Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 1 of 9 PageID# 2102 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION BARBARA LEE, et al., Plaintiff, v. No. 3:15CV357 HEH VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION IN LIMINE TO EXCLUDE EVIDENCE OF NON-CONTEMPORANEOUS HISTORY Defendants move this Court to exclude expert testimony and other evidence of Virginia s history of racial discrimination, to the extent that such history is non-contemporaneous with the enactment of the voter ID statute at issue in this litigation. The exclusion of such evidence is mandated by Supreme Court precedent. See, e.g., Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013); McCleskey v. Kemp, 481 U.S. 279 (1987). Moreover, recent federal appellate decisions in voter ID challenges raised in other jurisdictions have recognized that reliance on non-contemporaneous historical evidence is erroneous. See See Veasey v. Abbott, 796 F.3d 487, 500 (5th Cir. 2015). ( We recognize that history provides context and that historical discrimination (for example, in education) can have effects for many years. But, given the case law we describe above and the specific issue in this case, we conclude that the district court s heavy reliance on long-ago history AFDOCS/12942074.1 1
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 2 of 9 PageID# 2103 was error. ) Granting this Motion in Limine will not only avoid the risk of such legal error it will also greatly streamline the trial proceedings. BACKGROUND Plaintiffs intend to present Dr. John Douglas Smith, currently teaching at the Colburn School in Los Angeles, California, who will testify about Virginia s history of racial discrimination. The body of Smith s opening expert report is 62 pages long. See Exhibit 1 (Smith opening report). As Smith admitted in his January 22. 2015 deposition, of those 62 pages, approximately 42 pages are devoted to a recitation of pre-1960 Virginia history. See Exhibit 2, Smith Deposition Transcript, 24:2-15. By contrast, only the final 20 pages address what could arguably be considered recent Virginia history. Even less of Smith s report addresses anything that could be considered reasonably contemporaneous to the 2013 enactment of that Virginia voter identification law which is the subject of this lawsuit. Smith testified as follows: Q: And the first discussion in your report of Senate Bill 1256, which is the legislation that s at issue in this litigation, is at page 58 of your report; is that right? A: Sounds correct. Q: And there are, if I m counting correctly, three pages of discussion in your opening report regarding Senate Bill 1256. A: Correct. Id., 88:17-25. By his own admission, Smith only devoted three pages of his 62 page report to a discussion of the legislation at issue in this case. Smith wrote a book entitled Managing White Supremacy: Race, Politics and Citizenship in Jim Crow Virginia, in 2002. As Smith explained in his opening report, this book began as his doctorate dissertation at the University of Virginia. Exhibit 1, pp. 1-2. As Smith explained, the AFDOCS/12942074.1 2
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 3 of 9 PageID# 2104 time period covered by his book concluded in approximately 1960. See Exhibit 2, 22:15-18. Smith also testified that he has not authored any books on contemporary Virginia political history. Id. 23:16-22. Moreover, the two articles Smith authored also focus on pre-1965 Virginia history. See Exhibit 1, p. 2; see also Exhibit 2, 23:12-14. While Smith admitted that a substantial portion of [his opening]is report is drawn from Managing White Supremacy. In fact, a substantial portion of Smith s opening report is not just drawn from his book, Smith s report is copied verbatim from his 2002 book. Smith admitted this point: Q: In fact, large portions of your report are actually taken verbatim from your book, are they not, Dr. Smith? A: Sections of the yes, the first half of the report, the first two-thirds of the report have been paraphrased or originally drawn from that, yes. Q: Okay. So is it accurate to say that roughly the first two-thirds is either verbatim or paraphrased from Managing White Supremacy? A: For the most part. I would say that there are sections where I did go back and look at some of the original sources and, you know, reviewed some of those things, so it s but in general in terms of the spirit of the question, yes. See Exhibit 2, 24:2-15. It is thus clear that at least the first two-thirds of Smith s opening report consists of material and opinions that were not formulated with the facts of this case in mind. In fact, Smith testified that in formulating his opinion in the case, he did not speak to either of the individual plaintiffs in the case; he did not speak to anyone at the Democratic Party of Virginia; and he did not speak to any individual Virginia voter who has been unable to cast a ballot as a consequence of the challenged voter identification provisions: Q: Okay. Have you spoken to either of the individual plaintiffs in this case? A: No, I have not. AFDOCS/12942074.1 3
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 4 of 9 PageID# 2105 Q: Have you spoken to anyone at the Democratic Party of Virginia? A: I have not. Q: Have you spoken to any individual Virginia voter who has not been able to vote in the last two Virginia elections because they lacked the proper identification? A: I have not, nor have I attempted to. Id., 32:9-23. Smith also did not review any of the discovery produced during the course of this litigation. Id. Id. at 34:14-36:17. Dr. Daniel J. Palazzolo, Professor of Political Science at the University of Richmond responded to Smith s report. See Exhibit 3 (Palazzolo report). In contrast to Smith s report, Palazzolo focused on Virginia political history after 1965. Palazzolo did not contest Smith s recitation of Virginia s racial and political history prior to 1965, (Id. at 2-3), but Palazzolo questioned the relevance of Virginia s pre-1965 history to the enactment of the voter identification requirements the plaintiffs are challenging in this lawsuit. Id. Smith s rebuttal report focused on Palazzolo s report, and thus primarily addressed post-1965 events. See Exhibit 4 (Smith s Rebuttal Report). ARGUMENT No one denies Virginia s troubling history of racial discrimination nor that Virginia was once part of the Confederacy. However, Virginia s history as a former Confederate state is simply not relevant to the issue this Court is asked to decide. Plaintiffs ask this Court to invalidate Virginia s voter identification requirements enacted by the Virginia General Assembly in 2013. Plaintiffs apparently intend to argue Virginia s General Assembly acted with discriminatory intent in 2013 by presenting evidence of discriminatory AFDOCS/12942074.1 4
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 5 of 9 PageID# 2106 actions by Virginia politicians between Emancipation (1862) and enactment of the Voting Rights Act (1965). Recent Supreme Court decisions warn against reliance upon non-contemporaneous history, on the grounds that such history is not probative in a challenge to a more recent legislative action. In McCleskey v. Kemp, the Supreme Court held that unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value. 481 U.S. 279, 298 n.20 (1987) (holding that laws in force during and just after the Civil War were not probative of the legislature s intent in 1972). More recently, in Shelby County, the Court counseled against relying on non-contemporary evidence of discrimination in the voting rights context. 133 S. Ct. 2612, 2618 19, 2631 (holding Section 4 pre-clearance formula of the Voting Rights Act unconstitutional because the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions ). Applying this settled Supreme Court precedent in a very recent voter ID challenge, the Fifth Circuit reversed a Texas district court s finding of discriminatory legislative purpose on the grounds that it was error to rely on non-contemporaneous history in support of that finding. In Veasey, the Fifth Circuit held that while the district court was correct to apply the framework set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, (1977), the evidence it relied upon to conduct that analysis was infirm. 796 F.3d 499-500. The Fifth Circuit held that the district court s attempt to discern the intent of the legislature when it passed the challenged voter identification law was flawed because it relied extensively on Texas history of enacting racially discriminatory voting measures. Id. at 500. As the court noted, [a]ll of the most pernicious discriminatory measures predate 1965. Id. (quoting Shelby County, 133 AFDOCS/12942074.1 5
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 6 of 9 PageID# 2107 S. Ct. at 2628 (noting that history did not end in 1965 )). Citing McClesky and Shelby County, the Fifth Circuit explained: Id. at 500. In light of these cases, the relevant historical evidence is relatively recent history, not long-past history. We recognize that history provides context and that historical discrimination can have effects for many years. But, given the case law we describe above and the specific issue in this case, we conclude that the district court s heavy reliance on long-ago history was error. Here, plaintiffs premise their contentions of a supposed racially discriminatory intent by Virginia s General Assembly almost exclusively upon long-ago and long-past history. Fortytwo of the 62 pages of Smith s opening report are exclusively devoted to reciting events occurring prior to 1965. See Exhibit 1. And, by Smith s own admission, only three pages of the opening report even address the voter identification requirements which are the subject of this litigation. See p. 2, supra. In the absence of credible evidence of discriminatory intent on the part of those legislators actually involved in the adoption of the challenged provisions of Virginia law, plaintiffs want this Court to focus on long-past history in support of their claims. However, as Veasey and the Supreme Court cases it relied upon teach, reliance on that sort of evidence is clear error. 796 F.3d at 500. Finally, this Court recognized earlier this year that the type of evidence plaintiffs intend to rely upon here is not probative and should be excluded. In a recent voting rights case, Judge Lauck noted that sweeping allegations about historical discrimination African Americans have experienced when voting in Virginia do not provide an evidentiary basis as to any current discriminatory practices. Parson v. Alcorn, 3:16CV13, 2016 WL 206466, at *5 (E.D. Va. Jan. 15, 2016). [E]ven given Virginia s inexcusable history of race-based voting restrictions, plaintiffs AFDOCS/12942074.1 6
