Case 3:14-cv JJB-SCR Document /06/15 Page 1 of 11 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

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1 Case 3:14-cv JJB-SCR Document /06/15 Page 1 of 11 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA TERREBONNE PARISH BRANCH * CIVIL ACTION 14-CV-69 JJB - SCR NAACP, ET AL. * Plaintiffs * * VERSUS * * JUDGE JAMES BRADY PIYUSH ( BOBBY ) JINDAL, ET AL. * Defendants * MAGISTRATE STEPHEN C. RIEDLINGER * DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO EXCLUDE TESTIMONY OF DR. RONALD WEBER Defendants, Governor Bobby Jindal and Attorney General James D. Buddy Caldwell, oppose Plaintiffs Motion (Rec. Doc. 89-1). As discussed below, Dr. Ronald Weber s testimony complies with the Federal Rules of Evidence and the standards articulated by Daubert. I. Dr. Weber s Testimony Complies with all Expert Witness Requirements Dr. Ronald Weber is an expert in the areas of the voting rights act, voter participation, and vote dilution issues. The Fifth Circuit has set forth the purpose of Daubert as follows: Daubert does not create a special analysis for answering questions about the admissibility of all expert testimony. ). Rather, Daubert articulates what the Federal Rules of Evidence, as well as a trial court's traditional role, alin the initial gate keeping task of establishing whether proffered evidence is sufficiently reliable and relevant, and thus presumptively admissible unless excludable on some other ground. U.S. v Acres of Land, 80 F.3d 1074, 1078 (5 Cir. 1996). The court stated that evidence is presumptively admissible unless excludable on some other ground. Id. Daubert also stated that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking evidence. Daubert at 596. The testimony, even if questionable, may be allowed at trial where its merit can be truly determined. Here, Dr. Weber s testimony is not questionable, but to the extent that the Plaintiffs 1

2 Case 3:14-cv JJB-SCR Document /06/15 Page 2 of 11 disagree with Dr. Weber s testimony, the proper method of dealing with it is through crossexamination at trial. A. Dr. Weber Meets All of the Requirements of FRE 702 Federal Rule of Evidence 702 allows an expert witness to testify if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts. Dr. Weber meets the first FRE 702 factor because his scientific, technical and other specialized knowledge will assist the trier of fact. Dr. Weber is an immensely qualified expert in the field of political science, quantitative analysis, and electoral redistricting. 1 Dr. Weber has been retained as a consultant and expert witness in a number of redistricting and voting rights cases and has been qualified as an expert by the U.S. District Courts in the Eastern, Middle and Western Districts of Louisiana, as well as numerous U.S. District Courts in states across the country. (See Ex. A, Expert Report, at pp. 3-4; Exhibit D, List of Cases in which Dr. Weber has testified as an expert or been deposed under oath) He has held many positions on academic faculties at the collegiate level. (Exhibit C, CV at p. 1-2). As a professor, he has taught undergraduate and graduate courses. (Exhibit C at p. 3). Dr. Weber s work has been widely published. (Exhibit C at pp. 4-8). Dr. Weber s professional and political activities also reflect his expertise. He previously served on the editorial boards of The Journal of Politics, State Politics and Politics Quarterly, and American Politics Quarterly. (Exhibit C p. 20). He is a member of numerous political associations. He has received awards for his work, and he has been honored by his peers. (Exhibit C p. 24). As an aside, Dr. Weber was a delegate to the Democratic State Convention in 1 A review of Dr. Weber s CV, attached as Exhibit C, demonstrates his extensive expertise. 2

3 Case 3:14-cv JJB-SCR Document /06/15 Page 3 of 11 Indiana in 1976 and (Exhibit C p. 24). He even served as a local Councilman in the State of Indiana during the 1970 s. Dr. Weber s education, experience, and published writings prove that he is well qualified to serve as a witness in this case, and his expertise with assist the trier of fact to understand the evidence or to determine facts at issue herein. Dr. Weber s testimony is based on sufficient facts or data and meets the second requirement of FRE 702. Dr. Weber s sources include but are not limited to U.S. Census Bureau data from 1990, 2000, and 2010, Louisiana Commissioner of Elections and Registration data on a number of registered voters by race, and precinct-level data of voters by race. (Exhibit A at pp. 9 10). These are the best available sources for the data used, and the facts consist of concrete, verifiable numbers. Dr. Weber s testimony is the product of reliable principles and methods and therefore meets the third FRE 702 factor. Dr. Weber lays out the methodologies he used in his report. (Exhibit A p. 7-15). He used both bivariate ecological regression analysis and the complementary technique of extreme case analysis. (Exhibit A p. 12). These were the methods used in Thornburg v. Gingles, 478 U.S. 30 (1986), the guiding case governing the legal question here. (Exhibit A p. 12). Additionally, he used the King Ecological Inference ( EI ) to estimate voting preferences of African-American and non-african-american groups in Terrebonne Parish. (Exhibit A p. 13). He also notes that he believed them to be the same techniques that Plaintiffs expert used. These principles and methods are used by someone who is highly experienced in the fields of quantitative analysis and political science, meaning they are reliable. The fourth FRE 702 factor is whether the expert reliably applied the principles and methods to the facts. Dr. Weber s application of principles and methodologies described above 3

4 Case 3:14-cv JJB-SCR Document /06/15 Page 4 of 11 were reliably applied to elections in Terrebonne Parish. Dr. Weber stated he used the nd Judicial Court endogenous election and selected national, state, and local exogenous biracial primary elections held within Terrebonne Parish from 1993 to (Exhibit A p. 11). Dr. Weber s methodologies yielded quantitative results. He turned this quantitative data into a qualitative opinion, all of which is described in his report. Dr. Weber clearly meets the fourth and final factor of FRE 702. B. Dr. Weber Meets the Qualifications Established by Daubert Dr. Weber s also satisfies the requirements set forth by the Supreme Court in Daubert. The Daubert Court stated, [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue an expert may testify thereto. (Emphasis added). Daubert at 590. Daubert further indicated that the Federal Rules of Evidence were to be interpreted liberally in regards to expert testimony. Regarding FRE 702, Daubert stated, [t]he drafting history makes no mention of Frye, and a rigid general acceptance requirement would be at odds with the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony. Daubert 509 U.S. at 588. The court disregarded a rigid approach in favor or a more liberal one. The court specifically noted that it would relax the traditional barriers to opinion testimony. This statement leans in favor of a liberal interpretation of the rules, which suggests that if there is any ambivalence to Dr. Weber s testimony, it should be admitted for a thorough vetting at trial. The basic question that must be asked is if the expert s analysis will help the trier of fact determine the issue. Dr. Weber s testimony will assist the trier of fact in understanding the data and information presented by the other witnesses and counsel in this case. Daubert only requires that an expert have scientific, technical, or other specialized knowledge to help the court. Dr. 4

