Vote Suppression Hearing Transcript

7/31/2019 Vote Suppression Hearing Transcript

1/88

1 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

2 CIVIL ACTION 81-3876(DRD)

3 DEMOCRATIC NATIONAL COMMITTEE, : TRANSCRIPT OF

PROCEEDINGS

et al., :

4 : M O T I O N

Plaintiffs, :

5 :

-vs- : Pages 1 - 85

6 :

REPUBLICAN NATIONAL COMMITTEE, :

7 et al., :

:

8 Defendants. :

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

9

10 Newark, NewJersey

November 1,

2004 11

B E F O R E: HONORABLE DICKINSON R. DEBEVOISE,

12 SENIOR UNITED STATES DISTRICT JUDGE

13

14 A P P E A R A N E S S:

15

EDWARD A. HAILES, ESQ.,

16 Attorney for the Intevenor Malone

17


2/88

JOHN W. NIELDS, ESQ.

18 Attorney for the Intervenor Malone

19

20

________________________________________________________

21 Pursuant to Section 753 Title 28 United States Code, the

following transcript is certified to be an accurate record as

22 taken stenographically in the above entitled proceedings.

23

____________________________

24 MOLLIE ANN GIORDANO

Official Court Reporter

25

MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-1221


3/88

1

APPEARANCES - continued

2

3 GENOVA, BURNS & VERNOIA

BY: ANGELO J. GENOVA, ESQ. and

4 PETER J. CAMMARANO, III, ESQ.,

Attorneys for the Plaintiff 5

6 DUGHI, HEWITT &

PALATUCCI

WILLIAM J.PALATUCCI, ESQ.,7 Attorney for the Defendant

8

McDERMOTT, WILL & EMERY

9 BY: BOBBY R. BURCHFIELD, ESQ.

Attorney for the Defendant

10

BELL, GAGE & HARBECK

11 BY: DOROTHY A. HARBECK,

ESQ.,

Attorney for the Defendant

12

13

14

15

16

17

18

19

20

21

22


4/88

23

24

25



5/88

Motion 3 1

THE COURT: First I would ask you if either of you

2 received the opinion of Judge DeLott?

3 MR. NIELDS: We don't have the opinion. I had4 portions of the it read to me.

5 THE COURT: Well, I'm having copies of it made. We'll

6 bring it in for you. She's enjoined all challenges to the

7 voting place. We still might as well go forward.

8 MR. NIELDS: It's been appealed as I understand.

9 THE COURT: Okay.

10 Yes, well, I think it raises many of the same issues,

11 and as far as the factual matter and concern, that covers a lot12 of the same grounds. All right. Well then, Mr. Burchfield.

13 MR. NIELDS: Your Honor, I have one house keeping or

14 maybe two housekeeping things. I had thought, mistakenly, I

15 apologize to my opposing counsel and the Court, that we had

16 attached to our papers the second list, the list that had been

17 done from the mailings by the Republican Party of Ohio in

18 September, and he discovered that we attached the first list,

19 the list that had been made up from the mailing by the RNC in

20 August.

21 THE COURT: Right.

22 MR. NIELDS: And I -- we in our brief made

23 reference -- what happened was this was not produced to us

24 prior to the 30B(6) deposition, and it turned out it was

25 mentioned on an e-mail as being on someone's computer, and so



6/88

Motion 4 1 we

asked for it, and they produced it, Saturday. Yeah,

2 yesterday.

3 THE COURT: All right. What use will that be to me at4 this juncture.

5 MR. NIELDS: I've described it in my argument and in

6 our papers.

7 THE COURT: Oh, you've referred to it?

8 MR. NIELDS: Referred to it, and I think it should be

9 in the record and available to the Court.

10 THE COURT: All right.

11 MR. NIELDS: And I have said, and my papers have said12 in my argument, it reflects the same kind of analysis that's in

13 the column way off to the right and Mr. Burchfield may want to

14 dispute that, so I thought your Honor should have it.

15 We also have a tape. We have a tape of a -- that we

16 referred to in our papers and offered in our papers to hand up

17 to the Court, an argument if your Honor wants it.

18 THE COURT: I don't think I'll have time. I have to

19 do something by sometime before the end of the day. So I don't

20 think we'll have time to listen to the tape.

21 All right. Mr. Burchfield.

22 MR. BURCHFIELD: Your Honor, let me -- let me again by

23 simply noting -- noting perhaps it it's just me, my confusion

24 about exactly what it is the plaintiff or the intervenor, Miss

25 Malone, is asking for here. I think you alluded to this.



7/88

Motion 5 1 She's

not here as a representative of a class. She's here on

2 an individual capacity. And that is the basis upon which on

3 Thursday you allowed her to participate. Is she seeking4 enforcement of the consent decree through something in the

5 nature of contempt, citation? If that is the case, under clear

6 Third Circuit precedent, she must demonstrate all in her case

7 by clear and convincing evidence. The citation in that, your

8 Honor, you're very familiar with that, Harris vs. City of

9 Philadelphia, 47 F. 3rd, 1311, Third Circuit 1995, 47 F. 3rd,

10 1311.

11 THE COURT: That's if she's seeking contempt.12 MR. NIELDS: Exactly. And that would be -- if that's

13 what she means by enforcement of the decree.

14 Second, is she seeking a preliminary injunction here?

15 And if she is seeking such an injunction, given the strict

16 requirements of the entry of an injunction in federal court,

17 she would be entitled to an injunction only running to herself,

18 not to a class. And if she is -- she is able to vote on

19 tomorrow without impediment by the Ohio Republican Party, then

20 that would be the extent of the injunction, I would

21 respectfully submit to you.

22 Thirdly, is she seeking some sort of modification of

23 the consent decree to expand the scope of the consent decree to

24 cover the activities in Ohio of the Ohio Republican Party based

25 upon the assumptions that the Republican National Committee is



8/88

Motion 6 1

involved in those activities, so it would be a wide scale

2 modification of the consent decree. And, again, there are some

3 questions about the propriety of that.4 You also have before you our requests to modify the

5 consent decree to confirm that these activities are

6 appropriate, normal poll watching activities that your Honor

7 has sanctioned in the 1987 version of the consent decree

8 because they are consistent, as is shown in state law. The

9 State law may not be good law, but it is state law and the

10 challenges are predicated upon that.

11 Now, with that as a background, is she here seeking12 enforcement which requires clear and convincing evidence, or is

13 she seeking broad scale relief?

14 THE COURT: You say enforcement, I thought you say

15 contempt requires clear and convincing evidence.

16 MR. NIELDS: Contempt does require clear and

17 convincing.

18 MR. BURCHFIELD: Your Honor, I guess it may just be

19 me, I'm concerned that there may not be much difference between

20 those two. If your Honor issues an order indicating that the

21 Republican National Committee is not in compliance with the

22 decree, and a further order indicating what it must do to bring

23 itself into compliance with the decree, that sounds pretty

24 close to civil contempt to me.

25 THE COURT: I think contempt is when you're seeking a



9/88

Motion 7 1 penalty.

Enforcement of the order is not a penalty, just doing

2 what you're supposed to be doing anyway.

3 MR. BURCHFIELD: It would have to be a somewhat4 expanded interpretation of the decree. In any event, I want to

5 register my concerns. It's a little unclear what Miss Malone

6 is seeking and what the Court could do for her.

7 THE COURT: Well, let me have Mr. Nields confirm what

8 my understanding is. She seeks to obtain an order requiring

9 the Republican National Committee not to use the list as a

10 basis for challenges, and to instruct the Ohio State Committee

11 and poll watchers not to challenge on the basis of that list.12 That is what she's seeking.

13 MR. BURCHFIELD: Well, your Honor, as you will see as

14 we go forward here today, I dispute whether she's entitled to

15 that relief and whether that relief would be appropriate. If

16 she does demonstrate entitlement -- and I'll get to that in a

17 few minutes. I want to proceed by making essentially five

18 points, and I will try to encompass within these five points,

19 six points, your Honor. The issues that Mr. Nields has so

20 eloquently raised this morning on behalf of his client.

21 Point number one is, we are in a situation here where

22 there has been extensive media report and evidence of voter

23 registration irregularities, particularly in Ohio, but not just

24 in Ohio. You see, you have before you the affidavit of Mr.

