Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 1 of 9 PAGEID #: 17576 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION The Northeast Ohio Coalition for the Homeless, et al., vs. Plaintiffs, Case No. 2:06-cv-896 Judge Algenon Marbley Magistrate Judge Terrence P. Kemp Jon Husted, in his official capacity as Secretary of State of Ohio, et al., Defendants. PLAINTIFFS NEOCH, CCH, AND ODP S OBJECTIONS TO DEFENDANTS DEPOSITION DESIGNATIONS Under Fed. R. Civ. P. 32(b), Plaintiffs Northeast Ohio Coalition for the Homeless (NEOCH), Columbus Coalition for the Homeless (CCH), and Ohio Democratic Party (ODP) submit the following objections to Defendants State of Ohio s and Secretary of State s deposition transcripts for Brian Davis (NEOCH executive director), Donald Strasser (CCH board member), and Greg Beswick (executive director at ODP). I. Deposition of Donald Strasser (CCH) Page: Line of Transcript Question Basis for objection 28:5 9 Q. Are you alleging that it is difficult for someone to know their date of birth? 33:4 35:12 Q. Is there any way that CCH, as an organization, will be harmed because of these provisions? Irrelevant. The point is not whether someone knows their date of birth, but whether someone might, in a lapse of attention, make an error regarding date of birth (or leave it out altogether) and thus face disenfranchisement. Lack of foundation and/or calls for a legal conclusion. Harm is a legal term of art here, and Defendants did not define it. Page 1 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 2 of 9 PAGEID #: 17577 Q. And do you know what percentage of your budget is going to be diverted? Also, under Fed. R. Civ. P. 32(a)(6) and FRE 106, the following part must also be included and considered with the designated portion: A. I would rather say at this point that I really don t know what the percentage is and that the Board will make a decision about how much time we devote to voting activities, voting education. (60:10 20) (also: 51:19 52:6 (already separately designated) / Q. Do you know what percentage the Board has done in the past? A. No. (61:7-9) / On 8B, it says that you CCH is unable to quantify the financial resources that would be diverted based on these laws. Is that still an accurate statement? A. It is. Q. Okay. And why is that why wouldn t you be able to quantify that? A. Because it s we have a very, you know, simple budget, and I don t know that it would indicate that level of detail for that particular project. (61:19-62:4). Q. And does the Board have to vote on the budget for the program? A. I don t know if the board will to vote on the specific budget, but I think the Board will need to vote on a generalized amount of time that we devote to this program. (93:14-19) Q. So you don t know what how much time the Board is going to say is acceptable for the voter outreach program? A. I do not know that. (94:2-5) And to the question re harm, the following must be included under FRE 106: Q. Because of the challenged provisions, 205 and 216, what activities will your the CCH Staff not be able to do? A. Well, I don t know that it would curtail our activities. I think it would simpl[y] diminish the time spent, so it would diminish the time spent on preparing our newspaper, maybe going to certain meetings, pursuing any other advocacy efforts we may be working on at the time. Those would be the main answering the telephone and providing information. We may just have to use the voicemail. (68:16-69:3) Page 2 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 3 of 9 PAGEID #: 17578 the Board will need to have some discussion about this because we re our resources are so limited, and so yes, they ll have to have some discussion. (93:10-13) Q. Is voting on the agenda that you said the entire one is not set. Is voting on part on the incomplete agenda? A. Yes. (94:10-13) 45:8 47:2 Q. What if those same five fields were all you needed to vote absentee? Q. What if those same five fields were all you needed to vote provisionally? 51:19 52:6 Clarifying a response re Board determining resources devoted to voting activity. Q. What is going to be discussed at that meeting related to voting? A. Some things I think what will be discussed is probably what is it we re going to do, who s going to do it, how much time we should spend doing it, what resources are needed to do it and the like. (71:14-22). Calls for speculation. Under FRE 106, the following testimony should also be included: Q. In the past, I guess would be the presidential, so for 2012 do you know what your what percentage of your budget was spent on outreach? A. I really don t know. Q. So the board has not yet made the decision with regard to voter outreach for 2016? A. That s correct. (52:7 21) 62:5 63:11; see also 63:22 66:2 Q. And would that include voting issues regardless of whether these challenged provisions were in place? Under FRE 106, the following testimony must also be included for completeness: A. Yes, and I want to clarify, too, that I expect that we are going to spend more time on the on voter education, voter registration in the ensuing months because of these new requirements and the need to assure that our folks really are well versed in the rules and procedures. And while we will continue to do things like we ve done in the past, such as bring people to the polls and everything else, I expect that we re going to need to devote more resources to this area. Q. Are you going to propose that more resources are