North Carolina’s Republican legislature made false assertions in 2017 in a federal racial gerrymandering case, according to a Thursday court filing by the challengers in a separate partisan gerrymandering case in state court.
The claim was based on files found on the hard-drives of the late GOP gerrymandering guru Thomas Hofeller, the challengers said.
The challengers, the voting rights group Common Cause, are asking for the state court to order the North Carolina legislators to stop their efforts to block Common Cause from using Hofeller’s files in their case. In Covington v. North Carolina, the state was sued in 2015 for legislative maps drawn in 2011 that were found to be an illegal racial gerrymander. The legislature is now facing a partisan gerrymandering lawsuit in state court (as well in federal court) from the voting rights group Common Cause for the map Republicans drew to replace the 2011 map.
Thursday’s filing brings to a head a dispute between Common Cause and the legislature over the group’s use of the Hofeller’s files, which were provided in the case by his estranged daughter, who found his hard drives after his death.
The legislators did not object when Common Cause subpoenaed the daughter for the files, nor did the legislators seek to impose restrictions on use of the files in subsequent steps in the discovery process, Common Cause said.
But only since news broke that some of Hofeller’s files had been shared with the challengers in the census citizenship case now awaiting a Supreme Court decision, the legislature has made several demands seeking to block Common Cause’s access to the files. Among the legislature’s requests were that Common Cause’s lawyers destroy their copies of the files and that the entirety of the files be designated “Highly Confidential/Outside Attorney’s Eyes Only,” according to Thursday’s filings.
Common Cause argued that not only did the legislature waive privilege when it did not object to the subpoena, the defendants “cannot possibly maintain any work-product privilege claim” over Hofeller’s work on certain North Carolina maps, given the alleged false statements in court.
The alleged false statements had to do with the legislature’s claims — at a key point in the the racial gerrymandering case’s litigation — that it had not yet begun work on maps to replace the invalidated 2011 maps. After a court in 2016 struck down the 2011 map, it ordered the special election for fall 2017. The Supreme Court halted that order while it considered taking up the case. When the justices did uphold the finding that the map was an illegal racial gerrymander in June 2017, they told the lower court to reconsider its order scheduling special elections and weigh how disruptive those elections would be.
According to Common Cause’s court filing Thursday, Hofeller’s files revealed that he had almost finished work on the new maps at that point in the litigation in July 2017, even as the legislature claimed in court that such work had not yet begun. Common Cause also pointed to two additional allegedly false claims the legislature made the court at that point.
The lawyer who represented North Carolina’s legislature in both the Covington case and in the current state court partisan gerrymandering case, which is called Common Cause v. Lewis, did not respond to TPM’s request for comment.
Read the filings below: