Hofeller files: Lawmakers lied to federal court in 2017, preventing NC from getting special election

By Melissa Boughton, NC POLICY WATCH

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The 2011 North Carolina legislative maps are among the largest racial gerrymanders ever encountered by a federal court, and the state could have held a special election under new voting districts, but GOP lawmakers lied about needing more time to draw them, according to documents from deceased mapmaker Tom Hofeller.

It turns out the maps had been drawn all along and the “public” process the legislature put on at the time was a sham.

“In July 2017, legislative defendants convinced the federal district court in [North Carolina v.] Covington not to order special elections under new remedial maps in 2017, based on legislative defendants’ repeated statements that they had not yet started drawing new districts at all and needed sufficient time to develop criteria, draft the plans, and receive public input,” states a court motion filed Thursday in Wake County Superior Court. “The Hofeller files reveal that Dr. Hofeller had in fact already substantially completed drawing the 2017 plans in June 2017 before legislative defendants stated the process had even begun and a month and a half before the adopted criteria were even introduced and adopted.”

Legislative leaders didn’t approve a contract with Hofeller until the very end of June 2017, and the joint redistricting committee tasked with remedially drawing new maps didn’t even meet publicly for the first time until July 26 the same year.

The committee met August 4 to discuss potential criteria to be used in drawing the new districts and held public comment during that meeting. Criteria for the mapmaking process was not adopted until August 10 and Hofeller wasn’t notified of it until the next day, according to a court filing from 2017 from the legislative defendants in Covington.

Plaintiffs’ revelation in the Thursday court filing was offered in order to show that the legislative defendants in the state partisan gerrymandering case Common Cause v. Lewis can’t claim work-product privilege over Hofeller’s digital data, turned over posthumously by his daughter, because it reveals false statements and material omissions made by lawmakers to the federal district court and the public.

In addition to lying about the maps not having been drawn, the legislative defendants told the federal court and the public that neither they nor Hofeller had any racial data on the new districts being developed.

“They said that ‘data regarding the race of voters … was not even loaded into the computer used by the map drawer to construct the districts,’” states Thursday’s motion. “The Hofeller files reveal that Dr. Hofeller had data on the racial composition of the proposed districts in every one of his draft maps, including drafts prepared after he was formally retained by legislative defendants.”

The Thursday motion was filed after Phil Strach, who is representing the legislative defendants in Common Cause v. Lewis, sent a letter to the plaintiffs’ counsel “purporting to take certain actions with respect to the Hofeller files, suggesting that plaintiffs’ counsel have been ‘neglecting [their] professional responsibilities,’ and making various demands.”

It was addressed to lead plaintiff attorney, R. Stanton Jones of Arnold & Porter, and sent one day after the plaintiffs’ counsel filed a motion in an unrelated case after discovering new evidence in the Hofeller files that the mapmaker helped the Trump Administration orchestrate a citizenship question on the 2020 Census. Jones is involved in the Census lawsuit.

The letter from Strach threatens to “suddenly and unilaterally” designate the entirety of the Hofeller files as “highly confidential/outside attorney’s eyes only” under the consent protective order in the North Carolina redistricting case – which is unauthorized.

Other demands include a cease and desist of reviewing the Hofeller files and of providing any files to third parties. Strach also asks for the names of all individuals employed by plaintiffs’ counsel who have reviewed and produced the files to date and to inform them of whomever shared files with outside law firms.

Strach states in the letter that the Hofeller files must not be accessed or viewed by plaintiffs or their counsel until the legislative defendants have an opportunity to determine whether they and other North Carolina-related files are covered by any applicable privilege.

“While Dr. Hofeller was not an attorney, he often worked with North Carolina attorneys in developing expert reports and other materials for use in litigation,” the letter states.

He also raised more concerns about how Hofeller’s daughter came to possess his files. Strach and his clients have known about the files since they were subpoenaed in February, but never tried to block their use. They have said in court they would like the plaintiffs to return the files to Hofeller’s estate.

“Should you persist in neglecting your professional responsibilities, our clients are considering all options available to them to enforce their rights,” states Strach’s letter.

The Thursday motion asks the Wake County Superior Court to issue a directive to the legislative defendants not to attempt to designate the Hofeller files as “highly confidential” under the three-judge panel’s previously issued consent protective order.

“The true impetus for legislative defendants’ attempted designation of the Hofeller files is laid bare by the timing of their actions,” the court document states. “[They] purported to designate ‘the entirety’ of the files as highly confidential just one day after several of the files – which exposed misconduct by federal government officials – were submitted to a federal district court and the United States Supreme Court in a case of national importance.”

The document states a judge in the Census question case called the new evidence serious at a Wednesday hearing and set the case for a full briefing on potential sanctions.

“Needless to say, concealing alleged misconduct by public officials is not a proper basis to designate materials as highly confidential/outside attorneys’ eyes only under this or any other protective order,” it states.

The Common Cause v. Lewis case is set for trial July 15. The three-judge panel overseeing the case will likely have a hearing on the Thursday motion in the coming weeks.

The U.S. Supreme Court is also set to rule in the coming weeks on two separate but similar partisan gerrymandering sibling cases that could have national implications for legislatures across the country. Common Cause is also a plaintiff in one of those cases.

The accusations that the 2017 maps were drawn ahead of the legislature’s own public schedule could have an impact on some state cases – the first being the Covington case. Not dissimilar to the Census case, plaintiffs in Covington could request sanctions in light of the new evidence.

The NAACP also has a lawsuit working through the state courts challenging constitutional amendments, including the new voter photo ID law, on grounds that the Republican supermajority usurped its power. The 2017 maps that lawmakers allegedly lied about allowed the Republican supermajority to stay in power for another year.

Rep. David Lewis, R-Harnett, who is one of the top lawmakers involved in redistricting, did not respond Thursday to a request for comment from NC Policy Watch about the new evidence.

Bob Phillips, executive director of Common Cause North Carolina, said the Thursday motion confirmed what they’ve long suspected.

“North Carolina’s legislative districts were drawn behind closed doors by an expert gerrymanderer, months earlier than lawmakers claimed,” he said. “No public input, no transparency. All the reasons why it’s time for comprehensive redistricting reform to be adopted now so North Carolina can finally have an election with fair maps.”

There are currently six redistricting reform proposals before the legislature – some of which have bipartisan support – that have yet to be scheduled for a hearing this session.

Lawmakers are also currently in the process of redrawing some Wake County districts under court review after it was ruled they shouldn’t have been changed as part of the last remedial map drawing process.

Read the full Thursday court filing below, including letters between the attorneys in the case.

[pdf-embedder url=”http://rccatalyst.com/wp-content/uploads/2019/06/Common-Cause-v-Lewis-Motion-6-6.pdf”]

 

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