25 Ryan Smith, who has gathered together evidence, media articles



10/88

Motion 8 1

showing criminal investigations and significant concerns about

2 invalid registration, forced registration, dead people being

3 registered, and so forth throughout the State of Ohio. It is a4 palpable concern within the Republican Party that there are

5 serious irregularities going on. It is therefore, I would

6 submit to your Honor, it would be surprising if there had not

7 been discussions within the RNC about what if anything the RNC

8 can do about it. I will come to those e-mails and explain to

9 you how there's nothing in those e-mails that demonstrates

10 anything inconsistent with the decree. In fact, I will show

11 you that the RNC has been very vigilant to make sure.12 Secondly, you will see in Miss Dillingham's affidavit,

13 which I know you're familiar with because we refer to it

14 several times this morning already. Miss Dillingham's

15 affidavit expresses concern about Project Vote. In paragraph

16 18 through 21 she indicates several examples that she knows of

17 from her personal knowledge in which Project Vote has submitted

18 irregular at least voter registration this election cycle in

19 Cuyahaga County. And it is interesting that Miss Malone --

20 some of Miss Malone's registration we have reason to believe

21 were submitted as part of the Project Vote effort, so there is

22 palpable evidence, credible evidence out there of voter

23 registration irregularities. What the intervenor wants you to

24 do is to completely immobilize, not just the Republican

25 National Committee, but the Ohio Republican Party from taking



11/88

Motion 9 1 any

action, even within the parameters of the state law to

2 challenge people who were suspicious registrants on Election

3 Day. That's a pretty extreme remedy, especially in light of4 what we know is going on out there in the real world.

5 Second major point, intervenor Malone simply has no

6 case or controversy here. There is a flag on her voter

7 registration. Miss Dillingham's affidavit says so. We have

8 presented the records of the Cuyahaga County Board of Elections

9 that prove it. I've blown that up. It's right here on the

10 board.

11 And as I referred to earlier this morning, the first12 blow-up is the cover page where you plug in Ebony Malone's

13 name. Bonnie S. Malone, born on 5/1/84, is the intervenor

14 here. She's on the bottom of that list. If you punch in that

15 name, you get the information that we've set forth in Miss

16 Dillingham's affidavit of the four registrations by Miss Malone

17 in the last year and a half at two different addresses, none of

18 which match the address that she's indicated in her

19 declaration. We do understand at her deposition she corrected

20 the address that she'd given in her declaration, and now she

21 seems to be saying that she does in fact live at 7829 Summit,

22 or whatever it is that she says in her declaration.

23 In any event, the key point here, your Honor, is as of

24 October 4, 2004, mail was returned to the Board of Elections,

25 official correspondence that they send to every



12/88

Motion 10 1 newly-

registered voter marked "undeliverable" to the Board of

2 Elections, and they have changed her status on their records

3 from A, for active, as it was shown in December, 2004, to I for4 inactive. The result of that Miss Dillingham says under the

5 process of Cuyahaga County, the Board of Elections personnel

6 will in fact challenge her. And Miss Dillingham lays out for

7 you exactly what that challenge will entail.

8 Now, it is interesting, your Honor, that there are now

9 four affiants in this case regarding the procedure. There is

10 Miss Dillingham, who submitted a very extensive, very detailed

11 declaration. There is Mr. Mattson, who submitted a very12 extensive and very detailed declaration with regard to Stark

13 County of Ohio. And then there is Mr. Burke who submitted, in

14 our view, a somewhat conclusory affidavit. And then there is

15 Mr. Anthony, the affidavit that was submitted this morning by

16 the intervenor. And Mr. Anthony, interestingly enough,

17 confirms what Miss Dillingham says and let me explain that.

18 Mr. Anthony is speaking about Franklin County, and he

19 says if you have his declaration, which I just got this

20 morning, I assume that your Honor has it.

21 THE COURT: Well, I just got it this morning too. I

22 had it here.

23 MR. BURCHFIELD: Your Honor, Mr. Anthony says,

24 paragraph 4: It is sometimes the case that the county will

25 send mail to voters and have the mail returned as



13/88

Motion 11 1

undeliverable. Five: When this happens, the voter's name will

2 be placed in the signature box that is used by election judges

3 on Election Day. And skipping down to paragraph 8: If the4 voter states the address is different, but my address is still

5 within the same precinct, the voter is given a new registration

6 form to complete and is then allowed to cast a regular ballot.

7 Such a voter does not go through the challenge process outlined

8 in RNC 3525, nor does such a voter complete a form. There is

9 no provision of state law requiring that such a voter be

10 challenged and put through the 10-U voter procedure, as what

11 happened in the voter -- personally 3505.20. So the difference12 appears to be that in Cuyahaga County in which Miss

13 Dillingham's testimony is uncontroverted, that a voter

14 challenged by the Board of Elections, will have to fill out the

15 10-U form, which Mr. Nields does not like, versus Franklin

16 County, where the voter has to fill out a new voter

17 registration form.

18 Well, if you look -- if you look behind Mr. Matthew's

19 declaration, and that is --

20 THE COURT: Excuse me. Where is his declaration?

21 MR. BURCHFIELD: It is in our submission, your Honor,

22 in behind tab E of the pile of paper that we served on you

23 yesterday.


25 MR. BURCHFIELD: And if you look behind tab 1 of Mr.



14/88

Motion 12 1

Matthew's declaration, you find the voter registration form

2 that Mr. Anthony says a voter challenged by BOE has to fill out

3 in Franklin County. And you will see at the bottom of that, of4 that voter registration form, your Honor, the same warning that

5 appears and of such concern to Mr. Nields on the form 10-U. On

6 the bottom of that form it says: Whoever commits election

7 falsifications is guilty of a felony of the 5th degree, and

8 indeed that is the law of Ohio. Whether you fill out a false

9 voter registration form, or whether you fill out a false form

10 10-U, or whether you vote under an assumed name, if you commit

11 voter registration -- voter fraud, you're guilty of a felony in12 Ohio, as you are in most states. That's stated on the form.

13 So, your Honor, at the end of the day, the

14 disagreement here about whether the BOE challenges differ

15 substantially among the counties really is a tempest in a

16 teapot. But most importantly, I would emphasis to your Honor,

17 for the purpose of Article 3 standing here, the person to look

18 at is Miss Malone and the county to look at is Cuyahaga. And

19 the evidence we have in Cuyahaga County, if Miss Malone shows

20 up at the poles on Tuesday, and she has confirmed she is going

21 to do, she will have to confront -- she will be challenged by a

22 Board of Elections official and go through essentially the same

23 process she would go through if she were challenged by a

24 Republican Party of Ohio polling --

25 THE COURT: She'll have to go ten feet away and sign



15/88

Motion 13 1 the 10-

U form?

2 MR. BURCHFIELD: In Cuyahaga County, that's correct,

3 from Miss Dillingham's affidavit.4 So, your Honor, the basic point here is there's

5 nothing you can do for her that will keep her from suffering

6 that harm, if that is a harm. And we doubt it is a harm,

7 because she has testified in her affidavit, in her deposition

8 on Saturday, that her only concern is the inconvenience. And

9 on page -- on pages 99 and 100, she was asked -- she was asked

10 a series of questions, and she said: "Did the challenge to

11 your registration convince them," she's talking to members of12 her family, "that they should not vote, to your knowledge? No,

13 it didn't convince them. It further convinced them to the

14 point of voting, rather than discouraging them from voting. It

15 encouraged them to vote; correct? Yes, it encouraged them to

16 vote just on the principle, if you know all the technicalities

17 going on about the election."

18 And then skipping down to page 100. "Even after that

19 discussion about the fact that it would be a long, drawn out

20 process, they still indicated to you that they were encouraged

21 to vote; correct?

22 "ANSWER: Yes. That just encouraged them further to push

23 things through and vote."

24 The suggestions, counsel's arguments, as eloquent as

25 they are, about deterring people from voting through this



16/88

Motion 14 1

process, simply do not stand up for their own client, who is of

2 course, since this isn't a class action, the focus of the court

3 here. So she's going to be challenged, number one, and nothing4 that this Court will do with regard to the Republican National

5 Committee is going to change that, with all due respect, your

6 Honor.

7 Number two, even if she was going to be challenged,

8 she's admitted to going out and voting.

9 Number three, as we will show later on, with respect

10 to the long lines to vote, she's committed to cast her ballot

11 tomorrow, and that's good. But it certainly doesn't indicate12 that there's a live case or controversy here with regard to

13 this particular plain.

