The Tuesday morning session (including Dr. Warshaw’s testimony summary) is detailed here. Monday’s recaps are here and here.
April 5th, 1:30PM
Cross examination of plaintiff witness Dr. Christopher Warshaw.
Q — Is EG used to draw more partisan maps and hurt minorities. A — No, it’s a tool to grade districts. Q — Do you always find extreme bias? A — No. Q — Aren’t you involved in a total of five different state lawsuits where you claim extreme bias? A — I have been involved in several cases and testified to extreme bias in maps drawn, but that bias was also confirmed as fact by the independent courts in OH and PA. For example, OH drew a 13-2 map which met the numeric definition of extreme bias and the map was rejected by the court. I have been involved and done research in more than five cases, but haven’t been called to testify in cases where there isn’t extreme bias as defined by the numbers. Q — Isn’t Kansas a lopsided state, with the GOP winning average statewide margins of 59% — 41%, a number confirmed in your report? A — Those averages are correct. Q — Over the last ten years, there were four congressional races every two years, which totals 20 races. You predicted that Democrats would win 2 congressional races and lose 18 in your analysis of the new map? A — It’s not a prediction, but using election data applied, the Democrats would have won twice. If there was no GOP bias, I would expect Democrats to regularly win 1 congressional seat in each cycle. Q — Isn’t this a small sample size and the type of candidate change the results? A — That is why statewide data is used in analyzing maps, to remove variables about individual candidates in each district. In western Kansas, Democrats might be discouraged from voting in a congressional race because they never win and that would skew rating the district. However those Democrats vote more evenly in statewide races and is a better data set. Q — Isn’t EG subject to criticism in your field? A — Everything is debatable.
There are several questions covering the already discussed problems of using EG in states with 1, 2, or 3 districts. Q — You don’t rely on EG with 3 districts because it’s “if-y”. A — I haven’t don’t studies on 3 district states. Q — You’ve written that ‘caution’ should be used applying EG in states with 4 to 7 districts? A — Yes. Q — States with 10 or more districts are ideal? A — In general, yes. Q — Why did you excluded 2014 election data in your report on Kansas? A — Reliable precinct level data from the state was not available. I would have like to included all election cycles, including 2014.
Q — Are you familiar with the polling data in Plan Score? A — Yes, but It’s not a polling site. Q — This is a site put together by the best and brightest in the field. Aren’t you on the board. A —Yes, I am on the board and assisted in the build out. Q — Doesn’t the projection for CD-3 in the Ad Astra map show Sharice Davids has a 62% chance of winning. A — Could you scroll down on the table? OK, the remaining table information is chopped off. First, that is not a prediction. The number is calculated using recent election data, with Donald Trump in 2016 and Kris Kobach in 2018 on the ballot, which were very favorable to Democrats. It is not specific to Sharice Davids as a candidate. It is also represents the highest mark for a Democrat in the Ad Astra map. Using other non-gerrymandered maps, like Buffalo 2 and Sunflower, which do not have GOP bias, the chances of a Democrat winning is higher. Q — Did you rate Ad Astra 1 or 3? A — No, just the passed map. Q — So you don’t know if those might have been more GOP biased? A — I didn’t rate them at all. Q — But you kept Sunflower and Buffalo 2. A — As standard practice, we keep submitted plans.
Q — What is considered extreme EG? A — 15% would be borderline. Q — Could the 22% rating being random? A — It’s the results of election stats. Q — Do you compare EG result differences in independent commissions verses legislatures? A — No. Q — Doesn’t the previous Kansas map drawn by the 3 judge panel have a 15% rating, which is considered borderline biased or gerrymandered — Is that surprising? A — No, they may have not had the tools to review their work. Their map may have been drawn based on the 2002 map drawn by the legislature, which could have had bias. It’s still less extreme than the current Ad Astra map. Q — Do you use really big states in your ratings? A — Yes, and verified results fall into expected patterns. Q — Comparing results from California with 55 seats verses a state with 4 seats doesn’t seem like a good comparison. Did you do other isolated comparisons with other states with just 4 seats? A — No. Q — Doesn’t using these other large state extremes skew “bias” results against small states? A — Even excluding California as the largest sample, the Ad Astra results still fall in that overall outlier 90% to 95% range.
