Exhibit Case :-cv-00-tds-jep Document - Filed 0// Page of
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA COMMON CAUSE, et al., Plaintiffs, vs. Civil Action No. :-CV--WO-JEP ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina Senate Redistricting Committee for the Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants. LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, et al., Plaintiffs, vs. Civil Action No. :-CV- ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina Senate Redistricting Committee for the Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants. DEPOSITION OF JAMES G. GIMPEL : A.M. THURSDAY, APRIL, POYNER SPRUILL 0 FAYETTEVILLE STREET, SUITE 00 RALEIGH, NORTH CAROLINA For the Defendants: OGLETREE DEAKINS NASH SMOAK & STEWART BY: THOMAS A. FARR, ESQ. PHILLIP STRACH, ESQ. Six Forks Road Suite 00 Raleigh, NC 0 ( -00 Thomas.Farr@ogletree.com Phil.Strach@ogletree.com NC DEPARTMENT OF JUSTICE BY: JAMES BERNIER, JR., ESQ. PO Box 0 Raleigh, NC 0 ( -00 APeters@ncdoj.gov JBernier@ncdoj.gov The Reporter: Discovery Court Reporters and Legal Videographers, LLC BY: DENISE MYERS BYRD, CSR 0 Six Forks Road, Suite 000 Raleigh, NC 0 ( - ( - Direct Denise@DiscoveryDepo.com --o0o-- A P P E A R A N C E S For the Plaintiffs: Common Cause, et al. BONDURANT MIXSON & ELMORE BY: BENJAMIN W. THORPE, ESQ. W. Peachtree Street, NW Suite 00 Atlanta, GA 00 (0 - BThorpe@bmelaw.com POYNER SPRUILL BY: EDWIN SPEAS, ESQ. CAROLINE MACKIE, ESQ. 0 0 Fayetteville Street Suite 00 Raleigh, NC 0 ( -0 ESpeas@poynerspruill.com CMackie@poynerspruill.com PATTERSON BELKNAP WEBB & TYLER BY: PETER A. NELSON, ESQ. Avenue of the Americas New York, NY 00 ( -0 PNelson@pbwt.com For the Plaintiffs: League of Women Voters, et al. SOUTHERN COALITION FOR SOCIAL JUSTICE BY: ANITA EARLS, ESQ. Highway Suite 0 Durham, NC 0 ( -0 x AnitaEarls@southerncoalition.org INDEX OF EXAMINATION Page By Mr. Nelson... By Ms. Earls... --o0o-- 0 (Pages to DISCOVERY COURT REPORTERS www.discoverydepo.com --- Case :-cv-00-tds-jep Document - Filed 0// Page of
Case :-cv-00-tds-jep Document - Filed 0// Page of Q. And at the bottom of Page, the last sentence of that -- the -- I guess the paragraph at the top of the page, the last sentence says: "But the point is that when you accommodate the goal of ensuring descriptive representation using a template something like Districts and of the plan as the background, this makes it far more difficult to 0 produce any sizable number of competitive seats in the rest of North Carolina." Why do you say that using a template something like Districts and of the plan was at issue? A. Well, you know, I'm using and as the most accessible or convenient example of districts that were drawn to satisfy VRA or that were in compliance. As I said, it's entirely possible, okay, that I could have drawn a couple of other districts that encompass, you know, large or or 0 percent black populations in other parts of the state and replicated the analysis with those. I'm not sure much would change about the analysis, which is why having that kind of cookie cutter, that template of and was helpful. And what I'm saying is that, you know, you take those African American voters out or, in other words, hold those districts constant or hold two VRA districts constant on the map maybe configured differently, all right, and because of what you said a minute ago about the correspondence of Democratic partisanship and the black population, it's going to be difficult 0 to produce a large number of competitive seats in the rest of the state. Q. I think you just used the term VRA district. What is that? A. What is it called, Voting Rights Act? That's a convention I picked up from the lingo associated with the legalese of redistricting cases. VRA, I guess I assume that to mean Voting Rights Act, a district that's drawn in compliance with Voting Rights Act. It's just legalese. You know, maybe I should describe it some other way. Q. But you don't know what a district that's drawn in compliance with the Voting Rights Act is? A. Well, I don't know all the legalese surrounding it, not being an attorney, not being an election lawyer, but my understanding is that the goal of the VRA districts is to draw districts that ensure -- that guarantee, you know, regular election of members of a minority, racial, ethnic minority, could be black, could be Latino. I know that there has been some controversy about, you know, where those percentages need to be in terms of voting age population or total population. I think there's 0 some debate about that, but, yeah, I mean, there is some degree of artful drawing of districts that's allowed in order to accomplish the goal, you know, of promoting black membership in the