Newly discovered evidence that witnesses misled the court in U.S. Census case

Sometime in the next month, the U.S. Supreme Court is expected to rule in Department of Commerce v. New York, the case in which the Trump administration sought to add a question about U.S. citizenship to the U.S. census. Oral argument before the court was in April.

But new evidence has emerged at the eleventh hour that administration witnesses misled the trial court, and thus tainted the trial court record before the U.S. Supreme Court. The ACLU has filed a motion in the trial court for sanctions and alerted the Supreme Court regarding the new developments.

NBC repots, Trump administration misled courts about origin of plans to add citizenship question to census, ACLU says:

Trump administration witnesses were deliberately misleading when they testified about the origins of a plan to include a citizenship question on the coming census, opponents of the idea said Thursday, citing recently discovered evidence.

While the government has maintained that adding the question was intended to improve enforcement of the Voting Rights Act, the driving force was actually a desire to get more Republicans elected to state legislatures and the House of Representatives, the ACLU said in new court filings.

* * *

The ACLU said the new evidence reveals that the idea originated with Thomas Hofeller, a Republican redistricting specialist, who wrote in letters and memos that the question would create an electoral advantage for “Republicans and Non-Hispanic Whites.” He helped ghostwrite a draft of the Justice Department letter, which adopted his rationale and some of the actual wording, the ACLU said.

Getting better citizenship data, Hofeller argued in newly disclosed documents, would help Republican legislatures create legislative and congressional district maps with fewer Latinos, who tend to vote for Democrats.

“Witnesses misrepresented the origin and purpose of their effort to add a citizenship question to the census. Their goal was not to protect voting rights, but to dilute the voting power of minority communities,” said Dale Ho of the ACLU, which represents the 18 states challenging the administration’s plan.

The New York Times today does some deep-dive reporting on Thomas Hofeller, now deceased, and how this new evidence came to light from his estranged daughter. Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question (excerpts):

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.

NBC Continues:

Commerce Secretary Wilbur Ross told Congress that he ordered the question added after receiving a letter from a Justice Department official, John Gore, who said the data would improve administration of the Voting Rights Act. But the ACLU said Thursday that the suggestion for adding the question, and some of the actual language in that letter, came from a man with a long track record of helping get more Republicans elected by carefully drawing political district boundaries [Thomas B. Hofeller].

The ACLU told a federal judge in New York that the new evidence suggests Gore and an adviser to the Commerce Department [Mark Neuman] “falsely testified about the genesis of DOJ’s request.” They wrote to Judge Jesse Furman, who in January ordered the government not to include the question. Though Furman’s decision is now on appeal, he retains authority to discipline witnesses who did not testify truthfully, the ACLU said.

The judge scheduled a hearing for June 5 in New York on the ACLU’s motion to impose sanctions on the government witnesses. The Justice Department has not yet responded.

The Times adds:

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.

* * *

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.

* * *

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.

Section 2 of the 14th Amendment states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Persons, not “citizens.”

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.

* * *

“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 … 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.

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.

So here’s the thing: none of this is in the trial record before the U.S. Supreme Court. The Court has already taken its vote on this case, and opinions are being drafted, if not already completed and ready for publication.

The misleading testimony was a fraud upon the court. Judge Jesse M. Furman of United States District Court in Manhattan can deal with the sanctions issue before his court next week.

In light of this new evidence, the U.S. Supreme Court should hold over this case to its next term to allow the trial court to sort out this matter, and either reargue the case or file supplemental briefings, or remand the case back to the trial court.

It would be a miscarriage of justice for the U.S. Supreme Court to issue an opinion in Department of Commerce v. New York at this juncture, in light of this new evidence.

UPDATE: Jay Michaelson at The Daily Beast adds, Revealed: Memo Shows Trump Officials Trying to Rig Elections for Whites:

How all this will affect the Supreme Court case is uncertain.

At oral arguments in April, the Court’s conservative majority seemed inclined to take the Department of Commerce’s stated rationale—that citizenship information was necessary to enforce the Voting Rights Act—at face value, refusing to inquire into the mountain of evidence of misconduct and deceit surrounding it.

That evidence included proof that Commerce Secretary Wilbur Ross and his underlings lied to Congress about the process of adding the question, records of meetings between Ross and White House advisors Steve Bannon and Kris Kobach held well before the Department of Justice requested the citizenship question, and reams of expert testimony saying that while there was no reason to collect citizenship data to enforce the VRA, there was no doubt that asking about citizenship would decrease Hispanic response rates, in violation of the Constitution’s Enumeration Clause.

Today’s disclosure is complicated for two reasons.

First, in a way, it actually supports the government’s case. They’ve said all along that the citizenship question was for VRA purposes. Now, it turns out that’s true, in a way: the citizenship question will help weaponize the VRA against minority communities.

That’s certainly not what the government has argued, but it’s not a pretext either.

But the new evidence does show that the government clearly lied, in violation of the Administrative Procedure Act. The Court can and does consider new evidence when it enables the disposition of a case. And here, the memo, the letter, and the lies all amount to a gigantic violation of the law.

“If the government can get away with doing things for the opposite reason of what they say they’re doing,” said Ho, “we are in Orwellian territory.”

It’s possible that the Supreme Court will send the case back to lower courts for deliberation of the new evidence. The ACLU has submitted the evidence to the district court where the case was first heard, arguing for sanctions against the officials who lied under oath.

“The misrepresentations took place in district court, the findings of fact are in the district court,” said Ho. “So that’s where we are now.”

A remand to the district court could doom the citizenship question, since census forms must be printed in the coming months, although Ho told The Daily Beast that the government has lately admitted that, with more money, they can print census forms faster if need be.

The ACLU also filed a notice with the Supreme Court, informing them of the new evidence and the motion for sanctions at the district court.

Apart from the legal issues, however, today’s revelation is a bombshell, even by the standards of the Trump administration. It reveals a years-long effort, led by the White House, to rig the electoral system for partisan and racist goals. At stake is more than just the census, and more than congressional representation. At stake is the principle of “one person, one vote.” At stake is democracy as we know it.