Q — You still believe using EG in small states with 4 -7 seats is valid? A — Yes, while using caution on the lower end. Q — Looking again at Plan Score, what is the message for Kansas when the public tries to find ratings? A — From the website:
“No plan data are available for the selected district type.
Try a different district type.
We do not show data on the partisan fairness metrics in states with less than seven districts because the metrics in these states tend to be more volatile and thus less informative about partisan bias. For example, in a state with only three congressional seats, a change in the winner of one seat could cause a huge shift in their efficiency gap.”
Q- Why do you exclude Kansas and other small states on this industry leading website? A — As I remember, we were rolling this out very quickly. This site is public and allows users to upload their own maps and we want to provide the most accurate tool possible. If we had time, we would have built the additional tools and formulas that would allow for uploading and rating states with 4-7 seats, but didn’t have time. We wanted it to go live quickly, so excluding 4-7 was the conservative thing to do. Can we scroll down to check links and additional data? (The defense is only showing a captured screenshot and not the live website. Plaintiff objection, we intend to admit the full website as evidence and use in redirect)
Redirect, Did you look at Mushroom Rock? (Map that kept Johnson County together but was rejected by the GOP). Yes. Q — What were the results for CD-3? A — Democrats would win the seat most of the time. We also look at the Plan Score website and see a library of other submitted maps and ratings for Kansas.
Next expert is Dr. Patrick Miller, an Associate Professor of Political Science at Kansas University and taught previously at University of Cincinnati. He was a Postdoctoral Fellow at the Duke Initiative on Survey Methodology, Duke University. He earned his Ph.D. in Political Science (with concentrations in American Politics and research methodology) from the University of North Carolina (and appears here the day after KU beat North Carolina in the national final of the NCAA Basketball Tournament). He is called as an expert in Kansas politics, elections, demographics and racial history. Objection to witness. Judge finds this is a closer call than others but will allow and expertise can be questioned on cross.
Kansas population growth in concentrated in the metro areas and is driven by minorities. The vast majority of Kansas counties lost population since that last census. Half of the Kansas population now lives within four counties. While the states population grew by 3% over the last decade, the white population decreased by 4.3% over the same time. It’s clear all of the population growth is in minority communities.
Race is a foundational element in Kansas history, dating back to its role in the civil war and state sponsored discrimination. Large school districts were segregated. Dr. Miller described the New Deal’s National Housing Act and the financing grades in the Kansas. Large sections of Wyandotte County (particularly areas around the Kaw River and where I-70 was eventually built) were mapped and graded as a “D” for being unfavorable. These identified areas were blocked off by red shading and borders and that systematic practice is where the term “red-lining” originated.
Turning to race implications in the Ad Astra, by splitting Wyandotte along I-70, CD-3 goes from being the most diverse congressional district in Kansas (32%) to the least diverse (25%). The heavily minority populated sections of Wyandotte north of I-70 are moved to a safe GOP district. They become electorally irrelevant. 90% of the new population moved into CD-3 is white, diluting the minorities kept in CD-3.
CD-3 only needed to lose about 45,000 in population from Johnson or Wyandotte. Moving that population from Wyandotte represents splitting 26% of the counties population. In comparison, moving that number from Johnson County would only represent removing 9% of the population and would be far less destructive. Ad Astra goes beyond the required movement by splitting 115,000 of Wyandotte’s population out of CD-3.
