Thursday, May 30, 2019

Challengers Allege in Census Lawsuit Filing US Government Witnesses Provided False Testimony About Citizenship Question

Dan Clark of the New York Law Journal and  and Michael Wines ofthe NY Times report that the American Civil Liberties Union, New York Civil Liberties Union, and law firm Arnold & Porter claimed in a new motion with the trial court for the census litigation that, contrary to previous testimony, a longtime Republican redistricting specialist was involved in the question’s genesis. The New York Law Journal story reports:

"Two U.S. government witnesses falsely testified about decision-making about a proposed Census question asking for citizenship status, according to a new filing in the Southern District of New York by civil rights groups suing the Trump administration in a bid to block the question.

Inaccurate statements were given over the formulation of the question as well as the persons involved in developing that part of the decennial head count of persons living in the United States, according to the filing.

The development comes as the U.S. Supreme Court mulls whether to allow the U.S. Department of Commerce to place a question about citizenship on the national survey after a federal judge in Manhattan struck down that attempt in January.

The American Civil Liberties Union, New York Civil Liberties Union and law firm Arnold & Porter Kaye Scholer claimed in a new motion with the trial court that, contrary to previous testimony, a longtime Republican redistricting specialist was involved in the question’s genesis.

That specialist, Dr. Thomas Hofeller, has since died. But the filing Thursday alleged that new information obtained through unrelated litigation showed he had a hand in formulating the citizenship question during the early years of the Trump administration.

“The new evidence reveals that Dr. Thomas Hofeller, the longtime Republican 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 Defendants obscured his role through affirmative misrepresentations,” they said in the filing.

Those groups and the firm represent the New York Immigration Coalition, a plaintiff in the litigation.

They asked in the filing that U.S. District Judge Jesse Furman of the Southern District of New York impose unspecified sanctions or “other appropriate relief,” though what that would look like is unclear in the filing. Furman presided over the initial case last year.

Hofeller was known as a longtime architect of some of the country’s most significant political shifts in areas where Democrats lost power due to redistricting. He advised state legislatures on redrawing political districts in ways that would give Republican candidates an advantage. His work is said to have helped Republicans take back the U.S. House in the 2012 elections.

According to the filing, Hofeller helped form the rationale included in a ghostwritten letter that was eventually sent from the U.S. Department of Justice to the Commerce Department to formally request a citizenship question on the next U.S. Census.

That wasn’t known before the filing; two witnesses from the Trump administration hadn’t mentioned Hofeller in previous testimony about the origin of the citizenship question. Hofeller was not a government employee.

It was previously found through the litigation that John Gore, a senior DOJ official, had ghostwritten the request. The letter was signed by Arthur Gary, general counsel of the justice management division at the DOJ, and sent to the Commerce Department in 2017. The letter claimed that adding the question would help them better enforce the Voting Rights Act.

But the filing Thursday claimed that, before Gore had his turn drafting the request, Hofeller had a hand in forming the rationale for a citizenship question on the U.S. Census. Hofeller helped contribute to an initial draft of the request written by A. Mark Neuman, who served on Trump’s transition team, the filing said. That version was then apparently passed on to Gore.

The revelation was made after some of Hofeller’s digital files were produced as part of discovery in an unrelated case in North Carolina. That case is challenging the state’s legislative district maps on grounds of alleged gerrymandering.

The filing Thursday alleged that a document found in Hofeller’s files contained verbatim language used in the initial draft penned by Neuman.

“Dr. Hofeller’s files produced in discovery in the North Carolina case include a Word document containing a paragraph that sets forth the purported VRA enforcement rationale for adding a citizenship question to the 2020 Census,” the filing said. “That paragraph was incorporated verbatim in the Neuman DOJ Letter that Neuman then delivered to Gore.”

The final letter written by Gore also contained “striking similarities” to language used by Hofeller in an apparent study he published in 2015 on the use of citizen voting age population data for redistricting, rather than a total population count. That study was commissioned by the Washington Free Beacon, a conservative website.

The letter included language similar to what Hofeller said in the study about the history of a citizenship question on the U.S. Census and the use of data from the American Community Survey, another questionnaire sent routinely by the U.S. Department of Commerce.

Hofeller also wrote in the study that adding a citizenship question to the census “would be advantageous to Republicans and Non-Hispanic Whites” and “would clearly be a disadvantage for the Democrats.”

Those facts, together, show that the citizenship question was made with a pretext previously concealed by Neuman and Gore, the filing said.

“The new evidence demonstrates a direct through-line from Dr. Hofeller’s conclusion that adding a citizenship question would advantage Republican and non-Hispanic whites to DOJ’s ultimate letter,” the filing said. “The new evidence thus not only contradicts testimony in this case, but it shows that those who constructed the VRA rationale knew that adding a citizenship question would not benefit Latino voters, but rather would facilitate significantly reducing their political power.”

It’s unclear how the new information may affect, if at all, the decision at the U.S. Supreme Court, which is expected to be handed down in the near future. Two other federal judges have also ruled against the Trump administration’s attempt to ask about citizenship on the census."

Recent ImmigrationProf blog posts on the census litigation appear here and here and here.  

UPDATE 6/4/2019: The DOJ response denying political motivations is discussed here.


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