Court Must Decide If Deceased Lawyer’s Redistricting Records Are Public | Eastern North Carolina Now

    Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Kari Travis.


    A court battle over legislative redistricting escalated Tuesday, July 2, into a tug-of-war over records that may or may not be considered public.

    The decision over the private/public question could be a game-changer in a lawsuit involving allegations of partisan gerrymandering. The dynamics of a fractured family also entered the courtroom battle.

    In 2018, Common Cause North Carolina, the N.C. Democratic Party, and a handful of individuals sued the legislature over partisan gerrymandering in the redrawing of state election maps. The lawsuit berated GOP lawmakers for redistricting plans made in 2017, when some of the state's House and Senate districts were struck down as unconstitutional racial gerrymanders. Lawmakers produced new maps, drawn by Republican strategist and redistricting expert Thomas Hofeller, who died in 2018.

    Republicans in 2017 said new district maps wouldn't be ready in time for a special election the same year. A federal court decided to leave the existing maps in place, allowing a Republican supermajority to control the House and Senate for another year.

    In March 2019, Common Cause N.C. received thousands of files from Hofeller's estranged daughter, Stephanie Lizon. Those documents, they say, show Hofeller had nearly completed House and Senate district maps in 2017.

    Hofeller's files are damning, and should be admitted as evidence in their lawsuit against the state, Common Cause N.C. says.

    Attorneys for the plaintiff and the defendant spiked arguments back and forth during the July 2 hearing at Campbell University Law School. Superior Court Judges Paul Ridgeway, Alma Hinton, and Joseph Crosswhite heard the case.

    The records are unreliable, because anyone could have altered them between Hofeller's death and Common Cause's subpoena, said Phillip Strach, an attorney for the defense. The records are public, and overlap with Hofeller's work creating maps for the legislature, said Elisabeth Theodore, an attorney for the plaintiff.

    But the Hofeller files may not be public, former N.C. Supreme Court Justice Barbara Jackson told Carolina Journal. The legislature - which is fighting to keep Hofeller's files private - has placed statutory limits over redistricting records.

    In a 2013 redistricting case, Dickson v. Rucho, plaintiffs demanded legislators disclose internal communications about their redistricting plans. A three-judge panel granted the motion, but their decision was overturned by the N.C. Supreme Court. Judges couldn't override the General Assembly's attorney-client privilege, or its statutory right to shield work under the work-product doctrine before the maps were published, the high court said.

    Most redistricting records eventually become public, Jackson said, but whether the Hofeller files should be disclosed is a tough call.

    Hofeller family drama makes the case unique, Jackson noted.

    Lizon hadn't seen her father in the five years before he died. She discovered his files while looking for family photos on his hard drives. The court should consider carefully the defendant's claims that these files were not Lizon's to disclose, Jackson said.

    The three-judge panel made no immediate ruling after the hearing. Common Cause v. Lewis goes to trial July 15.