Federal District Court in Maryland Will Reopen Census Case If Permitted to Do So By Appeals Court Based on Hofeller Evidence Showing Government Intent to Discriminate Against Hispanics

From today’s order:

This Court previously concluded that the Secretary’s articulated reason for adding a citizenship question to the 2020 Census—to improve Voting Rights Act (VRA) enforcement— was a pretext. ECF No. 154 at 108. However, the Court held that based on the trial record, Secretary’s Ross’s actual rationale remained, to some extent, a mystery. Id. at 42, 112. Plaintiffs now claim that new evidence sheds additional light on Secretary Ross’s real reasoning.

Specifically, new evidence shows that a longtime partisan redistricting strategist, Dr. Thomas Hofeller, played a potentially significant role in concocting the Defendants’ pretextual rationale for adding the citizenship question, and that Dr. Hofeller had concluded in 2015 that adding a citizenship question would facilitate redistricting methods “advantageous to Republicans and Non-Hispanic Whites.” ECF No. 162-3 at 68, 125–126, 128. Before fully exploring the meaning of this new evidence, it is useful, for context, to first review the evidence established at trial. …

The significance of this study found in Dr. Hofeller’s files is made manifest through evidence previously placed in the record. Existing evidence showed that Dr. Hofeller was “the first person that said something” to Mark Neuman about adding a citizenship question to the 2020 Census. ECF No. 162-4 at 51:7–16.4 Hofeller and Neuman were “good friends” for decades, id. at 137:11–12, and they spoke several times about the citizenship question during the Presidential transition when Neuman was serving as the point person for all issues related to the Census. Id. at 37:16–22; ECF No. 154 at 9; id. at 14 (quoting PX-614). Neuman played an outsized role in advising Secretary Ross and his staff on censusrelated decisions. See e.g., PX-87 (AR 3709); PX-614 COM_DIS00019687) (AR); PX-38 (AR 2051_0001); PX-145 (AR 11329); PX-592 (COM_DIS00017396) (AR); PX-52 (AR 2482); PX193. After serving as the point person for all issues related to the Census during the presidential transition in 2016 and 2017, Neuman went on to serve as a “trusted advisor” to Secretary Ross on Census issues. ECF No. 154 at 9; id. at 14 (quoting PX-614). When Secretary Ross complained in May 2017 that nothing had been done about his “months-old request to add a citizenship question,” see ECF No. 154 at 10, his chief of staff asked whether she should try to set up another meeting with Neuman, and Ross responded that they should try to “stick Neuman in there to fact find.” PX-83. On September 7, 2017, the Department of Commerce’s general counsel, Peter Davidson, expressed “concern” about contacting Kansas Secretary of State Kris Kobach about Census matters, and instead
recommended that the team “set up a meeting with” someone “trusted” like Neuman before doing “anything externally.” PX-614 at 3 (COM_DIS00019687) (AR). Days later, on September 13, 2017, John Gore, the then-Acting Assistant Attorney General for Civil Rights, first connected with Department of Commerce staff about the citizenship question issue. PX-68 (AR 2659); PX59 (AR 2628); PX-60 (AR 2634) Once Gore—the political appointee who would go on to ghostwrite DOJ’s request—had been recruited to solicit the addition of a citizenship question, Neuman communicated with him about the pretextual rationale upon which DOJ could base its request. PX-52; ECF No. 103-10 at 437–38; See also ECF No. 103-8 at 155–56.

And that leads to the significance of the second key piece of newly discovered evidence. It now appears that Dr. Hofeller worked with Neuman to concoct the VRA pretext that Neuman then provided to Gore on the Secretary’s behalf. ECF No. 162-3 at 2; ECF No. 162-4 at 112:5- 11; PX-52 (AR 2482). At a meeting arranged by the Department of Commerce’s in-house counsel, Neuman handed Gore a draft letter that could serve as a template to request inclusion of a citizenship question on the 2020 Census. ECF No. 162-3 at 118. The template included a paragraph setting forth the pretextual VRA enforcement rationale. Id. at 125. A copy of this same paragraph was found in Dr. Hofeller’s files, indicating that he may have drafted the paragraph that was later incorporated into Neuman’s template. Id. at 128.

Secretary Ross was aware of Neuman’s role as a go-between and specifically of the meeting at which Neuman handed Gore the template DOJ letter apparently co-written with Dr. Hofeller. PX-52 (AR 2482). When the Secretary asked Davidson about the “Letter from DoJ” in an October 8, 2017 email, Davidson replied that he was “on the phone with Mark Neuman right now” getting a “readout of his meeting last week.” Id. He offered to give the Secretary “an update via phone,” id., to which the Secretary responded, “please call me.” Id.

Plaintiffs’ new evidence potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision. The evidence suggests that Dr. Hofeller was motivated to recommend the addition of a citizenship question to the 2020 Census to advantage Republicans by diminishing Hispanics’ political power. ECF No. 162-3 at 68. Taken together with existing evidence, it appears that Dr. Hofeller was involved in the creation of the pretextual VRA rationale and worked with Neuman, Secretary Ross’s “trusted advisor,” PX-614, to drive the addition of a citizenship question. ECF No. 162-3 at 2–5; PX-52 (AR 2482). Dr. Hofeller’s close relationship with Neuman, the fact that they had early discussions about adding the citizenship question and his apparent work with Neuman in crafting the VRA pretext all point to a possible, if not likely, conclusion that the decisionmakers adopted Dr. Hofeller’s discriminatory purpose for adding the citizenship question. In this way, a connection between Dr. Hofeller’s motive and the decisionmakers’ motivations may be less attenuated than any connection between evidence of Kris Kobach’s motivations and the Secretary and his staff’s intent.

(My emphasis)

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