Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
*
ROBYN KRAVITZ, et al.,
*
Plaintiffs,

Case No.: GJH-18-1041
*

v.

*

UNITED STATES DEPARTMENT OF
COMMERCE, et al.,

*
*

Defendants.
*
*

*

*

*

*

*

*

*

*

*

*

*

*

*
LA UNIÓN DEL PUEBLO ENTERO, et al.,
Plaintiffs,

*

v.

*

WILBUR ROSS, et al.,

*

Defendants.

*

*

*

*

*

*

*

*

Case No.: GJH-18-1570

*

*

*

*

*

*

MEMORANDUM OPINION
In these related cases, Plaintiffs challenged Commerce Secretary Wilbur Ross’s decision
to include a citizenship question on the 2020 Census. Plaintiffs claimed the decision was
arbitrary and capricious in violation of the Administrative Procedure Act (APA), unconstitutional
in violation of the Constitution’s Enumeration Clause and the equal protection guarantee of the
Due Process Clause of the Fifth Amendment (Equal Protection claim), and made as part of a

1

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 2 of 14

conspiracy to violate their civil rights in violation of 42 U.S.C. § 1985.1 After a six-day bench
trial, on April 5, 2019, this Court entered judgment in favor of the Plaintiffs on their claims
arising under the Administrative Procedure Act and the Enumeration Clause. ECF No. 155.2 The
Court also permanently enjoined Defendants from including a citizenship question on the 2020
Census. Id. However, the Court entered judgment for Defendants on Plaintiffs’ Equal Protection
claim and on the LUPE Plaintiffs’ 42 U.S.C. § 1985(3) claim. Id.
On June 3, 2019, Plaintiffs filed a Rule 60(b)(2) Motion for Relief from Final Judgment,
alleging that newly-discovered evidence entitled them to judgment on their Equal Protection and
§ 1985 claims. ECF No. 162. Because an appeal is pending and this Court only retains limited
jurisdiction over a Rule 60(b) motion, Plaintiffs also requested that the Court “issue an indicative
ruling under Fed. R. Civ. P. 62.1 stating that a Rule 60(b) motion raises a substantial issue or
would be granted.” Id. at 9 (quoting Fourth Circuit Appellate Procedure Guide (Dec. 2018) at
22–23).
After a hearing, ECF No. 169, the Court entered an Order on June 19, 2019, granting
Plaintiffs’ Motion for an Indicative Ruling Under Rule 62.1(a) and concluding that Plaintiffs’
Rule 60(b)(2) Motion raises a substantial issue. ECF No. 174. This Memorandum Opinion
explains that Order.
I.

STANDARD OF REVIEW
Plaintiffs ultimately seek relief from the Court’s Final Judgment entered in favor of

Defendants on Plaintiffs’ claims based on the equal protection guarantee of the Fifth Amendment
Due Process Clause and, for the LUPE Plaintiffs only, § 1985. To obtain relief under Rule 60(b),
a party must show that its motion is timely, that the motion raises a meritorious claim or defense,

1
2

Only the LUPE Plaintiffs alleged the § 1985 claim.
Unless otherwise noted, all citations to the docket are to the lead Case: No. 18-CV-1041.

2

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 3 of 14

and that the opposing party would not be unfairly prejudiced by having the judgment set aside.
See Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993) (quoting Park Corp.
v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987)). When Rule 60(b)(2) is applicable, as
here, a party must provide “newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2).
This Court retains limited jurisdiction to consider a motion for relief under Rule 60(b)
even though an appeal is pending. See Fobian v. Storage Tech. Corp., 164 F.3d 887, 891 (4th
Cir. 1999) (“[W]hen a Rule 60(b) motion is filed while a judgment is on appeal, the district court
has jurisdiction to entertain the motion, and should do so promptly.”). Specifically, pursuant to
Rule 62.1, the Court may (1) defer considering the motion; (2) deny the motion; or (3) state
either that it would grant the motion if the court of appeals remands for that purpose or that the
motion raises a substantial issue. Fed. R. Civ. P. 62.1; see also Fourth Circuit Appellate
Procedure Guide (Dec. 2018) at 22–23.
II.

