Case 3:15-cv-00357-HEH-RCY Document 139-4 Filed 02/05/16 Page 1 of 6 PageID# 1828 Exhibit D
Case 3:15-cv-00357-HEH-RCY Document 139-4 Filed 02/05/16 Page 2 of 6 PageID# 1829 1 IN THE UNITED STATES DISTRICT COURT 1 2 EASTERN DISTRICT OF VIRGINIA 3 RICHMOND DIVISION 4 - - - - - - - - - - - - x 5 BARBARA H. LEE, et al., : 6 Plaintiffs, : 7 v. : Civil Action No. 8 VIRGINIA STATE BOARD : 3:15-cv-357-HEH 9 OF ELECTIONS, et al., : 10 Defendants. : 11 - - - - - - - - - - - - X 12 13 Deposition of THE VIRGINIA DEPARTMENT OF ELECTIONS, 14 By and through its Designated Representative 15 EDGARDO CORTÉS 16 And in his personal capacity 17 Washington, DC 18 Wednesday, February 3, 2016, 9:39 a.m. 19 20 Job No.: 103194 21 Pages 1-283 22 Reported by: Debra A. Whitehead
Case 3:15-cv-00357-HEH-RCY Deposition of Corporate Document Designee 139-4 and Filed Individually, 02/05/16 Edgardo Page 3 Cortes of 6 PageID# 1830 3 (Pages 9 to 12) 1 A Yes. 2 Q And if you answer my question I'm going to 3 assume that you understood it. Okay? 4 A Yes. 5 Q If you need a break at any time for any 6 reason, please say so. If you're in the middle of 7 an answer, I'll just ask that you finish it, but 8 then you can take a break. Okay? 9 A Sounds good. 10 Q And if at any point you would like to speak 11 to your attorney, just please let me know. If 12 you're in the middle of an answer, again I will ask 13 that you finish it. But I'll leave so that you can 14 speak to your attorney privately. 15 A Okay. 16 Q If when you're answering you think of some 17 documents that might help or remember, give a more 18 accurate answer, please tell me, because I may have 19 them already or we may be able to get them for you. 20 Okay? 21 A Okay. 22 Q Sometimes it may happen that you answer a 1 question as completely and you can and then later 2 on, maybe right away or maybe even hours later, you 3 remember additional information you wish you had 4 given me or you feel like you would like to clarify 5 an answer. 6 A Okay. 7 Q If that happens just stop us, and let's deal 8 with it right then and there. Okay? 9 A Okay. 10 Q Now, are you taking any medication of any 11 kind which might make it difficult for you to answer 12 and answer my questions today? 13 A No. 14 Q Is there any reason you can think of as to 15 why you will not be able to answer my questions 16 fully and truthfully today? 17 A No. 18 Q And do you understand that you are here 19 today to testify on behalf of the Department of 20 Elections? 21 A Yes. 22 Q And we have also noticed you for a 9 10 1 deposition in your personal capacity? 2 A Yes. 3 Q Now, in the hope that we can get both done 4 at the same time, we have agreed to take them 5 together. 6 A Yeah. 7 Q You should assume that my questions are 8 directed to you in your capacity as a representative 9 of the Department of Elections unless I say 10 otherwise. Okay? 11 A Okay. 12 Q Can you tell me a little bit about your 13 educational background. 14 A Sure. How far? What would you like to know 15 exactly? 16 Q Let's start with college. 17 A Okay. So I went to -- I did my 18 undergraduate at Cornell University, that was a 19 bachelor of science in rural sociology. And then a 20 master's degree from the George Washington 21 University in political management. 22 Q Any other advanced degrees? 1 A No. 2 Q Any other certifications? 3 A I have previously had certification in 4 federal grants management, federal, you know, 5 contracting officer representative training. 6 Q I'm sorry, what was that? 7 A Federal contracting officer representative 8 training. 9 Q Anything else? 10 A Not that I can think of, no. 11 Q What was your first job after you got out -- 12 when did you graduate from Cornell? 13 A 2002. 14 Q And what was your first job after you 15 graduated? 16 A I worked for the Puerto Rico Federal Affairs 17 Administration. 18 Q And how long did you do that? 19 A I did that approximately two years, 20 two-and-a-half years. 21 Q And what did you do for them? 22 A The entire time I worked for a voter 11 12
Case 3:15-cv-00357-HEH-RCY Deposition of Corporate Document Designee 139-4 and Filed Individually, 02/05/16 Edgardo Page 4 Cortes of 6 PageID# 1831 7 (Pages 25 to 28) 25 27 1 A Yes. Okay. 2 Q So do you believe that some of this 3 testimony that you prepared for the national 4 director of the voter program at the Advancement 5 Project was related to Senate Bill 1256? 6 A Yes. 7 Q And what was the Advancement Project's 8 position on Senate Bill 1256? 9 A They were opposed to the passage of that 10 legislation. 11 Q And on what basis? 12 A Again, they believed that photo ID laws had 13 a disproportional impact on communities of color. 14 Q And they presented testimony to that effect 15 to committees. Is that correct? 16 A Yes. It would have been the -- I'm not sure 17 what subcommittee, but they would have been 18 subcommittees of the privileges and elections 19 committees in the House and Senate. 20 Q And you believe those objections were well 21 founded? 22 A Yes. 1 agency; to assist in drafting and reviewing policy 2 and regulations; and pretty much everything that 3 went on at the agency. 4 Q And that would include the work the State 5 Board of Elections did in relation to voter 6 identification? 7 A Yes. 8 Q And you were appointed by Governor McAuliffe 9 as the commissioner of the Department of Elections 10 on July 1. Is that correct? 11 A Yes, that's correct. 12 Q And that is the position you hold today? 