Case 1:12-cv CKK-BMK-JDB Document 270 Filed 09/07/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:12-cv CKK-BMK-JDB Document 270 Filed 09/07/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203 (CKK-BMK-JDB) Three Judge Court Defendants, JAMES DUBOSE, et al., Defendant-Intervenors. UNITED STATES MOTION TO EXCLUDE THE TESTIMONY AND REPORT OF DR. SCOTT BUCHANAN Pursuant to Federal Rule of Evidence 702, the United States of America respectfully moves for an order excluding the testimony and report of Dr. Scott Buchanan. For the reasons set out in the United States Memorandum in Support, attached hereto, the Court should exclude from evidence the testimony offered by Dr. Buchanan at trial, along with Dr. Buchanan s August 6, 2012 report. Dr. Buchanan admits he is not an expert on legislative purpose, but he nevertheless opined on the opinion of other experts concerning that exact subject. Dr. Buchanan also offered opinion testimony rooted in neither sufficient data nor reliable methods. As a result, Dr. Buchanan s testimony will not assist this Court as trier of fact to understand the evidence or to determine a fact in issue.

2 Case 1:12-cv CKK-BMK-JDB Document 270 Filed 09/07/12 Page 2 of 2 WHEREFORE, the United States respectfully requests that its motion to exclude Dr. Buchanan s testimony and report be GRANTED. A proposed order is attached for the Court s convenience. Date: September 7, 2012 RONALD C. MACHEN, JR. United States Attorney District of Columbia Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Bradley E. Heard T. CHRISTIAN HERREN, JR. RICHARD DELLHEIM BRADLEY E. HEARD CATHERINE MEZA ANNA M. BALDWIN ERIN M. VELANDY Attorneys Voting Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202)

3 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203 (CKK-BMK-JDB) Three Judge Court Defendants, JAMES DUBOSE, et al., Defendant-Intervenors. MEMORANDUM IN SUPPORT OF THE UNITED STATES MOTION TO EXCLUDE THE TESTIMONY AND REPORT OF DR. SCOTT BUCHANAN South Carolina asks this Court to reply upon the declaration and trial testimony of Dr. Scott Buchanan, its purported rebuttal expert on the issue of legislative purpose. Yet, Dr. Buchanan has no expertise in that area. Accordingly, Dr. Buchanan has offered no opinion on the core issue before this Court: the legislative purpose behind Act R54. Instead, Dr. Buchanan has presented opinions on the opinions of Drs. Theodore Arrington and Orville Vernon Burton concerning Act R54 s enactment. The core of Dr. Buchanan s opinion is that Drs. Arrington and Burton failed to consider certain information that Dr. Buchanan views as probative. See Aug. 31, 2012 Trial Tr. at 228:12-19 (Ex. 1) [hereinafter Trial Tr. ]. The fatal flaw in this testimony is that Dr. Buchanan admittedly lacks any expertise to determine the information relevant to a purpose inquiry. Moreover, Dr. Buchanan presented several opinions without bases in fact or social science methodology. As a result, Dr. Buchanan s testimony and his August 6, 2012

4 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 2 of 9 report should be excluded under Rule 702, Fed. R. Evid., as speculative, unreliable, and unable to assist this Court as trier of fact. For the reasons that follow, the United States respectfully requests that this Court grant this motion to exclude expert testimony. 1 I. BACKGROUND On May 30, 2012, the State of South Carolina retained Dr. Buchanan to serve as an expert witness solely for the purpose of rebutting the anticipated expert testimony of Drs. Arrington and Burton. See Buchanan Dep., Aug. 16, 2012, at 33:6-21 (Ex. 2); Buchanan Decl. at 1 (Ex. 3). On August 6, Dr. Buchanan offered a lengthy report, which may be summarized into three central points: (1) South Carolina has made progress concerning minority voting rights since the enactment of the Voting Rights Act in 1965, to the extent that past discrimination has no current effect. (2) Dr. Arrington and Dr. Burton used unreliable methodologies. (3) Dr. Arrington and Dr. Burton failed to consider how photographic voter identification laws may deter voter fraud. Buchanan Decl. at 3. Dr. Buchanan presents statistics to support his first conclusion, including voter registration and turnout rates and the racial distributions of elected officials, as well as a brief discussion of Voting Rights Act enforcement in South Carolina. See id. at 4-16, To support his second conclusion, Dr. Buchanan principally presents previous academic studies concerning changing political attitudes and party affiliations in the South. See id. at To support his third conclusion, Dr. Buchanan relied on an election reform study concerning the 1 This motion is timely pursuant to the Court s decision to hear Dr. Buchanan s testimony while permitting the United States to file a written motion to exclude that testimony after the conclusion of trial. See Trial Tr. at 196:21-197:5.

5 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 3 of 9 nation as a whole, an election integrity study specific to the City of Philadelphia, and reports of voter fraud allegations collected by an internet blog. See id. at At trial, Dr. Buchanan offered brief direct testimony that followed the central claims of his report. See Trial Tr. at 188:5-193:6, 197:19-198:20. During voir dire and cross-examination, however, Dr. Buchanan conceded he is not an expert in determining legislative purpose or in analyzing voter fraud; he admitted too that he lacked familiarity with the legal standards applicable under the Voting Rights Act and those set out in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977). See Aug. 31, 2012 Trial Tr. at 194:7-195:1, 215:2-20, 216:17-217:2. Dr. Buchanan also conceded that he had not read Act R54, the Act s legislative history, depositions taken in this case, or any other discovery materials exchanged between the parties. See id. at 195:2-195:8, 222:18-223:7. Dr. Buchanan acknowledged that his report contained straw man arguments, presented data without statistical testing or controls, and offered personal opinions unsupported by data. Id. at 203:5-204:5, 205:15-211:6, 211:25-212:24. II. RULE 702 BARS DR. BUCHANAN FROM OFFERING EXPERT TESTIMONY CONCERNING THE INTENT OF ACT R54. Rule 702 of the Federal Rules of Evidence governs testimony from expert witnesses those who testify based on scientific, technical, or specialized knowledge in a field of expertise. The party wishing to use an expert witness must first establish the witness s knowledge, skill, experience, training, or education. The witness may offer expert testimony only if the trial judge finds that the witness s qualifications and methods make his opinions reliable. United States v. Smith, 640 F.3d 358, 365 (D.C. Cir. 2011) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). The requirement to establish an expert s qualifications applies with equal force to a witness offered in a rebuttal case. See, e.g., Haimdas v. Haimdas,

6 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 4 of Fed. App x 567, 568 (2d Cir. 2010) (summary order). Three aspects of Rule 702 are at issue here. First, the expert s scientific, technical, or other specialized knowledge must help the trier of fact to understand the evidence or to determine a fact at issue. Fed. R. Evid. 702(a). Second, the testimony must be based on sufficient facts or data. Id. 702(b). Third, the testimony must be the product of reliable principles and methods. Id. 702(c). Rule 702 s helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. United States v. Pollard, 128 F. Supp. 2d 1104, 1119 (E.D. Tenn. 2001); see also United States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995). This rule requires a valid... connection to the pertinent inquiry as a precondition to admissibility. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert, 509 U.S. at 592). Thus, where an expert is unaware of the prevailing standards in the relevant field of inquiry, his or her testimony may be excluded. See, e.g., Rembrandt Vision Techs., L.P. v. Johnson & Johnson Vision Care, Inc., F.R.D., 2012 WL , at *11 & n.13 (M.D. Fla. June 4, 2012) (finding that inability to justify departure from standards cuts against the reliability of the analysis). Federal Rule of Evidence 702(b) sets the basic requirement that an expert s opinions be based in a review of the relevant underlying facts. Experts may not extrapolate trends from a single data-point or fail to consider data ordinarily at the center of the relevant inquiry. See Wasson v. Peabody Coal Co., 542 F.3d 1172, (7th Cir. 2008). Simply put, experts opinions are worthless without data and reasons. United States v. Marsh, 332 F.3d 475, 478 (7th Cir. 2003) (internal quotation marks and citations omitted). Under Federal Rule of Evidence 702(c), a qualified expert is permitted to testify only if the expert s testimony is the product of reliable principles and methods. See also Daubert, 509

7 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 5 of 9 U.S. at 589 ( [U]nder the Rules [of Evidence] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. ). This rule requires that the proffering party show by a preponderance of the evidence that the testimony has a reliable basis in the knowledge and experience of [the relevant] discipline. Kumho Tire Co., 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592) (internal quotations omitted) (alteration in original). The subject of an expert s testimony must be... more than subjective belief or unsupported speculation. Daubert, 509 U.S. at As a result, [t]he Court must exclude expert testimony that is speculative, guesswork, conjecture, and the like. Boyar v. Korean Air Lines Co., Ltd., 954 F. Supp. 4, 7 (D.D.C. 1996) (citing Joy v. Bell Helicopter Textron Inc., 999 F.2d 549, 569 (D.C. Cir. 1993). A. Dr. Buchanan Lacks the Necessary Expertise to Rebut Expert Opinions Concerning the Purpose of Act R54. Dr. Scott Buchanan teaches political science. See Aug. 31, 2012 Trial Tr. at 188: He testified that he is not, however, an expert in determining legislative purpose. See id. at 194:7-12, He is not an expert on public opinion research. See id. at 212: He is not an expert on voter fraud. See id. at 194: He is not an expert in history. See id. at 200:24-201:5. And he is not an expert in sociology. See id. at 201:6-7. However, in his testimony and written report, Dr. Buchanan offers opinion testimony concerning each of these subjects. That he offers these opinions to rebut another expert s opinion is of no moment. Because Dr. Buchanan admits his lack of expertise in the relevant fields forming the basis of his opinions and his unawareness of the appropriate standards for inquiry, the Court should exclude his testimony and report in their entirety. A rebuttal expert s critique relies on a singular premise: that he or she has expertise in the relevant discipline that allows him or her to point out where the subject of the critique has

8 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 6 of 9 considered the wrong data or has failed to apply established principles or methods properly to the data at issue. Here, Dr. Buchanan opines that Dr. Arrington erred by failing to consider progress in South Carolina since passage of the Voting Rights Act but Dr. Buchanan lacks the expertise necessary to know whether and to what extent that progress (which Dr. Arrington does not deny) is relevant to a properly-conducted legislative purpose determination. Dr. Buchanan also opines that Dr. Arrington should have addressed the presence of voter fraud in South Carolina; however, Dr. Buchanan lacks expertise needed to opine on the prevalence of the problem or the mechanisms by which it might be addressed. Dr. Buchanan additionally opines on the effect that Act R54 might have on voter confidence in South Carolina, but he has no expertise in public opinion research. Finally, Dr. Buchanan s series of specific critiques of Dr. Arrington s report suggest that Dr. Arrington misinterpreted some data or failed to consider other information, but again Dr. Buchanan is simply not qualified to assess whether and how in each instance particular data weighs on a determination of legislative intent. B. Dr. Buchanan Offered Opinions with No Basis in Facts or Data. This Court has repeatedly counseled that the first step in understanding a statute s purpose is to read the text. See, e.g., AFGE TSA Local 1 v. Hawley, 481 F. Supp. 2d 72, 83 (D.D.C. 2006) (noting that the Court presumes that the legislative purpose is expressed by the ordinary meaning of the words used ) (quoting Sec. Indus. Ass n v. Bd. of Governors, 468 U.S. 137, 149 (1984)). Yet, Dr. Buchanan admits he never read the text of Act R54 beyond a single provision. This Court has also explained that legislative history may often shed light on legislative intent. See, e.g., United States v. Sanford Ltd., F. Supp. 2d, No. 11-cv-352, 2012 WL , at *8 (D.D.C. July 19, 2012). However, except for what he gleaned from the other experts reports, Dr. Buchanan never examined Act R54 s legislative history. When assessing circumstantial evidence of discriminatory intent, this Court has endorsed a basic

9 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 7 of 9 framework for the analysis. See, e.g., Texas v. United States, 831 F. Supp. 2d 244, (D.D.C. 2011) (three-judge court) (citing Arlington Heights, 429 U.S. at 266). Yet unaware of that framework, and thus not surprisingly, Dr. Buchanan failed to assess any of the categories of evidence set out in that framework. Dr. Buchanan s opinions, therefore, are unfastened to any legally recognized framework and not based on sufficient data. Indeed, Dr. Buchanan s other opinions fare no better, as they lack a reasonable basis in the data that he presents. For instance, Dr. Buchanan concludes that the history of discrimination in South Carolina has no present day effects whatsoever, apparently based in part on the single data-point that African American voter turnout exceeded white turnout in the historic 2008 general election. Buchanan Decl. at 3; cf. Wasson, 542 F.3d at 1176 (critiquing extrapolation from a single datum). Yet, Dr. Buchanan failed entirely to control for single elections or to conduct statistical tests. Similarly, Dr. Buchanan opined that Act R54 will enhance voter confidence and will deter forms of voter fraud other than voter impersonation, but he admitted that he had no basis in data to support those conclusions. Trial Tr. at 211:25-212:15, 217: III. DR. BUCHANAN CONVEYED HEARSAY WITHOUT OFFERING VALID EXPERT OPINIONS BASED ON THAT INFORMATION. An expert may rely on hearsay to form an opinion if experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject. Fed. R. Evid The underlying facts may be disclosed if their probative value in evaluating the expert s opinion substantially outweighs their prejudicial effect, id., but the Federal Rules of Evidence contain no exception or exclusion permitting the admission of hearsay simply because an expert has considered it. See Fed. R. Evid. 703, Rule Comm. Note (2000). Where an expert merely restates hearsay rather than forming an independent opinion based on those data such data are inadmissible. This Court must make sure that the expert isn t being used as a vehicle

10 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 8 of 9 for circumventing the rules of evidence. In re James Wilson Assocs., 965 F.2d 160, 173 (7th Cir. 1992). Here the State attempts to bring substantial hearsay into the record through Dr. Buchanan s report and testimony, most notably voter participation rates, tallies of minority elected officials, and dozens of blog posts concerning allegations of voter fraud. See Buchanan Decl. at 4-7, 11-16, & ex.12. Because Dr. Buchanan forms no admissible opinions on the basis of these data, the data themselves cannot be considered by this Court. Notably, Dr. Buchanan cannot present to this Court dozens of allegations of voter fraud collected on a blog when he has no expertise on the prevalence of voter fraud and no basis to opine on the effect of Act R54 on potential voter fraud or voter confidence. Nor can South Carolina plausibly ask this Court to credit Dr. Buchanan s opinion in this regard when he admitted on cross-examination that he never verified any of the purported voter fraud data that was collected for him from a website. 8/31/12 Trial Tr. at 218:15-23; see Boim v. Holy Land Found. for Relief and Dev., 549 F.3d 685, 703 (7th Cir. 2008) (requiring expert to establish the basis for concluding that reliance on websites was sound before considering website content). Dr. Buchanan also cannot present tables concerning voter participation when he has offered no opinion concerning the statistical significance of those figures and is not qualified to offer an opinion concerning the relevance of those figures to the final determination of legislative intent.

11 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 9 of 9 CONCLUSION For the reasons set out above, this Court should grant the United States motion to exclude the testimony of Dr. Scott Buchanan, as well as Dr. Buchanan s August 6, 2012 report. Date: September 7, 2012 RONALD C. MACHEN, JR. United States Attorney District of Columbia Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Bradley E. Heard T. CHRISTIAN HERREN, JR. RICHARD DELLHEIM BRADLEY E. HEARD CATHERINE MEZA ANNA M. BALDWIN ERIN M. VELANDY Attorneys Voting Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202)

12 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203 (CKK-BMK-JDB) Three Judge Court Defendants, JAMES DUBOSE, et al., Defendant-Intervenors. ORDER EXCLUDING TESTIMONY AND REPORT OF DR. SCOTT BUCHANAN Upon consideration of the United States Motion to Exclude the Testimony and Report of Dr. Scott Buchanan (Doc. ), and the State of South Carolina s response thereto (Doc. ), it is hereby ORDERED that the United States motion is GRANTED. Accordingly, the testimony offered by Dr. Buchanan at trial is hereby excluded from evidence. Likewise, the August 6, 2012 Expert Report of Dr. Scott Buchanan is hereby excluded from evidence. IT IS SO ORDERED.

13 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 2 of 2 Date: September, 2012 BRETT M. KAVANAUGH UNITED STATES CIRCUIT JUDGE COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE JOHN D. BATES UNITED STATES DISTRICT JUDGE

14 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 1 of 49 Exhibit 1

15 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 2 of UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, Plaintiff, vs. UNITED STATES OF AMERICA, ET AL., CA No Washington, DC August 31, :40 p.m. DAY 5 - PM SESSION Defendants. Pages 150 thru 165 TRANSCRIPT OF TRIAL BEFORE DISTRICT JUDGE COLLEEN KOLLAR-KOTELLY CIRCUIT JUDGE BRETT M. KAVANAUGH DISTRICT COURT JUDGE JOHN D. BATES APPEARANCES: For the Plaintiffs: H. CHRISTOPHER BARTOLOMUCCI, ESQ. BRYAN J. FIELD, ESQUIRE MICHAEL McGINLEY, ESQUIRE STEPHEN POTENZA, ESQUIRE Bancroft, PLLC 1919 M Street, NW Washington, DC (202) H. CHRISTOPHER COATES, ESQUIRE 934 Compass Point Charleston, SC (843) ALSO PRESENT: ALAN M. WILSON Attorney General South Carolina BRYAN STIRLING Deputy Attorney General South Carolina KARL S. BOWERS, ESQ.