DISCUSSION
This Court previously concluded that the Secretary’s articulated reason for adding a

citizenship question to the 2020 Census—to improve Voting Rights Act (VRA) enforcement—
was a pretext. ECF No. 154 at 108. However, the Court held that based on the trial record,
Secretary’s Ross’s actual rationale remained, to some extent, a mystery. Id. at 42, 112. Plaintiffs
now claim that new evidence sheds additional light on Secretary Ross’s real reasoning.
Specifically, new evidence shows that a longtime partisan redistricting strategist, Dr.
Thomas Hofeller, played a potentially significant role in concocting the Defendants’ pretextual
rationale for adding the citizenship question, and that Dr. Hofeller had concluded in 2015 that
adding a citizenship question would facilitate redistricting methods “advantageous to

3

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 4 of 14

Republicans and Non-Hispanic Whites.” ECF No. 162-3 at 68, 125–126, 128. Before fully
exploring the meaning of this new evidence, it is useful, for context, to first review the evidence
established at trial.
A. Trial Record
The Court previously found that evidence in the Trial Record demonstrated that persons
around Secretary Ross had an interest in whether undocumented immigrants are counted in the
Census for apportionment purposes, and that the Secretary did look at that issue. Secretary
Ross’s activity in this regard included conversations with Chief White House Strategist Steve
Bannon who asked the Secretary to speak to Kansas Secretary of State Kris Kobach about adding
a citizenship question to the Census. PX-19 (AR 763); PX-58 (AR 2651). Thereafter, complying
with Bannon’s request, Kobach and Secretary Ross discussed Kobach’s ideas about adding a
citizenship question to the Census, and “the fact that the US census does not currently ask
respondents about their citizenship.” PX-19 at 2 (AR 764). Secretary Ross and Kobach also
discussed the potential effect adding “one simple question” to the Census would have on
“congressional apportionment.” Id. Kobach expressed concern that the lack of a citizenship
question “leads to the problem that aliens who do not actually ‘reside’ in the United States are
still counted for congressional apportionment purposes,” but he did not mention the VRA
rationale. Id.
Additionally, Deputy Chief of Staff and Director of Policy Earl Comstock emailed the
Secretary an article entitled “The Pitfalls of Counting Illegal Immigrants” in response to the
Secretary’s inquiry into whether undocumented people were counted for apportionment purposes
on March 10, 2017, shortly after the Secretary’s confirmation. PX-55 (AR 2521); Comstock
Dep. at 62:13–64:4, 65:5-8. “Potentially” that same day, Secretary Ross made what he later

4

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 5 of 14

would term his “months old request” that a citizenship question be added to the 2020 Census.
Comstock Dep. 146: 1-15; see also PX-88 (AR 3710).
The Trial Record also included emails from President Trump’s re-election campaign
crediting the President with mandating the addition of the citizenship question and various
statements and tweets by candidate, President-elect and President Trump, demonstrating his
animus towards immigrants and his concern about political power being wielded by
undocumented immigrants. PX-64 (AR 2643–44); PX-3 (AR 3424–25); PX-1139; PX-1145; PX1149; PX-1156; PX-1177.
Thus, at the close of trial, Plaintiffs had presented evidence that individuals in Secretary
Ross’s orbit, including the President and Mr. Kobach, did harbor discriminatory animus towards
non-citizens.3 They had also presented substantial evidence, which the Court adopted, that the
VRA rationale was not Secretary Ross’s original or actual motivation. Ultimately though, the
Court could not, by a preponderance of the evidence, connect the dots between the President and
Mr. Kobach’s views, the Secretary’s failure to disclose his real rationale, and the Secretary’s
final decision and entered judgment in favor of Defendants on the Equal Protection claim and the
§ 1985 Claim.
With this backdrop, the Court turns to the newly discovered evidence.
B. Newly Discovered Evidence
Plaintiffs point primarily to two pieces of evidence in their Motion: an unpublished 2015
study by Dr. Thomas Hofeller discussing the use of citizen voting-age population (CVAP) data
for redistricting purposes and a paragraph found in Dr. Hofeller’s files that was identical to a

