Dark Secrets

A court in North Carolina recently threw out voting maps gerrymandered by Republicans. New maps must be created by September 18 and the ruling is very specific about how they must and must not be drawn.  This ruling was probably unexpected by Republicans because the U.S. Supreme Court recently ruled that drawing voting maps was a matter for the states to decide. Republicans probably thought this meant they were home free. The court in North Carolina based its ruling on violations of North Carolina’s Constitution rather than federal law.

North Carolina Republicans hired a secretive man named Thomas B. Hofeller to create their voting map. Hofeller and his company, Geographic Strategies LLC, were hired by Republicans in 46 states to concoct voting maps that advantaged Republicans. Hofeller was considered the ultimate master of this black art.

Hofeller died in 2018 leaving behind a trove of computer files including more than 100,000 documents and thousands of maps. These documents and maps came into the possession of Hofeller’s estranged daughter after his death. The existence of these documents  and maps came to the attention of an official at Common Cause North Carolina while Hofeller’s estate was being handled by the daughter. Some of the documents were then used in the North Carolina voting rights case to prove that North Carolina Republicans had lied to the court in North Carolina in attempting to justify their map.  The court found their explanations “not credible.”

There is now a case ongoing in North Carolina which will decide whether the remainder of the Hofeller documents will be made public or kept confidential. North Carolina Republican legislators and Hofeller’s consulting company contend that the documents are confidential as trade secrets and protected by the attorney/client privilege. The trove of material includes 195,887 redistricting map files and 100,658 documents, including 17,533 relating to the consulting company, 1800 of which involve groups affiliated with the Republican Party. Also among the documents are those that tie Hofeller directly to the Trump administration plan to ask a citizenship question on the 2020 census. The census related documents reveal that the strategy and motive was to reduce the population count in predominantly Democratic areas and thereby increase Republican representation.

It seems plain that the Republican legal strategy to bury the documents is to rely on the attorney/client privilege of confidentiality. Hofeller was not a lawyer, but one of the principals in the company was a lawyer and that person is contending that the documents contain privileged legal advice. This will be a complex case that may have to be decided on a document by document basis. Some of the documents may be protected by the traditional attorney/client privilege, but others may be nothing more than the work product of a vendor of nonlegal services. Of course, there is also always the possibility the documents have been or will be leaked.  The outcome of this case could have a profound effect on voting rights cases across the country. 

For more about this interesting case, read the New York Times of September 5, 2019.

It would be a breath of fresh air to see all the documents. A veil of secrecy would be lifted that has kept us from seeing how politicians go about selecting their voters, discriminate against minorities, maintain and expand power with less than a majority of voters, suppress voter turnout and, in general, disenfranchise citizens and thereby subvert democracy.  As Kathay Feng of Common Cause North Carolina is quoted as saying, “The Hofeller files are important because they’re the only thing that will allow the American people to know the truth behind the efforts to rig redistricting and elections. They have to be made public.” Amen.