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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

Case No. 1:22-cv-24066-KMM 

GRACE, INC., et al., 

Plaintiffs, 

v. 

CITY OF MIAMI, 

Defendant.

 / 

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO 

THE CITY’S MOTION TO STRIKE 

e City’s Motion to Strike (ECF 87) seeks to strike statements from Dr. Carolyn Abott’s 

expert report (ECF 82-12), filed in support of Plaintiffs’ Objections to the City’s remedial map 

(ECF 82). e Motion misconstrues both the factual record in this case and the law regarding 

expert testimony. Plaintiffs respectfully request that the Court deny the Motion. 

As the City recognizes in the Motion on page 7, “Plaintiffs may challenge [the 

Commission’s publicly] stated considerations in drawing the Enacted Plan through argument[.]” 

Plaintiffs do exactly that in their Objections, for example on pages 9, 16–17, and 20–22. (ECF 82). 

e paragraph quoted below demonstrates the flawed premise of the City’s Motion: 

Despite De Grandy’s efforts to push partisanship to the fore, the 

record reflects commissioners were not motivated by partisan 

considerations. e commissioners explicitly denied on the record 

any partisan motivations. e City’s actual policymakers rejected 

their attorney-consultant’s attempt to invoke partisanship to shield 

their handiwork from scrutiny. In the first commissioner speech of 

the day, Carollo emphasized the Commission’s nonpartisan nature 

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and disclaimed partisan motivations. 6/14 Tr. 32:13–20; see id.

30:15–17 (public comment he responded to). Covo agreed. Id. 45:6–

8. No commissioner expressed a partisan motivation for any 

decision in Res. 23-271. See generally id. Dr. Abott’s analysis 

confirms: claims that the map was drawn to increase the Republican 

performance of D1 individually, or D1, D3, and D4 as a group, 

simply do not add up. 2nd Abott Rep. 11–13. 

Objections at 20 (ECF 82). 

Dr. Abott’s report provides expert analysis to support the argument made by counsel in 

Plaintiffs’ Objections. Dr. Abott’s report itself is not argumentative. Her report does not speculate 

about the subjective intent of the commissioners. It does not interpret any statements made by 

commissioners, comment on their credibility, or say anything whatsoever about truthfulness. Dr. 

Abott’s report includes the same analysis she performed in her initial report concerning the 

Enjoined Plan—a report to which the City did not object, and which the Court found helpful. Her 

report assesses the demographics of the areas that changed from the Enjoined Plan to the City’s 

remedial map. Her analysis does not take into account any intermediate maps the City may have 

created along the way—maps that the City has refused to provide to Plaintiffs or the Court. See

Objections at 4 n.1 (ECF 82) (noting the City’s refusal to disclose map versions 1–11 and 13). 

e instructions counsel provided Dr. Abott, which are attached to this memorandum as 

Exhibit 1, ask her to use “the tools and methods from your initial report” to evaluate whether, in 

her expert opinion, the data she analyzed suggest the choices the City made in its remedial map 

are better explained by the use of race or politics. Dr. Abott was not instructed to assess, nor did 

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she even consider, the commissioners’ statements.1

 Even when the instructions reference a 

statement from Mr. De Grandy (not a commissioner) regarding the boundaries of Overtown, the 

instructions ask Dr. Abott to compare those boundaries with two differing definitions of Overtown 

to assess how the choices Mr. De Grandy made impacted “the racial makeup of District 5 versus 

surrounding districts.” And that instruction regarding Overtown does not relate to the race versus 

politics question—everyone agrees that District 5 was drawn based on race, not politics. 

As Dr. Abott explains on page 13 of her report, “[t]here is no evidence to suggest that any 

areas were moved or not moved to shore up partisan advantages in district cores.” (ECF 82-12) 

is conclusion is based on her comparison of the Enjoined Plan and the City’s remedial map. 

Commissioners’ statements were not part of her analysis. Her finding of “no evidence” refers only 

to evidence from the two maps enacted by the City and their objective demographics. Plaintiffs 

filed their Objections (ECF 82) and the City filed its Response (ECF 86). e City’s legal 

memorandum (ECF 86) was the proper vehicle for the City to attack the legal arguments made by 

Plaintiffs and the conclusions Plaintiffs draw from Dr. Abott’s report. To the extent the City uses 

the Motion to make additional legal argument it did not include in its Response (ECF 86), this is 

an improper use of a motion to strike and simply an effort to evade the Court’s page limits. See 

Scheduling Order ¶ 3.b (ECF 69). 

