Multiple Documents - Moritz College of Law · Janet Thornton. Plaintiffs do not dispute the...

Multiple DocumentsPart Description1 22 pages2 Sean Trende Deposition Excerpts3 Thomas Hofeller Deposition Excerpts4 Janet Thornton Deposition Excerpts

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA et al v. STATE OF NORTH CAROLINA et al, Docket No. 1:13-cv-00660

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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA STATECONFERENCE OF THE NAACP, et al.,

Plaintiffs,

v.

PATRICK LLOYD MCCRORY, in hisofficial capacity as Governor of NorthCarolina, et al.,

Defendants.

))))))))))))

1:13CV658

LEAGUE OF WOMEN VOTERS OFNORTH CAROLINA, et al.,

Plaintiffs,

v.

THE STATE OF NORTH CAROLINA, et al.,

Defendants.

))))))))))

1:13CV660

UNITED STATES OF AMERICA,

Plaintiff,

v.

THE STATE OF NORTH CAROLINA, et al.,

Defendants.

)))))))))

1:13CV861

DEFENDANTS’ RESPONSE IN OPPOSITION TOPLAINTIFFS’ MOTIONS TO STRIKE TESTIMONY BYDEFENDANTS’ EXPERTS AND MOTIONS IN LIMINE

Case 1:13-cv-00660-TDS-JEP Document 309 Filed 07/07/15 Page 1 of 22

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INTRODUCTION

Plaintiffs challenged election law changes adopted by North Carolina as part of the

Voter Information and Verification Act (“VIVA”), S.L. 2013-381. During the

preliminary injunction stage, Plaintiffs’ experts opined that the practices eliminated or

modified by VIVA were responsible for increased minority participation and that changes

implemented by VIVA would have the effect of burdening minority participation.

Defendants argue and continue to maintain that proof of a Section 2 violation requires

more than a showing that the voting preferences of minorities have been eliminated or

modified, that certain voting preferences have become a habit among African Americans,

or even that the elimination of certain practices have had a disproportionate effect on

minorities. Thus, Defendants proffered their experts to show where North Carolina

stands in relationship to other states with respect to practices eliminated or modified by

VIVA and that the elimination of these practices would not suppress minority

participation in the 2014 Primary and General Elections.

Plaintiffs’ experts have since admitted that only a minority of the other states use

the practices eliminated by VIVA and that they have no evidence that African American

registration or turnout has decreased or will decrease as a result of the challenged

provisions of VIVA. Further, the opinion of Defendants’ experts have now been

validated by the results of the 2014 General Election. Despite these facts, Plaintiffs move

to exclude testimony by Defendants’ experts Sean Trende, Dr. Thomas Hofeller, and Dr.

Janet Thornton. Plaintiffs do not dispute the accuracy of much of this testimony – they

just do not want the Court to hear it. Plaintiffs’ motion is without foundation and should


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be denied. To the extent Plaintiffs wish to attack the credibility of Defendants’ experts,

the court should hear each expert’s testimony and give it the weight and credibility that

may be proper.

ARGUMENT

Rule 702 of the Federal Rules of Evidence provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience,training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge willhelp the trier of fact to understand the evidence or to determine a fact inissue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the factsof the case.

The Supreme Court held in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993),

that pursuant to Rule 702, “the trial judge must ensure that any and all scientific

testimony or evidence admitted is not only relevant, but reliable.”

Under Daubert, “a trial judge, faced with a proffer of expert scientific testimony,

must conduct ‘a preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether that reasoning or

methodology properly can be applied to the facts in issue.’” Cooper v. Smith & Nephew,

Inc., 259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert, 509 U.S. at 592-93). The

Supreme Court enunciated several factors in Daubert which the trial court may use in

performing its “gatekeeping” role, but these factors are “neither definitive, nor


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exhaustive.” Id. The trial court has broad discretion in making its determination regarding

the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142

(1999) (stating that “the law grants a district court the same broad latitude when it

decides how to determine reliability as it enjoys in respect to its ultimate reliability

determination”); Cooper, 259 F.3d at 200. The court applying the Daubert analysis is not

obliged prior to admitting the testimony to “determine that the proffered expert testimony

is irrefutable or certainly correct,” because, “[a]s with all other admissible evidence,

expert testimony is subject to testing by vigorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof.” United States v.

