Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 1 of 18 PageID# 1672

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1 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 1 of 18 PageID# 1672 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION BARBARA H. LEE, et al., v. Plaintiffs, Civil Action No. 3:15-CV-357 VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION TO EXCLUDE EXPERT TESTIMONY OF LORRAINE MINNITE

2 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 2 of 18 PageID# 1673 INTRODUCTION Defendants motion to exclude the testimony of Dr. Lorraine Minnite the preeminent expert on voter fraud in American elections should be rejected. Dr. Minnite easily meets the requirements for admissibility established by the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Dr. Minnite s experience in the area of voter fraud and voting rights is unparalleled. Her published scholarship includes two full-length books, numerous peer-reviewed academic journal articles, and chapters in research publications. She has been qualified repeatedly by federal courts and testified extensively as an expert witness on voter fraud in voting rights cases. Her work has been cited favorably by several courts. None have found her to be unqualified or have rejected her testimony as unreliable or irrelevant. Defendants attempts to paint a contrary picture are misleading and should be rejected. As an initial matter, Defendants assertion that [a]t least two U.S. district courts have found Minnite s testimony regarding voter fraud as irrelevant and unreliable, is flatly incorrect. 1/27/2016 Def. Mot. to Exclude Expert Testimony of Lorraine Minnite ( Defs. Mot. ) at 6 (Dkt 130). In ACORN v. Bysiewicz, 413 F. Supp. 2d 119, 155 (D. Conn. 2005), the district court excluded Dr. Minnite s testimony as an expert because the plaintiffs withdrew it and chose to offer her instead as a fact witness. Defendants further ignore the differences between the testimony that Dr. Minnite offered in that case and the testimony at issue here. Under any circumstances, it would be inappropriate to make a conclusion about an expert s qualifications based on a different court s decision rendered in a wholly different context over a decade ago. Since that time, Dr. Minnite has emerged as the preeminent scholar in the country in voter fraud and not a single court has questioned her qualifications to offer expert testimony in cases like this one. -1-

3 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 3 of 18 PageID# 1674 Defendants reliance on N.C. State Conference of the NAACP v. McCrory, No , 2016 WL , at *11 (M.D.N.C. Jan. 15, 2016), is also misplaced and misleading. For one, Defendants neglect to mention that the decision upon which they rely was an order denying a motion for a preliminary injunction. Thus, the only fair reading of the opinion is that, after hearing from Dr. Minnite and others, that court found that the plaintiffs had not made a sufficient case to enjoin the voter identification law prior to a full-fledged trial on the merits. And, just last week, the McCrory court held that trial, and again, it permitted the plaintiffs to present Dr. Minnite as an expert witness on the very same topics and for the very same purposes as Plaintiffs proffer her testimony in this case. See Declaration of Amanda Callais in Support of Plaintiffs Opposition to Motion to Exclude Testimony of Lorraine Minnite ( Callais Decl. ) 1 (Ex. A). 1 If that court had in fact found Dr. Minnite s testimony unqualified, unreliable or irrelevant, surely it would have not permitted the plaintiffs to again offer her expert testimony on voter fraud at trial. Defendants argument that Dr. Minnite s research methodologies are unreliable should also be rejected. Dr. Minnite uses common and well-established social science methodologies and Defendants assertions to the contrary at most go to the weight that the Court should give her testimony, not to its admissibility. Even then, Defendants arguments are unsound. Defendants protest that Dr. Minnite defines voter fraud too narrowly to focus only on voter fraud committed by voters (and does not include, for example fraud committed by poll workers, candidates, political parties, campaign workers, or voter registration canvassers, Defs. Mot. 5), ignores that the only kind of voter fraud that Virginia s photo ID law ( SB 1256 ) could possibly prevent is 1 The excerpted transcript attached is a rough draft, but is the only draft available at this point, given how recently Dr. Minnite testified. It is offered simply to demonstrate that the very court that Defendants claim found her testimony unreliable and irrelevant admitted her as an expert and accepted her expert testimony at a trial following the decision upon which Defendants rely