16 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 3 of For the Defendants: BRADLEY E. HEARD, ESQUIRE RICHARD ALAN DELLHEIM, ESQUIRE BRYAN L. SELLS, ESQUIRE ANNA M. BALDWIN, ESQUIRE CATHERINE MEZA, ESQUIRE ERIN MARIE VELANDY, ESQUIRE DANIEL J. FREEMAN, ESQUIRE ANGELA MILLER, ESQUIRE U.S. Department of Justice Civil Rights Division Voting Section 950 Pennsylvania Avenue, NW Washington, DC (202) For Defendant Intervenors: GARRARD R. BEENEY, ESQUIRE MICHAEL COOPER, ESQUIRE THEODORE A.B. McCOMBS, ESQUIRE TALY DVORKIS, ESQUIRE SEAN A. CAMONI, ESQUIRE PETER STECIUK, ESQUIRE Sullivan & Cromwell, LLP 125 Broad Street New York, NY (212) NANCY ABUDU, ESQUIRE American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, NW Suite 1440 Atlanta, GA (404) SUSAN K. DUNN, ESQUIRE American Civil Liberties Union Foundation of South Carolina 40 Calhoun Street Suite 210 Charleston, SC (843)

17 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 4 of ARTHUR B. SPITZER, ESQUIRE American Civil Liberties Union of the Nation's Capital 4301 Connecticut Avenue, NW Suite 434 Washington, DC (202) x113 J. GERALD HEBERT, ESQUIRE The Campaign Legal Center 215 E Street, NE Washington, DC (202) MIMI MARZIANI, ESQUIRE Brennan Center for Justice 161 Avenue of the Americas 12th Floor New York, NY (646) MARK A. POSNER, ESQUIRE Lawyers' Committee for Civil Rights 1401 New York Avenue, NW Suite 400 Washington, DC (202) Court Reporter: Bryan A. Wayne, RPR, CRR Official Court Reporter U.S. Courthouse, Room 4704-A 333 Constitution Avenue, NW Washington, DC (202) Proceedings recorded by mechanical stenography; transcript produced by computer-aided transcription.

18 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 5 of MR. COATES: All right, sir. SCOTT E. BUCHANAN, WITNESS FOR THE PLAINTIFFS, SWORN EXAMINATION BY MR. COATES: Q. Would you state your full name for the record, please, sir. A. Scott Eugene Buchanan. Q. Where do you reside? A. Summerville, South Carolina. Q. Do you teach at the Citadel? A. I do. Q. Which subjects do you teach? A. I teach political science, specifically topics on American politics, Southern politics, state and local government. Q. Let me show you what's been previously marked as Plaintiffs' Exhibit 52 and ask if you can identify that document. A. That is the rebuttal report that I submitted to the Court. Q. What were you asked to do in this case? A. I was asked to investigate the opinions put forward by Drs. Burton and Arrington, and if I had disagreements with that, to serve as a rebuttal witness in this case. Q. Okay. And did you assert any opinions yourself -- A. I did. Q. -- in your report? A. I did.

19 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 6 of Q. How many opinions did you assert? A. A total of seven if memory serves. Q. On what page of the rebuttal report are those opinions outlined? A. Let me look. I don't remember the page number. That would be on page 3 of the rebuttal report. Q. Did you look at the subject of voter registration particularly among African Americans in forming your rebuttal opinion? A. I did. Q. And briefly what did that survey indicate? A. Very briefly, I found that the registration among black South Carolinians has increased dramatically since the implementation of the Voting Rights Act. Just to give one sense of that, in 1968, the first year that racial registration data is available from the state, approximately 54 percent of African Americans were registered to vote in South Carolina. Today, that number is 82 percent, at least as of June of this year. Q. Okay. In forming your rebuttal opinion in this case, did you also look at the area of voter turnout? A. I did. Q. What did that inquiry show? A. Again, similar, that the turnout among African Americans has gone up quite dramatically presidential election, the first presidential election that that data is available, 59

20 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 7 of percent turnout statewide. That figure, I believe, in 2008 was 76 percent. Q. And how does that compare with white turnout in 2008? A. White turnout in 2008 was 75 percent. Q. And how does the present rate of African American registration compare with white rates of registration in South Carolina today? A. Currently the black registration rate is approximately 82 percent, and 78 percent among white South Carolinians. Q. Did you have an opportunity in your study to look at the number of African American elected officials in South Carolina? A. I did. Q. And could you tell me which offices you looked at -- or let me ask you, did you look at the congressional elections? A. I did. There are currently six congressmen in South Carolina. Two of the six, or 33 percent, of the congressional delegation are African American members. One is Democrat Jim Clyburn, and the other is Republican Tim Scott. Q. And what is your understanding of the -- according to the 2010 census, the black percent of population in South Carolina? A. Approximately 28 percent. Q. Okay. And 33 percent of the elected congressional members are African American? A. That is correct. Q. Did you look at the figures for black elected officials in

21 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 8 of the General Assembly? A. I did. Q. How many members are there in the House and Senate? A. Combined across the House and Senate, 38 African American members. Q. Out of how many? A Q. So 21 percent of the members presently are African American? A. Approximately 21 percent. Q. Did you look at school boards that are elected in South Carolina? A. I did. Q. And how many school board members are there in South Carolina? A. I remember the percentage is approximately 38 percent of all school board seats in South Carolina are occupied by African American members. Q. And are the superintendents of schools elected in every South Carolina jurisdiction except for one? A. Yes. Q. And how many black persons serve presently as school superintendent in South Carolina? A. The percentage is 25 percent. Q. Did you also look at sheriff?

22 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 9 of A. Yes, I did. It's approximately 26 percent of the sheriffs -- or exactly 26 percent. Q. Sheriff is an elected position in South Carolina? A. Yes, countywide. Q. Did you do any study that set forward -- in your rebuttal report that compares turnout rates in 10 specific South Carolina counties that have very different socioeconomic conditions? A. I did. I compared the five wealthiest counties and the five poorest counties to get a sense of the socioeconomic factor and what that may be doing. And basically in 2008, if you looked at the average turnout among the five poorest counties of the state, and you look at the African American turnout, it was approximately 77 percent. If you looked at the white turnout in the five wealthiest counties, it's 76 percent. Q. So you were looking at specific counties recently in South Carolina, your turnout rates -- and let me ask you, do your turnout rates that you found tend to be in conflict with the general social science notion that where there's low socioeconomic conditions, there will be low voter turnout? A. Yes. As has been mentioned here today, lower socioeconomic status usually leads to depressed turnout, but at least in this particular election in those counties, I found that that was -- the opposite case. Q. Now, what did you find in elections in those counties and

23 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 10 of turnouts in elections other than 2008? A. In 2010, among these same counties, the white turnout in the wealthiest counties was approximately 54 percent percent, I believe, and 48 percent in the poorest counties, African American turnout, and again, that's a much closer margin than any of the previous years that I examined. Q. Based upon your investigation in this case, what, if any, conclusion did you reach concerning Dr. Burton and Dr. Arrington's opinion concerning the issue of whether racial intent underlies the enactment of R54? HON. COLLEEN KOLLAR-KOTELLY: Is there an objection? MR. SELLS: Your Honor, the United States would like to voir dire Professor Buchanan before he starts offering expert opinions, of course on the United States' time, not South Carolina's time. As the Court may be aware, Professor Buchanan's deposition came after the motion in limine deadline. His qualifications have not been subject to review, so we would like to ask for a few minutes of voir dire. HON. COLLEEN KOLLAR-KOTELLY: All right. I'll allow you to do it. I'll stop the clock for you and it goes on their clock. MR. COATES: Very well. VOIR DIRE EXAMINATION BY MR. SELLS: Q. Good afternoon, Professor Buchanan.

24 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 11 of A. Good afternoon. Q. It's nice to see you again. A. And you as well. Q. I'm Bryan Sells for the United States. You remember that we met at your deposition on August 16, correct? A. Yes. Q. And at that deposition, you admitted that you're not an expert in determining legislative intent; isn't that right? A. That is correct. Q. And you don't represent to the Court that you have become an expert in legislative intent in the last two weeks, do you? A. No. Q. And at that deposition, you also admitted that you are not an expert in the analysis of voter fraud; isn't that right? A. That is correct. Q. And you don't represent to the Court that you're an expert in voter fraud as of today, do you? A. No. Q. At your deposition you also testified that you had not read the case called Arlington Heights v. Metropolitan Housing Development Corporation. Isn't that right? A. No, I had not read that. Q. And did the case of the Village of Arlington Heights v. Metropolitan Housing Development Corporation play any role in the formation of your opinions in this case?

25 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 12 of A. No. I was simply rebutting Drs. Burton and Arrington. Q. And in forming your opinions in this case, you did not read any original documents setting forth the legislative history of Act R54, did you? A. I did not. Q. And in fact you did not even read Act R54 itself in the course of forming your opinions in this case, did you, sir? A. I believe I'd say I did not read it in its entirety. MR. SELLS: Okay. Your Honor, the United States objects to Professor Buchanan's opinion testimony in this case. He's admitted that he's not an expert in the two areas in which we believe he's going to offer expert opinions. And he's clearly not based those opinions on sufficient facts or data if he hasn't read the law, he hasn't read the legislative history, and is not at all familiar with Village of Arlington Heights v. Metropolitan Housing Development Corporation. HON. COLLEEN KOLLAR-KOTELLY: I think one way of resolving this is, Mr. Coates, what is the field of expertise that you want him to opine about? In other words, what are you offering him as an expert in? He's given information that he's looked at various statistics. What are you -- in terms of voters in these various places, in terms of percentages, but in terms of going any further than that, what are you offering him for? MR. COATES: We're offering him for the purpose of

26 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 13 of rebutting -- THE COURT: No. That's not what I'm asking. HON. JOHN D. BATES: What subject matter? What subject matter is he being offered as an expert in? MR. COATES: Subject matter in Southern politics and elections in South Carolina and in portions of the South, other portions of the South, including Georgia, which he's written extensively on. We're offering him to testify concerning the socioeconomic conditions of persons in South Carolina and whether or not that has affected their ability to register and vote in elections in South Carolina, and we are offering those expert opinions for the limited purpose -- and his investigation is purposefully limited in this case because we have called him as an expert witness, purposefully limited to rebut the opinions, the ultimate opinions testified to by Drs. Burton and Arrington in this case on the issue of racial intent. We're offering to show that the bases -- HON. JOHN D. BATES: You don't have to argue your case. We just wanted the subject matter. (The Court conferring.) HON. JOHN D. BATES: What we're going to do is not rule on the objection; we're going to go ahead and allow testimony, and if the government wishes to file a written motion asking the Court to strike or not consider the testimony because of the problems in terms of his qualifications that you've

27 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 14 of identified, then you can file that written motion and South Carolina can respond to it. But we'll go ahead and allow the testimony to be received, and then we can deal with the question of whether it will be considered based on a written motion. MR. SELLS: Thank you, Your Honor. HON. COLLEEN KOLLAR-KOTELLY: And I will say to you that you only have a few minutes left. MR. COATES: Three minutes? HON. COLLEEN KOLLAR-KOTELLY: A few. MR. COATES: A few. Okay. Thank you. HON. COLLEEN KOLLAR-KOTELLY: I'm just looking at the number of yellow sheets. (Laughter) MR. COATES: Most of the yellow sheets I've already been through, Your Honor. EXAMINATION BY MR. COATES: Q. Dr. Buchanan, based upon your investigation in this case, what if any conclusions did you reach concerning Dr. Burton and Dr. Arrington's opinions concerning whether racial intent underlies the enactment of R54? A. In my opinion, they did not present any direct evidence of racial intent, and they did not present a convincing case of circumstantial evidence.

28 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 15 of Q. Could you cite us to some examples that you would rely upon to show that the evidence concerning racial intent is not persuasive? A. One example -- Q. In your opinion. A. In my opinion, in Dr. Burton's report, there was an occasion in which he made the comment that the state General Assembly had considered a bill on third-party organizations registering people to vote. He argued that that bill, that would have limited third-party organizations, was an example of racial intent. However, I do not believe that he took into consideration the fact that there have been some well-publicized abuses of voter registration by third-party organizations, including one in South Carolina involving Florence County. That's one example. An example from Dr. Arrington had to do with his contention on the local election boards in which he argued that they would act with a discriminatory intent when it came to overseeing elections, but I did not see that he presented any data to support that claim. HON. JOHN D. BATES: Mr. Coates, so as not to unnecessarily use your time, how is this not an opinion on determining legislative intent, which you I understand, or rather the witness indicated he's not an expert in? I don't want to go back on what we just ruled, but I just don't

29 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 16 of understand what subject he's talking to if he's not talking to determining legislative intent. And as I understand it -- correct me if I'm wrong -- Dr. Buchanan indicated he's not an expert in determining legislative intent. MR. COATES: Well, we believe he's an expert -- HON. JOHN D. BATES: No. What did he say? Did he say he's not an expert in determining legislative intent? MR. COATES: Yes, sir. The question asked on voir dire was answered truthfully. He said that he was not an expert concerning legislative intent. Our position is that in rebuttal, that the witness can testify if it's within his realm of expertise concerning -- HON. JOHN D. BATES: Even if he said that he's not an expert on that subject? MR. COATES: Yes, sir. HON. JOHN D. BATES: He can testify and we'll consider it for what its worth. Go ahead. MR. COATES: Yes, sir. Our position is that he can testify concerning evidence that the other experts relied upon that he in his field of expertise believes are not persuasive or valid or done properly. HON. JOHN D. BATES: You asked him to do a little bit more than that, but please go ahead. MR. COATES: Okay. That was the last question I had, Your Honor.

30 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 17 of HON. COLLEEN KOLLAR-KOTELLY: All right. Cross? MR. SELLS: May I have a moment? HON. COLLEEN KOLLAR-KOTELLY: Yes. MR. SELLS: Your Honor, may I give Professor Buchanan a copy of his deposition? HON. COLLEEN KOLLAR-KOTELLY: Yes. MR. SELLS: May I proceed? HON. COLLEEN KOLLAR-KOTELLY: Yes. MR. SELLS: Given that limited direct exam, it's difficult to know what my scope is, but I will try to keep it within the scope of that direct. HON. JOHN D. BATES: Well, I guess the question is his report will be allowed unless we don't allow it, so that report will be in front of us. MR. SELLS: Well, if I haven't been clear, our objection would extend to the portions of the documentary evidence in which Professor Buchanan is offering opinions for which he's not qualified either. HON. JOHN D. BATES: You don't know how we're going to rule on that is what I'm saying. MR. SELLS: That's right. EXAMINATION BY MR. SELLS: Q. Professor Buchanan, picking up where we left off a moment ago, you're not an expert in history, are you?

31 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 18 of A. I do not teach history, so I guess that makes me not an expert. I'm a political scientist. Q. And in fact you testified in your deposition that you're not an expert in history. A. Right. Q. And you're not an expert in sociology either, are you? A. No. MR. SELLS: Can we put up Professor Buchanan's report? It's Plaintiffs' Exhibit 52. I would like to look at Exhibit 9 to that report. For the record, it's JA BY MR. SELLS: Q. Do you recognize Exhibit 9, Professor Buchanan? A. I do. Q. You discussed this briefly with Mr. Coates on direct, correct? A. Yes, I did. Q. And you would agree with me that this exhibit shows a gap in the white turnout average and nonwhite turnout average between the poorest counties and wealthiest counties in the year 2000, correct? A. Yes, in the year Q. And that gap is about 15 percentage points, correct? A. If my math is correct, yes. Q. And the gap is about 10 percentage points in 2002, correct? A. Correct.

32 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 19 of Q. And there's a gap for each year except for 2008, correct? A. Do you mean in the sense of white turnout being greater than nonwhite turnout? Q. Correct. A. Yes. Q. And you would expect this gap in light of the socioeconomic literature you actually cite in your report, correct? A. Yes, I would. Q. I want to ask you, did you perform any significance testing on these differences that you have portrayed in this exhibit? A. No, I did not. I simply presented the election turnout data itself. Q. But you're capable of doing significance testing on these sorts of differences, correct? A. Yes. Q. That's something you learned in grad school if not before then? A. Yes. Q. Okay. Is it something that you have your students do in your university? A. I don't teach graduate students. I mostly teach undergraduates. We rarely get into that with undergraduates. Q. Okay. Do you teach your students at the Citadel about significance testing? A. In general terms, yes.