13 A Yes. 14 Q Now, I'm sure you hear this question a lot: 15 What does the Department of Elections do? 16 A Sure. So the Department of Elections -- so 17 it was -- it was, up until July 1st of 2014, it 18 was -- it was an agency known as the State Board of 19 Elections. So there was the legislation that went 20 into effect July 1st, 2014, which kept the State 21 Board of Elections as a three-member policy-making 22 board and changed the agency's name to the 1 Q Did the General Assembly do anything to take 2 into account the Advancement Project's specific 3 objections about Senate Bill 1256? 4 MR. FINBERG: Objection to form. 5 A I don't believe so. 6 Q So you were at the Advancement Project until 7 approximately February 2014. Is that correct? 8 A Yes, that's correct. 9 Q And what did you do after that? 10 A I was appointed deputy secretary to the 11 State Board of Elections in Virginia. 12 Q And who appointed you? 13 A Governor McAuliffe. 14 Q And was that in February 2014? 15 A Yes. 16 Q And how long did you hold that position? 17 A Until July 1st of 2014, when I was appointed 18 commissioner of elections -- of the Department of 19 Elections. 20 Q And what were your responsibilities as the 21 deputy secretary of the State Board of Elections? 22 A To assist in day-to-day management of the 26 28 1 Department of Elections, with the commissioner as 2 the head of the agency. 3 And so the department is charged with, you 4 know, helping ensure uniformity in the conduct of 5 elections throughout the Commonwealth. We -- you 6 know, we provide guidance. We provide 7 recommendations to the State Board of Elections. We 8 maintain the state-wide voter registration system. 9 I serve as the chief state election official for the 10 Commonwealth of Virginia. 11 There's a number of things that the 12 department does in terms of the administration of 13 elections. 14 Q So the agency currently known as the 15 Department of Elections is the same agency that 16 prior to July 1st, 2014, was known as the State 17 Board of Elections? 18 A That's correct. 19 Q And the State Board of Elections continues 20 to exist as a three-board -- or three-person board? 21 A That's correct. 22 Q And who do you report to?
Case 3:15-cv-00357-HEH-RCY Deposition of Corporate Document Designee 139-4 and Filed Individually, 02/05/16 Edgardo Page 5 Cortes of 6 PageID# 1832 1 strict photo ID states. 2 We don't have that requirement. We didn't 3 build that into our process at the beginning. The 4 law was silent on it. So we worked to make the -- 5 you know, we worked to make the law -- in 245 6 implementing the law, we worked to address and make 7 it as voter friendly as possible, you know, given 8 the -- given the code language. 9 But we had a lot of discretion when 10 implementing it, because a lot of those things were 11 not laid out specific in the statute. 12 Q Are you aware that some states have used 13 reasonable impediment affidavits not just for 14 underlying documentation issues, but, for example, 15 if a voter's schedule means that they can't go get 16 an identification card? 17 A No, I was not aware of that. 18 Q Was that something that might be useful to 19 you? 20 MR. FINBERG: Objection. Form. 21 A Again, all the registrars' offices are open 22 during business hours and have Saturday hours on, 62 (Pages 245 to 248) 247 1 A Uh-huh. 2 Q And they may have work schedules that mean 3 they can't come back. Correct? 4 A That's correct. 5 Q And Virginia doesn't have early voting. 6 Correct? 7 A That's correct. We require an excuse for 8 absentee. 9 Q And so not all voters can vote absentee. 10 Correct? 11 A That's correct. 12 Q And if a voter doesn't have a form of 13 acceptable photo identification, they have to find a 14 way to get to their general registrar's office. 15 Correct? 16 A Correct. 17 Q And they have to fill out that form and get 18 that ID issued. Correct? 19 A Correct. 20 Q And before, within a certain limited amount 21 of time after the election day. Right? 22 A Yes. 246 1 you know, in the lead-up to the election. And so we 2 try to make the process as open as possible. 3 Q No, I appreciate that. 4 A Uh-huh. 5 Q But there are certain constructs I think 6 that you have to work within. Correct? 7 A Correct. 8 Q One of them being, for example, that voters, 9 most voters don't go and vote at their registrar's 10 office. Correct? 11 A That's correct. 12 Q So if they show up at the polling place and 13 they realize they don't have an acceptable form of 14 voter ID, the law requires them to go elsewhere in 15 order to either vote a valid ballot -- you know, a 16 regular ballot. Correct? 17 A Correct. If you don't have a photo ID, you 18 had to go -- that cannot be resolved at the polling 19 place. 20 Q Right. They have to either -- if they have 21 an ID that they left at home, they have to either go 22 back and get it. Right? 248 1 Q Okay. And it's fair to say that certain 2 voters are going to have personal circumstances that 3 make this incredibly difficult for them to do. 4 Correct? 5 MR. FINBERG: Objection. Form. 6 A That is possible, yes. 7 Q Possible. I mean, don't you think it's true 8 for certain voters? 9 MR. FINBERG: Objection. Form. Asked and 10 answered. 11 Q You can answer. 12 A So, yeah, I mean, you know, we have a lot of 13 voters with a lot of different circumstances. So 14 I'm sure that that is the case for some voters. 15 Q What were the justifications given for the 16 enactment of Senate Bill 1256? 17 A I think probably direct that towards the 18 legislature as to what reasons they have for 19 enacting laws. 20 Q Are you aware that one of the public 21 justifications at least was to prevent voter fraud? 22 A Yes.
