Marilyn W. Thompson, ProPublica

Federal Judge Aileen M. Cannon, the controversial jurist who tossed out the classified documents criminal case against Donald Trump in July, failed to disclose her attendance at a May 2023 banquet funded by a conservative law school.

Cannon went to an event in Arlington, Va. honoring the late Supreme Court Justice Antonin Scalia, according to documents obtained from the Law and Economics Center at George Mason University. At a lecture and private dinner, she sat among members of Scalia’s family, fellow Federalist Society members and more than 30 conservative federal judges. Organizers billed the event as “an excellent opportunity to connect with judicial colleagues.”

A 2006 rule, intended to shine a light on judges’ attendance at paid seminars that could pose conflicts or influence decisions, requires them to file disclosure forms for such trips within 30 days and make them public on the court’s website.

It’s not the first time she has failed to fully comply with the rule.

In 2021 and 2022, Cannon took weeklong trips to the luxurious Sage Lodge in Pray, Montana, for legal colloquiums sponsored by George Mason, which named its law school for Scalia thanks to $30 million in gifts that conservative judicial kingmaker Leonard Leo helped organize.

Current rates for standard rooms at Sage Lodge can exceed $1,000 per night, depending on the season. With both Montana trips, Cannon’s required seminar disclosures were not posted until NPR reporters asked about the omissions this year as part of a broader national investigation of gaps in judicial disclosures.

Cannon did not respond to repeated requests for comment.

In response to questions from ProPublica, the clerk in the Southern District of Florida wrote in an email that Cannon had filed the Sage Lodge trips with the federal judiciary’s administrative office but had “inadvertently” not taken the second step of posting them on the court’s website. She explained that “Judges often do not realize they must input the information twice.”

The clerk said she had no information about the May 2023 banquet.

“Judges administer the law, and we have a right to expect every judge to comply with the law,” said Virginia Canter, chief ethics counsel for the watchdog group Citizens for Responsibility and Ethics in Washington.

Cannon’s husband, Joshua Lorence, a restaurant executive, accompanied her to the 2021 and 2022 colloquiums, which featured noted conservative jurists, lawyers and professors as well as lengthy “afternoon study breaks,” according to records obtained by ProPublica. Cannon emailed university staff to submit airport parking expenses and inquire about rental car reimbursement.

The rule for paid seminars is among the policies set by the Judicial Conference. Federal judges are also required by law to file annual financial disclosures, listing items such as assets, outside income and gifts.

Cannon’s annual disclosure form for 2023, which was due in May and offers another chance to report gifts and reimbursements from outside parties, has yet to be posted. (Cannon reported the two Montana trips on her annual disclosure forms, but the required 30-day privately funded seminar reports had not been posted. In 2021, Cannon incorrectly listed the school as “George Madison University.”)

The court’s administrative office declined to say if she requested a one-time extension to give her until Aug. 13 to file. A spokesperson would not discuss whether she met the deadline or the status of her disclosure, which must be reviewed internally.

Cannon’s performance during almost four years of a lifetime appointment has drawn criticism from lawyers, former federal judges and courtroom observers who told ProPublica that she doesn’t render timely decisions and has made unpredictable rulings in both civil and criminal matters. On July 15, she threw out the case brought by Special Counsel Jack Smith that alleges Trump mishandled classified documents at his Mar-a-Lago residence; Cannon called Smith’s appointment unconstitutional since he was not nominated by the president and approved by the Senate.

Smith is appealing to the 11th U.S. Circuit Court of Appeals, and Citizens for Responsibility and Ethics in Washington has asked the court to remand her decision and replace her.

By contrast, Trump, who appointed Cannon in 2020 to the Fort Pierce courthouse, has praised her brilliance, and Federalist Society founder Steven Calabresi called her a heroine for throwing out the criminal case against Trump.

For decades, judicial education programs sponsored by George Mason’s Law and Economics Center have drawn in 5,000 state and federal judges and four current Supreme Court justices, according to its website. The school says its programs strive for balance and intellectual rigor. But conference agendas and speaker lists that the university must file with the courts detail lectures and panel discussions built around Federalist Society principles that are associated with conservative legal movements.

Ken Turchi, associate dean for external affairs, said the law school plays no role in judicial disclosures. “Judges’ decisions to submit (or not submit) disclosure forms are theirs alone — it’s a self-reporting process,” he said.