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 7 of 9 PageID# 2108 challenging an election law or regulation must introduce specific evidence of discrimination against eligible voters. Id. at *12. CONCLUSION Smith s opening report makes clear that lacking any specific evidence of discriminatory purpose or intent by Virginia s General Assembly in the adoption of Virginia s voter identification law, plaintiffs intent to rely upon the same sweeping allegations about historical discrimination African Americans have experienced when voting in Virginia that Judge Lauck recently held do not provide an evidentiary basis as to any current discriminatory practices. Id., at *5. Not only is such evidence irrelevant and of no probative value, the presentation of the historical evidence plaintiffs intend to rely upon will be inordinately time consuming and wasteful of this Court s and the parties resources. Accordingly, we ask this Court to grant this motion in limine and to exclude plaintiffs expert testimony and other evidence regarding Virginia s history to the extent that such events occurred in generations past and are unrelated to the enactment of the voter identification requirements at issue in this litigation. DATED: February 8, 2016 Respectfully submitted, /s/ Dana J. Finberg DANA J. FINBERG (VSB 34977) Arent Fox LLP 55 Second Street, 21st Floor San Francisco, CA 94105 Tel: (415) 757-5500. Fax: (415) 757-5501 dana.finberg@arentfox.com MARK F. (THOR) HEARNE, II Arent Fox LLP 112 S. Hanley Road, Suite 200 Clayton, MO 63105 Tel: (314) 296-4000 AFDOCS/12942074.1 7
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 8 of 9 PageID# 2109 Fax: (202) 857-6395 thornet@ix.netcom.com Counsel for Defendants AFDOCS/12942074.1 8
Case 3:15-cv-00357-HEH-RCY Document 152 Filed 02/08/16 Page 9 of 9 PageID# 2110 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served via the Court s CM/ECF system on February 8, 2016, to the following: Marc E. Elias Bruce V. Spiva Elisabeth C. Frost Aria C. Branch Perkins Coie LLP 700 13th Street, NW, Suite 600 Washington, DC 20005-3690 Joshua L. Kaul Perkins Coie LLP 1 East Main Street, Suite 201 Madison, WI 53703 /s/ Dana J. Finberg DANA J. FINBERG AFDOCS/12942074.1 9
Case 3:15-cv-00357-HEH-RCY Document 152-1 Filed 02/08/16 Page 1 of 1 PageID# 2111
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 1 of 25 PageID# 2112 Gzjkdkv 3
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 2 of 25 PageID# 2113 1 IN THE UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION 3 4 ) 5 BARBARA LEE, et al., ) ) 6 Plaintiff, ) ) 7 vs. ) No. 3:15CV357 HEH ) 8 VIRGINIA STATE BOARD OF ) ELECTIONS, et al., ) 9 ) Defendants. ) 10 ) 11 12 13 14 VIDEOTAPED DEPOSITION OF JOHN DOUGLAS SMITH 15 Los Angeles, California 16 Friday, January 22, 2016 17 Volume I 18 19 20 21 22 Reported by: LORI M. BARKLEY 23 CSR No. 6426 24 Job No. 2218240 25 PAGES 1-156 Veritext Legal Solutions 866 299-5127 Page 1
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 3 of 25 PageID# 2114 1 IN THE UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION 3 4 ) BARBARA LEE, et al., ) 5 ) Plaintiff, ) 6 ) vs. ) No. 3:15CV357 HEH 7 ) VIRGINIA STATE BOARD OF ) 8 ELECTIONS, et al., ) ) 9 Defendants. ) ) 10 11 12 Videotaped deposition of JOHN DOUGLAS SMITH, 13 Volume I, taken on behalf of Defendant, at 555 West 14 5th Street, 48th Floor, Los Angeles, California, 15 beginning at 9:59 a.m. and ending at 2:38 p.m. on 16 Friday, January 22, 2016, before LORI M. BARKLEY, 17 Certified Shorthand Reporter No. 6426. 18 19 20 21 22 23 24 25 Veritext Legal Solutions 866 299-5127 Page 2
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 4 of 25 PageID# 2115 1 APPEARANCES: 2 3 For Plaintiff: 4 Perkins Coie LLP 5 BY: Aria C. Branch 6 Attorney at Law 7 700 Thirteenth Street, N.W. Suite 600 8 Washington D.C. 20005-3960 9 202.654.6200 10 abranch@perkinscoie.com 11 12 For Defendant: 13 Arent Fox LLP 14 BY: Dana J. Finberg 15 Attorney at Law 16 55 2nd Street, 21st Floor 17 san Francisco, California 94105-3470 18 415.757.5500 19 dana.finberg@arentfox.com 20 21 22 23 Videographer: 24 Wesley Mack 25 Veritext Legal Solutions 866 299-5127 Page 3
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 5 of 25 PageID# 2116 1 INDEX 2 WITNESS EXAMINATION 3 JOHN DOUGLAS SMITH 4 Volume I 5 6 BY MR. FINBERG 7 7 8 9 EXHIBITS 10 NUMBER DESCRIPTION PAGE 11 Exhibit 1 Deposition Notice 8 12 13 Exhibit 2 Curriculum Vitae 17 14 15 Exhibit 3 Opening Expert Report 22 16 17 Exhibit 4 Short Article/Opinion Piece by 48 18 Dr. Smith 19 20 Exhibit 5 Article published in Time 52 21 Magazine by Dr. Smith 22 23 24 25 Veritext Legal Solutions 866 299-5127 Page 4