4 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 4 of 18 PageID# 1675 in-person voter impersonation fraud, thus the existence and extent of other types of election fraud are irrelevant to the issues before the Court. In addition, Defendants argument that Dr. Minnite relies solely upon prosecution statistics to reach her conclusions is factually incorrect. In fact, and as her expert report documents, Dr. Minnite employs a mixed methods approach that relies on much more than only prosecution statistics. Moreover, the work that she conducted for this case uses the same quantitative, qualitative, and archival evidence that is not only common to her field, it has been repeatedly approved of by vigorous peer review in her academic work. For all of these reasons, the Court should deny Defendants Motion to Exclude Expert Testimony of Dr. Lorraine Minnite (the Motion ). LEGAL STANDARD Expert testimony must be qualified, reliable, and relevant to be admissible. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). An expert witness must have sufficient knowledge, skill, experience, training, or education to qualify. Fed. R. Evid A qualified expert witness may offer an opinion into evidence if (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid Courts act as gatekeepers to ensure that these requirements are met. Kumho Tire Co v. Carmichael, 526 U.S. 137, 152 (1999). Their task is to make certain that an expert... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id. The Daubert analysis is not a heightened threshold, but instead asks courts to merely avoid subjective belief and - 3 -

5 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 5 of 18 PageID# 1676 unsupported speculation. Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996) (citing Daubert, 509 U.S. at 590) (internal quotation marks omitted). ARGUMENT I. DR. MINNITE S RESEARCH METHODOLOGY IS SOUND. Dr. Minnite s conclusions about the incidence of voter fraud are drawn from established research methods common to the social sciences that bear all the requisite indices of reliability to support their admissibility under the federal rules. Under Daubert, a court assesses the reliability of expert testimony by considering (1) whether the particular scientific theory can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique s operation; and (5) whether the technique has achieved general acceptance in the relevant scientific or expert community. United States v. Crisp, 324 F.3d 261, (4th Cir. 2003) (citing Daubert, at ) (internal quotation marks omitted). The analysis should be flexible; not every factor is necessary. Kumho, 526 U.S. at Dr. Minnite s research methodology meets and exceeds the five-factor Daubert standard. As detailed in her report, she uses a mixed methods methodology, utilizing qualitative, quantitative, and archival research. Callais Decl. 2 (Ex. B at 8). This research methodology is common and widely accepted in the social science community. Id. Her research has been repeatedly subjected to peer review and has been scrutinized within the legal community. Her research is also replicable; in fact, nearly all other social scientists who have researched voter fraud have reached the same conclusion that it rarely exists. 2 2 Researchers who have attempted to find fraud in other ways have generally reached the same conclusion as Dr. Minnite: that voter fraud in American elections is virtually non-existent. See Wendy Weiser, et al., Response to the Report of the 2005 Commission on Federal Election Reform at 8 11 (2005) (surveying evidence and - 4 -

6 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 6 of 18 PageID# 1677 Defendants argue that Dr. Minnite s conclusions are inadmissible because they claim her methodology is unreliable in two particular ways: (1) they assert that she defines voter fraud too narrowly; and (2) they argue that her reliance on indictment and prosecution statistics in assessing occurrences of voter fraud is somehow unreasonable. Both of these arguments mischaracterize Dr. Minnite s methodology. Furthermore, both go not to the admissibility of her testimony, but rather the weight that the Court should give it, if after hearing Dr. Minnite s testimony, the Court ultimately finds Defendants arguments in this regard persuasive. A. Dr. Minnite s Definition of Voter Fraud is Appropriate. Defendants argue that Dr. Minnite s testimony should be excluded because they contend that her research definition of voter fraud is overly narrow. Defs. Mot. at 3. But her definition specifically focuses on the type of voter fraud that voter identification laws like SB 1256 could conceivably prevent. Even Defendants acknowledge that the only type of voter fraud that SB 1256 could prevent is in-person impersonation fraud. See Callais Decl. 4 (Ex. D at 249:1-7). Other types of election fraud, such as that by poll workers or campaigns, cannot and would not be prevented by a voter identification law. Defendants argument unreasonably suggests that, in weighing the State s justification for the law, the court should consider the occurrence of elections fraud upon which a voter identification law could not possibly have any impact. summarizing studies to conclude that the limited types of fraud that could be prevented by real ID requirements are extremely rare ). Included as Appendix 1 to Minnite s Reply to Defendants Rebuttal Expert Reports. Callais Decl. 3 (Ex. C). Defendants expert, Dr. Richman, is one of the lone dissenters. He relies on thoroughly discredited methodologies to claim that many non-citizens commit voter fraud by registering and voting. Dr. Richman s research was later dismantled at length by the researcher who created the data set on which Dr. Richman relied. See Stephen Ansolabehere, et al., The Perils of Cherry Picking Low Frequency Events in Large Sample Surveys, ELECTORAL STUDIES 40 (2015) at Included as Appendix 2 to Minnite Reply Report. Callais Decl. 3 (Ex. C) - 5 -