The guest list for the May 2023 Scalia Forum included William H. Pryor Jr., chief judge of the 11th Circuit, which is now hearing Smith’s appeal. Pryor and dinner speaker Kyle Duncan, a 5th Circuit judge, did file their required disclosures for the Scalia dinner.

Pryor’s court has overruled Cannon twice in the Trump case. It sided with the government in September 2022 on a motion for a stay and found that it “had established a substantial likelihood of success on the merits.” In December 2022, it ruled that she erred in naming a special master to examine classified documents seized from Mar-a-Lago. After that decision, Cannon had to dismantle an expensive operation set up by her special master, a senior federal judge in New York.

Gabe Roth, who directs Fix the Court, a nonprofit judicial reform group, said compliance with the privately funded seminar rule has improved in some circuits since his group pressed for compliance with the Administrative Office of the Courts.

“They’re a more effective way for litigants and the public to get a sense of what types of individuals and groups a judge might be hanging out with and learning from,” he said.

Records show that Cannon submitted minor reimbursement requests related to the Scalia Forum trip after she returned, including the 158 miles she drove round trip to the airport. She inquired with George Mason staff about details for an Alaska excursion recommended by a former lawyer in the Trump-era White House Counsel’s Office.

Cannon registered for George Mason’s Hill Country Colloquium at a Texas resort in December 2023 but had to back out for scheduling reasons.

“I hope to join that event, and others, in future years,” she wrote.

With the balance of power in Washington up for grabs, he launched a covert attack. He consulted powerful state Republicans. He reached out to national Republicans, including the most influential conservative redistricting lawyer in the country, to discuss funding a lawsuit and get strategic advice. He conferred with a Seattle law firm. And he found a Latino congressional hopeful to act as the face of the lawsuit.

A countersuit was filed — against Graves’ own work. This suit made the opposite argument from the Latino group’s. Yes, the map that Graves and his fellow commissioners had created discriminated. But it had disadvantaged white people and other voters.

Sure enough, as Graves had foreseen, in August of last year the judge sided with the Latino plaintiffs. He determined the Yakima Valley map violated the Voting Rights Act, the landmark 1965 civil rights law that has been the bedrock of voting discrimination cases for over half a century. Section 2 of the VRA prohibits the creation of election districts that deprive voters of color of their full rights. The judge said the maps needed to be redrawn.

Having handed Latinos a win, the judge tossed the lawsuit that Graves had helped generate as moot. Undeterred, the legal team of Benancio Garcia, the Latino congressional hopeful, appealed all the way to the U.S. Supreme Court, asking it to block the new maps until it had weighed the merits of his claim. The court declined to take the case earlier this month, and it is unclear whether lawyers will now appeal to the 9th U.S. Circuit Court of Appeals.

Graves told ProPublica he wanted legal action that would slow down the court because he believed the plaintiffs were about to push through “a naked partisan gerrymander.”

“My singular goal, once a lawsuit was filed, was to defend the maps,” he said in a statement. His work is described in sworn depositions and court documents, including emails and other communications introduced as exhibits.

The Washington state salvo is merely one part of a yearslong national legal assault on laws and policies intended to prevent discrimination. In 2013, in a victory for right-wing activists, the conservative-majority Supreme Court overturned a key aspect of the VRA, lifting federal oversight over maps in areas that had historically discriminated against people of color. Last year, plaintiffs succeeded in getting the high court to make affirmative action illegal at private universities. Conservatives have also targeted school desegregation efforts and diversity initiatives at myriad organizations, including corporations and universities.

The activists are not done. By taking aim at the remaining pillar of the VRA, Section 2, they could substantially reshape U.S. elections. Despite a recent setback at the Supreme Court in an Alabama case, a sprawling, multipronged effort to get the high court to change course continues, supported by key national Republican figures. The Washington state case is one of 38 in 12 states that seek to roll back protections against discrimination by either attacking Section 2 directly or arguing that the constitutional protections of the 14th Amendment, which was passed after the Civil War and extended full citizenship rights to all Americans, trump Section 2.

The underlying premise animating these legal efforts is, in the famous words of Chief Justice John Roberts in another major ruling, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The argument, which conservatives have been developing for years, flips what has been traditionally seen as the original intent of the equal protection clause of the 14th Amendment. Instead, they argue, the amendment can be read as prohibiting taking racial and ethnic composition into account — period. Section 2, however, requires states to ensure that voters of color are fairly represented.