14 Again, let me just reemphasize. To the degree that

15 there are variations within the counties of Ohio in terms of

16 how they deal with people who are flagged on the registration

17 list, the one that matters for your purposes, your Honor, this

18 morning is Cuyahaga County, and Miss Dillingham's affidavit has

19 not been refuted. In fact, it's confirmed by Mr. Matthews, and

20 it is supported, essentially in all of it's essentials, by Mr.

21 Anthony.

22 Now, your Honor, you've heard -- that's the end of the

23 case, I would submit, your Honor. If there's no case or

24 controversy, if it's not justiciable, that's the end of this

25 case. Because let me go forward, because there --



17/88

Motion 15 1

THE COURT: That's a good idea.

2 MR. BURCHFIELD: There has been some pretty serious

3 allegations about my client this morning, and I do want to4 respond to those.

5 With regard to the Republican National Committee's

6 involvement in this, Mr. Nields walked you through in some

7 detail some e-mails that were produced by the RNC. And he

8 tries to make those e-mails sound as though they show

9 complicity by the RNC in the activities of the Ohio Republican

10 Party here. They do nothing of the sort.

11 Let me begin, your Honor, with the e-mail that is12 behind tab 7, that was referred to you by --

13 THE COURT: Hold on.

14 MR. BURCHFIELD: This is Mr. -- this is the

15 intervenor's exhibits, your Honor. And this is the e-mail in

16 which, at page 1 -- at the next to last page. Do you have that

17 in front of you?

18 THE COURT: One eighty-four?

19 MR. BURCHFIELD: On eighty-four is the next to last

20 page. Mr. Nields directed you to the fact that the RNC is

21 going to have a conference call with the number of state

22 parties involving HAVA, the Help America Vote Act, voter

23 registration fraud strategy. And what he didn't refer you to,

24 your Honor, is the next page, the very last page, which says:

25 suggested participants. And the two first named suggested



18/88

Motion 16 1

participants there are Carolyn Hunter and Jill Holtzman Vogel

2 of the RNC counsel's office, who are charged with enforcement

3 of your Honor's consent decrees.4 Miss Hunter's declaration, which you have in front of

5 you, makes clear that she frequently participates in meetings,

6 briefings, and telephone calls at which issues of "get out to

7 vote," voter registration, Election Day poll watching and so

8 forth are discussed. And her reason for doing so is to make

9 sure that she advises the people on the call to comply with the

10 consent decree.

11 So rather than being evidence of RNC complicity in an12 effort to violate the consent decree, this e-mail, consistent

13 with Miss Hunter's declaration, demonstrates the RNC's efforts

14 to comply with the decree.

15 And the instructions that are given to RNC personnel

16 are that if state parties are engaging in a ballot security

17 effort, the RNC personnel can not be involved in it. Is the

18 RNC discussing the political aspects of wide-scale voter fraud?

19 Absolutely, your Honor. They're talking about it everyday

20 because it's a persuasive problem, and it is a political

21 problem as well as a legal problem. But just because they talk

22 about it and they're on conference calls about it, doesn't mean

23 that they're engaged in any sort of effort to violate the

24 consent decree. And I would submit to your Honor that that is

25 not a reasonable inference to draw from this e-mail.



19/88

Motion 17 1

With regard to the next e-mail, your Honor, number 8,

2 and I would also say, your Honor, the e-mail behind exhibit 7

3 has no correlation whatsoever to the current efforts by the4 Ohio Republican Party to challenge voters based upon the

5 undelivered mail list. There's no link between those e-mails

6 and the direct controversy, whatsoever. Other than the --

7 other than the phrase "voter registration fraud," which is, as

8 I've said, prevalent in the media. Behind the tab 8 is another

9 series of e-mails, and Mr. Nields walked you threw these in

10 some extensive detail.

11 Let me focus on a couple of the things in these12 e-mails. Number one, you will see scattered g throughout here

13 various -- in various e-mails, you will see members of the RNC

14 counsel's office. Those people would be Miss Hunter, Miss

15 Holtzman Vogel, Miss Karen Cross, and there are others. But

16 sometimes they're on these other e-mails, sometimes they're

17 not. Many times they are. Let me focus you, however, most

18 intently on the page with the last three base numbers, 00148.

19 THE COURT: One forty-eight?

20 MR. BURCHFIELD: One forty-eight. And at the top

21 e-mail, it says Jack Christopher and I have already tasked our

22 IT person with creating a match list with the BOE's return mail

23 list, Board of Elections return mail list, not the RNC's return

24 mail list, not the Ohio re Republican Party, the official

25 return mail list sent on a racially neutral basis from the



20/88

Motion 18 1 Board

of Elections of Ohio, and the absentee ballot request

2 list. Again, that is an absentee ballot request list kept by

3 the state listing the people who have requested absentee4 ballots.

5 THE COURT: Who is Jack Christopher?

6 MR. BURCHFIELD: Jack Christopher is a lawyer out in

7 Ohio. He works for the Ohio Republican Party.

8 THE COURT: Why isn't that dealing with voter fraud,

9 the fraud in this case being the double voting -- some usually

10 vote the registration and the absentee ballot?

11 MR. BURCHFIELD: Well, the concern in these e-mails is12 that, and it is the fact that people -- there suspicious

13 registrants are not even waiting until the day of the elections

14 to go to the poles, they are getting the absentee ballots.

15 They are going to the polling stations and getting the absentee

16 ballots in advance of the elections to submit now.

17 Revealing is the next sentence: Jack thought this

18 would be a good idea to have to referenced as part of the

19 larger testimony harder press strategy. This is not evidence

20 that they are -- that the RNC is involved in a ballot challenge

21 program. And, in fact, Miss Hunter's declaration states

22 unequivocally that there's no ballot challenged program based

23 upon this. It is widely known, and quite obvious, your Honor,

24 that if -- if in fact there is a post-election dispute about

25 the election, there is going to be a lot of PR, as there is



21/88

Motion 19 1 already,

there's going to be a lot of debate among the party

2 leaders about what happened to cause the controversy, and this

3 is indications of a press strategy to address that situation.4 This does not evidence any sort of ballot security

5 program within the context of the consent decrees. And more

6 importantly, it doesn't relate to the current challenges by the

7 Ohio Republican Party. And even more importantly, your Honor,

8 for purposes of Article 3 standing, it doesn't relate to Miss

9 Malone because she isn't one of the people that's requested an

10 absentee ballot. So this e-mail -- this e-mail proves nothing.

11 And that is relevant to us here.12 The next e-mail that Mr. Nields called your attention

13 to -- let me see for a moment. One moment, your Honor. Mr.

14 Nields also referred you to list voters, or analyses that the

15 RNC did of returned mail from the RNC's -- from the RNC's

16 August mailing that went to Cuyahaga County. And those

17 exhibits are behind tab 3, tab 4, and tab 5. And I think also

18 behind tab 6.

19 The bottom line answer to this, your Honor, is it is

20 not inconsistent with the consent decree for the RNC to analyze

21 voter registration -- voter return mail, so long as it doesn't

22 use it for a ballot security program. And the evidence here is

23 undisputed, ever since we were here last week and Miss Cino

24 said the RNC mailing from August has not been used as part of

25 the Ohio's Republican Party's challenge. That is, your Honor,



22/88

Motion 20 1

undisputed.

2 They argue suspicious. It may be suspicious to them.

3 The RNC did, and Miss Cino testified that they did it as part4 of the -- if there was a challenge of the election, we did it

5 to deal with the PR war, if there is a challenge. These names

6 that were returned from the RNC mailing are not on the current

7 challenge list as a result of the RNC mailing. There may be

8 duplicates because people were sent the Board of Elections

9 mailing or the same people may have been sent -- there maybe

10 some overlap, but this mailing is not part of the Ohio

11 Republican Party challenges.12 Mr. Nields also says they he has some documents that

13 were produced on Saturday -- I correctly note there was some

14 documents produced on Saturday that the RNC analyzed in the

15 same way that it analyzed the August mailing, and what he's

16 just handed up to your Honor, I understand what this is and

17 I'll explain it to you. If you need an affidavit on it, I

18 think we can get you one. This is an analysis --

19 THE COURT: When you are saying this?

20 MR. BURCHFIELD: These are the documents that Mr.

21 Nields handed up to you a few moments ago as analyses of the

22 mailings by the Ohio Republican Party to five counties in Ohio

23 of mailing sent in September. These are the undeliverable

24 addresses from that mailing.

