duke student asks members of the “Exonerated Five” to talk about how they take care of themselves after experiencing trauma in the criminal justice system. (Photo by Melissa Boughton)

One of the students at Duke asked Salaam and Santana how they carry forward and how they take care of themselves and their families after experience such great injustice.

Mental health and wellness is important to them, but so is telling their story to make sure it doesn’t happen to future generations.

“We know that we have a service to fill, a duty,” Santana said.

They still deal with the trauma, he added, and there isn’t a day that goes by that they don’t think about what happened to them, but part of healing is sharing their experience.

Salaam said he wouldn’t change what happened because it made them into the men they were supposed to be.

“It is in those dark times that we find strength,” he said.

Their visit to Duke was particularly poignant since the North Carolina Supreme Court considered a handful of death penalty cases the week before in which the defendants proved racial injustice played a part in their sentencing.

Santana and Salaam encouraged the room full of Duke legal hopefuls to just do their job when they eventually take their places in the criminal justice system. They told them not to cheat or cut corners to get to a bottom line – that’s how mistakes happen.

At the same gathering, officials announced the creation of a new center based at Duke Law School that will apply legal and scientific research to reforming the criminal justice system.

The Duke Center for Science and Justice will be led by Brandon Garrett, the L. Neil Williams, Jr. Professor of Law and a leading scholar of criminal procedure, scientific evidence and wrongful convictions. He also represented Salaam when he was a new lawyer, and he helped with the lawsuits that the Exonerated Five filed against New York City after their convictions were overturned.

Kerry Abrams, James B. Duke and Benjamin N. Duke Dean of the School of Law and Professor of Law (and Garrett’s wife), made the announcement about the new center, which is supported by a $4.7 million grant from the Charles Koch Foundation.

“There couldn’t be a better place to host a major center for the study of the role of science in the criminal justice reform system,” she said. “This center will build on our existing strengths to create new opportunities for students and faculty across the university to study and improve accuracy of evidence in criminal cases, the role of risk in criminal outcomes and the treatment needs of individuals with mental health or substance abuse problems as an alternative to arrest and incarceration.”

She said the Center will allow Duke to extend its reach beyond the law school to collaborate with faculty and students in medicine, public policy and arts and science.

Yusef Salaam meets with Duke Law students after speaking about his experience being wrongfully accused of rape and assault. (Photo by Melissa Boughton)

Courts & the Law, Defending Democracy, News

First redistricting committee meeting set for Monday after court orders new districts

The North Carolina House Redistricting Committee will meet for the first time Monday following a court order to draw new legislative districts within two weeks.

In a significant ruling Tuesday, a three-judge panel from Wake County Superior Court found that Republican lawmakers unconstitutionally used partisan gerrymandering during the past round of redistricting to severely disadvantage Democratic voters. There was a two-week trial in July in the Common Cause v. Lewis case,

The remedial process, which is expected to begin at the scheduled committee meeting, will have to be done in “full public view,” according to the ruling. It also outlines that lawmakers use only traditional redistricting criteria and bans the use of any election data. Lawmakers may not use the unconstitutional maps as a starting point.

The judges did not authorize a stay pending any appeal in the case, but Senate President Pro Tem Phil Berger indicated in a news release yesterday that there would not be more litigation forthcoming.

It’s not clear exactly why Republican lawmakers might not appeal the case — Berger just said they want to put this issue to rest once and for all — but Rick Hasen, Professor of Law and Political Science at UC Irvine, speculated about four possibilities.

  1. They know they will lose in the Democratic-dominated state supreme court, and there is no viable path to federal court review.
  2. They would rather NOT get a holding from the state Supreme Court (this was a three-judge trial court ruling), which would have greater precedential value.
  3. They hope they would have a better chance to have their “nonpartisan” map accepted by the Supreme Court if they throw in the towel (that is, they are trying to avoid a worse court-drawn map).
  4. They will use this ruling to run against the Supreme Court and try for a state constitutional amendment to give them the right to engage in partisan gerrymandering after the 2020 census.

Berger, House Speaker Tim Moore and redistricting leaders Sen. Ralph Hise (R-Mitchell) and Rep. David Lewis (R-Harnett) never responded to an email seeking comment Tuesday from NC Policy Watch.

There’s not yet an agenda for the Monday meeting, which will be held at 1 p.m. in room 643 of the Legislative Office Building. It will be open to the public.

The court plans to appoint a “referee” in the case to help it review the new maps the General Assembly enacts and to draw alternative ones if necessary. All parties in Common Cause v. Lewis have until Friday to submit their recommended referees and qualifications to the court for appointment.

Meanwhile, Democrats and voting rights advocates from across the country continue to celebrate the ruling — which has been described as a blueprint for other states to consider reviewing their own redistricting processes. Former President Barack Obama on Twitter called the ruling a big win for North Carolina and everyone.

“Voters should choose their representatives, not the other way around,” he wrote. “This win is proof that change is always within our reach, on gerrymandering, voting rights, and much more.”

Obama announced a new initiative last week, Redistricting U, to train and organize volunteers across the country in an effort to end partisan gerrymandering. North Carolina was identified as one of 10 priority states where the initiative could have an impact.

