Permanently rigging the game

In the next few weeks, the Supreme Court will issue a decision that could reshape American politics for decades. At issue is whether the court will allow the Trump administration to add a citizenship question to the 2020 Census.

The key question for the court is whether the administration has any legitimate purpose for adding the question. The Department of Justice claims the question was added to collect data necessary to enforce the Voting Rights Act and protect minority voters.

There have been problems with this explanation from the beginning. But stunning new evidence emerged last week that the inclusion of the citizenship question was the brainchild of Thomas Hofeller, a political operative and redistricting specialist. In a 2015 study, Hofeller said adding a citizenship question would empower "Republicans and Non-Hispanic Whites," and "would clearly be a disadvantage to the Democrats."

Hofeller, who was in close contact with the Trump administration, also came up with the idea of using the Voting Rights Act, a bill designed to protect minority voters, as a pretext for adding the question. Hofeller drafted portions of a letter that laid the foundation for the Justice Department's official rationale for the citizenship question.

Documents unearthed by Popular Information also reveal that, while Hofeller was concocting his scheme to rig the census, he was on the payroll of the Republican National Committee (RNC).

How we learned about Hofeller

The Trump administration tried to keep Hofeller's role in adding the citizenship question hidden from the court. But Hofeller passed away in August 2018. His estranged daughter was sorting through his effects when she found hard drives that revealed he "played a crucial role in the Trump administration’s decision to add a citizenship question to the 2020 census."

Hofeller was revered in Republican circles for his "mastery of redistricting strategy" and his tactics "helped propel the Republican Party from underdog to the dominant force in state legislatures and the House of Representatives."

Hofeller achieved that by diluting the power of minority voters. Here is how a federal court described Hofeller's redistricting efforts in North Carolina.

There is strong evidence that race was the only nonnegotiable criterion and that traditional redistricting principles were subordinated to race. In fact, the overwhelming evidence in this case shows that a (black voting-age population) percentage floor, or a racial quota, was established in both CD 1 and CD 12. And, that floor could not be compromised.

Hofeller's map in North Carolina was struck down for discriminating against African Americans.

His scheme to rig the 2020 Census could be his most audacious yet.

Changing the way districts are drawn to benefit white Republicans

Most critics of the redistricting question have focused on the inclusion of the question creating an undercount of minority voters. Non-citizens and others in immigrant communities may not want to fill out the survey for fear that it will be used by the government to target them or their friends and relatives. Even the DOJ acknowledges this will happen. The DOJ argued in the Supreme Court that gathering citizenship data is more important than an accurate count.

But Hofeller had something else in mind. Currently, states base their Congressional and state legislative districts based on total population, regardless of citizenship status. Hofeller believed that if citizenship data was collected as part of the 2020 census these districts could be redrawn based only on citizens. This could dramatically strengthen political power for Republicans.

Hofeller ran a case study in Texas and found "Democratic districts could geographically expand to absorb additional high Democrat precincts from adjacent Republican districts, strengthening the adjoining GOP districts." Hofeller said his proposal would dilute Latino power in particular because "considerable population would have to be added to a majority of the Latino districts to bring their populations up to acceptable levels." He predicted "a high degree of resistance from Democrats and the major minority groups in the nation" to his plan.

A move to draw districts based only on citizens would be challenged in court as unconstitutional. But there is no reason to expect that the Supreme Court, if it allows the citizenship question to be added to the 2020 Census, would then prevent the citizenship data from being used in redistricting.

Who was paying Hoffler

Documents uncovered by Popular Information reveal that, while Hofeller was concocting his scheme for the 2020 Census, he was on the payroll of the RNC.

Starting in August 2011, the RNC began making payments to Hofeller's firm, Geographic Strategies LLP, for "legal and compliance" service. The RNC paid Hofeller $44,000 on September 6, 2017. That payment came just a week after Hofeller ghostwrote the DOJ letter that used the pretext of the Voting Rights Act to justify the citizenship question.

In a 2012 deposition, Hofeller said he worked as a "redistricting consultant" for the RNC.

Hofeller's status as a paid contractor for the RNC further undermines the claims of the DOJ that the question was added for legitimate, non-political purposes. The RNC is also controlled by Trump's political operation, creating another strong link between Hofeller and the Trump administration.

What the DOJ is saying

In a letter to the court on Monday, the DOJ flatly denies that Hofeller had anything to do with the DOJ's request to add a citizenship question to the 2020 census. The DOJ argues that Hofeller had "no role whatsoever." The letter describes the entire issue as "a conspiracy theory involving a deceased political operative that essentially hinges on wordplay."

The DOJ makes this claim even though Hofeller's argument, using the pretext of the Voting Rights Act to justify the question, was communicated verbatim to the DOJ official who drafted their position. That DOJ official adopted Hofeller's precise argument in his final letter.

The DOJ also argues that, even if Hofeller did influence its decision, it doesn't matter. The letter argues that the issue at hand is "whether the Secretary provided an objectively rational basis for his decision to reinstate the citizenship question." The DOJ says that "[n]othing in the private files of a deceased political operative can affect the resolution of that issue." The DOJ does not say why the files of a deceased political operative are irrelevant. In this case that operative, through an intermediary, was in contact with the administration as the decisions were being made.

The lying to Congress thing

Even before evidence of Hofeller's role emerged, there were already serious problems with the Trump administration's story. Wilbur Ross, who as Commerce Secretary administers the Census, told Congress under oath that he added the citizenship question solely at the request of the DOJ and that the White House had nothing to do with it. This is a summary of his testimony from a ruling by the United States District Court:

Representative José Serrano asked Secretary Ross whether “the President or anyone else in the White House [had] directed [him] to add this or a similar question to the 2020 census.” Secretary Ross responded that the Department of Commerce was “responding solely to Department of Justice’s request.” Later in the same hearing, Representative Grace Meng asked Secretary Ross whether “the President or anyone in the White House discussed with you or anyone on your team about adding this citizenship question.” Secretary Ross answered: “I am not aware of any such.”

But Ross was actually convinced to add the immigration question to the 2020 Census by Steve Bannon, who was then Chief White House Strategist, and Kris Kobach, who was then Kansas Secretary of State. Ross then instructed his staff at the Commerce Department to add the citizenship question. Ross' deputies informed him that he needed a legitimate rationale to add the citizenship question. You can't change the Census because Steve Bannon tells you to.

Earl Comstock, who worked under Ross, worked with the White House to request that the DOJ create a pretext for adding the question. Eventually, the DOJ agreed to do so.

What happens next?

The Supreme Court is expected rule on the case within the next few weeks. It is unclear whether the Justices will consider the new evidence. During oral argument, conservatives on the court appeared sympathetic to the administration's arguments.

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