5 Case 3:14-cv JJB-SCR Document /06/15 Page 5 of 11 Weber happens to have all three, making him far exceed the basic requirements of Daubert. Also, as someone who has been qualified as an expert in many redistricting and election cases, Dr. Weber is familiar with the process of a trial and will be able to assist the finder of fact. II. Dr. Weber s Expert Opinions Regarding Gingles Factors are Admissible A. Gingles 1 Plaintiffs maintain that Dr. Weber s opinion regarding Gingles 1 is inadmissible because Dr. Weber found fault in the Illustrative Plan. Plaintiffs first argue that Dr. Weber s opinion is not based on sufficient facts or data because he failed to consider whether the Illustrative Plan includes contiguous districts, maintains communities of interest, respects traditional boundaries, or complies with Section 2. There is no merit in this statement, as discussed above Dr. Weber s expert report discusses extensively the data and methodologies he used to reach his conclusions. Further, Dr. Weber is intimately familiar with Terrebonne Parish, having lived in Louisiana for a number of years, and even drawing districts in Terrebonne Parish as discussed below. Dr. Weber opined that the Plaintiffs Illustrative Plan was not geographically compact enough to meet fair traditional redistricting principles. (Exhibit A p. 23). Dr. Weber s opinion on Gingles 1 is based on Louisiana jurisprudence and sufficient facts and data. 2 Second, Plaintiffs argue that Dr. Weber s opinion regarding the compactness and shape of the minority sub-district lacks an adequate basis. The basis is the same as that used by Plaintiffs expert William Cooper. Plaintiffs proposal shows that the African-American voting age population of this sub-district is barely 50%. (Exhibit A p. 22). Dr. Weber noticed the odd shape used to reach this minimum 2 State law requires that parish redistricting shall use whole precincts. Precincts can be split only if using whole precincts alone cannot meet the traditional redistricting criteria. La. R.S. 18:532 and La. R.S. 18: The Plaintiffs admit that split precincts exist, and claim that they can be eliminated after the 2020 census. (See Rec. Doc Plaintiffs Motion at p. 11) This departure from traditional redistricting principles supports the Defendants position and Defendants experts position that the Plaintiffs cannot satisfy Gingles 1. Dr. Weber s opinions as to Gingles 1 were corroborated by the expert opinion of the Secretary of State s expert, Michael Hefner (See Rec. Doc ). The ROV of Terrebonne also observed that precincts were split (Rec. Docs and ). 5

6 Case 3:14-cv JJB-SCR Document /06/15 Page 6 of 11 threshold number and opined that it is likely that any attempt to make it a more compact district would lower it to below 50%. (Exhibit A p. 23). Of note, after Dr. Weber made this opinion, Plaintiffs had their expert perform additional testing and provide a supplemental report at the end of expert discovery, simply to counter Dr. Weber s opinions. Plaintiffs erroneously claim that Dr. Weber did not compare the district to any other existing districts in Terrebonne or Louisiana. This is false. Dr. Weber states that he is comparing the district at issue to Terrebonne Parish Council 1 and 2, and specifically comments on their shape and concentration. (Weber Deposition (Exhibit B) pp. 92, line 9 93, line 6). Dr. Weber points out in his deposition that these districts are likely faulty due to population issues. Id. He is familiar with these council districts because he previously worked on redistricting for the Terrebonne Parish Council. (Exhibit B 37:18-39:3). Third, Plaintiffs claim without proof that Dr. Weber s opinion regarding this statement is based on sheer speculation. Dr. Weber based his opinion on all of the precinct level data and U.S. Census Bureau information available to him. (Exhibit A p. 9 10). To say his opinion lacks empirical support is simply incorrect. Plaintiffs take issue with the fact that Dr. Weber did not attempt to a draw a more compact majority-black district in Terrebonne Parish to assess whether doing so would render it non-majority-minority. Dr. Weber had no duty to draw such a map, it is the Plaintiffs burden to prove they can draw a district. Plaintiffs point to no law requiring such a duty for the Defendants expert to draw such a map, take such an action, or produce evidence that would be blatantly helpful to Plaintiffs position. Plaintiffs also argue that Dr. Weber s opinion that the Illustrative Plan might be called affirmative gerrymandering should be excluded. Dr. Weber only suggested the plan might be 6

