As of our last update, the Supreme Court heard oral arguments on one of the cases we have been following challenging the how and when did the genesis arise and from whom did the decision come from to make a material change to the decennial census survey and it is expected they will hand down their decision sometime in late June.
The administration and Commerce Secretary Wilbur Ross have maintained their decision came from Ross and Ross testified to Congress in March 2018 he had decided as a last minute decision to add the question after the Department of Justice made a request.
But the evidence would soon show Ross lied to Congress and it was Trump’s staff and transition team Steve Bannon and Kansas’ secretary of state Kris Kobach who pushed Ross as early as February 2017 to add on a citizenship question to the census.
What the administration did then was work their way backwards through the process in order for it to appear the DOJ made a ‘formal’ request.
It is the plaintiffs allegation, in part, that the administration’s real motive was to intimidate and depress the Hispanics vote as a means to undercount the population for redistricting.
As other cases continue to move forward – along with other lawsuits moving through lower federal courts over gerrymandering and whether state lawmakers in Ohio, Michigan, Maryland, and North Carolina violated the Constitution, it is here, within the North Carolina gerrymandering case, an unexpected turn of events happened that the case in the hands of the Supreme Court, as well as the others, crossed paths when a trove of documents showed that “the Trump administration added a citizenship question to the 2020 census as part of a right-wing plan to change how voting districts are drawn in the United States—a plan hatched to benefit “non-Hispanic whites.””
“Her father, she said, was a brilliant cartographer who was deeply committed to traditional conservative principles like free will and limited government. As a child, she said, she was schooled in those same principles, but every successive gerrymandered map he created only solidified her conviction that he had abandoned them in a quest to entrench his party in permanent control.”
According to a New York Times report, “Thomas B. Hofeller achieved near-mythic status in the Republican Party as the Michelangelo of gerrymandering, the architect of partisan political maps that cemented the party’s dominance across the country.”
But after he died last summer, his estranged daughter discovered hard drives in her father’s home that revealed something else: Mr. Hofeller had played a crucial role in the Trump administration’s decision to add a citizenship question to the 2020 census.
Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats. And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act — the rationale the administration later used to justify its decision.New York Times
Files from four external hard drives and 18 thumb drives belonging to Hoffeller showed that in 2015 he was hired in August 2015 to conduct a study and analysis by the conservative news outlet The Washington Free Beacon that is “financially backed by Paul Singer, a billionaire New York hedge fund manager and major Republican donor.”
Hofeller’s study was to “assess the impact of drawing political maps that were not based on a state’s total population … but on a slice of that population: American citizens of voting age,” concluding that the only way to achieve that was by adding a citizenship question onto the census. Until now, Hofeller was only viewed as bystander.
At the time, the study’s sponsor was considering whether to finance a lawsuit by conservative legal advocates that argued that counting voting-age citizens was not merely acceptable, but required by the Constitution.
Mr. Hofeller’s exhaustive analysis of Texas state legislative districts concluded that such maps “would be advantageous to Republicans and non-Hispanic whites,” and would dilute the political power of the state’s Hispanics.
The reason, he wrote, was that the maps would exclude traditionally Democratic Hispanics and their children from the population count. That would force Democratic districts to expand to meet the Constitution’s one person, one vote requirement. In turn, that would translate into fewer districts in traditionally Democratic areas, and a new opportunity for Republican mapmakers to create even stronger gerrymanders.
Lawyers for Arnold & Porter, the law firm representing Common Cause in the North Carolina suit, subpoenaed the drives in February. By happenstance, the same firm was representing private plaintiffs pro bono in the principal lawsuit opposing the citizenship question, in Federal District Court in Manhattan.NYT
“None of this,” the Daily Beast writes, “was disclosed by Trump administration officials.”
On the contrary, they baldly lied about it, denying that Hofeller had anything to do with the citizenship question when in fact he had written the DOJ letter requesting it. Indeed, senior DOJ official John Gore testified under oath that he drafted the letter, which we now know was copied from Hofeller.
