1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 CIVIL ACTION (DRD)

Transcription

1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 CIVIL ACTION (DRD) 3 DEMOCRATIC NATIONAL COMMITTEE, : TRANSCRIPT OF PROCEEDINGS et al., : 4 : M O T I O N Plaintiffs, : 5 : -vs- : Pages : REPUBLICAN NATIONAL COMMITTEE, : 7 et al., : : 8 Defendants. : Newark, New Jersey November 1, B E F O R E: HONORABLE DICKINSON R. DEBEVOISE, 12 SENIOR UNITED STATES DISTRICT JUDGE A P P E A R A N E S S: 15 EDWARD A. HAILES, ESQ., 16 Attorney for Intevenor Malone 17 JOHN W. NIELDS, ESQ. 18 Attorney for Intevenor Malone Pursuant to Section 753 Title 28 United States Code,

2 as 22 following transcript is certified to be an accurate record taken stenographically in above entitled proceedings MOLLIE ANN GIORDANO Official Court Reporter MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

3 1 2 APPEARANCES - continued 3 GENOVA, BURNS & VERNOIA BY: ANGELO J. GENOVA, ESQ. and 4 PETER J. CAMMARANO, III, ESQ., Attorneys for Plaintiff 5 6 DUGHI, HEWITT & PALATUCCI WILLIAM J.PALATUCCI, ESQ., 7 Attorney for Defendant 8 McDERMOTT, WILL & EMERY 9 BY: BOBBY R. BURCHFIELD, ESQ. Attorney for Defendant 10 BELL, GAGE & HARBECK 11 BY: DOROTHY A. HARBECK, ESQ., Attorney for Defendant

4 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973)

5 Motion 3 1 THE COURT: First I would ask you if eir of you 2 received opinion of Judge DeLott? 3 MR. NIELDS: We don't have opinion. I had 4 portions of 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 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 same issues, 11 and as far as factual matter and concern, that covers a lot 12 of same grounds. All right. Well n, 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 Court, that we had 16 attached to our papers second list, list that had been 17 done from mailings by Republican Party of Ohio in

6 18 September, and he discovered that we attached first list, 19 list that had been made up from mailing by 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 30B(6) deposition, and it turned out it was 25 mentioned on an as being on someone's computer, and so 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

7 Motion 4 1 we asked for it, and y produced it, Saturday. Yeah, 2 yesterday. 3 THE COURT: All right. What use will that be to me at 4 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 record and available to Court. 10 THE COURT: All right. 11 MR. NIELDS: And I have said, and my papers have said 12 in my argument, it reflects same kind of analysis that's in 13 column way off to 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 Court, an argument if your Honor wants it.

8 18 THE COURT: I don't think I'll have time. I have to 19 do something by sometime before end of day. So I don't 20 think we'll have time to listen to 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 plaintiff or intervenor, Miss 25 Malone, is asking for here. I think you alluded to this MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

9 Motion 5 1 She's not here as a representative of a class. She's here on 2 an individual capacity. And that is basis upon which on 3 Thursday you allowed her to participate. Is she seeking 4 enforcement of consent decree through something in 5 nature of contempt, citation? If that is 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, 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 decree. 14 Second, is she seeking a preliminary injunction here? 15 And if she is seeking such an injunction, given strict 16 requirements of entry of an injunction in federal court,

10 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 Ohio Republican Party, n 20 that would be extent of injunction, I would 21 respectfully submit to you. 22 Thirdly, is she seeking some sort of modification of 23 consent decree to expand scope of consent decree to 24 cover activities in Ohio of Ohio Republican Party based 25 upon assumptions that Republican National Committee is 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

11 Motion 6 1 involved in those activities, so it would be a wide scale 2 modification of consent decree. And, again, re are some 3 questions about propriety of that. 4 You also have before you our requests to modify 5 consent decree to confirm that se activities are 6 appropriate, normal poll watching activities that your Honor 7 has sanctioned in 1987 version of consent decree 8 because y are consistent, as is shown in state law. The 9 State law may not be good law, but it is state law and 10 challenges are predicated upon that. 11 Now, with that as a background, is she here seeking 12 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 re may not be much difference

12 between 20 those two. If your Honor issues an order indicating that 21 Republican National Committee is not in compliance with 22 decree, and a furr order indicating what it must do to bring 23 itself into compliance with decree, that sounds pretty 24 close to civil contempt to me. 25 THE COURT: I think contempt is when you're seeking a 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