33 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 20 of Q. And the importance of significance testing. A. Yes. Q. But you didn't do any significance testing on this chart. A. No. I simply presented the turnout data, as you see here. Q. And you didn't control for the effects of a particular election cycle such as 2008, did you? A. Not with statistical controls, no. Q. But, again, that's something that you know how to do and you could do, correct? A. Yes. Q. Do you teach your students about the importance of controlling for variables like election cycle effects when looking at turnout data? A. I do. Q. And so in your report, when you make statements and conclusions about this table, you're using what we sometimes call the interocular test; is that correct? Do you know what the interocular test is? A. I'm not familiar with that term. I'm familiar with the term descriptive data. Q. The interocular test is a fancy name for eyeballing. You're eyeballing this data and drawing conclusions from it rather than making inferences based on statistics, correct? A. I understand -- yes, I understand what you're saying, but I would also contend that this is actual data, election turnout

34 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 21 of data that's not -- I would just say that it's actual election turnout data. Q. And the inferences that you are drawing from this are based on your two eyes and not inferential statistics, correct? A. Yes. Q. Now, can we look at page 16 of your report which is at JA I'd like to highlight the sentence that begins "Today" at the bottom of that page. "The likelihood of" -- excuse me. Let me start again, make sure I read it correctly. "Today, the likelihood of local elections officials being a mixture of both white and black persons is much greater, and the likelihood of racial discrimination occurring as described is much less likely." Now, you have no data to support this sentence, correct? A. No, I don't. I was rebutting Drs. Arrington and Burton, who did not present any data. Q. Okay. But you have no data, sir? A. I do not. Q. And you don't cite social science literature to support this conclusion, do you? A. I'm not aware of any social science literature that deals with this, at least in the context of South Carolina elections boards. Q. And in fact, you admitted in your deposition that this was speculation, didn't you?

35 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 22 of A. I did. Q. And you do nothing in your report to identify this as your speculation, did you? A. I think I qualified and said "much less likely." Q. Well, when you make statements about likelihood, that's a probability, right? A. It is. Q. And you make likelihood statements twice here, correct? A. I do. Q. In fact, you're saying the likelihood of racial discrimination is less, correct? A. I'm saying it's less, but -- I'm saying it's less. Q. Okay. But this again is speculation on your part? A. I do not have data for all of the counties, no. Q. Well, let's look three pages forward, page 19 of your report, which is at JA I'd like to focus in on the first sentence of that paragraph, "In sum." "In sum, the argument that voting is racially polarized solely due to racial attitudes is specious." You wrote that, right? A. I did. Q. And do you remember when we discussed this sentence in your deposition? A. I do. Q. And this is in the section of your report that is entitled

36 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 23 of "General rebuttals to Drs. Burton and Arrington," correct? A. Yes. Q. So this is where you're responding to something that apparently Dr. Burton or Dr. Arrington said. A. Yes. Q. Or at least that's what the heading would suggest. A. Yes. Q. And in fact, you admitted in your deposition that Dr. Arrington doesn't make this argument, that voting is racially polarized solely due to racial attitudes, now does he? A. I did agree to that statement, yes. Q. And in fact, it's true that Dr. Arrington does not make that argument, correct? A. Yes. Q. And so here what you're doing is you're criticizing an argument that Dr. Arrington hasn't actually made, right? A. Well, Dr. Arrington, but I think I recall that I did say Dr. Burton made that argument. As far as your question with Dr. Arrington, you are correct. Q. Your testimony here today is that Dr. Burton has argued that voting is racially polarized solely due to racial attitudes? A. If my memory is correct from my deposition, but I do remember agreeing with you about Dr. Arrington, yes. HON. COLLEEN KOLLAR-KOTELLY: So is this supposed to

37 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 24 of be refuting Dr. Arrington, who says not, or Dr. Burton? THE WITNESS: It's Dr. Burton, Your Honor. HON. JOHN D. BATES: And was your answer to the last question that you believe Dr. Burton does make that argument? THE WITNESS: I believe in his report as I've read it, I believe he does not provide any alternative explanations compared to -- well, I don't believe he offers alternative explanations. BY MR. SELLS: Q. Professor Buchanan, would you turn with me to page 117 of your deposition, please. A. I'm there. Q. Okay. And I'm starting at line 6. Were you asked the following questions and did you give the following answers? "Question: Turn with me to page 19, if you would. This is where you sum up this section, and I will read it to you. It says, 'In sum, the argument that voting is racially polarized solely due to racial attitudes is specious.'" And your answer: "Mm-hmm. "Question: Do you see that part? "Answer: I do. I do. "Question: And can you point to me in Dr. Arrington's report where he makes that argument? "Answer: Again, that is an overall summarization of what I saw in the Arrington report, that I don't feel like -- I feel

38 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 25 of like he focused on the fact that there is racially polarized voting in the state without giving due attention to some other factors that are there." Now, did you give -- were you asked those questions, and did you give those answers? A. Yes. Q. And so in your deposition, you directed that at Dr. Arrington, didn't you? A. Yes. I think I -- maybe I got tangled up up here, but I felt like I had agreed with your statement a few moments ago. Q. Okay. And this is criticizing an argument that Dr. Arrington hasn't made. I think that's what you just testified. A. Yes. Q. And when you criticize an argument that hasn't actually been made, that's called a straw man argument, isn't it? A. It is. MR. COATES: Objection, Your Honor. The characterization of the testimony in deposition is not correct. Counsel has pointed to the fact that Dr. Arrington in his report pointed to racially polarized voting, and he did not go any further in terms of any other cause -- the cause or causes for underlying racially polarized voting. The witness has simply said in his report -- HON. COLLEEN KOLLAR-KOTELLY: You're talking about his

39 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 26 of report, but we're going by his testimony. His testimony appears to be that Dr. Arrington -- he was asked the question, he said Dr. Arrington didn't give this opinion, and he agreed he was criticizing something that Dr. Arrington didn't make. So we're not looking at reports; we're going by what his testimony is. MR. COATES: Dr. Arrington said, he cited to racial polarization, and Dr. Arrington didn't say one way or the other what -- HON. COLLEEN KOLLAR-KOTELLY: Mr. Coates, you're just arguing at this point. He's asked the question and he answers, and you're left with his answers. BY MR. SELLS: Q. Professor Buchanan, let's cut to the chase here. This is a straw man argument, isn't it? A. I think, based upon my testimony in the deposition, that I did admit to you that some of what I said about racial polarization was more in the Burton report than in the Arrington report. Q. Well, in fact, that's not at all what we discussed in your deposition. You admitted that this argument is a straw man, didn't you? A. Can you point me to that discussion? I do remember the straw man. Q. Yes. This is also on page 117. Let me ask you -- HON. COLLEEN KOLLAR-KOTELLY: What line?

40 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 27 of MR. SELLS: This is on page 117 of the deposition at line 22. We're beginning there. BY MR. SELLS: Q. So, Professor Buchanan, I'm going to ask you, were you asked these questions and did you give these answers? "But he doesn't make that argument, does he?" There's a pause. "Witness peruses document." "Answer: No, I do not see anything. "Question: Do you know what a straw man is? "Answer: Yes. "Question: This would be an example of a straw man argument, right? "Mr. Coates: Objection. "The Witness: I disagree in the sense that I'm attempting to show that racially polarized voting is not solely due to racial attitudes, and I believe that the overall argument can be found in the Arrington reports. So I would disagree with that, that is a straw man. "Question: Well, a straw man is criticizing an argument that isn't actually made, right? "Answer: Correct. "Question: And you are criticizing an argument that Dr. Arrington hasn't actually made. "Mr. Coates: Objection to form. Misstatement of the prior testimony.

41 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 28 of "Question: Right? Isn't that what you're doing? "Mr. Coates: Same objection. "The Witness: In the case of the Arrington report, yes." Were you asked those questions, and did you give those answers? A. Yes, I did. Q. And in fact, your report is full of straw man arguments attributing things to Drs. Arrington and Burton that they don't actually argue, isn't it? A. I would have to see other examples. I'm not ready to testify to that. Q. Okay. Well, let's take another example. How about -- on page 3 of your report. This is JA These are the opinions that you said you've listed in your report, and the very first one: "Since 1965, South Carolina has made dramatic progress in the area of minority voting rights regarding the ability of racial minority groups, especially African Americans, to participate in the political process and to elect candidates of their choice." Now, are you suggesting that Dr. Arrington has said otherwise? A. If my memory serves me from the deposition, I believe I said Dr. Burton and did agree with you on Dr. Arrington. Q. I think I'm going to move on. In your discussion of voter

42 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 29 of fraud in your report, you offer the opinion that voter ID statutes increase public confidence in the electoral system. Do you remember that in your report? A. That is my opinion. Q. Okay. And do you remember that we discussed that in your deposition? A. I do. Q. And do you remember in your deposition you told me that that was a personal opinion, not a scientific opinion? A. I believe if I remember correctly I said a personal opinion, and that was reinforced by my training, but it was a personal opinion. Q. Well, you weren't relying on any data, were you? A. I had no specific data that stated that, no. I had data of voter fraud cases in the report. Q. Here we're talking about public confidence increased by voter ID statutes. You had no data, and you didn't cite to any social science literature to support that, did you? A. I did not. Q. And you're not an expert in public opinion research, are you? A. No. Q. And that was a personal opinion. Was it speculation too? A. It was a personal opinion. Q. Now, you teach undergraduates at the Citadel, correct?

43 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 30 of A. That is correct. Q. Do you teach any upper-level courses? A. I do. Q. And in any of those courses do students have to submit papers to you? A. They do. Q. In these papers that you receive from your students, if you came across a student that used straw man arguments, speculation not supported by data, had eyeballed some numbers and was drawing conclusions off of those, you would give that student an F, wouldn't you? A. Quite frankly, if some of them can put two sentences together, then that's sort of doing something, but he or she would receive certainly a lower grade. MR. SELLS: Thank you. Those are my questions. MR. HEARD: Your Honor, the United States is hereby ceding 45 minutes to Mr. Beeney. HON. JOHN D. BATES: No, no, no. We don't want 45 minutes. (Laughter) MR. BEENEY: Judge Bates, I was just going to ask for an extra 30 after that. HON. JOHN D. BATES: I'm sure you were. MR. BEENEY: No, I will be far more brief than that. I'm certainly the beneficiary of the government's, if not the

44 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 31 of Court being the beneficiary of it. EXAMINATION BY MR. BEENEY: Q. Good afternoon, Dr. Buchanan. A. Good afternoon. Q. Good to see you again. A. You as well. Q. Dr. Buchanan, you're being offered as a rebuttal expert by the state of South Carolina in a case in which the issue is whether R54 is in compliance with the Voting Rights Act? A. Yes. Q. But at least by the time you prepared your opinion, and indeed by the time your deposition had been taken, you hadn't read the law that's at issue in this case; is that right? A. Not in its entirety. Q. Would you turn to page 186 of your deposition, Dr. Buchanan. It's the bottom line of that page, sir, line 25. "Question: But you haven't read the law?" Over to 187, 1. "Answer: I have not read the law." Were you asked that question and did you give that answer? A. That's correct, but my memory is earlier in the day I did say that I had not read it in its entirety. Q. Well, it can't be correct if the answer is you hadn't read it in its entirety, but the answer you gave there is that you hadn't read the law, right?

45 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 32 of A. Yes, on page 187. Q. And in terms of the other part of the case, the Voting Rights Act, any view that you would express on the Voting Rights Act is speculation; is that right? A. How? I don't know that I understand your question. Q. Would you turn to page 182 of your deposition. A. I'm there. Q. Okay. Reading on line 20, going over to 183, 7. "Question: And when a state presents a change in voting law to the Justice Department under Section 5, what does it have to show in order to get the Justice Department to sign off on the law, do you know? "Answer: My understanding -- well, I would need to take a look at the law. I could give you my understanding, but it would be speculation, so I would rather take a look at the law itself. "Question: So you don't have any understanding other than what would be speculation? "Answer: Yeah, pure speculation. I have a pretty good feeling, but I just -- well, without being pure speculation." Were you asked those questions and did you give that answer? A. I was. Q. So you're being offered as an expert in a case about a law you haven't read, and with respect -- excuse me, about the South

46 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 33 of Carolina law that you haven't read with respect to law that's being applied that you don't know anything about? MR. COATES: Objection. Misstatement of the evidence. The court testimony indicates that he has read some portions of R54. HON. COLLEEN KOLLAR-KOTELLY: All right. We'll take a look at whatever he said. Go ahead. HON. JOHN D. BATES: Maybe you ought to just rephrase the question. BY MR. BEENEY: Q. You do agree that you gave an answer in the deposition, Dr. Buchanan, that you hadn't read R54, correct? A. I agree that this portion, but I also would state earlier that I stated that I had not read it in its entirety. Q. And today, sitting here, which one do you think is right? A. That I had not read it in its entirety. Q. What part of the law did you read? A. I read the portion about the acceptable forms of identification. Q. But you didn't read anything else in the law? A. Not in any depth, no. Q. Did you read it in any depth at all? A. Not prior to the deposition. Q. And not prior to offering your opinion in your written report?

47 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 34 of A. Beyond the -- what I was doing was verifying what was said in the expert reports about types of identification. Q. And even before starting to work on the case, you thought that voter ID laws were generally a pretty good thing; is that right? A. I believe I mentioned that opinion. Q. But you can't cite a single academic study that in any way supports a claim that voter ID laws in any way have any impact on any form of voter fraud, can you? A. I'm not aware of any. Q. Now, with respect to the voter ID law in this case, which I guess you read a part of? A. Yes. Q. You can't tell us one way or the other, or if at all whether R54 deters any voting fraud at all. A. I don't believe anyone can since it's not gone into effect yet. Q. Well, I don't want you to speculate about other people, but certainly you can't; is that right? A. I cannot because it's not gone into effect. Q. And your opinion that voter ID laws will discourage other types of voting is not a professional opinion, it's your personal opinion, right? A. It is a personal opinion. Q. Now, I want to talk to you a little bit about the

48 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 35 of methodology that you used in preparing your report. To take as an example, you say in your rebuttal report at page 44, Dr. Buchanan, that "voter fraud, including impersonation fraud, does in fact occur at alarming rates across the nation and in South Carolina, and that affects the public view of the electoral system." Do you recall that? A. I see that right now. Q. And that opinion that you're offering is based on one thing and one thing only; is that right? A. It is based upon the voting fraud cases that appear in one of the tables of the report. Q. And it's based only on Exhibit 12 to your report; isn't that correct? A. Yes. That was the basis of that. Q. And in order to reach the conclusion that you did based on table 12, what you did was you had a researcher who you had never met, who was provided to you by another source, go to a Web site that compiles underlying data that you never verified, and then you relied on information that was compiled by the source that you never verified without verifying that information either, and that's how you came to your opinion. Is that right? A. Yes. Q. And that's not consistent with methods of social science research, is it?

49 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 36 of A. Having not published voter fraud cases, I cannot answer that. Q. Well, let's expand it beyond the limited field of voter fraud cases. Using a research assistant who you've never met that someone referred to you, that you don't know anything about, to look at a Web site that you never verified, to compile information that in turn you never verified, I mean, that's not social science methods, is it? A. I would hasten to add on the not verifying that those were news stories that were posted on a variety of different legitimate Web sites, news Web sites. Q. Well, with apologies to my friends in the press who may be in the room, you believe that it's acceptable social science to read a newspaper and then rely on that as truth to come to an opinion that voter fraud is rampant around the country? A. Well, that is one tool that you can use. Q. You think that's acceptable social science. A. Again, it's one tool that can be used. Q. Isn't your definition of acceptable social science to verify when you can? A. When possible. Q. And you had two months to do this work, right? A. Yes. Q. And I think -- let me ask you this. You wouldn't rely on a survey conducted by someone else unless you understood how that

50 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 37 of survey was done, right? A. No. Q. But that's what you did in order to deliver your opinion in your report. A. I wouldn't -- maybe we are parsing words on surveys. When I say survey, I thought you meant an opinion poll. Q. Now, Dr. Buchanan, you're not offering your own independent views one way or the other as to whether R54 was enacted with a discriminatory purpose, are you? A. I'm saying that I found no evidence, from what research I did do, I found no evidence. Q. You found no evidence that R54 was enacted with a discriminatory purpose, right? A. No, I did not find any evidence. Q. But you didn't look at any evidence. You didn't read a deposition, you didn't look at a document produced by the state, you spent 10 minutes talking with a legislator, so the reason you didn't find any evidence is because you didn't see any? A. I think I provided in the report research that provides alternatives, and again, from what I saw, I did not find any evidence. Q. Well, let's take it one step at a time. You're not offering an opinion of your own whether R54 was enacted with a discriminatory purpose, are you? MR. COATES: Objection. The witness is not offered by

51 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 38 of the state of South Carolina for the purpose of proving racial intent or nonracial intent. The only purpose for the witness being offered is to rebut the conclusions of the defendants' two experts. HON. COLLEEN KOLLAR-KOTELLY: Yes, but which conclusions? HON. JOHN D. BATES: And one of those conclusions is exactly what you're talking about. MR. COATES: He's offered for the purpose of rebutting the conclusions that R54 was enacted with a racially discriminatory purpose. He is not independently offered to provide his own opinion about whether or not R54 was enacted with a discriminatory purpose. HON. JOHN D. BATES: All right. HON. COLLEEN KOLLAR-KOTELLY: Well, we now understand what they're thinking. BY MR. BEENEY: Q. So just to confirm Mr. Coates's representation, Dr. Buchanan, you're not offering any view one way or the other as to whether R54 was enacted with a discriminatory purpose, are you? A. I am not. I am serving as a rebuttal to the opinions offered by the other two gentlemen. Q. And just to nail this down because I think it's important, would you turn to page 170 of your deposition.

