June 6, 2019
When the hard drives of a deceased Republican strategist revealed new evidence last week about the Trump administration’s decision to add a citizenship question to the 2020 census, many people wondered whether the files hid other revelations.
On Thursday, in a county court in Raleigh, N.C., they got an answer: there is potentially much more.
The late strategist, Thomas Hofeller, was the mastermind behind the G.O.P.’s gerrymandering strategy, and left behind four hard drives and 18 thumb drives containing more than 75,000 files that were found by his estranged daughter after his death in August.
The advocacy group Common Cause said in court documents submitted in Raleigh on Thursday that the Hofeller files include new evidence showing how North Carolina Republicans misled a federal court to prolong the life of their map of state legislative districts, which had been ruled unconstitutional.
The Republicans told the federal court hearing the map case that they would not be able to draw new legislative districts and hold public hearings on them in time for a proposed special election in late 2017 or early 2018. In fact, Common Cause said, Mr. Hofeller’s files show that almost all the work had already been done.
While the advocacy group’s court filing did not include any of the underlying documents from Mr. Hofeller’s storage drives, it stated that a detailed analysis of the maps found among his files showed that new boundaries had been drawn for more than 97 percent of the state’s proposed Senate districts and 90 percent of House districts.
The federal court’s decision later not to call a special election left the existing legislative gerrymander — and a veto-proof Republican majority in both the state House and Senate — in place for roughly an additional year.
Republicans used that extra time to, among other things, try to tilt the state judiciary rightward, remap elected judges’ districts in the state’s largest county, and tweak election rules for the state Supreme Court. They restructured the State Board of Elections to dilute the influence of Roy Cooper, the state’s Democratic governor. And they tacked six proposed constitutional amendments onto last November’s ballot — many of them, like a proposal to make fishing and hunting a constitutional right, aimed at pumping up Republican turnout.
The new evidence about the actions of the Republicans in North Carolina “raises serious questions about the legitimacy of their hold on power in the state,” said Eric Holder, an attorney general in the Obama administration who now heads the National Democratic Redistricting Committee. The committee’s nonprofit arm has financed the Common Cause lawsuit. “They should now explain to the court — and the people of North Carolina — why they are so intent on manipulating the election process for their own benefit,” Mr. Holder said in a written statement.
A leading Republican legislator involved in the redistricting, State Representative David R. Lewis, issued a sweeping denial of the charges in the filing, calling allegations of misrepresentation “a complete fabrication.”
“The legislative maps I presented in 2017 were drawn on a state computer using criteria adopted publicly by the redistricting committee,” he said in a news release late Thursday. “I had no input on or control of any play maps Dr. Hofeller may have drawn on his personal computer on his own time.” Mr. Lewis’s lawyer had speculated earlier that any maps related to the case on the backups had been drawn by Mr. Hofeller in his spare time, out of personal interest.
The latest evidence presages what could be a furious battle involving voting-rights advocates, the two national parties, and even Mr. Hofeller’s heirs, over whether any other secrets on the storage drives will ever see the light of day.
The court filing by Common Cause on Thursday included a letter sent by lawyers for Republican legislative leaders, demanding that lawyers for Common Cause return Mr. Hofeller’s hard drives to his estate and destroy any information that had been copied from them. The demand was issued one day after documents from the Hofeller files surfaced in the litigation over the census citizenship question.
Stephanie Hofeller, the strategist’s daughter, said in a telephone interview that since then, she had come under pressure from allies of her father to keep the remaining content of the hard drives private. She declined to elaborate, beyond saying that the disclosure of the census-related documents had upset them.
She said the pressure had only stiffened her resolve. “They’ve underestimated me,” she said.
The disclosures on Thursday came a week after other documents from the storage drives showed that Mr. Hofeller had been involved in the Trump administration’s plans to add a citizenship question to the 2020 census — and that he had written earlier about how data from such a question could be used to dilute the political power of Hispanic voters and Democrats during redistricting.