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 6 of 25 PageID# 2117 1 INDEX (Continued): 2 Exhibit 6 Plaintiff's Supplemental 101 3 Responses to Defendant's First 4 Interrogatories to Plaintiff 5 6 Exhibit 7 Plaintiff's Responses and 101 7 Objections to Defendant's First 8 Request for Admission to the 9 Plaintiffs 10 11 Exhibit 8 Smith Reply Report Served on 103 12 January 15, 2016 13 14 Exhibit 9 Government Accountability Office 111 15 Report 16 17 Exhibit 10 Study by the Brennan Center for 117 18 Justice 19 20 Exhibit 11 New York Times Article by 138 21 Carl Hulse 22 23 24 25 Veritext Legal Solutions 866 299-5127 Page 5
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 7 of 25 PageID# 2118 1 Los Angeles, California, Friday, January 22, 2016 2 9:59 a.m. 3 09:58:13 4 VIDEO OPERATOR: Good morning. We are on 09:58:13 5 record at 9:59 a.m. on January 22nd, 2016. 09:59:06 6 This is the video recorded deposition of 09:59:12 7 John Douglas Smith. My name is Wesley Mack, here 09:59:15 8 with our court reporter, Lori Barkley. We are from 09:59:19 9 Veritext Legal Solutions at the requested of counsel 09:59:23 10 from the defendants. 09:59:26 11 This deposition is being held at 555 West 09:59:28 12 5th Street in the City of Los Angeles, California. 09:59:32 13 The caption of the case is Barbara Lee 09:59:35 14 versus Virginia State Board of Elections, et al. 09:59:37 15 Please note that audio and video recording 09:59:42 16 will take place unless all parties agree to go off 09:59:44 17 the record. Microphones are sensitive and may pick 09:59:47 18 up whispers, private conversations and cellular 09:59:50 19 interference. 09:59:52 20 I'm not authorized to administer an oath. I 09:59:53 21 am not related to any party in this action, nor am I 09:59:56 22 financially interested in the outcome in any way. 09:59:59 23 If there are any objections to the 10:00:02 24 proceeding, please state them at the time of your 10:00:04 25 appearance, beginning with the noticing attorney. 10:00:06 Veritext Legal Solutions 866 299-5127 Page 6
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 8 of 25 PageID# 2119 1 MR. FINBERG: I have no objections. 10:00:09 2 And my name is Dana Finberg. I'm a partner 10:00:13 3 with Arent Fox in their San Francisco office, and I'm 10:00:16 4 counsel for all of the defendants in this case. 10:00:19 5 MS. BRANCH: No objections. 10:00:20 6 My name is Aria Branch, counsel for the 10:00:23 7 plaintiffs. I'm out of Perkins Coie, Washington D.C. 10:00:25 8 office. 10:00:28 9 VIDEO OPERATOR: Thank you. 10:00:29 10 The witness will be sworn in and counsel may 10:00:29 11 begin the examination. 10:00:31 12 13 JOHN DOUGLAS SMITH, 14 having been administered an oath, was examined and 15 testified as follows: 16 17 EXAMINATION 18 BY MR. FINBERG: 19 Q. Good morning, Dr. Smith. 10:00:41 20 A. Hi. 10:00:42 21 Q. Could you please state your full name for 10:00:43 22 the record. 10:00:46 23 A. John Douglas Smith. 10:00:46 24 Q. And what is your current address? 10:00:47 25 A. 2312 Lorenzo Drive, L-O-R-E-N-Z-O, and 10:00:49 Veritext Legal Solutions 866 299-5127 Page 7
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 9 of 25 PageID# 2120 1 answered this before but have you ever been retained 10:14:26 2 as an expert in a Voting Rights Act case? 10:14:29 3 A. I have not, no. 10:14:32 4 Q. Dr. Smith, who's paying your fees in 10:14:33 5 connection with your services as an expert witness in 10:14:36 6 this case? 10:14:38 7 A. Perkins Coie, as far as I know. 10:14:39 8 Q. And do you know who's financing the 10:14:40 9 litigation for the plaintiffs in this case? 10:14:42 10 A. I have not actually asked that question. I 10:14:44 11 mean, I could guess based on who the -- who the 10:14:46 12 plaintiffs are, but I've not actually asked that 10:14:49 13 question. 10:14:51 14 Q. What's your educational guess? 10:14:51 15 A. Well, my guess would be the Democratic Party 10:14:54 16 of Virginia, but I have not actually asked that 10:14:56 17 question. 10:14:58 18 Q. Would it surprise you if the Democratic 10:14:58 19 Party of Virginia were not paying the litigation 10:15:01 20 costs in this case? 10:15:02 21 A. I'm -- to the extent that that would be my 10:15:04 22 guess, it would be a surprise, but I don't -- again, 10:15:06 23 I hadn't -- I just -- I have -- never occurred to me 10:15:08 24 that I needed to ask that question. 10:15:11 25 Q. Let me ask you: You're the author of a book 10:15:16 Veritext Legal Solutions 866 299-5127 Page 21
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 10 of 25 PageID# 2121 1 entitled Managing White Supremacy? 10:15:20 2 A. Correct. 10:15:23 3 Q. And it's got a longer title than that. I'm 10:15:23 4 going to have to look that up because I didn't 10:15:27 5 memorize that. 10:15:29 6 It's Managing White Supremacy, Race 10:15:29 7 Politics, and Citizenship in Jim Crow Virginia; is 10:15:33 8 that right? 10:15:36 9 A. Correct. 10:15:36 10 Q. And I think in your expert report you state 10:15:36 11 that that began as your dissertation at UVA? 10:15:39 12 A. Yes. 10:15:42 13 Q. And this book was published in 2002, right? 10:15:43 14 A. Correct. 10:15:46 15 Q. And generally speaking, the time period 10:15:46 16 covered in that book ends in about 1960 with the end 10:15:52 17 of Jim Crow in Virginia, does it not? 10:15:57 18 A. Correct. 10:16:00 19 Q. And actually, let's do this, so I'm not 10:16:00 20 asking you questions without having this in front of 10:16:05 21 you. 22 MR. FINBERG: Ask the court reporter to mark 10:16:08 23 this exhibit. 10:16:21 24 (Exhibit 3 was marked for identification by 10:16:22 25 the court reporter and is attached hereto.) 10:16:35 Veritext Legal Solutions 866 299-5127 Page 22