devoted to this area at the meeting? A. Well, I think I Page 3 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 4 of 9 PAGEID #: 17579 66:14 67:17 / 68:3 7 Q. And I know you said you don t know if it s going to be two percent or five percent or whatnot. Q. Whatever percentage you have, your Board sets for voting, mean, I can t speak for the Board. I can t predict the future, but our board is certainly knowledgeable about these proceedings and has some knowledge about these new requirements and their concerns; so, you know, this is the kind of issue that knowing these people, I think would want to be certain that we did our due diligence in trying to educate to the best of our ability. (87:15-88:14) The premise of these questions implies that the Board is going to set the percentage. Under FRE 106, the following testimony should also be included: 61:19-62:4: On 8B, it says that you CCH is unable to quantify the financial resources that would be diverted based on these laws. Is that still an accurate statement? A. It is. Q. Okay. And why is that why wouldn t you be able to quantify that? A. Because it s we have a very, you know, simple budget, and I don t know that it would indicate that level of detail for that particular project. 69:16 71:13 All the questions re program 74:14 76:4 Q. Would it be fair to say that the people that purchase your newspaper are not the type of people that would normally have trouble filling out forms? /And that would typically not have issue with identification? Mischaracterize the testimony. Witness testified that a program, I guess I think of as being more institutionalized, and this would be a time-limited activity. Yet Defendants continued to characterize the activity as a program. Lack of foundation. Calls for speculation. Defendants did not establish that the witness knows who the type of people that would normally have trouble filling out forms are, or that there is such a type, or that only a type of person could make a mistake on a form or have an issue with identification. Also, under FRE 106, to be complete, the rest of the testimony states as follows: Q. Okay. And so what voter education why would you include voter education in this newspaper? What would be the substance of it? A. Well, homeless people might read the paper. They may not buy it, but they may read it in our office, or, you know, there are other places. (76:5-12) Page 4 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 5 of 9 PAGEID #: 17580 78:6-79:11 Q. But you ve done voter or voter education in the past, so it s not going to be so you re not starting a new program in 2016; would that be accurate? 88:15 91:25 Q. Is it fair to say, then, that your voter outreach, including the gathering materials and recruiting people to go out to the shelters, that you ll just be adding material to a program that s already been in place back in 2012? And later: In response to the question re people getting used to the requirements: I think they yeah, we would be getting used to the requirements, but it doesn t you know the same issues that have been raised about making mistakes or having an incorrect address or the zip code is off, that doesn t factor into that question. It s- you know, I might be used to something, but it doesn t mean that I m able to you know, fix it. (86:17 25). FRE 106 requires completeness A. Yes, and I want to clarify, too, that I expect that we are going to spend more time on the on voter education, voter registration in the ensuing months because of these new requirements and the need to assure that our folks really are well versed in the rules and procedures. And while we will continue to do things like we ve done in the past, such as bring people to the polls and everything else, I expect that we re going to need to devote more resources to this area. Q. Are you going to propose that more resources are devoted to this area at the meeting? A. Well, I think I mean, I can t speak for the Board. I can t predict the future, but our board is certainly knowledgeable about these proceedings and has some knowledge about these new requirements and their concerns; so, you know, this is the kind of issue that knowing these people, I think would want to be certain that we did our due diligence in trying to educate to the best of our ability. (87:15-88:14) Under FRE 106, the following testimony would also be required for completeness:.the Board will simply have to determine that we want to create a program and the kinds and, you know, the maybe some of the fundamental characteristics of that program, but the the nuts and bolts of doing it and where we get the information, the Board is not going to be involved in that. (92:19-25). Q. And your past efforts voter outreach did not focus on the requirements set forth in Bill 205 and Page 5 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 6 of 9 PAGEID #: 17581 216; is that correct? A. That s correct. (94:19-22. II. Deposition of Brian Davis Page: Line of Transcript Question 38:13 40:21 Q. Do you have any sense as to whether it would be possible for a board of elections to match up a voter envelope to the voter in the database, the statewide registration database with nothing more than a signature? /Q. Would you agree that in order to conduct those steps [i.e., determine a voter s eligibility], a board of elections needs to have some information on an absentee ballot envelope to conduct that verification process? / Q. So what information do you think is