U.S. Congress or Latino membership in the U.S. Congress, so that's my understanding. Q. On Page, the second to last sentence of the paragraph at the top of the page begins with "Constrained by the need." What basis do you have for saying that the people who drew the map were constrained by the need to consider the African American population as a political bloc tied to a particular geography? A. Well, my understanding is that -- nothing as yet in the law has abolished the VRA, right, the Voting Rights Act. And the Voting Rights Act is commonly understood, I think, by legislators and others to require that the African American population be concentrated in such a way in sufficient numbers that they can regularly elect a member of their own race or ethnicity, and same with Latinos, to congress -- maybe not, you know, every single election but regularly. And I think that, you know, again, it seems to me that one of the critical questions 0 is what degree of concentration is necessary to ensure that that happens. We discussed that earlier. Q. So do you believe that the General Assembly was required to create congressional districts within some specific range of black voting age population? MR. STRACH: Objection. You can answer that if you can. THE WITNESS: Yeah, I don't know that -- exactly what was circulating in the heads of the state legislators involved, but they certainly must have had cognizance of the fact that if they cracked into the African American communities in drawing the districts, okay, that they were inviting the kind of (Pages to DISCOVERY COURT REPORTERS www.discoverydepo.com ---
Case :-cv-00-tds-jep Document - Filed 0// Page of scrutiny that had led to the creation of these districts in the first place. So, I mean, there is a recent history, difficult history here in North Carolina. I don't need to remind you of that, and how could the state legislature not have been thinking of that, okay, when you know they are looking at this map, okay, and realizing that, you know, they are saddled, you know, with some very 0 conflicting and difficult demands in creating this new map. It's implausible for me to think, okay, that, you know, this was not a consideration. BY MR. NELSON: Q. So you think that the General Assembly considered race data when drawing the map? MR. STRACH: Objection. Hold, Jim. Which map are you talking about? BY MR. NELSON: Q. You think that the General Assembly considered race data when drawing the map? MR. STRACH: Objection; calls for speculation. Answer that if you can. THE WITNESS: You don't have to consider race data. You don't have to consider race data, okay. There's no need to go to race data, you know, to know, okay -- especially given the knowledge that a lot of these folks have of what's going on in this state and how long they've been around, you don't need race data to consider race data in order to draw maps that ensure the representation of African Americans in the state of North Carolina. 0 And, you know, one of the ways that you can do that, by the way, and not consider race data is by falling back on districts that look in many ways like the districts from previous elections. BY MR. NELSON: Q. And in the materials that you reviewed to prepare this, including legislative history reports, did you see any discussion of consideration of the African American population as a political bloc tied to a particular geography? A. Well, I believe that the thrust of the mandate passed, that the legislature was under was to -- was to not focus on the race data. That's what emerged. But as I said, you don't necessarily have to explicitly consider race data, okay, if you know the state well, okay, and you have the guidance of the previous maps which you know have repeatedly elected black incumbents by pretty safe margins. Q. Just to be clear, any statement you make about whether or not the General Assembly actually considered race in drawing the map is 0 speculation because you haven't seen any discussion of it? A. Yes. Q. And you say on that -- on Page at the top that the General Assembly was required to modify the map restricted to modest alterations while still achieving an acceptable outcome. What is the basis for saying they were restricted -- that the General Assembly was restricted to modest alterations in? A. I'm sorry, where are you at here? Q. Top of Page. The second sentence we just discussed. A. Okay. Well, I think that that weight of the various requirements and the weight of past redistricting practice, you know, limited the legislature in what it could do. In addition, you know, there's no question that, you know, that two-week window to turn the maps around was pretty limiting as well. You know, how much can you