Expert reports like Dr. Abott’s, which analyze demographic data to assess whether race 

predominated in the drawing of district lines, are commonly used in racial gerrymandering cases; 

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 The City would already know this if it had requested the facts and data Dr. Abott relied on 

to write her report, including the instructions of Plaintiffs’ counsel. It made no such request, nor 

did it request to depose Dr. Abott or to cross-examine her at an evidentiary hearing. 

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courts commonly find them helpful. Three examples from three-judge district courts are 

illuminating. In Bethune-Hill v. Virginia State Board of Elections, on remand from the Supreme 

Court, the district court credited two experts, both of whom opined on the same topic as Dr. Abott 

here. 326 F. Supp. 3d 128, 145 (E.D. Va. 2018) (“We conclude that both experts provided credible 

testimony based on sound methodology, and we will discuss their testimony in turn.”); id. (“Dr. 

Rodden used geo-spatial data to determine whether it was plausible that the final shape of the 

districts could have emerged without race being used as the dominant consideration.”); id. at 147 

(“Dr. Palmer conducted statistical analyses regarding the populations of the challenged districts to 

determine whether race predominated in the construction of those districts.”). 

Likewise, the district court in Harris v. McCrory found that race predominated in North 

Carolina’s congressional redistricting and that “politics not race was more of a post-hoc 

rationalization than an initial aim” of the state. 159 F. Supp. 3d 600, 620 (M.D.N.C. 2016). “is 

conclusion is further supported circumstantially by the findings of the Plaintiffs’ experts, Drs. 

Peterson and Ansolabehere.” Id. Dr. Peterson used “segment analysis” to weigh three racial 

measures and four partisan measures to reach this conclusion. Id. Dr. Ansolabehere used “different 

methods” and “similarly concluded that the new districts had the effect of sorting along racial 

lines” and made changes from the “benchmark plan” that “can be only explained by race and not 

party.” Id. at 621. 

Similarly, earlier this year, the District of South Carolina cited an expert report that 

“analyzed the movement of VTDs [voting tabulation districts] in and out of a district and whether 

it was based on factors such as race and partisanship” and credited the experts conclusion that 

“black voters were excluded from [a district] in both a statistically significant and substantively 

consequential fashion.” S.C. State Conf. of NAACP v. Alexander, 2023 WL 118775, at *8 (D.S.C. 

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Jan. 6, 2023). is, despite contradictory testimony from lawmakers that they were motivated by 

nonracial considerations. Id. at *6. 

Even if the Court does not consider Dr. Abott qualified as an expert to opine on whether 

race or partisanship explains the changes from the Enjoined Plan to the City’s remedial map, the 

City misconstrues the Court’s gatekeeping role over expert testimony. e Eleventh Circuit has 

made clear that Federal Rule of Evidence 702 “relax[es] the traditional barriers to opinion 

testimony.” United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005) (quoting Daubert v. 

Merrell Dow Pharms., 509 U.S. 579, 588 (1993)). e court in Brown further held that “[t]hose 

barriers are even more relaxed in a bench trial situation, where the judge is serving as factfinder[.]”

Id. After all, “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping 

the gate only for himself.” Id. at 1269; see also Landivar v. Celebrity Cruises, Inc., 584 F. Supp. 

3d 1150, 1158 (S.D. Fla. 2022). 

Dr. Abott’s report is properly before the Court to consider in the Court’s evaluation of the 

City’s remedial map. Her report does not speculate about the subjective motivations of 

Commissioners or attempt to opine on their credibility or truthfulness. For the reasons explained 

above, the Court should deny the City’s Motion to Strike. 

 

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Respectfully submitted this 25th day of July, 2023,

 /s/ Caroline A. McNamara 

Nicholas L.V. Warren (FBN 1019018)

ACLU Foundation of Florida

336 East College Avenue, Suite 203 

Tallahassee, FL 32301 

(786) 363-1769 

nwarren@aclufl.org 

Daniel B. Tilley (FBN 102882) 

Caroline A. McNamara (FBN 1038312) 

ACLU Foundation of Florida

4343 West Flagler Street, Suite 400 

Miami, FL 33134 

(786) 363-2714 

dtilley@aclufl.org 

cmcnamara@aclufl.org 

Neil A. Steiner*

Dechert LLP 

ree Bryant Park

1095 Avenue of the Americas 

New York, NY 10036

(212) 698-3822 

neil.steiner@dechert.com 

Christopher J. Merken* 

Dechert LLP 

Cira Centre 

2929 Arch Street 

Philadelphia, PA 19104 

(215) 994-2380 

christopher.merken@dechert.com 

* Admitted pro hac vice

Counsel for Plaintiffs 

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