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 11 of 25 PageID# 2122 1 BY MR. FINBERG: 10:16:35 2 Q. Ask you just briefly flip through what the 10:16:35 3 court reporter has marked as Smith Deposition Exhibit 10:16:38 4 No. 3, and do you recognize this as the opening 10:16:41 5 expert report that you submitted in this case on 10:16:48 6 December 14th, 2015? 10:16:50 7 A. I do. 10:16:52 8 Q. Okay. On page 2 of your report, you 10:16:52 9 reference two articles that you've authored. 10:17:02 10 Do you see that? 10:17:08 11 A. Yes. 10:17:08 12 Q. Is it accurate to say that those two 10:17:12 13 articles focus on Virginia history prior to 1965? 10:17:13 14 A. Yes. 10:17:17 15 Q. Have you -- strike that. 10:17:21 16 Have you published any books on contemporary 10:17:24 17 Virginia political history? 10:17:30 18 A. Not specifically on Virginia, no. My second 10:17:31 19 book, which deals with the Warren court 10:17:34 20 reapportionment decisions, does include a section on 10:17:36 21 Virginia, although that is also primarily focused on 10:17:38 22 the 1960s. 10:17:41 23 Q. 1960 as well. 10:17:42 24 On page 2, the first sentence under part 4, 10:17:47 25 sources, states that a substantial portion of this 10:17:49 Veritext Legal Solutions 866 299-5127 Page 23
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 12 of 25 PageID# 2123 1 report is drawn from Managing White Supremacy. 10:17:51 2 In fact, large portions of your report are 10:17:59 3 actually taken verbatim from your book, are they not, 10:18:00 4 Dr. Smith? 10:18:03 5 A. Sections of the -- yes, the first half of 10:18:04 6 the report, the first two-thirds of the report have 10:18:07 7 been paraphrased or originally drawn from that, yes. 10:18:09 8 Q. Okay. So is it accurate to say that roughly 10:18:10 9 the first two-thirds is either verbatim or 10:18:12 10 paraphrased from Managing White Supremacy? 10:18:15 11 A. For the most part. I would say there are 10:18:17 12 sections where I did go back and look at some of the 10:18:19 13 original sources and, you know, reviewed some of 10:18:23 14 those things, so it's -- but in general in terms of 10:18:26 15 the spirit of the question, yes. 10:18:30 16 Q. Let me ask you what you did to prepare for 10:18:41 17 your deposition today. Did you meet with anybody to 10:18:43 18 prepare for your testimony? 10:18:47 19 A. We -- on Wednesday had a phone call with 10:18:48 20 Ms. Branch and Mr. Curtis, and then yesterday after 10:18:50 21 she arrived Ms. Branch and I met for a little while, 10:18:54 22 yesterday afternoon. 10:18:57 23 Q. The phone call, was it with Ms. Branch and 10:18:57 24 who else? 10:19:00 25 A. Mr. Curtis, right? Chuck Curtis. 10:19:01 Veritext Legal Solutions 866 299-5127 Page 24
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 13 of 25 PageID# 2124 1 MS. BRANCH: That's correct. 10:19:04 2 BY MR. FINBERG: 10:19:05 3 Q. And how long did that phone call last? 10:19:05 4 A. An hour and a half, roughly, maybe an hour 10:19:07 5 and 45 minutes. 10:19:10 6 Q. And what did you discuss during those 10:19:11 7 90 minutes? 10:19:15 8 A. Primarily it was the walking me through the 10:19:16 9 procedures that I was likely -- you know, having not 10:19:20 10 done this before, what to wear, what to expect, etc., 10:19:22 11 etc. So I'd say 80 or 90 percent of the call was 10:19:25 12 dealing sort of with procedures. 10:19:32 13 And then we spent a little bit of time just 10:19:33 14 talking about different aspects of the various 10:19:36 15 reports that might or might not be relevant. 10:19:39 16 Q. Okay. Do you remember which particular 10:19:40 17 aspects of the report you discussed? 10:19:42 18 A. Well, primarily, I mean, on two issues, so 10:19:43 19 there was -- there was obviously you have an expert 10:19:46 20 reply to my report, and then I replied to his report, 10:19:50 21 so we talked about that a little bit. And then also 10:19:52 22 just briefly discussed couple of the other expert 10:19:55 23 reports. 10:19:58 24 One of which I had read because that expert 10:19:59 25 also replied to the same person who rebutted my 10:20:02 Veritext Legal Solutions 866 299-5127 Page 25