Republicans say that these competing mandates confuse state legislators as they try to draw fair maps. Democrats are taking advantage of Section 2 to draw as many districts as possible that will elect Democrats, according to Adam Kincaid, who directs the National Republican Redistricting Trust and its nonprofit affiliate the Fair Lines America Foundation. “That was not what Congress intended and is not what the Constitution permits,” he said.

Victory over Section 2 could stifle the voting power of nonwhite groups nationwide, striking fear in legal experts and activists who say that the country remains scarred by centuries of discrimination and racism.

“Even after serious damage by the Supreme Court, the Voting Rights Act remains one of the country’s most effective civil rights statutes. Every attempt to limit its impact is really an attempt to limit our ability to protect against racial discrimination,” said Justin Levitt, a former Justice Department civil rights official who is now a constitutional law professor at Loyola Law School.

An Urgent Mission

Tracking the course of mapmaking fights is vital to understanding the likely results of the 2024 elections. In Washington state, where partisan gerrymandering is forbidden, Graves and his fellow Republican commissioner came to believe the Democratic members were pushing a map that was overly favorable for their party.

At issue was how to divide Yakima Valley, a rural area that’s home to many of the state’s vineyards and historically has voted Republican. In recent years, the Latino population in the valley has boomed.

By the Democrats’ read of Section 2, the commission was required to create a district that gave Latinos in Yakima a fair chance to elect the candidate of their choice. The commission couldn’t reach a consensus on whether it should hire a consultant to do a racial voting analysis, so Democrats hired their own. He concluded the district needed a 60% Latino voting population to comply with the VRA.

Most Latino voters lean Democratic, so drawing such a map could diminish Republican political power.

Concerned, Graves and another Republican member convinced Republicans in the state Senate to pay for an opinion from a Seattle law firm it used for legal work. It concluded that drawing lines to comply with Section 2 racial mandates could give grounds for a 14th Amendment lawsuit.

“I don’t read Section 2 of the Voting Rights Act to say one party gets to win over another,” Graves later testified.

Partisan arguments dragged on during an all-night meeting the commission held on Nov. 15. Graves at one point asked Democrats what would be a “fair trade” if they got a majority Hispanic district in the Yakima Valley. If Republicans gave up voting strength there, he argued, the GOP should get an adjustment elsewhere.

With all of the haggling, the commission blew its midnight deadline but continued working through the night to reach an agreement that it could forward to the state Supreme Court. Worn down, Democrats finally agreed to the Republican proposals for the new 15th Legislative District.

Graves was in charge of plugging final numbers into computer mapping software. Democrats later complained that his final map put the Latino voter percentage a tad lower than they had expected, at just over 50%. Graves said Democrats were consulted on every mapping adjustment.

The Washington Supreme Court allowed the commission’s work to stand despite its tardiness, and the maps were used in the 2022 elections.

Latino plaintiffs filed the Section 2 lawsuit in January 2022. The commission was not a named defendant, but the panel’s work was at the heart of the case. All the commissioners were expected to be state witnesses.

Graves and some other commissioners were upset when the office of the Democratic attorney general declined to defend the map and told the commission to hire its own attorney. Commission Chair Sarah Augustine resigned in March 2022, criticizing the state’s lack of legal support.

Graves believed that the state’s refusal to defend the map could lead the judge to render a judgment that would invalidate the map, which would have been “a disaster,” he testified.

“I was faced with the prospect of having to raise private funds to defend a public map,” he testified. Graves, a former lawmaker who ran the legal department of a trucking firm, urgently worked the phone. He got in touch with his state and national Republican contacts, including Kincaid, the director of the NRRT and its foundation, who Graves had reached out to soon after his appointment. Graves said he wasn’t sure at first what the appropriate legal strategy should be, but he knew he had to move expeditiously.

Through a GOP contact, Graves connected with Garcia, an Iraq combat veteran and prominent Latino Republican who wanted to run for Congress. Garcia testified that they talked by phone about the map and whether it could be a “racial gerrymander” drawn to favor Latino Democrats. They discussed whether Garcia would quickly file a lawsuit challenging the map, and Graves connected him with two Seattle lawyers and Kincaid. Graves also urged him to bring on a national Latino GOP group as a co-plaintiff. (The group never signed on.)

Graves emailed Garcia that Kincaid’s foundation “can serve as a funding vehicle for this work.” Kincaid declined to comment on foundation spending.