7 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 7 of 18 PageID# 1678 Dr. Minnite s research definition allows her to isolate and examine the specific subject of her research. As Dr. Minnite explains at length in her expert report, the process of formulating precise definitions is critical in the social sciences because it allows accurate measurement of empirical phenomena. Callais Decl. 2 (Ex. B at 8). Here, Dr. Minnite s research is appropriately analyzing the occurrences of the type of fraud that voter identification laws such as SB 1256 are purportedly intended to prevent: nefarious acts intentionally committed by voters. Id. Accordingly, she defines voter fraud for those purposes as the intentional corruption of the voting process by voters. Id. As she explains, this definition allows her to break[] up the electoral process according to its various stages and the actors that participate, which allows her to isolate the specific behavior that she studies: the behavior of individual voters. Id. Her definition of voter fraud is not intended to be a global definition of all types of fraud that are possible within an elections system, including for example fraud committed by or with the acquiescence of elections officials; she emphasizes that [t]his definition is specific to the elements [she] research[es]. Id. Dr. Minnite s tailored research definition ensures that her data is highly relevant to the matter at hand i.e., whether the fraud that the General Assembly purported to be attempting to combat in enacting SB 1256 is in fact a genuine threat to the elections process. See Daubert, 509 U.S. at ( Rule 702 s helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. ) Dr. Minnite s testimony also relates to tenuousness, which is one of the Senate Factors central to the Court s analysis of Plaintiffs claims under Section 2 of the Voting Rights Act, which examines the purported policy for the challenged law, and thus is plainly relevant to the allegations in this case. As Defendants admit in their motion, [o]ne purpose of the challenged Virginia voter identification statute is to - 6 -

8 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 8 of 18 PageID# 1679 prevent voter fraud, Defs. Mot. 3; Plaintiffs are entitled to present evidence that this purported policy justification is no more than tenuously related to factual reality. That Dr. Minnite has chosen to study a particular subset of election fraud does not mean that she dismisses other types of election tampering as insignificant crimes. Although Defendants strongly imply otherwise, Dr. Minnite is, in fact, quick to point out that the definition of voter fraud that she uses in her work does not suggest that other types of election mishandling are not fraud as well. But by precisely defining and measuring the specific types of behavior at issue in this litigation i.e., the very type of fraud that SB 1256 was purportedly enacted to prevent Dr. Minnite employs sound social science methodologies and relays highly relevant data to the Court. 3 Types of fraud that Virginia s voter identification law cannot possibly prevent are not relevant to this case. B. Crime Statistics Are Standard Research Tools and Dr. Minnite Uses Them Properly. Defendants argument that Dr. Minnite s research is irrationally limited to prosecuted crimes, Defs. Mot. 7, is both factually incorrect and contrary to well-accepted standards of social science research methodology. Indeed, if the Court were to accept Defendants position that the examination of prosecuted crimes has no place in analyzing the commonality of voter fraud, it would unreasonably require Dr. Minnite to deviate from accepted practice by ignoring key pieces of data. Finally, if anything, this argument goes to the weight that the Court should give Dr. Minnite s testimony, not its admissibility. As a threshold matter, Dr. Minnite does not, as Defendants suggest, limit her data inputs to prosecuted crimes alone. As she explains in detail in her expert report, she used a widely- 3 See, e.g., W. Phillips Shively, The Craft of Political Research, 5th Ed. (Upper Saddle River, N.J.: Prentice Hall, 2002), 31 (analysts should strive for indivisible concepts and uni-dimensional words in defining concepts that can be measured)