13 Motion 7 1 penalty. Enforcement of 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 somewhat 4 expanded interpretation of decree. In any event, I want to 5 register my concerns. It's a little unclear what Miss Malone 6 is seeking and what 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 Republican National Committee not to use list as a 10 basis for challenges, and to instruct Ohio State Committee 11 and poll watchers not to challenge on 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 wher she's entitled to 15 that relief and wher that relief would be appropriate. If

14 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 se 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 re 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 affidavit of Mr. 25 Ryan Smith, who has gared toger evidence, media articles 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

15 Motion 8 1 showing criminal investigations and significant concerns about 2 invalid registration, forced registration, dead people being 3 registered, and so forth throughout State of Ohio. It is a 4 palpable concern within Republican Party that re are 5 serious irregularities going on. It is refore, I would 6 submit to your Honor, it would be surprising if re had not 7 been discussions within RNC about what if anything RNC 8 can do about it. I will come to those s and explain to 9 you how re's nothing in those s that demonstrates 10 anything inconsistent with decree. In fact, I will show 11 you that 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 through 21 she indicates several examples that she knows

16 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 some of Miss Malone's registration we have reason to believe 21 were submitted as part of Project Vote effort, so re is 22 palpable evidence, credible evidence out re of voter 23 registration irregularities. What intervenor wants you to 24 do is to completely immobilize, not just Republican 25 National Committee, but Ohio Republican Party from taking 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

17 Motion 9 1 any action, even within parameters of state law to 2 challenge people who were suspicious registrants on Election 3 Day. That's a pretty extreme remedy, especially in light of 4 what we know is going on out re in 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 records of Cuyahaga County Board of Elections 9 that prove it. I've blown that up. It's right here on 10 board. 11 And as I referred to earlier this morning, first 12 blow-up is cover page where you plug in Ebony Malone's 13 name. Bonnie S. Malone, born on 5/1/84, is intervenor 14 here. She's on bottom of that list. If you punch in that 15 name, you get information that we've set forth in Miss 16 Dillingham's affidavit of four registrations by Miss Malone 17 in last year and a half at two different addresses,

18 none of 18 which match address that she's indicated in her 19 declaration. We do understand at her deposition she corrected 20 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, key point here, your Honor, is as of 24 October 4, 2004, mail was returned to Board of Elections, 25 official correspondence that y send to every 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

19 Motion 10 1 newly-registered voter marked "undeliverable" to Board of 2 Elections, and y have changed her status on ir records 3 from A, for active, as it was shown in December, 2004, to I for 4 inactive. The result of that Miss Dillingham says under 5 process of Cuyahaga County, 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 re are now 9 four affiants in this case regarding procedure. There is 10 Miss Dillingham, who submitted a very extensive, very detailed 11 declaration. There is Mr. Mattson, who submitted a very 12 extensive and very detailed declaration with regard to Stark 13 County of Ohio. And n re is Mr. Burke who submitted, in 14 our view, a somewhat conclusory affidavit. And n re

20 is 15 Mr. Anthony, affidavit that was submitted this morning by 16 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 case that county will 25 send mail to voters and have mail returned as 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

21 Motion 11 1 undeliverable. Five: When this happens, voter's name will 2 be placed in signature box that is used by election judges 3 on Election Day. And skipping down to paragraph 8: If 4 voter states address is different, but my address is still 5 within same precinct, voter is given a new registration 6 form to complete and is n allowed to cast a regular ballot. 7 Such a voter does not go through 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 10-U voter procedure, as what 11 happened in voter -- personally So difference 12 appears to be that in Cuyahaga County in which Miss 13 Dillingham's testimony is uncontroverted, that a voter 14 challenged by Board of Elections, will have to fill out U form, which Mr. Nields does not like, versus Franklin

22 16 County, where voter has to fill out a new voter 17 registration form. 18 Well, if you look -- if you look behind Mr. Matw's 19 declaration, and that is THE COURT: Excuse me. Where is his declaration? 21 MR. BURCHFIELD: It is in our submission, your Honor, 22 in behind tab E of pile of paper that we served on you 23 yesterday. 24 THE COURT: All right. 25 MR. BURCHFIELD: And if you look behind tab 1 of Mr MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