3

Outside of showing that a citizenship question is likely to disparately impact Hispanics, the Court found that
Plaintiffs, at that time, had not provided any evidence that Secretary Ross was motivated by animus towards
Hispanics/Latinos.

5

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 6 of 14

paragraph in an early draft of a letter that would serve as the pretextual basis for the citizenship
question. The Court will discuss each in turn.
In the newly-discovered unpublished 2015 study, Dr. Hofeller explained how a switch
from the current norm of drawing legislative districts of equal total population pursuant to
Wesberry v. Sanders, 376 U.S. 1 (1964) to using CVAP data for redistricting purposes could
shift political power in favor of white voters and away from Hispanic voters. ECF No. 162-3 at
60–108. To generate the CVAP data necessary to make this switch—a change that would “be
advantageous to Republicans and Non-Hispanic Whites”—Dr. Hofeller concluded that a
citizenship question would need to be added to the 2020 Census. Id. at 68.
Dr. Hofeller acknowledged that a change from redistricting based on total population to
CVAP would be a “radical departure” that might alienate Hispanic voters. Id. at 67. He noted
that further research should address whether “the gain of GOP voting strength” from the use of
CVAP data would be “worth the alienation of Latino voters who will perceive the switch” as an
“attempt to diminish their voting strength.” Id. at 63. Dr. Hofeller did not want the 2015 report to
be attributed to him “either directly or indirectly” because of the role he played as an expert
witness in redistricting cases. Id. at 56–57.
The significance of this study found in Dr. Hofeller’s files is made manifest through
evidence previously placed in the record. Existing evidence showed that Dr. Hofeller was “the
first person that said something” to Mark Neuman about adding a citizenship question to the
2020 Census. ECF No. 162-4 at 51:7–16.4 Hofeller and Neuman were “good friends” for
decades, id. at 137:11–12, and they spoke several times about the citizenship question during the

4

Pin cites to deposition transcripts refer to the page numbers generated by the transcripts rather than the page
number generated by the ECF system.

6

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 7 of 14

Presidential transition when Neuman was serving as the point person for all issues related to the
Census. Id. at 37:16–22; ECF No. 154 at 9; id. at 14 (quoting PX-614).
Neuman played an outsized role in advising Secretary Ross and his staff on censusrelated decisions. See e.g., PX-87 (AR 3709); PX-614 (COM_DIS00019687) (AR); PX-38 (AR
2051_0001); PX-145 (AR 11329); PX-592 (COM_DIS00017396) (AR); PX-52 (AR 2482); PX193. After serving as the point person for all issues related to the Census during the Presidential
transition in 2016 and 2017, Neuman went on to serve as a “trusted advisor” to Secretary Ross
on Census issues. ECF No. 154 at 9; id. at 14 (quoting PX-614).
When Secretary Ross complained in May 2017 that nothing had been done about his
“months-old request to add a citizenship question,” see ECF No. 154 at 10, his chief of staff
asked whether she should try to set up another meeting with Neuman, and Ross responded that
they should try to “stick Neuman in there to fact find.” PX-83. On September 7, 2017, the
Department of Commerce’s general counsel, Peter Davidson, expressed “concern” about
contacting Kansas Secretary of State Kris Kobach about Census matters, and instead
recommended that the team “set up a meeting with” someone “trusted” like Neuman before
doing “anything externally.” PX-614 at 3 (COM_DIS00019687) (AR). Days later, on September
13, 2017, John Gore, the then-Acting Assistant Attorney General for Civil Rights, first connected
with Department of Commerce staff about the citizenship question issue. PX-68 (AR 2659); PX59 (AR 2628); PX-60 (AR 2634) Once Gore—the political appointee who would go on to
ghostwrite DOJ’s request—had been recruited to solicit the addition of a citizenship question,
Neuman communicated with him about the pretextual rationale upon which DOJ could base its
request. PX-52; ECF No. 103-10 at 437–38; See also ECF No. 103-8 at 155–56.