As a commissioner, state ethics rules restricted what Graves could share with outside parties about private commission deliberations. Plaintiffs’ lawyers introduced texts and emails that showed Graves guiding Garcia and questioned how Graves “found it appropriate — as a lawyer — to coordinate the filing of a lawsuit he believed to be meritless in order to interfere with a separate ongoing federal proceeding.”

Graves called the accusations made by plaintiffs’ lawyers false and “scurrilous.”

In a statement, he told ProPublica his “singular goal, once a lawsuit was filed, was to defend the maps.”

For his part, Graves said he never believed his map was an illegal racial gerrymander, as Garcia’s lawsuit asserts. But Graves testified that he thought a 14th Amendment challenge “would at least meet the immediate goal” of delaying a default judgment.

Garcia’s testimony was also damaging. He said in his deposition that he knew little about the case brought by Latino voters until he talked with Graves and that he rarely spoke with his own lawyers. Asked who was paying his legal fees, he could only say, “I don’t know.” The legal team Graves helped arrange included state Rep. Andrew Stokesbary, the new House minority leader and a friend of Graves, and the national law firm of Jason Torchinsky, the NRRT’s chief counsel and a leading GOP redistricting litigator.

Garcia’s deposition harmed the suit so much that his lawyers later tried to have much of it corrected to reverse many of his assertions, including his testimony that his lawyers rarely talked with him. The judge would not allow the corrections.

Stokesbary, Torchinsky and Garcia did not respond to multiple requests for comment.

While the Garcia case was in motion, Stokesbary and Torchinsky agreed to represent three GOP intervenors in a parallel effort to derail the plaintiffs in the original case. This new effort sought to preserve the commission’s map. The intervenors, including a GOP lawmaker and the brother of an aide to a GOP redistricting commissioner, argued that Graves’ map did not violate Section 2 and no remedial map was needed.

The attorney general’s office asked the judge to investigate possible conflicts by Stokesbary and Torchinsky, who were representing clients arguing two opposite legal positions. As a leading Republican in the House, Stokesbary had voted to approve the plan Garcia was challenging. Plaintiffs’ lawyers argued that the conflicts traced back to Graves and his effort to “conjure up nonmeritorious and competing legal claims.” The judge allowed the attorneys to continue after their clients signed waivers.

After a four-day trial, the judge ruled in August 2023 that the Yakima Valley map must be redrawn before the 2024 election. Then a three-judge panel said the decision in the case brought by Latino voters rendered the Garcia case moot.

Graves took the stand during the trial and offered a convoluted defense. He described his fear that the commission’s map would be thrown out and his frantic effort to stop it. “I was trying to make sure the maps have a full-throated legal defense,” he testified.

He argued that the commission did not intentionally violate Section 2. The federal law, he said in a deposition, is “not crystal clear.”

Go Fishing

As the battle against Section 2 has continued, Torchinsky has emerged as one of the most significant GOP lawyers in fights over election mapmaking.

A fierce litigator, Torchinsky and his firm, Holtzman Vogel, have represented Republican congressional and Senate fundraising committees, the Republican National Committee and a long list of leading GOP candidates and PACs. In Texas, his efforts to shield Kincaid from demands that he give a deposition and produce documents in a Section 2 lawsuit brought by Latino plaintiffs dragged on for more than a year. An appeals court is still weighing GOP claims of legislative privilege in the case.

In Florida, Torchinsky worked for more than 100 hours with the staff of Gov. Ron DeSantis in 2022 to create an alternate congressional redistricting map that would be more favorable to Republicans. A circuit court judge ordered the map redrawn, saying it diminished Black voting strength, but an appeals court overturned the decision. The Florida Supreme Court has said it will hear the case.

That same year, Torchinsky weighed in on a Section 2 case before the 8th U.S. Circuit Court of Appeals that many legal experts expect to become the next Supreme Court showdown. The case involves a challenge from the Arkansas NAACP to the state’s 2021 redistricting plan. In a major ruling questioning decades of precedent, a three-judge panel said private parties lack standing to bring Section 2 lawsuits because the law gives enforcement power only to the U.S. attorney general.

Torchinsky had filed a brief on behalf of GOP Sen. Tom Cotton arguing that the courts should not allow private parties to bring lawsuits. The law is specific, he said, and to “infer otherwise would be an act of judicial lawmaking incompatible with the power of the federal judiciary.”

The appeals court recently declined to rehear the case, and the Arkansas NAACP and other plaintiffs are weighing an appeal to the Supreme Court.

