Defendant-Intervenors. TEXAS LEGISLATIVE BLACK …moritzlaw.osu.edu/electionlaw/litigation/documents/Holders... · testified about voting issues and about whether government actions

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendant. ERIC KENNIE, et al., Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors. TEXAS LEGISLATIVE BLACK CAUCUS, et al., Defendant-Intervenors, VICTORIA RODRIGUEZ, et al., Defendant-Intervenors.

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CASE NO. 1:12-CV-00128 (RMC-DST-RLW) Three-Judge Court

MEMORANDUM IN OPPOSITION TO STATE OF TEXAS’S MOTION

TO EXCLUDE TESTIMONY OF J. MORGAN KOUSSER

Defendant Eric H. Holder, Jr. (“the Attorney General”) respectfully opposes Plaintiff

State of Texas’s motion to exclude the expert testimony of Dr. J. Morgan Kousser (ECF #201-1).

Case 1:12-cv-00128-RMC-DST-RLW Document 236 Filed 06/25/12 Page 1 of 18

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Texas’s motion should be denied because Dr. Kousser’s testimony easily satisfies the standard

for expert testimony admissibility established in Federal Rule of Evidence 702. As discussed

below, Dr. Kousser has been qualified as an expert witness in numerous voting-related cases,

including those addressing the highly-complex question of legislative purpose, his testimony has

been credited by federal courts, and his testimony in this case was prepared consistent with the

methods that have been credited by these courts in the past. The Plaintiff’s motion should be

denied.

I. LEGAL STANDARD

Rule 702 governs the admissibility of expert testimony. Under the Rule, a witness may

provide expert opinion testimony if he is “qualified as an expert by knowledge, skill, experience,

training, or education,” Fed. R. Evid. 702, and if his testimony is “relevant and reliable.” Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).

As this Court has explained, “[t]he presumption under the Federal Rules is that expert

testimony is admissible.” Evans v. Washington Metro. Area Transit Auth., 674 F. Supp. 2d 175,

178 (D.D.C. 2009) (citing Fed. R. Evid. Advisory Committee Note (2000) (“A review of the

caselaw after Daubert shows that the rejection of expert testimony is the exception rather than

the rule.”)). To assess admissibility, district courts “assume[] only a ‘limited gatekeep[ing] role’

directed at excluding expert testimony that is based upon ‘subjective belief’ or ‘unsupported

speculation.’” Harris v. Koenig, 815 F. Supp. 2d 6, 8 (D.D.C. 2011) (quoting Ambrosini v.

Labarraque, 101 F.3d 129, 135-36 (D.C. Cir. 1996)).

Expert testimony is relevant if it will “assist the trier of fact to understand the evidence or

to determine a fact in issue.” Daubert v. Merrell Dow Pharm., 509 U.S. 579, 591 (1993).

Moreover, an expert may testify to any relevant fact, including facts that “embrace[] an ultimate


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issue” in a case. Fed. R. Evid. 704 (“An opinion is not objectionable just because it embraces an

ultimate issue.”). Expert testimony is reliable if it employs scientifically valid reasoning or

methodology that is properly applied to the facts of the case. Daubert, 509 U.S. at 592-93. The

Court’s reliability inquiry should be “flexible” and must focus “solely on principles and

methodology, not on the conclusions that they generate.” Id. at 594-95.

District courts have broad discretion to admit expert testimony, see United States ex rel.

Miller v. Bill Harbert Int’l Constr. Inc., 608 F.3d 871, 895 (D.C. Cir. 2010), especially in a

bench trial where “there is no risk of tainting the trial by exposing a jury to unreliable

evidence.’” United States v. H&R Block, Inc., 831 F. Supp. 2d. 27, 30 (D.D.C. 2011) (quoting

Whitehouse Hotel Ltd. P’ship v. Comm’r of Internal Revenue, 615 F.3d 321, 330 (5th Cir.

2010)).

II. ARGUMENT

The Attorney General offers Dr. Kousser’s expert testimony to assist the Court in

determining whether the Texas legislature had discriminatory purpose when it passed Senate Bill

14 (S.B. 14), a bill subsequently signed by Governor Rick Perry. Because this is a proper subject

for expert opinion about which Dr. Kousser is eminently qualified to opine, Texas’s motion

should be denied.

A. Texas’s motion mischaracterizes the purpose of Dr. Kousser’s testimony.

Texas seeks to preclude Dr. Kousser’s testimony on the ground that it is purportedly

improper state-of-mind testimony. This argument is flawed.

Texas’s motion misstates the purpose for which the Attorney General offers Dr. Kousser

as an expert. Dr. Kousser was not asked to opine on the “state of mind” of the Texas legislature.

Rather, Dr. Kousser was asked “to assess evidence drawn from debates, hearings, newspaper


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articles, and other sources concerning the question of whether S.B. 14, the photo identification

law passed by the Texas legislature and signed by Gov. Rick Perry in 2011, was adopted with a

racially discriminatory intent.” Decl. of J. Morgan Kousser, Ph.D., ¶ 4 [hereinafter “Kousser

Decl.”].1 Dr. Kousser was asked to conduct this assessment based on his expertise in history,

social and political science, and voting processes. The state of mind of individual legislators

making these choices is not specifically addressed by Dr. Kousser,2

B. Dr. Kousser is qualified to opine on the Texas legislature’s intent.

who focuses instead on the

actions taken by the proponents of S.B. 14 (or their failure to take action), as reflected in the

legislative record, newspaper articles, and other non-confidential sources. Ex. 1, Kousser Dep.

21:14-22:14.

Given that Dr. Kousser’s testimony addresses the evidence in the legislative record,

media, and non-confidential sources concerning S.B. 14’s purpose, Dr. Kousser’s knowledge,

skill, experience, training, and education undoubtedly meet Rule 702’s requirements. Dr.

Kousser is a professor of history and social science at the California Institute of Technology.

Kousser Decl. at ¶ 1; see Curriculum Vitae, J. Morgan Kousser, attached as Ex. A. He has

published “three books and edited another, in addition to 42 scholarly articles, 79 book reviews,

and 24 entries in reference works,” and his work “has focused on minority voting rights,

educational discrimination, race relations, the legal history of all of the foregoing subjects,

political history, and quantitative methods.” Id.

1 Dr. Kousser’s declaration, report, and CV have been submitted to the record. See Notice of Exhibit Index,

ECF No. 224.

2 One of the sections of Dr. Kousser’s Declaration “concentrates more directly on motives and arguments, rather than on events, focusing first on the evidence that was offered to support and undermine the central proposition of proponents of voter id laws – that they are aimed at actual, well documented, in-person voter fraud.” Id. at ¶ 9. The term “motives” in this context does not refer to Attorney General Greg Abbott’s state of mind, but to the purposes of pursuing a costly investigation on “epidemic” voter fraud. Id. at ¶¶ 65-70.


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In addition to serving as “executive editor of the journal Historical Methods, which

specializes in interdisciplinary and quantitative history, since 2001,” Dr. Kousser is the author of

Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction

(University of North Carolina Press, 1999) [hereinafter “Colorblind Justice”], “co-winner of the

annual Lillian Smith Award of the Southern Regional Council for the best book on the South and

co-winner of the annual Ralph J. Bunche Award of the American Political Science Association

for the best scholarly work in political science which explores the phenomenon of ethnic and

cultural pluralism. Id. at ¶¶ 1, 2. Colorblind Justice was the subject of an academic symposium

a year after its publication. Social Science History, vol. 24, No. 2 (2000).

Importantly, Dr. Kousser has previously testified or consulted in 37 federal voting rights

or redistricting cases – in addition to five state court cases. Id. at ¶ 3; see also Garza v. County

of Los Angeles, 918 F.2d 763, 767, n.19 (9th Cir. 1990) (crediting Dr. Kousser’s expert

testimony in finding discriminatory purpose). Dr. Kousser testified in two recent Texas

statewide redistricting cases tried in 2011 and 2012, Perez v. Perry, No. 5:11-cv-00490 (W.D.

Tex.) (three-judge court) and Texas v. United States, No. 1:11-cv-1303 (D.D.C.) (three-judge

court) on both the intent of the framers of Texas’s redistricting measures, and on their effects. Id.

at ¶ 3. Furthermore, Dr. Kousser’s expertise in the complex area of legislative purpose has been

recognized in approximately 15 cases, including matters before this Court.3

3 Texas did not challenge the admission of Dr. Kousser’s testimony in the Perez case. See Joint Opp’n to State of Texas’s Mot. to Exclude Test. of Experts at 14-15, Texas v. United States, No. 1:11-cv-01303 (D.D.C. Jan. 13, 2012), ECF No. 150, attached as Ex. 2. Texas did file a motion to exclude Dr. Kousser’s testimony in Texas v. United States. See State of Texas Mot. to Exclude Test. of Defs.’ Experts, Texas v. United States, No. 1:11-cv-01303 (D.D.C. Jan. 4, 2012), ECF No. 131, attached as Ex. 3. This Court in the Texas case admitted the testimony of Dr. Kousser and the other experts on the defendant’s side in that case, denying Texas’s motion in part, and limited somewhat the scope of the testimony from defendant’s experts it would consider (describing the example of Dr. Theodore Arrington), granting Texas’s motion in part. See Trial Transcript at 5-9, Texas v. United States, No. 1:11-

Ex. 1, Kousser Dep.

36:7-12.


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Based on this extensive academic experience and the number of times Dr. Kousser has

testified about voting issues and about whether government actions were taken with a racially

discriminatory purpose, Dr. Kousser undoubtedly meets Rule 702’s standard to provide expert

testimony in this case.

C. Dr. Kousser employs scientifically valid reasoning or methodology.

Texas argues that Dr. Kousser fails to identify the methodology he used, Texas Mem. at

p. 4, disregarding the specific references in his declaration and deposition testimony to Chapter 7

of Colorblind Justice, “Intent and Effect in Law and History,” and its list of ten intent factors or

rubrics with which to analyze the intent of lawmakers. Kousser Decl. at ¶ 2.4

Texas claims that Dr. Kousser’s report is “akin to a newspaper clipping service,” not a

product of specialized knowledge. Texas Mem. at p. 8. This characterization is overly simplistic

and inaccurate. Dr. Kousser’s Declaration is an inquiry into the intent with which an electoral

rule – in this instance, S.B. 14 – was adopted applying the ten factors set forth in page 347 of

Colorblind Injustice. Kousser Decl. at ¶ 2. In the course of setting forth a chronological

The State is

incorrect. Dr. Kousser’s declaration makes clear that he analyzes legislative purpose by

examining ten specific, relevant factors. Those are drawn from federal case law, including

Supreme Court cases such as Arlington Heights and Feeney, not to analyze the Supreme Court

decisions – a task that correspond to the courts – but to evaluate governmental actions within a

concrete and principled framework. Ex. 1, Kousser Dep. 41:3-16. That methodology is the same

one employed and accepted by federal courts in other cases.

cv-01303 (D.D.C. Jan. 17, 2012), attached as Ex. 4. Texas has not brought to the attention of this Court any case in which Dr. Kousser’s testimony has been ruled inadmissible or otherwise been disregarded.

4 Chapter 7 of the book, entitled ‘Intent and Effect in Law and History’ analyzes federal court opinions and historical practice to come up with a list of ten “intent factors” that provide and explicit set of rubrics with which to analyze the intent of the framers of laws, particularly election laws. I will employ that scheme (available at pp. 347-358 of the book) in this report.” Id.


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historical account of how S.B. 14 came to be enacted, Dr. Kousser’s Declaration incorporates an

analysis of the ten factors in his methodology; including, for example, a table comparing S.B. 14

with previous bills and the status quo, Kousser Decl. at ¶ 26 (factor three: text of law), and a

discussion of the two thirds rule, id. at ¶¶ 31, 42, 53 (factor nine: policies and institutional

rules).5

When Dr. Kousser discusses newspaper articles and other sources related to the March

2006 announcement by Texas Attorney General Abbott of an alleged epidemic of voter fraud,

Kousser Decl. at ¶¶ 65-70, he does so as part of an analysis of the general historical context that

surrounded this announcement, and offers his interpretation of the actions taken by the

proponents of S.B. 14 in terms of that context. Ex. 1, Kousser Dep. at 152:15-154:16; Kousser

Decl. at p. 6 fn. 4 (second factor: historical context). Dr. Kousser does not limit his analysis to

culling relevant narrative portions of the legislative record and pertinent newspaper articles and

press releases, but he includes data-intensive statistical analysis from his work in the recent

Texas v. Perez redistricting litigation. Kousser Decl. at ¶¶ 91, 92. Thus, Dr. Kousser’s

declaration and deposition testimony provide the Court with a sophisticated and broadly-derived

assessment of the contemporary historical context in which S.B. 14 was passed and signed, in

5 At his June 20, 2012, deposition, Dr. Kousser testified that he thought counsel for Texas “was going to ask

me to go through my ten factors, ... and said what sort of evidence do you have for the proposition that the – for example, changes in institutional rules that took place in Texas over this period of time are evidence of a discriminatory intent – and so systematically go through those ten factors and then come to the conclusions.” Ex. 1, Kousser Dep. 301:22-303:6. Thus, while Texas argues that Dr. Kousser’s methodology is unreliable and that his report is little more than a collection of hearsay statements, Texas Mem. at pp. 5, 7, neither Dr. Kousser’s methodology or the evidence in support of his conclusions were effectively or systematically challenged at deposition.


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addition to an analysis of the other nine factors that went into his conclusion that this government

action was taken with a racially discriminatory purpose.6

D. Dr. Kousser’s testimony on the Texas’s legislature’s intent is both highly relevant to the court’s resolution of this case and a proper subject of expert testimony.

It is well-settled that expert witnesses may provide opinion testimony about any relevant

factual issue in a case, including outcome-determinative factual disputes. Fed. R. Evid. 704(a)

(“An opinion is not objectionable just because it embraces an ultimate issue.”); S.E.C. v.

Johnson, 525 F. Supp. 2d 70, 78 & n.8 (D.D.C. 2007) (“Although [a] particular factual

conclusion is associated with one of the more significant factual disputes between the parties,

that does not make it off limits for expert opinion.”). As the D.C. Circuit has explained, “an

expert may offer his opinion as to facts that, if found, would support a conclusion that the legal

standard at issue was satisfied” so long as the expert does not testify “as to whether the legal

standard has been satisfied.” Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207,

1213-14 (D.C. Cir. 1997).

Courts in voting rights cases routinely admit expert testimony concerning discriminatory

intent and the history of discrimination in voting. See, e.g., Cromartie v. Hunt, 526 U.S. 541,

547-48 (1999) (discussing intent evidence); United States v. Blaine County, 363 F.3d 897, 912-

913 (9th Cir. 2004) (discussing expert testimony on history of discrimination); Garza v. County

of Los Angeles, 918 F.2d 763, 767, fn19 (9th Cir. 1990) (crediting Dr. Kousser’s expert

testimony); Brown, 494 F. Supp. 2d at 452 & n.13; Johnson v. DeSoto Cnty. Sch. Bd., 995 F

Supp. 1440 (M.D. Fla. 1998) (discussing intent evidence); Bolden v. City of Mobile, Ala., 542 F.

6 Texas has not brought to the attention of the Court instances in which peers of Dr. Kousser have derided the

methodology used by him in the analysis of contemporary historical events to determine whether actions were taken with a discriminatory purpose.


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Supp. 1050, 1075 (S.D. Ala. 1982) (same). Courts have also found that such experts satisfy the

requirements of Rule 702. See Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 (D.S.D. 2004)

(finding that expert had the education, training, skill and knowledge to make him a reliable

expert and satisfy Rule 702 and Daubert).

Dr. Kousser’s testimony is admissible because it assists the Court in resolving a highly

relevant and unusually complex factual question – the Texas legislature’s purpose in enacting

S.B. 14 – while also remaining well within these confines for admissible expert testimony. As

explained above, Dr. Kousser’s report examines the evidence in the legislative record, media,

and other non-confidential sources to determine whether there is evidence that the legislature

intended to disenfranchise minority voters who do not possess one of the listed forms of photo

identification. While Dr. Kousser’s Declaration concludes that evidence exists that the

legislature intended to discriminate against minority voters in this way, it avoids drawing

conclusions as to the legal implications of these findings.

Examples of Dr. Kousser’s factual analysis and conclusions concerning S.B. 14 include

(citations omitted):

• “A typical multi-year reform drive in a legislature dilutes a measure before it passes, as more discussion and the necessity to compromise to win passage cause proponents to court at least some opponents by loosening up the bill’s provisions. On voter id in Texas, the opposite happened. Bills that allowed many documents in addition to drivers’ licenses and passports, including a great many that did not have photos attached, were initially proposed, but with the landslide 2010 elections, the Republican majority strikingly cut back on the documentary evidence of identity that voters could use to identify themselves at the polls. If majorities in the legislature had really wanted to protect the franchises of minorities, students, the disabled, and older voters, they would have moved in the opposite direction, expanding the range of eligible documents, instead of contracting them. The direction of change indicates a desire to contract, rather than to expand the electorate.” ¶ 25.

• “Had voter impersonation fraud been widespread, one would have expected it to be turned up in the frequent election contests in a huge state with a very large number of elected officials, for partisans of one candidate or another would have every incentive to


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ferret it out…. In the most high-profile election contest for the state legislature in recent years, that involving 11-term Republican Talmadge Heflin and Democrat Hubert Vo in House district 149 in the 2004 election, the Republican House member who led the investigation for a Republican-majority House committee, Will Hartnett, found that Heflin produced ‘no evidence of any intentional voter fraud which affected the final vote tally to his detriment. Contestant’s challenge to the vast bulk of the votes in question is based on technical, and apparently unintentional, violations of election law.’” ¶ 76.

• “As the evidence of significant numbers of occurrences of actual voter impersonation fraud proved impossible to find, proponents of voter id repeatedly fell back on a line of argument that did not need any connection with real events at all: that enough people believed that voter fraud took place that voter id was needed to “instill . . . voter confidence in elections.” ¶ 79. For instance, Republican Senators Huffman and Fraser engaged in a patterned colloquy during the 2011 debates on S.B. 14:

SEN HUFFMAN And do you believe that once we have established these safeguards that the voters will feel more confident about their vote being counted and only the votes of registered Texans who can vote to be counted[.]

SEN FRASER Yes that is our belief[.]

SEN HUFFMAN Do you think that once that's established that it will actually encourage the democratic process and that it will encourage more voters to go to the polls[.]

SEN FRASER The thing we've seen in other states that have implemented photo ID the voter turnout actually increased[.] And so yes we believe the confidence in the voters will increase and we believe it will actually increase the voting percentages.

• “Three facts make clear how empty the “restoring confidence” argument was . . . . Third was the exaggerated nature of the claims for the benefits of voter id – not only that it would lead to increased turnout, but actually that it would lead to increased turnout among minorities, whose voting participation, proponents of voter id contended, was currently depressed because of rumors of fraud. Thus, in a colloquy with African-American Sen. Royce West, Sen. Troy Fraser averred that I think my bill is going to increase African-American and Hispanic turnout in Texas. I think those people today feel disenfranchised because they feel like there is fraud going on in votes today –Sen. West: Well, have you talked to any – . . . My question is, who have you spoken to, to come to that assertion that those people feel as though that there’s fraud and all that stuff?” Fraser had not talked to such people, and he did not directly answer the question of Sen. West, who represented just such voters.” ¶ 81.

• “If members of the legislature really believed, as they repeatedly said, that every voter already had a photo id or could easily obtain one, then any contention that S.B. 14 was adopted with a racially discriminatory purpose would be more difficult to support. Yet even though Republicans repeatedly brushed aside Democratic requests for information on the possible differential racial effects of the various voter id bills, legislators were


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fully aware of the burdens that obtaining photo ids would place on Texans.7

• “During the 2009 and 2011 debates, there was extensive discussion in the Senate about the burden that would be placed on voters, especially poor and minority voters, who would have to go to Department of Public Safety offices and apply for photo id cards in order to be able to vote. In a colloquy with Sen. Fraser, Sen. Uresti detailed the distances that people in his Senate district, which stretched from San Antonio to El Paso, would have to travel to get to a DPS office: For example my constituents in Crockett County Ozona will have to travel 163 miles round trip to San Angelo to get to the nearest DPS office[.] And if you live in Sanderson[,] in Terrell County you will have to travel 170 miles round trip to get to Fort Stockton[.] If you live in Sierra Blanca in Hudspeth County[,] you have to travel 176 miles to get to El Paso in order to get to the DPS office….If you live in Van Horn in Culberson County[,] you have to travel 200 miles round trip to Marfa[,] which is the nearest DPS office….” ¶ 85.

For instance, presenting S.B. 362 on the Senate floor in 2009, Elections Committee Chair Troy Fraser [] cited statistics from the Secretary of State’s office. In a colloquy with Sen. Kirk Watson (D, Austin), Fraser announced that of recently-registered voters, there were 5,601,000 who had registered using a driver’s license as identification, and 809,000 (12%) who had not. Some of the 12%, Fraser suggested, might have another kind of photo id. Watson asked what the racial breakdown of the 12% was. Fraser didn’t know. Watson asked whether there had been any statistical analysis of potential effects of S.B.362 on African-Americans, Latinos, or poor people? None in Texas, Fraser replied.” During the same debate, Democratic Caucus Chairwoman Leticia Van de Putte, citing studies that estimated that 8% or more adults nationally did not possess photo ids, applied that percentage to Texas’s roughly 13.5 million voters and concluded that “that would be a million Texans who are currently registered to vote who don't have a photo id.” The legislature must be taken to have been aware, then, that up to 800,000- 1 million people might have to obtain photo ids if S.B. 14 were passed – rather a large sum to weigh against perhaps one case of voter impersonation fraud during recent times.” ¶ 83.

• “The distances between minority population concentrations and DPS offices in central cities were also spotlighted. In 2009, Sen. Mario Gallegos introduced maps of Houston and Ft. Worth that showed no DPS offices inside the ring road where most minorities lived, and only one in Dallas, and he discussed those maps again in 2011. In his native Houston, Gallegos remarked, it would take someone without a car who lived inside the I-610 loop three transfers of bus routes just to get near a DPS office. As Sen. Whitmire noted during the same debate, there was even then a 2-3-hour wait to get a driver’s

7 Texas argues that Dr. Kousser fails to identify the methodology that leads him to conclude that proponents of

S.B. 14 blithely ignored the repeated demonstrations of the burdens of obtaining photo identification cards. Texas Mem. at p. 10. However, Dr. Kousser cites to repeated instances in the legislative record in which Democratic legislators argued, for instance, that the DPS offices were far, difficult to reach by public transportation, and/or were open only a limited number of hours per week, if at all, and the proponents of S.B. 14 would not respond to these concerns. Senator Tommy Williams was probably among the few, if any, who went as far as to acknowledge that to obtain a photo identification valid under S.B. 14 (and its underlying documents) represented a burden on some voters. “And my response would be yes, there is a cost but I don’t believe that that cost is an unreasonable burden based on the testimony that was taken during the debate on this.” Ex. 5, Williams Dep. 202:9-12.


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license in Houston. How long would the wait be, he wondered, if the lines lengthened to accommodate voters who had to acquire new photo ids? And could poor people afford to take that much time off from work?” ¶ 86.

• “The difficulty in the present case is that none of the Latino, African-American, or Asian-American Republicans who served in the Texas State Legislature in 2011 can legitimately be viewed as spokespersons of their ethnic communities, because none was elected with majority support from that community. I considered this question in my declaration in Texas v. United States in the District Court of the District of Columbia, where I provided statistical evidence that Latino voters throughout the decade of the 2000s always voted overwhelmingly against Latino Republican candidates and that the other four minority Republicans who served in the Texas House in 2011 were elected from overwhelmingly-white constituencies. All of the Republicans in the state senate and 92 of the 101 Republicans in the state House were Anglo. Tables 12-14 of my earlier declaration demonstrate that four Latino Republicans were opposed by Latino voters in the 2010 election. Rep. Aaron Pena of the 41st District was elected as a Democrat, and Republicans went to great lengths in the H283 redistricting plan to protect him from what they obviously expected to be rejection by Latino voters in future elections. That leaves four minority Republicans. Table 24, which was based on ordinary least-squares regression, showed that all of their elections in 2010 were generally opposed by minority voters. All but one of the districts in which they were elected were majority-Anglo, and in every contest, Anglos provided the bulk of the votes for the minority Republican candidates. It is notable that the two African-American Republicans seem to have been opposed by nearly all black voters. The only Republican candidate with very substantial support from minority voters, Chen, had no Democratic opponent, but only a Libertarian. I reprint relevant parts of those two tables below.” ¶ 97.

• “And as officials of a state that had been submitting materials for preclearance since 1975 surely knew, during the Section 5 preclearance process, the Justice Department would require the State to present quantitative evidence that any voter id law did not have a discriminatory effect on Latinos and African-Americans, and that the State had the burden of proof in that inquiry.” ¶ 106.

• “So the State knew that it had to have data on the differential effects of a voter id requirement on Latinos and blacks, it had been repeatedly told that national studies showed that members of minority groups were considerably less likely than non-Hispanic whites to have cars or drivers’ licenses or other forms of identification, and it had been asked again and again to gather such data if it did not have it. In such a circumstance, the failure to gather relevant information and make it part of the public discussion must be considered to be evidence of a racially discriminatory intent.” ¶ 107.

• “Again and again, minority members of the legislature asked for the legislature or the Secretary of State’s office or somebody in the State government to compile such data and to make it available during the debates on the subject. For example, in Exhibit 1 to the 2009 hearing of the Committee of the Whole Senate, Leticia Van de Putte asked Sen. Robert Duncan, who was scheduled to preside over the Senate that day, that the Republican leadership provide a ‘detailed analysis on the effects [of S.B. 14] on minority


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voters protected under the VRA.’ But if anyone in the State government ever collected such information, they never made it public. The way the Republican sponsor of S.B. 14, Sen. Troy Fraser, blatantly ignored the question is itself evidence that he recognized the danger for preclearance of looking into it. Witness his colloquy with Leticia Van de Putte:

SEN VAN de PUTTE To your knowledge have any studies been done to determine if there has been under current Texas voter laws any impact that it would have on affected class of Latino and African American voters

SEN FRASER The bill that I'm laying out today is a model that has been approved by the U.S. Supreme Court[. I]t has been precleared by the Department of Justice in Georgia[.] It will deter fraud[.] We're providing free access of cards[.] And yes we believe this will protect confidence in election in making sure only eligible voters are counted [.]

Or this one, with Sen. Royce West:

SEN WEST: Studies have shown that African Americans and Hispanics are more affected by poverty and therefore are more likely to participate in government benefit programs[.] Will the elimination of the government documents as a form of ID disproportionately affect African Americans and Hispanics[?]

SEN FRASER I'm not advised[.]8

¶ 108.

”

• “The constriction of documents eligible to identify voters presented in Table 1, above, from the large number under the benchmark to the smaller, but still substantial number in the 2005-09 bills, to the drastically reduced number in S.B. 14 is testimony to the desire to constrict the electorate. So is the rejection of amendments to loosen those constraints offered in the Senate in 2011. Table 3 gives a brief description of each of the 37 amendments to S.B. 14 that were proposed in the Senate in 2011, along with the sponsor and whether the amendment passed. Each of the Democrats’ amendments would have broadened the number of documents available for identification purposes or increased the information available to the voters or reduced the burden on voters of procuring the relevant identifying documents. That proponents did not represent another piece of evidence of how retrogressive this legislation was, a foreseeable and foreseen retrogressive effect that is commonly taken as an indication of a discriminatory intent.” ¶ 112.

8 Texas argues that Dr. Kousser’s Declaration relies almost exclusively upon statements by the opponents of

S.B. 14 when citing to the legislative record. Texas Mem. at p. 8. However, several verbatim statements by Republican Senator Fraser at ¶¶ 79, 81 and 83 are included in the Declaration to illustrate baseless assertions as to voter confidence (¶79) and increase in minority turnout (¶81) were S.B. 14 to be implemented, the failure or refusal to conduct pertinent statistical analysis (¶ 83), and the repeated use of the phrase “not advised” to mean that the legislator(s) did not know, did not care to know, or did not wish opponents to the bill to know (¶108).


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As these excerpts readily demonstrate, Dr. Kousser’s testimony covers the factual

evidence that supports a finding of intentional discrimination.9

E. Dr. Kousser’s Testimony is Reliable.

It does not focus on the legal

consequences of that finding. Accordingly, his testimony both falls within the proper scope of

expert opinion under Rule 704(a) and meets Rule 702’s relevancy requirement.

Finally, Texas’s motion questions the reliability of Dr. Kousser’s testimony. As

explained above, Dr. Kousser is highly qualified to opine on matters relating to voting rights.

Even a cursory review of his Declaration reveals that Dr. Kousser used his expertise to conduct a

technical and historical analysis of the legislative, media, and non-confidential information

related to the passage of S.B. 14. See Daubert, 509 U.S. at 592-93 (expert testimony is reliable if

it employs a valid methodology that is properly applied to the facts of the case). In addition, as

also noted above, Dr. Kousser even used some of the data tables he prepared for the recent Perez

v. Perry litigation – and that were admitted into evidence in that litigation – to show that

minority Republican legislators depended on the votes of Anglo Republicans for their election,

and were not the candidates of choice of Latino and African American voters. Kousser Decl. at

¶¶ 91, 92. Thus, Texas’s allegation that Dr. Kousser fails to acknowledge that five Hispanic and

two African-American legislators (all Republican) supported S.B. 14, Texas Mem. p. 12, is

incorrect. Dr. Kousser acknowledges their support, but he performs a data-intensive analysis to

show that these minority legislators owed their election to Anglo Republicans, not to minority

voters. Kousser Decl. at ¶ 97.

9 Texas alleges that Dr. Kousser fails to identify facts, principles or methods on which he bases his opinion

about the effect of S.B. 14 on Texas voters. Texas Mem. at p. 12. This, however, is the issue addressed by the Attorney General’s other expert witness, Dr. Stephen Ansolabehere, and Dr. Kousser relies on Dr. Ansolabehere’s findings. Dr. Kousser, however, has undertaken a detailed review of Dr. Ansolabehere’s analysis and concurs with its findings.


15

Dr. Kousser’s extensive qualifications, exhaustive research, and rigorous methodology

have routinely assisted federal courts in evaluating legislative purpose evidence. No court has

ever deemed Dr. Kousser’s methodology or opinions to be unreliable.

III. CONCLUSION

For the reasons given above, the Court should deny Texas’s motion to exclude Dr.

Kousser’s testimony.


16

Date: June 25, 2012 Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

/s/ Risa Berkower T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO SPENCER FISHER DANIEL J. FREEMAN Attorneys Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530


CERTIFICATE OF SERVICE

I hereby certify that on June 25, 2012, I served a true and correct copy of the foregoing via the Court’s ECF system on the following counsel of record:

Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas [email protected] [email protected] [email protected] [email protected] Adam K. Mortara John M. Hughes Bartlit Beck Herman Palenchar & Scott LLP [email protected] [email protected] Counsel for Plaintiff Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson [email protected] [email protected] [email protected]

Counsel for Texas League of Young Voters Intervenors J. Gerald Hebert [email protected] Chad W. Dunn Brazil & Dunn [email protected] Counsel for Kennie Intervenors Jon M. Greenbaum Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] [email protected] Ezra David Rosenberg Michelle Hart Yeary Dechert LLP [email protected] [email protected] Robert Stephen Notzon [email protected] Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates [email protected] Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice [email protected] [email protected] [email protected] Counsel for NAACP Intervenors


John Tanner [email protected] Nancy G. Abudu M. Laughlin McDonald Katie O’Connor Arthur B. Spitzer American Civil Liberties Union [email protected] [email protected] [email protected] [email protected] Counsel Texas Legislative Black Caucus Proposed Intervenors

Nina Perales Mexican American Legal Defense & Educational Fund, Inc. [email protected] Counsel for Rodriguez Proposed Intervenors

/s/ Risa Berkower RISA BERKOWER U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]


EXHIBIT 1

Case 1:12-cv-00128-RMC-DST-RLW Document 236-1 Filed 06/25/12 Page 1 of 8

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA_____________________________STATE OF TEXAS ) Plaintiff, ) vs. )ERIC H. HOLDER, JR., ) CASE NO.in his official ) 1:12-CV-00128capacity as Attorney ) (RMC-DST-RLW)General of the United States ) Defendant )ERIC KENNIE, et al., )Defendant-Intervenors, )TEXAS STATE CONFERENCE OF )NAACP BRANCHES, et al, )Defendant-Intervenors, )TEXAS LEAGUE OF YOUNG )VOTERS EDUCATION FUND, )et al., )Defendant-Intervenors )TEXAS LEGISLATIVE BLACK )CAUCUS, et al., )Defendant-Intervenors, )VICTORIA RODRIGUEZ, et al., )Defendant-Intervenors )_____________________________

Videotaped Deposition of J. Morgan Kousser Washington, D.C. June 20, 2012 9:40 a.m.Reported by: Bonnie L. RussoJob No. 345761

3

1 APPEARANCES:2 On behalf of the Plaintiff:3 JOHN M. HUGHES, Esq.4 ASHA SPENCER, Esq.5 BARTLIT BECK HERMAN PALENCHAR & SCOTT, LLP6 1899 Wynkoop Street7 8th Floor8 Denver, Colorado 802029 303-592-311310

