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The Washington Post

WASHINGTON — Just weeks before the Supreme Court is expected to rule on whether the Trump administration can add a citizenship question to the 2020 census, new evidence emerged Thursday suggesting that the question was crafted specifically to give an electoral advantage to white Republicans.

The evidence was found in the files of the prominent Republican redistricting strategist Thomas Hofeller, who died in August. It reveals that Hofeller “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 Trump administration officials purposely obscured Hofeller’s role in court proceedings, lawyers for plaintiffs challenging the question wrote in a letter to U.S. District Judge Jesse Furman. Furman was one of three federal judges who ruled against the question this year.

The letter drew on new information discovered on Hofeller’s hard drives, which were found accidentally by Hofeller’s estranged daughter. Stephanie Hofeller Lizon then shared them with the organization Common Cause for a gerrymandering lawsuit it is pursuing in North Carolina.

The files show that Hofeller concluded in a 2015 study that adding a citizenship question to the 2020 census “would clearly be a disadvantage to the Democrats” and benefit white Republicans in redistricting. Hofeller then pushed the idea with the Trump administration in 2017, according to the lawyers’ letter to Furman.

The evidence, which was first reported by The New York Times, contradicts sworn testimony by Commerce Secretary Wilbur Ross’ expert adviser Mark Neuman and senior Justice Department official John Gore, as well as other testimony by defendants, the letter said.

The Commerce and Justice departments did not respond to questions about the new information.

The American Civil Liberties Union filed a motion in district court Thursday morning for “sanctions and any other relief the court deems appropriate, because of apparently untruthful testimony” by Trump administration officials in the earlier trials, said Dale Ho, who argued the case at the Supreme Court on behalf of the ACLU.

It is unclear how the information might affect deliberations at the Supreme Court. The ACLU Thursday afternoon filed a letter with the court to “respectfully inform” it of the motion filed in New York District Court and that a hearing was scheduled for next week.

The letter repeated the charge contained in the earlier letter to Furman that Hofeller played a significant role in adding the citizenship question to the 2020 census to give white Republicans an advantage in redistricting “and that Petitioners (the government) obscured his role through affirmative misrepresentations.”

The letter from Ho did not ask the court to take action, but it drew its attention to the new motion; the hearing would be Wednesday.

“Witnesses misrepresented the origin and purpose of their effort to add a citizenship question to the census,” Ho said in a statement accompanying release of the 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.”

The Supreme Court heard the case on April 23. Evidence in the case concluded with oral arguments that day, and it appeared the conservative majority seemed inclined to agree with the government that the decision to add the question was within the authority of the commerce secretary.

The court, if it followed normal procedure, voted that week on the outcome of the case, and the justices are now writing the opinion.

The ACLU also asked the district court to allow previously redacted testimony from Neuman to be made public. On Thursday, Furman ordered that the government must provide a response by 10 a.m. Friday; he called a hearing on the matter for Wednesday.

The new information indicates that blueprints for adding a citizenship question to the 2020 Census predated the Trump administration, but Donald Trump’s election allowed them to become a reality, Ho said.

“It just shows that there was a long-standing plan to weaponize the census to dilute minority voting power to try to forestall the electoral effects of the demographic changes that this country is undergoing,” he said.

Ho said sanctions could include fines imposed on witnesses or the government, a reopening of the case or an amendment of the final judgment to account for new evidence.

The population count from the decennial census is used to allocate $800 billion a year in federal funding and to determine congressional representation and redistricting. Opponents of the citizenship question have argued that it will suppress response to the survey among immigrant communities, resulting in an undercount in the areas where they live.

Hofeller’s files also reveal that in August 2017, he helped ghostwrite a draft Department of Justice letter to the Commerce Department requesting a citizenship question and coming up with a rationale – to help enforce the Voting Rights Act, the plaintiffs’ lawyers said. He then gave this letter to Gore, the principal deputy assistant attorney general, in October 2017, they said.

The genesis of that request and the rationale behind it were key questions in trials challenging the question. Ross initially told Congress that the request was initiated by the Justice Department in a December 2017 letter, but administration documents released in the case later indicated that it came at Ross’ urging, starting months earlier. Census and voting rights experts have said the question is not needed to enforce the Voting Rights Act.

The Justice Department letter “bears striking similarities to Dr. Hofeller’s 2015 study, stating that a citizenship question on the Census was essential to advantaging Republicans and white voters,” the letter to Furman said. It added: “Based on this new evidence, it appears that both Neuman and Gore falsely testified about the genesis of DOJ’s request to Commerce in ways that obscured the pretextual character of the request.”

Critics of the question blasted the administration after the news broke.

“Republican political operatives plainly want to deny communities of color the health care, education and other services they need in order to consolidate GOP power and a whiter electorate,” said Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights. “We call on Congress to hold Trump administration officials – including Secretary Ross – accountable now and not to wait until after the Supreme Court ruling to do so.”

Terri Ann Lowenthal, a former staff director of the House subcommittee on census oversight, said the new information undercut the bureau’s years of work to plan a nonpartisan count.

“Revelations that this administration threw a grenade into that process in order to achieve partisan goals must be a gut-punch to every career Census employee whose goal is to earn the public’s trust and confidence in the 2020 Census,” she said.

In April the high court’s five conservatives seemed to lean toward allowing the question, citing the Voting Rights Act rationale and focusing not on Ross’ motivations, but rather on whether he was using the power he was authorized to exercise.

The court’s liberal justices were skeptical. Justice Elana Kagan said Ross seemed to be “shopping for a need,” trying unsuccessfully to get Justice Department and Homeland Security Department officials to request the question before finally getting the Justice Department to agree.

“You can’t read this record without sensing that this – this need is a contrived one,” she said. “There have been lots of assistant attorneys general in the (Justice Department’s) Civil Rights Division that have never made a plea for this kind of data.”

Justice Brett Kavanaugh wondered whether courts should be making the decision. “The statute that Congress has passed gives huge discretion to the secretary (in) how to fill out the form, what to put on the form,” he said.

If Congress is unhappy with the secretary’s decision, “why doesn’t Congress prohibit the asking of a citizenship question in the same way that Congress has explicitly provided that no one can be compelled to provide religious information?” Kavanaugh asked.

Since taking the majority in January, some House Democrats have sought to do exactly that, but they have accused the administration of stymieing their efforts.

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