Torchinsky’s clients had a setback in June 2023 when the Supreme Court issued an unexpected 5-4 decision upholding Section 2. The case involved a challenge to congressional maps brought by Black voters in Alabama. Representing the GOP congressional delegation in a solidly Republican state, Torchinsky urged justices to reverse the lower court’s order that the map be redrawn. “The Voting Rights Act was never intended to guarantee the success of one political party given the coincidence that the minority group prefers that political party,” he wrote.

Torchinsky explained his reasoning a few weeks later in a podcast interview. He reflected a view shared by the NRRT’s Kincaid, who told ProPublica in a statement that lawyers for the left, funded by vast sums of “dark money,” are turning the VRA “into a vehicle to elect more Democrats rather than to elect minority candidates.”

Torchinsky described the difficulties in many states of separating race and politics. As he put it, “When an African-American can’t win a statewide election in Alabama, is it because they are Black? Or because they are running as a Democrat? And I think that is some of what the courts should be trying to untangle in these cases.”

Torchinsky predicted “substantially more litigation” as state legislatures wrestle with tensions between Section 2 and the 14th Amendment.

Levitt, the former Justice Department official, said several justices have clearly expressed opposition to Section 2, so Republican lawyers in recent years appeal any case that might raise a new issue and have a chance to win over the court’s conservative supermajority.

“You put enough bait in the ocean, and sometimes you catch a fish,” he said.

Looking to 2024

The remedial map-drawing process is close to completion in Washington, with a judge’s decision expected this month. A court-appointed special master is considering five possible fixes. Republican leaders have condemned all the plans as Democratic gerrymanders that could disrupt four to eight GOP districts and change the election districts of hundreds of thousands of residents.

In recent months, GOP state Sen. Nikki Torres has joined the lawsuit brought by Latino voters as a third party with a personal stake in the outcome, arguing that the maps do not need to be redrawn to give Latinos a greater voice. She won election as the first Latina senator from Central Washington in 2022 with about 68% of the vote under the 15th District map drawn by the commission.

Plaintiffs’ lawyers consider her entry into the case just another delaying tactic that, if successful, will leave challenged maps in place for the 2024 election cycle.

Ernest Herrera, of the Mexican American Legal Defense and Education Fund, said: Lawyers for the intervenors are “trying every way they can to delay the Latino plaintiffs from having a map in which they can elect or have the opportunity to elect candidates of their choice.”

Eva Bonilla grows furious when she thinks about how Latino voters are treated by the Republican power structure in Texas. At 74, the small business owner watched the GOP Legislature pass a series of measures like a voter ID law that she felt would make it harder for Latinos to cast ballots or run for public office.

Two years ago, serving as the leader of a Hispanic women’s group in Fort Worth, she decided to strike back. The Republican Legislature had just pushed through new election maps that carved up Latino communities and made it even harder for them to elect candidates of their choice. So Bonilla joined other minority voters as plaintiffs in a federal lawsuit alleging intentional discrimination in the 2021 redistricting plan.

“I wanted to see the right thing done, and this is just not right,” she said.

Then Bonilla waited.

In 2022, an election came and went with districts based on the challenged maps. It has now achieved a dubious distinction: Of the 87 lawsuits filed over the 2021 congressional and legislative redistricting plans nationwide, it has dragged on the longest without having held a trial. As another election looms, a trial date has not even been set.

The reason? Republican leaders asserted their rights to block the most routine give-and-take of lawsuits, resisting handing over documents, providing discovery or submitting to depositions — in effect squashing Bonilla’s efforts to uncover how the 2021 maps were drawn. The lawmakers have done so by the rigorous use of two forms of privilege: the better known attorney-client privilege and what is known as legislative privilege, which allows elected members of state legislatures to deliberate in private.

As the Texas case drags on, legislatures across the country are making new and expansive claims of privilege to keep electoral maps in place and prevent the public from finding out how they made their decisions and why.

Texas lawmakers did not stumble upon these tactics on their own. A national GOP redistricting group helped train Republican lawmakers in Texas on how to approach lawsuits and raised money to pay legal costs. The lawmakers also passed a new law to further protect their deliberations. In addition, they put an outside political operative on the state’s payroll so that the legislative privilege could shield his activities. Finally, they relied on GOP map-drawers who worked for law firms, which allowed lawmakers to assert that the maps were “legal advice.”

Throughout, the Texas lawmakers have contended they did not discriminate against Latino voters.