25 THE COURT: Okay.



23/88

Motion 21 1

MR. BURCHFIELD: And there are a couple important

2 things about this. First is, I understand that this analysis

3 was done not by the Ohio Republican Party, but by Lori White.4 Not by the Republican National Committee, but by Lori White of

5 the Ohio Republican Party. She transmitted it, and she

6 compiled this list from notes on the undelivered mail

7 envelopes. Not by doing any sort of driving around and looking

8 at the places. She did send this list to Chris McInernie of

9 the Republican National Committee, who has, I understand, done

10 nothing with it. Mr. Nields also suggests that this -- this

11 list was zip code sorted on the face of it, your Honor, that is12 not correct.

13 If you look at the -- I've had only a few minutes to

14 look at this. If you look at the document with the first page

15 baits number RNC 000418, and you look at the first series of

16 zip codes at the top of that page, 45231, if you look down,

17 there is a blank there beside -- and there's a designation out

18 to the right-hand side, zip unreadable. Are you with me?

19 THE COURT: I don't have the pages in front of me, but

20 I'm with you.

21 MR. BURCHFIELD: In concept. Your Honor, it may make

22 sense for you to get the papers in front of you. I think Mr.

23 Nields just handed them up to you.

24 THE COURT: Do you want me to refer to those papers?

25 MR. BURCHFIELD: I think that would be helpful.



24/88

Motion 22 1

THE COURT: All right. Which ones do you want me to

2 look at?

3 MR. BURCHFIELD: The ones with baits number on the4 first page, 000418.

5 THE COURT: All right. I have that.

6 MR. BURCHFIELD: That hypothesis that we're addressing

7 is Mr. Nields claims that this list was zip code sorted, and he

8 further speculates that the zip code sorting would have been

9 done by minority precincts. He said the same thing about the

10 RNC analysis of the August mailing. There is no evidence, your

11 Honor, in this record that any sort of minority-based sorting,12 zip code sorting was done on the RNC analysis. And I think it

13 is quite unfortunate that he would even suggest such a thing.

14 There is no evidence of that whatsoever in this case.

15 The question is whether this document, first page, RNC

16 000418, prepared by Lori White of the Ohio Republican Party is

17 zip code sorted, as Mr. Nields suggested. It is not. If you

18 look at the first series of zip codes at the top of the page,

19 you will see the zip code 45231, that series ends. Then if you

20 look down the page at the first entry for zip unreadable on the

21 far right, are you with me so far, your Honor? You will see

22 45231 reappears there for a few entries, non-sequentially. And

23 then if you look at the page, at the last entry on page RNC

24 000420, the very last entry on that page, you will see the same

25 zip code, 45231. If you look at the page -- and you just



25/88

Motion 23 1

thumbed through it, your Honor, looking clearly through that

2 very first zip code on the first page, I didn't go through

3 the -- I'm trying to rebut the premise that this is zip code4 sorted. If you look at the page with RNC 00438, and you go

5 one, two, three, four, five, six, seven, eight, nine lines up,

6 you will see another 45231 standing alone amongst a variety of

7 45206 zip codes. The reason these appear in zip code sequence,

8 your Honor, I think it is a well-founded speculation, is that

9 the postal service delivers undeliverable mail back from whence

10 it came in bundles. Those bundles frequently result from the

11 postal service doing their own sorting of the zip codes. So12 the suggestion either that this document is the RNC's analysis,

13 or that it's sorted in any sort of improper way, is just flatly

14 untrue.

15 I think I've responded to all of the exhibits that Mr.

16 Nields referred to as evidence for the suggestion that internal

17 documents of the RNC demonstrates complicity in the Ohio voter

18 registration challenge.

19 He next talked about the press conference. The

20 evidence on the press conference here is clear. It's set forth

21 in Miss Cino's supplemental affidavit, which is included in our

22 materials delivered to you yesterday behind tab B. And Miss

23 Cino addresses that press conference in paragraphs 4 through 6.

24 The essence of her testimony about that press conference is

25 this. And I'll give you a minute to find that. It's tab B.



26/88

Motion 24 1

THE COURT: I have that.

2 MR. BURCHFIELD: In paragraphs 4 through 6, it

3 describes the substance in that press conference in great4 detail. And what she says is that Mr. Gillespie had a long

5 standing commitment to be in Ohio on October 19th and 20th,

6 first to speak to the Franklin County Republican concern, which

7 is a big deal out there, I understand. And second, also a big

8 deal, to meet with the editorial board of the Columbus Dispatch

9 in connection with their evaluation of the -- which candidate

10 the Columbus Dispatch was going to endorse for president.

11 Ultimately they endorsed President Bush. They wanted to meet12 with Mr. Gillespie and he obliged. They knew about the trip.

13 And they asked Mr. Gillespie if he would participate in a press

14 conference about the widespread allegations of voter

15 registration problems in Ohio. And Mr. Gillespie did so, and

16 he told the Ohio Republican Party: I can speak generally about

17 the corrosive effect about vote fraud, and voter fraud on

18 democracy, but I am prohibited by the consent decree about

19 taking part in any planning about challenges on that.

20 He appeared at the press conference anti-press

21 conference, the Ohio Republican Party put out its evidence that

22 there were forged registrations, that that were -- there were

23 registrations of someone who had been dead for 20 years. I

24 think they had the hopper of all of the returned Ohio

25 Republican Party mailings there. Mr. Bennett talked about



27/88

Motion 25 1 that.

Mr. Gillespie said voter fraud is a big problem in this

2 country, everyone ought to be concerned about it. There was a

3 question from the press: What are going to do about it? Mr.4 Bennett said: We are considering our legal options.

5 There was no plan by the Ohio Republican Party to

6 initiate this challenge at that point in time. That plan was

7 developed, announced two days later on October 22nd.

8 If you look at Miss Cino's deposition, which is

9 included behind tab 2 of the -- of the intervenor's submission

10 yesterday, I'll give you a chance to get that, your Honor.

11 THE COURT: Yeah.12 MR. BURCHFIELD: When you get there, I'm at page 48 of

13 that, of that transcript. Are you with me?

14 THE COURT: Page 48?

15 MR. BURCHFIELD: Page 48.


17 MR. BURCHFIELD: Are you with me? The first question

18 on the page is: "Did Mr. Gillespie express any opinion about

19 whether that was a sensible thing to do?" This is referring to

20 Mr. Bennett's discussion about possible challenges to the

21 fraudulent voter registration. "Did Mr. Gillespie express any

22 opinion about whether that was the sensible thing to do?

23 "ANSWER: Mr. Gillespie is very well versed and aware of

24 our consent decree."

25 What other conversation did Mr. Gillespie have with



28/88

Motion 26 1 Mr.

Bennett, or any other Republican Party? That's it,

2 question about Ohio, that was it. That is not the sort of

3 complicity or participation that your Honor includes in the4 consent decree.

5 The other point on the next page I would note is Mr.

6 Nields is asking Miss Cino about a Wall Street Journal article

7 dated -- from the Columbus Dispatch, I'm sorry, dated October

8 23rd, 2004. And that article -- are you with me again? I'm

9 sorry.

10 THE COURT: Yeah, I'm on that.

11 MR. BURCHFIELD: I faked you out there. Page 49, it12 refers to a Columbus Dispatch article from October 23rd, 2004,

13 which is three days after the press conference. And the

14 question starts off, and yet another sign of how fiercely, your

15 Honor, it will be contested in the November 2nd -- Republican

16 tested, newly registered voters yesterday, that would be the

17 22nd, and that was two days after Mr. Gillespie was in Ohio at

18 the press conference. And that confirms the position that the

19 Republican National Committee has taken all along, which there

20 was no plan announced at that October 20 press conference, and

21 that came about two days later, when the Ohio Republican Party

22 announced and initiated the challenges that bring us here

23 today. So Mr. Gillespie's appearance at that press conference

24 does not provide the sort of evidence that the intervenor needs

25 to show complicity by the RNC in this voter challenge.



29/88


30/88

Motion 28 1 mailing

list. She is on the list of undeliverables, because of

2 the Board of Elections mailing, which is exactly why she's on

3 this chart here, as a flag voter in Cuyahaga County.4 Third point, neither before, during, or after, the

5 October 20 press conference, did RNC Chairman Gillespie discuss

6 a plan to challenge registration with the Ohio Republican

7 Party. That's in the deposition passage I've just read to you.

8 It's in her supplemental declaration, paragraph 6. And as

9 we've just seen from the Ohio, from the Columbus Dispatch

10 article, the plan wasn't even announced or initiated until two

11 days later on the 22nd.12 Fourth point. RNC counsel do in fact participate in

13 meetings, briefings, and conference calls regarding poll

14 watching, which is specifically allowed under the decree; get

15 out to vote efforts, which are not covered by the decree, and

16 voter registration for the purpose of insuring a compliance

17 with the decree. And Miss Hunter details those efforts in her

18 declaration, paragraph 2, behind tab C of our submission

19 yesterday.