9 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 9 of 18 PageID# 1680 accepted mixed methods approach to calculate instances of voter fraud and estimate the scale of any alleged problem with voter fraud. Callais Decl. 2 (Ex. B at 8 9). In doing so, she relied on a variety of data inputs, including extensive interviews with academics, election registrars, voters, and election officials, as well as prosecutors and defense attorneys. Id. Consideration of indictment and prosecution statistics are only one subset of data she analyzed. Nonetheless, prosecution statistics are a cornerstone of investigating incidences of any crime, including voter fraud. Id. at 10. Social scientists consider indictment and prosecution statistics to be a standard and indispensable source of data in estimating occurrence rates of particular crimes. Although prosecution statistics are widely used throughout social science to inform conclusions regarding occurrences of a given crime, Defendants argue that they should not be used in the voter fraud context. Defendants do not explain why. Regardless, Dr. Minnite explicitly refutes this contention at length in her expert report. See Id. at There, she cogently lays out two main arguments why prosecution statistics are key pieces of evidence to consider. First, authorities have ample motivation to vigorously prosecute suspected voter fraud. As detailed in her report, the federal government designed a program in 2001 to root out voter fraud in federal elections. Id. at 10. Other states, like Minnesota, have required automatic investigations into voter fraud complaints; a failure to investigate subjects law enforcement to discipline. Id. at Given these factors, it is reasonable to conclude that authorities do not lack motivation to pursue alleged instances of voter fraud. Second, in-person voter crime the only type of voter fraud that SB 1256 could possibly prevent is as readily detectable as any other similar crime. There is no reason to suspect that crime statistics are uniquely unhelpful in the voter fraud context. As Dr. Minnite explains, all - 8 -

10 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 10 of 18 PageID# 1681 crime, including fraud, is meant to be concealed, and yet there are many types of fraud that are routinely detected and prosecuted. Id. at 11. As she points out, other fraud crimes like social security fraud, tax evasion, counterfeiting, and postal fraud share many common characteristics with voter fraud. Id. Like voter fraud, social security fraud can involve impersonation and making false claims about eligibility, counterfeiting can involve forgery and making false claims about identity, and tax evasion can involve false claims of residence. Id. If anything, in-person voter fraud is likely easier to detect than these other crimes, because basic practices in election administration (including, for example, the fact that, when a voter goes to cast a ballot in person, their name is checked off in the poll book by a poll worker whose job it is to prevent voter fraud) make it a particularly risky crime to commit, with little hope of reward. A single vote is unlikely to change the results of an election, but a voter bent on committing in-person voter fraud could be easily caught if the person in whose name they attempt to cast a ballot also attempts to vote in that same election. And the Department of Elections reports all suspected incidents of voter fraud for investigation. See Callais Decl. 1 (Ex. D at 249:17 251:2]. Yet, even placed within the context of other hard-to-detect fraud crimes, the crime statistics are clear: voter fraud in American elections is exceedingly rare. II. DR. MINNITE IS WELL QUALIFIED TO GIVE EXPERT TESTIMONY. A. Dr. Minnite Has Ample Knowledge, Experience, and Education. Dr. Lorraine Minnite is the nation s leading scholar of voter fraud. She researches the incidence of voter fraud in American elections, the reasons behind allegations of widespread voter fraud, and voting restrictions purportedly adopted to address voter fraud. Her research is at the forefront of social science s inquiry into fraud in American elections. She has applied her expertise to an independent analysis of Virginia s voter identification law and the lack of voter fraud in Virginia. The clear relevance of her work to the current matter, her lengthy resume, and - 9 -