In Louisiana, North Dakota and elsewhere, Republicans have resisted challenges to their maps by asserting privilege. In Washington, Democrats have done the same. Legal experts say the expanding use of privilege robs plaintiffs of key insights. To succeed in court, plaintiffs in many cases have to show legislators intended to discriminate. Without access, explained Harvard Law School professor Nicholas Stephanopoulos, it becomes “very difficult to prove intent even where it was actually present.”

The concept of legislative privilege is protected under the U.S. Constitution’s speech and debate clause, and 43 states have embedded it in their constitutions. Originally intended to protect legislators from criminal or civil claims for things they said on the floor, it has come to encompass lawmakers’ work-related communications. In theory, affording such protection allowed for frank conversations.

But in the past, people who wanted to scrutinize a legislature’s activities had another, if narrower, way to find out what was going on: They could file open records requests to get access to interactions lawmakers had with outside third parties, such as consultants or political operatives. In Texas and elsewhere, Republicans have succeeded in shielding even these once-public interactions.

Conservative judges in the 5th U.S. Circuit Court of Appeals, which covers several states including Texas, and the 8th Circuit, which covers the Dakotas, have recently sided with state legislatures that have used expanded privilege claims to prevent public review. Recently, Arizona Republicans appealed to the 9th Circuit to shield their deliberations.

Partisan battles have long been a staple of redistricting, which happens every 10 years. But as more states craft their new maps out of public sight, the fights are ending up in drawn-out court cases, with enormous consequences for voters. The lawsuits are taking so long to resolve that six states conducted their 2022 elections under maps that had been ruled illegal by lower courts, according to a recent analysis by Democracy Docket, a progressive website that tracks redistricting cases. They await resolution. Lawsuits challenging maps in seven other states were still awaiting court action when the elections took place.

The Texas GOP undertook its mapmaking effort as the state was undergoing a significant demographic shift. Latinos now slightly outnumber non-Hispanic white people in the state, and they and other minorities account for almost all population growth in the last decade, according to census data. Many of these new residents will likely vote for the Democratic Party. Through aggressive redistricting, however, Republicans have been able to maintain control of the Legislature, all major statewide offices and the state’s congressional delegation. And they grabbed one of the two new seats in Congress gained through the population increases.

“Elections can’t really be unwound. You can’t go back and change the composition of the Texas Legislature from 2022,” said Yurij Rudensky, senior counsel with the Democracy Program at the Brennan Center for Justice, a nonpartisan legal institute. The center represents a separate group of minority plaintiffs who are challenging the state’s maps. The Justice Department has joined the plaintiffs. “So using discriminatory districts cuts to the heart of our democracy.”

To reconstruct how Texas Republicans stalled the legal fight over their redrawn districts, ProPublica used federal court records in six states as well as interviews with experts, voters and former state officials. Combined they provide the fullest account yet of how state lawmakers hobbled the opposition and hid their activities.

Keith Gaddie, a former bipartisan litigation consultant, said that in his experience, lawmakers keep their methods secret when they are aggressively gaming the process for political gain. “The more egregious the gerrymander, the less information can be made available about the process,” he said. “It’s a nasty, nasty business.”

The Plan

Redistricting in Texas was two years away when leaders of the Virginia-based National Republican Redistricting Trust flew into Houston for a poolside briefing for GOP supporters.

Established in 2017 to counter a similar Democratic Party redistricting operation, the NRRT and its nonprofit affiliate, Fair Lines America, had many Texas ties. Senior leadership included powerful Texan Karl Rove, a former White House official and longtime consultant to Texas governors.

At the closed event in 2019 in a Houston suburb, Texas GOP Chairman James Dickey mingled with party loyalists to discuss the two or three new seats they should get in Congress as the state’s population boomed, according to social media accounts and interviews. A young supporter took selfies with Washington influencers like James “Trey” Trainor, a Texas lawyer whose nomination by President Donald Trump to the Federal Election Commission was being blocked by Democrats because of his criticisms of campaign finance laws. On Instagram, the supporter described it as a helpful session on the “threats and opportunities redistricting presents.”

The NRRT’s executive director is Adam Kincaid, a former Republican National Committee strategist. Kincaid had become the go-to conservative voice on redistricting within the party. Soon, he would take a hands-on role in drawing Texas’ congressional map. Kincaid declined to comment on his work in Texas “due to ongoing litigation.”