52 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 39 of A. I'm there. Q. On line 21 you were asked: "And so you are not offering any view one way or the other whether it was or whether it wasn't enacted with a discriminatory purpose?" And your answer is, on line 24, "No." You were asked that question and gave that answer, right? A. I did. Q. And that hasn't changed today, right? A. No. Q. But you are claiming that you didn't see any evidence that R54 was enacted with a discriminatory purpose, right? A. I'm claiming I didn't see any evidence as offered in the reports of Drs. Burton and Arrington. Q. And the reason you're limited to looking at what's in the reports of Drs. Burton and Arrington is because you didn't look at any evidence in the case on your own. A. Again, I was asked to rebut their reports. Q. Can you answer my question, Dr. Buchanan? You didn't look at any evidence in the case on your own? A. As far as legislative history or... Q. Or depositions or documents or, by the time you'd done your report, interrogatories or requests to admit or anything else. A. I was not offered any depositions, no. Q. Nor were you offered any documents? A. No.

53 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 40 of Q. Nor answers to interrogatories? A. No. Q. Nor responses to requests to admit? A. No. Q. I don't know if I've left anything out, but you didn't look at any evidence in the case, did you? A. None of what you said. Q. Now, you agree that voting in South Carolina is racially polarized. A. I do. Q. And based on your understanding of racially polarized voting in South Carolina, you would agree that if one were able to prevent an African American from voting in South Carolina, the overwhelming likelihood is that you prevented someone from voting Democratic, correct? A. Yes. Q. And you didn't look at the legislative history of R54, did you? A. I examined the one that was offered in the Burton report. Q. And you didn't find anything wrong with that, did you? A. No. Q. And you can't tell us of any instance of voter impersonation fraud in South Carolina ever, can you? A. Not in South Carolina. Q. And even though you looked for it, didn't you?

54 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 41 of A. I looked for it in the sense of what I presented, yes. Q. Now, if you were going to perform an analysis of whether R54 was enacted with a discriminatory purpose, the way you'd figure out your methodology would be to think about it and sit around the office with a few other professors, talk to each other, say, hey, what do you think about this, and that's how you'd come up with your methodology; is that right? A. At least the beginning method. That's one of the things that professors typically do. I wouldn't say it's the end result, but it's where it gets started. Q. And Dr. Buchanan, African Americans in South Carolina have lower rates of educational attainment? A. That is true. Q. And I think your own data suggests that they have per capita income that is about half of white people? A. I don't remember the exact figures, but that sounds to be the approximate case, yes. Q. Why don't you take a look at Exhibit 7 to your report, and then we can get the exact figures. A. Okay. Q. And let's compare it with Exhibit 8. You calculated per capita income of whites in South Carolina to be $24,822? A. This is based upon census, American Community Survey, to be exact, yes. Q. You're saying it's incorrect?

55 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 42 of A. No, I'm just saying this is where it came from. Q. This is another one of those pieces of data that you relied on that you didn't verify? A. I verified it in the sense that it's in the American Community Survey provided by the Census Bureau. Q. So you're claiming you verified this by looking at it. A. I don't know that I understand your question. Q. I'm trying to understand what you mean by you verified it. You went to a source, and you copied it. A. Well, yes. It's data provided by the Census Bureau. Q. Okay. And comparing white and nonwhite, the white per capita income is $24,822, and nonwhite is $13,531; is that right? A. That's correct. Q. And notwithstanding lower levels of educational attainment and about half of the per capita income, you don't think that's got any impact on the ability to overcome costs of voting? A. Can you rephrase the question? I want to make sure I understood you. Q. Sure. Notwithstanding per capita income of nonwhites of about half of what it is for whites, and notwithstanding lower levels of education attainment of African Americans as compared to whites, you don't believe that affects voter turnout or the ability to overcome hurdles placed in front of voting? A. Just to make sure that I understand, I'm going to elaborate

56 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 43 of slightly that I acknowledge that lower SES factors generally lead to lower turnout. I would agree with that. Q. Why is that? A. Again, if you have a relatively low level of education, you're not likely to have a very high level of political efficacy, to feel that you can make a difference at the ballot box. If you have lower levels of income, you may be worried about other factors than voting itself. So that's a summarization of very broad literature. Q. Did you tell us earlier today that African American registration was actually higher than it is for whites in South Carolina? A. I believe I said that for June Q. So it's not a lack of interest in the electoral system among African Americans. A. I think the figures speak for themselves in that sense. There obviously is a great deal of interest. Q. Now, I think you also mentioned on direct about certain election of black officials around the state? A. That is correct. Q. And I'd like to talk to you now a little bit about statewide elections. In the history of South Carolina, there has never been an African American governor elected, has there? A. No, there has not. Q. And in the history of South Carolina, there has never been

57 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 44 of an African American United States Senator that's been elected; is that right? A. Not elected, no, not to the Senate. Q. In the history of South Carolina, there have been two United States representatives elected? A. I would have to look at reconstruction era before, but I can say certainly right now there have been two, yes. Q. And in your view, one of those has positions on issues that are not the way a majority of South Carolina African Americans feel about government; would you agree? A. I agree that -- MR. COATES: Objection to the foundation. HON. COLLEEN KOLLAR-KOTELLY: Well, he's ready to answer it, but... MR. BEENEY: I could also take it out of his deposition if we'd prefer, so the foundation is his deposition. HON. COLLEEN KOLLAR-KOTELLY: Let's just go. Go ahead. BY MR. BEENEY: Q. And Dr. Buchanan, you're also not aware of any expert the state of South Carolina is providing in this case with respect to an opinion as to whether R54 was enacted with a racially discriminatory purpose, are you? A. Can you restate that? I lost the first part. I'm sorry. Q. Sure. You're not aware of any expert the state of South

58 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 45 of Carolina is providing in this case with respect to an opinion as to whether R54 was enacted with a racially discriminatory purpose. A. Not aware. Q. And you don't have a view as to whether R54 would in fact retard the progress that has been made in the area of minority voting rights? A. No. Q. No, you're not offering -- A. No, I'm simply the rebuttal. Again, I'm the rebuttal witness to the Burton and Arrington reports. Q. So, really, do I have it right, Dr. Buchanan, that what your opinion really comes down to is that Dr. Arrington and Dr. Burton did not look at certain information that you think they should have in order to have reached their opinion? A. I agree that they did not consider all information. Q. And that's the opinion that you're offering in the case; is that right? A. Yes. Q. And because you have not reached any conclusion at all about whether R54 was enacted with a discriminatory purpose, you can't say whether, if Dr. Arrington and/or Dr. Burton had looked at the information that you think they should have, whether they would have come to any conclusion other than the one that they did?

59 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 46 of MR. COATES: Calls for speculation. HON. COLLEEN KOLLAR-KOTELLY: No, I'll allow it. THE WITNESS: I cannot. MR. BEENEY: Thank you very much. Thank you, Your Honors. HON. COLLEEN KOLLAR-KOTELLY: All right. Mr. Coates, you get three minutes. Did you want to do something more? MR. SELLS: The United States renews its objection to Professor Buchanan's testimony and moves to strike it in its entirety. HON. COLLEEN KOLLAR-KOTELLY: All right. MR. BEENEY: Join in the motion, Your Honor. Thank you. HON. COLLEEN KOLLAR-KOTELLY: All right. Mr. Coates, three minutes. HON. JOHN D. BATES: Earlier I'd asked you to submit a motion in writing. You're making an oral motion, we understand that. But we've decided to defer ruling on that until we see a written motion from you. MR. COATES: May I proceed, Your Honor? HON. COLLEEN KOLLAR-KOTELLY: Yes. MR. COATES: Thank you. EXAMINATION BY MR. COATES: Q. Dr. Buchanan, you had an occasion to read the reports

60 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 47 of submitted by Dr. Arrington and Burton in this case? A. I did. Q. Did they in part rely upon newspaper reports in their expert reports in this case? A. They did. Q. Now, with regards to the statewide elections, has there been a minority person elected statewide in South Carolina in the recent past? A. I believe Governor Haley fits the census definition of a minority. Q. And what is Governor Nikki Haley's ancestry? A. She is of, I believe the term the Census Bureau uses is South Asian Indian. Q. Which party is she affiliated with? A. The Republican Party. Q. And in the Republican primary in 2010, did she have opposition? A. She did. Q. And how many opponents did she have in the Republican primary? A. Total of four including herself, so she had three other opponents. Q. What was the race of the four opponents that Governor Haley had in the Republican primary? A. They were all white males.

61 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 48 of Q. Was one of them Mr. McMaster, who had served as the United States Attorney in South Carolina and the state Attorney General? A. Yes. MR. SELLS: Objection. HON. COLLEEN KOLLAR-KOTELLY: These are people who didn't get -- you made your point that she's a minority. I'm not sure what difference it makes for the rest. HON. JOHN D. BATES: What's the basis of the objection? Relevance? MR. SELLS: Leading and relevance, Your Honor. BY MR. COATES: Q. Do you know any of the opponents that Governor Haley had in the Republican primary? A. I do. Q. And could you tell us about them? A. They were all white males. Q. And with regards to the question about significance testing -- and you testified that there had been no significance testing on the turnout figures that you showed in your report? A. Yes. Q. Do you feel confident as a social scientist that the percentages showing black and white voter turnout in the counties that you cite to are correct? A. Yes.

62 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 49 of MR. COATES: No further questions, Your Honor. HON. COLLEEN KOLLAR-KOTELLY: All right. Anything else? You can step down, sir. Thank you. (The witness steps down.) HON. COLLEEN KOLLAR-KOTELLY: All right. I think we're finished in terms of testimony; am I correct? HON. JOHN D. BATES: Does that close the rebuttal case? HON. COLLEEN KOLLAR-KOTELLY: Or did you have something else? I shouldn't have jumped to that conclusion. MR. BARTOLOMUCCI: If the United States is finished with its case -- HON. JOHN D. BATES: This is your rebuttal case. MR. BARTOLOMUCCI: Correct. And we're finished with our rebuttal case. The Attorney General of South Carolina, who has been here most of the week, had a request to address the Court for one minute on a matter of nonsubstance, with the Court's permission. HON. JOHN D. BATES: Nonsubstance. HON. COLLEEN KOLLAR-KOTELLY: All right. Well, what we were going to do -- and he can certainly address us now -- is we were going to take a short break and reconvene and hopefully we would get an answer from the parties, at least an initial answer to the questions that Judge Bates started yesterday and all of us chimed in in one form or another, as to the positions

63 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 1 of 5 Exhibit 2

64 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 2 of 5 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA x 4 STATE OF SOUTH CAROLINA, : 5 Plaintiff, : Civil Action No.: 6 v. : 1:12 cv UNITED STATES OF AMERICA and : (CKK-BMK-JDB) 8 ERIC H. HOLDER, JR., in his : 9 official capacity as Attorney : 10 General, : 11 Defendants, : 12 JAMES DUBOSE, et al., : 13 Defendant-Intervenors. : x Deposition of SCOTT EUGENE BUCHANAN, Ph.D. 17 Washington, DC 18 THursday, August 16, :05 a.m Pages: Reported by: Leslie Anne Todd

65 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 3 of 5 Page 2 1 Deposition of SCOTT EUGENE BUCHANAN, Ph.D., 2 held at the offices of: U.S. DEPARTMENT OF JUSTICE G Street, NW 8 7th Floor 9 Washington, DC (202) Pursuant to Notice, before Leslie Anne Todd, 16 Court Reporter and Notary Public in and for the 17 District of Columbia, who officiated in 18 administering the oath to the witness A P P E A R A N C E S C O N T I N U E D 2 ON BEHALF OF DEFENDANT INTERVENORS: 3 GARRARD R. BEENEY, ESQUIRE 4 Sullivan & Cromwell LLP Broad Street 6 New York, New York (202) ALSO PRESENT: 10 PEYTON MC CRARY (US DOJ - Historian) 11 J. GERALD HEBERT (The Campaign Legal Center) 12 RENATA STRAUSE (The Campaign Legal Center) 13 MARY SCOTT KENNEDY (Intern) Page 4 1 A P P E A R A N C E S 2 ON BEHALF OF PLAINTIFF: 3 H. CHRISTOPHER COATES, ESQUIRE 4 Law Office of H. Christopher Coates Compass Point 6 Charleston, South Carolina (843) ON BEHALF OF DEFENDANT USA: 10 BRYAN L. SELLS, ESQUIRE 11 RICHARD DELLHEIM, ESQUIRE 12 TOBY MOORE, ESQUIRE 13 U.S. Department of Justice Pennsylvania Avenue, NW 15 Room 7264-NWB 16 Washington, DC (202) Page 3 Page 5 1 C O N T E N T S 2 EXAMINATION OF SCOTT EUGENE BUCHANAN, Ph.D. PAGE 3 By Mr. Sells 7 4 By Mr. Beeney By Mr. Coates By Mr. Sells By Mr. Beeney E X H I B I T S 11 (Attached to transcript) 12 BUCHANAN DEPOSITION EXHIBIT PAGE 13 Exhibit 1 Curriculum Vitae of Scott Eugene Buchanan, Ph.D. 15 Exhibit 2 Declaration of Scott Eugene Buchanan, Ph.D

66 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 4 of 5 Page 6 1 P R O C E E D I N G S 2 SCOTT EUGENE BUCHANAN, Ph.D. 3 having been duly sworn, testified as follows: 4 MR. COATES: Before we start, I just want 5 to state for the record that there are several typos 6 in the declaration of Dr. Buchanan, and he wanted to 7 correct those on the record so that you would have 8 the benefit of those corrections prior to the time 9 that you started your deposition. 10 MR. SELLS: I intend to ask Professor 11 Buchanan about those. Is there some reason why he 12 needs to go first with that? 13 MR. COATES: Well THE WITNESS: I have them listed. I can 15 give them to you now or MR. SELLS: Let's wait because I don't 17 have your report in front of me, and it's not been 18 marked as an exhibit yet. 19 THE WITNESS: Okay. 20 MR. SELLS: And then we will have a 21 chance to do that. 22 MR. COATES: Okay, that's fine. 23 MR. SELLS: But I appreciate the heads-up 24 on that. 25 THE WITNESS: Okay. Page 8 1 Do you understand that? 2 A Yes. 3 Q All of your answers and all of my 4 questions have to be taken down by this court 5 reporter so that we can read the transcript later. 6 Do you understand that? 7 A Yes. 8 Q And because the court reporter can only 9 take down verbal responses, I would ask you not to 10 use gestures, shrugs, nods, that sort of thing as 11 your answer. 12 Do you understand that? 13 A I understand. 14 Q One other ground rule that the court 15 reporter will appreciate is if we try, each other, 16 not to talk when the other person is talking. That 17 becomes very difficult for the court reporter to keep 18 a clean transcript. 19 Do you understand how that works? 20 A I understand. 21 Q There's a chance we may go over some 22 technical terms here this morning. If there is 23 anything I ask you that you don't understand or need 24 clarification for, would you please ask me? 25 A Yes, I will. Page 7 1 EXAMINATION BY COUNSEL FOR 2 DEFENDANT UNITED STATES OF AMERICA 3 BY MR. SELLS: 4 Q Good morning, Professor Buchanan, and 5 thanks for coming to Washington, D.C. 6 A Good morning. 7 Q My name is Bryan Sells, and I'm an 8 attorney with the United States Department of 9 Justice, and I represent the United States in this 10 matter. 11 Would you please state your name for the 12 record? 13 A Scott Eugene Buchanan. 14 Q And have you ever been deposed before? 15 A I have not. 16 Q In that case I will go over some of the 17 basic ground rules for deposition. 18 A Okay. 19 Q Of course everything that you say here 20 today is under oath. 21 Do you understand that? 22 A Yes. 23 Q And a deposition is a question-and-answer 24 session where I ask the questions and you give the 25 answers. Page 9 1 Q I will try to clarify it if I can. 2 If you need a break, we can take a break, 3 although I would ask that you not ask for a break 4 while we are in the middle of a line of questioning. 5 Okay? 6 A I understand. 7 Q Now, sometimes you remember things later 8 in the day that would be responsive to a question 9 that we discussed earlier. If that happens would you 10 let me know what's on your mind so that we can get 11 that down on the record? 12 A Yes. 13 Q Also sometimes after we've been talking 14 for a while, you will remember that an answer that 15 you previously gave was not completely accurate. If 16 that happens, would you let me know so we can correct 17 it for the record? 18 A Yes, I will. 19 Q And sometimes when you're answering a 20 question, you may think of a document that might help 21 you remember the answer to the question. And if that 22 happens, would you please let me know, because I may 23 have the document here with me. 24 A Yes. 25 Q Are you on any medication or drugs that