11 On behalf of the Defendant Eric H. Holder, Jr.:12 RICHARD A DELLHEIM, Esq,13 MEREDITH BELL-PLATTS, Esq.14 UNITED STATES DEPARTMENT OF JUSTICE15 CIVIL RIGHTS DIVISION16 950 Pennsylvania Avenue, N.W.17 7254-NWB18 Washington, D.C. 2053019 202-305-173420

21

22

21 Videotaped Deposition of J. Morgan Kousser held2 at:3

4

5

6 Williams & Connolly, LLP7 725 12th Street, N.W.8 Washington, D.C.9

10

11

12

13

14

15

16

17

18

19

20

21 Pursuant to Notice, when were present on behalf22 of the respective parties:

4

1 PEYTON McCRARY, ESQ.

2 UNITED STATES DEPARTMENT OF JUSTICE

3 CIVIL RIGHTS DIVISION

4 1800 G Street, N.W., Room 7267

5 Washington, D.C. 20006

6 202-307-6263

7

8 FOR THE DEFENDANT-INTERVENORS

9 TEXAS STATE CONFERENCE OF NAACP BRANCHES and

10 MEXICAN-AMERICAN LEGISLATIVE CAUCUS:

11 EZRA D. ROSENBERG, Esq.

12 DECHERT, LLP

13 902 Carnegie Center

14 Princeton, New Jersey 08540

15 609-955-3200

16

17

18

19 Also Present:

20 Lauren Burke, Videographer

21

22

J. Morgan Kousser June 20, 2012

Toll Free: 800.211.DEPOFacsimile: 512.328.8139

Suite 2203101 Bee Caves Road

Austin, TX 78746www.esquiresolutions.com


211 A. Correct.2 Q. And those -- I believe both of them3 are not just reports, but they are -- they're4 declarations that you have sworn under penalty5 of perjury are true, correct?6 A. Correct.7 Q. Okay. And I think you've got --8 your signature appears on the second page of9 both Kousser Exhibit 1 and Kousser Exhibit 210 where you swear under penalty of perjury that11 everything is true and correct to the best of12 your knowledge, right?13 A. Correct.14 Q. Okay. And the -- the opinions15 expressed in -- in these declarations, Kousser16 1 and 2, they're based on your review of17 publicly available information about the Texas18 voter ID legislation, correct?19 A. Yes.20 Q. There is no confidential sources21 that you reviewed?22 A. Nothing confidential. Getting some

231 voter ID law, correct?2 A. There were such purposes alleged.3 Q. Okay. And one of the race-neutral4 purposes that was identified is supportive of5 the Texas voter ID law was to decrease fraud,6 election fraud, correct?7 A. That was a purported reason, yes.8 Q. Okay. And another race-neutral9 purpose that was identified as supportive of10 the Texas voter ID law was to increase11 confidence in the electoral process, correct?12 A. That was a purported purpose also.13 Q. Okay. And another purpose or reason14 identified as supportive of the Texas voter ID15 law was that it was a popular law that was16 responsive to constituent demands, correct?17 A. That was a purported purpose also.18 Q. Okay. And you keep saying that's a19 purported purpose. You're not disputing that20 those were identified race-neutral purposes as21 supportive of the Texas voter ID bill, correct?22 A. That was -- those were some of the

221 of the stuff out of the state, I -- not2 everybody would have access to the stuff out of3 the state, but it comes from the state.4 Q. It's public records?5 A. Yes.6 Q. Public records and a lot of7 newspaper articles --8 A. Yes.9 Q. -- are the kind of basic sources you

10 considered, correct?11 A. Correct.12 Q. In addition to some of your own13 scholarly work, like your book, right?14 A. Correct.15 Q. Okay. And so, again, your -- your16 basic point is that the Texas voter ID law was17 enacted with a racially discriminatory purpose,18 right?19 A. That's my conclusion.20 Q. And -- but you agree that in the21 public record that there were race-neutral22 purposes that were identified for the Texas

241 things that people who were proponents of the2 law said.3 Q. Okay. And -- but what you say, in a4 nutshell, is that those reasons, that we just5 talked about, those race-neutral reasons, are6 all pretextual and that you have the ability to7 look behind these purported or pretextual8 purposes and determine that what's really going9 on is a racially discriminatory purpose, right?10 A. Correct.11 Q. Okay. And, basically, you're12 holding yourself out as an expert who can13 identify racism in the face of race-neutral or14 color-blind rationales?15 A. I'm not sure I would call it racism.16 Q. Okay.17 A. But certainly racially18 discriminatory purposes.19 Q. Okay. And I want to -- so why20 wouldn't you call it racism?21 A. Racism, as a general theory or22 philosophy, may have lots of larger






331 generally associate myself with believers in2 environmentalism. I could go on.3 Q. That's probably sufficient.4 Would -- I mean, would socialism be5 a word that you would use to describe your6 political philosophy?7 A. No.8 Q. Do you donate to any political9 causes beyond just donating to Democratic10 candidates?11 A. I donate to environmental causes.12 At one point I used to donate to DACOU, the13 NAACP Legal Defense Fund, et cetera. But I was14 advised that I should not do that because I15 would be -- I would possibly be working for16 them and that it might provide an appearance of17 self-dealing. So I stopped doing that 20, 3018 years ago.19 Q. Did you make a donation to President20 Obama?21 A. Yes.22 Q. And both the initial election cycle

351 Q. Now, Dr. Kousser, we touched on this2 earlier. You said you participated in3 approximately 37 Voting Rights Act cases,4 right?5 A. That's correct.6 Q. And in some of those cases you7 offered an opinion about whether a government8 action was taken with a racially discriminatory9 purpose, right?10 A. Correct.11 Q. And then in other cases you do kind12 of racially polarized voting analysis that13 would be more toward like a retrogression14 analysis, right?15 A. Or effect.16 Q. Right.17 A. Yes.18 Q. Okay. Which is -- so sometimes --19 like in the districting cases, you're doing a20 racially polarized voting analysis to determine21 if there's a discriminatory effect, right?22 A. Yes. As you recall from the Texas

341 and this election cycle?2 A. Yes.3 Q. Have you ever voted for a4 Republican?5 A. I think that I have voted -- there6 are a lot of non-partisan elections in -- in7 California, and I'm sure I voted for8 Republicans in partisan elections.9 Q. But, generally, you support, as you

10 said, Democratic candidates, right?11 A. Yes.12 Q. Do you think the Republican party13 supports racially discriminatory policies?14 A. In the Texas voter ID case, I think15 that that was certainly the case.16 Q. What about beyond that?17 A. There -- there are some cases --18 there are some instances of racially19 discriminatory policies that the Republicans20 have supported in the past. Of course, it was21 true that there were lots of cases in which22 Democrats did.

361 redistricting case, I did both.2 Q. And sometimes you're offering3 opinion just about whether a government action4 was taken with a racially discriminatory5 purpose, right?6 A. Correct.7 Q. And can -- do you -- can you8 approximate for me how many times you have9 testified that a government action has a10 racially discriminatory purpose?11 A. I was trying to remember that and I12 can't remember it for sure. Maybe 15.13 Q. And have you ever been asked to14 determine whether a government action had a15 racially discriminatory purpose and concluded16 that it didn't?17 A. Yes.18 Q. When?19 A. Well, for example, in this case, I20 looked at -- I think it is H.B. 54, the Wollens21 bill. I really -- I wasn't really asked to do22 that by the Justice Department, but I ran into






411 discriminatory intent of a particular2 governmental practice.3 Q. And that method is disclosed that4 there's a -- the ten rubrics that you just5 mentioned that you used to determine whether6 government action was taken with a racially7 discriminatory purpose are disclosed in "Color8 Blind Injustice," correct?9 A. They are discussed, yes.10 Q. Okay. And what you say in, I think,11 your initial report, is that you're using some12 of those rubrics and that analytical framework13 in this case to determine whether the Texas14 voter ID law was enacted with a racially15 discriminatory purpose, right?16 A. Yes.17 Q. Okay. And in the book you used18 that -- is it fair to call that an analytical19 framework, Dr. Kousser? I'm just trying to20 agree on terminology with you.21 A. That's fine.22 Q. Okay. And it -- so it's an

431 whether there were discriminatory actions by2 governments, local governments, state3 governments, things like that; not to analyze4 Supreme Court opinions.5 Q. Well, the ultimate conclusion of6 your book is that a case called Shaw against7 Reno, and I think you use the term and its8 "progeny" are cases that you strongly disagree9 with; is that fair?10 A. I'm not sure that that's the11 ultimate conclusion in the book, but I12 certainly conclude that, yes.13 Q. Okay. And kind of like here in the14 Texas voter ID case, you look at the reasoning15 of Shaw and you say the rationales advanced by16 the Court in Shaw were pretextual, kind of17 invalid, and you think it's wrongly decided and18 should be overturned, fair?19 A. I think not -- I'm not sure I would20 say pretextual, but I think that they were21 incorrect. I think -- I testified in the22 remand case, which is known as Shaw versus

421 analytical framework that you discussed in2 "Color Blind Injustice" that -- that you used3 to determine whether government action is taken4 with a racially discriminatory purpose?5 A. Yes.6 Q. Fair?7 A. Correct.8 Q. Okay. And what you -- kind of the9 big, as I -- I didn't read every word, but as I

10 understand the book, you use that analytical11 framework in the book to look at some Supreme12 Court opinions and policy consequences of those13 opinions, right?14 A. I actually don't think that's true.15 I -- I draw the -- the ten rubrics from Supreme16 Court opinions and from -- from other Federal17 Court opinions and from historical practice.18 For example, from Arlington -- the Arlington19 Heights case, the Feeney, so I don't -- it's20 not that I use them to analyze the Supreme21 Court opinions. I use them to analyze the22 discriminatory actions or the question of

441 Hunt, went against the Supreme Court, and I2 looked at the facts from North Carolina and3 I -- I think that they do not support the sorts4 of conclusions that Justice O'Connor made in5 Shaw v. Reno.6 You will, perhaps, recall that --7 that Chief Justice Rehnquist cited my report8 from Shaw versus Hunt in the Shaw versus Hunt9 opinion that -- and said, essentially, I10 probably flatter myself, but I apologize for11 doing that, that if the legislature had had12 this before it enacted on the basis of the13 facts that were in that report, they might have14 had a -- sufficient reason for adopting the15 congressional district, particularly in the16 12th Congressional District, that they did17 those boundaries might -- that might have given18 them a compelling state interest for adopting19 those -- those boundaries.20 So when I'm feeling particularly21 good about myself I say that Chief Justice22 Rehnquist agreed with my opinions in "Color






1491 that witness came because the Democrat members2 of the senate insisted on his testimony. You3 have no reason to dispute that, do you?4 A. I do not know who asked him to5 testify.6 Q. And you have no reason to dispute7 that Eric Nichols was a resource witness who8 was not sent to the senate to testify on behalf9 of the bill. You have no reason to dispute10 that, do you?11 MR. DELLHEIM: Objection.12 The witness has testified he is not13 aware of the facts under -- underlying your14 questions.15 THE WITNESS: I think that there was16 -- I think that he was called a resource17 witness but obviously, anybody testifying in18 those circumstances is -- he can answer19 questions. He did answer questions, but the20 administration had taken a position.21 BY MR. HUGHES:22 Q. Now, the -- you say that there is a

1511 big -- or a substantial political fight over2 voter ID going on at the same time, that the3 attorney general put out this column that the4 two must necessarily be linked. That's your5 testimony?6 A. Yes.7 Q. Okay. And give me any document that8 supports that claim.9 A. All the documents support that10 claim, not any particular one.11 Q. Is there any particular document12 that you can point to that actually says the13 reason the attorney general made this14 announcement in March 2006 was to find15 in-person voter fraud to build support for16 voter ID. Any document that says that?17 MR. DELLHEIM: Objection.18 THE WITNESS: There is not one19 particular document in the public that says20 that. You would not expect to find that. If21 -- if you could put the attorney general under22 oath now in the context of a case, you wouldn't

1501 connection between the news column and March of2 2006 and building support for voter ID, because3 at the same time that the attorney general4 wrote the March 2006 news column, there also5 happened to be political dispute over voter ID.6 Is that -- am I capturing the7 essence of your testimony?8 A. I do not think I would say "happened9 to be." It was the dominant -- it was what was

10 called by some newspaper, the marquis issue11 between the two parties for five, six years,12 four legislative terms. As you will recall13 from my report, there were epic struggles with14 melodramatic events between the two parties.15 There were two referenda of the Republican16 voters on -- on the issue. This was as high17 visibility as anything became, as high18 visibility as the Tom DeLay redistricting when19 Democratic members of both houses left.20 It is hardly something that was just21 happening at the same time.22 Q. So you say that because there was a

1521 expect him to say that.2 Politicians don't say, oh, we are3 going to build a myth of voting fraud and we4 are going to do it by launching this5 investigation. No historian -- if I found such6 a document, I would be extraordinarily7 surprised. Nobody is going to do that. Nobody8 is going to leave it around such that it's9 discoverable.10 You have to interpret. One of the11 reasons that you have a historian to work on12 something like this is to try to put things13 into context, and that's what I did.14 BY MR. HUGHES:15 Q. I just want to make sure what the16 basis of your opinions is. And it is -- you17 have no documentary evidence supporting your18 conclusion that the attorney general's March19 2006 news column was linked to an investigation20 to find in-person voter fraud in order to build21 political support for a voter ID bill, the22 bill, right?






1531 MR. DELLHEIM: Objection.2 He testified that there were all --3 that many of the documents, not all of the4 documents support that conclusion.5 THE WITNESS: There is no one6 smoking gun. Just as I did not expect to see a7 smoking gun similar to the famous Busby versus8 Smith smoking gun, which was not public record,9 but which was discovered, saying that they had10 in Georgia in 1981, drawn a particular11 congressional district for racially12 discriminatory purpose, I would not expect to13 find those sorts of statements about any bill14 in Texas at this particular time, Texas15 legislators and other officials being much too16 sophisticated to say that. I would not expect17 to see one piece of evidence specifically18 saying, let's launch an investigation so that19 we can build -- we can change public opinion20 and build a case for this particular bill that21 we want. I wouldn't expect to find that.22 I would expect to see what the

1551 in-person voter fraud in order to build2 political support for photo voter ID?3 A. It was the whole context in which it4 was produced --5 Q. I understand your --6 A. -- and continued to be discussed.7 Q. I didn't mean to interrupt you, I'm8 sorry, Dr. Kousser, but you have a context9 argument which is big political fight over10 voter ID, this comes out at the same time.11 That -- we discussed that argument, right, or12 that opinion that you have, right?13 A. Yes. And there are many documents14 which point to the same conclusion taken as a15 whole to point to the same conclusion. Even16 the Dallas Morning News, I guess, said in 200817 -- no, perhaps it was the Austin18 American-Statesman, but maybe it was the Dallas19 Morning News, I'm not sure, anyway, they said20 -- let me get to the quotation on this.21 Q. Page 53, I think is what you are22 looking for.

1541 general historical context was and to interpret2 the actions in terms of that context.3 BY MR. HUGHES:4 Q. Just so we're clear, you can't5 identify any document, any testimony in this6 case that links the attorney general's March7 2006 announcement to an investigation to find8 in-person voter fraud in order to build support9 for photo voter ID, right?

