GOP mapmaker’s files allowed in gerrymandering trial

Published 11:10 pm Friday, July 12, 2019

By Gary D. Robertson

Associated Press

RALEIGH — A few dozen computer files recovered from the home of a deceased Republican redistricting consultant can be offered as evidence in next week’s partisan gerrymandering trial, state judges ruled Friday.

The three-judge panel presiding over the trial that starts Monday sided with the election reform group Common Cause, the North Carolina Democratic Party and registered Democratic voters who are suing Republican lawmakers and challenging state House and Senate boundaries drawn in 2017.

The plaintiffs subpoenaed documents from the estranged daughter of longtime GOP mapmaker Tom Hofeller that turned out to be more than 75,000 files from 22 hard drives and thumb drives that she said she came across while looking for personal mementos. Tom Hofeller died last year.

Those who sued told the judges last week they want to offer 35 of those files that they say will show Hofeller used partisanship as a predominant motivation to help create the 2017 districts to maximize advantage for Republicans.

Lawyers for the GOP legislators argued the files mean little to the case and can’t be authenticated as written by Hofeller because he’s dead. But the judges wrote they are satisfied there is enough information from the plaintiffs, including Stephanie Hofeller’s deposition testimony, to properly validate the files as coming from her father.

And “a detailed chain of custody need not be established because there is no evidence any of the Hofeller files plaintiffs seek to admit have been altered,” the Superior Court judges wrote, pointing out the files still have to comply with other rules of evidence.

Content from other subpoenaed Hofeller files in this case also have ended up in separate litigation in other states challenging a plan by the Trump administration to include a citizenship question on the 2020 U.S. census.

On Friday, the Superior Court judges — Paul Ridgeway, Alma Hinton and Joseph Crosswhite — directed that the remainder of Hofeller’s subpoenaed, nonpersonal files stay confidential temporarily while his old consulting firm reviews them to locate proprietary information they want withheld.

“No party may disseminate any of the Hofeller files to third parties without further order of his court,” the judges wrote.

The judges declined to grant a request from the Republican legislators to punish the plaintiffs’ lawyers for conduct related to accessing Hofeller’s files, saying they could seek redress that with the North Carolina State Bar if they chose.

Hofeller’s documents came to light under unusual circumstances. Stephanie Hofeller testified she initially contacted Common Cause late last year seeking a legal referral for her mother. She later told Common Cause that she had found computer files they may find interesting. Those documents were formally subpoenaed in March. The plaintiffs’ attorneys said they did nothing unethical.

In light of the census cases, the attorneys for the GOP lawmakers said in court last week there is no telling how many people have reviewed documents that could obtain personal and confidential information. The legislators’ delay in bringing concerns before the court has contributed to any prejudice they claim to have suffered, the judges wrote.

The gerrymandering trial will begin less than three weeks after the U.S. Supreme Court ruled in a separate North Carolina case that federal courts won’t get involved in judging partisan gerrymandering claims. This trial, however, is in state court and is based on alleged violations of the state constitution.