ACLU Flags For SCOTUS New Evidence Issue In Census Case

The US Supreme Court is seen in Washington, DC, on January 31, 2017. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

The challengers in the census citizenship case informed the Supreme Court on Thursday of an evidence issue — in the form of new documents suggesting the question was added to boost GOP electoral advantages — being dealt with currently at the trial court level.

“The new evidence reveals that Dr. Thomas Hofeller, a longtime redistricting specialist, played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ and that Petitioners obscured his role through affirmative misrepresentations,” the letter from the challengers in the case said.

The letter, filed with the Supreme Court’s clerk, didn’t request that the justices take any new actions with regards to the evidence. The Supreme Court heard the case in April and is expected to decide it in the coming weeks.

The revelation of the new evidence came with a request filed Thursday morning with the trial court judge asking that he sanction two witnesses in the case who were involved in the administration’s move to add the question. The challengers alleged they gave false testimony in their depositions.

The judge, U.S. District Judge Jesse Furman has already scheduled a hearing on the request for Wednesday.

According to the documents released Thursday, Hofeller — a go-to gerrymandering expert for the GOP who died last August — was commissioned in 2015 by a Republican mega-donor to do a study on the effect of excluding noncitizens from redistricting. The study, which was never made public, concluded that such a redistricting overhaul “would be advantageous to Republicans and Non-Hispanic
Whites” and “would clearly be a disadvantage for the Democrats,” using the Texas legislature as a case study. It warned, however, that such an overhaul would be “unworkable” without a citizenship question being added to the census.

That study and other key Hofeller documents were only obtained by the challengers because his estranged daughter found his back-up hard drives while going through his belongings after his death.

Hofeller advised the Trump transition team on census issues, and was even the person who first recommended adding the question, according to the deposition of one of the two witnesses who now may be subject to sanctions.

That witness, Mark Neuman — a Trump transition official whom the Commerce Department repeatedly consulted while its sought to add the question in 2017 — wrote a draft of the Justice Department’s request that the question be added to he Census. That draft cribbed verbatim a rationale, apparently written by Hofeller, that was found on a file on his hard drive. The rationale, which was ultimately adopted by the Department, claimed that the data from the question would enhance Voting Rights Act enhancement.

Other key points made in the Justice Department’s formal request could be traced back to Hofeller’s 2015 study, according to filings.

The formal request was written by John Gore — a Trump appointee who at the time led the Justice Department’s civil rights division. He is the other witness being targeted by the challengers for sanctions, for allegedly withholding in his deposition that he wrote the request based on the Neuman draft. (He later admitted receiving the Neuman draft in an interview with Congress). Neuman, meanwhile, is in trouble for his claim in his deposition that Hofeller recommended that the question be added to maximize Latino representation — a claim blatantly contradicted by Hofeller’s own 2015 study.

Neuman, in a statement to NPR, denied that lied in his testimony

Neither the Justice Department nor the Commerce Department responded to TPM’s request for comment on the new documents Thursday morning.

“Witnesses misrepresented the origin and purpose of their effort to add a citizenship question to the census,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement with the filing of the Supreme Court letter. “Their goal was not to protect voting rights, but to dilute the voting power of minority communities. We look forward to Wednesday’s hearing and will keep the Supreme Court aware of any further developments.”

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