10 MR. DELLHEIM: Objection.11 Mischaracterizes the testimony.12 THE WITNESS: I cannot find one13 document that says that explicitly. I would14 not expect to. I would expect to interpret the15 actions in the context of the other events that16 were taking place.17 BY MR. HUGHES:18 Q. Is there any document that you can19 point to that says it not explicitly that you20 can -- it is like inferentially suggests that21 there was a connection between this March 200622 announcement and investigation to find voter --

1561 A. Yes. It's Page 55. It's an2 editorial from the Dallas Morning News, May3 23rd, 2008.4 "Were those threats real, the Dallas5 Morning News said. Mr. Abbott most certainly6 would have provided proof helping Republicans7 state lawmakers make their case for new laws8 requiring a photo ID at the polls to go along9 with the traditional voter -- Texas voter10 registration card."11 So the Dallas Morning News puts the12 investigation in exactly the same context that13 I put it in, and implies that -- that if the14 investigation had turned up such influence,15 such examples, that he would have made them16 public.17 Q. But there is nothing here connecting18 what the Dallas Morning News is saying to the19 March 2006 announcement, right?20 A. This is -- this is the summary. It21 says he is still looking for massive voting22 fraud. The Austin American-Statesman in an






3011 are. That's -- that's just a fact. I have2 just observed that.3 BY MR. DELLHEIM:4 Q. I want to direct your attention to5 Exhibit 4. It says at the top "Holder DOJ."6 First of all, is Holder DOJ your words or the7 words of Mr. Hughes?8 A. That's Mr. Hughes' words.9 Q. Okay. This -- the words that are on10 the first page of Exhibit 4, are those your11 words or are those Mr. Hughes'?12 A. Those are Mr. Hughes' words. My13 words are expressed at much greater length than14 this.15 Q. Okay. I believe you testified16 that -- that Mr. Hughes' words were accurate.17 Let me ask you another question.18 Are they -- are they a complete19 representation of your views?20 A. No. The complete representation of21 my views is in the two quite lengthy reports.22 Q. Is there anything, as you look at

3031 the conclusions. These -- these are the bottom2 conclusions of things. They don't give any3 impression of what the evidence or argument for4 them are. Much of the rest of the deposition5 has given some evidence for that, but the best6 evidence is in the reports.7 MR. DELLHEIM: Mr. McCrary, would8 you please turn to Page 2 of Exhibit 4?9 BY MR. DELLHEIM:10 Q. Take a look at Page 2 of Exhibit 4,11 please, Dr. Kousser. First of all, are12 those -- are the words on Page 2 of Exhibit 413 your words or Mr. Hughes'?14 A. Those are Mr. Hughes' words.15 Q. As you read over what was written on16 Page 2, do you consider that to be a complete17 summation of -- of your views on those18 subjects?19 A. It's not complete. It looks at a20 couple pages from ""Color Blind Injustice"" and21 looks at a few sentences, which I qualified22 earlier in the deposition, that's why there is

3021 Page 1 of Exhibit 4, that you think in fairness2 should be added for completeness?3 A. Well, the basis, the whole bases of4 my opinions about the Texas voter ID law as5 being racially discriminatory is given at great6 length, and one could outline the paper and the7 sorts of evidence that I present in much8 greater detail than this. This -- this is a9 very -- this is very, very much of a shorthand

10 of what I -- what I said. I thought from --11 that at the beginning, sorry I misunderstand12 Mr. Hughes from time to time -- I thought at13 the beginning that he was going to ask me to go14 through my ten factors, and I would rather that15 what he had done in putting things on the board16 would have looked at those ten factors and said17 what sort of evidence do you have for the18 proposition that the -- for example, changes in19 institutional rules that took place in Texas20 over this period of time are evidence of a21 discriminatory intent -- and so systematically22 go through those ten factors and then come to

3041 an asterisk now. And I gave some impression, I2 think, in the -- earlier in the deposition why3 I think that the facts would justify4 opinions -- summarized not in my words but in5 his words -- like that.6 Q. So is exhibit -- is Page 2 of7 Exhibit 4 a complete and reliable and in8 context summation of your views as to each of9 the subjects addressed on that page?10 MR. DELLHEIM: Object to form.11 THE WITNESS: It's certainly not12 complete.13 BY MR. DELLHEIM:14 Q. Would you turn to --15 MR. DELLHEIM: Dr. McCrary, turn to16 Page 3, please.17 BY MR. DELLHEIM:18 Q. Now, looking at Page 3 of Exhibit 4,19 as you -- as you look at that, Dr. Kousser, are20 those your words on Page 3 of Exhibit 4 or Mr.21 Hughes'?22 A. They're Mr. Hughes' words.






EXHIBIT 2


1


CIVIL ACTION NO. 1:11-cv-01303 Three-Judge Panel: RMC-TBG-BAH

STATE OF TEXAS,

Plaintiff,

- against -

UNITED STATES OF AMERICA and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States,

Defendants.

JOINT OPPOSITION TO THE STATE OF TEXAS’S MOTION

TO EXCLUDE TESTIMONY OF EXPERTS DR. HENRY FLORES, DR. ALLAN LICHTMAN, AND PROF. MORGAN KOUSSER

On behalf of the Texas Latino Redistricting

Task Force: NINA PERALES (D.C. Bar No. TX0040) REBECCA COUTO MARISA BONO KAROLINA LYZNIK Mexican American Legal Defense &

Educational Fund 110 Broadway, Suite 300 San Antonio, TX 78205 Telephone No.: (210) 224-5476 Facsimile No.: (210) 224-5382 E-mail address: [email protected] KAREN M. SOARES (D.C. Bar No. 503295) JORGE M. CASTILLO Fried, Frank, Harris, Shriver & Jacobson LLP 801 17th Street, NW Washington, DC 20006

On behalf of the Davis Intervenors: J. GERALD HEBERT (D.C. Bar No. 447676) Attorney at Law 191 Somerville Street, #405 Alexandria, VA 22304 Telephone No.: (703) 628-4673 PAUL M. SMITH MICHAEL DESANCTIS JESSICA RING AMUNSON CAROLINE LOPEZ Jenner & Block LLP 1099 New York Ave., N.W. Washington, DC 20001 Telephone No.: (202) 639-6000 Facsimile No.: (202) 639-6066

Case 1:11-cv-01303-RMC-TBG-BAH Document 150 Filed 01/13/12 Page 1 of 22Case 1:12-cv-00128-RMC-DST-RLW Document 236-2 Filed 06/25/12 Page 2 of 23

2

On behalf of the Mexican American Legislative Caucus (MALC):

JOSE GARZA (pro hac vice) Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 98209 Telephone No.: (210) 392-2856 E-mail address: [email protected] JON GREENBAUM (D.C. Bar No. 489887) MARK A. POSNER (D.C. Bar No. 457833) Lawyer’s Committee for Civil Rights Under

Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 Telephone No.: (202) 662-8389 Facsimile No.: (202) 628-2858 E-mail address:

[email protected] JOAQUIN G. AVILA (Texas State Bar No.

01456150) P.O. Box 33687 Seattle, WA 98133 Telephone No.: (206) 724-3731 Facsimile No.: (206) 398-4261 E-mail address: [email protected]


i

TABLE OF CONTENTS

PAGE

The Texas Latino Redistricting Task Force’s Expert Witness Dr. Henry Flores ........................... 1�

INTRODUCTION .......................................................................................................................... 1�

ARGUMENT .................................................................................................................................. 2�

I. Dr. Flores’s Testimony Is Reliable ..................................................................................... 3�

II. Dr. Flores’s Specialized Knowledge Is Relevant Because It Will Help The Court Determine Whether The Texas Redistricting Plans Were Motivated By Discriminatory Intent .......................................................................................................... 5�

A. Dr. Flores’s Testimony Speaks Directly To The Facts At Issue On Whether The Texas Redistricting Plans Were Motivated By Discriminatory Intent And Will Be Helpful To The Court In Understanding These Facts ..................................................................................... 5�

B. Dr. Flores’s Testimony Constitutes Admissible Testimony On Discriminatory Purpose ........................................................................................... 7�

III. Dr. Flores’s Testimony Has Already Been Accepted As Reliable And Relevant, And The State Should Be Estopped From Objecting To Its Admission ........................... 10�

The Davis Intervenors’ Expert Witness Dr. Allan J. Lichtman .................................................... 11�

The Mexican American Legislative Caucus (MALC)’s Expert Witness Dr. J. Morgan Kousser ......................................................................................................................................... 14�

CONCLUSION ............................................................................................................................. 15


i

TABLE OF AUTHORITIES

PAGE

CASES

Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) ........................................................................................ 2, 3

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ...................................................................................................... 8, 14

AstraZeneca LP v. Tap Pharm. Prods. Inc., 444 F. Supp. 2d 278 (D. Del. 2006) ............................................................................ 6, 7, 8

Cao v. Fed. Election Comm’n, 688 F. Supp. 2d 498 (E.D. La. 2010) .................................................................................. 9

Comm’n for a Fair and Balanced Map v. Ill. State Bd. of Elections, 11-CV-5065, 2011 U.S. Dist. LEXIS 144302 (N.D. Ill. Dec. 15, 2011) .......................... 12

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ........................................................................................................ 2, 4

Edmonds v. United States, No. 05-540, 2009 WL 969938, (D.D.C. Apr. 7, 2009) ....................................................... 3

Garza v. County of Los Angeles, 756 F. Supp. 1298 (C.D. Cal. 1990), aff’d 918 F.2d 763 (9th Cir. 1990) .............................................................................. 12, 13

Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000) ............................................................................................. 10

Hunt v. Cromartie, 526 U.S. 541 (1999) .................................................................................................. 8, 9, 14

Hunter v. Underwood, 471 U.S. 222 (1985) ............................................................................................................ 9

In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004) ................................................................................. 8

In re Salem, 465 F.3d 767 (7th Cir. 2006) ............................................................................................. 10

In re Trasylol Prod. Liab. Litig., 709 F. Supp. 2d 1323 (S.D. Fla. 2010) ............................................................................... 8


ii

Jacobsen v. Oliver, No. 01-1810, 2007 U.S. Dist. LEXIS 97625, 2007 WL 5527513 (D.D.C. Nov. 2, 2007) ....................................................................... 10

Johnson v. DeSoto County Sch. Bd., 995 F. Supp. 1440 (M.D. Fla. 1998) ................................................................................... 9

Khairkhwa v. Obama, 793 F. Supp. 2d 1 (D.D.C. 2011) ................................................................................. 3, 4-5

League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006) .......................................................................................................... 12

Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp. 1196 (S.D. Tex. 1997) ................................................................................... 4

Perez v. Perry, No. 11-CA-360-OLG-JES-XR (W.D. Tex. Sept. 7, 2011) ................................................. 4

Perez v. Perry, No. 5:11-cv-00360 (W.D. Tex. 2011) .............................................................. 10-11, 14, 15

Prejean v. Foster, 83 F. App’x 5 (5th Cir. 2003) ............................................................................................. 9

Radogno v. Ill. State Bd. of Elections, 11-CV-04884, 2011 WL 5025251 (N.D. Ill. Oct. 21, 2011) ............................................. 12

S.E.C. v. Johnson, 525 F. Supp. 2d 70 (D.D.C. 2007) ......................................................................... 6-7, 8, 10

Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. Dec. 16, 2003) .................................................................. 4

U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871 (D.C. Cir. 2010) ........................................................................................ 4, 5

United States v. Brown, 415 F.3d 1257 (11th Cir. 2005) ......................................................................................... 10

United States v. H&R Block, Inc., No. 11-00948, 2011 U.S. Dist. LEXIS 147179 (D.D.C. Sept. 6, 2011) ....................... 3, 10

United States v. Libby, 461 F. Supp. 2d 3 (D.D.C. 2006) ........................................................................................ 7

United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995) .............................................................................................. 7


iii

United States v. Naegele, 471 F. Supp. 2d 152 (D.D.C. 2007) .................................................................................... 2

Whitehouse Hotel Ltd. P’ship v. Comm’r of Internal Revenue, 615 F.3d 321 (5th Cir. 2010) ............................................................................................... 3

RULES

Federal Rule of Evidence 702 ................................................................................................ passim


1

Defendant-Intervenor, the Texas Latino Redistricting Task Force, the Davis Defendant-

Intervenors, and the Mexican American Legislative Caucus (“MALC”) respectfully submit this

memorandum of law in opposition to the State of Texas’s motion to exclude the testimony of

Dr. Henry Flores, Dr. Allan Lichtman, and Dr. J. Morgan Kousser pursuant to Federal Rule of

Evidence 702.1

The Texas Latino Redistricting Task Force’s Expert Witness Dr. Henry Flores

INTRODUCTION

Dr. Henry Flores is a well-established and well-published political scientist who has

testified as an expert in over 40 separate cases over the last 25 years. Dr. Flores has published

and presented on racially polarized voting, Latino politics, Latino voting behavior, and he has

taught classes in Texas politics. He has also testified before a Joint Texas House Committee on

justice and redistricting and appeared and submitted testimony to six Texas state assembly

hearings on the racially polarized nature of elections in the state. Because this Court has held

that there are genuine issues of material fact regarding the State’s intent in enacting its

redistricting plans, Dr. Flores’s specialized knowledge in Texas history and politics, as well as

his ability to analyze the racialized nature of politics in Texas, is precisely what the Court needs

to help it parse the myriad of contested facts identified during the summary judgment hearing.

Mem. Op. at 43, Dkt. No. 115 (D.D.C. Dec. 22, 2011).

By misconstruing Dr. Flores’s specialized knowledge and mischaracterizing his

testimony, the State of Texas argues for the exclusion of the expert testimony of Dr. Flores on

1 The State of Texas’s Motion seeks to exclude the expert testimony of four expert witnesses introduced by Defendants and Defendant-Intervenors. While the issues are similar with respect to each of these expert witnesses – and the State’s arguments with respect to each expert witness fail for similar reasons – Defendant-Intervenors address the State’s contentions only as they apply to their expert witnesses, Dr. Henry Flores, Dr. Allan Lichtman, and Dr. J. Morgan Kousser.


2

the grounds that (i) Dr. Flores is not qualified to opine on issues of legislative intent and (ii) in

any event, the subject matter of Dr. Flores’s testimony – which the state characterizes as “state-

of-mind testimony” – is not appropriate subject matter for expert testimony. See Memorandum

of Points and Authorities at 1, Dkt. No. 131, (D.D.C. filed Jan. 4, 2012) [hereinafter “Texas

Mem.”]. Correctly viewed, Dr. Flores’s expert opinion is reliable, relevant, and admissible and

will aid this Court in determining whether the State’s redistricting plans were motivated by a

discriminatory purpose.

ARGUMENT

The Court should admit Dr. Flores’s expert testimony under Federal Rule of Evidence

702. The Supreme Court, in Daubert v. Merrell Dow Pharmaceutical, Inc., interpreted Rule 702

by charging trial judges with the responsibility of acting as gatekeepers against unreliable expert

testimony – a “flexible” task focused “solely on principle and methodology, not the conclusions

that they generate.” 509 U.S. 579, 594-95 (1993); see also id. at 597 (“Rules of Evidence –

especially Rule 702 – [] assign to the trial judge the task of ensuring that an expert’s testimony

both rests on a reliable foundation and is relevant to the task at hand.”); Ambrosini v.

Labarraque, 101 F.3d 129, 133 (D.C. Cir. 1996) (“The Daubert standard involves a two-prong

analysis that centers on evidentiary reliability and relevancy.”); United States v. Naegele, 471

F. Supp. 2d 152, 156 (D.D.C. 2007) (finding the same, citing Daubert and Ambrosini). Rule 702

was amended to incorporate Daubert’s interpretation and provide some general standards for

trial courts to use. Fed. R. Evid. 702 (“[An expert] may testify in the form of opinion or

otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue; (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 facts of the case”). At issue


3

in this case is whether the Texas Legislature acted with discriminatory intent in drafting the

enacted redistricting plans. Therefore, there is no question that an individual who is well versed

in the politics of race in Texas, as well as research methods, statistics and decision theory, would

be able to greatly assist the trier of fact to put the disputed facts in context.

Moreover, the law strongly favors the inclusion of expert testimony. Khairkhwa v.

Obama, 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (“In general, Rule 702 has been interpreted to favor

admissibility.”); see also Fed. R. Evid. 702 advisory committee’s notes (2000 Amendments) (“A

review of the caselaw after Daubert shows that the rejection of expert testimony is the exception

rather than the rule.”). In addition, where the Court serves as factfinder – as it will in this trial –

it has greater flexibility to admit expert testimony. See United States v. H&R Block, Inc.,

No. 11-00948, 2011 U.S. Dist. LEXIS 147179, at *6 (D.D.C. Sept. 6, 2011) (“In considering

Rule 702 motions, the court assumes only a ‘limited gate-keeping role’ . . . ‘[that] is significantly

diminished in bench trials . . . because, there being no jury, there is no risk of tainting the trial by

exposing a jury to unreliable evidence.’” (citing Ambrosini, 101 F.3d at 135-36; Whitehouse

Hotel Ltd. P’ship v. Comm’r of Internal Revenue, 615 F.3d 321, 330 (5th Cir. 2010)); see also

Edmonds v. United States, No. 05-540, 2009 WL 969938, at *1 (D.D.C. Apr. 7, 2009) (regarding

potentially confusing expert testimony: “Because this case is being tried to the Court and not to

a jury, the risk of confusion is low and the Court can give proper weight to the experts’

testimony.”). As Dr. Flores’s testimony is both reliable and relevant, and this Court, as the trier

of fact, will be able to give the testimony proper weight, it should be admitted under Federal

Rule of Evidence 702.

I. Dr. Flores’s Testimony Is Reliable

While Texas does not challenge the reliability of Dr. Flores, as a threshold matter the

Court should consider his testimony as reliable. Rule 702 “‘grants a district court the same broad


4

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

reliability determination.’” U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871,

895 (D.C. Cir. 2010) (upholding district court’s finding of the same) (emphasis in original)

(citation omitted). Generally, the Court determines whether the expert possesses “‘a reliable

basis in the knowledge and experience of [the relevant] discipline.’” Khairkhwa, 793

F. Supp. 2d at 10-11 (quoting Daubert, 509 U.S. at 592). A review of Dr. Flores’s Curriculum

Vita and Expert Report demonstrates that Dr. Flores is more than qualified to opine on the Texas

redistricting plans in a historical and political context. See Addendum A, Flores Curriculum

Vita; Addendum B, Flores Expert Report.