20 Fifth point, your Honor, and I'm being a little bit

21 duplicative, and I apologize for that. The e-mails that

22 indicate cross tabulation of undeliverable mail to new

23 registrants and request for absentee ballots is not relevant

24 here. A, because it's not -- that's not included in the

25 current Ohio Republican Party challenge to voters in Ohio. B,



31/88

Motion 29 1 a voter

who has submitted an absentee ballot cannot be

2 intimidated if that ballot is challenged after it is submitted,

3 your Honor. And in that sense, even if there were programs, it4 would in our view fall outside the spirit of the decree.

5 And finally, the undisputed evidence is there is --

6 there has been no challenge based upon that cross tabulation of

7 absentee ballots with undeliverable mail to new registrants.

8 And six, your Honor, finally, the RNC has not

9 initiated, controlled, directed, or funded the Ohio Republican

10 Party programs of voter challenges. That is from Miss Hunter's

11 declaration, paragraph 3. That was behind tab D of our12 submission. She says: To the best of my knowledge, after due

13 investigation, the RNC is not initiating, controlling,

14 directing, or funding any programs of voter challenges as

15 described above, including the effort by the Ohio Republican

16 Party to challenge voter registration by Ohio as alleged by

17 intervenors in this matter.

18 Now, your Honor, if -- unless you have some questions

19 about -- for me about the RNC's alleged participation in this

20 program, I will turn now to the second issue you had listed,

21 which is whether the challenges would -- will so disrupt the

22 voting in Ohio that it will deter people from voting.

23 THE COURT: Yes. Why don't you go ahead to that.

24 MR. BURCHFIELD: Point number one, your Honor, is

25 Cuyahaga County has a hundred and eighty thousand, two hundred



32/88

Motion 30 1 and

twenty-one voter files flagged for challenge by the Board

2 of Elections on Election Day. If all of those one hundred and

3 eighty thousand people were to show up and be challenged, there4 might be a problem. But the fact is, if only a few of them,

5 only a small percentage of them do, just as it is likely that a

6 good number of these 35,000 people, now down to 23,000, will

7 show up on Election Day.

8 If they do, even if they do, miss Dillingham and Mr.

9 Matthews, are confident that the poll workers in Cuyahaga

10 County where Miss Malone votes, and in Stark County where Mr.

11 Matthews is the Director of the Board of Elections, they're12 confident that they can be processed efficiently, without undue

13 disruption of voting. And the process, as we've discussed

14 later, your Honor, when there is -- when there is a challenge,

15 and, again, put to the side for a minute the fact that many of

16 these people, if not all of them on the list of 23,000, that

17 used to be 35,000, now 23,000, even if it were the case, that

18 those people were not going to be dealt with initially by the

19 Boards of Elections, the process would be if a -- one of the

20 challengers at the polling place places the challenge, that

21 person is taken out of the line and asked some questions. And

22 they either -- they are either given a 10-U to fill out, or a

23 new voter registration form, or if they answer the questions

24 appropriately, then maybe put back in the line to cast a

25 regular ballot. They may be sent to another polling place.



33/88

Motion 31 1 Both

Miss Dillingham and Mr. Matthews believe that's not going

2 to be unduly disruptive to the voting in the State of Ohio.

3 Again, Miss Dillingham is Deputy Director in the largest county4 in Ohio where Miss Malone lives, and this is her testimony.

5 I would go further to say, your Honor, if you're

6 making a determination of whether the testimony provided by

7 declaration from Miss Dillingham and Mr. Matthews is more

8 accurate versus that from Mr. Burke, I would ask you to

9 consider the following factors. Miss Dillingham and Mr.

10 Matthews are both staff -- full-time staff employees of the

11 Board of Elections. Mr. Burke is the Democratic County12 Chairman for Franklin County. Yes, he serves on the Board of

13 Elections as the Democratic appointee, but he is not there day

14 to day training the staff members, and he is not there

15 carefully going through the procedures, I would respectfully

16 submit to you.

17 Second, Miss Dillingham has 14 years, and Mr. Matthews

18 has 13 years working at their respective Boards of Elections

19 full-time versus Mr. Burke, who has been involved part-time for

20 12 years.

21 Third, the declarations of Miss Dillingham and Mr.

22 Matthews contained detailed descriptions of the process,

23 including the flagging process and the flagging process is not

24 even mentioned in Mr. Burke's declaration. Mr. Burke's

25 declaration is largely conclusory.



34/88

Motion 32 1

So in evaluating relevance and believability and

2 weight, your Honor, we respectfully submit that not only the

3 quantity but the quality of the evidence indicating that there4 will be no problem is substantial.

5 Second point, your Honor, Miss Malone in particular,

6 but likely many of the other challenged registrants on the Ohio

7 Republican Party's list will be challenged in advance by the

8 County poll pursuant to the flags. They're not going to be --

9 they're not going to be harmed, and I don't think it's

10 appropriate or credible to say that once they've gone through

11 there voting process by the County poll workers, that they're12 going to be challenged again. I think short trip would be made

13 of those challenges. There's an edict from the Secretary of

14 State that any poll challenger who tries to intimidate or

15 harass the voter would be promptly removed from the polling

16 station by the presiding officer. So I think the notion that

17 the challengers are going to be repetitively challenging the

18 same people that have already been cleared by the Board of

19 Election workers, that's just not credible.

20 Third point, neither Miss Dillingham nor Mr. Matthews

21 expect disruption from challenges. The Dillingham declaration

22 says that in paragraph 26, the Matthews' declaration says that

23 in paragraph 19.

24 Four, the number of challenges has already declined

25 from 35,000 statewide to 23, 000 statewide. That is in



35/88


36/88

Motion 34 1

inference here. Our return mail, I note that that's the Ohio

2 Republican Party. There are only entries to -- the matched

3 number, I would infer, means thirty-five hundred and forty of4 the ones returned from -- from the ORP mailing match, are

5 within the 17,717 in the Cuyahaga Board of Elections mailing.

6 As I read that, there are only about 820 additional ones that

7 are unique to the Ohio Republican Party mailing.

8 THE COURT: All right. And would you have included

9 those in the challenge list that you have?

10 MR. BURCHFIELD: They are included in the challenge

11 list.12 THE COURT: Yes. The challenge list would include the

13 35,427 developed by the county challenges, plus the --

14 MR. BURCHFIELD: Plus the non-unique deliveries.


16 MR. BURCHFIELD: Undeliverables from the Ohio

17 Republican Party, and that would be the sum of the -- that

18 would be -- well, it's the difference between the numbers minus

19 the numbers in parenthesis in that third column.

20 THE COURT: All right. And what is SOS?

21 MR. BURCHFIELD: Secretary of State confirmed, and I

22 think at the time this was prepared, your Honor, that maybe the

23 number. And again I'm inferring this. That maybe the number

24 of registrants that have already been confirmed and cleared by

25 the Secretary of State, the Board of Elections throughout the



37/88

Motion 35 1 State.

But there, again, I confess that's just the way I read

2 it.

3 THE COURT: All right. I'm going back to our return4 mail, Cuyahaga County, forty-three sixty-one. Was that your

5 returned mail or --

6 MR. BURCHFIELD: That is -- that is the Ohio

7 Republican Party undeliverable mail from its five-county

8 mailing in September.

9 THE COURT: Okay.

10 MR. BURCHFIELD: None of the numbers on this page

11 relate to the Republican National Committee's mailing from12 August.

13 THE COURT: This is the September mailing?

14 MR. BURCHFIELD: The Ohio Republican Party mailing was

15 in September, that is correct.

16 THE COURT: And of the 43,061, 35,040 also appeared on

17 the state, of the county board?

18 MR. BURCHFIELD: That's the way I read it, your Honor.

19 But again I am to some degree just inferring. I can have

20 someone ask, ask the client if we have him on the RNC who knows

21 the answer to that, and I'll try to report to you after the

22 next break.

23 THE COURT: I don't think it makes that much

24 difference.