accomplish when you have the weight of these various requirements, plus the weight, you know, of the previous map, the existing map, that is, the map, and undoubtedly, you know, a great 0 many stakeholders on both sides, including the incumbent members of congress themselves, you know, chiming in to make their voices heard. So, you know, how much radical change can there be -- how much radical change can there be. When I say modest change, I mean as opposed to like wholesale, you know, very radical changes. And, you know, I don't see how, you know, you can radically change a map given the various strictures and requirements of map drawing, the stakeholders that are present, you know, the conflicting criteria that you're trying to balance, you've got a couple weeks to do it, you know, how much change can you expect. Not much. Q. Have you seen any evidence that the incumbent (Pages to DISCOVERY COURT REPORTERS www.discoverydepo.com ---
Case :-cv-00-tds-jep Document - Filed 0// Page of representatives chimed in in any way in the process of drawing the map? MR. STRACH: Objection. Answer that if you can. THE WITNESS: I don't -- I don't know that for a fact. I know that in the past among the stakeholders very interested in all redistricting are, of course, the incumbent members, okay. It would only stand to reason 0 that they'd have an opinion about it. So it doesn't take much of an imagination to figure that, you know, people whose congressional careers depend to some degree on the way these districts are drawn or care about it, even if they are largely insulated, you know, by their other resources, at least they care about the way the districts are drawn. It would certainly stand to reason that they would have a view on this. I do believe that in a redistricting hearing that Tom referenced in a discussion we had by phone -- MR. STRACH: Hold on a second. Don't talk about anything you and Tom discussed. Are you talking about Tom Farr? MR. NELSON: To the extent that information that Dr. Gimpel received from Mr. Farr was information that he relied on or considered in generating his report and his opinions here, we are entitled to that information. MR. STRACH: I don't know what he's going to say, but I'm going to instruct him not to discuss discussions with Tom Farr, period. 0 MR. NELSON: I think that's inconsistent with Rule and a discussion that we had on the record earlier today with Mr. Farr. MR. STRACH: That's fine. I disagree. MR. NELSON: I mean, I think that we're entitled to know -- if he relied on information that he received from Mr. Farr, we're entitled to know what that is. MR. STRACH: Okay. We're not going to talk about it today. MR. NELSON: We definitely reserve our right to pursue that -- MR. STRACH: Of course. MR. NELSON: -- that information. MR. THORPE: Okay. I just want to make 0 sure this is clear for the record. You are instructing your retained expert not to -- I apologize, I just want to use the language of the rule. MR. STRACH: What I said is on the record. It's been transcribed. I'm not going to be cross-examined about it. MR. THORPE: Okay. I will say for the record we've asked your witness to identify 0 facts or data provided by the party you represent, attorney from your firm that the expert considered in forming the opinions to be expressed. I just want to be clear you're instructing him not to answer those questions. MR. STRACH: That's not what I'm instructing him. MR. NELSON: You've instructed him not to disclose information that he received from Mr. Farr that he said that he considered in reaching his opinion. MR. STRACH: He didn't say whether he considered it or not. And I've told him not to discuss conversations he's had with Mr. Farr. MR. NELSON: Well, to be very clear, if I ask him if in fact he did consider that information in reaching his opinion and he was about to talk about it, then are you instructing him not to disclose that information? MR. STRACH: If he says he considered it, then he can discuss it. BY MR. NELSON: Q. Okay. Dr. Gimpel, the information that you were about to tell me, did you consider -- A. Well, I think -- 0 MR. STRACH: Jim, Jim, listen to the question first, then talk. BY MR. NELSON: Q. Dr. Gimpel, the information you were about to describe in a call with Mr. Farr, is that information that you considered or relied on in preparing this report in reaching your opinions in this case? A. It's a small tidbit of information that is probably pretty trivial in the grand scheme of things, which means that -- MR. STRACH: Jim, let me ask you: Did you rely on the information or not? That's a yes-or-no question. THE WITNESS: It bears on the question that he asked me. (Pages to DISCOVERY COURT REPORTERS www.discoverydepo.com ---