Dr. Flores has extensive experience and specialized knowledge with respect to issues of

discriminatory intent and with the political and racial environment of Texas. Dr. Flores is the

Dean of the Graduate School and a Full Professor of Political Science at St. Mary’s University in

San Antonio, Texas. Among other things, Dr. Flores teaches graduate classes in research

methods and statistics and decision theory; has taught undergraduate classes in American and

Texas politics, political parties, and Latino politics; has written and presented extensively on the

topic; and has provided expert testimony on the presence of racial discrimination in at least 40

litigations or arbitrations, including being qualified and testifying as an expert witness in at least

28 instances. See Addendum A at 2-5, 10-13;2 see also U.S. ex rel. Miller, 608 F.3d at 895

(affirming the finding of expert’s reliability based on his profession, the number of articles

expert had written, and the general acceptance of the principles embodied in his testimony);

Khairkhwa, 793 F. Supp. 2d at 11 (“Formal education ordinarily suffices, and a person who 2 See, e.g., Trial Transcript, Perez v. Perry, No. 11-CA-360-OLG-JES-XR (W.D. Tex. Sept. 7, 2011) (providing testimony as voting rights expert without objection from the State regarding his qualifications); Trial Transcript, Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. Dec. 16, 2003) (No. 2:03-CV-354 ) (same); Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp. 1196, 1204 (S.D. Tex. 1997) (“The court finds that [Dr.] Flores [is an] expert[] in the field of statistical analysis . . . [and] in applying statistical analysis to issues raised by election districts.”).


5

holds a graduate degree typically qualifies as an expert in his or her field.”). As such,

Dr. Flores’s testimony is reliable.

II. Dr. Flores’s Specialized Knowledge Is Relevant Because It Will Help The Court Determine Whether The Texas Redistricting Plans Were Motivated By Discriminatory Intent

Dr. Flores’s testimony is relevant because it is “connected to the facts,” is “helpful” to the

factfinder, and “address[es] a subject matter appropriate for expert testimony.” U.S. ex rel.

Miller, 608 F.3d at 894-95.

A. Dr. Flores’s Testimony Speaks Directly To The Facts At Issue On Whether The Texas Redistricting Plans Were Motivated By Discriminatory Intent And Will Be Helpful To The Court In Understanding These Facts

One of the core issues is this case is “whether the Plans were enacted with discriminatory

intent.” Mem. Op. at 42, Dkt. No. 115. The issue of discriminatory purpose is “an intensely

fact-driven inquiry [that] is typically difficult to resolve at the summary judgment stage.” Id.

Given the intensity of the inquiry and the many ways to interpret the extensive data surrounding

Texas redistricting, an expert opinion will help the Court by separating the factual wheat from

the chaff. That is, Dr. Flores’s expert testimony will assist the Court in assessing whether the

Texas Legislature acted with discriminatory racial intent in implementing the Congressional and

State House redistricting plans under scrutiny in this case. See Khairkhwa, 793 F. Supp. 2d at 11

(“The ‘assist’ requirement is satisfied where expert testimony advances the trier of fact’s

understanding to any degree.” (emphasis added) (citation and internal quotation marks omitted)).

Dr. Flores has extensive knowledge of the political context of Texas, the demography of

the state – both presently and historically – and the general climate of racial politics in the state.

See generally Addendum A. Using that expertise, Dr. Flores compared the State’s proposed

plans to the benchmark plans. Addendum B at 7. Dr. Flores then drew conclusions with respect


6

to the discriminatory intent of the redistricters based on his expertise in analyzing how district

boundaries are established, adherence to traditional redistricting criteria, relevant levels of Latino

political participation, his knowledge of the racial demographics of various areas of Texas, his

knowledge of historical motivations of redistricters in Texas, and his observations regarding the

legislative process and the manner in which the lines were drawn in the redistricting plans. See,

e.g, Addendum B at 9.

Contrary to the State’s assertion, Dr. Flores’s testimony does not merely “offer[]

‘knowledge within the province’ of the ordinary trier of fact” or simply “regurgitate factual

evidence and documentary records.” Texas Mem. at 3. Rather, as Dr. Flores explained in his

Expert Report, he based his opinions with respect to discriminatory intent on his understanding

of state demographics, state politics, and the history of racial politics within Texas.3

The redistricting history of Texas together with the current political context, demography of the state over four decades, and the general climate of racial politics in the state form the basis of my opinion. It is the overall context, the totality of all circumstances and data, which underlie my opinion in this case.

Addendum B at 5.4 Therefore, Dr. Flores’s testimony provides information that is not within the

“ken” of the ordinary trier of fact and should be admitted. See, e.g., S.E.C. v. Johnson, 525

3 The State attempts to discredit Dr. Flores’s qualifications to provide such testimony by arguing that he has “no specialized skills in discerning legislative intent.” Texas Mem. at 9. But such a narrow characterization of the skills required is improper and does not serve as the basis for excluding an expert witness. At most, such attacks would affect the weight to be given to Dr. Flores’s testimony, but would not disqualify Dr. Flores from testifying. See, e.g., AstraZeneca LP v. Tap Pharm. Prods. Inc., 444 F. Supp. 2d 278, 289 (D. Del. 2006) (rejecting defendants’ motion to exclude expert physician who was not a gastroenterologist and did not have the relevant subject matter expertise because such attacks “while potentially relevant to the weight his testimony should be given, do not disqualify him from testifying as an expert in clinical trials”).

4 Dr. Flores’s expert conclusions regarding the discriminatory intent surrounding the precinct swaps in CD 23 were recently revealed in deposition to be true, based in large part on deposition testimony stemming from a document that the State of Texas improperly withheld from disclosure in Perez v. Perry and disclosed only January 6, 2012 in this case. E-mail Chain between Eric Opiela, Gerardo Interiano, and Lisa Kaufman (Nov. 17, 2010, 10:19PM CST; Nov. 19, 2010, 06:17AM CST; Nov. 19, 2010, 6:39AM CST) (DEFPRIV000221). Dr. Flores had accurately described the process and the intention to discriminate that DEFPRIV000221 revealed. Far from proving the State’s point, this shows how essential the facts offered by Dr. Flores are to the trial record. Now that Dr. Flores has additional information, he can draw even firmer conclusions regarding the mappers’ intent.


7

F. Supp. 2d 70, 77 (D.D.C. 2007) (admitting expert testimony on accounting background and

principles because such information is relevant to securities cases and not within the “ken” of the

average juror); see also U.S. ex rel. Miller, 608 F.3d at 895 (affirming the admission of an expert

witness and stating: “These topics are precisely the sort of specialized, technical matter[s] which

a [factfinder] may benefit from a qualified expert’s tutelage.” (internal citation and quotation

marks omitted)).

B. Dr. Flores’s Testimony Constitutes Admissible Testimony On Discriminatory Purpose

In civil cases, courts commonly rely on expert testimony regarding discriminatory intent.

Invidious discrimination in these modern times rarely takes the form of a “smoking gun”

admission, and therefore courts rely heavily on experts. The State’s argument that Dr. Flores’s

report contains impermissible “state-of-mind” testimony is a red herring that must rely upon

inapposite cases and a mischaracterization of Dr. Flores’s testimony.

First, the prohibition on “state-of-mind” or expert testimony that goes to intention exists

to safeguard defendants’ constitutional rights in criminal prosecutions in which intention is an

element of the crime. Indeed, many of the cases relied upon by the State in support of its Motion

involve the admissibility of expert testimony in criminal prosecutions. See, e.g., United States v.

Libby, 461 F. Supp. 2d 3 (D.D.C. 2006) (criminal prosecution for obstruction of justice and false

statement); United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995) (criminal prosecution for

conspiracy to possess and distribute cocaine).

Significantly, the State fails to provide even one case in the voting rights arena or in the

area of discrimination. For instance, AstraZeneca LP v. Tap Pharm. Prods., Inc., 444

F. Supp. 2d 278 (D. Del. 2006) is a false advertising case brought under the Lanham Act. In

AstraZeneca, the court excluded testimony of an expert who, based on the results of market


8

research questionnaires and qualitative studies, opined as to the intentions of a pharmaceutical

company in marketing its product. Id. at 293-94. This is distinctly different from the present

case where Dr. Flores, based on his extensive knowledge of the history of politics and race in

Texas as well as the history and events leading up to the enactment of the Texas redistricting

plans, examined the redistricting approach of the State and opined as to evidence of

discriminatory intent on the part of the redistricters. In fact, Dr. Flores’s testimony speaks to the

exact factors identified in Arlington Heights v. Metro. Hous. Dev. Corp., and endorsed by this

Court, as “subjects of proper inquiry in determining whether racially discriminatory intent

exist[s].” 429 U.S. 252, 267-68 (1977) (identifying the relevant factors as the “historical

background of the decision,” the “specific sequence of events leading up to the challenged

decision,” whether there were “departures from the normal procedural sequence,” whether there

were “substantive departures . . . particularly if the factors usually considered important by the

decisionmaker strongly favor a decision contrary to the one reached,” and the “legislative and

administrative history” of the decision); Mem. Op. at 11-12, Dkt. No. 115 (endorsing the

framework established in Arlington Heights as the appropriate standard for determining whether

voting changes were motivated by discriminatory purpose). The State’s other cases are similarly

inapposite.5

In fact, courts routinely admit expert testimony of the type that Dr. Flores seeks to

provide in this case. For example, in Hunt v. Cromartie, 526 U.S. 541 (1999), the Supreme

Court acknowledged the value of expert testimony in deciding whether a legislative action had a

political explanation or could only be explained on impermissible racial grounds. In vacating a

5 See S.E.C. v. Johnson, 525 F. Supp. 2d 70 (D.D.C. 2007) (addressing admissibility of accounting expert in securities fraud claims); In re Trasylol Prod. Liab. Litig., 709 F. Supp. 2d 1323 (S.D. Fla. 2010) (addressing admissibility of medical expert in products liability case); In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004) (addressing admissibility of medical expert in products liability case).


9

summary judgment ruling that found that North Carolina’s twelfth congressional district violated

the Equal Protection rights of black voters, the Supreme Court pointed to the conflicting expert

reports on the possible motivation of the state legislature as the basis for its decision that a

material issue of fact remained in dispute. Id. at 549; see also Hunter v. Underwood, 471 U.S.

222 (1985) (affirming the appellate court’s ruling that the criminal disenfranchisement provision

of the Alabama Constitution “was motivated by a desire to discriminate against blacks on

account of race,” a finding based in part on “the testimony of two expert historians” regarding

legislative intent); Prejean v. Foster, 83 F. App’x 5, 11 (5th Cir. 2003) (noting reliance on expert

testimony which provided conclusions as to the various motivations behind drawing judicial

voting districts, and affirming decision below); Cao v. Fed. Election Comm’n, 688 F. Supp. 2d

498, 505 (E.D. La. 2010) (accepting expert’s “assertions about historical trends and political

motivations” behind the passage of and challenge to the expenditure provision of the Federal

Election Campaign Act, noting that the Court could “weigh them accordingly” even without

deposition testimony or an opposing-party expert report); Johnson v. DeSoto County Sch. Bd.,

995 F. Supp. 1440, 1454 (M.D. Fla. 1998) (relying on expert witness testimony that the creation

of Florida’s at-large nomination and election structure for school board members was racially

motivated to find state legislature’s discriminatory intent). This Court should likewise find that

Dr. Flores’s testimony is admissible to help explain the motivations behind the drafting of the

enacted redistricting maps.

Second, the Latino Task Force notes that there is no prejudice to the State in allowing

Dr. Flores’s Expert Report to be admitted. The State has had Dr. Flores’s report for several


10

months6 and will be able to cross-examine Dr. Flores at trial with respect to his qualifications

and the basis for his opinions, and also be able to put on its own experts to rebut Dr. Flores’s

testimony. See, e.g., S.E.C. v. Johnson, 525 F. Supp. 2d at 76 (“Defendants’ criticism . . . would

appear to serve better as fodder for cross-examination than as grounds for a ruling in limine.”).

Moreover, as referenced above, where, as here, the finder-of-fact is a panel of three judges – and

not a jury – there is little concern that the expert testimony will prejudice the State. See, e.g.,

H&R Block, Inc., 2011 U.S. Dist. LEXIS 147179, at *6 (“[T]he importance of the trial court’s

gatekeeper role is significantly diminished in bench trials . . . because, there being no jury, there

is no risk of tainting the trial by exposing a jury to unreliable evidence.”); Jacobsen v. Oliver,

No. 01-1810, 2007 U.S. Dist. LEXIS 97625, at *3, 2007 WL 5527513, at *1 (D.D.C. Nov. 2,

2007) (“[W]here the gatekeeper and the factfinder are one and the same, the Court may hear the

evidence and make its reliability determination during, rather than in advance of, the trial.”)

(internal citations and quotation marks omitted); In re Salem, 465 F.3d 767, 777 (7th Cir. 2006);

United States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005); 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.”). Thus,

Dr. Flores’s testimony is both reliable and relevant and should be admitted.

III. Dr. Flores’s Testimony Has Already Been Accepted As Reliable And Relevant, And The State Should Be Estopped From Objecting To Its Admission

The State’s motion to exclude should also be denied because another court, in the related

Section 2 proceeding, has already determined that Dr. Flores’s testimony is reliable and relevant

and has admitted his Expert Report. See Trial Tr. 166:15-22, Perez v. Perry, No. 5:11-cv-00360

6 Indeed, the State had a similar report in Perez v. Perry and never objected to Dr. Flores’s qualifications at that time.


11

(W.D. Tex. 2011). Indeed, the State has agreed to the admission into evidence of this matter the

trial record of Perez v. Perry – which includes the expert testimony of Dr. Flores.

This Court endorsed that approach during a December 12, 2011 telephonic conference:

[I]t seems to me that anything that you or anybody else wanted to introduce from the Section 2 trial that’s already been sworn, whatever, whatever, unless there were objections in the Section 2 trial that we would want to address a second time because it’s a different section or something, otherwise I would be inclined to take that lock, stock and barrel, have you point out to me what I really need to look at. . . . But anyway, the answer to your question is yes, I think that makes sense and, yes, I think we should rely heavily on the Section 2 trial record.

Tr. of Dec. 12, 2011 Conference Call with Judge Collyer at 15:4-14.

Prior to this eleventh hour motion to exclude, the State has never objected to the

admissibility of Dr. Flores’s testimony. That is, the State never objected to the admissibility of

Dr. Flores’s testimony during the Section 2 trial or during summary judgment before this Court.

It is only now, on the eve of trial, that the State sets forth its novel theory as to why expert

testimony is neither relevant nor admissible in this case. For the reasons presented above, as

well as the fact that the State has failed previously to raise any objection to Dr. Flores’s

testimony, the State’s motion to exclude should be denied.

The Davis Intervenors’ Expert Witness Dr. Allan J. Lichtman7

Dr. Allan Lichtman is a Professor of History at American University in Washington,

D.C., where he has been employed for 38 years. He was appointed distinguished professor in

2011, the university’s highest academic honor. Formerly, he served as Chair of the History

Department and Associate Dean of the College of Arts and Sciences at American University. He

received his B.A. in History from Brandeis University in 1967 and his Ph.D. in History from

Harvard University in 1973, with a specialty in the mathematical analysis of historical data. His 7 The Davis Intervenors incorporate by reference the legal standards and legal analyses set out on behalf of the Texas Latino Redistricting Task Force’s expert witness, Dr. Henry Flores, and write separately to address the law as it applies to Dr. Allan J. Lichtman.


12

areas of expertise include political history, electoral analysis, and historical and quantitative

methodology. Dr. Lichtman’s scholarship also includes the use of quantitative and qualitative

techniques to conduct contemporary and historical studies, published in such academic journals

as The Proceedings of the National Academy of Sciences, The American Historical Review,

Forecast, and The Journal of Social History. A copy of Dr. Lichtman’s curriculum vita is

attached. Addendum C.

