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In Defending A Top Official Accused Of Lying In The Census Case, Did The DOJ Give Away The Game?

WASHINGTON, DC - SEPTEMBER 17: Acting Assistant Attorney General for Civil Rights John Gore speaks at the Justice Department September 17, 2018 in Washington, DC. Attorney General Jeff Sessions spoke about Department... WASHINGTON, DC - SEPTEMBER 17: Acting Assistant Attorney General for Civil Rights John Gore speaks at the Justice Department September 17, 2018 in Washington, DC. Attorney General Jeff Sessions spoke about Department of Justice efforts to support free speech on college campuses at the event. (Photo by Aaron P. Bernstein/Getty Images) MORE LESS
June 4, 2019 12:11 p.m.

The Justice Department came out swinging Monday night to deny allegations, made by the challengers in the census citizenship question case, that two key witnesses lied in deposition testimony and effectively obscured evidence that the question was added for blatantly political reasons.

The legal back-and-forth has to do with newly obtained evidence that shows that a DOJ formal request for a census citizenship question was written after the request’s author received a draft ghostwritten by a GOP gerrymandering consultant. That now-deceased consultant, Thomas Hofeller, had previously written a secret 2015 study concluding that a redistricting overhaul that had long been sought by conservatives would be “unworkable” without a citizenship question on the census. Altogether, this new evidence supported the belief that the question was added to boost the Republican party’s electoral chances rather than enforce the Voting Rights Act as the Trump administration officially claimed.

The Department on Monday dismissed the new claims as a “inflammatory,” “meritless,” and a “conspiracy theory involving a deceased political operative that essentially hinges on wordplay.”

But underneath that huffing and puffing is actually a very narrow, but messy, factual dispute over the allegedly withheld evidence: the Justice Department argues that it, in fact, provided in discovery a key piece of evidence it’s accused of withholding and blames the challengers in the case for not asking more specific questions of the witnesses in their deposition.

The Department spends a whole lot of its filing debunking a claim — that Gore relied on the 2015 study to write the DOJ’s formal request — that the challengers’ allegations never hinged on anyway.

“The bottom line is the Trump administration doesn’t deny that portions of its first draft of a request to add a citizenship question to the census were written by Thomas Hofeller, who advocated for the question because it would be, in his own words, ‘advantageous to Republicans and Non-Hispanic Whites,’” the ACLU’s Dale Ho said in a statement Monday night. “At this point, does anyone seriously believe that the Trump administration, which hasn’t filed a single case under the Voting Rights Act, has gone through all of this trouble so that it can protect voters of color?”

Perhaps more interesting to me is that — in defending Gore’s conduct in helping to add the question and his candor in testifying about the push — the Department pointed to evidence that seems to support the broader thrust of the allegations.

The Department strongly suggested that, rather than depending on the work of Hofeller, Gore based his formal request on briefs filed in the 2016 Supreme Court case Evenwel v. Abbott. The case had to do with the very underlying issue Hofeller covered in his study; in fact Hofeller’s study was commissioned by a GOP mega donor who was thinking of financially backing the Evenwel challengers.

The lawsuit, which was ultimately unsuccessful, sought to force states into adopting a redistricting metric that would exclude noncitizens and thus shift political power to whiter, less diverse, more rural regions of the country. This was the same exact dynamic that Hofeller was studying when he concluded that such an overhaul “would clearly be a disadvantage for the Democrats”  and “would be advantageous to Republicans and Non-Hispanic Whites.”

The Department on Monday pointed specifically to a friend-of-the-court brief in the Evenwel case filed by former Census directors, who argued such a system was unworkable because there wasn’t adequate data to support that method of redistricting. Gore appeared to model some of the formal request on this brief.

In an extra layer of irony, the Census directors in that brief went on to argue that asking a citizenship question on the census would “likely exacerbate privacy concerns and lead to inaccurate responses from non-citizens worried about a government record of their immigration status.”

The Department also suggested in its filing that other briefs in the Evenwel case made the same points that Gore ultimately did in his.

Which all begs the question: if the question was added for Voting Rights Act enforcement, and not for a GOP-boosting redistricting overhaul, why did Gore turn to a case about the overhaul, instead of VRA experts, to help him write the request?

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