11 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 11 of 18 PageID# 1682 her extensive list of peer-reviewed publications demonstrate that she amply meets the Federal Rules and Daubert s admissibility standards. Dr. Minnite s credentials are unassailable. She holds a B.A. in History, an M.A. in Political Science, an M.Phil. in Political Science (with a major in American Politics and a minor in Public Policy), and a Ph.D. in Political Science. Callais Decl. 2 (Ex. B at 1). She taught at Columbia University and is now a professor at Rutgers University, where her research focuses on American politics and elections. Id. She teaches courses on American government, political participation and democracy, as well as research seminars on American politics, which include instruction in research methodologies. About Lorraine Minnite, Rutgers University, available at (accessed February 4, 2016). Her published scholarship about voter fraud spans over a decade and includes numerous peer-reviewed works. Id. at 1 2, see also Curriculum Vitae, Appendix B. She has authored two full-length books, including The Myth of Voter Fraud, a full length scholarly treatment of the subject of voter fraud, and Keeping Down the Black Vote: Race and the Demobilization of American Voters, which she co-authored with two other political scientists. Id. at 2. She has authored numerous articles in peer-reviewed academic journals and over a dozen chapters in edited research volumes. See Id. Appendix B at She has been awarded research grants by the Carnegie Corporation of New York, the Ford Foundation, the Russell Sage Foundation, the New York Foundation, the Columbia University Institute of Social and Economic Research and Policy, the Center for Urban Research at the CUNY Graduate Center, and the New York Latino Research and Resources Network at The University of Albany. Id. Appendix B at 66. Dr. Minnite s expertise on voter fraud has been widely sought by some of the most preeminent public institutions in the country. She has given expert testimony regarding voter

12 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 12 of 18 PageID# 1683 fraud to both the United States Senate Committee on Rules and Administration and to the U.S. House Committee on the Judiciary. Id. Appendix B at 65. She testified as an expert before the National Commission on Voting Rights. Id. She has been widely cited by some of the most significant print and broadcast media in the nation, including The Wall Street Journal, The New York Times, National Public Radio, and The Washington Post. Id., Appendix B at 60. There is simply no other political scientist in the United States with more experience researching voter fraud. Dr. Minnite s work is at the cutting edge of a highly specialized field of study. Given her credentials, Dr. Minnite s qualifications exceed the requirements for admissibility under the Federal Rules and Daubert. B. No Court Has Ever Questioned Dr. Minnite s Qualifications. Defendants argue that the Court should overlook Dr. Minnite s long history of qualifying as an expert and instead focus on two particular cases where, they claim, courts have excluded and disregarded her testimony. Defs. Mot. at 1. In support of this argument, they reference two cases, ACORN v. Bysiewicz, 413 F. Supp. 2d 119, 155 (D. Conn. 2005) and North Carolina State Conference of the NAACP v. McCrory, No , 2016 WL , at *11 (M.D.N.C. Jan. 15, 2016). But neither case remotely supports such a finding. First, Defendants assert that the court rejected Dr. Minnite as unqualified to testify as an expert in in ACORN v. Bysiewicz. Defs. Mot. at 1. But this version of events stretches the truth past the breaking point; this is an eleven-year old case in which Dr. Minnite was permitted to testify as a fact witness. To say that she was excluded is only accurate in the most technical sense. In fact, the court granted Defendants motion to exclude her as an expert because Plaintiffs counsel voluntarily withdrew her as an expert and did not oppose the motion. 413 F. Supp. 2d at 155. At no point did the court opine on whether she would have been properly characterized as an expert if not withdrawn. No Daubert hearing was conducted because it

13 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 13 of 18 PageID# 1684 wasn t needed. Moreover, her testimony in that case was not based on nearly as extensive research and analysis as her opinions offered here. Second, Defendants suggestion that Dr. Minnite s testimony is inadmissible because in NAACP v. McCrory the court gave little weight to her research erroneously implies that the court questioned her qualifications or the admissibility of her methodology under the criteria established by the Federal Rules of Evidence. In fact, the court did neither. In McCrory, Dr. Minnite offered and the court accepted expert testimony regarding voter fraud WL , at *11. In an order denying a preliminary injunction, however, the court gave little weight to her research, apparently concluding that Crawford v. Marion County Election Board, 553 U.S. 181 (2008) prevented it from considering whether voter fraud existed. Id. Despite this, the court again admitted and heard Dr. Minnite s expert testimony at trial, in proceedings held just a few weeks ago. See Callais Decl. 1 (Ex. A). 4 This alone disproves Defendants assertion that the court found her testimony inadmissible under the Federal Rules of Evidence. It bears repeating that the McCrory decision is not a final order and makes no dispositive conclusions. When the Fourth Circuit reversed an earlier decision in the same case, they specifically highlighted the district court s failure to fully consider evidence on the frequency of voter fraud, noting as to the tenuousness of the reasons given for the [voter identification] restrictions, North Carolina asserts goals of electoral integrity and fraud prevention. But nothing in the district court s portrayal of the facts suggests that those are anything other than merely 4 As a legal matter, Crawford did not foreclose factual evidence about the existence, or lack thereof, of fraud. The substance of Dr. Minnite s testimony directly presents such evidence, which is why the McCrory court admitted her expert testimony both before and after the preliminary injunction denial. Further, in the opinion denying the motion for preliminary injunction, the McCrory court failed to consider the extent to which things have changed since Crawford. The existence of fraud is an empirical fact; it is not a law of nature. The evidence surely can change over time, and the research methods used to investigate the matter are continually refined and improved the latter of which has happened largely through the work of empirical researchers like Dr. Minnite