Moreland, 437 F.3d 424, 431 (4th Cir. 2006) (internal quotation marks omitted).

The expert reports and testimony which Plaintiffs challenge here will be offered in

a trial where the judge will be the trier of fact, which means there is no jury to protect

from undue influence. See, e.g., Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.

2000) (“When making these determinations, the district court functions as a ‘gatekeeper’

whose role is to keep experts within their proper scope, lest apparently scientific

testimony carry more weight with the jury than it deserves.” (internal quotation marks

omitted)); Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) (“Most of the safeguards

provided for in Daubert are not as essential in a case such as this where a district judge

sits as the trier of fact in place of a jury.”); Seaboard Lumber Co. v. United States, 308

F.3d 1283, 1301-02 (Fed. Cir. 2002) (noting that a “concern underlying the rule in

Daubert is that without this screening function, the jury might be exposed to confusing

and unreliable expert testimony,” and although the court must apply the Daubert


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standards in a bench trial, “these concerns are of lesser import”). In a bench trial, should

the trial court find the case for admissibility to be weak, the evidence should be admitted

but given little weight. See SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d

1011, 1042 (N.D. Ill. 2003) (finding that in a bench trial “it is an acceptable alternative to

admit evidence of borderline admissibility and give it the (slight) weight to which it is

entitled,” and stating that “Daubert requires a binary choice--admit or exclude--and a

judge in a bench trial should have discretion to admit questionable technical evidence,

though of course he must not give it more weight than it deserves”).

Sean Trende

Sean Trende is an expert in psephology (the scientific study of elections), voter

behavior, voter turnout, polling, and United States demographic trends and political

history, with particular emphasis on Southern politics. (First Trende Decl. ¶2) 1 Trende

has a J.D. and M.A. in Political Science from Duke University. He is a co-author of The

Almanac of American Politics 2014. (First Trende Decl. Ex. 1) Trende has been studying

and following elections for over ten years. (First Trende Decl. ¶6) He has been a Senior

Elections Analyst with RealClearPolitics since January 2009, where his main

responsibilities consist of tracking, analyzing, and writing about elections. (First Trende

Decl. ¶¶10-11) As part of these responsibilities, Trende has studied and written

extensively about demographic trends in the country, exit poll data at the state and federal

level, public opinion polling, and voter turnout and voting behavior. (First Trende Decl.

1 Trende’s First Declaration was marked as Exhibit 103 during this deposition and filed with the Court during thepreliminary injunction hearing as Defendants’ Ex. 2. It is also marked as Exhibit 1 attached to Plaintiffs’ Motion toStrike.


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¶11). Trende had been qualified to present expert testimony in a recent Section 2 case

involving changes to early voting practices adopted by Ohio. Ohio State Conference of

NAACP v. Husted, 42 F.Supp.2d 808 S.D. Ohio 2014). This testimony included a

regression analysis. Id.

Trende has offered four opinions in his report: (1) the voting reforms contained in

VIVA place North Carolina within the mainstream of American voting laws, (First

Trende Decl. ¶¶18-61; Second Trende Decl. ¶¶51-133);2 (2) the data does not support the

burdens and impact on turnout predicted by Plaintiffs. (First Trende Decl. ¶¶62-144;

Second Trende Decl. ¶¶134-257); (3) compilations showing that the burdens predicted by

Plaintiffs’ experts at the preliminary injunction stage did not impact minority turnout

during the 2014 General Election (Second Trende Decl. ¶¶24-51); and (4) testimony that

the drop-off rate for African-American election day voters in 2012 who did not vote in

2014 exceeded the drop-off rate for 2012 African-American early voters who did not vote

in 2014. (Second Trende Decl. ¶¶ 41-47).3 Trende will also respond to other criticisms

leveled at him by Plaintiffs’ experts (Second Trende Decl. ¶¶119-134)

Plaintiffs’ motion to strike mainly focuses on Trende’s regression analysis

concerning the impact of VIVA’s challenged practices on turn out. Interestingly, despite

the length of time that has elapsed, the resources available to the Plaintiffs, and the

number of Plaintiffs’ experts, none of Plaintiffs experts have attempted to refute Trende

with their own regression analysis studying whether eliminating SDR, reducing early

2 Trende’s Second Declaration is attached to Plaintiffs’ Motion to Strike as Exhibit 3.3 This testimony is needed to refute testimony by Plaintiffs’ expert, Dr. Paul Gronke, who only examined the dropoff rate of 2012 early voters.


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voting days, eliminating out of precinct voting, or the implementation of a photo

identification requirement, will suppress black turnout. Thus, at the preliminary

injunction stage the person Plaintiffs contend to be completely unqualified was the only

expert willing to examine VIVA’s potential impact on turnout and give an opinion on

whether turnout would be impacted. That opinion has been fully validated by the 2014

General Election results.4

Plaintiffs argue that Trende is not qualified to render an opinion concerning the

effects of the challenged provisions because he does not have a Ph.D. and is not a

political scientist; he has not authored any peer-reviewed articles in the area of political

science or elections; he had no prior experience analyzing the effects of the specific

voting practices at issue; and he had not previously examined any state’s laws on the

specific voting practices at issue. While these facts might go to the weight of Trende’s

testimony (assuming Plaintiffs’ experts even contest Trende’s testimony on the issues

discussed above), as found by the district court in Ohio, they do not disqualify Trende as

an expert. 5

As the Seventh Circuit observed:

While extensive academic and practical expertise in an area is certainlysufficient to qualify a potential witness as an expert, Rule 702 specificallycontemplates the admission of testimony by experts whose knowledge isbased on experience. Thus, a court should consider a proposed expert’s full

4 Neither Plaintiffs nor Plaintiffs’ motion to strike contest the substance of Trende’s remaining opinions. As thecourt will recall, Plaintiffs’ experts have already conceded that most states do not have SDR or out of precinctvoting. None of Plaintiffs’ experts contest the substance of Trende’s report on the states that do not have earlyvoting or the number of days for early voting in those states that have early voting or Trende’s comparison of dropoff rates for 2012 early and election day voters who did not vote in 2012.5 Similarly, that there are no degrees or professional certifications in psephology, that no university has a departmentof psephology, and that there are no professional associations or peer-reviewed journals of psephology does notmean that Trende cannot offer expert testimony relying on the scientific study of elections.


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range of practical experience as well as academic or technical training whendetermining whether that expert is qualified to render an opinion in a givenarea.

Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (internal quotation marks and

citations omitted).

Furthermore, it is unnecessary for Trende to have previously performed the exact

analysis he performed in this case in order to be qualified as an expert capable of

performing that analysis. The analyses Trende performed in the challenged opinion were

regression analyses, which he has performed numerous times in his many years of

experience working with election data. (First Trende Dep. p. 33:5-10) The fact that he

has not applied a regression analysis to the particular data made available in this case

does not detract from his expertise in applying regression analyses generally. Cf. Martin

v. Fleissner GmbH, 741 F.2d 61, 64 (4th Cir. 1984) (rejecting argument that testimony

should be rejected because proffered experts were not expert on particular equipment in

question, because “both were knowledgeable in the pertinent areas of engineering design

and familiar with the processes” used by the equipment, and the “lack of direct

experience is not a sufficient basis to reject their testimony, but may affect the weight that

testimony is given, a decision properly made by the jury”).

Plaintiffs argue that Trende’s methodology is unreliable because their experts

disagree with the assumptions and decisions Trende made in performing his regression

analysis. Dr. Charles Stewart, one of Plaintiffs’ experts, disagrees with the way Trende

conducted his cross-state comparison, but he has admitted that a cross-state comparison

combined with a regression analysis is an accepted way to determine whether there is any


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relationship between the practices affected by VIVA and registration or turnout rates.

(First Stewart Dep. pp. 168:9 – 170:22)6 The fact that Dr. Stewart would have designed

his regression analysis differently from Trende, however, does not make Trende’s

regression analysis inadmissible. Furthermore, even if the Court were to conclude that the

criticisms offered by Plaintiffs’ experts are valid, these criticisms only go to weight of the

evidence. See ActiveVideo Networks, Inc. v. Verizon Communs., Inc., 694 F.3d 1312,

1333 (Fed. Cir. 2012) (“At their core, however, Verizon’s disagreements are with the

conclusions reached by ActiveVideo’s expert and the factual assumptions and

considerations underlying those conclusions, not his methodology.”).

Plaintiffs contend that Trende did not address the scholarly authority that

contradicts his findings, taking issue with Trende’s conclusion that there is no statistically

significant correlation between same-day registration (“SDR”) and higher minority

turnout. In truth, as will be shown at trial, Plaintiffs have not fully explained the

“scholarly authority” which generally holds that election day registration, not same-day

registration during early voting, may have a positive impact on overall turnout. 7

Regardless, the Supreme Court made clear in Daubert that the Court is to look at the

principles and methodology employed by the expert, not the conclusions reached, when

determining whether to admit expert testimony. Daubert v. Merrell Dow Pharms., 509

U.S. 579, 595 (1993) (“The focus, of course, must be solely on principles and

methodology, not on the conclusions that they generate.”). It is significant here that

6 Dr. Stewart’s deposition was designated in its entirety in Defendants’ Designations of Deposition Testimony inConnection with Plaintiffs’ Motions for a Preliminary Injunction.7 To the extent Plaintiffs’ experts contend that SDR helps reduce the suppressive effect of early voting, any suchopinions are contrary to the results of the 2014 General Election.


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Trende reached his conclusion by applying regression analysis, an analysis that Plaintiffs’

experts declined to employ. (Trende Dep. pp. 327:23 – 328: 20)

Plaintiffs criticize Trende’s analysis on the ground that he used a data set from the

United States Census Bureau’s Current Population Survey (“CPS”) without first

weighting the data. Plaintiffs present this argument as one regarding “the known or

potential rate of error,” which Plaintiffs identify as one of the Daubert factors. However,

the factor the Supreme Court discussed in Daubert was the rate of error involved in the

application of a scientific technique, such as a spectrographic analysis. Daubert, 509

U.S. at 594. Indeed, it makes no sense to talk about an “error rate” in data; the data are

what they are. Plaintiffs contend that because Trende did not weight the CPS data, his

analysis—the application of regression techniques—is unreliable and should be excluded.

Trende explained at length in his deposition why he did not weight the data. (First Trende

Dep. pp. 324:11 – 326:23) Trende’s decision to use unweighted CPS data may be a factor

in determining the weight to be given to Trende’s opinion, but it does not warrant

exclusion.

Trende is qualified as an expert in election laws, voting patterns, voter turnout, and

voter registration. Trende should be allowed explain and to defend his opinions on

election laws and the impact of election laws on turnout. The 2014 General Elections

proved that Trende was right and that all of Plaintiffs’ more credentialed experts were

wrong. His methodology—a regression analysis—is reliable, and his opinions are

relevant to issues in this case. All of Plaintiffs’ experts also concede that Trende has

correctly explained that most states do not have SDR or out-of-precinct voting and they


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have conceded that his testimony on days of early voting is substantially correct. The

fact that Trende has gained expertise in these areas while working in the private sector

instead of a university does not make him less qualified to offer an opinion. Therefore,

Plaintiffs’ motion to strike Trende’s declaration and exclude his testimony should be

denied.

Dr. Thomas Hofeller

Plaintiffs argue that Dr. Hofeller is not qualified to offer expert testimony because

he has no experience qualifying him to offer opinions about the specific election practices

at issue in this case. Contrary to Plaintiffs’ assertions, Dr. Hofeller is qualified to offer

expert testimony because his technical and other specialized knowledge “will help the

trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702.

Dr. Thomas Hofeller is, among other things, an expert in all of the complex

databases used to prepare redistricting plans. He has a Ph.D. in Government and over 40

years of experience working with census data, geographic mapping, and data retrieval

systems. As an expert in redistricting, he regularly analyzes and interprets large sets of

demographic and election data in order to draw conclusions regarding voting patterns.

One of the issues in this case is whether the voting practices eliminated or

modified by VIVA were responsible for increased minority participation. Evidence that

tends to show other reasons for increased minority participation is clearly relevant to this

issue. Dr. Hofeller has acquired knowledge, skill, experience, and training which enable

him to address this issue.


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As reflected on his resume, Dr. Hofeller’s expertise includes, among other things,

“Information Technology, expertise in analysis of complex technical problems involving

large amounts of data—both for analysis and practical use in business, government and

politics.” 8 Dr. Hofeller worked as the Staff Director for the United States House

Subcommittee on the Census at the inception of this oversight subcommittee, the purpose

of which was to monitor the preparations for and execution of the 2000 Decennial

Census. In redistricting cases, Dr. Hofeller has worked with large amounts of data to

extract information needed to draw districts according to specified criteria. Dr. Hofeller is

familiar with registration files, census data, list matching, and demographic analysis. He

understands how to apply this information to precincts and census geography such as cote

tabulation districts and counties, and is proficient with database construction and the use

of geographic information services. (First Hofeller Decl. ¶¶3-12; First Hofeller Dep. pp.

65:24 - 67:12, 71:18 - 73:9).9 Dr. Hofeller is well experienced and qualified to interpret

data, and to extrapolate from that data conclusions regarding voting patterns and

behaviors.

Plaintiffs next contend that Dr. Hofeller’s methodology is not reliable because he

did nothing more than compile data provided to him by Defendants, speculate as to its

meaning, and used methods that do not satisfy the Daubert factors. This is an interesting

argument since all of Plaintiffs’ experts compiled information from databases or

snapshots of databases provided to them by the North Carolina State Board of Elections

8 Dr. Hofeller’s resume is attached as Exhibit C to Plaintiffs’ Motion to Strike Declarations of Thomas Hofeller.9 Dr. Hofeller’s First Declaration is attached to Plaintiffs’ motion to strike his testimony during the preliminaryinjunction hearing. (See United States v. The State of North Carolina, 1:13CV861, MDNC, DE 131).


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(“SBOE”) or the North Carolina Division of Motor Vehicles (“DMV”). Dr. Hofeller did

exactly the same thing. He extracted meaningful information from large amounts of data

and presented information relevant to an analysis of the issues of the case in a manner

that is understandable and illuminating.10 Thus, for example, Table 14 attached to Dr.

Hofeller’s First Declaration presents demographic and political characteristics for the

counties which provided Sunday early voting and for those which did not. Map 14

presents the information in pictorial form. The presentation of data in this manner allows

the Court to see that counties with Sunday early voting have a significantly higher

percentage of Democrats and African Americans than those counties without Sunday

voting, a fact which would not be readily apparent from the raw data itself. Similarly,

Table 15 and Map 15 show the demographic and political characteristics for the areas

within three miles of early voting sites in Wake County. The presentation of data in this

manner allows the Court to see that a significantly higher proportion of Democrats and

African Americans had greater access to early-voting sites, in that the eight early-voting

sites open for 120 to 126 hours were placed in areas with a higher percentage of

Democrats and African Americans, as compared to the eight early-voting areas open for

only 82 hours.

10 It is not mandatory that an expert’s opinion consist of a scientific or statistical analysis. In cases where the opinionis not scientific or statistical, the Daubert factors have less relevance. As noted by the Advisory Committee on the2000 Amendments to Rule 702: “Some types of expert testimony will be more objectively verifiable, and subject tothe expectations of falsifiability, peer review, and publication, than others. Some types of expert testimony will notrely on anything like a scientific method, and so will have to be evaluated by reference to other standard principlesattendant to the particular area of expertise.” Should the Court agree with Plaintiffs that Dr. Hofeller has notprovided expert testimony because he has done nothing more than “regurgitate” data provided to him, thenDefendants would ask the Court to treat Dr. Hofeller’s declaration as that of a fact witness: Regardless of how Dr.Hofeller’s analyses of the data are characterized, there can be no question that, by providing intelligible summariesof the massive amounts of data, the analyses provided in Dr. Hofeller’s declaration are helpful to understanding theevidence in the case.


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Similarly, in his Second Declaration, Hofeller relies upon data from the SBOE

databases to compare African-American and white turnout in 2010 versus 2014. Dr.

Hofeller has far more experience than any of Plaintiffs’ experts explaining and analyzing

data like this because of the years of experience in redistricting. (Second Hofeller Decl.

¶¶80-84).11 Hofeller has also compared census information to registration information

provided by SBOE to show how North Carolina’s registration rolls are highly inflated.

(First Hofeller Decl. ¶¶75-78; Second Hofeller Decl. ¶¶31-38)

Most of Plaintiffs’ focus concerns Dr. Hofeller’s testimony on registered voters

who could not be matched by the SBOE with the DMV database for persons who possess

a DMV issued photo ID. Dr. Hofeller has testified that many unmatched voters have not

ever voted or have not voted in many years. A logical conclusion from this evidence is

that many of these unmatched voters no longer reside in North Carolina. Dr. Hofeller has

also opined that a high percentage of unmatched voters are probably college students and

that most unmatched voters live in close proximity to a DMV office. In providing his

opinions, Dr. Hofeller relied upon data provided by the SBOE – just like every other

expert – as wells as information regarding college students in North Carolina similar to

the information relied upon by Plaintiffs’ experts. Dr. Hofeller’s testimony about the

location of unmatched voters is important because of incomplete information provided by

Plaintiffs’ experts. Dr. Hofeller has identified the counties of residence for unmatched

voters and can explain to the court that the vast majority are located in urban counties and

in close proximity to DMV offices. Plaintiffs’ experts have clouded these facts by

11 Dr. Hofeller’s Second Declaration is attached to Plaintiffs’ pending motion to strike his testimony.


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offering testimony only on the percentage of voters in each county that are not matched.

This of course does not tell the full story in evaluating any alleged burdensome effect of

VIVA.

Hofeller’s testimony on issues related to unmatched voters is straightforward and

represents a compilation of data obtained from extensive and complex databases. None

of the Plaintiffs have contended that Hofeller’s testimony is wrong, but instead only that

the court should not hear the evidence because someone like Dr. Hofeller – who has more

experience analyzing registration databases and census geography than any other expert

in this case – cannot be trusted to summarize facts that none of Plaintiffs dispute. In any

case, it is premature for the court to rule on Hofeller’s matching testimony because the

legality of photo ID will not be tried during this court’s July term.

Dr. Hofeller’s experience and specialized knowledge allow him to extract

meaningful information from an otherwise overwhelmingly large, complex and

seemingly random data set. Dr. Hofeller has used this expertise in the past in the area of

redistricting, and he has now employed it to show trends and patterns in the

administration of North Carolina’s voting laws and voter demographics for this case. He

is qualified to offer expert testimony in the form of an analysis of the data, his

methodology for doing so is sound, and his report is relevant. Therefore, Plaintiffs’

motion to strike Dr. Hofeller’s declaration and exclude his testimony should be denied.

Dr. Janet Thornton

Dr. Janet Thornton has given extensive expert testimony in the area of

employment discrimination. She is a trained economist, labor economist and applied


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statistician. She has substantial experience using census data and other similar publically

available data. She has a bachelor’s degree in economics and political science, a master’s

degree in economics, and a Ph.D. in economics. (First Thornton Dep. pp. 22-24).

Thornton has expertise in discrimination matters related to employment cases, insurance,

and credit decisions. (First Thornton Dep. p. 27:10-19; Second Thornton Decl. ¶6). She

has served as an expert for plaintiffs and defendants in discrimination cases. (Second

Thornton Decl. ¶6). She has prepared economic and statistical analyses involving

discrimination claims for a variety of employment practices and audits by the OFCCP.

Her expert testimony has included simple and random sampling designs, error rates

associated with sampling designs, complex databases, and processing of data for

litigation, including the use of sampling to identify anomalies in the organizations data

processing. First Thornton Decl, Ex. A (Thornton Resume) p. 1) She has extensive

knowledge of computer languages and statistical percentages. (Id. pp. 4, 5). Her resume

shows that she has appeared as an expert witness in at least 22 cases. (Id. pp. 6, 7). She

cannot recall the number of times she has been qualified as an expert historically but has

testified as an expert six times in the last four years. She has never been disqualified as

an expert. (First Thornton Dep. pp. 32:16-33:1).

It is unclear whether Plaintiffs genuinely believe that Dr. Thornton lacks the

expertise needed to evaluate the databases involved in this case or to report on what these

databases say about voter registration, voting, or turnout. In her work as an economist,

Dr. Thornton is proficient in census data and other related data concerning demographics

and socioeconomic characteristics. This type of information is obviously relevant to Dr.


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Thornton’s work in the areas of discrimination cases and credit decisions. Plaintiffs are

extremely vague regarding the extent of Dr. Thornton’s testimony they wish to exclude as

they only specifically mention her testimony comparing voter participation rates versus

poverty status in these North Carolina counties. (Brief in Support of Plaintiffs’ Motion to

Strike Portions of the Declaration of Dr. Janet Thornton p. 9 (citing First Thornton Decl.

¶¶ 22-23)). In her testimony, Dr. Thornton cited poverty information from the American

Community Survey, a publication by the Census Bureau and relied upon by some of

Plaintiffs’ experts, and compared that information to relevant statistics obtained from the

SBOE database, another source used by Plaintiffs’ experts. It defies credibility that

Plaintiffs believe that Dr. Thornton is incapable of extrapolating this information and

reporting these correlations to the Court. To the extent Plaintiffs object to this testimony,

their arguments only go to its credibility and weight.

It also defies credibility to think that Dr. Thornton is incapable of understanding

the complex SBOE database and reporting turnout rates by race, as well as the type of

ballots cast by race. Dr. Thornton’s report is important for many reasons but one of them

is essential. The United States’ expert, Dr. Charles Stewart, will present an incomplete

report on provisional ballots. In an attempt to prove a negative impact of VIVA on

minorities, Dr. Stewart reports the number of provisional ballots cast in 2014 and then

compares these numbers to the average number of provisional ballots over the course of

several prior elections. The evidence at trial will show that Dr. Stewart elected not to

disclose the more relevant comparison – which would compare provisional ballots in

2014 against provisional ballots in 2010, the last off-year election before 2014. Instead


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of the incomplete report prepared by Plaintiffs’ expert, Dr. Thornton evaluated the SBOE

database on voter history and provided a provisional ballot report for 2008, 2010, 2012,

and 2014, so that 2014 off-year election could be compared to the most recent off-year

election that included SDR, out-of-precinct voting, and 17 days of early voting. The facts

reported by Dr. Thornton (and omitted by the expert for the United States) have not been

disputed. It is important for the Court to have this more complete analysis of provisional

ballots.

Like Defendants’ other experts, Dr. Thornton has the education, training, and

expertise to report on matters related to the complex databases at issue and explain

critical facts that have been strangely omitted by Plaintiffs’ academic experts. The Court

should hear Dr. Thornton’s testimony and rule on its admissibility and weight after the

testimony is fully presented.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motions to Strike should be denied, and the

Court should permit testimony by Defendants’ experts to evaluate both their expertise

and experience and credibility.


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This the 7th day of July, 2015.

ROY COOPERATTORNEY GENERAL OF NORTHCAROLINA

/s/ Alexander McC. PetersAlexander McC. PetersSenior Deputy Attorney GeneralN.C. State Bar No. [email protected]

/s/ Katherine A. MurphyKatherine A. MurphySpecial Deputy Attorney GeneralN.C. State Bar No. [email protected]

N.C. Department of JusticeP.O. Box 629Raleigh, NC 27602Telephone: (919) 716-6900Facsimile: (919) 716-6763Counsel for Defendants North Carolina andState Board of Election Defendants.

OGLETREE, DEAKINS, NASHSMOAK & STEWART, P.C.