7

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 8 of 14

And that leads to the significance of the second key piece of newly discovered evidence.
It now appears that Dr. Hofeller worked with Neuman to concoct the VRA pretext that Neuman
then provided to Gore on the Secretary’s behalf. ECF No. 162-3 at 2; ECF No. 162-4 at 112:511; PX-52 (AR 2482). At a meeting arranged by the Department of Commerce’s in-house
counsel, Neuman handed Gore a draft letter that could serve as a template to request inclusion of
a citizenship question on the 2020 Census. ECF No. 162-3 at 118. The template included a
paragraph setting forth the pretextual VRA enforcement rationale. Id. at 125. A copy of this same
paragraph was found in Dr. Hofeller’s files, indicating that he may have drafted the paragraph
that was later incorporated into Neuman’s template. Id. at 128.
Secretary Ross was aware of Neuman’s role as a go-between and specifically of the
meeting at which Neuman handed Gore the template DOJ letter apparently co-written with Dr.
Hofeller. PX-52 (AR 2482). When the Secretary asked Davidson about the “Letter from DoJ” in
an October 8, 2017 email, Davidson replied that he was “on the phone with Mark Neuman right
now” getting a “readout of his meeting last week.” Id. He offered to give the Secretary “an
update via phone,” id., to which the Secretary responded, “please call me.” Id.
Plaintiffs’ new evidence potentially connects the dots between a discriminatory
purpose—diluting Hispanics’ political power—and Secretary Ross’s decision. The evidence
suggests that Dr. Hofeller was motivated to recommend the addition of a citizenship question to
the 2020 Census to advantage Republicans by diminishing Hispanics’ political power. ECF No.
162-3 at 68. Taken together with existing evidence, it appears that Dr. Hofeller was involved in
the creation of the pretextual VRA rationale and worked with Neuman, Secretary Ross’s “trusted
advisor,” PX-614, to drive the addition of a citizenship question. ECF No. 162-3 at 2–5; PX-52
(AR 2482). Dr. Hofeller’s close relationship with Neuman, the fact that they had early

8

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 9 of 14

discussions about adding the citizenship question and his apparent work with Neuman in crafting
the VRA pretext all point to a possible, if not likely, conclusion that the decisionmakers adopted
Dr. Hofeller’s discriminatory purpose for adding the citizenship question. In this way, a
connection between Dr. Hofeller’s motive and the decisionmakers’ motivations may be less
attenuated than any connection between evidence of Kris Kobach’s motivations and the
Secretary and his staff’s intent.
The Court is unconvinced by Defendants’ argument that Plaintiffs’ Rule 60(b) Motion
must fail because the newly-discovered evidence supports an entirely different theory than the
one advanced at trial. First, the new evidence that decisionmakers may have been originally
motivated to add a citizenship question to allow for the use of CVAP data for redistricting
purposes because of that change’s effect on Hispanic political power does not conflict with
Plaintiffs’ trial theory that Defendants were also motivated to add the question so that Hispanics
and noncitizens would be undercounted. Instead, these methods of depriving Hispanics and/or
non-citizens of equal representation are entirely complementary. Whether the ultimate goal was
accomplished by causing an undercount of Hispanics and non-citizens or by creating and then
using a data set (CVAP) that was less likely to include them, the discriminatory purpose was the
same.
Further, accepting for the sake of argument that the newly-discovered evidence supports
an entirely different theory about the decisionmakers’ discriminatory purpose, it still provides
additional force to Plaintiffs’ original theory. At trial, evidence was provided that Kobach,
motivated by discriminatory animus, spoke to Ross about adding a citizenship question; the
Trump campaign, with the backdrop of many statements and tweets demonstrating
discriminatory animus by the President, sought to take credit for the citizenship question; and