Case 3:15-cv-00357-HEH-RCY Deposition of Corporate Document Designee 139-4 and Filed Individually, 02/05/16 Edgardo Page 6 Cortes of 6 PageID# 1833 1 Q Okay. What kinds of voter fraud could 2 Senate Bill 1256 potentially prevent? 3 A The only kind of voter fraud that I think 4 this would prevent would be in-person -- in-person 5 impersonation fraud. So, basically, that you are 249 6 physically showing up and pretending to be someone 7 that you are not. 8 Q How many incidences of in-person 9 impersonation voter fraud are you aware of in 10 Virginia for the last 20 years? 11 A I am not aware of any. 12 Q And other than Senate Bill 1256, what does 13 the Department of Elections do to prevent in-person 14 voter fraud? 15 A Don't know that we do anything else in 16 regards to that. I guess I don't... 17 Q Well, I guess, for example, do you refer 18 suspected incidences of in-person voter fraud to -- 19 A Sure. So the department will refer any -- 20 any potential violation of election law we refer to 21 the appropriate authorities. Whether it be the 22 local Commonwealth's attorney or the Office of 250 1 Attorney General. You know, whoever -- based on the 2 complaint, whoever the appropriate -- we refer 3 any -- any potential violations. 4 Q And when a voter appears to cast their 5 ballot at the polls, is any record made of the fact 6 that they have showed up to cast their ballot? 7 A Yes. We have a -- so they get checked into 8 the poll book, and then that -- that data is 9 provided to the department after the election and 10 entered into the state-wide registration list. 11 Q So wouldn't that check-in procedure also 12 serve to prevent in-person voter fraud? 13 A Yes, I suppose so. 14 Q Well, if you define in-person voter fraud as 15 a person showing up to vote as someone other than 16 the voter, then would checking in voters as they 17 appear help to prevent in-person voter fraud? 18 A Yes. Because you have to state your name 19 and address when you appear to vote. 20 Q And also because, if you voted your ballot 21 and then I showed up and wanted to cast a ballot in 22 your name, your name would already be checked off. 63 (Pages 249 to 252) 251 1 Right? 2 A That's correct. 3 Q So in-person voter fraud actually, in your 4 opinion, is an easy form of voter fraud to commit? 5 MR. FINBERG: Objection to form. 6 A Could you restate the question. 7 Q Strike it. 8 A Okay. 9 Q If a person wanted to cast a ballot in the 10 name of someone else under the current legal regime, 11 are there ways in which they still could do it in 12 person? 13 MR. FINBERG: Objection. Form. 14 A In person? I mean, I don't -- if somebody 15 wants to break the law, they will figure out a way. 16 They're going to figure out a way to do it. 17 Q For example, they can get a free voter 18 identify with their photograph in another voter's 19 name. Right? 20 A I guess in theory they could do that. 21 Except for the ID gets sent to the voter's residence 22 address, and it contains the picture of whoever 252 1 showed up to apply for the ID, so... 2 Q Now, to register to vote, do you need to 3 provide a photo ID? 4 A No, not to register to vote. 5 Q So theoretically a person could register to 6 vote in another person's name and then obtain a 7 photo ID in that voter's name? 8 MR. FINBERG: Objection. Form. 9 A I suppose. 10 Q And if someone wanted to avoid all that, 11 they could just forge an employee photo ID. 12 Correct? 13 MR. FINBERG: Objection. Form. 14 A I suppose so. 15 Q And then another way that someone might be 16 able to commit in-person voter fraud under the 17 current law might be that they show up at the polls, 18 they cast a provisional ballot, and then they mail 19 in a photo ID. Right? Because at that point the 20 voter is not standing in front of the Board of 21 Elections. Correct? 22 A Correct.