On a party podcast, Kincaid had pushed Republicans to counter what he described as the Democrat’s plan to “sue till it’s blue.” The NRRT distributed talking points asserting that “Democrats are sitting back counting the cash they plan to use on their trial lawyers to fund their strategy of endless litigation,” according to a document secured by the watchdog American Oversight.

In the podcast, Kincaid said the NRRT, which does not have to disclose its donors, would send resources to states facing challenges. Separately, Republican Gov. Greg Abbott of Texas promoted a super PAC that raised money to hire redistricting experts and legal counsel and brought in $500,000 in a single day.

Texas had been mired in voting rights litigation for almost a decade. Groups representing Latino and Black voters had sued after the 2010 census too, making similar allegations to today. Then, a district court judicial panel rejected the state’s map, ruling that large portions of it were unconstitutional racial gerrymanders and ordering maps to be redrawn. Republicans tried to assert legislative privilege over internal emails, but judges rejected the arguments and ordered the documents released.

Emails exposed GOP staffers plotting about how to draw maps to maximize Republican influence in Latino areas, or as one staffer put it: creating “Optimal Hispanic Republican Voting Strength.”

A state lawyer dismissed their plan in Spanish, “No Bueno,” slang for “No Good.” He warned them not to create a paper trail. The court found discriminatory intent.

The state appealed. Ultimately, the Supreme Court in 2018 reversed the lower court and sided with the Republicans in a 5-4 ruling.

Having been embarrassed after 2010, GOP leaders promised transparency this time around. Instead, they took the opposite tack, said Glenn Smith, an author and longtime Houston reporter and Democratic consultant: “Hide as much as possible.”

A leader in the buildup to the 2021 redistricting was Republican state Rep. Phil King, a lawyer who has championed religious liberty and Second Amendment issues. King chaired the House Redistricting Committee and set up a tutorial for members in 2019 featuring Ryan Bangert, a hardliner who was appointed by Republican Attorney General Ken Paxton. It was obvious, said one attendee, that King was “preemptively trying to make sure members covered their tracks.” King’s office did not respond to repeated requests for comment.

In his presentation, Bangert raised what he called “caution flags,” according to a tape of the meeting. While judges had differing interpretations of privilege, it was generally waived if information was shared with outside third parties like lobbyists. “Be very careful,” he said, of tweets or barroom conversations. Bangert now advises a conservative legal group. His spokesperson said that he had no further redistricting involvement.

King was the ideal person to lead the fight. He had star billing in 2019 at two sessions of the American Legislative Exchange Council, a conservative group of state lawmakers, lobbyists and executives that works to draft and spread conservative legislation. King, a national board member of the council, spoke on a panel that delivered a primer on redistricting challenges. Drawing maps favorable to the GOP while preserving minority rights was tricky, party leaders said at the sessions.

GOP strategist Cleta Mitchell, who later took a lead role in Trump’s 2020 election denial effort, worked with the council’s redistricting committee. She moderated King’s panel at the annual convention, telling the audience sarcastically that it would teach them “how to gerrymander.” Slate, which posted leaked audio, said the speakers encouraged “trashing potential evidence.”

The legislators did not want to rely solely on their own discretion, however. In May 2019, a Republican House member from Fort Worth used a routine housekeeping bill to mount a sweeping assault on open records. He slipped a provision into the bill that closed off public access to internal redistricting records. It passed before transparency advocates noticed.

The bill shielded lawmakers’ communications with staff, even interns, as well as outside contractors who might normally be considered third parties. Other legislatures have adopted similar measures. Florida has exempted redistricting documents from its Sunshine Law since 1993, and North Carolina’s Republican-led Legislature recently buried a similar exemption in its 625-page budget bill. The Democratic-led Legislature in Washington is under a court challenge for using a loophole in the state constitution to exclude lawmakers from open records requests related to redistricting.

In addition to passing the law, Texas Republicans assembled legal heavy hitters who, in turn, hired subcontractors who could work behind attorney-client privilege. The House paid more than $1 million to Butler Snow LLP, which hired a Virginia-based demographer to draw maps for the state House of Representatives. (The legal contracts were obtained by American Oversight through an open records request sent before the law was passed.)

Then, for the national congressional seats, 22 GOP members of the Texas Legislature hired Chris Gober, former general counsel for the state Republican Party. It’s not unusual for states or members to retain outside counsel. But what Gober then did was hire the NRRT, an outside party, paying the group a mere $5,000. That secured Kincaid’s map-drawing services, according to Gober’s deposition. He said Kincaid “had the mouse” on the computer drawing congressional maps.