Dr. Lichtman, like Dr. Flores, is a highly regarded expert in the field of voting rights,

having served as an expert witness or consultant in over 75 voting rights cases under the Voting

Rights Act or the United States Constitution. These include several cases in the state of Texas,

among them the 2003 congressional redistricting case that became the Supreme Court case,

League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006). The majority

opinion written by Justice Kennedy authoritatively cited his work. Dr. Lichtman has testified on

the issue of racially discriminatory intent in numerous cases, as well as on the issues of racially

polarized voting and quantitative methods. Most recently, in 2011, he served as an expert

witness for defendants in lawsuits challenging the statewide redistricting plans (Congress and

State House) in Illinois, where he testified on the issue of racially discriminatory intent, among

other issues.8

Both Dr. Lichtman and MALC’s expert Dr. J. Morgan Kousser testified as expert

witnesses in the major voting rights case of Garza v. County of Los Angeles, 756 F. Supp. 1298

(C.D. Cal. 1990), aff’d 918 F.2d 763 (9th Cir. 1990). In Garza, the Court received expert

testimony of historians on the issue of racially discriminatory intent with regard to prior

8 The State House litigation in Illinois was Radogno v. Illinois State Board of Elections, 11-CV-04884, 2011 WL 5025251 (N.D. Ill. Oct. 21, 2011), and the Congressional litigation was Commission for a Fair and Balanced Map v. Illinois State Board of Elections, 11-CV-5065, 2011 U.S. Dist. LEXIS 144302 (N.D. Ill. Dec. 15, 2011).


13

redistrictings. The district court’s finding of fact cited with approval the findings of Dr. Kousser

on the issue of racially discriminatory intent and Dr. Lichtman on the issue of racially polarized

voting patterns. See 756 F. Supp. 1309-11. With regard to the issue of intent, the trial court

observed that “[a]s illustrated by the testimony of J. Morgan Kousser, a professor of History at

the California Institute of Technology, if the Court examines the changes in District 3 in the

context of the demographic changes in the County as a whole, as well as the place where

Hispanics lived and moved to during that period of time, the pattern is persuasive evidence that

the lines were drawn and maintained with a racially discriminatory design.” Id. at 1309. The

district court in Garza continued: “Dr. Kousser, in particular, concluded that there was ample

evidence to be gleaned from the history of prior redistrictings to indicate that the Board kept the

Hispanic Core split in order to secure their positions against challengers who would appeal to

Hispanic voters.” Id.

The intent issues in Garza are remarkably similar to those present in this case. In Garza,

the County contended “that the district court found only that the supervisors in 1981 intended to

perpetuate their own incumbencies.” Garza, 918 F.2d at 771. The Ninth Circuit disagreed,

saying

This is a mistaken reading of what the district court found. Although the [district] court noted that “the Supervisors appear to have acted primarily on the political instinct of self-preservation,” the court also found that they chose fragmentation of the Hispanic voting population as the avenue by which to achieve this self-preservation. Finding No. 181. The supervisors intended to create the very discriminatory result that occurred. That intent was coupled with the intent to preserve incumbencies, but the discrimination need not be the sole goal in order to be unlawful. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). Accordingly, the findings of the district court are adequate to support its conclusion of intentional discrimination, and the detailed factual findings are more than amply supported by evidence in the record.

Id. Just as the courts in Garza received expert testimony on the issue of intent, so too should this

Court. After all, the expert testimony in Garza did not invade the Court’s province as


14

decisionmaker, it informed the Court’s fact-finding so that the judicial determination of intent

could be decided.

In its decision denying Texas’s motion for summary judgment, this three-judge Court

correctly cautioned that “[d]etermining whether invidious discriminatory purpose was a

motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of

intent as may be available.” Mem. Op. at 11, Dkt. No. 115 (quoting Arlington Heights, 429 U.S.

at 266); see also id. (quoting Hunt, 526 U.S. at 546, to “describe[e] such an inquiry as ‘an

inherently complex endeavor’”). We respectfully submit that this Court, like other courts tasked

with deciding the “inherently complex” issues of racially discriminatory intent, should receive

expert testimony from expert witnesses like Drs. Flores, Lichtman, and Kousser. Such expert

testimony presents collected facts which are analyzed by scholars with expertise and training and

will inform this Court as it undertakes the “sensitive inquiry” that Arlington Heights requires.

The Mexican American Legislative Caucus (MALC)’s Expert Witness Dr. J. Morgan Kousser9

The State’s Motion must also be denied as to Dr. J. Morgan Kousser, the sole witness of

the Mexican American Legislative Caucus, for the following reasons: (1) Dr. Kousser meets the

standards outlined in Daubert and its progeny and (2) the State’s legislative intent argument and

reframing of discriminatory purpose as “state of mind” evidence is inappropriate.

Moreover, it is important to note the concessions made by the State as to Dr. Kousser’s

expertise during Perez v. Perry, No. 5:11-cv-360 (W.D. Tex.). Dr. Kousser was retained as an

expert to testify in part as to “the intent of the legislature in the – in the way it adopted both the

Texas State House plan and the congressional plan, what is the intent, were there any – was there

9 The Mexican American Legislative Caucus incorporates by reference the legal standards and legal analysis set out on behalf of the Texas Latino Redistricting Task Force’s expert witness, Dr. Henry Flores, and writes separately to address the law as it applies to Dr. J. Morgan Kousser.


15

any discriminatory intent evidenced in the adoption of those plans and the form of those plans.”

Trial Tr. at 209, Perez v. Perry, No. 5:11-cv-360 (W.D. Tex.). In fact, that state acceded to Dr.

Kousser’s expertise in this area:

MR. GARZA: . . . [W]e would ask the court to designate and accept the testimony of Dr. Morgan Kousser as an expert on the impact of election systems including redistricting plans on minority voting opportunities including examining the question of racially polarized voting.

JUDGE GARCIA: Any objection?

MR. SCHENCK: No objection.

Id. at 208 (emphasis added).

More to the point in this case, the State, it its atypical Daubert motion, has not challenged

Dr. Kousser’s expertise, credentials, or methodology. There is no attack of Dr. Kousser’s use of

ecological inference, weighted ecological regression, or ecological regression. There is no

specific, negative inquiry into his particular analysis of the public record or discovery as being

unscientific, unreliable or prejudicial. The failure to reject or challenge Dr. Kousser’s

methodology and reasoning, as well as, the State's acceptance of Dr. Kousser as an expert in a

recent trial springing from the same factual record as this case and primarily focused on the

discriminatory intent of the State of Texas should nullify this motion. In essence, the State has

waived its objection as to Dr. Kousser’s expertise on this issue from these facts.

CONCLUSION

For the reasons stated above, Defendant-Intervenors, the Texas Latino Redistricting Task

Force, the Davis Defendant-Intervenors, and the Mexican American Legislative Caucus

(MALC), respectfully request that this Court deny the State of Texas’s Motion to Exclude

Testimony of Experts Dr. Henry Flores, Dr. Allan J. Lichtman, and Dr. J. Morgan Kousser.


16

Dated: January 13, 2012 Respectfully submitted, /s/ Nina Perales NINA PERALES (D.C. Bar No. TX0040) REBECCA COUTO MARISA BONO KAROLINA LYZNIK Mexican American Legal Defense &

Educational Fund 110 Broadway, Suite 300 San Antonio, TX 78205 Telephone No.: (210) 224-5476 Facsimile No.: (210) 224-5382 E-mail address: [email protected] KAREN M. SOARES (D.C. Bar No. 503295) JORGE M. CASTILLO Fried, Frank, Harris, Shriver & Jacobson LLP 801 17th Street, NW Washington, DC 20006 Attorneys for Defendant-Intervenor, Texas

Latino Redistricting Task Force /s/ J. Gerald Hebert J. GERALD HEBERT (D.C. Bar No. 447676) 191 Somerville Street, #405 Alexandria, VA 22304 Telephone No.: 703-628-4673 PAUL M. SMITH MICHAEL DESANCTIS JESSICA RING AMUNSON CAROLINE LOPEZ Jenner & Block LLP 1099 New York Ave., N.W. Washington, DC 20001 Telephone No.: (202) 639-6000 Facsimile No.: (202) 639-6066 Attorneys for Davis Defendant-Intervenors

/s/ Jose Garza JOSE GARZA (pro hac vice) Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 98209 Telephone No.: (210) 392-2856 E-mail address: [email protected] /s/ Mark A. Posner JON GREENBAUM (D.C. Bar No. 489887) MARK A. POSNER (D.C. Bar No. 457833) Lawyer’s Committee for Civil Rights Under

Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 Telephone No.: (202) 662-8389 Facsimile No.: (202) 628-2858 E-mail address:

[email protected] JOAQUIN G. AVILA (Texas State Bar No.

01456150) P.O. Box 33687 Seattle, WA 98133 Telephone No.: (206) 724-3731 Facsimile No.: (206) 398-4261 E-mail address: [email protected] Attorneys for the Mexican American

Legislative Caucus (MALC)


EXHIBIT 3



STATE OF TEXAS,

Plaintiff,

v.

UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States,

Defendants,

WENDY DAVIS, et al.,

Defendant-Intervenors.

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

Case No. 1:11-CV-01303 (RMC-TBG-BAH) [Three-Judge Panel]

STATE OF TEXAS’ MOTION TO EXCLUDE TESTIMONY OF DEFE NDANTS’ EXPERTS DR. THEODORE ARRINGTON, DR. ALLAN LICHTMAN,

DR. HENRY FLORES, AND PROF. J. MORGAN KOUSSER

For the reasons stated in the attached Memorandum of Points and Authorities, Texas

moves to exclude the testimony of Dr. Theodore Arrington, Dr. Allan Lichtman, Dr. Henry

Flores, and Prof. J. Morgan Kousser pursuant to Federal Rule of Evidence 702. Pursuant to

Local Rule 7(m), Texas has conferred with counsel for Defendants and Defendant-Intervenors

regarding this motion, and they have informed Texas they are opposed to relief requested.

Dated: January 4, 2012

Respectfully submitted,

/s/ Adam K. Mortara ADAM K. MORTARA

JOHN M. HUGHES ASHLEY C. KELLER Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL 60654 Tel: (312) 494-4400 Fax: (312) 494-4440



STATE OF TEXAS, Plaintiff, v. UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States, Defendants, WENDY DAVIS, et al., Defendant-Intervenors.

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

Case No. 1:11-CV-01303 (RMC-TBG-BAH) [Three-Judge Panel]

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TEXAS’ MOTION TO EXCLUDE TESTIMONY OF DEFENDANTS’ EXPERTS

DR. THEODORE ARRINGTON, DR. ALLAN LICHTMAN, DR. HENRY FLORES, AND PROF. J. MORGAN KOUSSER

Admissible expert testimony offers “specialized knowledge” to “help the trier of fact to

understand” complex evidence. Fed. R. Evid. 702(a). For two related reasons, Defendants’

proposed testimony of Dr. Theodore Arrington, Dr. Allan Lichtman, Dr. Henry Flores, and Prof.

J. Morgan Kousser is not admissible under this standard.

First, Defendants retained these experts to determine whether Texas enacted redistricting

plans with discriminatory intent. But that question is not for an expert witness. Determining

intent is the core province of the fact finder.

Second, because they are not state-of-mind experts, Arrington, Lichtman, Flores, and

Kousser offer little more than a summary of Defendants’ evidence. To support their findings on

the Texas legislature’s intent, the experts’ reports draw heavily on their inferences of intent from


2

simple facts, newspaper articles, one-sided portions of the legislative record, and self-serving

letter correspondence. This Court is more than capable of reviewing this self-explanatory

evidence without “expert” commentary. And in this case the proposed expert testimony speaks

to legislative intent, a subject on which courts are the experts, not professors. Expert testimony

exists to explain complicated facts, not to narrate easy-to-understand documents.

With only two weeks to try a fact-intensive case, it is important for this Court to enforce

the Federal Rules of Evidence. Unwarranted expert testimony will consume scarce judicial

resources while impairing the parties’ ability to present relevant evidentiary submissions. While

this is a bench trial, the Defendants should not be able to waste the Court’s and Texas’ time with

this inadmissible evidence. The Court should grant Texas’ motion.

ARGUMENT

Expert testimony is admissible if it is based on “scientific, technical, or other specialized

knowledge” that will “help the trier of fact.” Fed. R. Evid. 702(a). Rule 702 charges trial judges

“with the responsibility of acting as ‘gatekeepers’” to exclude “unreliable or irrelevant expert

testimony.” United States v. Naegele, 471 F. Supp. 2d 152, 156 (D.D.C. 2007) (citing Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)). Under the two-pronged Daubert test, “a court

determining the admissibility of purported expert testimony must first determine ‘[1] whether the

reasoning or methodology underlying the testimony is scientifically valid and [2] whether that

reasoning or methodology properly can be applied to the facts in issue.’” United States v. Libby,

461 F. Supp. 2d 3, 6 (D.D.C. 2006) (quoting Daubert, 509 U.S. at 592-93). The burden rests

with the “proponent of the testimony to establish its admissibility.” Id.; see also Meister v. Med.

Eng’g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001).


3

The first Daubert prong “establishes a standard of evidentiary reliability” that tests the

validity of the expert’s procedures and methods. Daubert, 509 U.S. at 590. The second Daubert

prong speaks “primarily to relevance,” id. at 591, and ensures that the proposed testimony “will

aid the jury in resolving a factual dispute,” Naegele, 471 F. Supp. 2d at 157. Expert testimony is

irrelevant if it offers “knowledge within the province” of the ordinary trier of fact. Libby, 461 F.

Supp. 2d at 7; see also United States v. Mitchell, 49 F.3d 769, 780 (D.C. Cir. 1995) (Expert

testimony is unnecessary where it “involves matters of general knowledge” and falls “squarely

within the traditional province of the jury.”) Where the trier of fact is “just as capable” of

reviewing and analyzing the evidence, expert testimony is unhelpful and thus prohibited.

Naegele, 471 F. Supp. 2d at 159.

In keeping with these principles, “[e]xpert witnesses are not permitted to testify”

concerning a party’s “intent, motive, or state of mind, or evidence by which such state of mind

may be inferred.” AstraZeneca LP v. Tap Pharm. Prods., Inc., 444 F. Supp. 2d 278, 293 (D. Del.

2006) (citation and internal quotation marks omitted). See also Libby, 461 F. Supp. 2d at 7

(“Expert testimony will [] be precluded if [it] would usurp the jury’s role as the final arbiter of

the facts, such as testimony on witness credibility and state of mind.”); S.E.C. v. Johnson, 525 F.

Supp. 2d 70, 78 (D.D.C. 2007) (same); Halcomb v. Washington Metro. Area Transit Auth., 526

F. Supp. 2d 24, 30 (D.D.C. 2007) (same). Such testimony has “no basis in any relevant body of

knowledge or expertise” and describes “lay matters which a [fact finder] is capable of

understanding and deciding without the expert’s help.” In re Rezulin Prods. Liab. Litig., 309 F.

Supp. 2d 531, 546 (S.D.N.Y. 2004) (citations and internal quotation marks omitted).

The prohibition on state-of-mind testimony applies also where the expert “regurgitate[s]

factual evidence and documentary records.” In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d


4

1323, 1332 n.11 (S.D. Fla. 2010) (internal quotation marks omitted). The trier of fact is “just as

capable” as an expert of drawing reasonable inferences from admissible documents. Naegele,

471 F. Supp. 2d at 159. Indeed, that is the trier of fact’s quintessential function. Johnson, 525 F.

Supp. 2d at 78. If an expert’s basis for an opinion comes from “evidence such as letters,

admissions . . . or other admissible evidence, that is what the jury should hear.” In re Diet Drugs

Prods. Liab. Litig., No. MDL 1203, 2000 WL 876900, at *9 (E.D. Pa. 2000). An expert’s

recitation of documentary evidence is neither helpful nor admissible.

I. Dr. Arrington Should Be Precluded From Testifying Concerning Texas’ Intent

Under Rule 702, Dr. Arrington’s proposed testimony is inadmissible. Dr. Arrington is a

political scientist with specialized expertise in districting and voting processes. (Ex. A,

Arrington Decl. ¶ 1.) He has never published scholarly works on motive, is “not aware that there

are any political scientists who publish things on intent of the legislature,” and does not believe

there are any recognized experts in his field who study legislative intent. (Ex. B, 10/25/2011

Arrington Dep. 11:18-22; 13:14-16.) Despite the admitted limitations of Dr. Arrington’s

expertise, the United States asked him “to determine whether the proposed redistricting plan for

Congressional Districts (C185) and Texas House of Representatives (H283) were intentionally

drawn to minimize, cancel out, or reduce the ability of Hispanic, Black, Asian, and other

minority voters in Texas to elect representatives of their choice.” (Ex. A, Arrington Decl. ¶ 2

(footnotes omitted).)

In light of the United States’ instructions, it is no surprise that Dr. Arrington’s report is

replete with his “musings as to [the Texas legislature’s] motivations.” In re Rezulin, 309 F.

Supp. 2d at 546 (citation and internal quotation marks omitted). To offer but a handful of

illustrations, Dr. Arrington’s report states:


5

• “It is my opinion that both proposed plans were designed and enacted with the intent to present the appearance of non-retrogression by using an unreliable and misleading bright-line standard to of [sic] VAP (voting age population) or CVAP (citizen voting age population) to determine districts in which minority voters are able to elect representatives of their choice.” (Ex. A, Arrington Decl. ¶ 3.)