14 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 14 of 18 PageID# 1685 imaginable. League of Women Voters of N.C. v. N. Carolina, 769 F.3d 224, 246 (4th Cir. 2014) cert. denied, 135 S. Ct (2015). Clearly, the importance of evidence of voter fraud remains an open and highly contested issue in the McCrory case. The district court s mid-litigation pronouncements on the topic should not control here. Lastly, to the extent that the McCrory court s preliminary order can be read to conclude that Crawford forecloses the consideration of testimony on the occurrence of voter fraud (and the court s own admission of Dr. Minnite s testimony at trial directly contradicts such an interpretation), it stands alone. No other court to consider the question since Crawford has concluded that frequency of voter fraud is an irrelevant inquiry. That interpretation of Crawford is both novel and unsupported. Other courts that have considered voter identification laws post- Crawford have considered expert testimony regarding voter fraud and the expert from whom they heard testimony on this subject was Dr. Minnite. See Ohio Democratic Party v. Husted, No. 2: (S.D. Ohio 2015) (considering expert testimony on voter fraud, including testimony by Dr. Minnite); N.C. State Conference of the NAACP v. McCrory, No (M.D.N.C. 2015) (same); Veasey v. Perry, 71 F. Supp. 3d. 627, 640 (S.D. Tex. 2014) (same); LULAC v. Deininger, No (E.D. Wis. 2013) (same); Applewhite v. Com., No. 330 M.D. 2012, 2014 WL , at *57 (Pa. Commw. Ct. Jan. 17, 2014) (same). Ultimately, regardless of whether the McCrory court embraces this interpretation of Crawford in its final judgment, the order upon which Defendants rely and the subsequent actions of the McCrory court simply do not support Defendants claim that Dr. Minnite is either unqualified or that her opinions lack the requisite indices of reliability for admission. Not even the McCrory court questioned her qualifications, her methodology, or the ultimate admissibility of her expert opinions. Dr. Minnite is likewise amply qualified to give her expert

15 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 15 of 18 PageID# 1686 testimony in this case under the criteria established by the Federal Rules and Daubert. C. Dr. Minnite Has Been Admitted as a Leading Expert in Numerous Voting Rights Cases. Dr. Minnite has a long history of testifying as an expert in voting rights litigation on the issue of voter fraud. See Husted, No (S.D. Ohio 2015); McCrory, No (M.D.N.C. 2015); Veasey, 71 F. Supp. 3d. at 640; LULAC v. Deininger, Civ. No. 12-cv (E.D. Wis. 2013); Applewhite 2014 WL , at *57; Democratic Nat l Committee v. Republican Nat l Committee, 671 F. Supp. 2d 575, (D.N.J. 2009). Dr. Minnite has been certified as an expert in the area of voter fraud twice by courts just in the past year alone. See Husted, Case No. 15-cv-1802 (S.D. Ohio 2015), see also McCrory, Civ. No (M.D.N.C. 2015). No court has ever questioned Dr. Minnite s expertise in this subject area. Dr. Minnite has also participated in voting rights litigation as an amicus on four separate occasions, thrice at the United States Supreme Court, each time offering valuable insight about voter fraud. See Brief of Historians and Social Scientists as Amici Curiae in Support of Respondents, Shelby Cty., Ala. v. Holder, 133 S. Ct (2013) (No ), Brief of Amici Curiae The Brennan Center for Justice, Demos: A Network of Ideas and Action, Lorraine C. Minnite, Project Vote, and People for the American Way Foundation in Support of Petitioners, Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (Nos , 07-25); Brief of Amici Curiae of Historians and Other Scholars In Support of Petitioners, Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (Nos , 07-25); see also Brief of Amici Curiae Lonna Rae Atkeson, Matt A. Baretto, Lorraine C. Minnite, Jonathon Nagler, Stephen A. Nuno and Gabriel Ramon Sanchez in Opposition to Defendant s Petition to Transfer, League of Women Voters v. Rokita, 929 N.E.2d 783 (Ind. 2010) (No. 49S cv-50)