67 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 5 of 5 Page 30 1 opinions in this case? 2 A No, it did not. 3 Q Are you familiar with the term "racially 4 polarized voting"? 5 A I am. 6 Q What is your understanding of that term? 7 A My understanding is that this is when you 8 have two different racial -- well, I guess it could 9 be more than that -- but when you have racial groups 10 casting votes in almost completely opposite manners. 11 In other words, if you have a situation of the 12 majority of white voters voting Republican, a 13 majority of black voters voting Democratic, that 14 would be an example of racially polarized voting. 15 Q When did you gain your understanding of 16 what racially polarized voting is? 17 A I ran or encountered the idea as early as 18 the early 1990s as an undergraduate. During graduate 19 school, I learned more of the concept. I have become 20 more familiar with it, refreshed my memory in the 21 context of this case. 22 Q Now, the understanding of racially 23 polarized voting that you just recited to me in my 24 previous question, is that the same understanding 25 that you had when you wrote your report and formed Page 32 1 Q Are you familiar with the term "resource 2 model of political participation"? 3 A I am not. 4 Q Well, are you familiar with the idea that 5 the more costs a voting system imposes on the voter, 6 the less likely a voter is to turn out and vote? 7 A I'm familiar with that concept. 8 Q Is that concept well established in the 9 political science literature? 10 A It is certainly -- yes, it is certainly 11 one of the schools -- schools of thought in the area 12 of voting behavior, so, yes, it is well established. 13 Q And are you familiar with that school of 14 thought? 15 A Yes. Somewhat, I will say. 16 Q Do you teach that school of thought in 17 any of your government or political science courses? 18 A I do not. 19 Q Who would be the main authorities for 20 that school of thought? 21 A Ricker stands out as one. 22 And I'm going back to graduate school 23 days on this. So he -- his stands out to me. His 24 name stands out to me. 25 Q Okay. When were you first contacted Page 31 1 your opinions in this case? 2 A It is. 3 Q Has your understanding of racially 4 polarized voting changed in the last six months? 5 A Can you restate the question? 6 Q Has your understanding of what racially 7 polarized voting is changed in the last six months? 8 A No. 9 Q How did you gain your understanding of 10 what racially polarized voting is? 11 A At first as an undergraduate in course 12 work; graduate school the same, during course work; 13 and then during the context of this case by 14 consulting other literature, other research that 15 deals with this particular issue. 16 Q What other research did you consult? 17 A I consulted -- most of these -- in fact, 18 they are mentioned, all of them are cited in the 19 report. Harold Stanley stands out. Stanley's is the 20 main work. Also Wolfinger, Who Votes. Controversies 21 in Voting Behavior, Niemi and Weisberg. 22 Q Did you consult any other article, book 23 or person in shaping your understanding of what 24 "racially polarized voting" means? 25 A No. Page 33 1 about this case? 2 A I was first contacted in April of this 3 year. 4 Q Who contacted you? 5 A Christopher Coates. 6 Q When were you formally retained? 7 A End of May -- 30th of May. 30th of May. 8 Q Is your retainer in writing? 9 A It is. 10 Q Do you have a copy with you? 11 A I do not. 12 Q Does the retainer set forth your scope of 13 work in this case? 14 A It does. 15 Q And what is your scope of work in this 16 case? 17 A I would Q As set forth in your retainer. 19 A I would have to see a copy of that to say 20 definitively, but it was to serve as a rebuttal 21 witness to Dr. Arrington and Dr. Burton. 22 Q Is there some reason for the time lag 23 between your first contact in April and your 24 retention at the end of May? 25 A My understanding of this was that the

68 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 1 of 104 Exhibit 3

69 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 2 of 104 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA Plaintiff, v. THE UNITED STATES OF AMERICA And ERIC HIMPTON HOLDER, JR. in his Official Capacity as Attorney General Of the United States, Civil Action No. 1:12-CV-203-CKK-BMK-JDB (Three Judge Court) Defendants, AND JAMES DUBOIS, et al., Defendant-Intervenors. DECLARATION OF SCOTT EUGENE BUCHANAN, PH.D.

70 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 3 of 104 I. Introduction My name is Scott Buchanan, and I am currently an associate professor of political science at The Citadel in Charleston, South Carolina. Since August 2009, I have been on the faculty at The Citadel. Prior to that, I was on the faculty at Columbus State University in Columbus, Georgia from August 2002-July Previous to that, I was a faculty member at Gordon College in Barnesville, Georgia from August 1999-July I teach courses in American politics at The Citadel. Specifically, I focus on teaching courses on political parties, state and local government, civil rights, and southern politics. I have been asked by the plaintiff in this lawsuit to investigate and, if appropriate, to state opinions I have in rebuttal to opinions expressed by Drs. Vernon Burton and Theodore Arrington in their initial and supplemental reports in this case as to what progress South Carolina has made since the enactment of the Voting Rights Act of 1965 regarding voter registration, voter turnout, and the number of black elected officials in the state. Specifically, I have been asked to state whether or not South Carolina s history of racial discrimination will affect the ability of African Americans to vote under South Carolina s photo identification law, Act R54 (2011). I have also been asked to investigate and provide any rebuttal opinions I have to specific points, methodologies, and analyses used by Drs. Burton and Arrington in this case and as set forth in their initial and supplemental reports. In addition, I have been asked to comment upon expert witness assertions that voting fraud, including impersonation fraud, is not a problem in South Carolina and in the other states, and therefore does not affect the public confidence in the integrity of the voting process of South Carolina. My opinions are based upon widely accepted methods of analysis in political science, and I have previously used these skills in a variety of research that focuses primarily on southern politics. 1

71 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 4 of 104 II. Qualifications, Publications, and Compensation I earned my Ph.D. in political science at the University of Oklahoma in My masters degree in political science is from Auburn University (1995), and my undergraduate degree is from the University of Georgia (1992). My academic major at both Auburn University and the University of Georgia was political science. Since 1995, I have been involved in political science research in a variety of ways. My curriculum vitae is attached to this report as Appendix A. All of my published research is included in my curriculum vitae. I have published research in several peer-reviewed journals including, American Review of Politics, Journal of Political Science, Legislative Studies Quarterly, Politics and Policy, and Southeastern Political Review. I have also contributed to three peer-reviewed scholarly books and have written several book reviews for scholarly journals. Typically, the book reviews have been concentrated on an area of either southern politics or civil rights history. I have also published a biography of Georgia governor Marvin Griffin who served from and am knowledgeable concerning the state of southern politics in the mid-20 th century to current day. In addition, I have conducted a number of interviews with political leaders who served in office in the state of Georgia during the 1950s and 1960s. From , I was president of the Georgia Political Science Association. Finally, I have been the executive director of The Citadel Symposium on Southern Politics since I am being compensated at the rate of $300 per hour. I have not served as an expert witness on any previous court cases. 2

72 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 5 of 104 III. Opinions My opinions can be summarized as follows: Since 1965, South Carolina has made dramatic progress in the area of minority voting rights regarding the ability of racial minority groups, especially African Americans, to participate in the political process, and to elect candidates of their choice. African-Americans in South Carolina have equal access to voting as demonstrated by voter registration statistics and voter turnout rates, which are presented below. The political empowerment of black elected officials has grown dramatically in the late 20 th /early 21 st centuries. The most dramatic growth occurred during the decade from South Carolina in 2012 is no longer the state that it was in 1965 as it pertains to the ability of African-Americans to participate in the political process and elect candidates of their choice. The past history of racial discrimination in South Carolina does not continue to have present-day effects that affect voter registration, turnout, and the number of black elected officials in the state. Both Drs. Arrington and Burton utilize methodologies in their initial and supplemental expert reports that lead them to conclusions about the state s political racial environment and the motivations of the state s political figures that are not reliable. Neither Drs. Arrington nor Burton give due consideration to the potential for how photographic identification laws might help to deter voting fraud. 3

73 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 6 of 104 IV. Basis and Reasons for My Opinions The data presented in the exhibits below are all publicly available data that helped lead me to the opinion that South Carolina has substantially changed since the passage of the Voting Rights Act of 1965, and particularly as to African American s participation in the voting process. The voter registration and turnout data in Exhibits 2-5 are based exclusively upon figures available from the South Carolina Elections Commission. Turnout data in this study are always presented as white/non-white. Essentially, the state computes the white turnout, and all other racial groupings are characterized non-white. Data on black elected officials are readily available from After 2002 though, the Joint Center for Political and Economic Studies stopped compiling and publishing data on black elected officials. As a result, I constructed the number of black elected officials in 2012 to compare to the now decade-old data of Some data were available from the South Carolina Legislative Manual, while I obtained other numbers of black officials from various state associations representing certain officeholders at the state level. For example, the South Carolina Coroners Association provided demographic information on coroners in the state s 46 counties. I generated other numbers by using the Internet and determining the race of the individual from pictures of officeholders. A. Voter Turnout Exhibit 1 presents the impact of the Voting Rights Act of 1965 (VRA) on southern states by Using an eleven state definition of the South, 55.3 percent of whites and 30.8 percent of non-whites were registered to vote in In 1967, the region-wide voter registration averages had increased to 73.1 percent of age-eligible whites and 56.0 percent age eligible nonwhites. Political scientists often refer to South Carolina as a Deep South state. The five states 4

74 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 7 of 104 of the Deep South have the largest black populations, and they were historically the most resistant to changes in racial segregation and featured low levels of black voter registration and turnout (Key 1949). However, South Carolina in 1964 had a non-white voter registration of 37.3 percent, which was higher than the other four states that make up the Deep South. After passage of the VRA, the black registration numbers began to rise and were comparable to the Deep South and the region as a whole. Simultaneously, the white voter registration also increased. Voter registration has increased for all racial groups since the late 1960s (see Exhibit 1). Since 1968, South Carolina has maintained voter registration data divided into specific racial groupings: white, black/african American, Indian/Native American, and Asian. This data was the race which the voter claimed when he/she registered to vote. Through the mid-1980s, the majority of the state s voters claimed either white or black as their racial identity. Beginning in 1986, the number of Asians registering to vote began to increase, and in 1988 the state began the Hispanic grouping. Consistently since 2000, South Carolina has also maintained an other racial category. For the purposes of analysis, I computed the percentage of blacks, whites, and minority voters other than blacks using the voting age population (VAP) for each group. In all cases, VAP was based upon United States Census Bureau figures for each census between I would like to make two observations in this regard. First, the 1960 Census only provides white and non-white VAP. Therefore, the 1968 black and non-white registration percentages are identical. Secondly, I used the VAP for 1970 of 21 years and older. Beginning with 1972 and the passage of the 26 th Amendment, I used the population that was 18 and older. 1 1 One note is that some studies have begun to use the voting eligible population (VEP), which attempts to subtract non-citizens and convicted felons to create a more accurate voter registration rate than possible using VAP. However, this is not easily available data. If it were possible to use VEP, the registration percentages would undoubtedly be even higher for all racial groups since the VAP includes some individuals who cannot legally vote. 5

75 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 8 of 104 As Exhibit 2 demonstrates, the voter registration numbers for all racial groups have risen steadily. Most notably, black registration as a percentage of VAP has increased at a rapid rate in the past decade. In June 2012, African American registration rate is higher (81.2 percent) than the corresponding white registration percentage (78.5 percent) in South Carolina. Although there are times when registration for black voters will go down between election cycles, the same decline always occurs among white registrations as well. The fact that 81.5 percent of the black VAP of South Carolina in 2012 are registered to vote demonstrates the change that has been made in black voter registration since the mid-1960s. B. Voter Turnout Exhibit 3 presents voter turnout rates for the period from An analysis of the non-white turnout data reveals the non-white voter turnout rate has consistently risen over the last four decades. While the voter turnout rate is not a constant rise across all election cycles, turnout in presidential elections, which always draws the highest turnout for voters of any race, has consistently increased in terms of raw numbers of non-white voters. While the percentages of non-white voter turnout vary across the time period, the white turnout has fluctuated as well. One of the most important, if not the most important, measure of the ability of non-white voters to vote freely is to compare the non-white turnout rate to white turnout rates. Since the 1972 presidential election, the difference between white turnout and non-white turnout has averaged eight percent across all ten presidential elections with more whites voting than non-whites. In 2008, statewide non-white voter turnout was higher than white turnout by 0.9 percent. 2 South Carolina did not maintain racial turnout data for the 1968 general election. 6

76 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 9 of 104 Exhibit 4 focuses upon turnout in the Democratic primary. Party primaries typically draw less turnout than a general election. However, the South had a history of higher turnout in primaries than the general election due to the legacy of the one party Democratic South. Stanley (1987) found that voter turnout for gubernatorial primaries and U.S. Senate primaries were more likely to draw higher turnout than general elections prior to the 1960s, and South Carolina certainly fits that pattern as well. Into the 1980s, the legacy of the one party South continued to be seen with primary turnout often higher than one typically sees in party primaries. To gain a sense of this trend, turnout data for party primaries for the years are included. Until 1992, both the Democratic and Republican Parties in South Carolina conducted party primaries, including maintaining turnout figures. 3 Since 1978, the percentage of non-white voter turnout has outpaced white turnout in the Democratic primary. Over the same period, the total turnout for the Democratic primary has becoming increasingly non-white with 64 percent of the total turnout being non-white voters in The Republican Party figures are included in Exhibit 5. While the Republican Party has become the party of choice for a majority of white South Carolinians since the 1980s, non-white turnout in the GOP primary has risen slightly since Overall, voter turnout rates for all racial groups in South Carolina have increased over the last forty years. Non-white voters now vote in much higher numbers than the 1970s, and, as noted above, in the case of the November 2008 general election, the non-white voter turnout rate was actually higher than white turnout. Even in the 2010 general election when turnout for all racial groups decline in midterm elections, the non-white turnout rate was only 4.4 percent lower 3 Prior to 1978, the South Carolina Elections Commission did not report primary turnout in the official election reports available from the Commission as a result statewide primary turnout are not readily available. 7

77 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 10 of 104 than white turnout. In terms of raw numbers, non-white voters turned out in the highest numbers in 2010 than any midterm election in the history of the state. 4 Another measure of the progress made in the area of voting participation by African Americans can be seen in Exhibit 6, which presents the United States Census Bureau estimates of voter registration and turnout. While these figures are not official data like the registration and turnout data maintained by the State Election Commission, they are an indication of citizens political efficacy in responding to whether or not they are registered to vote or cast ballots. Based upon the Census Bureau surveys as well as actual registration and turnout figures, nonwhite voters are registered and voting at rates equal to the rates of white voters, and again in the 2008 general election, non-white turnout actually outpaces white turnout (see Exhibit 6). C. Socioeconomic Factors in Voter Turnout Exhibits 7-9 present data related to the socioeconomic climate of South Carolina. Exhibit 7 contains white voter turnout along with the white per capita income for the state s 46 counties. Exhibit 8 focuses upon non-white turnout along with the black per capita income. The table in Exhibit 9 compares the five poorest counties (Lee, Williamsburg, McCormick, Allendale, and Marion) in terms of black per capita income and the five wealthiest counties (Beaufort, Charleston, Richland, Georgetown, and Greenville) in terms of white per capita income. A further analysis reveals that educational attainment rates in the five poorest counties are the 4 Dr. Vernon Burton, expert witness for the defendant-intervenors in this case, states in his report that the African American turnout rate returned to pre-2008 levels, suggesting that 2008 was tied to Obama s candidacy in particular (Burton Report 2012, 13, note. 48). Since Dr. Burton is using the state published non-white turnout rates, he cannot speak definitively to African American turnout. In addition, non-white turnout was at 48.6 percent in the 2010 midterm elections which is higher than the 37.1 percent turnout rate among non-whites in the 2006 midterm election. Significantly, the percentage of the total voter turnout that was non-white in 2010 was 28.5 percent which was a state record for a midterm election. 8