During a long career, Mr. Hofeller helped Republican politicians across the country draw political maps in their favor after censuses, a practice known as gerrymandering. He was an architect of a spectacularly successful plan by national Republican officials to dominate state governments and the House of Representatives in this decade by taking control of the state legislatures that draw and approve those maps.
Virtually no public record of Mr. Hofeller’s work on gerrymanders exists beyond the maps themselves, because he was obsessive about leaving no paper trail that could be used against his handiwork in court.
Eight years after the last round of redistricting, there are few if any other active court challenges to gerrymanders that could be affected by documents on Mr. Hofeller’s storage drives. The Supreme Court is expected to rule by the end of June on one of them, the federal court’s decision that a map of North Carolina’s House of Representatives districts, drawn by Mr. Hofeller, is an unconstitutional partisan gerrymander.
Even so, the drives may contain maps, letters and other political documents that could offer more details on how the Republican Party cemented its dominance in state legislatures around the country.
Mr. Hofeller’s storage drives, containing backups of files from his computer, came to the attention of Common Cause last winter through an unusual series of events: His daughter, Ms. Hofeller, found them among her father’s personal effects in October and mentioned them in passing months later to a Common Cause staff member in Raleigh who was helping her find a lawyer to settle a dispute over her father’s estate.
Lawyers for Republican legislative leaders did not contest a subpoena for the backups filed by Common Cause in February. But after a court filing in April mentioned the documents in suggesting that Republican leaders had made false statements to the federal court, their reaction was electric. The filing “stoops to a new low,” they wrote, using “electronic files from a dead man’s computer” to “smear the leadership of the North Carolina legislature.”
A footnote contained a link to a newspaper article about a court battle between Mr. Hofeller and his daughter over custody of her child, and then observed that there was no guarantee that files on the storage drives had not been altered or that Ms. Hofeller had obtained them legally.
Then, the day after documents from the Hofeller backups were filed in the census lawsuit in Manhattan, the lead lawyer for Common Cause in North Carolina, R. Stanton Jones of Arnold & Porter, received a blistering letter from a lawyer for Republican leaders of the North Carolina legislature.
The letter accused Mr. Jones, who also is involved in the census litigation, of “neglecting your professional responsibilities” in his handling of Mr. Hofeller’s storage drives, and asserted that all 75,000 files on them — which appear to contain hundreds of thousands of documents — were “highly confidential” and could not legally be made public.
The letter also cited “grave questions” about whether Ms. Hofeller had acquired them legally and whether Common Cause lawyers acted properly in seeking access to them. And it ordered Mr. Jones to stop reviewing documents in the backups, disclose and retrieve “wrongfully produced” documents shared with outsiders, and return the hard drives to the Hofeller estate after destroying any copies.
Should Mr. Jones refuse, the letter warned, “our clients are considering all options available to them to enforce our rights.”
Mr. Jones’s 18-page response, also filed with the court in Raleigh on Thursday, noted that Republican leaders and their lawyers had known about the storage drives since the subpoena was issued in February, but had made no effort to block their use — and that, in fact, they had shared their contents with others involved in the lawsuit, nullifying any argument that their contents were confidential.
Mr. Jones’s response appeared to lay the legal groundwork for the release of maps and other data whose importance was only summarized in the Common Cause court filing on Thursday. Besides asserting that legislators had misled the federal court about how quickly they could prepare new maps to replace their gerrymander, it also accused them of falsely claiming that race had played no role in the new boundaries.
The legislators told the court that racial data on voters “was not even loaded into the computer used by the map drawer,” ensuring that the newly drawn district boundaries would not be based on race. But every proposed district map found on Mr. Hofeller’s hard drives had been scored for the racial makeup of the district.
The maps were proof, Mr. Jones’s response argued, that the lengthy public hearings and other efforts to solicit input on the shape of new legislative districts were just a cover for decisions that had been made long before.
“The entire public redistricting process in the fall of 2017,” Mr. Jones wrote, “appears to have been a charade.”