23 Motion 12 1 Matw's declaration, you find 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 bottom of that, of 4 that voter registration form, your Honor, same warning that 5 appears and of such concern to Mr. Nields on form 10-U. On 6 bottom of that form it says: Whoever commits election 7 falsifications is guilty of a felony of 5th degree, and 8 indeed that is law of Ohio. Wher you fill out a false 9 voter registration form, or wher you fill out a false form U, or wher you vote under an assumed name, if you commit 11 voter registration -- voter fraud, you're guilty of a felony in 12 Ohio, as you are in most states. That's stated on form. 13 So, your Honor, at end of day, 14 disagreement here about wher BOE challenges differ 15 substantially among counties really is a tempest in a

24 16 teapot. But most importantly, I would emphasis to your Honor, 17 for purpose of Article 3 standing here, person to look 18 at is Miss Malone and county to look at is Cuyahaga. And 19 evidence we have in Cuyahaga County, if Miss Malone shows 20 up at 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 same 23 process she would go through if she were challenged by a 24 Republican Party of Ohio polling THE COURT: She'll have to go ten feet away and sign 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

25 Motion U form? 2 MR. BURCHFIELD: In Cuyahaga County, that's correct, 3 from Miss Dillingham's affidavit. 4 So, your Honor, basic point here is re'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 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 challenge to 11 your registration convince m," she's talking to members of 12 her family, "that y should not vote, to your knowledge? No, 13 it didn't convince m. It furr convinced m to 14 point of voting, rar than discouraging m from voting. It 15 encouraged m to vote; correct? Yes, it encouraged m to

26 16 vote just on principle, if you know all technicalities 17 going on about election." 18 And n skipping down to page 100. "Even after that 19 discussion about fact that it would be a long, drawn out 20 process, y still indicated to you that y were encouraged 21 to vote; correct? 22 "ANSWER: Yes. That just encouraged m furr to push 23 things through and vote." 24 The suggestions, counsel's arguments, as eloquent as 25 y are, about deterring people from voting through this 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

27 Motion 14 1 process, simply do not stand up for ir own client, who is of 2 course, since this isn't a class action, focus of court 3 here. So she's going to be challenged, number one, and nothing 4 that this Court will do with regard to 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 long lines to vote, she's committed to cast her ballot 11 tomorrow, and that's good. But it certainly doesn't indicate 12 that re's a live case or controversy here with regard to 13 this particular plain. 14 Again, let me just reemphasize. To degree that

28 15 re are variations within counties of Ohio in terms of 16 how y deal with people who are flagged on registration 17 list, 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. Matws, 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 end of 23 case, I would submit, your Honor. If re's no case or 24 controversy, if it's not justiciable, that's end of this 25 case. Because let me go forward, because re MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

29 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 to 4 respond to those. 5 With regard to Republican National Committee's 6 involvement in this, Mr. Nields walked you through in some 7 detail some s that were produced by RNC. And he 8 tries to make those s sound as though y show 9 complicity by RNC in activities of Ohio Republican 10 Party here. They do nothing of sort. 11 Let me begin, your Honor, with that is 12 behind tab 7, that was referred to you by THE COURT: Hold on. 14 MR. BURCHFIELD: This is Mr. -- this is 15 intervenor's exhibits, your Honor. And this is in 16 which, at page 1 -- at 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 next to

30 last 20 page. Mr. Nields directed you to fact that RNC is 21 going to have a conference call with number of state 22 parties involving HAVA, Help America Vote Act, voter 23 registration fraud strategy. And what he didn't refer you to, 24 your Honor, is next page, very last page, which says: 25 suggested participants. And two first named suggested 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

31 Motion 16 1 participants re are Carolyn Hunter and Jill Holtzman Vogel 2 of 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 people on call to comply with 10 consent decree. 11 So rar than being evidence of RNC complicity in an 12 effort to violate consent decree, this , consistent 13 with Miss Hunter's declaration, demonstrates RNC's efforts 14 to comply with decree.

32 15 And instructions that are given to RNC personnel 16 are that if state parties are engaging in a ballot security 17 effort, RNC personnel can not be involved in it. Is 18 RNC discussing 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 y talk 22 about it and y're on conference calls about it, doesn't mean 23 that y're engaged in any sort of effort to violate 24 consent decree. And I would submit to your Honor that that is 25 not a reasonable inference to draw from this MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