78 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 11 of 104 lowest in the state. In the wealthiest counties, the educational attainment rates are the highest in the state. A very large body of study in political science focuses upon socioeconomic influences on voter turnout. 5 While education and income certainly play a role in the likelihood that a voter will cast a ballot, some scholars have found that the differences between black and white southerners are more complex. Once controlling for socioeconomic factors, some have found that black turnout actually is higher than white turnout among comparable groups (Verba and Nie 1972; Wolfinger and Rosenstone 1980). In order to see what patterns might exist in South Carolina, Exhibit 9 presents voter turnout rates in general elections between 2000 and 2010 in the state s wealthiest and poorest counties. Due to the inability to obtain a specific black turnout rate for 2010, the figures are the non-white turnout rate. However, the state s five poorest counties have overwhelmingly African American populations and feature non-white voter registration that is almost exclusively black. 6 Turnout among non-white voters in the state s five poorest counties has increased over the last decade. As was typical for the entire state, the 2008 general election saw the highest non-white turnout in the state s history. The non-white turnout in the state s poorest counties was 77.8 percent in comparison to 76.3 percent non-white turnout statewide as was presented in Exhibit 3. The non-white voter turnout rate across the state was approximately the same level regardless of the economic condition of the county. Both on a statewide basis, and even more so 5 The analysis of socioeconomic factors in voter turnout are so voluminous as to defy citation here. However, Niemi and Weisberg (1993) provide a broad literature review of this area of study. 6 According to the 2010 Census, the black populations for the poorest counties in the state were: Lee (64 percent), Williamsburg (65 percent), McCormick (49 percent), Allendale (72 percent), and Marion (56 percent). 9

79 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 12 of 104 in the state s poorest counties, non-white voter turnout in the state s five poorest counties was at historic highs for the past two election cycles. To compare the opposite category, the wealthiest five counties in Exhibit 9 feature white voter turnout rates. One of the expected outcomes is that the wealthiest counties would have higher turnout among white voters, and this was the case. The point that is worth noting again is the last two election cycles. The average difference between the wealthiest counties white turnout rate and the poorest counties non-white turnout rate was 13.8 percent in the 2000 and 2004 presidential elections. Yet in 2008, non-white voter turnout outpaced white turnout in these counties by a percent margin. The average difference between the white and nonwhite turnout in these two groups was 11.2 percent for the 2002 and 2006 midterm elections with white voters turning out in higher numbers as was the historical norm. In the 2010 midterm elections, however, the difference between the two opposite groups of voters shrank to 2.1 percent between white and non-white voters. The comparison of African American and white turnout indicate that the state s past discrimination of African Americans is not affecting their political activity today. This gives credence to Judge Duffy s opinion in United States v. Charleston County in which he stated that the Court cannot conclude that there remain lingering effects from past discrimination touching the right of African Americans to vote (316 F.Supp.2d 268, 291 n.23). While turnout amongst non-white voters has historically been lower through the 1990s, this has changed since These trends have changed statewide with all non-white voters (including African Americans), and the trend is evident among non-white voters who live in the state s most impoverished counties. While it is not surprising that non-white voter turnout was historically high in 2008, the correspondingly high turnout rate among non-whites in 2010 indicates that it is not limited 10

80 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 13 of 104 solely to presidential election cycles, where one of the candidates of a major political party is an African American. D. Black Elected Officials in South Carolina While South Carolina voters have yet to elect a black candidate to a statewide office, black elected officials have increased significantly since the early 1970s. Exhibit 10 details the rise in black officeholders at the level of the United States House of Representatives and also the South Carolina General Assembly. Exhibit 11 demonstrates the rise in black elected officials at the city and county level. 7 In 1992, South Carolina saw its first black congressman since Reconstruction with the election of Democrat James Clyburn to represent the state s Sixth Congressional District. Clyburn s victory was in a district with a majority-minority population. Clyburn easily won the Democratic nomination in 1992, without a runoff, garnering 55 percent of the vote in a five candidate field. The 2010 population of the Sixth District was 54.2 percent African American. In 2010, voters of the state s First Congressional District elected Timothy Scott to represent them in Congress. Timothy Scott is a black conservative Republican who was elected easily in 2010 by a margin of percent over his white Democratic opponent. In securing the Republican nomination for the First District, Scott won a plurality in a nine candidate Republican primary, which also featured Carol Campbell, III and Paul Thurmond, the sons of 7 Ruoff and Buhl (2006) have data for black elected officials in However, their data does not contain municipal officeholders, which made an accurate comparison impractical. While the number of black sheriffs remained constant from , the number of black candidates elected to the positions of county auditor, county treasurer, and coroner increased. 11

81 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 14 of 104 two famous white political figures in South Carolina. 8 In the runoff, Scott easily defeated Paul Thurmond by a margin of percent. Scott s victory was also notable due to the fact that the First Congressional District had a 2010 population that was 66.1 percent white. While Scott had not previously run for Congress, he was not a newcomer to politics. Scott served on the Charleston County Council from , and he was chairman of the council from Scott was elected in 2008, and served from , as the representative of District 117 in the South Carolina House of Representatives. When Scott was elected, 67.6 percent of registered voters in House District 117 were white (South Carolina Registration Demographics for House Seat 117). One sign that South Carolina today is not the same as forty years ago, Timothy Scott is the only black Republican elected from the Deep South to represent a district in Congress since the Reconstruction era. 9 Scott s election suggests that white South Carolina voters are willing to vote for a black candidate when the ideological preferences of both the voters and candidate coalesce. The fact that Congressman Scott drew no Republican opposition in the 2012 primary is a further indication of Scott s popularity with his constituents. While not elected to the United States Senate, Alvin Greene, a black Democrat, was the surprise winner of the Democratic nomination in 2010 defeating Charleston County Council member Vic Rawl, a white candidate, by a margin of percent. Given how improbable Greene s victory was, Representative James Clyburn speculated that Greene was possibly a Republican plant (Toeplitz 2010). However, no evidence has ever been produced indicating 8 Campbell s father is Carroll Campbell, Jr. who served as Governor of South Carolina from Thurmond s father is United States Senator Strom Thurmond who, among other offices, served as a senator from South Carolina from Political scientists generally classify the South into two categories: Deep South and Rim South. The Deep South states are Alabama, Georgia, Louisiana, Mississippi, and South Carolina, while Arkansas, Florida, North Carolina, Tennessee, Texas, Virginia are the Rim South. 12

82 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 15 of 104 such a conspiracy was afoot. Despite a challenge by Rawl, the South Carolina Democratic Party refused to overturn the results of the primary, and Greene was announced as the Democratic nominee of the U.S. Senate despite the fact that Rawl would have undoubtedly been a stronger challenger to DeMint (Id). A homogenous precinct analysis of Greene s primary victory found that a biracial coalition was responsible for Greene s victory, and there was no evidence of any sort of a Republican plan, or voting fraud scheme, to corrupt the Democratic primary results (Bullock and Buchanan 2012). In the General Assembly, the number of black members has steadily increased since the early 1970s. In 1970, three black candidates were elected to the state House of Representatives for the first time since Reconstruction. As presented in Exhibit 10, the ensuing years saw that number rise to 38 (21.1 percent) in the current session House and Senate ( ). Representative Gilda Cobb-Hunter (D-Orangeburg) is an African-American member and formerly served as the Democratic minority leader of the state House from She was also the first woman to hold that office. The numbers of black elected officials at the county and city level have grown even more dramatically since The most significant change though has occurred in the decade from Exhibit 11 presents the number of black elected officials at the county and city level. The numbers included are only those offices which are elected by either the voters or, in the case of judicial positions, appointed by members of the General Assembly. There are approximately 3,174 elected positions at all levels of government in South Carolina, and the total number of black elected officials in 2012 across the state is 931, or 29.3 percent of the total officeholders. 10 Considering that the statewide population of South Carolina, according to the 2010 Census, was 10 The total of 3,174 elected positions comes by adding all elected positions at the federal, state, county, and city level. 13

83 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 16 of 104 approximately 27.9 percent African American, the proportion of black elected officials is slightly higher than the statewide population. Further, some counties in the state with majority black populations feature county governments in which African Americans hold a majority of county positions beyond their proportion of the population. For example, Williamsburg County had a 2010 population that was 65.8 percent African American, while black officials held 84.6 percent of county level offices. Nor are majority black counties the only ones that feature African American officeholders. For example, Abbeville County, in which blacks constituted 28.2 percent of the 2010 population, had four black officeholders in 2012, which was 30.8 percent of county offices. While three of those officeholders were county council members representing single member districts, one was the sheriff who is elected countywide. African Americans hold approximately 38 percent of the 617 school board seats in the 83 school districts across state. Voters elect school board members in 76 of the 83 school districts. Forty school boards have board members elected from single member districts, while 27 boards use an at-large method of voting. The remainder uses some combination of at-large and single member districts. Seven districts have school boards that have some or all members appointed. In addition, 27 of the 83 (32.5 percent) school districts have a black school board chair. 11 Members of school boards hire superintendents in 82 of the 83 districts (Oconee County has an elected superintendent, who is white). Currently, there are 21 African American superintendents or 25 percent of the total. 11 The voters in Horry and McCormick Counties elect school board chairs. In 2012, Horry County s chair is white, while McCormick County s elected chair is black. In all other school districts, the members of the school board elect the chair. 14

84 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 17 of 104 In the area of law enforcement, 12 of the 46 sheriffs (26.0 percent) across the state are African American, and eight coroners (17.4 percent) are black. Of the 12 sheriffs, four serve in counties where African Americans constitute less than 50 percent of registered voters: Abbeville (31.3 percent), Colleton (41.9 percent), Edgefield (37.1 percent), and McCormick (42.5 percent). The fact that these counties have majority white voter registration and black sheriffs is noteworthy since southern sheriffs have historically been seen as the head of the ticket when it comes to county elections (Greene 2003; Hendrickson 2003). Also, unlike single member county council districts, sheriffs are elected countywide. At the state level, one state supreme court justice is black, and there are black judges at the lower judicial levels with the largest number being at the magistrate level. Of the state s 556 magistrates, 116 are black (20.9 percent). E. Growing Diversification of the South Carolina Population Despite South Carolina s historically biracial dichotomy of white and African American, the state s population is more diversified than a generation ago. As Exhibit 3 highlights, the number of other racial minority groups, as defined by the United States Census Bureau, have begun to rise as a percentage of registered voters. Republican Nikki Haley, a person of South Asian Indian-American heritage, is the first minority to be elected governor in South Carolina s history. Haley was born in Bamberg, South Carolina, to parents who immigrated to the United States from India (Haley 2010; Dewan and Brown 2010). After serving three terms in the South Carolina House of Representatives, Haley won the governorship in Despite a field that included Congressman Gresham Barrett, Lieutenant Governor André Bauer, and Attorney General Henry McMaster, all of whom are 15

85 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 18 of 104 white, Haley won 49 percent of the vote in the four candidate field and easily defeated Gresham Barrett in the runoff by a percent margin. V. General Rebuttals To Expert Witnesses Reports of Drs. Burton and Arrington Below are general rebuttals to the reports of Drs. Arrington and Burton. A. Racial Polarization After reading the reports of Drs. Vernon Burton and Theodore Arrington, a common theme in both reports is the racial polarization of voting in South Carolina. While it is certainly true that many white and black South Carolinians have different expectations from government, one cannot automatically assume that racial motivations are the cause of the presence of polarized voting. In fact, both Drs. Arrington and Burton seem to approach the political environment of South Carolina as if it were frozen in a late 1960s/early 1970s era. An underlying assumption of both experts is that race relations have not changed and that state and local election officials are willing to engage in racially discriminatory practices as were done in the past. Yet, neither Drs. Arrington or Burton seem to give consideration to the fact that local elections officials years ago were exclusively white. Today, the likelihood of local elections officials being a mixture of both white and black persons is much greater, and the likelihood of racial discrimination occurring as described is much less likely. Drs. Arrington and Burton do not report any sort of data for the racial composition of elections officials across the state. The mindset of many white South Carolinians is focused on keeping government small due to the traditionally small state government and low levels of taxes that are part of the politics of the state (Elazar 1972). Prior to the 1960s, the expression for such political sentiments was 16

86 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 19 of 104 found in the Democratic Party in South Carolina. Today, those same sentiments are best represented within the South Carolina Republican Party. The South Carolina Republican Party first began to develop in Greenville, Charleston, and Columbia in the 1950s, and the nucleus of the state s party was the white middle class who tended to focus on business issues (Bass and Poole 2009). Although the Goldwater presidential candidacy in 1964 helped to bring in white voters more concerned about racial issues, the Democratic Party continued to dominate state legislative elections until the early 1990s (Graham and Moore 1994). Drs. Arrington and Burton neglect the role that national politics has played in the partisan environment. Ronald Reagan s election in 1980 and 1984 played a large role in the transformation of the state s Republican Party. While the Republicans did not take control of state government in the 1980s, the foundation was built during this decade. Black and Black (2002) highlight the profound effect of the Reagan presidency in helping to transform the South into a Republican stronghold. Graham, Moreland, and Steed (2010) argue that Reagan helped to lead to a steady partisan transformation during the 1980s and 1990s. More recently, George W. Bush s two presidential elections helped to complete the partisan realignment in the state (Id). Religion is another aspect in the growth of the Republican Party in the state. Since the 1980s, religious conservatives, especially evangelical Protestants, have played a larger role in southern politics (Black and Black 2002). Religion is a vital element to consider to understand political trends in the South since the 1980s (Green Kellstedt, Smidt, and Guth 2010). Black and Black (2002) argue that the religious right plays an integral part of the southern Republican electoral coalition (215). The importance of the role which religious conservatives play cannot be downplayed in South Carolina Republican politics. 17

87 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 20 of 104 Another factor is found in the state s profound demographic transformation since the 1990s. In Dr. Burton s report, an underlying premise seems to be that South Carolina has not changed substantially in the last forty years with regards to race relations or the political environment, other than the fact that the Republicans are now more successful than the Democrats in elections. However, South Carolina has undergone enormous demographic changes that have brought in many individuals who were neither born nor raised in South Carolina, and these demographic changes carried with them political implications. As early as the 1980s, Black and Black (1987) found that Elazar s traditionalistic political culture was not as deeply rooted in southern cities as was historically the case. Another dynamic at play is that South Carolina continues to attract wealthy retirees from northern states, especially to the coastal counties (Ottenhoff 2012). According to the American Community Survey, nearly 21,000 citizens moved from the northeast to South Carolina with most of that number coming from New York, New Jersey, and Pennsylvania (U.S. Department of Commerce 2010). Since the 1960s, Northerners who moved to the South have been more likely to be Republican which has helped to change the partisan composition of the South (Black and Black 1987). In essence, a significant component in Republican growth in South Carolina is from voters who are new to the state. In the Upstate, international corporations have been operating since the 1980s. The recent construction of the Boeing facility in Charleston, and the corresponding move of workers from other portions of the country to South Carolina, continue to add to the demographic diversity of the state. In large part, this influx of new residents from other areas of the country tends to be more supportive of the Republican Party (Graham, Moreland, and Steed 2010). However, neither Drs. Arrington or Burton give any mention to this fact. 18

88 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 21 of 104 A sign of the relative weakness of the Democratic Party in this era can be assessed by examining the Democrats lack of success in winning open seat statewide elections in recent history. Richard Riley was the last Democratic candidate to win a gubernatorial election for an open seat in 1978, while Ernest Hollings was the last Democratic candidate to win an open seat in the U.S. Senate in An examination reveals a similar pattern for all statewide elective offices. Republicans are winning statewide offices as Democrats are either defeated or retire (Graham, Moreland, and Steed 2010). In 2010, this pattern continued when Republican Mick Mulvaney defeated Democrat John Spratt in the state s Fifth Congressional District. 12 In sum, the argument that voting is racially polarized solely due to racial attitudes is specious. The combination of South Carolina s traditional political culture, the popularity of Ronald Reagan and George W. Bush, the rise of religious conservatives in the 1980s and 1990s, and the growing demographic changes in the state have led to the ascendancy of the Republican Party. One should not overlook the fact that the state s Republican Party began building a wellorganized party structure that continues to serve it well (Edgar 1998). Quite simply, the Republican Party has been well-placed since the 1990s to capitalize upon the conservative political environment in the state. 12 While the Republican Party has certainly been the dominant party since the 1990s, the Democrats were able to win the governorship and reelect U.S. Senator Ernest Hollings in In order to win both of those statewide positions, it required the crossover of a number of white voters who had been typically voting Republican. 19