9

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 10 of 14

Secretary Ross was provided reading material regarding the pitfalls of counting illegal
immigrants in the Census, a problem that would be mitigated by adding a citizenship question.
Ultimately, the Court found that this evidence still fell just short of establishing discriminatory
intent by a preponderance of the evidence. However, even if Dr. Hofeller’s study evidences a
different approach, the fact that yet another person was providing input into the decision-making
process that was based in discriminatory purpose, with no counterbalancing reasoning other than
one the Court found to be pretext, provides more weight to Plaintiffs’ position that Defendants’
ultimate motivation in adding the citizenship question was discriminatory. Additionally, there is
a basis to conclude that Dr. Hofeller’s views directly impacted the decision. Thus, at the very
least, Plaintiffs have raised a substantial issue.
C. Additional Defense Arguments
In addition to challenging the import of the evidence, Defendants raise additional
questions, to which the Court now turns.
1. Does the Motion comply with Rule 60(b)?
In addition to raising a meritorious claim, to comply with Rule 60(b), the movant must
demonstrate that the opposing party would not be unfairly prejudiced and that the motion is
timely. Nat’l Credit Union Admin Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993).
Regarding Defendants’ claim that they will suffer unfair prejudice if the judgment is set
aside, the Court is sensitive to Defendants’ deadlines. However, Defendants’ deadlines affect
Plaintiffs’ ability to obtain relief and appellate review just as much as they impact Defendants’.
Further, an appeal is currently pending before the Fourth Circuit and is not yet ripe, meaning
whether Defendants were waiting for a ruling by this Court or by the Fourth Circuit, their
deadlines could come and go under either circumstance. Finally, because this Court previously

10

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 11 of 14

concluded that, on his path to adding a citizenship question, Secretary Ross bulldozed over the
Census Bureau’s standards and procedures for adding questions, at times entirely ignoring the
Bureau’s rules, ECF No. 154 at 100–108, any prejudice that Defendants now face is partially of
their own making. Taken together, the Court cannot conclude that Defendants would be unfairly
prejudiced by having the judgment set aside.
Additionally, Plaintiffs’ Motion is timely. This Court entered judgment on April 5, 2019,
and Plaintiffs could not reasonably have obtained this evidence prior to or within 28 days of that
judgment, despite their diligent discovery efforts. Neuman mentioned at his deposition, which
was taken on the last day of fact discovery, that Dr. Hofeller was the first person to raise the
citizenship question issue with him, ECF No. 162-4 at 51:7–16, but he may have misled
Plaintiffs about the nature of Hofeller’s role, ECF No. 162-4 at 138:3–15; id. at 143:25–144:6;
id. at 54:11-56:24. Neuman represented at his deposition that the “substance” of his
conversations with Dr. Hofeller were limited to encouragement that “block level data” was
necessary to “draw the most accurate districts” and requests that the administration not “skimp
on the budget.” ECF No. 162-4 at 138:3–15. Neuman also testified that he did not rely on Dr.
Hofeller for “expertise on the Voting Rights Act.” Id. at 143:25–144:6. The new evidence casts
doubt on the plausibility of this testimony. Similarly, Neuman also suggested that Hofeller’s
interest in obtaining citizenship data from the Census was to create Latino-majority voting
districts, ECF No. 162-4 at 54:11-56:24, which is unlikely in light of Hofeller’s 2015 study.
Neuman further testified that he “wasn’t part of the drafting process of the [DOJ] letter.” Id. at
114:15–21. The newly-discovered evidence indicating that Neuman and Hofeller collaborated to
draft a template DOJ letter calls the credibility of this testimony into question. Thus, it is possible