Gober said he is not proficient with redistricting software and hires subcontractors to work under his direction. “That arrangement — and our assertion of attorney-client privilege — is not any different than the other circumstances where our firm hires subcontractors,” he said.

In the Texas case, NRRT legal counsel Jason Torchinsky argued that Kincaid should not have to give a deposition because it would “deter full and honest discussions” between NRRT and partners. After a year of wrangling, a judge ordered Kincaid to answer questions and a deposition is scheduled for early November.

Torchinsky himself has become a key figure in helping Republicans with redistricting. In 2022, he helped devise a new congressional map for the office of Gov. Ron DeSantis. The governor’s plan, which faces a federal lawsuit, reduced the voting power of Black residents. A state judge has since ordered the map redrawn. Torchinsky did not respond to repeated requests for comment.

Working From Inside

While Kincaid focused on drawing a map for the state’s congressional seats, GOP map-drawer Adam Foltz arrived from Wisconsin in 2021 to assist the local effort. By then, Republican state Rep. Todd Hunter had succeeded King as House redistricting chairman. Hunter had a checkered history in redistricting; judges in 2011 had criticized him for drawing maps that undermined Latinos, according to The Texas Tribune. Hunter gave Foltz a $120,000-a-year state job, the Tribune reported, and he enjoyed such high-level access that Democrats noticed his car parked in a special driveway for members. Foltz, whose work also fell under the umbrella of privilege, drew a state salary even after map drawing concluded, and he recently got a $6,000 cost-of-living increase.

Foltz had a similar arrangement in Wisconsin, that state lawyers often cite as a poster child for improper government secrecy and prolonged litigation in its 2010 redistricting cycle. Working from a private law firm, Foltz drew maps that later were thrown out, according to local press reports. Foltz remained in a $50,000-a-year state job during litigation. He later gave testimony that a judicial panel called “almost laughable.” Foltz declined to comment, citing ongoing litigation. Hunter’s office did not respond.

Foltz’s deposition in the Texas case remains sealed by order of the court. He is still asserting legislative privilege to try to prevent giving access to his mapping work to the Justice Department, which joined the plaintiffs who are challenging the maps.

Consequences

The fight carried over to the Texas Senate as well. Republican-led redistricting helped end the Senate tenure of Beverly Powell, a Democrat. She said she knew she had a target on her back from the time she was elected, unseating a Tea Party Republican in 2018.

Powell’s Senate District 10 in Tarrant County, an unpredictable swing district in recent years, was one of several seats Republicans wanted to reclaim to consolidate their power.

She expected a bad result when the Republican chair of the Senate Redistricting Committee, Joan Huffman, secluded herself to draw a new Senate map. When Powell was finally called in to view it, what she saw outraged her. Her district’s minority communities had been split up, diluting their voting strength, while largely white rural counties had been added.

“I know exactly what you are trying to do,” Powell said she told Huffman. She dashed off a warning to other senators that Huffman’s plan was discriminatory.

Huffman insisted her map was “race-blind.” Her plan sailed through, with a notable dissent from former redistricting chair Sen. Kel Seliger, a Republican then feuding with some fellow Republicans. The Amarillo senator later testified that Huffman’s map “violated the Voting Rights Act.”

Powell tried unsuccessfully to convince a court to delay the 2022 primary election. She dropped out of the race for reelection, and the powerful House veteran King took her seat.

Powell’s complaint about the district is now part of LULAC v. Abbott, the redistricting case now awaiting trial. Her case stands out because “she has much more information about what happened than any of the rest of us do,” said Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund.

Republicans have asserted privilege in the Senate mapping fight as well. Overall for all the mapping, their claims cover about two-thirds of the documents the Justice Department wants, including drafts of maps, emails and calendars that reflect protected “thoughts, opinions and mental impressions,” documents show. The legislature has disputed that estimate.

The case stalled for a year while the 5th Circuit weighed privilege in another Texas case. Written by Trump appointee Judge Don R. Willett, its decision defended legislative privilege “even when constitutional rights are at stake.” The 8th Circuit also ruled in June in a North Dakota redistricting case that privilege “protects the functioning of the legislature.”

Judges in the redistricting case are weighing how these decisions impact 22 outstanding motions for documents and depositions.

For her part, Bonilla, the Fort Worth small business owner, says she’s given up hope. “The system has failed,” she said.