Courts & the Law, Defending Democracy, News

NC redistricting win: Court strikes down partisan legislative maps, orders new ones in 2 weeks

North Carolina Republican legislative leaders used partisan intent with surgical precision to carefully craft maps that unconstitutionally diluted Democrats’ collective voting strength, according to a three-judge panel ruling striking down the 2017 House and Senate maps.

“In other words, the Court finds that in many election environments, it is the carefully crafted maps, and not the will of the voters, that dictate the election outcomes in a significant number of legislative districts and, ultimately, the majority control of the General Assembly,” the 357-page document states.

Lawmakers have two weeks, until Sept. 18, to draw new House and Senate districts in “full public view” without the use of election data. They must use traditional redistricting criteria, may not use the unconstitutional maps as a starting point and have to seek court approval if they want to retain anyone other than legislative employees to help with the drafting of the remedial maps, according to the ruling.

The Common Cause v. Lewis ruling was unanimous. Republican legislative leaders released a statement criticizing the ruling, but said they would not appeal and planned to move forward with drawing new maps as ordered.

“This case is the next step in Eric Holder’s drive to use judges to create a Democratic majority,” states the release from Senate President Pro Tem Phil Berger’s Office. “Thwarted at the U.S. Supreme Court, Holder has turned to state courts with Democratic majorities to, in his own words, ‘favorably position Democrats’ to game the redistricting process.”

Holder is a former U.S. Attorney General who chairs the National Democratic Redistricting Committee.

“We disagree with the court’s ruling as it contradicts the Constitution and binding legal precedent, but we intend to respect the court’s decision and finally put this divisive battle behind us,” the release continues. “Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on.”

The court, on its own motion, denied staying the remedial process pending any appeal. It will also use a referee to help evaluate the legislature’s remedial maps and draw new ones if necessary.

“The conclusions of this Court today reflect the unanimous and best efforts of the undersigned trial judges — each hailing from different geographic regions and each with differing ideological and political outlooks — to apply core constitutional principles to this complex and divisive topic,” the document states.

The judges who presided in the case are registered Democrats Alma Hinton and Paul Ridgeway and registered Republican Joseph Crosswhite.

They outlined a “dizzying succession of litigation” voters have been subjected to since 2011 over North Carolina’s legislative and Congressional districts in state and federal courts. Today, they wrote, marks the third time the same trial court has entered judgment. Two times, the North Carolina Supreme Court has spoken. Eight times, the United States Supreme Court has ruled.

Partisan intent predominated in the drawing of the 2017 legislative maps, and the court said it violated these parts of the state Constitution: the equal protection clause, the right to associate, to speak freely through voting, and to participate in free elections.

It is not the province of the Court to pick political winners or losers,” the ruling states. “It is, however, most certainly the province of the Court to ensure that ‘future elections’ in the ‘courts of public opinion’ are ones that freely and truthfully express the will of the People. All elections shall be free — without that guarantee, there is no remedy or relief at all.”

The House districts that must be redrawn are in the following counties: Alamance, Anson-Union, Brunswick-New Hanover, Buncombe, Cabarrus-Davie-Montgomery-Richmond-Rowan-Stanly (except House District 66), Cleveland-Gaston, Columbus-Pender-Robeson, Cumberland, Duplin-Onslow, Franklin-Nash, Forsyth-Yadkin, Guilford (except House districts 57, parts of 59, 61 and 62), Lenoir-Pitt and Mecklenburg.

The Senate districts that must be redrawn are in the following counties: Alamance-Guilford-Randolph (except Senate Districts 24, parts of 27, and all of 28), Bladen-Brunswick-New Hanover-Pender, Buncombe-Henderson-Transylvania, Davie-Forsyth, Duplin-Harnett-Johnston-Lee-Nash-Sampson, Franklin-Wake and Mecklenburg.

Common Cause North Carolina, a named plaintiff in the lawsuit, called the ruling a landmark victory.

“This is a historic victory for the people of North Carolina,” said Executive Director Bob Phillips. “The court has made clear that partisan gerrymandering violates our state’s constitution and is unacceptable. Thanks to the court’s landmark decision, politicians in Raleigh will no longer be able to rig our elections through partisan gerrymandering.

“What’s crucial now is ensuring that the legislature fully complies with the court’s order and draws new legislative districts in a timely fashion, with full transparency and robust public input, absolutely free from gerrymandering.”

The ruling is the first from a state court since the U.S. Supreme Court ruled earlier this year it would officially be leaving partisan gerrymandering limits up to individual states. Lawmakers tried to argue at the time that partisan gerrymandering should be an issue decided by lawmakers, not the judicial branch.

North Carolina Democratic Party Chairman Wayne Goodwin was pleased with the ruling from the Wake County Superior Court.

“From targeting people based on their race to dividing them based on their political beliefs, Republicans for a decade have rigged our state and silenced voters to cling desperately onto power,” he wrote in a statement. “North Carolina Democrats will never stop advocating for people’s right to make their voices heard at the ballot box, and we look forward to taking back control of the General Assembly using fair maps next November.”

Read the full ruling below. Make sure to check NC Policy Watch tomorrow for a full update.

Redistricting Ruling (Text)