25 MR. BURCHFIELD: But by -- almost of necessity, a



38/88

Motion 36 1 large

bulk of the undelivered mail sent by the Ohio Republican

2 Party will be duplicative of the undeliverable mail sent by the

3 Board of Elections.4 THE COURT: All right.

5 MR. BURCHFIELD: So, your Honor, the declarants

6 Dillingham and Matthews are not -- are not concerned, are not

7 in a tither about these impending challenges because the Ohio

8 Republican Party challenges are such a small percentage of

9 the -- of the challenges that they may have to be dealing with

10 anyway, and they're largely duplicative of them, as Miss

11 Malone's situation demonstrates. So there is -- there simply12 is no substantial evidence that these challenges are going to

13 cause the Ohio voting tomorrow to break down and become the

14 fiasco they the intervenors claim..

15 THE COURT: And I guess which Judge DeLott found

16 would -- Judge DeLott found would concur?

17 MR. BURCHFIELD: Your Honor, I am generally aware of

18 that situation out there. I suspect the record in that case is

19 much different than it is here, and I also suspect that these

20 are issues of state law and so forth that are not before this

21 Court. But the evidence that you have before you is that the

22 Cuyahaga County Deputy Director of Elections is telling you she

23 does not think this is going to cause a breakdown in the

24 system. And she's got the -- she's the one who is going to

25 have to deal with half of the challenges.



39/88

Motion 37 1

THE COURT: All right.

2 MR. BURCHFIELD: Your Honor, the next point that I

3 would make is that there's no disparate impact that has been4 shown here. And before I talk about the facts on that, I want

5 to talk for a moment about the law.

6 In Judge Altsort's opinion in the Greyhound case that

7 we cite in our brief, the E.E.O.C. versus Greyhound, the

8 E.E.O.C. challenged Greyhound's no beard policy. It challenged

9 it on the basis of a large percentage of black males have a

10 disease called pseudo follicus barbae, a facial disease. If

11 they shave, it's irritated and the E.E.O.C. said a no beard12 policy falls -- has a disparate impact on the black male

13 employees and, therefore, we prohibit you to enforce. And if

14 you have any questions, I'm -- I'm really happy to answer.

15 You've got a hard job, and I appreciate that.

16 The Third Circuit reversed, and it said to have a

17 disparate impact, you have to analyze the impact of both on the

18 allegedly disfavored group, and on the alleged favored group.

19 There may be skin diseases or discomforts or other problems

20 that the white male population has that make the no beard

21 policy hurtful to white males as well. So the Court sent it

22 back.

23 That's the situation we have here, your Honor.

24 Professor Klinker ran his regression analysis, including the

25 following variables. Census data of African Americans within



40/88

Motion 38 1 the --

within the precincts, registered voters within the

2 precincts, and new registrants. And he concludes that -- and

3 challenges to those registrants within those precincts. And he4 concludes using that data that challenges correlate to

5 increasing African American percentages. But as Mr. Lott did,

6 Dr. Lott did, if you include white males in the regression

7 analysis, in Hamilton County, which is the only county for

8 which we have that data, you find out that there's -- that

9 there's a negative correlation between increasing black

10 percentages in the precincts and the challenges. It's a

11 statistically insignificant negative correlation. And12 accordingly, it's not evidentially significant. But that

13 demonstrates the problem with Mr. Klinker's analysis.

14 THE COURT: Well, what about forgetting Mr. Klinker

15 and Dr. Lott, and just looking at one of the particular

16 counties affected, and in which your mail survey remains, which

17 are counties with high minority population.

18 MR. BURCHFIELD: Well, your Honor, the counties

19 that -- the challenges are statewide. Mr. Klinker chose two

20 counties that have high African American populations, and he

21 ran his regression analysis using only an African American

22 variable. It's a very flawed analysis. You're right, it

23 further takes our eye away from where it should be, because the

24 challenges are statewide, they're not just in Cuyahaga and

25 Hamilton County. And when Mr. Lott ran the analysis statewide,



41/88

Motion 39 1 again

he found no statistical correlation between the

2 challenges and race.

3 Now, I think Mr. Nields must recognize this, because4 now he's saying: Let's forget about all this fancy regression

5 analysis. Let's just look at the facts that there seems to be

6 a lot of challenges with some of the black precincts. You

7 can't just look at the black precincts standing alone, that's

8 the Greyhound case. You've got to do the regression analysis,

9 and that's what Dr. Lott has done, and it compellingly shows

10 that there's no correlation.

11 As flawed as it is, Professor Klinker's declaration on12 its face helps refute his conclusions. If you look at his

13 declaration, supplemental declaration, which I say for the

14 first time this morning, and I -- you know, your Honor, I would

15 be misleading you if I told you I fully understand all of this.

16 But some things on here are fairly apparent. If you look at

17 page 2 of his supplemental declaration --

18 THE COURT: Let me hold on a minute. Let me see if I

19 can locate it. Let me call your attention to the chart on page

20 2, which shows in -- and you would have to be a statistician,

21 and you would have to do a sophisticated regression analysis to

22 do -- to make much sense out of this, but this chart shows

23 the -- in the left or -- far left hand column, that is the

24 ordering of precincts by the percentage of black population.

25 The second column is the number challenged in precincts falling



42/88

Motion 40 1 within

thin those percentages. The third is the number of

2 total registered voters. The fourth is the number of new

3 registrants. The fifth is the number challenged as a4 percentage of total voters. And the last column is the

5 percentage challenged as a percentage of new voters. In other

6 words, total challenges divided by the new registrants in those

7 precincts. And what you see here is, if you go down to the

8 most heavily African American precincts, you find that the

9 challenges for most -- where -- for the most new voters, are

10 19,069 new voters in those most heavily African American

11 precincts. Seventeen point six percent of those had been12 challenged. But the higher level of challenges are in, as a

13 percentage, are in precincts that have 17 to 80 percent, in

14 fact, the 17.6 percent, or the 90 to 100 percent is not

15 statistically significantly more than the 10 to 20 percent, or

16 the 20 to 30 percent African American.

17 So on the face of it, this does not demonstrate

18 statistically disparate impact, putting aside what the legal

19 significance of it did, if it did. If you look at page 4,

20 which is the chart for Hamilton County, the only other county

21 in the state that Mr. Klinker looked at, you will see there --

22 again, that the most registrants, most new registrants are in

23 the -- in the 0 to 10 percent range. The second most

24 registrants are in the 90 to 100 percent range. But that's

25 again -- that's not the highest -- it's not even -- it's the



43/88

Motion 41 1 third

highest number of percentages of challenges in the 50 to

2 60 percent minority community. That's one of the lower

3 percentages of challenges. And in other words, there is no4 statistical correlation as the percentage of African Americans

5 in the precincts goes up, there's no statistical correlation

6 between that fact and the fact that there are more challenges.

7 In fact, as Mr. -- as the regression analysis shows, the result

8 is exactly the opposite.

9 Now, all of that I think is important to bear in mind

10 because the evidence that the plaintiffs have come forward with

11 for disparate impact is Mr. Klinker. They have never come12 forward with any evidence to show that the mailing by the Ohio

13 Republican Party or the Republican National Committee, for that

14 matter, that's not part of the challenge. They never came

15 forward with any evidence that it was anything other than race

16 neutral. It was sent to all newly registered voters in the

17 five counties. They have not shown that the selection of the

18 person to challenge was anything other than race neutral.

19 They're challenging all of them, an all the newly registered

20 voters that have undeliverable mail either from the BOE

21 mailings, or from the Ohio Republican Party's mailings, and

22 they have not shown any mailings, any other suggestion that

23 there's any racial or ethnic motivation here.

24 So in that sense, there's no disparate impact, and the

25 record on that is white, and I -- we would submit is pretty



44/88

Motion 42 1 clear.

2 Your Honor, I'm coming down the stretch, and I know

3 you're happy to hear that.

4 THE COURT: Plenty of time.5 MR. BURCHFIELD: Let me try to wrap up by just talking

6 about some of the legal principles here. And I may want to

7 take a moment if I could to speak with my colleague, Mr. Smith,

8 and see if he has anything further he wants me to say.

9 Justicibility, as I indicated, the legal issues, Miss

10 Malone is not going to be held regardless of what this Court

11 does. She's going to be challenged tomorrow. She seems to be

12 perfectly steered for that, and willing to go through it.13 She's more committed to vote now than ever before. And so if

14 this Court grants the relief the plaintiff seeks, the

15 intervenor seeks, it's not going to affect her. If you deny

16 it, it's not going to affect her. She's going to be challenged

17 either way by the Board of Elections.

18 THE COURT: That's assuming there's no disruption in

19 the polling place.