In the 2012 map, CD-2 contains 4 Indian reservations and Haskell University in Lawrence. Those communities are split by Ad Astra. Lawrence is removed from Douglas and CD-2 with surgical precision. CD-1 is narrowly drawn east and scoops down to collect the 95,000 people in Lawrence. Driving west to east along I-70, you would start in the CD-1, driving into the CD-2 in Junction City, back into the 1st south of Manhattan, back into the 2nd around Topeka, back into the 1st at Lawrence, and back into the 2nd in rural Douglas.
CD-1 is unique in it’s agricultural base, broadband challenges, and energy economy (oil, gas and wind). Blending Lawrence with such a large rural district isn’t coherent policy and serves neither community.
Cross at 4:15. It begins with asking why Dr. Miller thinks he knows better than the legislators elected to perform the redistricting task. A — He’s just sharing his knowledge and he isn’t offering it as a comparison to members of the legislature. Q — You’re not a constitutional expert. A — No. Q — Does your report reflect analyzing the full Ad Astra packet? A — No, I wasn’t provided that detail. Q — You are using Dave’s Redistricting website? A — Yes, and I believe that includes valid data representing Ad Astra and is a peer reviewed site. Q — You made conclusions based on the states “guidelines” and their role in redistricting, but aren’t a constitutional expert. Objection. Q — Are “guidelines” law or statute? A -No, but they were accepted by the House committee and joint committee.
Q — The first guideline is to not purposely dilute minority votes. Do you know what was inside the heads of legislators that drew the map? A — No. Q — Is there anyway to measure “dilution”? A — That can to be measured in the context of history. The map tells a story. Q — Is NW Wyandotte similar to southern and western Johnson? A — The far NW corner would be. Q — Wouldn’t it be just a legislative judgement to make a choice of splitting Western Wyandotte over southern Johnson? A — Removing the NW corner could be, but there are not 35,000 people living there that would satisfy the redistricting requirement. The maps line would have to be drawn east into the dense metro area to get the required population number and those areas are not like rural areas in southern Johnson. Q — If Davids wins CD-3, wouldn’t that mean the minority preferred candidate still prevailed and they weren’t harmed? A — No, 115,000 were still removed from Wyandotte in Ad Astra and they don’t get their preferred candidate being in a safe GOP district. Q — Isn’t I-70 and the Kaw River a landmark, which is valid for boundaries and communities of interest? A — Well, as a community, nobody lives in the river; but in context of neighborhoods if you can tell a story about similar and linked communities, that could be a consideration, among others.
One more break. Judge Klapper asks about scheduling for Wednesday and beyond. He wants to be sure all witnesses are heard on the record since this venue is a “weigh station” on the way to the Supreme Court. It’s almost certain this will need to extend to Monday.
5:15, last witness, Douglas County District 3 Commissioner Shannon Portillo. She is also an Associate Dean of KU’s Edward’s Campus in Johnson County. Her Douglas County district includes SE areas of the city of Lawrence and rural SE Douglas County. She explains Ad Astra not only splits her district, but it displaces all of them. It moves her urban residents into the rural CD-1, and it moves her rural constituents into a more suburban / urban CD-2 (which would now include north KCK). Asked about linking KU and KSU, she make the distinction that they are two different types of universities. KU is a tier 1 university that is very active in federal grants and is a top research institution. It has a law school and medical school. KSU has neither, although it does have one of the best veterinary programs in the country. While KU is a major influence in Lawrence, it is not the sole interest of the city. KSU dominates Manhattan in a larger way. It would be fine to put them in the same district if possible, but not at the expense of more relevant criteria. The only thing people in Lawrence and western Kansas have in common is they are both Kansans.
One more motion to hear. The defense asks for the last two plaintiff witnesses be dropped from the schedule. They argue the expert testimony is now overlapping and there is nothing new that will be covered with additional witnesses. The Douglas County litigants counter that they haven’t called any of their witnesses yet and need their separate experts. The judge agrees that while there is some overlap, each expert has added a different and additional layer and they will be allowed to continue. One of the plaintiff witnesses has a medical issues and can’t participate Wednesday. They may need to submit a declaration or try to call on Monday.
Back on Wednesday morning.