33 Motion 17 1 With regard to next , your Honor, number 8, 2 and I would also say, your Honor, behind exhibit 7 3 has no correlation whatsoever to current efforts by 4 Ohio Republican Party to challenge voters based upon 5 undelivered mail list. There's no link between those e- mails 6 and direct controversy, whatsoever. Or than -- 7 or than phrase "voter registration fraud," which is, as 8 I've said, prevalent in media. Behind tab 8 is anor 9 series of s, and Mr. Nields walked you threw se in 10 some extensive detail. 11 Let me focus on a couple of things in se 12 s. Number one, you will see scattered g throughout here 13 various -- in various s, you will see members of RNC 14 counsel's office. Those people would be Miss Hunter, Miss 15 Holtzman Vogel, Miss Karen Cross, and re are ors. But 16 sometimes y're on se or s, sometimes y're

34 17 not. Many times y are. Let me focus you, however, most 18 intently on page with last three base numbers, THE COURT: One forty-eight? 20 MR. BURCHFIELD: One forty-eight. And at top 21 , it says Jack Christopher and I have already tasked our 22 IT person with creating a match list with BOE's return mail 23 list, Board of Elections return mail list, not RNC's return 24 mail list, not Ohio re Republican Party, official 25 return mail list sent on a racially neutral basis from 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

35 Motion 18 1 Board of Elections of Ohio, and absentee ballot request 2 list. Again, that is an absentee ballot request list kept by 3 state listing people who have requested absentee 4 ballots. 5 THE COURT: Who is Jack Christopher? 6 MR. BURCHFIELD: Jack Christopher is a lawyer out in 7 Ohio. He works for Ohio Republican Party. 8 THE COURT: Why isn't that dealing with voter fraud, 9 fraud in this case being double voting -- some usually 10 vote registration and absentee ballot? 11 MR. BURCHFIELD: Well, concern in se e- mails is 12 that, and it is fact that people -- re suspicious 13 registrants are not even waiting until day of elections 14 to go to poles, y are getting absentee ballots. 15 They are going to polling stations and getting absentee 16 ballots in advance of elections to submit now. 17 Revealing is next sentence: Jack thought this 18 would be a good idea to have to referenced as part of

36 19 larger testimony harder press strategy. This is not evidence 20 that y are -- that RNC is involved in a ballot challenge 21 program. And, in fact, Miss Hunter's declaration states 22 unequivocally that re's no ballot challenged program based 23 upon this. It is widely known, and quite obvious, your Honor, 24 that if -- if in fact re is a post-election dispute about 25 election, re is going to be a lot of PR, as re is 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

37 Motion 19 1 already, re's going to be a lot of debate among party 2 leaders about what happened to cause 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 context of consent decrees. And more 6 importantly, it doesn't relate to current challenges by 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 people that's requested an 10 absentee ballot. So this -- this proves nothing. 11 And that is relevant to us here. 12 The next that Mr. Nields called your attention 13 to -- let me see for a moment. One moment, your Honor. Mr.

38 14 Nields also referred you to list voters, or analyses that 15 RNC did of returned mail from RNC's -- from 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 The bottom line answer to this, your Honor, is it is 20 not inconsistent with consent decree for RNC to analyze 21 voter registration -- voter return mail, so long as it doesn't 22 use it for a ballot security program. And evidence here is 23 undisputed, ever since we were here last week and Miss Cino 24 said RNC mailing from August has not been used as part of 25 Ohio's Republican Party's challenge. That is, your Honor, 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

39 Motion 20 1 undisputed. 2 They argue suspicious. It may be suspicious to m. 3 The RNC did, and Miss Cino testified that y did it as part 4 of -- if re was a challenge of election, we did it 5 to deal with PR war, if re is a challenge. These names 6 that were returned from RNC mailing are not on current 7 challenge list as a result of RNC mailing. There may be 8 duplicates because people were sent Board of Elections 9 mailing or same people may have been sent -- re maybe 10 some overlap, but this mailing is not part of Ohio 11 Republican Party challenges. 12 Mr. Nields also says y he has some documents that 13 were produced on Saturday -- I correctly note re was some 14 documents produced on Saturday that RNC analyzed in 15 same way that it analyzed August mailing, and what

40 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 THE COURT: When you are saying this? 20 MR. BURCHFIELD: These are documents that Mr. 21 Nields handed up to you a few moments ago as analyses of 22 mailings by Ohio Republican Party to five counties in Ohio 23 of mailing sent in September. These are undeliverable 24 addresses from that mailing. 25 THE COURT: Okay MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

41 Motion 21 1 MR. BURCHFIELD: And re are a couple important 2 things about this. First is, I understand that this analysis 3 was done not by Ohio Republican Party, but by Lori White. 4 Not by Republican National Committee, but by Lori White of 5 Ohio Republican Party. She transmitted it, and she 6 compiled this list from notes on undelivered mail 7 envelopes. Not by doing any sort of driving around and looking 8 at places. She did send this list to Chris McInernie of 9 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 face of it, your Honor, that is 12 not correct. 13 If you look at -- I've had only a few minutes to 14 look at this. If you look at document with first page 15 baits number RNC , and you look at first series

42 of 16 zip codes at top of that page, 45231, if you look down, 17 re is a blank re beside -- and re's a designation out 18 to right-hand side, zip unreadable. Are you with me? 19 THE COURT: I don't have 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 papers in front of you. I think Mr. 23 Nields just handed m up to you. 24 THE COURT: Do you want me to refer to those papers? 25 MR. BURCHFIELD: I think that would be helpful MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

43 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 4 first page, THE COURT: All right. I have that. 6 MR. BURCHFIELD: That hyposis that we're addressing 7 is Mr. Nields claims that this list was zip code sorted, and he 8 furr speculates that zip code sorting would have been 9 done by minority precincts. He said same thing about 10 RNC analysis of 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 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 wher this document, first page, RNC

44 , prepared by Lori White of Ohio Republican Party is 17 zip code sorted, as Mr. Nields suggested. It is not. If you 18 look at first series of zip codes at top of page, 19 you will see zip code 45231, that series ends. Then if you 20 look down page at first entry for zip unreadable on 21 far right, are you with me so far, your Honor? You will see reappears re for a few entries, non-sequentially. And 23 n if you look at page, at last entry on page RNC , very last entry on that page, you will see same 25 zip code, If you look at page -- and you just 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

45 Motion 23 1 thumbed through it, your Honor, looking clearly through that 2 very first zip code on first page, I didn't go through 3 -- I'm trying to rebut premise that this is zip code 4 sorted. If you look at page with RNC 00438, and you go 5 one, two, three, four, five, six, seven, eight, nine lines up, 6 you will see anor standing alone amongst a variety of zip codes. The reason se appear in zip code sequence, 8 your Honor, I think it is a well-founded speculation, is that 9 postal service delivers undeliverable mail back from whence 10 it came in bundles. Those bundles frequently result from 11 postal service doing ir own sorting of zip codes. So 12 suggestion eir that this document is RNC's analysis, 13 or that it's sorted in any sort of improper way, is just flatly 14 untrue.

46 15 I think I've responded to all of exhibits that Mr. 16 Nields referred to as evidence for suggestion that internal 17 documents of RNC demonstrates complicity in Ohio voter 18 registration challenge. 19 He next talked about press conference. The 20 evidence on 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 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 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

47 Motion 24 1 THE COURT: I have that. 2 MR. BURCHFIELD: In paragraphs 4 through 6, it 3 describes substance in that press conference in great 4 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 Franklin County Republican concern, which 7 is a big deal out re, I understand. And second, also a big 8 deal, to meet with editorial board of Columbus Dispatch 9 in connection with ir evaluation of -- which candidate 10 Columbus Dispatch was going to endorse for president. 11 Ultimately y endorsed President Bush. They wanted to meet 12 with Mr. Gillespie and he obliged. They knew about trip. 13 And y asked Mr. Gillespie if he would participate in a press 14 conference about widespread allegations of voter 15 registration problems in Ohio. And Mr. Gillespie did so, and 16 he told Ohio Republican Party: I can speak generally about

48 17 corrosive effect about vote fraud, and voter fraud on 18 democracy, but I am prohibited by consent decree about 19 taking part in any planning about challenges on that. 20 He appeared at press conference anti-press 21 conference, Ohio Republican Party put out its evidence that 22 re were forged registrations, that that were -- re were 23 registrations of someone who had been dead for 20 years. I 24 think y had hopper of all of returned Ohio 25 Republican Party mailings re. Mr. Bennett talked about 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

49 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 press: What are going to do about it? Mr. 4 Bennett said: We are considering our legal options. 5 There was no plan by 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 -- of 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 re, I'm at page 48 of 13 that, of that transcript. Are you with me? 14 THE COURT: Page 48? 15 MR. BURCHFIELD: Page THE COURT: All right. 17 MR. BURCHFIELD: Are you with me? The first question 18 on page is: "Did Mr. Gillespie express any opinion

50 about 19 wher that was a sensible thing to do?" This is referring to 20 Mr. Bennett's discussion about possible challenges to 21 fraudulent voter registration. "Did Mr. Gillespie express any 22 opinion about wher that was sensible thing to do? 23 "ANSWER: Mr. Gillespie is very well versed and aware of 24 our consent decree." 25 What or conversation did Mr. Gillespie have with 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

51 Motion 26 1 Mr. Bennett, or any or Republican Party? That's it, 2 question about Ohio, that was it. That is not sort of 3 complicity or participation that your Honor includes in 4 consent decree. 5 The or point on next page I would note is Mr. 6 Nields is asking Miss Cino about a Wall Street Journal article 7 dated -- from Columbus Dispatch, I'm sorry, dated October 8 23rd, 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 re. Page 49, it 12 refers to a Columbus Dispatch article from October 23rd, 2004, 13 which is three days after press conference. And 14 question starts off, and yet anor sign of how fiercely, your 15 Honor, it will be contested in November 2nd -- Republican 16 tested, newly registered voters yesterday, that would be

52 17 22nd, and that was two days after Mr. Gillespie was in Ohio at 18 press conference. And that confirms position that 19 Republican National Committee has taken all along, which re 20 was no plan announced at that October 20 press conference, and 21 that came about two days later, when Ohio Republican Party 22 announced and initiated challenges that bring us here 23 today. So Mr. Gillespie's appearance at that press conference 24 does not provide sort of evidence that intervenor needs 25 to show complicity by RNC in this voter challenge MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

53 Motion 27 1 And, your Honor, let me make one or point about 2 -- about RNC's -- well, let me just see if I can 3 summarize where we are on key facts with regard to 4 RNC's alleged responsibility here. 5 I would state -- I would state, number one, Congress 6 recently recognized in Bi-partisan Reform Act in McCain 7 Feingold Building. I argued in U.S. Supreme Court on 8 behalf of RNC, national parties are different and separate 9 from state parties. The McCain Feingold state treats national 10 parties differently. And in that instance prohibits m from 11 receiving any non-heavily regulated money. 12 State parties, on or hand, being different, can 13 receive non-federal regulated money for certain purposes. So 14 re's a statutory basis, and re are ors as well, but 15 re's a statutory basis recently recognized by Congress that 16 RNC is not same as Ohio Republican Party. And

54 17 accordingly, it would be inappropriate to assume that 18 everything RNC does is attributable to Republican Party 19 and visa versa. 20 Secondly, RNC mailing from August, 2004 to 21 Cuyahaga County, newly registered voters has not been used in 22 anyway in challenge that is at issue here. 23 It is furr important to note, your Honor, that Miss 24 Malone, intervenor, was not on eir Republican 25 National Committee mailing list or Ohio Republican Party 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

55 Motion 28 1 mailing list. She is on list of undeliverables, because of 2 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, neir before, during, or after, 5 October 20 press conference, did RNC Chairman Gillespie discuss 6 a plan to challenge registration with Ohio Republican 7 Party. That's in 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 Ohio, from Columbus Dispatch 10 article, plan wasn't even announced or initiated until two 11 days later on 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 decree; get 15 out to vote efforts, which are not covered by decree, and 16 voter registration for purpose of insuring a compliance 17 with decree. And Miss Hunter details those efforts in

56 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 s 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 25 current Ohio Republican Party challenge to voters in Ohio. B, 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

57 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 re were programs, it 4 would in our view fall outside spirit of decree. 5 And finally, undisputed evidence is re is re 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, RNC has not 9 initiated, controlled, directed, or funded Ohio Republican 10 Party programs of voter challenges. That is from Miss Hunter's 11 declaration, paragraph 3. That was behind tab D of our 12 submission. She says: To best of my knowledge, after due 13 investigation, RNC is not initiating, controlling, 14 directing, or funding any programs of voter challenges as 15 described above, including effort by Ohio Republican 16 Party to challenge voter registration by Ohio as alleged by

58 17 intervenors in this matter. 18 Now, your Honor, if -- unless you have some questions 19 about -- for me about RNC's alleged participation in this 20 program, I will turn now to second issue you had listed, 21 which is wher challenges would -- will so disrupt 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 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

59 Motion 30 1 and twenty-one voter files flagged for challenge by 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, re 4 might be a problem. But fact is, if only a few of m, 5 only a small percentage of m do, just as it is likely that a 6 good number of se 35,000 people, now down to 23,000, will 7 show up on Election Day. 8 If y do, even if y do, miss Dillingham and Mr. 9 Matws, are confident that poll workers in Cuyahaga 10 County where Miss Malone votes, and in Stark County where Mr. 11 Matws is Director of Board of Elections, y're 12 confident that y can be processed efficiently, without undue 13 disruption of voting. And process, as we've discussed 14 later, your Honor, when re is -- when re is a challenge, 15 and, again, put to side for a minute fact that many

60 of 16 se people, if not all of m on list of 23,000, that 17 used to be 35,000, now 23,000, even if it were case, that 18 those people were not going to be dealt with initially by 19 Boards of Elections, process would be if a -- one of 20 challengers at polling place places challenge, that 21 person is taken out of line and asked some questions. And 22 y eir -- y are eir given a 10-U to fill out, or a 23 new voter registration form, or if y answer questions 24 appropriately, n maybe put back in line to cast a 25 regular ballot. They may be sent to anor polling place MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

61 Motion 31 1 Both Miss Dillingham and Mr. Matws believe that's not going 2 to be unduly disruptive to voting in State of Ohio. 3 Again, Miss Dillingham is Deputy Director in largest county 4 in Ohio where Miss Malone lives, and this is her testimony. 5 I would go furr to say, your Honor, if you're 6 making a determination of wher testimony provided by 7 declaration from Miss Dillingham and Mr. Matws is more 8 accurate versus that from Mr. Burke, I would ask you to 9 consider following factors. Miss Dillingham and Mr. 10 Matws are both staff -- full-time staff employees of 11 Board of Elections. Mr. Burke is Democratic County 12 Chairman for Franklin County. Yes, he serves on Board of 13 Elections as Democratic appointee, but he is not re day 14 to day training staff members, and he is not re 15 carefully going through procedures, I would respectfully 16 submit to you. 17 Second, Miss Dillingham has 14 years, and Mr. Matws 18 has 13 years working at ir respective Boards of

62 Elections 19 full-time versus Mr. Burke, who has been involved part-time for years. 21 Third, declarations of Miss Dillingham and Mr. 22 Matws contained detailed descriptions of process, 23 including flagging process and flagging process is not 24 even mentioned in Mr. Burke's declaration. Mr. Burke's 25 declaration is largely conclusory MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

63 Motion 32 1 So in evaluating relevance and believability and 2 weight, your Honor, we respectfully submit that not only 3 quantity but quality of evidence indicating that re 4 will be no problem is substantial. 5 Second point, your Honor, Miss Malone in particular, 6 but likely many of or challenged registrants on Ohio 7 Republican Party's list will be challenged in advance by 8 County poll pursuant to flags. They're not going to be -- 9 y're not going to be harmed, and I don't think it's 10 appropriate or credible to say that once y've gone through 11 re voting process by County poll workers, that y're 12 going to be challenged again. I think short trip would be made 13 of those challenges. There's an edict from Secretary of 14 State that any poll challenger who tries to intimidate or 15 harass voter would be promptly removed from

64 polling 16 station by presiding officer. So I think notion that 17 challengers are going to be repetitively challenging 18 same people that have already been cleared by Board of 19 Election workers, that's just not credible. 20 Third point, neir Miss Dillingham nor Mr. Matws 21 expect disruption from challenges. The Dillingham declaration 22 says that in paragraph 26, Matws' declaration says that 23 in paragraph Four, number of challenges has already declined 25 from 35,000 statewide to 23, 000 statewide. That is in 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

65 Motion 33 1 comparison to one hundred and eighty thousand flagged 2 voters that will be challenged -- that are susceptible to 3 challenge by Board of Elections. 4 THE COURT: The hundred and eighty was in Cuyahaga 5 County alone? 6 MR. BURCHFIELD: Exactly. There are -- re are less 7 than a sixth as many statewide on Ohio Republican Party 8 list as re are on Board of Elections list in Cuyahaga 9 County alone. 10 THE COURT: Well, is re any breakdown as to 11 counties in which 35,000, or 23,000 are listed? And do 12 we know to which counties returns relate? I suppose y 13 have to be -- well, what counties do y apply to? 14 MR. BURCHFIELD: That's Exhibit J behind our 15 submission. We looked at that this morning. 16 THE COURT: All right. Well MR. BURCHFIELD: Which brakes it don't county by 18 county. 19 THE COURT: Let me look at that again. All right.

66 20 MR. BURCHFIELD: And as you can see THE COURT: Why do two numbers say Cuyahaga 22 forty-three sixty-one and thirty-five forty? What's 23 significance of that? 24 MR. BURCHFIELD: That's in -- our returned mail 25 matched. And, your Honor, I'm engaging in some degree of 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

67 Motion 34 1 inference here. Our return mail, I note that that's Ohio 2 Republican Party. There are only entries to -- matched 3 number, I would infer, means thirty-five hundred and forty of 4 ones returned from -- from ORP mailing match, are 5 within 17,717 in Cuyahaga Board of Elections mailing. 6 As I read that, re are only about 820 additional ones that 7 are unique to Ohio Republican Party mailing. 8 THE COURT: All right. And would you have included 9 those in challenge list that you have? 10 MR. BURCHFIELD: They are included in challenge 11 list. 12 THE COURT: Yes. The challenge list would include 13 35,427 developed by county challenges, plus MR. BURCHFIELD: Plus non-unique deliveries. 15 THE COURT: All right. 16 MR. BURCHFIELD: Undeliverables from Ohio 17 Republican Party, and that would be sum of -- that 18 would be -- well, it's difference between numbers

68 minus 19 numbers in parensis 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 time this was prepared, your Honor, that maybe 23 number. And again I'm inferring this. That maybe number 24 of registrants that have already been confirmed and cleared by 25 Secretary of State, Board of Elections throughout 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

69 Motion 35 1 State. But re, again, I confess that's just way I read 2 it. 3 THE COURT: All right. I'm going back to our return 4 mail, Cuyahaga County, forty-three sixty-one. Was that your 5 returned mail or -- 6 MR. BURCHFIELD: That is -- that is Ohio 7 Republican Party undeliverable mail from its five-county 8 mailing in September. 9 THE COURT: Okay. 10 MR. BURCHFIELD: None of numbers on this page 11 relate to Republican National Committee's mailing from 12 August. 13 THE COURT: This is September mailing? 14 MR. BURCHFIELD: The Ohio Republican Party mailing was 15 in September, that is correct. 16 THE COURT: And of 43,061, 35,040 also appeared on 17 state, of county board? 18 MR. BURCHFIELD: That's way I read it, your

70 Honor. 19 But again I am to some degree just inferring. I can have 20 someone ask, ask client if we have him on RNC who knows 21 answer to that, and I'll try to report to you after 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 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

71 Motion 36 1 large bulk of undelivered mail sent by Ohio Republican 2 Party will be duplicative of undeliverable mail sent by 3 Board of Elections. 4 THE COURT: All right. 5 MR. BURCHFIELD: So, your Honor, declarants 6 Dillingham and Matws are not -- are not concerned, are not 7 in a tir about se impending challenges because Ohio 8 Republican Party challenges are such a small percentage of 9 -- of challenges that y may have to be dealing with 10 anyway, and y're largely duplicative of m, as Miss 11 Malone's situation demonstrates. So re is -- re simply 12 is no substantial evidence that se challenges are going to 13 cause Ohio voting tomorrow to break down and become 14 fiasco y 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

72 of 18 that situation out re. I suspect record in that case is 19 much different than it is here, and I also suspect that se 20 are issues of state law and so forth that are not before this 21 Court. But evidence that you have before you is that 22 Cuyahaga County Deputy Director of Elections is telling you she 23 does not think this is going to cause a breakdown in 24 system. And she's got -- she's one who is going to 25 have to deal with half of challenges MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-

73 Motion 37 1 THE COURT: All right. 2 MR. BURCHFIELD: Your Honor, next point that I 3 would make is that re's no disparate impact that has been 4 shown here. And before I talk about facts on that, I want 5 to talk for a moment about law. 6 In Judge Altsort's opinion in Greyhound case that 7 we cite in our brief, E.E.O.C. versus Greyhound, 8 E.E.O.C. challenged Greyhound's no beard policy. It challenged 9 it on basis of a large percentage of black males have a 10 disease called pseudo follicus barbae, a facial disease. If 11 y shave, it's irritated and E.E.O.C. said a no beard 12 policy falls -- has a disparate impact on black male 13 employees and, refore, 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

74 17 disparate impact, you have to analyze impact of both on 18 allegedly disfavored group, and on alleged favored group. 19 There may be skin diseases or discomforts or or problems 20 that white male population has that make no beard 21 policy hurtful to white males as well. So Court sent it 22 back. 23 That's situation we have here, your Honor. 24 Professor Klinker ran his regression analysis, including 25 following variables. Census data of African Americans within 1221 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 645-