MANHATTAN (CN) – A month after Supreme Court appeared primed to allow a citizenship question on the upcoming census, new evidence emerged on Thursday suggesting the controversial query was explicitly designed to benefit white Republicans.
“The new evidence reveals that Dr. Thomas Hofeller, the longtime Republican 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 defendants obscured his role through affirmative misrepresentations,” an attorney for the challengers said in a letter to U.S. District Judge Jesse Furman, who is presiding over the underlying case.
Now deceased, Hofeller has been touted as the one-time “Michelangelo of gerrymandering” in a New York Times story tracing the discovery of the evidence that produced today’s revelations.
While sifting through Hofeller’s personal effects, the guru’s estranged daughter, Stephanie Hofeller, discovered a clear plastic bag holding four external hard drives and 18 thumb drives. She then turned over that bounty to the advocacy group Common Cause, which had been involved in a lawsuit challenging gerrymandered maps in North Carolina.
“By happenstance,” the Times reported, Common Cause had retained the same law firm that spearheaded the New York litigation challenging the citizenship question: Arnold & Porter.
Arnold & Porter attorney John Freedman signed today’s 4-page letter, which points to evidence that two high-ranking government officials perjured themselves: Commerce Secretary Wilbur Ross’ economic adviser Mark Neuman and senior Department of Justice official John Gore.
Back in January, the New York-based Judge Furman ruled that the citizenship question was illegal but not unconstitutional.
In his scathing ruling, Furman suggested that the challengers of the citizenship question could have proven discriminatory intent if the government had not kept Secretary Ross from the witness stand. Ross had claimed that he added the question to enforce the Voting Rights Act, but Furman ruled that was just a pretext.
“To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a ‘government of laws, and not of men,’” Furman wrote at the time, quoting John Adams’ Novanglus Papers. “And it would do so with respect to what Congress itself has described as ‘one of the most critical constitutional functions our federal government performs.’”
Federal judges in California and Maryland also found the citizenship question illegal, and the Supreme Court has yet to rule on an appeal of those rulings.
Pending that outcome, the challengers urged Judge Furman on Thursday to punish the government for concealing evidence. Along with the American Civil Liberties Union, Arnold & Porter represents the state of New York and civil rights groups challenging the question.
“Although the appeal of this court’s judgment is pending, this court retains jurisdiction over ‘collateral matters related to the case,’ such as ‘sanctions’ and ‘contempt-related matters,’” their letter states.
The ACLU traces the genesis of the citizenship question to Hofeller’s study, commissioned by the Washington Free Beacon, a conservative news outlet backed by hedge fund billionaire Paul Singer, in 2015.
The Free Beacon had been the same news organization that hired Fusion GPS — the firm behind the controversial Russia dossier — to collect opposition research on multiple 2016 presidential candidates, including Donald Trump.
“Dr. Hofeller also advised that if a citizenship question were added to the 2020 Census to facilitate use of CVAP in redistricting, the results ‘would be advantageous to Republicans and Non-Hispanic Whites,’ ‘would clearly be a disadvantage for the Democrats,’ and would ‘provoke a high degree of resistance from Democrats and the major minority groups in the nation,’” the letter states.
Making a case study from the Texas State House of Representatives, Hofeller showed such a switch would prompt disproportionate population losses in districts with large Latino populations, such as south Texas, El Paso and the Rio Grande Valley.
“Democratic districts could geographically expand to absorb additional high Democrat precincts from adjacent Republican districts, strengthening the adjoining GOP districts,” Hofeller wrote in this study.
The ACLU claims that Hofeller also “ghostwrote a substantial part” of the letter that Neuman wrote creating a Voting Rights Act pretext to add the question.
“The new evidence demonstrates a direct through-line from Dr. Hofeller’s conclusion that adding a citizenship question would advantage Republican and non-Hispanic whites to DOJ’s ultimate letter,” the letter states. “The new evidence thus not only contradicts testimony in this case, but it shows that those who constructed the VRA rationale knew that adding a citizenship question would not benefit Latino voters, but rather would facilitate significantly reducing their political power.”
The letter made public today contains light redactions disguising Neuman’s allegedly false testimony.
Judge Furman gave the government one day to oppose lifting those redactions in light of the public interest, and he set a hearing on a motion for an order to show cause that the government should be sanctioned for contempt of court.
The Commerce Department deferred comment to the Justice Department, whose spokeswoman rejected what she described as the “eleventh-hour allegations” of the citizenship-question challengers.
“Before today, Mr. Gore had never heard of the unpublished study apparently obtained from the personal effects of a deceased political consultant,” the spokeswoman said. “That study played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census. These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case.”
She added that the government would submit its formal response on Monday.
The challengers emphasize that the Justice Department’s letter to the Commerce Department in 2017 echoed the same themes of Hofeller’s study two years earlier.
Their letter today states: “The two documents contain similar descriptions of the history of a citizenship question on the census and the [American Community Survey], and they make the exact same arguments that (a) the ‘5-year rolling sample’ of the ACS does not align in ‘time’ with decennial census data; (b) ACS data is inaccurate for small units of geography, and (c) the smallest unit of geography on the ACS is Census Block Groups, which are larger than the ‘fundamental’ or ‘basic’ ‘building blocks’ for a redistricting plan and therefore ‘require’ jurisdictions to ‘compute’ or ‘perform’ estimates to impute the CVAP of legislative districts.”
A chart supplementing the letter highlights where they believe the two records are similar.