7 Case 3:14-cv JJB-SCR Document /06/15 Page 7 of 11 called affirmative gerrymandering after questioning in his deposition by the Plaintiffs. (Exhibit B 90:16 92:1). It was a general comment in observation. Plaintiffs allegations in no way prove that Dr. Weber s analysis is faulty or inappropriate. Rather, Dr. Weber s analysis is based on statistical facts and proven methodologies. Therefore, it is proper for the court to consider Dr. Weber s opinions. B. Gingles 2 and 3 Plaintiffs claim that Dr. Weber s opinions regarding Gingles 2 and 3 are inadmissible. Dr. Weber s opinions regarding these two factors are permissible and helpful to the finder of fact in this case and therefore meet the requirements of Daubert. As discussed above, the methodologies used by Dr. Weber are outlined in his report. Dr. Weber has employed and relied exclusively upon EI to estimate voting preferences of African-American and non-african- American groups in Terrebonne Parish. (Exhibit A p. 13). Plaintiffs contend that the Court should not consider Dr. Weber s decision rule and claim that it is contrary to the legal standard for determining Racially Polarized Voting because it improperly focuses on whether white voters cohere sufficiently behind a single, white candidate. Plaintiffs fail to fully explain the Court s ruling in Gingles. The Gingles court stated the determining factor was, whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates. (Emphasis added). Gingles, 478 U.S. at 56. The Court made it clear that whites had to vote usually to reach this conclusion. There are simply not enough elections in Terrebonne Parish for Dr. Weber, or any expert, to reach this conclusion. Without meeting this usually voting standard, Plaintiffs are unable to make their case. While alleging that some courts have rejected Dr. Weber s decision rule analysis, the Plaintiffs failed to note that many courts have accepted his analysis. Dr. Weber s analysis was accepted and used in 7

8 Case 3:14-cv JJB-SCR Document /06/15 Page 8 of 11 Clay v. Board of Educ. of City of St. Louis, 90 F.3d 1357 (8 Cir. 1990), African-American Voting Rights Legal Defense Fund, Inc. v. State of Mo., 994 F.Supp (E.D. Mo. 1997), and France v. Pataki, 71 F.Supp.2d 317 (S.D. NY 1999) (Exhibit B 202:17 203:25). Also, it must be noted that while Dr. Weber s analysis on cohesive voting may not have been used in the cases cited by Plaintiffs, he was allowed to testify as an expert in all of those cases. The courts in those cases simply gave less weight to his arguments in regards to his positions on cohesion. Additionally, it is not, as Plaintiffs contend, an erroneous legal premise. Dr. Weber s methods have been adopted by numerous courts, and this is a factual dispute based on his expert testimony. Second, Plaintiffs appear to be critical of Dr. Weber s bright-line numerical cutoffs to indicate levels of Racially Polarized Voting. However, this breakdown by number is helpful to the finder of fact, and merely serves as a label for the ranges of the results he found. They in no way change his analysis or his findings, but instead, give a label to a category of results he found. Furthermore, Dr. Weber s methods have been deemed to be helpful in several cases, as described above. Third, Plaintiffs argue that Dr. Weber s arbitrary numerical cutoffs find no support in social science. Plaintiffs cite Dr. Weber s not answering a question during the Hall v. Louisiana trial about another expert witness who used that classification rule. Dr. Weber was not called to testify about other experts at trial and could not come up with a specific example off the top of his head. Plaintiffs admit in their Memorandum to Exclude Testimony of Dr. Ronald Weber that Dr. Weber actually does identify an expert witness who has used his classification rule: Professor Harold Stanley of Southern Methodist University. (Exhibit B p. 204:18-25). Plaintiffs take issue with Dr. Weber being unable to name exactly when, where, or how he used the rule. However, Dr. Weber was not called to testify on others use of classification rules, just 8

