ACLU Seeks More Discovery In Heated Dispute Over New Evidence In Census Case

NEW YORK, NY - APRIL 3: Signs sit behind the podium before the start of a press conference with New York Attorney General Eric Schneiderman to announce a multi-state lawsuit to block the Trump administration from add... NEW YORK, NY - APRIL 3: Signs sit behind the podium before the start of a press conference with New York Attorney General Eric Schneiderman to announce a multi-state lawsuit to block the Trump administration from adding a question about citizenship to the 2020 Census form, at the headquarters of District Council 37, New York City's largest public employee union, April 3, 2018 in New York City. Critics of President Donald Trump's administration's decision to reinstate the citizenship question contend that that it will frighten people in immigrant communities from responding to the census. The Trump administration has stated a citizenship question on the census will help enforce voting rights. (Photo by Drew Angerer/Getty Images) MORE LESS
Start your day with TPM.
Sign up for the Morning Memo newsletter

The ACLU filed a fiery letter in court Tuesday evening, pushing back on the Justice Department’s denials that the Trump administration hid key evidence from the groups challenging the census citizenship question.

The ACLU asked the judge, who will hold a hearing on the dispute Wednesday afternoon, to order additional discovery in light of the recent revelation that a GOP political consultant was involved in the administration’s push to add the question.

The ACLU has accused a top DOJ official, as well as an outside adviser to the administration, of lying in their deposition testimonies —  claims the Department has vehemently denied.

“In any event, the Justice Department’s hands are not clean,” the ACLU said of the Department’s denials. “Defendants’ misconduct is apparent.”

The extraordinary dispute comes as the case over whether the question stays on the 2020 census has already been heard by the Supreme Court, which is expected to decide it in the coming weeks. A major question in the case is whether the official rationale the administration provided for adding the question — allegedly to enhance DOJ Voting Rights Act enforcement — was a fake one meant to cover up the administration’s real reasons for including it.

The ACLU said Tuesday that the newly obtained evidence would have been a “central part” of its “case in chief,” had the group been aware, at the trial court phase, of the involvement of the GOP consultant, who is now deceased.

The group learned of his involvement — and the politically motivated reasons he was pushing for the question to be added — by a chance series of events. The consultant, Thomas Hofellor, a redistricting guru for the GOP, died last year and his back-up hard drives were discovered in January by his estranged daughter, who provided them for an unrelated gerrymandering case in North Carolina. The census-related files on Hofeller’s driver were eventually shared with the challengers in the citizenship question case.

The ACLU said it received the files less than a week before it turned to the court with its accusations that the evidence had been withheld.

Among the files were a secret study Hofellor wrote in 2015 concluding that a census citizenship question would be necessary for Republicans to overhaul redistricting in a way that would boost the GOP and non-Hispanic whites. There was also a file indicating he had ghostwritten a paragraph of a draft justification for a census citizenship question — a draft that was given to a top DOJ official as he was working on writing the administration’s formal request. The official, John Gore is accused of lying about receiving the draft from an outside advisor, Mark Neuman; Neuman is accused of lying about handing the draft over and about Hofeller’s involvement in writing it.

The ACLU is now seeking that the administration turn over documents, including 18 drafts of the request by Gore, it had previously withheld as privileged in litigation. The group also wants previously withheld documents from 10 others in the administration who were involved the drafting of the formal request.

“The Court can get to the bottom of this,” the ACLU said. “Since Defendants have now squarely put Gore’s process of drafting the letter in issue, they have waived deliberative-process privilege over any documents related to Gore’s drafting process.”

The ACLU wants to depose Gore and Neuman again, and also depose a Commerce official who connected Neuman to Gore. The group additionally is seeking any communications with defense counsel that could shed light on the “extent” the department “knew the falsity of Neuman’s testimony.”

In defending its handling of the evidence, the department in a Monday court filing noted that it had provided the draft memo in discovery and represented to the challengers that it came from Gore’s materials.

The ACLU responded Tuesday that the department also represented during discovery that it “was unable to provide any information about the document’s ‘author, recipient, date, or time.'”  The group additionally knocked the department for failing to correct Neuman’s testimony and stressed that the department had previously claimed that Neuman was acting analogously to an agency employee in his advice to Commerce on the census issue.

“Having characterized Neuman in this manner to conceal his communications, Defendants cannot cut Neuman loose now that the true extent of his role has come to light,” the ACLU said.

The ACLU addressed the department’s claim, that rather than rely on Hofellor’s work, Gore appeared to have consulted the briefs in the 2016 Supreme Court case of Evenwel v. Abbott. The case was an unsuccessful lawsuit to force states to draw districts based on citizens rather than total population — and was what prompted Hofellor’s 2015 study, where he concluded the overhaul would advantage Republicans.

The ACLU said Tuesday that that defense only further supported the inference that a GOP-favored redistricting overhaul was the administration’s true reason for adding the question. The group noted that the briefs the department cited also argued that the current data collected for Voting Rights Act enforcement was sufficient for that purpose. The ACLU cited a tweet by an author of one of the briefs who said he was “outraged “that his work was “being misrepresented” in the department’s Monday filing.

Read the filings below:

Latest Muckraker
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Investigations Desk:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: