UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT … · 2013. 12. 31. · Karyn L Rotker...

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

----------------------------------------------------------------RUTHELLE FRANK, et al., on behalf ofthemselves and all others similarlysituated,

Plaintiffs,

vs.

SCOTT WALKER, in his official capacityas Governor of the State of Wisconsin,et al.,

Defendants.

--------------------------------------

LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN, et al.,

Plaintiffs,

vs.

DAVID G. DEININGER, et al.,

Defendants.

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

Case No. 11-CV-1128

Milwaukee, WisconsinNovember 5, 2013

Case No. 12-CV-185

----------------------------------------------------------------

TRANSCRIPT OF COURT TRIAL - VOLUME 2BEFORE THE HONORABLE LYNN ADELMANUNITED STATES DISTRICT JUDGE

U.S. Official Reporter:Transcript Orders:

JOHN T. SCHINDHELM, RMR, CRR,WWW.JOHNSCHINDHELM.COM

Proceedings recorded by computerized stenography,transcript produced by computer aided transcription.

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APPEARANCES - 11-CV-1128:

For the Plaintiffs: Craig G FallsDechert LLP1900 K St NWWashington, DC 20006202-261-3373Fax: 202-261-3373Email: [email protected]

Karyn L RotkerAmerican Civil Liberties Unionof WI Foundation Inc207 E Buffalo St - Ste 325Milwaukee, WI 53202414-272-4032Fax: 414-272-0182Email: [email protected]

Neil A SteinerDechert LLP1095 Avenue of the AmericasNew York, NY 10036212-698-3822Fax: 212-698-0480Email: [email protected]

Angela M LiuDechert LLP77 W Wacker Dr - Ste 3200Chicago, IL 60601312-646-5800Fax: 312-646-5858Email: [email protected]

Dale E HoAmerican Civil Liberties UnionFoundation Inc125 Broad StNew York, NY 10004212-549-2693Fax: 212-549-2651Email: [email protected]

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For the Defendants:

Diane N PrincDechert LLP1095 Avenue of the AmericasNew York, NY 10036212-649-8743Fax: 212-698-3599Email: [email protected]

Sean J YoungAmerican Civil Liberties UnionFoundation Inc125 Broad St - 18th FlNew York, NY 10004212-284-7359Fax: 212-549-2651Email: [email protected]

Laurence J DupuisAmerican Civil Liberties Unionof WI Foundation Inc207 E Buffalo St - Ste 325Milwaukee, WI 53202414-272-4032Fax: 414-272-0182Email: [email protected]

Maria S LazarWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-3519Fax: 608-267-2223Email: [email protected]

Clayton P KawskiUnited States Department ofJustice (ED-WI)17 W Main StMadison, WI 53703608-266-7477Fax: 608-267-2223Email: [email protected]

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Daniel P LenningtonWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-8901Fax: 608-267-8906Email:[email protected]

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APPEARANCES - 12-CV-185:

For the Plaintiffs: Carl S NadlerArnold & Porter LLP555 12th St NWWashington, DC 20004-1206202-639-6130Fax: 202-942-5999Email: [email protected]

John C UlinArnold & Porter LLP777 S Figueroa St - 44th FlLos Angeles, CA 90017213-243-4000Fax: 213-243-4199Email: [email protected]

Daniel OstrowArnold & Porter LLP399 Park AveNew York, NY 10022-4690212-715-1000Fax: 212-715-1399Email: [email protected]

Ethan J CorsonArnold & Porter LLP555 12th St NWWashington, DC 20004-1206202-942-5000Fax: 202-942-5999Email: [email protected]

Marco J MartemucciArnold & Porter LLP777 S Figueroa St - 44th FlLos Angeles, CA 90017-5844213-243-4259Fax: [email protected]

James A EichnerAdvancement Project1220 L St NW - Ste 850Washington, DC 20005202-728-9557Fax: 202-728-9558Email:[email protected]

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Leigh M ChapmanAdvancement Project1220 L St NW - Ste 850Washington, DC 20005202-728-9557Fax: [email protected]

For the PlaintiffsCross Lutheran Churchand Wisconsin League ofYoung Voters EducationFund:

For the DefendantsDavid G Deininger, MichaelBrennan, Gerald Nichol,Thomas Barland, ThomasCane, Kevin Kennedy,Nathaniel Robinson:

Nathan D FosterArnold & Porter LLP370 17th St - Ste 4400Denver, CO 80202-1370303-863-1000Fax: 303-832-0428Email: [email protected]

Charles G Curtis JrArnold & Porter LLP16 N Carroll St - Ste 620Madison, WI 53703608-257-1922Email: [email protected]

Carl S NadlerJohn C UlinDaniel OstrowEthan J CorsonJames A EichnerLeigh M ChapmanNathan D FosterSara K JacksonCharles G Curtis Jr(See above for address)

Maria S LazarWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-3519Fax: 608-267-2223Email: [email protected]

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Clayton P KawskiUnited States Department ofJustice (ED-WI)17 W Main StMadison, WI 53703608-266-7477Fax: 608-267-2223Email: [email protected]

Daniel P LenningtonWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-8901Fax: [email protected]

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P R O C E E D I N G S (10:01 a.m.)

THE COURT: Okay. Identify yourself.

MR. STEINER: I'm Neil Steiner from Dechert. I'm one

of the lawyers representing the Frank Plaintiffs.

THE COURT: Okay.

MR. STEINER: And, Your Honor, we find ourselves this

morning, we're ready to call a witness. Unfortunately we need

to I think request the Court's intervention with some scheduling

matters. Having gotten through as much as we got through

yesterday, we spoke with Mr. Kawski and counsel for the

defendants last night about how much cross they have on some of

the experts and what our anticipated day looks like today.

While it's possible the experts will take the better part of the

day and witnesses we had slated for tomorrow for us are

available this afternoon, it's quite possible given how quickly

things progressed yesterday that we'll be at the point of

wanting to call as witnesses state employees who we plan to call

adverse during our case. Starting about 6:00 o'clock last night

I had two conversations with Mr. Kawski, Ms. Rotker sent an

e-mail to Mr. Kawski trying to find out the availability of the

state employees to come and testify this afternoon instead of

later in the week or next week. We haven't gotten responses to

any of that other than being told specific people we asked for

aren't available. The people that we've asked about include

Ross Hein, H-E-I-N, who is a senior employee at the Government

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Accountability Board, Janet Turja who is a supervisor team

leader in the customer service department at the Waukesha DMV

which is the DMV that Ms. Jones and her daughter who you heard

from yesterday had to interact with. She's about 45 minutes

away in Waukesha. Nate Robinson, Nathaniel Robinson who we had

subpoenaed because we couldn't get a response from Mr. Kawski

last week as to whether he would produce him or not. We

subpoenaed him for Thursday. We were told by Mr. Kawski

yesterday that he's not available that day but there were no

alternatives. Mr. Kennedy who was here yesterday we said would

be prepared to examine him this morning. He's not available at

all today because he's in Madison testifying. We requested Jim

Miller who the state plans to call and we had agreed that they

would put on as part of their case. We said since it's a bench

trial we're prepared to allow them to do the direct examination

even during our case even though it's somewhat out of order and

then we would do a full cross. And also while it's not in

order, it's not the witness we would logically call next because

it's a bench trial we're prepared to call Diane Lowe from the

GAB.

As far as I can tell, I haven't heard anything back

from Mr. Kawski since 6:00 o'clock last night, none of those

people are here today. At this point we're prepared this

afternoon should we get there to cross-examine Mr. Hein,

Ms. Turja, or Ms. Lowe. It's possible that the day will be

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taken and we won't get to any of those witnesses, it's possible

we could get to as many as two of those witnesses. And it seems

to me that some admonition or intervention from Your Honor might

help break the logjam of the bureaucracy to free up these

people's schedules this afternoon and tomorrow instead of later

in the week and next week as to when we originally thought about

the schedule we thought we would get done.

MR. KAWSKI: Good morning, Your Honor, this is

Attorney Kawski for the defendants. I come bringing good news

for Mr. Steiner and the plaintiffs.

I have spoken with several of these individuals this

morning. Unfortunately I could not reach them last night.

They're state employees, I don't have their cell phone numbers

or any good way of reaching them after hours, but I did try and

reach them this morning. And so here's what I have for

witnesses that are available.

Janet Turja can come this afternoon. So she will be

here and I will e-mail her during trial and let her know that

she should be here.

I have tried to contact Ross Hein and found out that

he is in Green Bay today and cannot make it.

I did speak last night at 10:45 with Matt Robinson.

He is available next Friday at 2 p.m. He is not available this

week. And the reason I have not been able to get ahold of him

is that he has a family member that's dying, he's visiting that

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family member in Chicago, and he would prefer to either be on

the way to Chicago or coming back from Chicago when he testifies

and the best time for him is next Friday at 2 p.m.

THE COURT: You mean a week from Friday?

MR. KAWSKI: Correct.

THE COURT: Yeah. Okay.

MR. KAWSKI: So, I'm checking on the other -- the

other witnesses that were mentioned, Diane Lowe I don't believe

is available. And we had talked with the plaintiffs about her

being available Thursday after 3 p.m. I thought that's what we

had settled on.

The other witness that Mr. Steiner did not mention

that I found out information that she will be available on

Thursday at 10 a.m. now is Christina Boardman from DOT. I need

to write her back during the trial and confirm that though if

that's what the plaintiffs would like to do.

So those are the witnesses that I've checked on.

THE COURT: Let's go through. Okay. So Turja you

want to get her this afternoon then?

MR. STEINER: Yes, Your Honor.

THE COURT: Okay. And then he mentioned a few more.

Are there some others that we could get this afternoon, just to

make sure.

MR. KAWSKI: What were the others again?

MR. STEINER: For today, Your Honor, the three

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witnesses that we rearranged last night to be prepared for today

are Mr. Hein, Ms. Turja who we now know will be here, and

Ms. Lowe who is somewhat out of order but we could put on this

afternoon.

MR. KAWSKI: Lowe, I had not asked about because I

didn't -- I assumed that she would be going on Thursday at

3 p.m. I can ask about her. So Turja will be today. Hein

cannot be today, he is not available.

THE COURT: And when is he going to be?

MR. KAWSKI: I originally thought we agreed that he

would be on Thursday but they want to move him up now, because

they don't have enough witnesses for today.

MR. STEINER: Your Honor, certainly we will need a

good number of these people tomorrow because we got through

yesterday and by the end of the day today we'll have gotten

through virtually all of the witnesses that we had planned to

call between yesterday after the experts this afternoon and the

day tomorrow because yesterday's testimony as Your Honor

anticipated went quite quickly. And so just as our witnesses

have all been rearranged, mostly been rearranged --

THE COURT: Can we get Hein for tomorrow maybe?

MR. KAWSKI: I can try. I mean, I can definitely

e-mail him during trial right now and --

THE COURT: You have an assistant or something, right?

MR. KAWSKI: Sure. I have my e-mail up so it's not a

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problem at all. I can try and e-mail him directly and I can try

and call him at lunch, too.

MR. STEINER: And Mr. Kennedy will be back tomorrow.

THE COURT: Kennedy tomorrow then?

MR. KAWSKI: Mr. Kennedy will be back tomorrow and I

can inform him that he will testify tomorrow. He intends to be

present for the whole trial so -- with the exception of today.

THE COURT: Okay. So Kennedy tomorrow, Hein tomorrow,

who else?

MR. STEINER: And we think we can also get Jeremy

Kruger in tomorrow.

MR. KAWSKI: I've asked about Kruger for tomorrow and

I haven't received a response back yet.

THE COURT: Okay. Kruger possibly tomorrow. And then

Boardman, when is Boardman?

MR. STEINER: Thursday morning, which is acceptable to

us.

THE COURT: Okay.

MR. KAWSKI: And I will confirm with Kristina Boardman

that she should be here at 10 a.m. on Thursday.

THE COURT: Okay.

MR. STEINER: And I think at some point this week

while it would be somewhat out of order we're perfectly prepared

to allow Mr. Miller to testify and to allow Mr. Kawski to

examine him first and then we'll do --

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THE COURT: Is that okay?

MR. KAWSKI: I don't know if that's okay. That is not

what we had planned for. We had planned for him all along to

come on the 14th and he had scheduled accordingly to be here on

the 14th. So I don't know if that's okay.

THE COURT: Well, can you try to get him here

tomorrow?

MR. KAWSKI: I can definitely try.

MR. ULIN: Seems like there's a fair chance trial will

be concluded by the 14th.

THE COURT: When is the 14th?

MR. KAWSKI: Thursday.

THE COURT: He's got a witness that's -- can only

come -- I mean, my feeling was we could finish this by next

Monday if we just went.

MR. ULIN: We agree, Your Honor.

THE COURT: I never thought this was a two-week trial

anyway. But, you know, what do I know. I mean --

MR. KAWSKI: Your Honor, we didn't think it was a

two-week trial either but the plaintiffs had listed so many

witnesses that we thought we'd be seeing all these witnesses.

THE COURT: Well. All right. Anyway, let's try to do

the best we can with what we've got. So are there other -- are

there other people that we have to identify now for when they're

going to be?

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MR. STEINER: I think that that Your Honor gives us a

good roadmap for today, tomorrow and into Thursday morning and

we'll talk to Mr. Kawski again at the end of the day today and

at lunch tomorrow to see whether we can finish before next

Friday and what we do in that circumstance.

THE COURT: Okay.

MR. STEINER: I think at this point with Your Honor's

permission we're prepared to call our next witness.

THE COURT: Great.

MR. STEINER: We call Nancy Marcus.

THE COURT: Okay.

NANCY MARCUS, PLAINTIFF WITNESS, DULY SWORN

THE COURT: Have a seat. State your name for the

record. Spell your name and then talk real close to that mic.

THE WITNESS: My name is Nancy Marcus, M-A-R-C-U-S.

DIRECT EXAMINATION

BY MR. FALLS:

Q. My name is Craig Falls and I represent the Frank plaintiffs

in this case. And I'm going to ask you some questions today

about your experience with judicial elections in Wisconsin.

Before I get to those questions I want to first ask you some

background questions to introduce you to the Court.

A. Yes.

Q. So, Ms. Marcus, where do you live?

A. I currently live in Fort Wayne, Indiana.

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Q. And how are you employed?

A. I'm a constitutional law professor at the new law school

that just opened up in Fort Wayne, Indiana Tech Law School.

Q. What legal degrees do you hold?

A. I hold three legal degrees. I have a JD from Case Western

in Cleveland, and I have my LLM and my SJD from University of

Wisconsin Law School.

Q. Have you practiced law?

A. I have.

Q. Where did you practice?

A. I began as a legal aide lawyer right out of law school for a

couple of years, and I had kind of a nontraditional career after

that for 5 years in DC doing policy work, and then I practiced

law again after I got my SJD for 4 1/2 years in Cleveland at a

small boutique constitutional law firm.

Q. Are you a member of any bar associations?

A. I am. I'm a member of the Ohio and the DC bar.

Q. Are you a member of a bar of any federal courts?

A. Yes. In Ohio I'm a member of the Northern District, the

Southern District, and the Sixth Circuit Court of Appeals.

Q. Thank you. Let me ask you about, have you ever worked in a

legal capacity in Wisconsin?

A. Yes.

Q. What did you do?

A. I was -- first I was Judge Higginbotham's --

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H-I-G-G-I-N-B-O-T-H-A-M -- law clerk, and he's on the court of

appeals for the District 4 Wisconsin Court of Appeals in

Madison. And after I clerked for him for a little over a year I

was Justice Louis Butler's judicial law clerk on the Wisconsin

Supreme Court in 2007 and 2008, from August through July.

Q. For the record what race is Justice Butler?

A. He's African-American.

Q. Did you have experience with judicial elections while you

were a law clerk?

A. I did, unfortunately he was up for re-election that year.

Q. Against whom was Justice Butler running?

A. Justice Gableman. Then he was not Justice Gableman, now he

is.

Q. Do you recall when the election was held?

A. Yes, I do. It was April Fools' Day on 2008. April 1st,

2008.

Q. And do you recall when the campaigning began?

A. I don't remember exactly what month the campaigning began.

It -- maybe 6 months prior to the election but it really kicked

into high gear a month out. And that's when the TV ads really

started getting rolled out in full force and I remember it was a

month out because it was my birthday, March 4th, sometime around

March 4th I decided to give myself pretty much my full vacation

day as judicial law clerk to give myself a breather so I took a

long weekend, I went to the spa, I was supposed to be relaxed

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and I kind of had a major buzz kill when I stepped out of the

spa and saw the TV and it was the first time I saw one of the

ads against Justice Butler and it was pretty ugly and I realized

that things were changing. So -- yeah.

Q. Could you describe the nature of these ads? What was said

in these ads?

A. Well, the first series of ads were not put out by Justice

Gableman, they were third party issue ads, but they were pretty

ugly. They kind of had the tone of slasher flick in my mind

when I saw them. You would see, you know, an attractive white

girl -- an image like an attractive white girl lying in a pool

of blood with a knife and the implication of these ads is that

because Justice Butler was --

MR. LENNINGTON: Objection. Foundation for this

testimony, Your Honor.

MR. FALLS: Can I ask a question to establish

foundation?

THE COURT: Go ahead.

BY MR. FALLS:

Q. Did you view the ads on television?

A. I did.

MR. FALLS: Your Honor, I think anyone who has

witnessed the ad can testify about --

MR. LENNINGTON: I'm objecting also to the

characterization as -- the conclusion of the witnesses that

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these are racial appeals but she hasn't established any

foundation other than identifying the race of the people in the

television ads that she saw.

MR. FALLS: I think counselor is jumping ahead. I'm

happy to ask more questions.

THE COURT: Why don't you.

BY MR. FALLS:

Q. Okay. All right. So Ms. Marcus, what were some of the

phrases used in these ads to describe Justice Butler.

A. Well, they called him loophole Louie. And there is a common

theme that he set free rapists and murderers in his capacity.

Actually they didn't each specify in his capacity as a former

public defender. It almost made it sound -- it was confusing.

I would say that it was confusing to the voter, to the voting

population and to me.

MR. LENNINGTON: Objection. Foundation as to the

confusion to the voters.

THE COURT: Sustained.

THE WITNESS: I felt that they were confusing in tone

when I watched them. But what really was horrifying to me was

that you had these pretty graphic, ugly ads that at the end of

these ads they would put the phone number for our chambers and

the ads would say call Justice Butler and tell him how you feel

about setting rapists and murderers free. And I mean the phone

number came in directly to his chambers. Not to his campaign

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office, but to the place where he writes decisions, where he

writes decisions in the Supreme Court of Wisconsin. And that's

when the calls started flooding in.

BY MR. FALLS:

Q. Then you personally took some of these calls?

A. I did. I normally would not answer calls that wasn't in my

normal job duties as a judicial law clerk. The chambers, there

are three of us that work there, there was Justice Butler,

myself and our assistant, Rita, and normally Rita would answer

the phones. But the calls came in so fast and furious every

time one of those campaign ads aired that I had to start

answering the phones as well because there were simply too many

lines lit up for her to handle all the calls.

Q. What was the nature of the calls that you received

personally as a result of these third party advertisements you

mentioned? Putting aside other advertisements.

A. Putting aside other advertisements, these ads, we came to

the conclusion it was pretty obvious to tell when a campaign ad

had run because that's when the phones would start ringing. It

was like, oh, there must be another commercial break on a TV

show. We could pretty easily tell when a campaign ad had run

because that's when the phones would start ringing off the hook.

And we would get, you know, 15, 20 calls in a 5 minute period

and we would have to divvy up the phone calls and I was pitching

in to help answer the calls. And the calls that ran after those

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ugly I call them the slasher flick ads.

During the week they tended to be hostile,

belligerent, utterly disrespectful of the Court. And during the

weekend and I did work through weekends as a judicial law clerk,

it's a pretty work intensive job and I would keep answering the

phones on the weekends. And during the weekends people intended

to, there were a lot of drunk calls. It became almost a joke.

People would call intoxicated and I know this is hard to put on

the record but the tone of the voice was really disrespectful,

it was kind of like uh-uh, loophole Louie, uh-uh, and kind of

hang up. Just kind of a joking disdainful disgust and absolute

disrespect for the Court.

And so a lot of it was almost like prank calls but

there's this underlying tone of disrespect and disgust and

loophole Louie, just not treating him like a Supreme Court

Justice should be treated and not treating our court as -- with

the respect that a court should be treated. So I was personally

horrified that I couldn't say anything in response because you

have to have a very, very strict line between a campaign office

and the Court. And I could say nothing to defend him. All I

was allowed to say was thank you for calling and hang up. So it

was extremely disruptive and extremely distressing and I was

horrified at the just consistent lack of respect and disgust and

disdain that I heard in people's voices when they would make

those phone calls.

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Q. Ms. Marcus, let me ask you about, did you witness a

advertisement put out officially by the judge now Justice

Gableman campaign?

A. Yeah, and that's when the tone in the people's voices got

even more frightening to me. The ads --

Q. Let me talk about the advertisement first. What was in the

advertisement?

A. It was -- I mean I call it because back in what, 15 years

ago there was this Willie Horton ads -- I call this one the

Willie Horton ad because it reminds me, that was an ad that

played in a campaign I think in North Carolina like 15 years ago

that was pretty racial in tone in implication.

MR. LENNINGTON: Objection. Foundation.

THE COURT: Sustained.

THE WITNESS: This ad -- do I go ahead?

BY MR. FALLS:

Q. If you could describe what was said in the Justice Gableman

ad.

A. Do I describe it visually as well on are just what was said?

MR. LENNINGTON: Oh, foundation. I don't know

anything about the date of this ad or when it was shown or what

exactly she's talking about, what ad. There's many ads showing

in a political season. I object to the foundation of this. I'm

unclear as to what's being asked and answered here.

THE COURT: Counsel, can you do a little more

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foundation?

BY MR. FALLS:

Q. Ms. Marcus.

A. Yes.

Q. Advertisements were shown prior to the April 1st, 2008

election, correct?

A. Yes.

Q. One of those advertisements was put out by Justice Gableman

himself.

A. Yes. I did see an ad that was put out by Justice Gableman

himself. I could tell because it said paid for by Gableman. It

was very clear to me that this was an ad that he himself

released as opposed to a third-party issued campaign ad.

Q. You personally viewed the ad.

A. Correct.

Q. You recall the contents of the ad.

A. Correct.

MR. FALLS: Your Honor, I think she has foundation to

discuss what she saw.

THE COURT: Okay. Do you want to ask her the

question?

BY MR. FALLS:

Q. So, did this advertisement show a picture of Justice Butler

and if so how?

A. Yes, but it didn't just show a picture of Justice Butler --

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MR. LENNINGTON: Objection. Nonresponsive. Move to

strike the answer as nonresponsive.

THE COURT: I think -- that's overruled. I think it

was responsive. Go ahead. Next question.

BY MR. FALLS:

Q. All right. Could you just describe how the picture of

Mr. Butler was shown on the advertisement.

A. Yes. The ad looked like this. From my perception. The ad

was focused on a certain criminal, a rapist, somebody who raped

a child, who was African-American. And the ad was, to me,

extremely deceptive because it implied that Justice Butler had

set free this Lee Rubin Mitchell, this rapist of small children,

of a small child when, in fact, he had not. But visually I mean

whether or not the ad was honest is one issue that's been

fleshed out in a different context, but visually the ad to me

was very, very disturbing because it had a picture of the

rapist, Lee Rubin Mitchell who is African-American, side-by-side

with a picture of Justice Butler, who is also African American.

Both are wearing glasses. The position of their heads is kind

of similar and then the edges of the picture started to blur

together.

Q. Ms. Marcus.

A. Yeah.

Q. Would it help you if we showed you a video that we believe

is the advertisement you're describing?

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A. Sure.

MR. LENNINGTON: Objection to foundation for the

video. Authentication of the video. The video is hearsay. And

the relevance of the video.

MR. FALLS: Your Honor, Ms. Marcus said she saw a

video, we'd like to play it so she can authenticate it. I

assure you I'm not offering the video for the truth of the

statements in the video.

THE COURT: Yeah, the objection is overruled. As to

relevance, I think you addressed the two issues other than

relevance as to relevance that'll be determined. I'll allow you

to show the video and so go ahead.

MR. FALLS: Sir, will you play it, please.

(Multimedia file played.)

BY MR. FALLS:

Q. Ms. Marcus, is this the video -- does this appear to be the

video that you testified about?

A. Yes.

Q. Does this appear to be an accurate copy of the video?

A. Yes.

MR. FALLS: I move for admission of the video. It's

Plaintiff's Exhibit 587.

MR. LENNINGTON: We object with the same objections.

THE COURT: Okay. I'll allow it.

BY MR. FALLS:

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Q. So can you please tell the Court about the types of calls

that you received after this advertisement.

A. Yeah. We still got a lot of calls interrupting our work.

The tone of people's voices I think kind of hardened after that.

I heard a lot more anger, I heard -- I felt like I was seeing

the worst of humanity. I was really taken aback because people

weren't laughing anymore when they called. I mean people were

really hostile and one woman said, you know, she said I didn't

know we had a black Supreme Court Justice, that's disgusting, I

never would have voted for him. And another woman called and

with very much the same tone of voice of disgust as that other

woman she said that Justice Butler's daughter needs to be raped

so he knows what it feels like. And there were a number of

other calls where people had the same type of absolute -- I'm

sorry but it felt like hate from the other end of the phone.

They felt like hate calls, they felt like -- it was beyond

disrespect. It was -- this pure kind of state of rage that this

ad drove them into and made them pick up the phone and hearing

that on the other end of the phone I thought I had escaped from

that kind of, to me what felt like racism when I left Memphis,

Tennessee where I grew up. I was really shocked to hear that in

their voices living in Wisconsin, but to me it felt very much

like racism, it felt like hate, and it very much felt like it

was a direct response to the most racist ad I had ever seen on

TV.

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MR. LENNINGTON: Objection. Foundation.

THE COURT: I believe she's already testified.

Overruled.

BY MR. FALLS:

Q. Ms. Marcus, were there other advertisements or calls -- were

there other calls that the Court received that you perceived as

politically motivated during your time as a law clerk?

A. Yes.

Q. Did you consider those calls to be racist?

A. No. Should I give an example?

Q. Please give an example of one of those calls.

A. There was a kind of entirely separate category of calls we

got, were almost comic relief to all of this because they were

calls that we got and I believe -- I believe that they came as a

result of some kind of postcard campaign but people appeared to

be reading from the same literature over and over again and they

would call and they would say I am calling to tell you that

marriage is between one man and one woman and Justice Butler

should vote for traditional marriage and they would hang up.

And we got exactly the same call over and over and over again

from a lot of people. Those didn't bother me. And I've got a

gay rights kind of background, I'm in a lesbian relationship,

you know, those -- if those calls had been made with a different

tone I would have found them more upsetting. I wasn't upset at

all by those calls because those calls are simply people

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engaging in what they thought was citizen participation even

though they were a little misled about the role of the court.

But there wasn't that same kind of vengeance and anger and hate

and what felt to me like prejudice on the other end of those

calls. I wasn't bothered by them. They were amusing. They

were distracting. You know, they did interrupt the business of

the Court. But they weren't so emotionally loaded as the ones

that came as a result of these more ugly ads that were put out.

Q. How did the calls during the judicial election affect you

personally?

A. I was really upset. I was really upset. I cried. I was

not the only one who cried. There were people crying in the

halls on the Supreme Court that you would not expect to see

tears in their eyes. And it was very -- it was a very emotional

time. It was very difficult to stay focused on the work of the

Court when we were constantly getting bombarded with these hate

calls. And the only thing I could hold onto was the thought

that on April 1st this is going to be over and Justice Butler is

going to retain his seat. I didn't think that the ads would do

the damage they did. So after that I went into even a bigger

tailspin emotionally. I lost my faith, I hate to say it but I

lost my faith in the people of Wisconsin. It was not hard for

me to leave the state after that and go back to Ohio and prior

to that I had been thinking about staying in Wisconsin. I was

really horrified by what I experienced.

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MR. FALLS: Thank you.

CROSS-EXAMINATION

BY MR. LENNINGTON:

Q. Ms. Marcus, you viewed these ads as racist, correct?

A. Yes.

Q. You viewed them as intentionally racist, correct?

A. Especially the Gableman ad, yes.

Q. What's the name of the person who produced this ad?

A. The Gableman ad?

Q. Yes.

A. Michael Gableman. His name is on it.

Q. So your testimony is Michael Gableman is a racist.

A. Sure.

Q. Are the people who work for Michael Gableman racist also?

A. I don't believe I have direct knowledge of that.

Q. But you know that Justice Gableman is a racist, that's your

testimony here today.

A. I believe that anybody who put out that ad attacking my

boss, a good judge, in a way that looks visually like a racist

attack ad must be a racist. I think that's a logical conclusion

and that's my conclusion personally.

Q. It's your understanding if Justice Gableman won the election

over your boss that you would lose your job; is that correct?

A. Not necessarily. Justice Butler and I had talked about my

staying on a second year. It wasn't guaranteed. But that was

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one of the results, is that I found myself needing to look for

another job, yes.

Q. Just to be clear, the result of Justice Butler losing was

that you lost your job, correct?

A. No, I don't think I would phrase it that way because I

didn't have a job offer in hand at that point. We had danced

around it but I had not been made a job offer for a second term

yet.

Q. Was it your understanding that you were going to be able to

work for Justice Gableman?

A. I would have no desire to work for Justice Gableman.

Q. You had testified the calls to your office were

disrespectful; is that correct?

A. Correct.

Q. Are you aware of the type of calls that Justice Gableman has

received since the election?

A. No, I am not.

Q. Are you aware of any of the types of calls that the Governor

Walker has received --

MR. FALLS: Objection. Foundation.

MR. LENNINGTON: My question is are you aware.

THE COURT: Overruled.

BY MR. LENNINGTON:

Q. Are you aware of the types of calls that Justice Gableman

has received since the election?

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A. No.

Q. Are you aware of any of the types of calls that Governor

Walker has, received a defendant in this case, has received

since 2011?

A. No.

MR. LENNINGTON: That's all I have, Your Honor.

THE COURT: Okay. Thank you. I believe you're

excused.

(Witness excused at 10:32 a.m.)

MR. STEINER: We call as our next witness, the

plaintiffs call as their next witness Professor Matt Barreto.

MATTHEW BARRETO, PLAINTIFF WITNESS, DULY SWORN

THE COURT: Okay. Have a seat. State your name for

the record. Spell your name and you gotta talk real close to

that microphone so that everybody can hear you.

THE WITNESS: My name is Matthew Barreto.

B-A-R-R-E-T-O.

DIRECT EXAMINATION

BY MR. STEINER:

Q. Good morning, Professor Baretto. You've given your name for

the record, could you state where you're currently employed?

A. Certainly. I am an associate professor of political science

at the University of Washington. I'm also the director of the

Washington Institute For the Study of Ethnicity and Race.

Q. How long have you been a professor at the University of

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Washington?

A. For approximately eight years. I was first appointed there

in 2005.

Q. And what was your title when you first joined the University

of Washington?

A. I was appointed as an assistant professor in 2005. Since

then I've been promoted to an associate professor with tenure.

Q. And what's the difference between an assistant professor and

an associate professor?

A. Well, the main difference is that you have what is called

tenure in university circles, which means that you've been

reviewed and deemed to be a tenurable faculty who then cannot be

removed without serious allegations or hearings. So -- job

security.

Q. Are there any areas in particular that you focus on in your

teaching and research at the University of Washington?

A. Yes. Generally my research focuses on American politics,

public opinion and political behavior. Within there, my

research focuses on the differences in issues related to race

and ethnicity and whether racial and ethnic minorities are

participating or hold attitudes similar or different than white

Americans.

Q. What are some of the courses that you've recently taught at

the University of Washington?

A. Well, I teach a variety of courses on these topics that I

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just mentioned, American politics. I also teach some

specialized courses on racial and ethnic politics, Latino

politics, as well as teaching course at the law school about the

Voting Rights Act, and I also teach introduction in advanced

statistical analysis to Ph.D. students.

Q. What types of statistics and research methods do you teach

to Ph.D. students?

A. The two courses that I have taught in our Ph.D. sequence had

are introduction to regression and advanced regression analysis.

Q. I'd like to talk a little bit about your education prior to

joining the University of Washington. Could you describe

briefly your educational background?

A. Sure. I graduated from high school in Topeka, Kansas, and

then I went to college in New Mexico, graduated from Eastern New

Mexico university with a bachelor's degree in political science.

Q. When was that?

A. In 1998.

Q. And what did you do after you got your undergraduate degree?

A. Then I went to the University of California at Irvine and

pursued a Ph.D. and I received a master's degree and a Ph.D. in

political science.

Q. And when did you receive your Ph.D.?

A. My Ph.D. was awarded in 2005.

Q. Was there a particular area of focus for your Ph.D.?

A. Yeah. My three fields at Irvine were in American politics,

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race ethnicity, and statistical methods. And my dissertation

focused on the political behavior and patterns of participation

of Hispanic Americans.

Q. Who was your dissertation advisor at UC Irvine?

A. My dissertation advisor was Professor Bernard Grofman,

G-R-O-F-M-A-N.

Q. And who is Professor Grofman?

A. Professor Grofman is one of the leading experts in voting

rights research as well as expert reports. In working with him

I learned a great deal about voting rights research and had the

opportunity to publish an article about voting rights

methodology with Professor Grofman.

Q. Did your thesis under Professor Grofman's supervision win

any awards or distinctions?

A. Yes. I won two dissertation fellowship awards, one with the

University of California, president's dissertation award. The

second was the Ford Foundation minority scholars fellowship

award.

Q. And after receiving your Ph.D. is that when you went to the

University of Washington or was there something in-between?

A. Yes, that's correct. I received my Ph.D. in the summer of

2005, and then I started my appointment at the University of

Washington in the fall of 2005.

Q. And I think you've already described some of the areas of

your research focus currently. What research methods and

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techniques do you use in conducting your academic research?

A. I use a variety of research methodologies depending on the

question that's presented to me. The primary tool that I use is

survey research though. Many of my publications and research

revolve around implementing and analyzing survey data with

regression analysis.

Q. And is survey research and regression analysis a common

technique to use in the social sciences?

A. Yes. Absolutely. Survey research is probably one of the

hallmarks in the study of American politics. It's used widely

by other social scientists and presented at conferences but it's

also used widely by other leading organizations to collect and

analyze real data.

Q. And have you published any academic articles using your

survey research?

A. Yes. Absolutely.

Q. And approximately how many academic articles or articles in

academic journals have you published since you were a graduate

student?

A. I think that I have 29 academic peer-reviewed journal

articles and 12 academic book chapters.

Q. And you describe peer review journal articles, could you

explain what a peer review journal article is?

A. Yes. So we write the -- conduct the research, write the

analysis, and then submit the article for review to one of

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various academic journals. The journal editor then takes the

article, removes the author name and sends it out blindly for

peer review to other political scientists or social scientists.

They then review it and decide whether it's worthy of

publication.

Q. And have any of those peer-reviewed articles that you've

published focused on voter ID laws?

A. Yes, I believe one of my articles is specifically about

voter identification.

Q. And what article is that?

A. I believe that's an article published in a journal called

PS, Political Science in Politics, and I believe the title is

the Disproportionate Impact of Voter ID Laws.

Q. And what state did that relate to?

A. That was looking primarily at research in the State of

Indiana where I conducted a large study of acts of possession of

accepted photo ID and I believe in that article we also

reference some findings in Washington, California and New Mexico

as well.

Q. And can you briefly describe some of your findings in that

peer-reviewed article about Indiana?

A. Certainly. We conducted a large survey of eligible voters

in the State of Indiana to determine whether or not there was

racial disparities in possession of accepted photo

identification for the purposes of voting. We found that there

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was a very large statistically significant gap between whites

and African-Americans in the State of Indiana and that that was

statistically significant not only for eligible voters but for

registered voters and for people who had previously voted.

Q. And, by the way, have you yourself served as an editor or

peer reviewer on a peer-reviewed journal?

A. Yes. I have been invited to review articles for many of the

same journals that I have submitted articles to, and I'm also

currently serving as the associate editor of the American

Journal of political science.

Q. And what is American Journal of political science?

A. The American Journal of political science is considered as

the second leading journal in our field. It has a very high

rating in terms of the impact of the articles and there I advise

the editor, the main editor on all articles related to race and

ethnicity politics.

Q. You said that's considered the second leading journal, is

there a journal that's widely considered to be the leading

journal in the social sciences?

A. Yes. In our field the American Political Science Review is

the journal that is the official journal of the American

Political Science Association, and it has the highest impact

ranking, it also has the lowest acceptance rate of articles.

Q. And have you had articles published in that journal?

A. I have. I've published two articles in the American

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Political Science Review.

Q. Apart from your teaching, research and your writing in these

fields, have you used your experience in these fields as a

consultant or an expert?

A. Yes, I have.

Q. On what types of matters? Aside from this matter, what

other types of matters?

A. Certainly. In 2011 I was hired as the independent expert

for the State of California. I advised the State of California

during their redistricting process for the state's first ever

independent citizen's redistricting commission. I advised them

on all redistricting matters as well as participated in lawsuits

when they were defendants. I have also worked on behalf of the

State of Washington and the State of New Mexico in other

matters, as well as then other redistricting lawsuits in Texas,

Florida and other places. And I have also previously served as

an expert in a voter ID trial.

Q. And where was that?

A. That was in Pennsylvania.

MR. STEINER: I would tender Professor Baretto as an

expert on the issues of topics of voting behavior, survey

methods and statistical analysis.

THE COURT: You can certainly continue to question

him.

MR. KAWSKI: No objection, Your Honor.

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THE COURT: Okay.

BY MR. STEINER:

Q. Now, Professor Baretto, I'd like to focus a little bit on

your work in this case. Did there come a time where you were

retained as an expert or consultant in connection with the

Wisconsin voter ID law?

A. Yes.

Q. When was that?

A. I believe that was in the fall of 2011. I don't remember

the exact date.

Q. What were you retained to do?

A. I was asked to consider whether or not there would be

evidence of any racial disparities in possession of photo voter

identification, photo ID in Milwaukee County, Wisconsin.

Q. How did you go about analyzing whether there would be any

racial disparities in possession among voters in Milwaukee

County?

A. Well, I conducted -- designed and conducted a public opinion

survey of eligible voters in Milwaukee County to assess whether

or not people possessed certain types of identification that I

would then be able to analyze and determine if there was a

racial disparity.

Q. And following that did you prepare a report describing your

methodologies and summarizing your findings and conclusions?

A. Yes, I did.

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Q. I'd like to hand you what's been marked in this case as

Frank Plaintiffs' Exhibit 600.

A. Thank you.

Q. Professor Baretto, what is Exhibit 600?

A. This appears to be a copy of the report that I submitted in

this matter.

Q. And who wrote this report?

A. I was the principal investor of this report. I was joined

as a coinvestigator by Professor Gabriel Sanchez of the

University New Mexico.

Q. And who is Professor Sanchez?

A. Professor Sanchez is an associate professor with tenure at

the University of Mexico. He is someone what I have

collaborated on research on voter identification laws for a

number of years and as such I asked him to join me in helping

design the survey.

Q. And did you sign or electronically affix your name to the

report on or about April 23rd or 24th of 2012?

A. Yes, I did.

Q. Is the report an accurate description of the work that you

performed in your conclusions?

A. Yes.

Q. And we'll get to them but there's a series of tables in

Appendix A to the report which start I believe on page 34. Do

those tables reflect the results of the statistical analysis or

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the survey results and then the statistical analysis that you

performed?

A. Yes, they do.

Q. Were those tables prepared at the time or shortly after the

time that you completed your analysis?

A. Yes.

Q. And were those -- were the numbers contained in those tables

accurate at the time that you prepared them and recorded them in

this document?

A. Yes, they were.

MR. STEINER: I would offer Exhibit 600 into evidence.

MR. KAWSKI: No objection, Your Honor.

THE COURT: Okay, so ordered.

BY MR. STEINER:

Q. Now, Professor Baretto, I'd like to have you explain to the

Court some of your methodology and findings in greater detail.

Let's start with the survey. Why did you use the survey to test

the rates of possession of photo ID among eligible voters in

Milwaukee County?

A. Well, there's two primary reasons that the survey was the

most appropriate methodology here. The first was that there is

no single database that maintains records of every single piece

of accepted photo identification under Act 23, and so as a

result we needed to find another mechanism to find out what

people actually had.

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The second is that there is no database that exists

that contains the accurate race and ethnicity of all eligible

voters in Milwaukee County, and so for those two reasons we

decided that a survey would be the most appropriate way to

ascertain this information.

Q. And would surveys also capture other things like people who

have an ID in a database but it's been lost or damaged,

destroyed?

A. Yes. There's a variety of ways that we can ask additional

questions through a survey that just don't exist, one of being

that many people from time to time might lose, misplace or have

their ID destroyed and the only way we would know that is by

asking them.

Q. Who designed the survey?

A. I designed the survey in collaboration with Professor

Sanchez.

Q. Who conducted the survey?

A. The survey was implemented by a market research firm called

Pacific Market Research.

Q. And what is Pacific Market Research?

A. They are a data collection and market research vendor that's

based in Renton, Washington, and they have expertise in

implementing these types of surveys.

Q. Is that a firm that you've used as a social scientist

outside of the context of this case?

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A. Yes. I have relied on them as have other social scientists

that I know of in collecting data and preparing that data for

academic analysis.

Q. Who else uses, to your knowledge, who else uses Pacific

Market Research?

A. Well, Pacific Market Research is widely known in the social

sciences and political science in particular used by many other

scholars, but they also collect data for large companies, for

the federal government, and sometimes in legal proceedings.

Q. And in your experience as a social scientist is using an

outside service such as Pacific Market Research to conduct -- to

carry out the survey or to implement the survey, is that

accepted in the social science community?

A. Yes. That's a very standard practice because of the amount

of infrastructure needed to implement a large scale project

those are things that are just not possible on every university.

And so almost always researchers will contract out to a

reputable market research firm to collect the data for their

research projects.

Q. Now, you testified earlier that the survey focused on

Milwaukee County, why did the survey only include people in

Milwaukee County?

A. We thought this would be a very appropriate county to study

the question of whether or not racial disparities exist with

respect to possession of photo identification. The reason being

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that Milwaukee is a very large county, largest county in the

state, and also a very diverse county. Has very large

populations of African Americans and Latinos as well.

Q. How many people did you survey?

A. In total there was I believe 1,973 respondents. And that

was broken up into a baseline sample as well as two oversamples.

Q. And if you need to on any of this you can look at your

report. I think Table A on page 12 which is probably 14 on the

computer. How did you go about deciding which people to survey

or which people to contact?

A. Sure. So because Wisconsin has same day registration we

wanted to focus on all eligible voters because all eligible

voters are able to become registered voters and voters on

election day. And so we decided to start with what is known as

a random digit dial or RDD sample as our baseline sample. That

would allow us to include every possible phone number or

household in Milwaukee County as a starting point.

Q. Okay. Did you use other types of samples as well?

A. Yes. Beyond the RDD sample we also were certain to include

a listed sample of cell phone-only households, and then we also

included household listed samples for our African-American

oversample and our Latino oversample.

Q. Can you explain the difference between an RDD survey and a

listed sample survey?

A. Sure. The RDD survey is where the computer takes the known

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area codes and the known prefixes in a geographic area and then

randomly dials the last four numbers. And this is a preferred

method for getting a generalizable sample because it allows

every possible household within the jurisdiction to be called

and to be included in the sample. It also results in many wrong

numbers or dead numbers and so it is not extremely efficient,

although it is quite reliable.

The household listed samples start with a list of all

household numbers. So you still have a list of all actual

household numbers, but they are focused in on African-American

or Hispanic householders.

Q. What other types of surveys use RDD samples?

A. RDD sampling is a very accepted and mainstream form of

surveying. It is widely used by the centers for disease

control, the National Institutes of Health, as well as the

Department of Commerce when estimating things like the

unemployment rate. These are all based on large RDD sampled

surveys.

Q. If that's such a common method why also include the listed

sample?

A. The one drawback of RDD samples is that they're not entirely

efficient because you get a lot of businesses, fax machines,

nonworking numbers. When you're particularly interested in

drilling down into a minority population that may not be

frequently occurring. An RDD survey would be extremely

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inefficient. We would not have been able to complete it within

the timeframe and there would have been too many nonminorities

there. And so any time you're interested in a minority

oversample in this particular instance, the conventional

practice is to go with the household listed sample.

Q. And why include the wireless sample?

A. The wireless sample is also included because an increasing

number of households across America are turning to cell

phone-only coverage. And so this is the accepted practice now

is to do a blend of RDD for your landline and then a random

dialing to a list of wireless numbers.

Q. Now, once these various numbers were selected to call how is

the survey conducted?

A. As I mentioned the survey was implemented by Pacific Market

Research. What they do is take all of the sample, these phone

numbers that are to be dialed and then they randomly dial them

throughout a very long and open calling period. In this case

during Monday through Friday the calls were made from 4:00 p.m.

to 9 p.m. and then calls were also made on Saturday then a

Sunday from 12 p.m. to 8 p.m. And so what that does is it keeps

the survey available for a variety of days so people have

different sort of work schedules, so it gives them an equal

opportunity to be included in the survey.

Q. And are there other guidelines that Pacific Market Research

then follows in terms of making the survey the most reliable

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possible in how to ask questions?

A. Absolutely. Pacific Market Research as well as any social

scientist involved in public opinion research, so for both the

data collection agencies and also for us as scholars, we're

guided by a set of principles outlined by the American

Association of Public Opinion Researchers, it's called APOR for

short. And APOR has a set of guidelines and practices that

market research data collection agencies as well as scholars are

expected to follow. And in this case and in the case of all the

research that I conduct, we strictly adhere to those APOR

guidelines. That includes things like making sure that the

survey is available seven days a week at different times, doing

as many as five call backs to each number to make sure that

those numbers are properly attempted, to rotate answer choices

so as to not always lead with one answer or another, and just to

ensure that randomization and generalize ability is maintained

and in this instance those APOR guidelines were followed very

closely.

Q. You've mentioned that the survey was available essentially

to all eligible voters or all residents of Milwaukee County.

Why did the survey focus on eligible voters?

A. Well, we focused on eligible voters because Wisconsin has

same day voter registration. Our understanding of the impact of

the potential impact of the photo identification law was that

anyone who was an eligible voter could choose to become a

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registered voter and a voter on election day. And so the pool

of potentially affected persons is larger than just those who

are currently registered, but indeed anyone who is eligible to

vote. And so that is the reason why we focused on all eligible

voters.

Q. If that's the case why did you also include findings in your

report about registered voters as well?

A. We knew it would be of interest that registered voters may

be affected at similar or different rates as the entire eligible

population. And so we provided additional cross tabulations on

the effects of how registered voters were also affected by photo

identification.

Q. Now, defendants have suggested in this case that people who

aren't registered to vote or don't have a long history of voting

may do that for the reason that they're just not interested and

may never want to vote or might not be affect by a voter ID law.

In your experience is it the case that -- are you aware of

instances where that turns out not to be the case?

A. Yeah, that's -- that's absolutely not the case. One of the

great things about our democracy is that different people get

interested in elections at different times and for different

reasons. And we've had really three consecutive elections in a

row where there have been new voters coming into an election at

higher rates than anyone would have anticipated. This includes

most famously the 2008 presidential election in which a record

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number of young people and a record number of racial and ethnic

minorities voted in that election, in the presidential election

of Obama vs. McCain. We saw the same things happen 2 years

later in 2010, typically in mid term elections we anticipate

lower rates of voting as compared to presidential elections, yet

we saw a very, very strong registration and turn out push by

groups associated with the tea party which had very, very

enthusiastic supporters and voted at record high rates. And

then again we saw once again in 2012 there was a big question

mark, would people come out and vote, were people enthusiastic

about president Obama anymore or would they vote at Lowe rates.

And 2012 once again proved that there was record numbers of

first time voters of new voters turning out and voting in that

election. And so most recently we've had more elections where

the electorate has surprised us and new voters have turned out

to vote.

Q. Now, aside from asking about possession of ID and whether

someone was or wasn't registered, your survey also included

information about whether Milwaukee County residents had the

underlying documents that they would need to get an

identification. Do you remember that?

A. Yes, that's correct.

Q. Why did you include that information in the survey and then

in your results?

A. Yes. Well, in addition to determining what percentages of

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the eligible voting population currently did not possess an

accepted photo identification, we were also interested in

determining whether or not there would be any additional

barriers to folks in trying to obtain a valid photo

identification. And so we asked an additional series of

questions to look at those what we call underlying documents

that are needed to obtain.

Q. Professor Baretto, are you aware that the state has retained

another professor, M.V. Hood, as an expert witness on behalf of

the defendants in this case?

A. Yes.

Q. Have you had a chance to review Professor Hood's two reports

in the Frank case?

A. Yes, I have.

Q. I take it then that you're aware that Professor Hood

generally agreed that your survey was well designed?

A. Yes, I agreed with him on that point.

Q. Now, one of the few issues that Professor Hood has raised

with respect to your report was that you do not validate your

survey responses. Are you familiar with that suggestion of

Professor Hood's?

A. Yes, I recall reading that.

Q. First can you explain what the term validation means in

connection with the survey?

A. Yes. In this specific instance validation has a unique

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meaning or understanding. And that is that you're taking the

records from a public opinion survey and attempting to match

them or validate them against public databases and public

records. And so in his report I believe he questioned whether

or not a validation was conducted there, matching those records

together.

Q. Can you explain for the Court why you did not conduct that

type of matching or validation?

A. Yes, certainly. There's two principal reasons I think that

it was not appropriate in this instance. The first is that our

survey started with a random digit dial sample. And a random

digit dial sample we do not have the names, addresses, specific

dates of birth of any of our respondents. What we have is just

a list of phone numbers that are dialed and then we are

connected with eligible voters. And so it would not have been

possible at all to validate those portions of the survey.

The second reason was the expectation of privacy on

the part of the respondent. Again, according to the APOR

guidelines, respondents in a public opinion survey have an

expectation of privacy an anonymity unless they are informed at

the outset that we would be reviewing their records. And I was

opposed to that idea because there's a healthy literature that

suggests if we inform the respondents up front that we will be

reporting their personal information and looking at it their

participation rate drops. People do not want to participate in

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that study. And so that would lead to the exclusion of

respondents.

Q. Are you aware of any academic literature on whether survey

validation improves the survey accuracy?

A. Yes there's actually been growing research on this topic of

validation as government records have become more digitized,

more scholars are now looking into this and considering

validation efforts. And despite the assumption that this growth

in digitation of government records might help us validate, the

general conclusions appear to be that validation is not

efficient or possible and, in fact, could create problems.

Q. And who are the authors of some of the recent academic

literature?

A. Well, most recently there has been a study published in 2011

by Jon Krosnick and Arthur Lupia in which they conduct an

exhaustive review of public opinion surveys in attempting to

match those or validate those against government records. And

Professor Krosnick and Professor Lupia conclude in their study

that the validation process actually introduces more error and

is fraught with problems and, in fact, they say that the self

reported data of the respondents is preferable.

Q. And are Professors Krosnick and Lupia respected in the

social science community?

A. Yes, certainly. Jon Krosnick is a professor of

communications in political science at Stanford. Professor

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Lupia is a professor of political science at the University of

Michigan. Both are full professors. They were most recently

appointed as the coprincipal investigators of the American

national election study from 2005 to 2009 which is a National

Science Foundation funded study, probably the largest and most

prestigious study in American politics which is run at Stanford

and Michigan.

Q. And I apologize for not asking this earlier. You mentioned

oversampling a few times and I think I've sometimes heard it

referred to as separate sampling. Can you just explain what

that is and why it's done?

A. Certainly. In this case what we did was we conducted what

is referred to in the literature as oversamples of African

Americans and Hispanics, and it is -- really should be thought

of as separate samples. We first completed a baseline sample of

all eligible voters of a thousand in Milwaukee County and then

in order to have reliability, statistical reliability in our

estimates of African-Americans and Latinos we conducted separate

oversamples of each of those groups to bring their numbers up to

the 5 or 600 range.

Q. And why do you need 5 or 600 or I think you mentioned a

thousand in the general sample, why are those numbers important?

A. Well, those are numbers that we usually try to aim for in

completing public opinion surveys because they give us a lot

more statistical reliability in our estimates. So when we

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interview a thousand people we have a margin of error of about

3 percent. When we interview 500 people we have a margin of

error of about 4 percent or so. 600, might go down to about 3.8

or something like that. And so these are areas in which when we

observe difference we prefer to see the margin of error

somewhere in that 3 to 5 percent range, certainly no bigger than

5 percent.

Q. Is there an accepted range in the social sciences as to a

margin of error?

A. Yeah. Usually you'll never see a sample size in academic

research fall below the 400 mark. That's really our minimum

threshold for wanting to have enough confidence in the sample

and statistical reliability that we can analyze it and that

would carry a marginal error of about 5 percent or so.

Q. And why, on the higher end, is 3 percent an acceptable range

as opposed to doing many more than a thousand or 1500 samples?

A. Sure. That's a good question. You have a diminishing

margin of returns at some point. It is not a linear reduction

in the margin of error. And so if you go from a thousand to

2,000, you've doubled the scope of your project, you've doubled

the budget, you've doubled everything. But the margin of error

doesn't fall in half. It might go from 3.1 to 2.4. And then if

you added another 2,000 and you got up to 4,000, you still might

have a margin of error of around 1.8 percent or something. And

so typically 1,000, 500 to 1,000 is a range in which we have

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enough confidence -- statistical confidence in the data but it's

also an efficient project to produce.

Q. Would you as a social scientist ever use a sample that you

can think of a situation where you would ever use a sample as

small as say 20 or 30 people?

A. No, absolutely not. As I said, 400 is really a threshold we

should be shooting for. A sample of 20 might produce a plus or

minus margin of error of over 20 points, probably over 22

points. That would give us almost no confidence in those

results and we would want something much, much smaller for the

margin of error.

Q. Now, once you collected all the survey results what did you

do to make sure your surveys and the participants in your survey

were an accurate reflection of the population of Milwaukee

County?

A. Well, certainly. The first thing that happens is that the

vendor, Pacific Market Research, sends us a data file containing

all of the answers to the questions on the survey. And the

first thing I do is to check the demographic profile of the

sample to ensure that the demographics in terms of issues such

as gender, age, education level, race and ethnicity match

closely to the demographics of Milwaukee County as reported by

the U.S. census. And that's exactly what I did in this case.

Q. And why do you do that?

A. What we want to be able to generalize from the sample that

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT … · 2013. 12. 31. · Karyn L Rotker...

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Transcript of UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT … · 2013. 12. 31. · Karyn L Rotker...