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 14 of 25 PageID# 2125 1 A. About the same amount of time. It was a 10:25:13 2 little less than two hours. 10:25:14 3 Q. Okay. And what did you discuss during that 10:25:16 4 meeting? 10:25:18 5 A. Pretty much a continuation of the same -- of 10:25:20 6 what we had talked about on Wednesday. I mean, I 10:25:22 7 think this is my first time doing this, and so it was 10:25:24 8 mostly about, again, sort of going through what to 10:25:27 9 expect and -- and, you know, we discussed some 10:25:30 10 hypothetical questions and that -- 10:25:34 11 Q. What kind of hypothetical questions? 10:25:37 12 A. Just in terms of, you know, looking at 10:25:39 13 the -- Dr. Palazzolo's report, you know, the types of 10:25:41 14 issues that you were, you know, likely to bring up, 10:25:44 15 the sort of issues that he brought up, which I, for 10:25:49 16 the most part, tried to reply to already, so... 10:25:52 17 Q. And during the course of that approximately 10:25:54 18 90-minute meeting with Ms. Branch, did you review any 10:25:57 19 documents? 10:26:00 20 A. I don't believe so, no. I mean, I -- no. I 10:26:00 21 made reference to the -- to the North Carolina 10:26:12 22 transcript that I had looked at and to the same 10:26:14 23 report that I mentioned just a minute ago, but we 10:26:18 24 didn't pull anything out and look at anything 10:26:20 25 closely, no. 10:26:23 Veritext Legal Solutions 866 299-5127 Page 31
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 15 of 25 PageID# 2126 1 Q. Did you look at either of your expert 10:26:24 2 reports during the course of that meeting? 10:26:28 3 A. I certainly had them right in front of me 10:26:31 4 and, you know, we referenced them. We certainly -- 10:26:33 5 to my knowledge we did not go through it and sort of, 10:26:37 6 you know, I didn't make any marks on the pages or 10:26:39 7 anything like that, to that effect, sort of talked 10:26:41 8 about it in more general terms. 10:26:45 9 Q. Okay. Have you spoken to either of the 10:26:46 10 individual plaintiffs in this case? 10:26:51 11 A. No, I have not. 10:26:54 12 Q. Have you spoken to anyone at the Democratic 10:26:55 13 Party of Virginia? 10:27:00 14 A. I have not. 10:27:00 15 Q. Have you spoken to any individual Virginia 10:27:00 16 voter who has not been able to cast a ballot because 10:27:10 17 of not having a valid I.D.? 10:27:14 18 A. I have not. 10:27:16 19 Q. Have you personally been able to identify 10:27:18 20 anyone who's been unable to vote in the last two 10:27:22 21 Virginia elections because they lacked the proper 10:27:25 22 identification? 10:27:27 23 A. I have not, nor have I attempted to. 10:27:28 24 Q. Have you done any kind of legislative 10:27:40 25 history on state bill -- excuse me, Senate Bill 1256, 10:27:42 Veritext Legal Solutions 866 299-5127 Page 32
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 16 of 25 PageID# 2127 1 which is the voter I.D. law that's at issue in this 10:27:47 2 case? 10:27:50 3 A. Well, to the extent that I included it in my 10:27:50 4 report and I did look at contemporary newspaper 10:27:52 5 articles, and -- yes, I mean, if you're talking about 10:27:54 6 an extensive legislative history of the type that 10:27:57 7 other experts have done and could possibly do, no. 10:28:00 8 But I mean I've certainly listed all the 10:28:02 9 sources that I did consult in this case primarily 10:28:05 10 looking at newspaper articles and other reports that 10:28:08 11 I cite in the, you know, footnotes. 10:28:12 12 Q. Have you watched any video recordings of the 10:28:14 13 debates surrounding the voter I.D. law? 10:28:23 14 A. I have not. 10:28:26 15 Q. Have you listened to any audio recordings of 10:28:27 16 the debates surrounding the enactment of the voter 10:28:30 17 I.D. law? 10:28:36 18 A. I have not. 10:28:36 19 Q. Have you attempted to interview any Virginia 10:28:36 20 legislators who were involved in either the debates 10:28:39 21 or in the voting on the voter I.D. law? 10:28:41 22 A. I have not, no. 10:28:44 23 Q. At any time during your participation in 10:28:45 24 this case as an expert witness, have you reviewed any 10:28:57 25 of the written discovery that's been exchanged in 10:29:02 Veritext Legal Solutions 866 299-5127 Page 33
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 17 of 25 PageID# 2128 1 this case? Do you understand what I mean by "written 10:29:05 2 discovery"? 10:29:07 3 A. Not entirely. 10:29:07 4 Q. Okay. 10:29:08 5 A. So no, so I don't -- I don't know the answer 10:29:09 6 to that question. I don't think so, but I don't 10:29:11 7 actually know. 10:29:13 8 Q. That's one of those I want to make sure that 10:29:14 9 we are on the same page when I'm asking this. 10:29:16 10 Both sides in this case have served on each 10:29:19 11 other what are known as interrogatories, which ask 10:29:21 12 questions in writing and the parties respond in 10:29:25 13 writing to those questions. 10:29:30 14 To your knowledge, have you reviewed any of 10:29:34 15 the interrogatory responses that have been exchanged 10:29:36 16 by the parties in this case? 10:29:38 17 A. Again, I don't think so. I mean, I'm trying 10:29:41 18 to think what -- certainly there have been some -- 10:29:46 19 I've had e-mail exchanges with the attorneys for the 10:29:51 20 plaintiffs in terms of, you know, subject matter, 10:29:54 21 most of which is in the amended complaint, but I 10:29:59 22 don't know whether that was originally a result of 10:30:03 23 what you're referring to, so I -- I'm not trying to 10:30:04 24 be vague, I -- 10:30:07 25 Q. No, I understand -- 10:30:08 Veritext Legal Solutions 866 299-5127 Page 34
