Republican lawmakers battled with anti-gerrymandering activists in court Tuesday, arguing over previously secret files of the deceased Republican redistricting expert Tom Hofeller.
Although the United States Supreme Court ruled in favor of North Carolina Republicans last week, upholding the state’s districts for its 13 U.S. House of Representatives seats, that ruling did not stop the state-level case that’s challenging the lines used to elect members of the state legislature.
The trial in that state-level case is set to begin in two weeks, on July 15. Hofeller’s files could have a major impact on the case, if they’re allowed to be used.
Republican lawmakers “had specifically promised the court that their mapmaker would not even possess racial data,” let alone use it, said Daniel Jacobson, one of the lawyers for the people and groups suing to overturn the maps. And Hofeller’s files, Jacobson said, will show that Hofeller broke the rules and did consider voters’ race when dividing them between districts.
“It’s hard to imagine evidence that would be more directly responsive” to the key parts of the trial, Jacobson said.
The maps in question were drawn in 2017, to replace a previous set of maps — also drawn by Hofeller, in 2011 — that were ruled unconstitutional due to racial gerrymandering.
The state’s Republican legislative leaders strongly object to the files being used in court for this case.
“I just don’t see how it’s helpful,” said Phil Strach, a lawyer for the lawmakers. “There’s no evidence the legislature knew of any of this, OK? We take that as a given. So what Dr. Hofeller was doing with maps on his own time can’t possibly relate to the intent of the legislature.”
Strach also said that especially since the files were given to the plaintiffs — specifically the group Common Cause — by Hofeller’s estranged daughter, there are questions regarding if the files have been altered to portray Hofeller in a worse light. And since Hofeller is dead and can’t testify for himself, Strach said, the files shouldn’t be allowed in.
“All the things the plaintiffs want to draw from the files are sheer speculation ... because Dr. Hofeller is not here to talk about these files,” he said.
The case is before a three-judge panel, which is how North Carolina handles trials over constitutional issues. One of the judges, Wake County senior Superior Court Judge Paul Ridgeway, told Strach that a federal court just ruled in a different case — about changes to the U.S. Census that the Trump administration wants to make — that the Hofeller files could be used in that case.
Strach said he thought the federal decision was wrong, “and we certainly don’t think this court should make the same mistake.”
The judges hearing the case did not rule on it Tuesday, but a decision is expected soon.
Hofeller’s files consist of around 75,000 different documents, containing potentially millions of pages of information. But Hofeller worked for Republicans on redistricting all around the country, and the files apparently relevant to this North Carolina case only include about 35 documents.
Strach argued that even the smaller number of 35 documents should not be allowed to be used in trial. In addition to casting doubt on the legitimacy of the documents, they argued the files are irrelevant since they were on Hofeller’s personal computers, while the maps the legislature ultimately approved were drawn by Hofeller on a state-owned computer, which is already a piece of evidence in this case.
Strach also said that the mere fact that Hofeller had racial data for the districts doesn’t mean he used it.
But Jacobson said the district lines found in Hofeller’s personal files were strikingly similar to the maps he later drew on the state computer, and in many cases were identical.
That’s important not just for the question of whether Hofeller used race to draw the lines, Jacobson said, but also for the issue of whether Hofeller followed any of the rules the legislature approved for the redistricting process.
Although GOP lawmakers had previously argued in court that Hofeller was “quite constrained” by those rules, Jacobson said, he argued Tuesday that the files will show that Hofeller had already assigned more than 90 percent of the state’s population to districts before those rules were even approved.
He said the lawmakers’ arguments that the Hofeller files shouldn’t be used in court made no sense, arguing that the legislature actually should have shown them to the public in 2017, during the map-making process.
“These are all public records that should’ve been made public two years ago,” Jacobson said.
Not everyone agrees. Republican lawmakers have said many if not all of the documents are privileged — meaning they can’t be used in court. And Strach said if the judges do allow the files to be used, the legislators might ask for the trial to be delayed to give them more time to go through them.