20 MR. BURCHFIELD: Assuming there's no disruption in the

21 polling places. But, again, Miss Dillingham, the expert on

22 Cuyahaga County where Miss Malone is going to vote, says she's

23 not concerned about disruption. The Chairman of the Democratic

24 Party in Franklin County, he says he's concerned about

25 disruption in his county. That may or may not be true. I



45/88

Motion 43 1 happen

to think it's not true. But so far as Miss Malone is

2 concerned, Cuyahaga County's Deputy Director, full-time Deputy

3 Director of the Board of Elections is saying they've got a4 180,000 challenges. She's aware of the Ohio Republican Party's

5 intent to challenge. And she says: I'm not worried about this

6 disrupting the process.

7 Your Honor, I would respectfully submit it would be

8 sheer speculation to disregard her affidavit on that point.

9 She's been there for 14 years.

10 Compliance with the decree, we've -- I would submit to

11 your Honor, respectfully, that there's been no Republican12 National Committee involvement in the Ohio Republican Party's

13 challenge. I've gone through the specific e-mails. I've gone

14 through the press conference on October 20th. Indeed, it's

15 telling that the citation that the intervenor has in her brief

16 about complicity in the violation of the consent decree relates

17 to George Wallace's efforts to prevent the registration of

18 African Americans at the University of Alabama in 1963.

19 The RNC does not stand in the same position with

20 regard to the Ohio Republican Party, with regard to the

21 University of Alabama in 1963, and it certainly hasn't done

22 anything that is analogous to George Wallace standing in the

23 door when Medger Evers tried to register until Governor Wallace

24 was taken away by the U.S. Marshals.

25 THE COURT: You got your permits confused.



46/88

Motion 44 1

MR. BURCHFIELD: Your Honor, that's the case they

2 cited, it's not the case I cited.

3 THE COURT: I'm not sure Medger Evers is the4 University -- it was not Medger Evers, he was murdered in

5 Mississippe.

6 MR. BURCHFIELD: I'm sorry, your Honor. There will be

7 no breakdown -- there will be no breakdown in the election in

8 Ohio with these challenges. The weight and persuasiveness of

9 credible evidence that we reviewed I think demonstrates that.

10 There is no disparate impact. Even if there were -- even if

11 the Ohio election process were to be disrupted, and that maybe12 the issue that Judge Delott is focussing on now, whether it's

13 going to disrupt the election process. That's Ohio's concern,

14 that's not the concern of this consent decree, so long as

15 there's no disparate impact, and I believe we indicated that

16 there's not one.

17 And finally, your Honor, to the degree that your Honor

18 believes that there's an adverse effect, that your Honor

19 believes that this activity is within the scope of the consent

20 decree, and that the RNC is involved in it, we have asked for

21 modification of the consent decree so that the activity can go

22 forward based upon a finding that there's no disparate impact,

23 this is racially neutral, that this is in compliance with state

24 law, and that this can be undertaken without serious disruption

25 to the Ohio election process.



47/88

Motion 45 1

THE COURT: Thank you.

2 MR. BURCHFIELD: May I take a moment?

3 THE COURT: Just a moment to visit him.4 MR. BURCHFIELD: Your Honor, Mr. Smith just wanted me

5 to emphasize, and I believe I have covered this, and it's an

6 important point, that is that the Ohio Republican Party is not

7 a party to the consent decree. And an order restraining the

8 RNC would not, by its nature, restrain the Ohio Republican

9 Party any restraints on the Ohio Republican Party, which is not

10 present before the Court right now, we believe would be

11 inappropriate.12 THE COURT: Yeah, unless they are acting in concert

13 with the Republican National Committee.

14 MR. BURCHFIELD: As we believe the evidence shows that

15 they are not.


17 Yes, Mr. Nields, what response do you wish to make?

18 MR. NIELDS: Thank you, your Honor.

19 I'm going to make -- I will be brief, but I have

20 responses to several things that have been said, and I'm going

21 to take them more or less in order.

22 First, Mr. Burchfield was talking about the e-mails

23 that are -- have the subject line voter registration fraud

24 strategy conference calls. And I would note the following

25 about those. They would seem to be relevant to the subject



48/88

Motion 46 1 matter

of our case.

2 The 30B(6) witness didn't know anything about them,

3 and had made no inquiries into them. Several affidavits have4 been provided subsequent to the surfacing of these e-mails in

5 the case. None of them say what they were about or what went

6 on. All we've heard is argument of counsel.

7 The 30B(6) witness testified that nobody at the RNC

8 would discuss fraud strategy with anybody from the Ohio

9 Republican Party. They did whatever procedures were supposed

10 to be in place to make sure that didn't happen, wouldn't work.

11 This string of e-mails talks about numerous conference calls on12 this subject over a period of time.

13 Second, Mr. Burchfield referred to the other string of

14 e-mails, the one that is headed: Cuyahaga returned list. He

15 said -- he pointed to a -- he pointed to an e-mail at the top

16 of the second page of the exhibit. Your Honor was asking him

17 about it, about Jack Christopher, who turned out to be at the

18 Ohio Republican Party sending e-mails about having an IT person

19 create a match list between the BOE's return mail list and the

20 AB request list. And he said: It was just about press

21 strategy. That was just for the purpose of developing press

22 strategy, not challenges.

23 You go to one e-mail up above that, on the first page

24 of the exhibit, and it says -- it says: I would think we are

25 less worried about fingerprints if we have decent evidence that



49/88

Motion 47 1

fraudulent ballots are being cast. I think the intent is to

2 take the list and challenge absentee ballots. This whole thing

3 was about developing a plan to challenge. This was just the4 kind of anti-fraud strategy program and efforts that are

5 covered by the Court's consent decree.

6 The 30B(6) witness didn't know anything about any of

7 those conversations either. And after they surfaced in the

8 case, the Republican National Committee has filed several

9 affidavits by people at the RNC, none of them address what was

10 going on in those e-mails. Other than commenting on them, or

11 interpreting them, I'm talking about nobody who participated in12 them, and no 30B(6) witness talked to any of those people.

13 Then Mr. Burchfield says that I was incorrect about

14 the sorting for zip codes. I was -- there are zip code

15 clusters in the five lists that -- five county lists that had

16 been developed based on the Ohio Republican Party's mailings.

17 But I wasn't wrong about the sorting for zip codes done by the

18 RNC on its list.

19 They are sorted by zip codes, in order. That's how

20 they sorted that list. It's -- it's one of the documents that

21 is in front of your Honor. It has the -- this is highly

22 suspicious, and you'll see that's exactly what they have done.

23 They know exactly where these challenge voters live in the

24 city.

25 They say that this list wasn't used, your Honor.



50/88

Motion 48 1 Counsel

says this list wasn't used. It may be that they got

2 other lists that were bigger and longer, and maybe they -- and

3 used those. It doesn't mean that they didn't use the fruits of4 this work that they did, which told them where the challenged

5 voters would be. And it also taught them that they weren't

6 going to be able to come up with very significant

7 particularized evidence of unqualified voters. That if they

8 were going to have any impact, they were going to have to do

9 major challenges.

10 Mr. Burchfield said that the Cuyahaga procedures must

11 be different or are different from other procedures.12 THE COURT: Well, if you take Miss Dillingham's

13 declaration, that would seem to be true.

14 MR. NIELDS: Except that she relies on the election

15 law. She doesn't say that there are some special Cuyahaga

16 procedures. She says -- she purports to be relying on the

17 election law, which does not provide for this. And it's

18 inconsistent in the practice, and the practice is inconsistent

19 with the election law, and we submit is forbidden by the

20 election law.

21 THE COURT: What about the basis -- we say the

22 practice is forbidden. You mean the practice -- election board

23 judge in the flag situation, taking the person aside and

24 questioning?

25 MR. NIELDS: Treating it as a challenge, requiring



51/88

Motion 49 1 that

the 10-U form be used, taking the person aside. Exactly

2 our expert, we've submitted his affidavit, says that is --

3 there is nothing in the law that requires it, and that is not4 the procedure to be followed under Ohio election law.

5 THE COURT: Well, is there a statute or anything to

6 that effect?

7 MR. NIELDS: He says there is nothing in the law that

8 provides for the kind of procedure that Miss Dillingham is

9 following. And she claims that what she's following is the

10 Ohio election law. That's in her affidavit.

11 THE COURT: You would suppose that this is the way12 they do it in Cuyahaga County.

13 MR. NIELDS: Or it's the way it's sometimes been done

14 somewhere in Cuyahaga County.