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 18 of 25 PageID# 2129 1 A. -- I don't know, I don't think so. I do -- 10:30:09 2 yeah. Not -- yeah, I don't think so. 10:30:15 3 Q. Okay. 10:30:17 4 A. And if I'm wrong about that I hope there's a 10:30:18 5 way to sort that out. 10:30:19 6 Q. Yeah. And I think what I'll do is at the 10:30:20 7 break I'm going to get copies of the interrogatories 10:30:22 8 and some of the other written discovery -- 10:30:25 9 A. Okay. 10:30:28 10 Q. -- and ask you to take a look at them and 10:30:28 11 see if you recognize them. 10:30:30 12 A. Okay. 10:30:32 13 Q. Because I'm not -- this isn't a gotcha 10:30:32 14 exercise. I'm not trying to trick you. 10:30:34 15 A. Sure. 10:30:35 16 Q. But I am trying to understand what materials 10:30:36 17 you looked at during the course of your role as an 10:30:39 18 expert witness in this case. 10:30:42 19 A. Right. 10:30:43 20 Q. To your knowledge, have you reviewed any 10:30:44 21 documents that have been produced by the defendants 10:30:51 22 in this case to the plaintiffs? And by that I mean 10:30:54 23 e-mails, other documents that come from the 10:30:59 24 defendants' files in this case. 10:31:03 25 A. Right. Again, I don't -- I don't believe 10:31:05 Veritext Legal Solutions 866 299-5127 Page 35
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 19 of 25 PageID# 2130 1 so. I mean I -- and I may be wrong here. The only 10:31:09 2 thing that even sounds familiar to this is I believe 10:31:14 3 that there is a portion of Mr. Lichtman's reply 10:31:17 4 report which I just saw the other day which may have 10:31:21 5 some of this kind of material that you're referring 10:31:24 6 to, so if I'm correct in that, I have seen his 10:31:26 7 discussion of it, but I, myself, never received this. 10:31:32 8 Does that make sense? 10:31:34 9 Q. Yeah. And I think it leads to my next 10:31:35 10 question as, you know, if you didn't see it until 10:31:39 11 then -- 10:31:41 12 A. Right. 10:31:41 13 Q. -- then those materials didn't play any part 10:31:42 14 in formulating the opinions that are set forth in 10:31:45 15 either of the expert reports that you've submitted in 10:31:48 16 this case? 10:31:51 17 A. That is correct. 10:31:51 18 Q. Have you maintained any, for lack of a 10:31:56 19 better word, log of materials that you've been 10:31:59 20 provided by counsel for the plaintiffs in this case? 10:32:04 21 A. Not a formal log. I have kept, you know, 10:32:07 22 certainly the -- I mean, materials that I used that 10:32:13 23 made it into the footnotes. I mean, I could, you 10:32:15 24 know, there are some examples of that. 10:32:18 25 I have -- I have maintained e-mails that 10:32:19 Veritext Legal Solutions 866 299-5127 Page 36
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 20 of 25 PageID# 2131 1 were sent to me that -- that reference certain, I 10:32:24 2 don't know what the right word is, not necessarily 10:32:29 3 documents or materials, but incidents or events that 10:32:31 4 I then, you know, looked into on occasion. But I 10:32:34 5 don't have in terms of -- I don't have a formal 10:32:38 6 written log of -- of what you're asking, I don't 10:32:40 7 think. 10:32:44 8 Q. Okay. And there have been documents more 10:32:44 9 recently produced in this case to the plaintiffs by 10:32:53 10 individual Virginia legislators in response to a 10:32:58 11 subpoena. 10:33:02 12 To your knowledge, have you reviewed any of 10:33:04 13 those documents that have been produced? 10:33:06 14 A. To my knowledge, no. 10:33:08 15 Q. Okay. Now, we've talked about the fact that 10:33:09 16 you've reviewed at least portions of Dr. Lichtman's 10:33:15 17 reply report; is that correct? 10:33:19 18 A. Correct. 10:33:21 19 Q. Have you had any discussions with any of the 10:33:21 20 other expert witnesses retained by the plaintiffs in 10:33:26 21 this case? 10:33:28 22 A. I have not. 10:33:29 23 Q. And other than reading Dr. Lichtman's reply 10:33:29 24 report or portions thereof, have you read any of the 10:33:36 25 other expert reports prepared by the plaintiffs' 10:33:40 Veritext Legal Solutions 866 299-5127 Page 37
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 21 of 25 PageID# 2132 1 on greater importance than race in Virginia politics? 11:46:53 2 A. Well, that's, you know, again, I guess 11:46:55 3 that's where the historian in me comes back to -- 11:46:58 4 whether they've taken on greater importance? I don't 11:47:00 5 know. 11:47:04 6 If you were to ask voters, you know, what 11:47:05 7 are the five issues that are most important to you, 11:47:07 8 they're not going to say race. So in terms of public 11:47:09 9 opinion... 11:47:13 10 But I think because of Virginia and the 11:47:14 11 south and the nation's racial past, you know, there's 11:47:15 12 so many issues in which race is there, as part of 11:47:21 13 both dealing with economy and with politics, that to 11:47:24 14 say that race, you know, doesn't exist in any of 11:47:28 15 those, I think, is -- is not fully correct. 11:47:30 16 Q. Would you agree that race no longer 11:47:34 17 predominates? 11:47:36 18 A. I would say certainly that most people would 11:47:37 19 not recognize race as their primary concern. And 11:47:43 20 yet, I think it's undeniable that the legacy of Jim 11:47:48 21 Crow continues when you look at, you know, whatever 11:47:52 22 measure of standard of living you want to look at, 11:47:57 23 whether it's home ownership, whether it's education, 11:48:00 24 etc., etc., etc. We can go through a long list. 11:48:02 25 There are -- you know, African-Americans still trail 11:48:05 Veritext Legal Solutions 866 299-5127 Page 87