appropriately included to compete those tasks by the board of elections. Basis for objection Lack of foundation. In the immediately preceding question, Defendants counsel asked And have you ever been a member of a board of elections? and the witness answered No. (38:13 15). The witness also answered, regarding the procedures that the board of elections have to go through to verify a ballot is legitimate, I m not an expert on that. (39:2-6). The Defendants failed to establish that the witness was qualified to answer these follow-up questions. Under FRE 106, the witness s additional testimony must also be included. When asked whether the information that has to be repeated on the absentee ballot envelope is the same as that which is on the registration card, the witness explained: That s the current system, that s correct. I m not if I were designing the system, I would design it totally different, but that s not / Well, I don t think we should tie voting to an address, to a precinct. That would allow for my constituency who are homeless who move frequently who aren t tied to a residence easier access to the ballot. They would not have to worry about, you know, is the individual going is the individual in front of them going to interpret the rules correctly or are they going to say that their ID doesn t match their residence so therefore they are not _ their ballot is going to be a provisional ballot and may or may not count. My preference would be to have nothing that is associated with residency. (40:25-42:6). The witness further testified: I think that the identifying information should be strictly to establish that the person who registered is the person who is casting the ballot and not try to trip Page 6 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 7 of 9 PAGEID #: 17582 63:12 64:7 Q. Have you done any investigation as to whether or not these individuals are registered to vote? 90:7 91:3 Q. Is it fair to say then it sounds like what you re saying is a primary focus of your election and voting-related efforts is to encourage people to vote. Is that fair?...and that as true prior to 2014, correct?... It sounds like that is what you plan with respect to your efforts for 2016. Is that fair? 96:4 8 Q. But your strategy in terms of your voting efforts as an organization did not change in 2014, I think was your testimony earlier. Is that correct? up the voter. I think that the bottom line should be if a person is attempting to cast a ballot, you should try to do as much as you can to make sure that that ballot counts. (43:11-18) And as the Defendants have separately designated, the witness further testified, Right, but it shouldn t be a way to if there s an error but the voter s identity can be determined from the other fields, you should try to err on the side of the voter should be able to cast a ballot. (44:7-11). Under FRE 106, the rest of the testimony should also be included. The witness testified as to what NEOCH had done to investigate whether the members it listed had voted regularly. In answer to the question Were you able to confirm whether they have in fact regularly voted? the witness answered, Yes. (65:1-3). He further testified that we do have regular contact with them (66:18 19). Under FRE 106, additional testimony should be included/considered: Yes, but we we may have to change our strategy to not encourage vote by mail if it turns out that a large number of people were disenfranchised because they made technical errors in their submission. (91:7-11). Under FRE 106, the following must be included. Earlier, in response to the same question, the witness testified: The only change was that we had to go through with the social service providers the changes that did happen and let them know that this is going to be important. (95:15 18) III. Greg Beswick (ODP) 53:1-55:23 Q. And can you tell me a little more what First Amendment privilege not to disclose information regarding how ODP maintains it Page 7 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 8 of 9 PAGEID #: 17583 specifically is your process for matching voters for your database? voter files. Respectfully submitted, /s/ Sandhya Gupta Subodh Chandra, Trial Attorney (0069233) Donald P. Screen (044070) Ashlie Case Sletvold (0079477) Sandhya Gupta (0086052) THE CHANDRA LAW FIRM, LLC 1265 W. 6 th St., Suite 400 Cleveland, OH 44113-1326 216.578.1700 Phone 216.578.1800 Fax Subodh.Chandra@ChandraLaw.com Donald.Screen@ChandraLaw.com Ashlie.Sletvold@ChandraLaw.com Sandhya.Gupta@ChandraLaw.com /s/ Caroline H. Gentry [per consent] Caroline H. Gentry (0066138) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 937.449.6748 Phone 937.449.6820 Fax cgentry@porterwright.com Attorneys for Plaintiffs NEOCH and Columbus Coalition for the Homeless /s/ Donald McTigue [per consent] Donald J. McTigue, Trial Attorney (0022849) Mark A. McGinnis (0076275) J. Corey Colombo (0072398) MCTIGUE, MCGINNIS & COLOMBO, LLC 545 East Town Street Columbus, OH 43215 614.263.7000 Phone 614.263.7078 Fax dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com Attorneys for Intervenor-Plaintiff Ohio Democratic Party Page 8 of 9
Case: 2:06-cv-00896-ALM-TPK Doc #: 581 Filed: 03/08/16 Page: 9 of 9 PAGEID #: 17584 CERTIFICATE OF SERVICE I certify that on March 8, 2016, my office filed the foregoing document using the Court s online-filing system, which will send a copy of the foregoing to all counsel of record. /s/ Sandhya Gupta One of the Attorneys for Plaintiffs Page 9 of 9