16 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 16 of 18 PageID# 1687 Further, Dr. Minnite s work on voter fraud has been cited favorably numerous times, including by Justice Souter of the United States Supreme Court and Judge Posner of the U.S. Court of Appeals for the Seventh Circuit. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, (2008) (Souter, J., dissenting) (citing Dr. Minnite s research for the proposition that in-person voter impersonation fraud would be readily detectible if it existed); Frank v. Walker, 773 F.3d 783, 792, Denial of Motion for Rehearing En Banc at 20 (7th Cir. 2014) (Posner, J., dissenting) (citing Dr. Minnite for the proposition that voter fraud would be detectible if it existed because it is an enforcement priority of the Justice Department); Frank v. Walker, 17 F. Supp. 3d 837, 848 (E.D. Wis. 2014) rev d, 768 F.3d 744 (7th Cir. 2014) cert. denied, 135 S. Ct (2015) (citing Dr. Minnite s testimony to conclude that voterimpersonation fraud does not occur in Wisconsin). Dr. Minnite s lengthy history of providing her voter fraud expertise in voting rights cases is yet another indication that she is amply qualified to give reliable and relevant testimony under the criteria established in Rule 702. CONCLUSION For the reasons stated above, Dr. Lorraine Minnite meets and exceeds the Federal Rules and Daubert s admissibility standards. Plaintiffs respectfully request that the Court deny Defendants Motion to Exclude Expert Testimony of Lorraine Minnite

17 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 17 of 18 PageID# 1688 DATED: February 5, 2016 By: /s/ Amanda R. Callais Amanda R. Callais (VSB # 85891) Marc Erik Elias (admitted pro hac vice) Bruce V. Spiva (admitted pro hac vice) Elisabeth C. Frost (admitted pro hac vice) Aria Branch (VSB # 83682) Ceridwen Cherry (admitted pro hac vice) PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C Telephone: Facsimile: MElias@perkinscoie.com BSpiva@perkinscoie.com EFrost@perkinscoie.com ABranch@perkinscoie.com ACallais@perkinscoie.com CCherry@perkinscoie.com Joshua L. Kaul (admitted pro hac vice) PERKINS COIE LLP 1 East Main Street, Suite 201 Madison, WI Telephone: Facsimile: JKaul@perkinscoie.com Attorneys for Plaintiffs

18 Case 3:15-cv HEH-RCY Document 137 Filed 02/05/16 Page 18 of 18 PageID# 1689 CERTIFICATE OF SERVICE On February 5, 2016, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing to the following: Dana J. Finberg Arent Fox LLP 55 Second Street, 21st Floor San Francisco, CA Tel: Fax: dana.finberg@arentfox.com Mark F. (Thor) Hearne, II Arent Fox LLP 112 S. Hanley Road, Suite 200 Clayton, MO Tel: Fax: thornet@ix.netcom.com Stephen G. Larson Arent Fox LLP 555 West Fifth Street, 48th Floor Los Angeles, CA Tel: Fax: stephen.larson@arentfox.com Attorneys for Defendants By: /s/ Amanda R. Callais Amanda R. Callais (VSB # 85891) Perkins Coie LLP th St. N.W., Suite 600 Washington, D.C Phone: (202) Fax: (202) ACallais@perkinscoie.com Attorney for Plaintiffs