Originally published by The NY Times
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.
Those documents, cited in a federal court filing Thursday by opponents seeking to block the citizenship question, have emerged only weeks before the Supreme Court is expected to rule on the legality of the citizenship question. Critics say adding the question would deter many immigrants from being counted and shift political power to Republican areas.
The disclosures represent the most explicit evidence to date that the Trump administration added the question to the 2020 census to advance Republican Party interests.
In a statement issued on Thursday evening, the Justice Department said the accusations in the filing were baseless and amounted to “a last-ditch effort to derail the Supreme Court’s consideration of this case.” It said Mr. Hofeller’s 2015 study had “played no role in the department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census.”
In Supreme Court arguments in April over the legality of the decision, the Trump administration argued that the benefits of obtaining more accurate citizenship data offset any damage stemming from the likely depressed response to the census by minority groups and noncitizens. And it dismissed charges that the Commerce Department had simply invented a justification for adding the question to the census as unsupported by the evidence.
Opponents said that the Justice Department’s rationale for seeking to add a citizenship question to the census was baldly contrived, a conclusion shared by federal judges in all three lawsuits opposing the administration’s action.
But a majority of the Supreme Court justices seemed inclined to accept the department’s explanation the question was needed to enforce the Voting Rights Act, and appeared ready to uphold the administration’s authority to alter census questions as it sees fit. The justices are expected to issue a final ruling before the court’s term ends in late June.
The filing on Thursday sought sanctions against the defendants in the lawsuit, led by Commerce Secretary Wilbur L. Ross Jr., who were accused of misrepresentations “on the central issues of this case.” Judge Jesse M. Furman of United States District Court in Manhattan set a hearing on the issue for Wednesday.
In nearly 230 years, the census has never asked all respondents whether they are American citizens. But while adding such a question might appear uncontroversial on its face, opponents have argued that it is actually central to a Republican strategy to skew political boundaries to their advantage when redistricting begins in 2021.
Until now, Mr. Hofeller seemed a bystander in the citizenship-question debate, mentioned but once in thousands of pages of lawsuit depositions and evidence. Proof of his deeper involvement surfaced only recently, and only after a remarkable string of events beginning after his death in August at age 75.
Mr. Hofeller was survived by a daughter, Stephanie Hofeller, from whom he had been estranged since 2014. In an interview, Ms. Hofeller said she learned of her father’s death by accident after searching for his name on the internet, and returned to her parents’ retirement home in Raleigh, N.C., to see her mother, Kathleen Hofeller.
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.
In fact, Common Cause had recently filed a new lawsuit in state court, challenging gerrymandered maps of North Carolina’s legislative districts drawn by Mr. Hofeller himself. When the staff member told her of the lawsuit, Ms. Hofeller said, she thought, “Wow — this might be of use.”
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.
The documents cited in the Thursday court filing include an unpublished August 2015 analysis by Mr. Hofeller, who was hired by The Washington Free Beacon, a conservative news outlet financially backed by Paul Singer, a billionaire New York hedge fund manager and major Republican donor. Mr. Hofeller’s charge was to assess the impact of drawing political maps that were not based on a state’s total population — the current practice virtually everywhere in the nation — but on a slice of that population: American citizens of voting age.
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.
The strategy carried a fatal flaw, however: The detailed citizenship data that was needed to draw the maps did not exist. The only existing tally of voting-age citizens, Mr. Hofeller's study stated, came from a statistical sample of the population largely used by the Justice Department to verify that the 1965 Voting Rights Act was ensuring the voting rights of minority groups.
“Without a question on citizenship being included on the 2020 Decennial Census questionnaire,” Mr. Hofeller wrote, “the use of citizen voting age population is functionally unworkable.”
Roughly 16 months later, as President-elect Trump prepared to take office, Mr. Hofeller urged Mr. Trump’s transition team to consider adding a citizenship question to the census, the transition official responsible for census issues, Mark Neuman, said last year in a deposition in the Manhattan census lawsuit.
Mr. Neuman testified that Mr. Hofeller told him that using citizenship data from the census to enforce the Voting Rights Act would increase Latino political representation — the opposite of what Mr. Hofeller’s study had concluded months earlier.
Court records show that Mr. Neuman, a decades-long friend of Mr. Hofeller’s, later became an informal adviser on census issues to Mr. Ross, the commerce secretary. By that summer, a top aide to Mr. Ross was pressing the Justice Department to say that it required detailed data from a census citizenship question to better enforce the Voting Rights Act.
The court filing on Thursday describes two instances in which Mr. Hofeller’s digital fingerprints are clearly visible on Justice Department actions.
The first involves a document from the Hofeller hard drives created on Aug. 30, 2017, as Mr. Ross’s wooing of the Justice Department was nearing a crescendo. The document’s single paragraph cited two court decisions supporting the premise that more detailed citizenship data would assist enforcement of the Voting Rights Act.
That paragraph later appeared word for word in a draft letter from the Justice Department to the Census Bureau that sought a citizenship question on the 2020 census. In closed congressional testimony in March, John M. Gore, the assistant attorney general for civil rights and the Justice Department’s chief overseer of voting rights issues, said Mr. Neuman gave him the draft in an October 2017 meeting.
The second instance involves the official version of the Justice Department’s request for a citizenship question, a longer and more detailed letter sent to the Census Bureau in December 2017. That letter presents nuanced and technical arguments that current citizenship data falls short of Voting Rights Act requirements — arguments that the plaintiffs say are presented in exactly the same order, and sometimes with identical descriptions like “building blocks” — as in Mr. Hofeller’s 2015 study.
In their court filing on Thursday, lawyers for the plaintiffs said that “many striking similarities” between Mr. Hofeller’s study and the department’s request for a citizenship question indicated that the study was an important source document for the Justice Department’s request.
The filing also says flatly that Mr. Gore and Mr. Neuman “falsely testified” under oath about the Justice Department’s actions on the citizenship question.
In an interview on Thursday, Mr. Neuman denied the charge, and said he had worked for years to increase Hispanic representation in public office. “I gave complete and truthful testimony in my deposition,” he said. “My mother immigrated to this country from Central America. Any reference that I would advocate actions that harm the interests of the Latino community is wrong and deeply offensive.”
The Departments of Justice and Commerce had no immediate comment on the filings. Common Cause, which first obtained the hard drives, said the revelations on them were a wake-up call to supporters of the American system. “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 voice,” said Kathay Feng, the group’s national redistricting director.
Ms. Hofeller said her decision to open her father’s files to his opponents was a bid for transparency, devoid of personal or political animus. Although she believed he was undermining American democracy, she said, their estrangement stemmed not from partisan differences, but a family dispute that ended up in court. Ms. Hofeller described herself as a political progressive who despises Republican partisanship, but also has scant respect for Democrats.
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.
“He had me with the idea that we are made to be free,” she said. “And then he lost me.”