The daughter of late GOP mapmaker Thomas Hofeller – the man responsible for some of North Carolina’s most infamous gerrymanders – turned over four of his external hard drives and 18 thumb drives after his death to the plaintiffs suing North Carolina lawmakers.
Stephanie Hofeller Lizon gave the documents to attorneys in March, a month after she was issued a subpoena in the state partisan gerrymandering case Common Cause v. Lewis. No one objected to the subpoena initially, but Phil Strach, who represents the lawmakers in the case, is objecting to the plaintiffs’ decision to refrain from opening Hofeller’s sensitive tax and medical documents and to withhold them from the other parties to the litigation
A three-judge Superior Court panel assigned to the case (Judges Paul Ridgeway, Joseph Crosswhite and Alma Hinton) will consider questions today related to civil procedure and subpoenas to determine whether the legislative defendants can have access to all of the documents Lizon turned over or just the ones that don’t contain confidential information about things unrelated to mapmaking.
After Lizon mailed the documents to the plaintiffs’ attorneys, they sent them immediately to a third-party vendor for processing, according to court documents. During that process, it became apparent to the vendor from file and folder names that those materials may have included personal information, such as tax returns and medical and family information.
“We have not opened these files and will not do so,” an email to all parties states. “Because the files at issue appear from their names to be sensitive, personal and plainly irrelevant to the litigation, we do not believe that it would be appropriate or in the interest of any party to further disseminate these files.”
Elisabeth Theodore, a partner at the law firm Arnold & Porter who wrote the email, proposed a solution whereby the vendor would perform a keyword search and then pull out the personal files before making a copy of everything that remains for the legislative and state defendants. And because the keyword search might be underinclusive, the plaintiffs would also seek a protective order to protect any remaining personal data as confidential.
“Third, with respect to the documents that were identified by the keyword search, we will provide Ms. Lizon with the option of having them returned to her,” Theodore states in the email proposal. “Again, we would not look at any document received in response to the subpoena to Ms. Lizon unless we are also providing that document to the other parties who have requested copies of the materials.”
Paul Cox, a special deputy attorney general at the North Carolina Department of Justice, said in a response that the solution was reasonable and agreed later to split the estimated cost of creating two copies for DOJ and the legislative defendants, which was estimated at between $3,500 and $4,000.
Strach responded that the legislative defendants did not agree with the proposed process or the splitting of the costs.
“We believe plaintiffs should comply with the North Carolina Rules of Civil Procedure and produce to us all of the subpoenaed files, without filtering,” he wrote in an email. “We are capable of protecting the confidentiality of the materials. Cost-shifting can occur after the final judgment in the case. Please produce these files immediately.”
There are a number of further emails between all of the parties, but the plaintiffs ultimately filed a motion for clarification pursuant to Rule 45, which means they asked the court to decide whether sensitive information should be filtered out before everything is disseminated.
The document states that the plaintiffs’ vendor stands ready to filter out Hofeller’s personal information, and that the legislative and state defendants and their own vendors could be physically present as the process is carried out if they wish.
What’s not clear from court documents is how much information is contained in the electronic data Lizon turned over or what type of information is now in the plaintiffs’ possession. Hofeller, who died in August of last year, helped propel Republican Party mapmaking in North Carolina, but also in state legislatures across the nation and the U.S. House of Representatives.
Michael Li, senior counsel at the Brennan Center for Justice, called the development interesting in light of Hofeller’s passing.
“I think a lot of people will be watching to see what’s on [the computer drives],” he said.
The subpoena specifically requested documents of, created or held by Hofeller in Lizon’s possession related to or concerning North Carolina State Senate and State House redistricting in 2011 or 2017, including but not limited to correspondence, reports, notes, memos, data, electronic files, maps and more. It also requested information from Hofeller about what dates North Carolina maps were created and or modified, in addition to other electronically stored data.
Hofeller is responsible for drawing the gerrymandered North Carolina maps in 2011 and redrawing them in 2017 after top Republicans re-hired him. There has long been speculation that the 2017 maps were finalized before the public redistricting process.
Li speculated that emails might be the most telling documents in the data Lizon turned over.
“What we know from redistricting cases in general, people do say a lot of things in email that is quite revealing,” he said. “You really get a chance to see how the sausage is made, and it’s not pretty.”
He cited an email example in Michigan that talked about cramming “Dem garbage” into districts and another in Texas that discussed making districts look Latino as possible but still having them perform for Republicans.
“People seem to forget that the “e” in email might as well stand for evidence,” Li joked.
In a more serious vein, he said that Hofeller’s documents are probably the best source of telling the real story of what happened in North Carolina.
Common Cause, the North Carolina Democratic Party and a group of individual voters filed the lawsuit in Wake County Superior Court last year challenging the redrawn 2017 maps used in the 2018 election. They are using the state constitution’s Equal Protection and Free Election clauses as well as the free speech and association guarantees to make their case.
“No matter how the U.S. Supreme Court resolves longstanding questions about partisan gerrymandering under the federal constitution, North Carolina’s Constitution independently secures the rights of North Carolina citizens,” the initial lawsuit filing states. It asks for fair maps for the 2020 elections next year.
In addition to deciding how to proceed with the Hofeller data, the three-judge panel today will work out some more discovery issues between the plaintiffs and legislative defendants. Court documents reveal “he-said, she-said” style arguments over late evidentiary deadlines, deficient and incomplete evidentiary searches and requests for extensions of expert reports.
The case is set for trial starting July 15.
In the meantime, the U.S. Supreme Court is set to rule on a group of federal partisan gerrymandering cases that could put limits on the redistricting practices of legislatures across the country. It is considering two North Carolina sibling cases involving Republican partisan gerrymandering and a Maryland case involving a Democratic gerrymander. A decision is expected by June.
North Carolina lawmakers also have several redistricting reform bills before them during the current legislative session (many with bipartisan support): five bills that focus solely on redistricting and two broader measures to “fix democracy.” None have been heard in a committee yet.
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