NC Representative David Lewis discusses 2017 redistricting plans
The formerly secret files of the man who drew North Carolina’s political districts before he died can be used in court by the people challenging his maps for being unconstitutional gerrymanders.
A trial in the gerrymandering case is scheduled to begin on Monday, so the Friday afternoon decision by the trio of judges who will be hearing the case came at nearly the last minute. There had been a question of whether the introduction of the files — which likely contain thousands of pages of documents — could postpone the trial, but the judges did not do so Friday.
The trial in Wake County will test whether Republican lawmakers violated the North Carolina Constitution in drawing state House and Senate districts. GOP legislative leaders had fought for the files to be kept out of court.
But the judges ruled that the people who are suing — who include some individual voters as well as the North Carolina Democratic Party and the nonprofit group Common Cause — could use at least some of the files from the late mapmaker, Thomas Hofeller.
On Friday a spokesman for Republican Senate Leader Phil Berger downplayed the ruling.
“The Hofeller files have always been a sideshow intended to distract from the Plaintiffs’ weak case,” Berger spokesman Pat Ryan said in an email. “Here’s what the 35 files show: the Hofeller play maps are more similar to what Common Cause submitted to the federal court in 2017 than the maps enacted by the legislature.”
The ‘play maps’ phrase references the GOP argument that the maps in Hofeller’s files merely reflect a hobby he was pursuing in his free time — not anything he was doing on official business. That argument could be a major part of the case, since the challengers claim Hofeller’s files will show he was improperly using racial data in secret to inform the maps he later drew for the legislature, which were not allowed to use racial data.
This case is different from the case in federal court, which ended last month when the U.S. Supreme Court declined to strike down North Carolina’s districts for the U.S. House of Representatives. That was a high-profile win for Republican legislative leaders, although it only applied to the state’s congressional seats.
This case could have a broader impact since it applies to the state legislature. If Republicans lose, they could be forced to redraw the lines, in a way that might be more favorable to Democrats, before the 2020 elections. Under current state law, whichever party controls the legislature after the 2020 elections will be in charge of the next round of redistricting, which will begin in 2021 based on the results of the 2020 Census.
Hofeller’s files have also played a role in another high-profile legal case, related to the Census and the motivation behind the Trump administration’s attempts to add a question about people’s citizenship to the Census. The files in that case, this case and others all came to light following Hofeller’s death in 2017, when his daughter gave his files to Common Cause.
His business partner, as well as GOP leaders in the state legislature who hired Hofeller to draw the districts, said Hofeller’s files didn’t rightfully belong to his daughter, Stephanie Hofeller, who had been estranged from her parents.
But Common Cause argued that the documents should have been made available to the general public years ago, after the legislature approved Hofeller’s maps, and therefore should be allowed in the case now that they have come to light.
The judges agreed, writing that “the documents likely fall under the public record designation.”
The judges did note several questions Republican lawmakers raised, including whether the files had been altered or whether the lawyers for the other side committed ethical breaches in getting the files in the first place. But they ruled that there’s no evidence of any alterations to these files at this point, and that if the lawmakers want to file ethics complaints against the other lawyers, they can.
None of that affects whether these records should be public or not, the judges ruled.
“The Court’s primary objective at this stage in the litigation is to ensure that documents necessary for the administration of justice in this case are made available,” the judges’ ruling said. “The Court is satisfied that such documents have been identified, that all parties have agreed that those documents are not subject to any assertions of privilege, and that the documents likely fall under the public record designation.”
That doesn’t mean the public will get to see all of Hofeller’s files immediately. There are an estimated 75,000 files in question, and Common Cause asked to be able to use just 35 of them in the trial.
Friday’s ruling only applies to those 35. The judges’ ruling made the rest of the files confidential until at least Sept. 10, to give Hofeller’s business time to go through the files and figure out which should remain confidential.
And the ruling Friday wasn’t entirely in favor of the Democrats and Common Cause. Republican lawmakers got some wins as well, as the judges refused to bar evidence that Republicans say shows they complied with the Voting Rights Act and refused the plaintiffs’ request to block GOP lawmakers from testifying.