Monday’s trial recaps are here and here. Tuesday’s trial recaps are here and here. Wednesday morning is here.
Wednesday April 6, 1PM
After 45 minutes for lunch, we are back to hear the defense ask for a dismissal.
There is a rehash of the original motion heard on Monday. This trial is an unprecedented action. It doesn’t follow normal procedures for injunctions and hearings. There are no industry, professional or legal standards to weigh the experts. The burden of proof hasn’t been met, although that is partially because legally it isn’t even defined. This complaint shouldn’t be in state court. Plaintiffs haven’t proved their case. Citing a map as an outlier can’t be a legal standard for a single judge to overturn a constitutionally prescribed legislative action. This plaintiff evidence wasn’t brought to the legislature and the judge has no authority to hear it now.
Plaintiffs knock each one of these arguments down and maintain they have provided overwhelming evidence to continue.
The judge is sympathetic to the defense position about standards, but the lack of text or statute on a subject can’t mean that one branch has unfettered control and there is no place for other branches of government in this process. The amount of evidence is indeed overwhelming. As to the amount of gerrymandering legally allowed verses what is present in this map; the judge also asks the defense rhetorically, is allowing one Democrat really too many? This case will continue. Motion to dismiss denied.
First defense witness is Brad Lockerbie, professor of political science at East Carolina University, presented as an expert on race in politics and gerrymandering. Objection. Will allow for now, but subject to cross.
He was contacted on March 10 to review plaintiff reports and provide criticism. His opinion of Ad Astra is it doesn’t appear to be either a racial or partisan gerrymandered map. It appears fairly standard as the product of a legislature controlled by a single political party. He claims it might be on the edge of an “outlier” by some measures, but it’s compactness scores are certainly within normal ranges.
He is asked if he reviewed the Princeton Gerrymander Project. He has and notes they score CD-3 with a 60%+ chance of a Democratic win. He is asked about COI and says they are not defined. Anything could be considered, including economic, university and hospital communities.
Cross.
Q — Your report simply criticizes the work of 3 of the 6 experts? A — Correct.
Q — Unlike Dr. Miller, you are not an expert on Kansas geography, history or COIs. A — No. Q — Never been published on that? A — No. Q — Do you teach specifically about Kansas history? A — Yes, Q — Rephrase, outside of Brown v. Board of Education, do you teach about Kansas history? A — Well, I also talk about the fire raids with Quantrill during the civil war.
Q — Were you educated in Kansas? A — No. Q — Have you ever previously traveled to Kansas? A — I think my wife and I went through the airport on the way to her cancer treatment.
Q — Unlike Dr. Collingwood, you are not an expert in RPV or “EI”. A — Correct. Q — You aren't an expert in the methodology; you’re just offering your opinion. A — Correct. Q — You’ve never been published on the topic of redistricting? A — No.
Q — One of your criticisms of his report was a reference to using 10 election cycles data, when it was really 9 cycles? A — Yes. Q — You realize that has since been noted simply as a typo and corrected? A — Yes. Q — That typo didn’t impact the accuracy of the report? A — It did not.
Q — Unlike Dr. Chen, you aren’t an expert in statistics? A — I’m not. Q — You didn’t attempt to replicate Dr. Chen’s work? A — No. Q — You haven’t built any models? A — No. Q — Run any simulations? A — No. Q — So you can’t prove that anything in his work or report is actually wrong? A — No.
Q — You aren’t an expert in the Efficiency gap (EG)? A — No. Q — Have you drawn your own map? A — No. Q — Your analysis was the Ad Astra map is not racially gerrymandered or not a overly partisan gerrymander? A — Correct. Q — But you didn’t use any accepted statistical or other methodology to confirm your opinion? A — Correct.
Q — You didn’t address the work of the other 3 plaintiff experts? A — Correct.
Q — One of your criticisms of Dr. Miller’s report was he didn’t cite historical newspaper articles in his history of race in Kansas. A — Correct. Q — Do you realize that Dr. Miller was referencing an award winning book in his report? A — I did not review that book or source. Q — Would you agree that looking at the contents of the referenced book, it actually cites several different newspapers of the time. A — Yes, it does.
Q — You said the Ad Astra map is not an outlier when compared to other maps throughout history. A — Correct. Q — One of the results of Ad Astra is possibly providing a complete majority congressional delegation to a single party that represents less than 50% of the voting electorate. A — Yes. Q — When has that happened previously in US history A — 1700’s to 1830’s Q — That would have been when Kansas was not yet a state? A — Probably, yes. Q — That would have been a time in this country when our elections were not particularly good about ensuring equal voting rights? A — Yes. Q — For example, women could not vote. A — Correct. Q — Blacks were counted as 3/5ths. A — Yes.
Q — Your expertise stems from and is limited to opining on political discussions. A — Yes
Motion to disqualify witness as an expert. The judge does not grant the motion but comments the attorney was abundantly able to highlight the weaknesses of his background and testimony during cross and that certainly stands.
The second defense witness is Dr. Alan Miller, a professor of law and economics at Western University in Ontario, earning his M.S. and PH.D. from California Institute of Technology.