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 22 of 25 PageID# 2133 1 whites in almost every measure that you can come up 11:48:08 2 with. And that's not an accident. 11:48:10 3 And so I think public policies continue to 11:48:12 4 have an effect on that. Whether it's conscious or 11:48:16 5 not is another issue. 11:48:18 6 Q. In Section E of your opening report -- 11:48:53 7 starts at page 51 and runs through page 61; is that 11:48:55 8 right? 11:49:02 9 A. 61, correct, yeah. 11:49:02 10 Q. And 61 is actually where we get to your 11:49:03 11 conclusions; is that right? 11:49:06 12 A. Correct. 11:49:07 13 Q. And the time period covered in Section E of 11:49:07 14 your report is 1969, roughly, to the present; is that 11:49:13 15 right? 11:49:17 16 A. Correct. 11:49:17 17 Q. And the first discussion in your report of 11:49:18 18 Senate Bill 1256, which is the legislation that's at 11:49:27 19 issue in this litigation, is at page 58 of your 11:49:30 20 report; is that right? 11:49:35 21 A. Sounds correct. 11:49:37 22 Q. And there are, if I'm counting correctly, 11:49:38 23 three pages of discussion in your opening report 11:49:44 24 regarding Senate Bill 1256. 11:49:47 25 A. Correct. 11:49:50 Veritext Legal Solutions 866 299-5127 Page 88
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 23 of 25 PageID# 2134 1 Q. Dr. Smith, is it your opinion that there's 11:49:50 2 anything unusual in the legislative process that led 11:50:13 3 to the enactment of Senate Bill 1256? 11:50:15 4 A. In terms of the -- in terms of how the bill 11:50:19 5 was actually introduced and went through committee 11:50:21 6 and -- 11:50:23 7 Q. Yes, sir. 11:50:24 8 A. No. What I've said is that the thing that I 11:50:25 9 thought was unusual is that it was sort of the switch 11:50:27 10 from the -- I guess it was House Bill 9 the year 11:50:30 11 before, to Senate Bill 12 -- so in terms of the need 11:50:34 12 for it. 11:50:36 13 But in terms of the actual legislative 11:50:36 14 process, I'm not aware of any unusual -- so I don't 11:50:38 15 know. 11:50:46 16 Q. You'd agree with me that there's nothing in 11:50:46 17 either your opening report or your reply report 11:50:48 18 discussing anything unusual in the legislative 11:50:52 19 process that led to the enactment of Senate 11:50:55 20 Bill 1256? 11:50:59 21 A. Correct. I did not address that issue. 11:50:59 22 Q. Now, on page 59 of your opening report, you 11:51:08 23 talk about the bait and switch? 11:51:13 24 A. Correct. 11:51:15 25 Q. It's pretty loaded language for a neutral 11:51:15 Veritext Legal Solutions 866 299-5127 Page 89
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 24 of 25 PageID# 2135 1 not something I have either personally or as a 14:36:54 2 scholar investigated in any detail and would be 14:36:56 3 equipped to, you know, discuss. 14:36:59 4 Q. Dr. Smith, are you planning to testify at 14:37:04 5 the trial of this case? 14:37:06 6 A. If I'm asked to, I -- presumably, yes. 14:37:07 7 Q. Well, I will see you there, and I thank you 14:37:11 8 for your time here today. 14:37:13 9 A. Okay. Thank you. 14:37:14 10 VIDEO OPERATOR: Okay. This concludes 14:37:18 11 today's deposition. The time now is 2:37 p.m., and 14:37:19 12 this is the end of Media No. 2. 14:37:24 13 14 (It was stipulated by and between counsel 14:38:01 15 that the original deposition transcript will be sent 14:38:03 16 to Ms. Branch, who will provide it to the deponent 14:38:06 17 for signature under penalty of perjury.) 14:38:18 18 14:38:27 19 MS. BRANCH: I would like a rough draft of 14:38:28 20 the transcript. 14:38:30 21 MR. FINBERG: I would like this expedited to 14:38:31 22 Wednesday, please. 14:38:33 23 24 (TIME NOTED: 2:38 p.m.) 25 Veritext Legal Solutions 866 299-5127 Page 154
Case 3:15-cv-00357-HEH-RCY Document 152-2 Filed 02/08/16 Page 25 of 25 PageID# 2136 1 STATE OF CALIFORNIA ) ss. 2 COUNTY OF LOS ANGELES ) 3 4 I, Lori M. Barkley, CSR No. 6426, do hereby 5 certify: 6 That the foregoing deposition testimony 7 taken before me at the time and place therein set 8 forth and at which time the witness was administered 9 the oath; 10 That the testimony of the witness and all 11 objections made by counsel at the time of the 12 examination were recorded stenographically by me, and 13 were thereafter transcribed under my direction and 14 supervision, and that the foregoing pages contain a 15 full, true and accurate record of all proceedings and 16 testimony to the best of my skill and ability. 17 I further certify that I am neither counsel 18 for any party to said action, nor am I related to any 19 party to said action, nor am I in any way interested 20 in the outcome thereof. 21 IN WITNESS WHEREOF, I have subscribed my 22 name this 27th day of January, 2016. 23 24 <%signature%> 25 LORI M. BARKLEY, CSR No. 6426 Veritext Legal Solutions 866 299-5127 Page 156
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