15 THE COURT: Well, she's, what, the -- special on the

16 board. She's -- she ought to know.

17 MR. NIELDS: She ought to know, yes. But she is

18 stating that what is being done is there by the Ohio election

19 law and it's not. We think she's wrong about that. And, your

20 Honor, maybe more to the point, Judge DeLott, after actually

21 hearing from witnesses --

22 THE COURT: Including Mr.--

23 MR. NIELDS: She says the sheer number of people

24 present in and around the polling place, the unprecedented

25 number of neutrally registered voters, and the presence of



52/88

Motion 50 1

inexperienced challenges lacking any -- limited by precinct

2 workers who have never before had to deal with such a

3 situation, creates an extraordinary and potentially disastrous4 risk of intimidation and delay. Such intimidation and delay

5 are virtually certain, given the complete confusion among

6 designated challengers, and even between the two top officials

7 of Ohio as to how this process will actually work, voter

8 intimidation severely burdens the right to vote, and prevention

9 of such intimidation is a compelling state interest.

10 THE COURT: But I gather her opinion is based on

11 deprivation of the right to vote, not on a racial impact12 theory.

13 MR. NIELDS: Deprivation of the right to vote caused

14 by the confusion and delays, including the disagreement between

15 the election officials, just such as what we've got here in

16 this court, and that is our position as to how our client and

17 other people who live in her precinct will be injured, your

18 Honor. That's how their vote will be denied. And on the issue

19 of disparate impact, I would say just two things, I believe.

20 Maybe it's going to be three.

21 First of all, the Ohio Republican Party when it did

22 its mailing, picked the five big counties, the five counties

23 with major cities in them. That's where they did their work.

24 Those counties, your Honor, have seventy-three percent of the

25 African American population of Ohio. And they have 34 percent



53/88

Motion 51 1 of the

white population of Ohio.

2 THE COURT: Yeah, but the -- we're not necessarily

3 challenging the mailings. And the results of the mailings seem4 to have been virtually subsumed by the statewide mailings of

5 the State Board.

6 MR. NIELDS: Virtually, although if you see them, the

7 overwhelming majority of return mails and new registrations are

8 in those five counties. Overwhelming --

9 THE COURT: Yeah, but that just happens to be the

10 case.

11 MR. NIELDS: Well, it is the case. But it was the RNC12 who made the decision to take that population and challenge

13 them.

14 THE COURT: But they could have -- they could do it in

15 any event. It didn't require their mailing, they can just do

16 it right from the state mailing, but the challenges apparently

17 are across the board.

18 MR. NIELDS: Well, there are two points, your Honor.

19 I think the, technically the point at issue is that within

20 these counties, within these counties, the challenges are going

21 to be, many more of the challenges are going to be made in high

22 African American precincts. Way more. Way more.

23 THE COURT: How do we know?

24 MR. NIELDS: We know that because Mr. Klinker has done

25 the analysis, and that's what his analysis has established. It



54/88

Motion 52 1 can be

seen, it can be understood by a layman simply from the

2 charts that he is in the very beginning of his affidavit. He

3 is then subjected back to all of the different types of4 regression analysis that their expert said he should, and every

5 single analysis comes out exactly the same way. There is a

6 strong correlation between numbers of challenges and percentage

7 of African Americans. And --

8 THE COURT: Yeah. But if -- let's say a neutral body

9 sent out mailings to all the voters in an area, and it resulted

10 in the return, the returns happen to be higher in African

11 American districts, that's still a -- and they challenged all12 the return mailings, why isn't that a neutral, neutral action?

13 MR. NIELDS: Because the effect of the action falls

14 disproportionately on a minority, and under Voting Rights Act

15 Law, and we've cited cases, and under your Honor's consent

16 decree, that is what matters. That is what matters. There is

17 a large number of first time African American voters who are

18 going to go to the polls this year, and for the first time

19 there is a colossal challenge to their right to vote. That is

20 no way for this country to greet huge numbers --

21 disproportionate numbers of first time African American voters.

22 There will be a discriminatory effect and under Voting Rights

23 Act Law, and your Honor's consent decree, that is unlawful and

24 it triggers the consent decree.

25 THE COURT: Well, suppose we take the County Board's



55/88

Motion 53 1

mailings, their mailings resulted in what they resulted in,

2 their returns, and the returns happen to be higher in African

3 American districts than in others. Is their flag procedure4 thereby illegal and discriminatory?

5 MR. NIELDS: There's no problem, your Honor, with the

6 flag procedure, as we understand it, as we understand the flag

7 procedure. And there would not be a problem with a procedure

8 that took all newly registered voters and treated them the same

9 way, as long as there wasn't a danger that you were going to

10 prevent them from voting. What makes -- what's happening here

11 perniciously, is that it's being done on a massive scale,12 without any effort to zero in on who actually is and isn't

13 entitled to vote. It is a massive over broad challenge.

14 That's point one.

15 And point two is it is going to lead to confusion and

16 chaos in the polling places, just as Judge DeLott found and

17 that chaos and confusion is going to fall desperately on

18 African American precincts and African American communities.

19 That's the problem. That's the problem. If this were five

20 returned mailings, and five challenges, we might look at it but

21 it wouldn't interfere with the right to vote. But 35,000

22 challenges --

23 THE COURT: Thirty-seven hundred.

24 MR. NIELDS: Well, 23,000, whatever's left of it.

25 They started off with it, and the system has been able to



56/88

Motion 54 1

kickback only -- if it ever got more, it only got a beginning

2 of a process. There's now a huge 23,000 over broad category of

3 people, only a tiny percentage of which is properly4 challengeable. And all of them are going to be challenged and

5 the consequence of that, as Judge DeLott has found, is chaos in

6 the polling places and interference with everyone's right to

7 vote in those polling places. And those polling places are

8 disproportionately African American. And that you can't do.

9 This country just isn't going to do that to those people in

10 those precincts in that way. It violates the law and it

11 violates the Court's consent decree and we ask the Court --12 your Honor, to take action.

13 THE COURT: What would the decree in this case add to

14 Judge DeLott's order? An injunction in this case adds to the

15 effect of Judge DeLott's order.

16 MR. NIELDS: Well, if Judge DeLott's order is upheld

17 on appeal, I think it would match it. In other words, I think

18 it would not add anything, it wouldn't do any harm, it wouldn't

19 add anything. But that ruling, we don't know what's going to

20 happen on appeal. And this Court has a different party, in a

21 different case, and it's a different issue. The issue is

22 whether the RNC is acting in compliance with the consent

23 decree, it's not the issue that's over there. The outcome

24 maybe the same, but it's a different issue. If we've

25 established that they are about to act contrary to the consent



57/88

Motion 55 1 decree,

and we believe we've established that, procedurally,

2 because they didn't ask for approval and substantively because

3 of the impact of what they're doing is going to have, we would4 submit that it's improper and appropriate for your Honor to

5 enter the relief request.

6 THE COURT: All right. Well, I'll reserve decision.

7 MR. NIELDS: I want to say one other thing.

8 THE COURT: Not for very long.

9 MR. NIELDS: We have just learned about a list that

10 the RNC developed from mailings very similar to this, made to

11 Florida. It was covered in the Miami Herald just yesterday.12 And we would request to be permitted to take very brief

13 discovery about that this afternoon.

14 THE COURT: I think it's a little late.

15 MR. NIELDS: Okay.

16 THE COURT: Late in the game.

17 Mr. Genova.

18 MR. GENOVA: May I, your Honor, from here, your Honor?

19 THE COURT: Yeah.

20 MR. GENOVA: Your Honor, I want to alert the Court

21 that my client, the Democratic National Committee, having had

22 the benefit of the discovery in this proceeding, chooses to

23 join in the application of the movant in this matter. I'm

24 prepared to argue the merits and Mr. Nields has covered most of

25 it. I'll defer to the Court in terms of its schedule, but I



58/88


59/88

Motion 57 1 unfair.

They've been on notice and it should be -- we urge

2 your Honor not to allow it.

3 I would also add, your Honor, that there's a4 procedural difficulty that relates back to the point I raised

5 before, which is the intervenor here and the Democratic Party

6 to the degree that they want to join this proceeding, have not

7 named the Ohio Republican Party as a party to this proceeding.

8 And even if it were to show complicity, my understanding is

9 that the Court can enjoin the Ohio Republican Party, unless

10 they have the opportunity to appear and be heard, and they have

11 not been served, they have not been notified, and they have12 not -- certainly

Documents

Vote Suppression Hearing Transcript