In general, he is critical of the Efficiency gap (EG). It’s a flawed method and shouldn’t be used as a judicial or legal benchmark. He is looking at partisan gerrymandering only, not racial.
He talks about two additional EG formulas, stating plaintiff experts should have used different formulas, to the extent they should be allowed at all. Objection, these formulas offered are not in his report and we weren’t notified of new evidence. After much back and forth, he will be allowed to continue if a direct line can be drawn from these new formulas to criticisms already in his report.
He continues talking about problems applying EG to small states. That some elections run in Kansas (and data used) were in uncontested congressional races. Economic theory arguments about marginal costs and benefits, instead of waste (wasted vote margins in EG) are offered. When applying EG in election results, every vote over 50% is considered “wasted”, which isn’t a practical standard. That’s “flawed”. Gerrymandering is just about a majority party optimizing their advantage, which is a good thing in economics.
The defense attorney doesn’t seem to be big on math, so the few questions asked are very open ended. Dr. Miller, tell us about table 3. These turn into long winded, non-focused answers. At one point, plaintiff’s attorney objects, asking what the question was and points out the witness has been talking for six straight minutes. The judge agrees. For the system to work, defense needs to ask appropriate questions. Let’s start over. We simply end with a conclusion that no other method other than EG was offered by one plaintiff expert.
Cross begins with an apology. I would normally say, nice to meet you or glad to see you again; but I’ll just say I wish we would have met under different circumstances.
Q — Your report is a criticism of 1 expert witness and doesn’t address the 5 others? A — Correct.
Q — Your paper criticizing the EG wasn’t peer reviewed? A — Correct. Q — It was published in the Virginia Law Review? A — Correct. Q — At the risk of being disrespectful to the people at The Review and I’m sure it’s a good institution, but this is just a student newspaper, correct? A — I think that’s right. Q — So your paper is a non-peer reviewed opinion which only appeared in a student newspaper. You also claim to have published a second criticism on EG with other authors? A — Yes. Q — Let’s look at those side by side. It appears on the first page you changed the words “I found” to “We found”, and one other similar change at the bottom of the page. There were no other changes, updates, or original work. Is it safe to say you just copied and pasted your non-peer reviewed work to this publication? A — The changing to allow other authors is standard.
Q — When did you start working on this case. A — About 12 days ago.
Q — Can you tell us what this invoice is for? (Itemized bill to defense team is displayed for the court). A — That an invoice for my work on this trial.
Q — How much is your hourly rate? A — $750.00.
Q — How much is this bill. A — $50,900.00.
Q — How much additional work have you done since this bill / how much more will you be billing? Probably about another $51,000.00.
Q — That’s a lot of work for a few weeks. A — I’ve put in some long days.
(Well, I agree - I’ve seen him sitting in the courtroom for the last three days watching the trial.)
Q — Your report talks about doing “thought experiments”. As an attorney, that sounds like discussing “hypotheticals”. Would you agree? A — As an attorney, I don’t think that’s completely correct. Q — OK, will limit our questions to some thought experiments.
Q — One of your criticisms was a thought experiment discussing application of EG to an absurd election were a political party has 100% support, which would produce an absurd result. A — Yes, that’s in the report. Q — Yet, plaintiff expert never used such a scenario and even specifically excluded one party races where results were over 95% for the winner. A — Yes.
Q — You state a theory fails and should be rejected when it is disproven under extreme circumstances. A — Yes. Q — That EG should be rejected because it fails in extreme situations like 100% party votes or when applied to small states. A — Yes
Q — Let’s do a thought experiment. Sir Isaac Newton came up with the theory and eventually law of gravity when he saw an apple fall to earth (lawyer drops an object). Now we move forward hundreds of years, into the era of space travel. When I drop an apple in space. It does not fall. Does that mean we need to reject the law of gravity simply because we have now found an extreme condition that seems to prove that theory doesn't work within that extreme condition? A — I don’t think that’s a good example.
Q — OK, lets do another one with the law of small numbers. A — I’m not familiar with that. Q — It’s a theory advanced by a Nobel Prize winner. A — OK, I’ve heard of that. Q — You said we shouldn’t use small samples, like states with only 4 congressional districts because there aren’t that many. A — Yes, Q — So by that logic, we should exclude studying samples using states spelled with only six letters. That’s also a small sample. A — That’s different.
Q — You seem to think crossover type comparisons aren't very good. Would you also agree applying economic theory and behavior to politics and voters is not a good comparison. A — I’m not sure it is.
We end close to 6PM.
After these two defense witnesses charitably underwhelmed, they float a different strategy.
We’re all ready to call it a day and since I know we all want to get this case closed, let’s just submit our last witness by declaration and stipulate to a limited scope of testimony and cross. Plaintiffs attorneys unanimously are shaking their heads. Absolutely not, we want all witnesses called and crossed. The judge agrees.
We are back on Monday for a last defense witness and possibly two plaintiff witnesses for redirect. Then closing arguments. We’re nearly done.