ACLU Court Filing Calls Out DOJ For Docs Withheld In Census Case Litigation

As the Supreme Court justices hear oral arguments over the 2020 census citizenship question, protesters have gathered outside the building in support of a fair and accurate census and demanding to not include the con... As the Supreme Court justices hear oral arguments over the 2020 census citizenship question, protesters have gathered outside the building in support of a fair and accurate census and demanding to not include the controversial question in the next census. Tuesday, April 23, 2019, Washington, D.C. (Photo by Aurora Samperio/NurPhoto via Getty Images) MORE LESS
December 3, 2019 6:12 p.m.

The ACLU let a federal judge know Tuesday that it is not satisfied with the Justice Department’s claims to have “inadvertently” withheld production of documents connected to the census citizenship question litigation.

“It is notable that each of the documents that Defendants conveniently claim ‘were inadvertently not produced in discovery,’ bears directly on Defendants’ actual reasons for adding a citizenship question to the Census,” the ACLU said in a letter to U.S. District Judge Jesse Furman, who is currently considering an ACLU request that he sanction the Trump administration for its conduct in the case.

The Tuesday filing came after the administration, unprompted, admitted to Furman last week that it realized while working on a response to a congressional document request that it hadn’t produced the records in the legal case.

The records were communications from Christa Jones, a longtime Census Bureau official who was for years in contact with Thomas Hofeller, a now-deceased GOP gerrymandering expert. That Jones had been in contact Hofeller about a census citizenship question was only discovered by the question’s legal challengers in April, after lawyers working on the census case obtained some of Hofeller’s files for a separate voting rights case.

Jones sat for an interview with the House Oversight Committee in July, in which she told the committee that Hofeller had discussed with her how a citizenship question could be of use for “the Republican redistricting effort,” according to a committee report on its investigation.

The Jones records the Department filed in court last week revealed that she had worked on a draft of the memo announcing Commerce Secretary Wilbur Ross’ March 2018 decision to add the question, as well as on other communications related to the announcement.

“Because Jones has acknowledged she had many conversations about the citizenship question with Thomas Hofeller and his business partner Dale Oldham… her participation in this critical phase of drafting of the Decisional Memo is of significant interest in determining the true decision-making process and formulation of the VRA rationale,” the ACLU said.

The New York attorney general’s office also filed a letter with the court Tuesday that said that the “belated disclosure” of Jones’ records “indicates broader shortcomings in Defendants’ search for or production of responsive records during this litigation.”

Additionally, the ACLU letter Tuesday addressed the apparent use by two other administration officials of personal phones to conduct Census-related communications. Former DOJ official John Gore received via text from Mark Neuman, an outside advisor on Census issues, a draft of a DOJ request that Census add the question.

Pete Davidson, a lawyer for the Commerce Department, also communicated with Neuman via text, after Neuman met with Gore and had Gore a draft the request.

During the discovery period of the litigation, the DOJ gave the the question’s legal challengers assurances, according to Tuesday’s court filings, that searches of those and other officials’ personal devices weren’t necessary because all the documents relevant to the lawsuit had been forwarded to their government accounts.

The ACLU included those assurances as exhibits in its Tuesday filing and asked the judge specifically for a “full, court-ordered accounting of Defendants’ search protocols.”

The House investigation was what revealed the existence of those Neuman communications, as the committee obtained records from Neuman that were not produced in the litigation. Among those records were also emails Nueman exchanged with Hofeller about a draft request for the question that he later provided to Gore, while Gore was working on the administration’s formal request.

The Neman draft included the same claim — apparently ghostwritten by Hofeller— that Gore would go on to point in his formal request for the question: that it would would help enhance enforcement of the Voting Rights Act. The Supreme Court concluded that rationale was “contrived,” while blocking earlier this year the administration’s attempt to add the question. Yet, the ACLU has continued its push for sanctions and discovery that could further illuminate Hofeller’s role in the effort.

“While Defendants produced tens of thousands of pages of documents, they also happened to ‘inadvertently’ omit critical documents that connect the dots between their ‘contrived’ VRA rationale,” the ACLU said in its Tuesday filing.

Hofeller previously studied how data from a Census citizenship question could be used to overhaul redistricting in a way that would boost “Republicans and Non-Hispanic Whites,” to the detriment of Latino voters.

Read the ACLU’s filings below:

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