9 Case 3:14-cv JJB-SCR Document /06/15 Page 9 of 11 his own, and it was unreasonable to expect him to quote cases from memory on the stand. Surely, Dr. Weber could find some more examples of his rule in use across the nation if given the time. Plaintiffs also claim that Dr. Weber misconstrued Dr. Lichtman s theory of 60 percent to reach a threshold of cohesive voting. This is theory that 60 percent of a vote is needed to prove cohesion. (Exhibit A, p. 43). While Dr. Weber may disagree with the Defendants experts, this is certainly allowable and presents an opportunity for the court to determine who is correct at trial. Plaintiffs also claim that Dr. Weber s number is arbitrary and lacks validation. However, as noted above, many federal courts have used Dr. Weber s methodology in determining the legal outcome. Clay v. Board of Educ. of City of St. Louis, 90 F.3d 1357 (8 Cir. 1990), African-American Voting Rights Legal Defense Fund, Inc. v. State of Mo., 994 F.Supp (E.D. Mo. 1997), and France v. Pataki, 71 F.Supp.2d 317 (S.D. NY 1999) (Exhibit B 202:17 203:25). Also, Plaintiffs claim that this 60 percent threshold lacks support in social science. However, Dr. Weber clearly explains his methodology for reaching 60 percent. In his deposition, Dr. Weber states that these figures are estimates, and in some jurisdictions, there are higher degrees of error. (Exhibit B 197:5-19). Therefore, his rule is based on an abundance of caution. (Exhibit B 197:5-19). Plaintiffs also claim that Dr. Weber never went back to see how the Gingles evidence would have fared under this criteria, but Plaintiffs state in their Memorandum that Dr. Weber s testimony also would not be unhelpful to the trier of fact. Last, Plaintiffs claim that Dr. Weber s opinion should be excluded because that he states his opinion is based on common sense. Plaintiffs are correct in stating that, to be considered expert, testimony must involve more than common sense ). United States v. Jackson, 549 F.3d 963, 975. Fortunately, Dr. Weber s testimony and use of the 60 percent threshold standard 9

10 Case 3:14-cv JJB-SCR Document /06/15 Page 10 of 11 is based on far more than common sense. Dr. Weber only characterized his findings as common sense to summarize and characterize his analysis. He did not base his findings on common sense alone. Rather, his analysis is based on his own research and scientific methodology, as he explained in his deposition. (Exhibit B 197:5-19). It has been accepted in other courts before. (Exhibit B 202:17 203:25). Additionally, even if Dr. Weber s reasoning is based on common sense, it could still be weighed by the court. Dr. Weber has provided all the data necessary for this Honorable Court to render its own conclusions on what he has offered, and can testify to his scientific standards and methodology he used in his findings. To dismiss his expert opinion as just common sense is inaccurate. Furthermore, as an expert witness, Dr. Weber is able to add such analysis to his testimony. Daubert also provided that, [u]nlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Daubert at 592. Dr. Weber has been qualified as an expert in Voting Rights Act litigation for decades, including in Louisiana. Therefore, any references to common sense by Dr. Weber are acceptable and should be given weight by this Honorable Court. III. CONCLUSION Based on the above reasoning, the testimony of Dr. Ronald Weber should be allowed as admissible evidence at trial, and Defendants respectfully ask that Plaintiffs Motion to Exclude the Testimony of Dr. Ronald Weber be denied. RESPECTFULLY SUBMITTED, James D. Buddy Caldwell ATTORNEY GENERAL /s/ Angelique Duhon Freel Jeffrey M. Wale (La. Bar Roll No ) William P. Bryan, III (La. Bar Roll No ) 10

11 Case 3:14-cv JJB-SCR Document /06/15 Page 11 of 11 Madeline Carbonette (La. Bar Roll No. 3873) Angelique Duhon Freel (La. Bar Roll No ) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX Baton Rouge, Louisiana Telephone: (225) Facsimile: (225) Counsel for the Defendants CERTIFICATE OF SERVICE I do hereby certify that, on this 6 th day of October 2015, the foregoing pleading was filed electronically with the Clerk of Court using the CM/ECF system which gives notice of filing to all counsel of record. Counsel of record not registered in the CM/ECF system were served via other means. Counsel of record who will receive the filing using the CM/ECF system include: Leah C. Aden, William P. Bryan, III, Madeline S. Carbonette, Angelique Duhon Freel, Ryan P. Haygood, Natasha M. Korgaonkar, Deuel Ross, Ronald Lawrence Wilson, Victorien Wu. Baton Rouge, Louisiana this 6 th day of October, /s/angelique Duhon Freel Angelique Duhon Freel 11