That evidence included proof that Commerce Secretary Wilbur Ross and his underlings lied to Congress about the process of adding the question, records of meetings between Ross and White House advisors Steve Bannon and Kris Kobach held well before the Department of Justice requested the citizenship question, and reams of expert testimony saying that while there was no reason to collect citizenship data to enforce the VRA, there was no doubt that asking about citizenship would decrease Hispanic response rates, in violation of the Constitution’s Enumeration Clause.
How all this will affect the Supreme Court case is unknown. To say it is complicated is an understatement.
First, in a way, it actually supports the government’s case. They’ve said all along that the citizenship question was for VRA purposes. Now, it turns out that’s true, in a way: the citizenship question will help weaponize the VRA against minority communities.
That’s certainly not what the government has argued, but it’s not a pretext either.
But the new evidence does show that the government clearly lied, in violation of the Administrative Procedure Act. The Court can and does consider new evidence when it enables the disposition of a case. And here, the memo, the letter, and the lies all amount to a gigantic violation of the law.
“If the government can get away with doing things for the opposite reason of what they say they’re doing,” said Ho, “we are in Orwellian territory.”
It’s possible that the Supreme Court will send the case back to lower courts for deliberation of the new evidence. The ACLU has submitted the evidence to the district court where the case was first heard, arguing for sanctions against the officials who lied under oath.
“The misrepresentations took place in district court, the findings of fact are in the district court,” said Ho. “So that’s where we are now.”
A remand to the district court could doom the citizenship question, since census forms must be printed in the coming months, although Ho told The Daily Beast that the government has lately admitted that, with more money, they can print census forms faster if need be.
The ACLU also filed a notice with the Supreme Court, informing them of the new evidence and the motion for sanctions at the district court.Daily Beast
For full content and context, read:
Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question; New York Times.
Smoking Gun: Revealed: Memo Shows Trump Officials Trying to Rig Elections for Whites; The Daily Beast.
Hofeller was one of the key players in the wildly successful 2010 REDMAP initiative. In response to President Obama’s victory and the demographic changes in America, REDMAP used big data and dark money to flip otherwise obscure state-level races. That, in turn, flipped several state legislatures, which promptly redrew dozens of electoral maps to favor whites over non-whites, Republicans over Democrats.
Those maps, too, were the creation of Hofeller and his team.
REDMAP’s efforts were so successful that in 2016, despite winning fewer than half of all votes for the House in 2016, Republicans still held an advantage of 241 to 194. In Wisconsin, the most slanted electoral map in memory gave Republicans 60 percent of the seats in the state assembly despite winning only 47 percent of the vote. In Pennsylvania, 44 percent of voters are Democrats, but only 33 percent of its congressional representatives.
Compel, State Of New York et al v. United States Department of Commerce et al, No. 1:18-cv-02921 (S.D.N.Y. May 30, 2019).
Supreme Court Pauses Partisan Gerrymandering Cases in Michigan and Ohio; Governing.com.
“I am mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question. Why not?”
— Commerce Secretary Wilbur Ross, in an email about adding a citizenship question to the census, May 2, 2017
“Department of Justice, as you know, initiated the request for inclusion of the citizenship question. … Because it is from the Department of Justice, we are taking it very seriously, and we will issue a fulsome documentation of whatever conclusion we finally come to.”
— Ross, testifying before the House Ways and Means Committee, March 22, 2018.
According to a June 3rd Oversight Committee press release, both Ross and US AG Barr will have until Thursday to produce unredacted copies of the documents they are withholding in order to avoid a contempt vote.
Gerrymandering: It is the dirty deed both parties are guilty of perpetuating onto the voting public.
Watch: “Both parties have always played the redistricting game. But some of today’s battles have roots in a Supreme Court decision 30 years ago,” and the resultant unholy alliance.