11

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 12 of 14

that if Neuman had testified more accurately, Plaintiffs would have had the necessary motivation
to pursue the material now at issue.
Defendants argue that Plaintiffs had access to the Hofeller documents on March 13, 2019.
ECF No. 168-1 at 11. That is inaccurate. The large law firm representing the New York Plaintiffs
had access to the documents because of their work on an unrelated case on March 13, 2019. ECF
No. 162-3 at 2; see also ECF No. 167-1 ¶¶ 1–5. They had no reason to search the documents for
terms relevant to this action. Id. When the documents were subsequently identified as relevant to
the New York plaintiffs, those plaintiffs filed the New York Motion, publicly revealing the new
evidence’s existence for the first time. Id. at 2–5. Days later, the Plaintiffs here filed their
motion. In sum, Plaintiffs have demonstrated that the newly-discovered evidence could not have
been discovered with reasonable diligence in time to raise the evidence at trial or to move for a
new trial under Rule 59(b). Fed. R. Civ. P. 60(b)(2).
2. Is the evidence admissible?
Defendants’ argument that the newly-discovered evidence is clearly inadmissible also
fails. To authenticate the documents found on Dr. Hofeller’s computer, Plaintiffs have provided
the deposition testimony of Dr. Hofeller’s daughter taken in the unrelated North Carolina
litigation. ECF No. 167-28. That testimony establishes how Ms. Hofeller came into possession of
the documents. Id. at 20. Given her distant location, Ms. Hofeller is an unavailable declarant and
her prior sworn testimony is likely admissible under Rule 804(b)(1) because the parties crossexamining her in the unrelated North Carolina action had a similar motive to question her on
authentication issues as the Defendants here. Fed. R. Evid. 804(b)(1); see also Horne v. OwensCorning-Fiberglas Corp., 4 F.3d 276, 283 (4th Cir. 1993) (holding that district court’s
introduction of past deposition testimony was proper even though plaintiff was not a party to the

12

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 13 of 14

prior litigation and noting that “privity is not the gravamen” of Rule 804(b)(1)). It is irrelevant
that the North Carolina action is factually unrelated to this case because Ms. Hofeller’s
deposition testimony served the same purpose in that case as it would here.
The newly-discovered documents are also not barred by the rule against hearsay.
Plaintiffs would not be admitting either of the key documents for their truth but rather to show
the motive or intent behind the citizenship question.
* * *
The Court did not arrive at its previous findings—that Secretary Ross’s articulated
reasoning was pretextual and that the overall decision to add a citizenship question was arbitrary
and capricious—lightly; instead, careful consideration of the evidence compelled those
conclusions. The question of whether the Secretary’s true reasoning was driven by
discriminatory animus is similarly weighty. But, here as well, it is becoming difficult to avoid
seeing that which is increasingly clear. As more puzzle pieces are placed on the mat, a disturbing
picture of the decisionmakers’ motives takes shape.
The Court recognizes that because of the unique procedural posture of this and related
cases, this Opinion and the Order it supports may well be moot by the time it is read by anyone
other than the Court’s own staff. Nonetheless, pursuant to Rule 62.1, the Court finds a substantial
issue has been raised. If the case is remanded, the Court will reopen discovery for no more than
45 days, order an expedited evidentiary hearing, and provide a speedy ruling.

13

 Case 8:18-cv-01041-GJH Document 175 Filed 06/24/19 Page 14 of 14

III.

CONCLUSION
For the foregoing reasons, on June 19, 2019, the Court granted Plaintiffs’ Motion for an

Indicative Ruling Under Rule 62.1(a), finding Plaintiffs’ Rule 60(b) Motion raises a substantial
issue.
Dated: June 24, 2019

/s/
GEORGE J. HAZEL
United States District Judge

14