/s/ Thomas A. FarrThomas A. FarrN.C. State Bar No. 10871Phillip J. StrachN.C. State Bar No. [email protected]@ogletreedeakins.com4208 Six Forks Road, Suite 1100Raleigh, North Carolina 27609Telephone: (919) 787-9700Facsimile: (919) 783-9412Co-counsel for Defendants North Carolinaand State Board of Election Defendants.


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BOWERS LAW OFFICE LLC

By: /s/ Karl S. Bowers, Jr.Karl S. Bowers, Jr.*Federal Bar #7716P.O. Box 50549Columbia, SC 29250Telephone: (803) 260-4124E-mail: [email protected]*appearing pursuant to Local Rule 83.1(d)Counsel for Governor Patrick L. McCrory

By: /s/ Robert C. StephensRobert C. Stephens (State Bar #4150)General CounselOffice of the Governor of North Carolina20301 Mail Service CenterRaleigh, North Carolina 27699Telephone: (919) 814-2027Facsimile: (919) 733-2120E-mail: [email protected] for Governor Patrick L. McCrory


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CERTIFICATE OF SERVICE

I, Thomas A. Farr, hereby certify that I have this day electronically filed theforegoing with the Clerk of Court using the CM/ECF system which will provideelectronic notification of the same to the following:

Counsel for United States of America:T. Christian Herren, Jr.John A. Russ IVCatherine MezaDavid G. CooperSpencer R. FisherElizabeth M. RyanJenigh GarrettAttorneys, Voting SectionCivil Rights DivisionU.S. Department of JusticeRoom 7254-NWB950 Pennsylvania Avenue, N.W.Washington, DC 20530

Gill P. BeckSpecial Assistant United States AttorneyOffice of the United States AttorneyUnited States Courthouse100 Otis StreetAsheville, NC 28801

Counsel for NCAAP Plaintiffs:Penda D. HairEdward A. Hailes, Jr.Denise D. LibermanDonita JudgeCaitlin SwainADVANCEMENT PROJECTSuite 8501220 L Street, N.W.Washington, DC [email protected]

Irving JoynerP.O. Box 374Cary, NC [email protected]

Adam SteinTIN FULTON WALKER & OWEN312 West Franklin StreetChapel Hill, NC [email protected]

Thomas D. YannucciDaniel T. DonovanSusan M. DaviesK. Winn AllenUzoma NkwontaKim KnudsonAnne DechterBridget O’ConnorJodi WuKim RancourKIRKLAND & ELLIS LLP655 Fifteenth St., N.W.Washington, DC [email protected]


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Counsel for League of Women VoterPlaintiffs:Anita S. EarlsAllison J. RiggsClare R. BarnettSouthern Coalition for Social Justice1415 Hwy. 54, Suite 101Durham, NC [email protected]

Dale HoJulie A. EbensteinACLU Voting Rights Project125 Broad StreetNew York, NY [email protected]

Laughlin McDonaldACLU Voting Rights Project2700 International Tower229 Peachtree Street, NEAtlanta, GA [email protected]

Christopher BrookACLU of North Carolina Legal FoundationPO Box 28004Raleigh, NC [email protected]

Counsel for the Intervening Plaintiffs:John M. [email protected] E. [email protected] J. [email protected] [email protected] COIE, LLP700 Thirteenth Street, N.W., Suite 600Washington, D.C. 20005-3960

Edwin M. Speas, [email protected] W. O’[email protected] P. [email protected] SPRUILL, LLP301 Fayetteville St., Suite 1900Raleigh, NC 27601

This the 7th day of July, 2015.

OGLETREE, DEAKINS, NASHSMOAK & STEWART, P.C.

/s/ Thomas A. FarrThomas A. Farr

21650252.1


Case 1:13-cv-00660-TDS-JEP Document 309-1 Filed 07/07/15 Page 1 of 8

General Information

Court United States District Court for the Middle District of NorthCarolina; United States District Court for the Middle District ofNorth Carolina

Federal Nature of Suit Civil Rights - Voting[441]

Docket Number 1:13-cv-00660

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA et al v. STATE OF NORTH CAROLINA et al, Docket No. 1:13-cv-00660

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 48

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