89 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 22 of 104 B. DOJ Objections Both Drs. Arrington and Burton point out Department of Justice (DOJ) objections interposed against some South Carolina voting changes under 5 of the Voting Rights Act and point out lawsuits brought against South Carolina jurisdictions by the DOJ under 2 of the Voting Rights Act (Burton Initial Report on pp. 8, 9, and 11; Arrington Initial Report on p. 54). However, since 1972, DOJ has lodged a total of objections (Bullock and Gaddie 2009). 13 In the decade from , there have been a total of 9 objections. In the period from , only 12 of those objections were at the state level. All other objections focused on the local city or county level. 14 Since 2002, the only objection to a statewide law has been over the photographic identification law at issue in this case. The most recent local objection involved the Fairfield County School District. In 2010, the legislative delegation from Fairfield County, Representative Boyd Brown (D-Fairfield) and Senator Creighton Coleman (D-Fairfield), co-sponsored legislation to allow the county s legislative delegation to appoint a five member financial board to oversee the Fairfield School Board (Act R135) due to financial mismanagement (Ulbrich 2010, 17; Littlefield 2010). Act R136 (2010) would have allowed the Fairfield legislative delegation to appoint two additional board members to the Fairfield County School Board. In his veto message, Governor Mark Sanford vetoed both acts because of his belief in home rule, and not on race discrimination grounds, even though Sanford clearly stated his agreement concerning the financial mismanagement of the Fairfield School Board (Sanford 2010). Even though the General 13 Since 2004, there have been two additional 5, bringing the total number to 122. Of the 5 objections from , 15 were withdrawn. Twelve of the objections in this time period were at the state level with all others involving objections at the local level (United States Department of Justice 2012). 14 In December 2010, DOJ withdrew a 2003 objection over annexations in the Town of North in Orangeburg County (Id). 20

90 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 23 of 104 Assembly overrode that veto, the South Carolina Supreme Court ruled the overridden veto vote to be unconstitutional holding that the General Assembly lacked a quorum when casting the vote (Board of Trustees v. State 2011). However, before the South Carolina Supreme Court s ruling, the Department of Justice interposed an objection in August 2010 that focused on the discriminatory effect of Act R Despite the concerns of DOJ over the discriminatory effects of Act R136, it did not find any racially discriminatory intent in the enactment of R136. The DOJ has sued two separate South Carolina counties for 2 violations of the VRA since In 2003, United States v. Charleston County (316 F. Supp. 2d 268), the DOJ challenged the at-large method of election for the Charleston County Council, first adopted in The DOJ brought suit arguing that the county s at-large method of election had a discriminatory effect upon the ability of African Americans to elect candidates of their choice to the county council. Private Plaintiffs intervened and alleged that the at-large method of election had a both discriminatory intent and result in violation of 2. In his opinion, Federal District Court Judge Patrick Michael Duffy found in favor of the Plaintiff that the at-large method of election indeed did have a discriminatory effect upon the ability of African-Americans voters to elect candidates of their choice to county council. However, the court rejected the private Plaintiffs claims of discriminatory intent. In the opinion, Judge Duffy stated, Notwithstanding the Court s determination that the at-large electoral system results in unequal access to the electoral processes for African Americans, it cannot conclude on the evidence before it that such system was adopted with the intent to discriminate. The Court, therefore, rejects the claim of the private Plaintiffs that the adoption of the at-large system was motivated by a racially 15 The Department of Justice did not object to Act R135 that established a financial oversight board for the Fairfield School Board (United States Department of Justice 2010). Ultimately due to the South Carolina Supreme Court s overturning of the General Assembly s veto override, Act R135 never took effect. 21

91 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 24 of 104 discriminatory purpose in violation of the intent standard of Section 2 and the 14 th Amendment of the United States Constitution (316 F. Supp. 2d at 304). The other suit brought under 2 of the VRA by the DOJ against a South Carolina jurisdiction involved the case of United States v. Georgetown County School District, South Carolina. Georgetown County used an at-large method of election for its school board, and in 2008 the DOJ brought suit challenging the use of at-large elections there. The DOJ argued that the system of election diluted the voting strength of African American citizens as evidenced by the fact that the school board consisted of entirely white board members in a county that was 38.6 percent black in 2000 (Complaint, 2:08-cv DCN). In the complaint, DOJ argued that the at-large method of election had a discriminatory effect under 2; however, the complaint did not assert that the system had a racially discriminatory intent. When presented with the complaint, the Georgetown County School District entered into negotiations with the DOJ, and the issue was quickly resolved with the Georgetown County School District abandoning the at-large method of election for the school board. DOJ filed its complaint against the school board on 14 March 2008, and the consent degree between DOJ and the Georgetown County School District was agreed upon on 21 March 2008 (Consent Decree 2:08-cv DCN). C. Voting Fraud in the United States This portion of my report is submitted in rebuttal to the notion that voting fraud, including impersonation voter fraud, is not a problem about which members of the South Carolina General Assembly should have been concerned in enacting voting reform legislation in

92 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 25 of 104 Throughout their initial and supplemental reports, both Drs. Arrington and Burton assert that voting fraud is not a problem in South Carolina that Act R54 was enacted to combat. From pages of his initial report, Dr. Burton argues that passing voter identification was simply a pretext for what he argues is a racially discriminatory intent on the part of the members of the South Carolina General Assembly. In a similar manner, in both his initial report and his supplemental report, Dr. Arrington argues from pages of the initial report that voter fraud, including voter impersonation fraud, is not a problem in South Carolina. As did Dr. Burton, Dr. Arrington finds that voting fraud concerns were a pretext for racially discriminatory intent, underlying the enactment of Act R54. One of the problems in addressing voter fraud is determining how widespread it is. Voter fraud is an illegal act, so the very nature of those who engage in such illegal activities is to endeavor to escape observation or detection. Another problem in discussing voter fraud is that there is little academic research on this issue. In a scholarly journal article, They Just Do Not Vote Like They Used To: A Methodology to Empirically Assess Election Fraud, the authors note there is a lack of rigorous empirical examination of contemporary election fraud by social scientists (Hood and Gillespie 2012, 76). Since little academic research exists on the subject of voting fraud, I choose, in forming my rebuttal opinion, to rely upon sources of voter fraud as reported either through the media, through a government report, In Building Confidence in U.S. Elections ( Carter-Baker Report ) (see Exhibit 12, p. 28), and through an investigation conducted by a Philadelphia City Commissioner (see Exhibit 12, p. 12), to contradict the assertions made by Drs. Arrington and Burton, concerning their claims that voting fraud is not a problem in South Carolina. In addition to the last two documents, Exhibit 12 lists allegations of and voter fraud convictions that have 23

93 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 26 of 104 been collected and reported over the past 26 months by The table set forth in Exhibit 12 was created by attorney Katie Crebo, who worked under my direction and guidance in doing this research. While this list does not purport to include all instances of voting fraud that have taken place in the United States in the last 26 months, it certainly gives some sense of how widespread the allegations and prosecutions of all types of voter fraud are in the United States presently. As shown in Exhibit 12, impersonation voter fraud has taken place recently in the United States. This type of voting fraud is the hardest to detect, especially without the use of forms of detection, such as requiring the use of photographic identification at the polls. In Texas, however, a Democratic precinct chairwoman candidate was indicted in 2012 for allegedly arranging impersonation fraud involving her son (Exhibit 12, p. 12). Hazel Woodard James was accused of arranging for her son, who is not registered to vote, to impersonate and vote in place of her son s father. Authorities were alerted to the problem when the son s father later attempted to vote the same day in the same precinct. In Washington, D.C., in April 2012, a man associated with conservative activist James O Keefe walked into a precinct and asked if Defendant Eric Holder was a registered voter there. The man was then invited by the poll worker to sign the voter sign-in list and proceed to vote. The man then asked if he needed to provide identification but was told by the poll worker that ID was not necessary. The man then left the polling place without voting (Exhibit 12, p. 13). While this is not a consummated case of impersonation fraud, it is a compelling indication that without a photo ID requirement, voter impersonation fraud would be relatively easy to commit in the District of Columbia. 24

94 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 27 of 104 In Alabama, it was recently discovered that an illegal alien who had resided in the state since the 1970s was registered to vote under an assumed name. Using a stolen birth certificate, Venustaino Hernandez-Hernandez fraudulently claimed to be Severo Benavidez. While federal prosecutors did not choose to prosecute him for voter fraud, Alabama elections records indicate that Hernandez-Hernandez was on the voter rolls since 1984 and had voted in several elections with his most recent ballot cast occuring in a local election in 2009 (Exhibit 12, p. 12). In Philadelphia, City Commissioner Al Schmidt s investigation of the 2012 primary elections discovered a case of in-person voter impersonation fraud that dated to 1990 (Exhibit 12, page 12). In this particular case, a Joseph Cheesboro registered to vote with an address that is a vacant lot in Philadelphia. In 2003, a Joseph J. Cheesborough registered to vote using the address of a convenience store in Philadelphia as his home address. An examination of the poll books which voters are required to sign revealed that Cheesboro and Cheesborough both voted in the 2007 primary and elections in Philadelphia. It was determined that these signatures were written by the same person. Virginia law enforcement has been conducting investigations of voting irregularities from the 2008 presidential election and recently charged 39 people across the state while another 26 cases are still being investigated. Of those charged, a majority of the cases resulted in convictions. The secretary of the Virginia Board of Elections, Donald Palmer stated, these complaints ran the gamut from voter registration fraud issues through potential fraud at the polling place on Election Day (Exhibit 12, p. 12). The vast majority of documented cases of voter fraud appear to involve absentee ballot fraud. In Exhibit 12, there are six cases involving allegations of absentee ballot fraud and fourteen cases of person convicted of absentee ballot fraud (Exhibit 12, pp ). The very 25

95 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 28 of 104 fact that so much absentee ballot fraud is occurring suggests the extent to which voter fraud is taking place in the United States. Furthermore, a number of documented cases exist where voters are casting both an absentee ballot, as well as voting in-person, i.e. double voting. There have been three convictions of double voting and five allegations of double voting over the last 26 months (Exhibit 12, pp ). Another form of voter fraud involves felons who are casting ballots in violation of various state laws that prohibit felons from voting (Exhibit 12, pp ). Currently, felons in 35 states lose their right to vote while serving their prison sentences. Of that number, 30 states, including South Carolina, prohibit felons from voting through parole and probation (State Felon Voting Laws 2012). In addition, as documented in Exhibit 12, there have been eight convictions of voter registration fraud, and seven other investigations or indictments of voter registration fraud across the country in the past 26 months (Exhibit 12, pp ). On page 21 of his initial report, Dr. Burton references H.B. 4549, which would have tightened voter registration procedures as it pertained to third-party registration organizations in South Carolina. Dr. Burton asserts that the consideration of this bill was due to an attempt to suppress the vote, and he argues H.B is circumstantial evidence of a racially discriminatory intent on the part of members of the General Assembly, underlying their enactment of the voter ID bill (Id). However, Dr. Burton does not apparently recognize the voter fraud problems posed by third-party registration activities and that the effort to reform these voting abuses was not done with a racially discriminatory purpose. In my opinion, his conclusion that H.B was proposed for racial reasons is incorrect. 26

96 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 29 of 104 Further, Dr. Burton fails to acknowledge the publicized abuses of voter registration laws by third-party organizations in South Carolina. Such voter registration illegalities took place in Florence, South Carolina, and were perpetuated by Terence Hines. The arrest warrant for Hines listed him as an employee of the South Carolina Progressive Network. (Exhibit 12, p. 23). 16 In 2004, Hines submitted 1500 completed voter registration application forms to the voter registration office in Florence County. Officials were alerted to a problem when one of the registration forms included the name of the Mayor of Florence Frank Willis. Hines was charged with forgery and voter fraud (Rees 2004). Hines was tried and convicted. Exhibit 12 further shows that illegal voting of various other types is also taking place in the United States. This involves a variety of states and a range of illegal actives from vote buying, voting numerous times in one day, and ballots being cast under the name of people who are deceased. There are currently a numbers of investigations or allegations of voter fraud of this type occurring. For example, in Minnesota there have been 113 convictions for various forms of illegal voting, while another 16 convictions were obtained for illegal voting in Mississippi (Exhibit 12, pp ). Another investigation of illegal voting involves a voter who is allegedly registered, and has been voting, in both Ohio and South Carolina (Exhibit 12, p. 26). Another type of illegal voting, where non-citizens are casting ballots, is also taking place in some states (Exhibit 12, p. 27). Many prosecutors are reluctant to investigate and prosecute voter fraud cases, further complicating the problem of determining the prevalence of voter fraud. The Carter-Baker Report found that district attorneys often refused to prosecute voter registration fraud violations since such acts were victimless and nonviolent (Carter-Baker 2005, 45). 16 Ironically, the South Carolina Progressive Network is a defendant-intervenor in this case. 27

97 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 30 of 104 According to the Carter Baker Report, one way to combat this problem is to create laws to protect the sanctity of the ballot box. As the Carter-Baker Report states, the electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo IDs currently are needed to board a plane, enter a federal building, and cash a check. Voting is equally important. (Carter-Baker 2005, 18). On page 21 of his supplemental report, Dr. Arrington asserts that the General Assembly acted without evidence that there was a lack of public confidence in the electoral system of South Carolina. However, Dr. Arrington is basing his opinion on South Carolina Elections Commission surveys that were conducted in Dr. Arrington appears to suggest that these confidence surveys mean that the public in South Carolina does not support enactment of photo ID laws. More recent public opinion surveys done in 2012 indicate that there is broad support among the public for photographic identification laws. A national survey done by Rasmussen Reports, taken in April 2012, indicates that 64 percent of the public believes voter fraud is a somewhat serious problem in the United States (Rasmussen Reports 2012). Another survey conducted by the University of Delaware and published in July 2012 indicates that 61 percent of the public in a nationwide poll indicates strong support for voter ID laws (University of Delaware Center for Political Communication 2012). 17 Based upon the cases of voter fraud discovered and presented in Exhibit 12, I conclude that voter fraud is occurring to an important degree in the United States. This is a reality that both Drs. Arrington and Burton reject in their expert reports. However, the evidence presented here seems to raise serious questions about the wisdom of rejecting the existence of voter fraud, 17 No opinion surveys of South Carolina residents were available that question them on their opinions on voter ID. 28

98 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 31 of 104 including impersonation voting fraud. In my opinion, photographic identification requirements at the polls would not eliminate all voter fraud, but it would certainly curtail some cases of it, including impersonation fraud. Further, it is my opinion that the enforcement of photo ID at the polls would increase public confidence in the integrity of the voting process in South Carolina. Below are specific rebuttals to expert witnesses for the defendants and defendantintervenors. VI. Specific Rebuttals To Expert Witnesses Drs. Burton and Arrington A. Specific Rebuttal to Burton s Reports At a variety of places in his report, Dr. Burton uses basic references that are highly questionable. Examples include: Throughout his initial report, Dr. Burton relies on references that are focused on arguing a particular point rather than objective research. As an example, at various points in his report, Dr. Burton cites to research presented in 2006, which argued in favor of renewing 5 of the Voting Rights Act (see pages 5-8 for an example of this pattern.) However, he never cites any research that focused on the opposite side of that debate. Essentially, he cites one side of an argument without considering the other. Normally one would expect a social scientist to cite sources on both sides of an argument of this kind. Throughout his initial report, Dr. Burton uses a number of newspapers from outside of South Carolina. While there is certainly nothing wrong with consulting such resources, it is curious how little he cites from newspapers within South 29

99 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 32 of 104 Carolina. One would assume that daily newspapers in the state would do a more in-depth examination of such stories compared to other media outlets. On page 5 of his initial report, Dr. Burton quotes from a book that is focused on the history of blacks in South Carolina. However, the book was published in 1973, and the focus of the study was from Dr. Burton states: the historical experience and background to the enactment of the Voter ID law can only be fully understood in the context of the State s past (id). Dr. Burton does not provide comparable scholarly sources to discuss the history of race relations since To focus on such a dated work does not give an indication of the more recent history of the state. On page 13 of his initial report, Dr. Burton argues that South Carolina s voter identification law was introduced in the wake of the 2008 presidential election which saw a large African American turnout. When he discusses this fact, he states that a higher proportion of young black voters turned out to vote. He then cites to a New York Times article that is focused on the black turnout nationwide, and not black turnout in South Carolina, rather than focusing on data that would show actual voter turnout in South Carolina in On page 14 of his initial report, Dr. Burton references a comment made by former Governor Mark Sanford in 2005 that there never will be a black candidate elected statewide in South Carolina. Governor Sanford s comments were a personal opinion based on no actual scientific evidence or data. On page 17 of his initial report, Dr. Burton cites the website, as source material. That website is one that proclaims on its banner Unfair. 30

100 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 33 of 104 Unbalanced. While the blog can certainly shed light on political events in the state, it seems hardly worthy of citation in a document for a case of this importance. Dr. Burton does not provide any mainstream media sources to corroborate this story. Certainly, sources from the new media must be considered, but it seems objectivity would require using other sources on this point as well. On page 46 of his initial report, Dr. Burton cites to Marci Andino s deposition that mentions a survey conducted by the South Carolina Elections Commission, which indicates that the state s citizens have high confidence in the state s electoral system. Dr. Burton does not provide that survey data. Moreover, none of this vital information, such as the standard error of the survey, size and composition of the sample, and margin of error, is presented, and therefore the validity of the survey cannot be judged. Throughout Dr. Burton s initial report, he attempts to discuss the motivations of some of the proponents of the photographic voter identification law. Yet, he apparently does not attempt to interview those legislators. Interviewing political leaders is certainly a valid research tool employed by historians and political scientists alike. It is noteworthy that no interviews were done, which might shed further light on the motivations of these lawmakers. In other portions of his report, Dr. Burton draws conclusions based upon questionable assumptions in some cases and misleading use of source material in other cases. In other instances, Dr. Burton omits information that might bring additional perspective to the case. Examples include: 31