• The decision to remove a House district from Harris County “flies directly against any claim by the State to be acting to protect incumbents and prevent ‘pairing.’” (Id. ¶ 41.)

• The State chose to “pair two minority candidates of choice” in Harris County. “This certainly shows their [sic] discriminatory intent,” and “was not justified by any reasonable or objective goal.” (Id. ¶¶ 43-44 (emphasis added).)

• Texas’ proposed redistricting plan “is not justified on rational grounds as required by the Arlington Heights factors.” (Id. ¶ 107.)

• The “proposed plan was drawn by Republicans, successfully defended by Republicans, and reflects their intent throughout. They compromised to maintain minority election districts only to the extent that they believed was minimally necessary to create an appearance of non-retrogression.” (Id. ¶ 129 (emphasis added).)

• “The intent of the Republicans, who completely controlled the redistricting process, was to limit the creation of minority election districts as much as possible while still making a case for non-retrogression by using unreliable bright line CVAP, VAP, or %SSVR criteria.” (Id. ¶ 134 (emphasis added).)

Dr. Arrington confirmed in his deposition that the purpose of his entire report is to determine the

issue of intent:

Q. And what was your purpose in preparing that declaration? A. To determine whether the State of Texas intended to discriminate when it drew the Congressional and House plans.

(Ex. B, Arrington Dep. 9:1-5.)

Q. Did they tell you they want to know -- they want you to make a declaration with respect to whether … the State of Texas intentionally discriminated? A. Actually, what they asked me to do was to determine whether that was true.

(Id. 10:12-18.)

To support his inadmissible opinions on legislative intent, Dr. Arrington also offers

inadmissible narrative (or verbatim recitals) of documentary evidence. To offer a handful of

examples, Dr. Arrington’s report observes that:


6

• “Minority legislators drew attention to the effects of the misuse of the count [sic] line rule. Representative Martinez Fischer suggested on the floor of the House that since the proposed plan makes about 17 county ‘cuts’ why couldn’t one of those be in the Coastal Bend that would have allowed the creation of two Hispanic election districts in Nueces and surrounding counties?” (Ex. A, Arrington Decl. ¶ 34 (quoting House Journal, April 27, 2011, S122).)

• Though Texas eliminated a district in Harris county, “[t]he Chair of the Redistricting Committee, Representative Solomons, admitted that the State had discretion in this case to round up.” (Id. ¶ 40 (citing House Journal, April 27, 2011, S124-5).)

• An alternative to Texas’ proposed redistricting plan “was defeated by nearly a straight-line party vote” by the Texas legislature. (Id. ¶ 73.)

• “Minority representatives were treated differently than those who were candidates of choice of Anglo voters. For example note the discussion of the situation in Hidalgo County by Representative V. Gonzales; [proceeding to block quote an extensive portion of Rep. Gonzales’ remarks on the floor of the Texas House].” (Id. ¶ 125.)

• To demonstrate discriminatory purpose, “here is an email from Eric Opiela, Attorney for the Texas Republican Congressional Delegation to Congressman Lamar Smith. Opiela was clearly a central figure in the Congressional redistricting who handled the interrelationship between Congressmen and the Redistricting Committees. [Proceeding to reproduce the Opiela email verbatim].” (Id. ¶ 135.)

• “The process of drawing districts before the submission of the Chairman’s plan (C125) is, therefore, critical” to determine legislative intent. “From the series of emails among participants it is possible to characterize this process. [Proceeding to reproduce eight emails verbatim].” (Id. ¶¶ 181-91.)

Dr. Arrington’s proposed state-of-mind testimony has “no basis in any relevant body of

knowledge or expertise” and constitutes just the sort of evidence that a jury—and certainly this

Court—is “capable of understanding and deciding without [an] expert’s help.” In re Rezulin

Prods., 309 F. Supp. 2d at 546 (citation and internal quotation marks omitted). The Court

requires no expert assistance to sift through verbatim accounts of emails and the Texas

legislative record, and is more than capable of ascertaining on its own whether Texas crafted the

proposed plans with an impermissible purpose. Naegele, 471 F. Supp. 2d at 159. Dr.

Arrington’s testimony is inadmissible under Rule 702.


7

II. Dr. Lichtman Should Be Precluded From Testifying Concerning Texas’ Intent

Dr. Lichtman’s proposed testimony is also inadmissible. Dr. Lichtman is a historian with

specialized knowledge in electoral analysis, political history, and historical and quantitative

methodology. (Ex. C, Lichtman Report 4.) His credentials do “not qualify him with the

expertise to plumb the [Texas legislature’s] mind[]” and thus to “offer conclusions as to the

existence” of discriminatory purpose. Bone Care Int’l, LLC v. Pentech Pharm., Inc., No. 08-CV-

1083, 2010 WL 1655455, at *9 (N.D. Ill. 2010). Nevertheless, the Davis Intervenors retained

Dr. Lichtman “to evaluate and report on whether the state’s proposed senate plan was enacted

with a racially discriminatory purpose.” (Ex. C, Lichtman Report 2.)

Obliging his clients’ request, the bulk of Dr. Lichtman’s report conveys his conclusions

“regarding whether the State of Texas’ adopted State Senate plan was enacted with a racially

discriminatory intent.” (Id. 8.) Dr. Lichtman concludes that:

• The redistricting process that produced the state senate map “clearly exhibits the indicia of a racially discriminatory intent aimed at African-Americans and Latinos.” (Id.)

• Because a minority state senator accused Senate leaders of intentionally eliminating the ability of minority voters to select their candidate of choice, there is “powerful evidence that the state senate plan was racially discriminatory in both its purpose and effect.” (Id. 12.)

• Texas’ departures from prior practices “are additional indicia of racially discriminatory purpose.” (Id. 13.)

• The “set of circumstances documented here is very close to those of the redistricting in Los Angeles County in the 1980s, which the federal District and Circuit Courts found intentionally discriminated against minorities.” (Id. 14.)

To reach his inadmissible conclusions on Texas’ intent, Dr. Lichtman summarizes or

quotes admissible and inadmissible documentary evidence. For instance:

• To show that the Texas legislature disregarded traditional districting principles, Dr. Lichtman points to the deposition of Doug Davis and quotes from an article in the Dallas Morning News. (Id. 9.)


8

• As supposed proof that the legislative decision makers “knew precisely what they were doing,” Dr. Lichtman adverts to a bevy of citizen letters—whether the letters were ever read, Dr. Lichtman does not say— expressing concern about splitting up minority communities. (Id.)

• To demonstrate the “near unanimous opposition of minority legislators” to the state’s plan, Dr. Lichtman block quotes “the sworn Declaration of African American State Senator Rodney Ellis” and refers to “sworn Declarations of Latina State Senator Judith Zaffirini and African American State Senator Royce West.” (Id. 10-11 (footnote omitted).)

• As evidence that minority legislators were excluded from the redistricting process, Dr. Lichtman block quotes both the Ellis Declaration and a letter from five minority Senators to the Chair of the Senate Redistricting Committee. (Id. 11-12.)

• To show that the “Texas legislature enacted and the governor signed the State Senate redistricting plan . . . amid a high degree of racial animosity during the process,” Dr. Lichtman refers to a news article in the Amarillo Globe-News. (Id. 14.)

Dr. Lichtman’s proposed testimony offers nothing more than his lay opinion based on an

interpretation of evidence the Court needs no help with. This Court does not require the expert

assistance of a PhD historian to analyze a state senator’s declaration, to review “Dear State

Senator” letters, or to read the Dallas Morning News. Dr. Lichtman’s unscientific conclusions

concerning Texas’ intent are inadmissible under Rule 702.

III. Dr. Flores Should Be Precluded From Testifying Concerning Texas’ Intent

The same analysis controls Dr. Flores’ proposed testimony. Dr. Flores is a political

scientist with specializations in American politics, political theory, and multivariate statistical

analysis. (Ex. D, Flores Report 1.) Like Dr. Arrington and Dr. Lichtman, Dr. Flores has no

specialized skills in discerning legislative intent. But the Mexican American Legal Defense and

Educational Fund nevertheless retained Dr. Flores “to determine whether there was

discriminatory racial intent in the congressional and Texas state house redistricting plans enacted

in 2011.” (Id. 3.)


9

Consistent with his assignment, Dr. Flores’ report provides a number of “Conclusions

and Observations” concerning Texas’ legislative intent. (Id. 8.) For example, Dr. Flores’ report

states:

• “In the drawing of Congressional Districts 23 and 27 and Texas House Districts 33, 78 and 117 I have concluded that indeed race was the predominant factor guiding the redistricters. They intentionally manipulated the Hispanic population numbers, provided for redistricting, to insure the re-electability of the incumbents to the exclusion of the representational interest of Latinos thereby preventing this protected population from having the opportunity to elect a candidate of their choice.” (Id. 8-9.)

• The distribution of the Latino population in selected districts “support my opinion that the redistricters were consciously manipulating heavily Latino precincts and neighborhoods.” (Id. 9-10.)

• Texas deprived Latinos of the opportunity to elect their candidate of choice in Congressional District 23 by “laboriously and intentionally manipulat[ing] the district’s boundaries to add and subtract more than 612,191 individuals.” (Id. 12.)

• The population data demonstrates that “CD23 in C185 is structured to insure lower Hispanic turnout rates than in the benchmark CD23. These latter observations simply lend further substantiation to my conclusion that the method utilized to redraw CD23 in C185 was designed intentionally to reduce Latino voter turnout.” (Id. 13-14.)

Dr. Flores’ inadmissible testimony concerning Texas’ state of mind is based on his

inadmissible summary of other sources. For instance:

• To show that Texas drew House District 78 with discriminatory intent, Dr. Flores relies on a “Google Earth Satellite Photo” and “the affidavit of Ms. Carmen Rodriguez, a resident and native of El Paso, Texas.” (Id. 9.)

• To conclude that Texas “carefully removed high performing Latino districts” in the proposed plan, Dr. Flores parrots the conclusions of “Dr. Lisa Handley’s election performance research.” (Id. 10.)

• To demonstrate that Congressman Conseco does not serve “the expressed policy interests and wishes of his Latino constituents,” Dr. Flores reproduces the results of a “Texas statewide election-eve 2010 poll” and compares the issues Hispanics identified as important to legislation Congressman Conseco sponsored during the 112th Congress. (Id. 7.)

Dr. Flores’ proposed state-of-mind testimony is inadmissible. This Court is “just as

capable” as Dr. Flores of reading a citizen’s affidavit, of analyzing Dr. Handley’s expert report,


10

or directing a web browser to www.google.com/earth. Naegele, 471 F. Supp. 2d at 159.

Wasting precious trial time hearing Dr. Flores’ testimony will not prove helpful.

IV. Prof. Kousser Should Be Precluded From Testifying Concerning Texas’ Intent

Prof. Kousser’s testimony is also inadmissible. Prof. Kousser is a history and social

science professor who focuses on minority voting rights, educational discrimination, political

history and quantitative methods. (Ex. E, Kousser Decl. ¶ 2.) Like the other experts, Prof.

Kousser has no expertise in perceiving legislative intent. But the Mexican American Legislative

Caucus retained Prof. Kousser to determine whether Texas had “an intent to discriminate against

minorities during redistricting.” (Id. ¶ 1.)

Similar to defendants’ other experts, Prof. Kousser’s report offers a number of

conclusions on Texas’ legislative intent. For instance, the report states:

• Population disparities in Texas’ proposed House districts “suggests bias against Latinos.” (Id. ¶ 42.)

• The over and underpopulation of districts “demonstrates the partisan, as well as ethnic bias in” the redistricting process. (Id. ¶ 43.)

• Texas’ proposed plan is unsupported by “rational legislative or administrative policy considerations” and “indicate both bias against minorities and racial gerrymandering.” (Id. ¶ 66.)

Prof. Kousser summarizes other sources to support his inadmissible testimony concerning

Texas’ state of mind. For instance:

• To show that the legislature purposefully overpopulated minority districts, Prof. Kousser quotes a colloquy on the Texas House floor between Representatives Solomons and Walle. (Id. ¶ 43 (quoting House Journal, April 27, 2011, S235).)

• To prove that the proposed plan was “constructed almost entirely by the Republican majority,” Prof. Kousser describes the political composition of the redistricting committee and cites Rep. Solomons’ supposed admission that “neither he nor his staff met with the Black Caucus or any other groups that represented African-Americans in drawing up the Committee’s plan.” (Id. ¶ 44, n.30 (citing House Journal, April 27, 2011, S114).)


11

• As a further indication “of discriminatory purposes,” Prof. Kousser contends that Republican legislators applied the county line rule inconsistently. As supposed proof, Prof. Kousser block quotes a two page exchange between Representatives Solomons and Martinez Fischer on the House floor. (Id. ¶ 56 (quoting House Journal, April 27, 2011, S121-22).)

Prof. Kousser’s proposed state-of-mind testimony is inadmissible. This Court is “just as

capable” as Prof. Kousser of analyzing the legislative record. Naegele, 471 F. Supp. 2d at 159.

Indeed, mining the legislative record to unearth indicia of legislative intent is a judicial function.

Prof. Kousser brings nothing helpful to the Court’s inquiry.

CONCLUSION

The Defendants’ intent to offer inadmissible expert testimony will waste scarce trial time.

And it is no answer that the Defendants have a time limit and this is a bench trial so the Court

can sort the inadmissible from the admissible. Texas must expend its own time crossing the

Defendants’ experts on inadmissible subject matter if the Court permits Defendants to offer their

opinions.

The Court should exclude the testimony of Dr. Arrington, Dr. Lichtman, Dr. Flores, and

Prof. Kousser under Rule 702.

Dated: January 4, 2012

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General BILL COBB Deputy Attorney General for Civil Litigation DAVID C. MATTAX Director of Defense Litigation


12

/s/ David J. Schenck DAVID J. SCHENCK Deputy Attorney General for Legal Counsel J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General BRUCE D. COHEN Special Assistant to the Attorney General Office of the Attorney General P.O. Box 12548, Capitol Station 209 W. 14th Street Austin, Texas 78701 (512) 936-1342 / (512) 936-0545 (fax) ADAM K. MORTARA (Pro Hac Vice Motion Pending) JOHN M. HUGHES (Pro Hac Vice Motion Pending) ASHLEY C. KELLER (Pro Hac Vice Motion Pending) Bartlit Beck Herman Palenchar & Scott LLP 54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 (312) 494-4400 / (312) 494-4440 (fax)

Attorneys for Plaintiff State of Texas


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been sent via the Court’s electronic notification system to the following parties on January 4, 2012:

Daniel J. Freeman U.S. DEPARTMENT OF JUSTICE Voting Section, Civil Rights Division 950 Pennsylvania Avenue, NW NWB Room 7203 Washington, DC 20530 (202) 305-4355 Email: [email protected] J. Gerald Hebert 191 Somerville Street, #405 Alexandria, VA 22304 (703) 628-4673 Fax: (202) 736-2222 Email: [email protected] Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Caroline D. Lopez JENNER & BLOCK LLP 1099 New York Ave., N.W. Washington, D.C. 20001 Mark A. Posner LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 307-1388 Email: [email protected] John M. Devaney Marc Erik Elias PERKINS COIE 700 13th Street, NW Suite 600 Washington, DC 20005-3960 (202) 628-6600 Fax: (202) 654-9124 Email: [email protected] Email: [email protected]

Nina Perales MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway Suite 300 San Antonio, TX 78205 (210) 224-5476 Fax: 210-224-5382 Email: [email protected] Robert Stephen Notzon 1507 Nueces Street Austin, TX 78701-1501 (512) 474-7563 Fax: (512) 474-9489 Email: [email protected] Ray Velarde 1216 Montana Avenue El Paso, TX 79902 (915) 532-6003 Email: [email protected] Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West Suite 530 Houston, TX 77068 (281) 580-6310 Email: [email protected] /s/ David J. Schenck DAVID J. SCHENCK Attorney for the State of Texas


EXHIBIT 4


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, : :

Plaintiff, : vs. : Docket No. CA 11-1303

: UNITED STATES OF AMERICA and : Washington, D.C. ERIC H. HOLDER, in his official : Tuesday, January 17, 2012 capacity as Attorney General of : 8:00 a.m. the United States : Day One

: Defendants, and :

: Wendy Davis, et al., : : Intervenor-Defendants : ---------------------------------x

A.M. SESSION TRANSCRIPT OF BENCH TRIAL

BEFORE THE HONORABLE THOMAS B. GRIFFITH UNITED STATES CIRCUIT JUDGE and

HONORABLES ROSEMARY M. COLLYER and BERYL A. HOWELL UNITED STATES DISTRICT JUDGES

APPEARANCES:

For the Plaintiff: ADAM K. MORTARA, Esquire REED CLAY, Esquire

JOHN M. HUGHES, Esquire ASHLEY C. KELLER, Esquire Bartlit Beck Herman Palenchar & Scott LLP

STACEY NAPIER, Esquire ANGELA V. COLMENERO, Esquire

MATTHEW H. FREDERICK, Esquire Office of Attorney General of Texas P.O. Box 12548

Austin, TX 78711-2548


Appearances continued:

For the Defendants: DANIEL FREEMAN, Esquire TIMOTHY F. MELLETT, Esquire BRYAN L. SELLS, Esquire U.S. Department of Justice 950 Pennsylvania Avenue, NW

Washington, DC 20530 For Intervenor JOSEPH GERALD HEBERT, Esquire Defendants: J. Gerald Hebert, P.C.

191 Somervelle Street, Suite 405

Alexandria, VA 22304 JOHN K. TANNER, ESQUIRE 3743 Military Road, NW Washington, DC 20015

NINA PERALES, Esquire REBECCA M. COUTO, Esquire Mexican American Legal Defense & Educational Fund, Inc. 110 Broadway Suite 300 San Antonio, TX 78205 JOSE GARZA, Esquire

Law Office of Jose Garza 7414 Robin Rest Drive San Antonio, TX 98209

Court Reporter: CRYSTAL M. PILGRIM, RPR Official Court Reporter United States District Court District of Columbia 333 Constitution Avenue, NW Washington, DC 20001

Proceedings recorded by machine shorthand, transcript produced by computer-aided transcription.


3

1 JUDGE GRIFFITH: Good morning.

2 Good morning, welcome, glad that we're all finally here

3 together and that I can be part of this.

4 I'm Judge Griffith. By statute I'm the Presiding Judge

5 of the Three Judge District Court. I am exercising my

6 authority as the Presiding Judge to delegate the running of

7 this event to Judge Collyer and we'll turn the time over to

8 her. Glad to do so.

9 JUDGE COLLYER: Thank you, sir.

10 JUDGE GRIFFITH: We're going to switch seats because

11 the microphone here is better for her voice.

12 JUDGE COLLYER: Thank you, sir.

13 I have half, I have half a paralyzed larynx, and so

14 therefore, I don't speak as loudly or as well as I use to. I

15 use to scare people, but I don't do it as well anymore.

16 The only thing, we started at eight and the clock starts

17 at 8:15 in case there are last minute things.

18 The only thing that I know of is the Court's ruling;

19 that is, the three of us on the motion to exclude the defense

20 expert witnesses.

21 Is there anything else that needs to be raised before we

22 start the evidence?

23 MR. MORTARA: From the State of Texas, no, Your

24 Honor.

25 JUDGE COLLYER: All right.


4

1 MR. MELLETT: Your Honor, Tim Mellett for the United

2 States. There are a couple of points that I'd wish to make.

3 The United States and Defendant Intervenors will be

4 moving in exhibits in batches as opposed to individually.

5 We're going to make sure that we confer with the State so as to

6 economize on time.

7 The other thing that we wanted to make the Court aware

8 of is because of the tight time strictures that we have here,

9 you know, the eleven and a half hours with witnesses for time,

10 what we are planning on doing is that we are going to be

11 letting people know via time cards and stuff. I wanted to let

12 the Court know that what that means occasionally is we will be

13 handing somebody a card up here, putting it up here. I just

14 wanted to let the Court to know and we will try to be as

15 inobtrusive as possible.

16 JUDGE COLLYER: That's fine.

17 I will say that I will be keeping track of the time and

18 there are no appeals.

19 MR. MELLETT: Thank you, Your Honor.

20 JUDGE COLLYER: You're welcome.

21 Anything else?

22 MR. MORTARA: Your Honor --

23 JUDGE COLLYER: Could you come forward and introduce

24 yourself?

25 MR. MORTARA: Your Honor, Adam Mortara for the State


5

1 of Texas.

2 We have a few hands ups, folders with some slip sheets

3 for Your Honors that are some helpful laments that will

4 illustrate some of the key points in the case. We'll give them

5 to the other side. They are just listings of the incumbents in

6 various districts. It can get quite confusing every time a

7 member gets mentioned.

8 We saw in the Section 2 trial one of the judges would

9 ask what party is that member in. So we created some lament

10 guides.

11 May we hand those up?

12 JUDGE COLLYER: Yes, thank you.

13 All right, let me tell you what the Court's ruling is on

14 the motion to exclude expert witnesses for the defense.

15 I'm, I don't usually do this, but since there are three

16 of us who are agreeing, I'm going to actually read what we

17 three have agreed to. Isn't that handy.

18 Texas asked the Court to exclude the testimony of

19 defendants' experts Dr. Theodore Arrington, Dr. Alan Lichtman,

20 Dr. Henry Flores and Professor J. Morgan Kousser for two

21 reasons.

22 First, Texas argues that it is not proper for an expert

23 witness to present an opinion on whether Texas enacted

24 redistricting plans with discriminatory intent because this is

25 an issue for the fact finder to determine.


6

1 And second, Texas contends these individuals are not

2 state of mind experts and offer little more than a summary of

3 defendants' evidence.

4 The motion will be granted only in part because it

5 reflects a stingy reading of the Federal Rules of Evidence and

6 the testimony of these experts intend to offer.

7 Federal Rule of Evidence 702 governs the admissibility

8 of expert testimony. An expert is allowed to offer his opinion

9 if he is qualified by an, as an expert by knowledge, skill,

10 experience, training or education under Rule 702, and if his

11 testimony is relevant and reliable pursuant to Kumho Tire

12 versus Carmichael 526 U.S. 137.

13 The presumption under the federal rules is that expert

14 testimony is admissible. Citing Daubert v. Merrell Dow

15 Pharmaceutical 509 U.S. 579. Expert testimony is relevant if

16 it will assist the trier of fact to understand the evidence or

17 determine a fact in issue. That's also Daubert.

18 Contrary to the argument presented by Texas, Rule 704 of

19 the Federal Rules of Evidence expressly provides that an

20 opinion is not objectionable just because it embraces an

21 ultimate issue.

22 District Courts have broad discretion to admit expert

23 testimony citing U.S. v Miller v Bill Harbor International

24 Construction 608 F.3d 871. Such discretion is especially

25 brought here because there is no risk of jury confusion in a


7

1 bench trial.

2 Texas gives a narrow reading to the expert reports in

3 deposition testimony when it complains defendants' experts

4 merely summarize easy to understand documents such as e-mails

5 under Texas legislative record.

6 In fact, the experts have examined mountains of data on

7 demographics, registration records, voting patterns,

8 alternative redistricting plans and the like with respect to

9 multiple voting districts across the expanse of Texas.

10 To identify facts they believe especially relevant and

11 helpful to the Court's decision here, the e-mails and

12 legislative record constitute but a small part of that data.

13 However, Texas properly complains that experts can

14 rarely, if ever, offer state of mind testimony. For this

15 reason expert testimony will be somewhat limited.

16 Dr. Arrington for instance, will not be allowed to opine

17 on the actual intent of the Texas legislature. In his

18 declaration paragraph three he said but the actual intent of

19 the legislature is to prevent any reflection of the explosive

20 growth of Hispanic population and the relative decline of

21 voting strength of Anglo voters since the 2000 census. Close

22 quote.

23 Actual intent is usually gleaned from direct words of

24 intention expressed by the person or persons quoted reflecting

25 what is in his mind. Here, we're interested in discerning the


8

1 purpose of the Texas redistricting plans; that is, the

2 reasoning behind them which is somewhat more objective than

3 actual intent.

4 These experts may testify to what they infer or deduce

5 were the reasons behind Texas redistricting from the

6 application of their expertise to a set of facts, actions and

7 consequences. Such testimony will reflect their own opinions

8 as to purpose not the quote actual close quote intention of

9 someone else.

10 Thus, to the extent the experts opine on purpose as

11 evidenced by actions and consequences that are deduced from

12 their analyses, their testimony will offer specialized

13 knowledge to help the trier of fact understand complex evidence

14 as contemplated by Rule 702 A.

15 The Court notes experts do not opine on how the law

16 applies to the facts and they will all be limited accordingly.

17 Dr. Arrington for instance, at paragraph 76 of his

18 declaration said such a justification would be a protection

19 against a claim of intentional discrimination under the

20 Arlington Heights approach to intent. And in paragraph 107

21 such a skewed distribution is not justified on rational grounds

22 as required by the Arlington Heights factors.

23 Texas does not challenge the expertise, credentials or

24 methodology of these experts beyond its two points.

25 This Court is well equipped to appreciate the scope of


9

1 expert opinion. The testimony of these four experts will be

2 admitted at trial. The Court will make its own findings

3 concerning the purpose of the plans from the record as a whole.

4 Therefore, the motion is granted in part and denied in

5 part.

6 It's ten after. We have a whole five extra minutes.

7 Does anybody have anything to say or do you want to just

8 get going?

9 MR. MORTARA: I have your folders, Your Honor.

10 JUDGE COLLYER: Thank you, sir. You can submit the

11 folders.

12 MR. MORTARA: I have seven copies as with the

13 exhibits.

14 JUDGE COLLYER: Thank you.

15 MS. PERALES: Good morning, Your Honor, Nina Perales

16 for the Latino Task Force Defendant Intervenors.

17 JUDGE COLLYER: Yes.

18 MS. PERALES: We wanted to alert the Court to an

19 agreed motion that we filed yesterday evening regarding expert

20 witnesses and their last supplemental reports.

21 We've spoken to the State, cordially, and discussed some

22 of their more recent disclosures, those made in January and in

23 order to allow our experts to do their final supplemental

24 analysis and reports on the latter disclosed materials, we came

25 to an agreement that the deadline that the State can live with


EXHIBIT 5


Senator Thomas D. Williams June 1, 2012

1 340896 eb


STATE OF TEXAS, * Plaintiff, * VS. * ERIC H. HOLDER, JR., in his * official capacity as Attorney * General of the United States, * Defendant, * ERIC KENNIE, et al, * Defendant-Intervenors, * TEXAS STATE CONFERENCE OF NAACP * CASE NO. BRANCHES, et al, * 1:12-CV-00128 Defendant-Intervenors, * (RMC-DST-RLW) TEXAS LEAGUE OF YOUNG VOTERS * THREE-JUDGE COURT EDUCATION FUND, et al, * Defendant-Intervenors, * TEXAS LEGISLATIVE BLACK CAUCUS, * et al, * Defendant-Intervenors, * VICTORIA RODRIGUEZ, et al * Defendant-Intervenors. *

DEPOSITION OF SENATOR THOMAS D. WILLIAMS UPON RECEIPT OF SIGNATURE, THE ORIGINAL OF THIS DEPOSITION WILL BE IN THE CUSTODY OF:

Maria H. Rios, Esquire U.S. Department of Justice 950 Pennsylvania Avenue, NW NWB - Room 7202 Washington, DC 20530

Date Edith A. Boggs, CSR

6-1-12 HOUSTON, TEXAS

2

1

2

3

4

5

6

7

8 DEPOSITION OF SENATOR THOMAS D. WILLIAMS

9

10

11 DEPOSITION AND ANSWERS of SENATOR THOMAS D. WILLIAMS,

12 taken before Edith A. Boggs, a certified shorthand

13 reporter in Harris County for the State of Texas, taken

14 at the offices of United States Attorney's Office, 816

15 Congress, Austin, Texas, on the 1st day of June, 2012,

16 between the hours of 9:31 a.m. and 5:29 p.m.

17

18

19

20

21

22

23

24

25

3

1 A P P E A R A N C E S234 ATTORNEYS FOR PLAINTIFF, STATE OF TEXAS:5

Office of the Attorney General of Texas6 P.O. Box 12548 (78711-2548)

209 West 8th Street, 8th Floor7 Austin, Texas 787018 By: Patrick K. Sweeten, Esquire

and Jay Dyer, Esquire9

(512) 936-130710 [email protected] ATTORNEYS FOR DEFENDANT, HOLDER, ET AL:13

U.S. Department of Justice14 950 Pennsylvania Avenue, NW

NWB - Room 720215 Washington, DC 2053016 By: Maria H. Rios, Esquire

and Jennifer Maranzano, Esquire17 and Spencer Fisher, Esquire18 (202) 305-7766

[email protected]

4

1 A P P E A R A N C E S (Continued)

23

ATTORNEYS FOR INTERVENORS:4

American Civil Liberties Union Foundation5 Southern Regional Office

230 Peachtree Street6 Atlanta, Georgia 30303-12277 By: Nancy G. Abudu, Esquire8 (404) 523-2721

[email protected]

AND10

Advancement Project11 1220 L Street, NW

Suite 85012 Washington, DC 2000513 By: Donita Judge, Esquire14 (202) 728-9557

[email protected]

REPORTED BY:1718 Ms. Edith A. Boggs19202122232425





Senator Thomas D. Williams June 1, 2012

201

1 record.2 Q. (BY MS. RIOS) Okay. And what documents are3 needed to obtain an election identification certificate4 under SB14?5 A. I believe that it would be the same documents6 that are required to get a Texas driver's license. The7 requirements to receive an election identification8 certificate, it would appear to me that they are the9 same as the requirements to get a state ID card. There

10 are a number of things that would be acceptable but they11 would include a certified birth certificate and some12 other form of identification.13 Q. Okay. And how much does it cost to acquire a14 certified birth certificate?15 A. It would depend on what county you're in.16 Q. And would it be possible to obtain an election17 identification certificate without having to pay for the18 certified birth certificate?19 A. I think you have to have the birth certificate.20 Q. Okay. If the documents needed to get the21 election identification certificate are not free, isn't22 there a cost to voting for those who lack the necessary23 documents?24 MR. SWEETEN: Can you read the question25 back, please?

202

1 (Whereupon, the requested testimony was read back2 as follows:3 QUESTION: Okay. If the documents needed to get4 the election identification certificate are not5 free, isn't there a cost to voting for those who6 lack the necessary documents?)7 A. And my response would be that yes, there is a8 cost but I don't believe that that cost is an9 unreasonable burden based on --

10 MR. SWEETEN: Just answer the question.11 A. -- the testimony that was taken during the debate12 on this.13 Q. (BY MS. RIOS) Does SB14 require employers to14 provide paid leave so that employees may obtain an15 election identification certificate?16 A. Not to my recollection. I can look at it and see17 but I don't recall that it did that.18 MS. RIOS: Off the record.19 (Off the record.)20 A. I don't see where it does.21 Q. (BY MS. RIOS) Okay. And do you know whether22 some people in Texas live at least 50 miles from the23 nearest driver's license office?24 A. What is your question?25 Q. My question is do you know whether some people in

203

1 Texas live at least 50 miles from the nearest driver's2 license office?3 A. I'm sure some do. Maybe more than that.4 Q. And how much would gas cost at a minimum to drive5 a 100-mile round trip to get the election identification6 certificate?7 A. I have no idea. It would depend on what kind of8 car you were driving or whether you were on a motorcycle9 or riding a bicycle or what it might be.

10 Q. So, those would be additional costs that voters11 would have to make in order to get the free election12 identification certificate?13 MR. SWEETEN: Objection. Argumentative.14 You can answer.15 A. It may or may not be an additional cost that they16 would have to bear.17 Q. (BY MS. RIOS) Senator Davis proposed Amendment18 12, which provided that the underlying document needed19 to obtain an election identification certificate, that20 is, the birth certificate, would be free for indigent21 voters. Did you oppose this amendment?22 MR. SWEETEN: You can refer to matters of23 the public record. Don't reveal matters that are24 subject to legislative privilege.25 A. You'd have to look at the record. My

204

1 recollection is that I opposed that amendment.2 Q. (BY MS. RIOS) Okay. Senator Ellis proposed3 Amendment 19 to add student IDs to the list of4 acceptable photo IDs, and this would be limited to5 student IDs issued by Texas public universities. Did6 you oppose this amendment?7 MR. SWEETEN: You can refer to matters of8 the public record. Don't reveal matters of legislative9 privilege.

10 A. My recollection is that I voted against that11 amendment.12 Q. (BY MS. RIOS) Do you recall why you opposed this13 amendment?14 MR. SWEETEN: Don't reveal matters -- your15 thoughts, opinions, mental impressions about the16 legislation. You can refer to matters of the public17 record.18 A. Only to the extent that I discussed it on the19 floor of the Senate.20 Q. (BY MS. RIOS) Did you gather any evidence that21 would indicate that there's a problem with forgery with22 state university IDs?23 MR. SWEETEN: Don't answer the question. It24 asks for you to reveal matters that are subject to25 legislative privilege.





Documents

Defendant-Intervenors. TEXAS LEGISLATIVE BLACK …moritzlaw.osu.edu/electionlaw/litigation/documents/Holders... · testified about voting issues and about whether government actions