101 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 34 of 104 Dr. Burton has a tendency throughout his initial report to make broad assertions about the motivations of supporters of the voter identification law as well as the opponents. However, he disturbingly references one legislator s comments as if that can explain the motivations of an entire group s support or opposition to the bill. One example of this can be seen on page 22 of Dr. Burton s initial report where he references Representative Bill Clyburn s opposition to the bill as representing the views of all opponents. On page 6 of the initial report, Dr. Burton discusses Judge Patrick Michael Duffy s opinion in United States v. Charleston County regarding the history of state-sponsored discrimination in South Carolina. What is not mentioned is the fact that Judge Duffy also stated the Court cannot conclude that there remain lingering effects from past discrimination touching the right of African Americans to vote (316 F.Supp.2d 268, 291 n.23). On page 13 of his initial report, Dr. Burton states that the evidence illustrates a connection between President Obama s election and the push for photo ID. Dr. Burton does not provide any objective data or sources to support this statement. The supporters of the law have testified they were taking cues from Georgia and Indiana when it came to photo ID laws for voting. However, Dr. Burton makes no attempt in either of his reports to explore this possibility. In that same spirit, Dr. Burton cites, on pages of his initial report, the comments of three legislators, Representatives Leon Howard and David Mack along with Senator Phil Leventis, who opposed the bill and their perceptions of 32

102 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 35 of 104 timing. Dr. Burton does not reveal why he chose these three legislators to represent the position of all other opponents of the bill. On page 23 of his initial report, Dr. Burton neglects to inform his readers that Timothy Scott, a black Republican who was elected to the Congress of the United States in 2010, voted for the 2009 version (H.B. 3418) of the photographic identification bill. That information would certainly seem to give a different perspective to this case than what is set forward in Dr. Burton s reports. On pages 28 and 35 of his initial report, Dr. Burton states that a procedure used in the South Carolina General Assembly was unusual without providing information demonstrating, if in fact true, that the procedure in question was unusual in comparison with how the General Assembly proceeds. On page 29 of the initial report, Dr. Burton cites Senator Creighton Coleman s (D-Fairfield) opposition to the voter ID bill. While willing to use Senator Coleman s comments to show his opposition to the voter identification bill, Dr. Burton earlier in his initial report on pages 8-9 discussed the Fairfield School District bill without mentioning the fact that Senator Coleman was also sponsoring that legislation, which the Department of Justice found to have a racially discriminatory effect. Dr. Burton has relied on the Fairfield County School District bill as showing racial discrimination, while pointing to one of its primary supporter s Senator Coleman opposition to the voter ID bill. It is difficult to determine whether Dr. Burton is arguing that Senator Coleman acts with racial motivations, or does not. 33

103 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 36 of 104 Page 31 of Dr. Burton s initial report features a line stating, a Senator from Charleston... without informing readers who the Senator is. Later on page 31 of the initial report, Dr. Burton opines that the General Assembly did not hold enough public hearings and states, [t]o my knowledge, there were only two public hearings on the bill. Dr. Burton fails to provide information related to the number of public hearings held on the voter identification bill by House and Senate committees in the period On page 41 of his initial report, Dr. Burton reports the findings of a newspaper reporter s analysis of precinct-level data and concluded that voter ID would have an adverse effect upon black voters. Dr. Burton does not discuss the methodology employed by the Associated Press reporter to come to these conclusions. Based upon the story, it is difficult to determine how the AP arrived at their conclusions. However, it would seem that a more credible source might be sought, if one exists, on which to base such a claim. Without knowing the methodology used by the AP, this analysis should be viewed with caution. On page 46 of his initial report, Dr. Burton states that local poll workers tend to know voters because they are hired locally. Dr. Burton provides no data to support this contention, nor does he explain how often poll workers know voters. It is quite likely, even probable, that poll workers in rural counties will, in fact, know many local voters. Logic would dictate, however, that this would become less likely in urban and suburban counties where most voters in South Carolina live today. 34

104 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 37 of 104 On page 6 of his supplemental report, Dr. Burton states that Lieutenant Governor McConnell was forced to call the Senate to order twice, apparently due to chaos in the chamber. As a casual observer of the legislative process, the writer knows that legislative bodies frequently must be called to order numerous times to restore deliberations, and without more information concerning this incident, it would not be warranted to conclude that anything of an inappropriate or of a racially motivated nature occurred during this Senate proceeding. In other portions of the initial and supplemental reports, Dr. Burton draws conclusions without addressing alternative explanations. Some examples include: On page 21 of his initial report, Dr. Burton does not consider the possibility that the bill on third-party voter registration efforts could be a direct consequence of the much publicized abuses of ACORN when it came to registering fictitious persons or registering voters already registered to vote. South Carolina is not the only state that has passed or is considering such legislation. On page 44 of his initial report, Dr. Burton indicates that the legislature has not appropriated funds to implement various provisions of the Voter ID law. Dr. Burton does not indicate the basis for his conclusion. On page 16 of his supplemental report, Dr. Burton does not allow for the fact that legislative walkouts are a way of voicing opposition to majority rule in legislative bodies. Dr. Burton argues that since this involves the Legislative Black Caucus, the failure of the majority in the House to agree with the Caucus members who walked out of the House, demonstrates disregard for black political interests, but Dr. Burton did not interview anyone about this walkout. 35

105 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 38 of 104 On page 17 of his supplemental report, Dr. Burton indicates that the special order has been used seven times in the past decade. A perusal of the seven cases shows the Senate has used this procedure to deal with controversial bills as a way of getting a vote on legislation that is not supported by two-thirds of the Senate membership. In other words, there is a history of the General Assembly using this procedure to deal with controversial bills as a way of dealing with controversial legislation. In his introduction, Dr. Burton states the following: I conclude that South Carolina s Law was intended to suppress the growing strength of the African American vote (Burton Initial Report 2012, 2). Yet, Dr. Burton never produces any persuasive evidence, either direct or circumstantial, in his reports to support such a contention. In fact, many of the assumptions, sources of information, and methods employed by Dr. Burton raise serious concerns about his conclusions. The evidence presented in the first half of my rebuttal report illustrates the dramatic progress made in South Carolina since the passage of the Voting Rights Act. In my opinion, Dr. Burton s attempts to argue that discriminatory intent lay behind the passage of the voter ID law are simply not borne out by his analysis or the evidence, or lack thereof, on which he relies. B. Specific Rebuttal to Arrington Report Much like Dr. Burton s initial report, Dr. Arrington does not indicate that he interviewed any of the members of the General Assembly, or other political leaders, who had a role in the passage of the voter ID law. Interviewing available political figures would have been helpful in getting a sense of their motivations for supporting the law rather than making broad assumptions and assertions which may not be based in reality. 36

106 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 39 of 104 In portions of his initial report, Dr. Arrington presents research from one perspective without apparently giving consideration to other perspectives. In other cases, Dr. Arrington draws conclusions for which other alternative explanations exist. Examples of this pattern include: On page 20 of his initial report, Dr. Arrington fails to mention that Timothy Scott, a black conservative Republican, voted for the voter ID bill in An interview with Congressman Scott would have provided some perspective as to his motivations, as the sole black Republican in the House, for voting for the bill. On page 24 of his initial report, Dr. Arrington asserts that African American members of the Senate voted for a bill that contained a voter ID provision because they were casting a strategic vote. There is no indication that Dr. Arrington interviewed any of the black members of Senate on this issue. Without interviews with the African American members of the Senate, there is no basis for Dr. Arrington to conclude that these votes were strategic. This is speculation on Dr. Arrington s part. On page 25 of the initial report and with regard to the South Carolina General Assembly not approving student IDs as an acceptable form of photo ID, Dr. Arrington gives no consideration to the possibility that the General Assembly may have been motivated by concerns over out-of-state students who are not domiciled in South Carolina voting in South Carolina elections rather than race. This same concern would apply to all college students both those at HBCUs and non- HBCUs. 37

107 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 40 of 104 On page 32 of his initial report, Dr. Arrington implies that the bureaucracy of the DMV might create an obstacle for those without photographic identification currently. Any inconvenience affects all South Carolinians regardless of race. In addition, Dr. Arrington seems to be relying on surveys that are six years old at this point and may not give a sense of the present day situation at DMV offices. On page 35 of his initial report, Dr. Arrington states that the voter ID law would essentially turn back the clock on advances in voting rights since the 1960s. However, the Supreme Court did not find this to be the case in Crawford v. Marion County Election Board. Dr. Arrington produces no evidence that the rights of voters have been curtailed in the other state that have photographic identification requirements to prove one s identity at the polls. On pages of his initial report, Dr. Arrington alludes to the history of discrimination in Alabama and Mississippi as it pertained to the limited hours of business for voter registration offices. However, Dr. Arrington does not point to any evidence that the hours maintained by voter registration offices in South Carolina posed this problem. This is part of a pattern to be found in both Drs. Arrington and Burton s report where they seem to be arguing that the racial environment of the state has been frozen since the 1960s. These generalizations are simply not borne out by present-day practices. On page 43 of the Arrington initial report, there is another example of this anachronistic thinking in which Dr. Arrington argues local elections officials will arbitrarily throw out provisional ballots based upon racial discrimination and partisan reasons in the future. However, Dr. Arrington produces no data to 38

108 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 41 of 104 support this contention, nor did he apparently attempt to canvas the county elections boards to see the racial composition of those boards. That racially integrated elections boards would engage in such overt practices seems unlikely. On page 45 of his initial report, Dr. Arrington argues that the chance of an election being decided by one vote is virtually nil. However, there are certainly cases where a candidate does, in fact, win by one vote or by a small number of votes. To say that the chance of one vote, or even a small number of votes, deciding elections is virtually nil is simply not true. Some examples over the past 12 years include: o In 2008, Stephen Wukela won the mayoral election in Florence, South Carolina, by one vote over the incumbent mayor Frank Willis (South Carolina Elections Commission 2008). o In July 2012, Walter Hundley won a special election for the South Carolina Senate District 41 race by 14 votes out of 6,100 cast (Behre 2012). o In May 2012, the winning candidate of a school board election in Texas won by one vote (Bahari 2012). o In 2008, Al Franken won the U.S. Senate contest in Minnesota by 225 votes (Minnesota Secretary of State 2008). o In 2000, George W. Bush won the state of Florida by 537 votes over Al Gore in The election was decided by 39

109 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 42 of percent of all votes cast (Florida Elections Division 2000). In other portions of both his initial and supplemental reports, Dr. Arrington makes assertions for which he provides no data to substantiate his claims. Examples are: On page 17 of his initial report, Dr. Arrington asserts that asking voters to obtain identification cards creates substantial costs to individuals who do not have ready transportation. Dr. Arrington does not provide any data of the actual numbers of individuals who do not have a way to get to the county election office or DMV to obtain photo identification. With the absence of any data, Dr. Arrington can only speculate on how much the costs for such individuals might be. On page 28 of his initial report, Dr. Arrington speculates on the motives of the legislature as it applies to a compromise over the issue of whether citizens needing a birth certificate to obtain a DMV-issued ID will be charged a fee. However, Dr. Arrington does not provide specific numbers for how many citizens in South Carolina lack a birth certificate. Also, he engages in conjecture on the ease for citizens to go to the county elections commission versus the DMV. There is no data given to support his conclusion. On page 10 of his supplemental report, Dr. Arrington discusses the debate of the voter ID bill in the Senate and states some Senators objected to the use of the special order procedure that allowed for a vote on a bill on the basis of simple majority rule. Dr. Arrington then says that perhaps these Senators objected due to how rare the procedure was. However, Dr. Arrington (1) fails to detail who the 40

110 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 43 of 104 some Senators are and (2) does not give any sort of number to indicate how often the procedure is used. On page 11 of the Arrington supplemental report, Dr. Arrington does not state who the several Black senators are that he references. On page 21 of his supplemental report, Dr. Arrington cites South Carolina Elections Commission studies revealing high voter confidence in the process. However, he does not state whether he analyzed those studies for himself, nor does he provide these surveys for examination. Without information, such as the standard error of the survey, size and composition of the sample, and margin of error, the validity of the survey cannot be judged. Another problem is that Dr. Arrington uses some sources that are questionable. Examples include: Dr. Arrington cites a newspaper article on page 25 of his initial report about a precinct level analysis, but it is not clear what methodology was employed by the reporter. Based upon his expertise in the field of elections, Dr. Arrington certainly has the ability to provide a more accurate analysis of his own rather than relying on a newspaper reporter whose expertise in this area is not known. On page 32 of his initial report, Dr. Arrington uses As mentioned above, this hardly seems to be a reputable source upon which to rely without corroboration from other more mainstream media sources. In sum, the above rebuttals raise questions about the way in which Dr. Arrington drew his conclusions about the racially discriminatory intent of the legislature when it passed the 41

111 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 44 of 104 photographic identification law. Dr. Arrington presents evidence from one perspective without fully exploring other explanations. The most troubling aspects of his reports are when he makes broad assertions for which he offers no clear evidence or data on which those conclusions rest. This is most evident when Dr. Arrington tries to explain the motivations of groups of political actors without actually interviewing anyone to see what motivated them to either support or oppose the voter identification bill. This pattern as well as the other specific rebuttals raise concerns about the validity of Dr. Arrington s conclusions in his report, and in my opinion, his conclusions are not reliable. VII. Conclusions While no reasonable person would deny that South Carolina had a long history of racial discrimination, the data in this report demonstrate that South Carolina has made enormous strides in the area of civil rights, including minority voting rights, since the 1960s. Furthermore, there is no evidence that the legacy of state-sponsored discrimination is affecting the ability of African Americans, or other racial minorities, to vote currently. In fact, South Carolina in the past two years has elected its first minority person, Nikki Halley, who is a person of South Asian Indian ancestry, to the office of Governor. It has also elected Timothy Scott, an African American Republican, to represent the state s First Congressional District, a majority-white district. Both these events would have been almost unimaginable immediately after the passage of the Voting Rights Act in The voter registration data and election turnout data presented in Exhibits 1-5 indicate that voter registration for all minorities, especially African Americans, has risen significantly over the last four decades, and the voting rates of black citizens now approach the levels of white voters. In 2008, non-white voting rates surpassed those of white voters. While the expert 42

112 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 45 of 104 witnesses for the defendants and defendant-intervenors in this case argue that the ability of racial minorities to participate in the political process in South Carolina has not changed substantially in the decades since the passage of the Voting Rights Act, that argument is not borne out by the data and analysis that is presented in this case. The number of black officeholders has increased dramatically since the early 1970s, with the greatest increase coming in the decade from At all levels of state government and local government, the percentage of African American officeholders is approaching, or in some cases exceeding, the percentage of the statewide black population. While, many black officeholders are elected in districts or counties with majority black populations, this is not exclusively the case. As detailed previously, expert witnesses, Dr. Vernon Burton and Theodore Arrington, have argued that the state still suffers from racial discrimination, and they point to rather unconvincing circumstantial evidence to argue this case. However, I have pointed out some problems with the reasoning that underlie these assertions. One of the points argued consistently by Drs. Arrington and Burton is that voting patterns in South Carolina are racially polarized. However, the expert witnesses do not, in my opinion, consider a variety of non-racial explanations for this polarization in voting in South Carolina. One of the most notable oversights on their part is the role that ideology, not race, is playing in this polarized environment. Research has indicated that a mixture of factors including ideology, national political trends, political culture, and religion, collectively helps to explain this phenomenon more than any one single factor. Throughout their initial and supplemental reports, both Drs. Arrington and Burton reject the possibility that voter fraud, including impersonation voter fraud, is a problem South Carolina 43

113 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 46 of 104 lawmakers need to address, and Drs. Arrington and Burton further reject the idea of the public s confidence in the electoral system is injured by occurrences of voting fraud. Evidence has been presented in this rebuttal report that voter fraud, including impersonation voter fraud, does in fact occur at an alarming rate across the nation and in South Carolina, and that this affects the public s view of the electoral system. Drs. Burton and Arrington present circumstantial evidence that attempts to show racially discriminatory intent in the passage of the voter identification bill. I disagree with that assessment. In my opinion, the expert witnesses do not present a convincing case of circumstantial evidence of racially discriminatory intent and do not present any direct evidence of discriminatory intent. 44

114 Case 1:12-cv CKK-BMK-JDB Document Filed 09/07/12 Page 47 of 104 I declare under penalty of perjury that the report is true and correct, to the best of my knowledge. Executed on the 6 th of August 2012 Scott E. Buchanan 45