IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-cv-24066-KMM

GRACE, INC., et al.,

Plaintiffs,

vs.

CITY OF MIAMI,

Defendant.

________________________________________/

Tuesday, 10:00 a.m.

October 10, 2023

ZOOM VIDEOCONFERENCE DEPOSITION

 OF 

STEPHEN CODY, ESQ.

Taken on behalf of the Plaintiffs

Pursuant to a Notice of Taking Deposition

___

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Case 1:22-cv-24066-KMM Document 166-4 Entered on FLSD Docket 01/29/2024 Page 1 of 68
APPEARANCES:

ACLU FOUNDATION OF FLORIDA, by

NICHOLAS L.V. WARREN, ESQ., and

On behalf of the Plaintiffs.

GRAY ROBINSON, by

GEORGE LEVESQUE, ESQ., and 

JASON L. UNGER, ESQ.,

On behalf of the Defendant.

WITNESS

STEPHEN CODY, ESQ.

Direct Examination 3

Cross Examination 62

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Case 1:22-cv-24066-KMM Document 166-4 Entered on FLSD Docket 01/29/2024 Page 2 of 68
THEREUPON:

(The following proceedings were held.)

THE REPORTER: Do you have an ID that you 

can show up to the camera?

THE WITNESS: I don't have one -- 

 THE REPORTER: Or if the attorneys want to 

stipulate that that is Mr. Cody, that is 

acceptable, also. 

MR. WARREN: I'm fine attesting that this 

is Steve Cody. 

MR. LEVESQUE: I can verify that that is 

Steve Cody. 

THEREUPON:

STEPHEN CODY, ESQ.

was called as a witness by the Plaintiffs and, having 

first been duly sworn, was examined and testified as 

follows:

THE WITNESS: I do.

DIRECT EXAMINATION

BY MR. WARREN:

Q. Good morning, Mr. Cody. My name is Nicholas 

Warren. I'll be taking your deposition. 

First of all, I'd like to acknowledge that I 

recognize you and acknowledge that you are Stephen Cody. 

A. Well, thank you. I've been here most of my 

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Case 1:22-cv-24066-KMM Document 166-4 Entered on FLSD Docket 01/29/2024 Page 3 of 68
life.

Q. Have you ever been deposed before?

A. Yes, I have.

Q. Okay. And have you ever taken or defended a 

deposition?

A. Oh, yes.

Q. I figured. So I won't belabor all of the 

introductory ground rules and overview too much, because 

you understand the format. 

This is a question and answer session. 

Everything will be taken down by Ms. Sanchez, the court 

reporter. Do you understand that you'll need to answer 

clearly and preferably with a yes or no, something like 

that? We will, of course, try not to talk over each 

other, to make sure that Ms. Sanchez can take everything 

down accurately. 

We're interested today in finding out 

everything you know about the events that I'm going to 

ask about relevant to this lawsuit. So, for that 

reason, I'm looking for full and complete answers to the 

questions that I'm going to ask. Do you understand 

that?

A. I do.

Q. If I don't state a question very well, if you 

don't understand it, just ask me to rephrase it. It's 

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Case 1:22-cv-24066-KMM Document 166-4 Entered on FLSD Docket 01/29/2024 Page 4 of 68
my job to ask understandable questions, so let me know 

if I'm doing a bad job and I'll try my best to rephrase. 

It may be that you might not recall something. 

You may have, at one point, known the answer to a 

question, but don't anymore. If there's something that 

might jog your memory, we might be able to provide it to 

you, so just let me know if that's the case. 

If you need to take a break, that's fine, just 

let me know. I only ask that you -- that we not take a 

break, if a question is pending, before you provide an 

answer. 

I'm also not anticipating this going too, too 

long. I'd be surprised if it went more than a couple of 

hours, just to let you know. 

Let's see, because it's so critical that we get 

your complete and accurate answers, I just want to ask 

whether you're taking any medications or anything else 

that may make it difficult for you to understand and 

answer questions today?

A. No.

Q. Okay. Thank you. 

You mentioned that you had been deposed before. 

About how many times?

A. If I had to guess, and this is a guesstimate, 

maybe nine, ten times.

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Q. Do you remember the last time?

A. Probably about fifteen years ago.

Q. Okay. And do you remember what the subject 

matter of that deposition was?

A. That was to give an opinion about a fee that 

was being sought in a case by another attorney.

Q. Okay. Have you ever been a party to a lawsuit?

A. Yeah.

Q. And about how many do you think?

A. Nine, ten times. 

Q. When was the last one?

A. The last one was in 2021.

Q. What was the nature of that lawsuit?

A. I am a member of the Palmetto Bay Village 

Council. The person that I beat, basically, took it as 

an affront that I beat him, and when I responded to some 

of the attacks he's made against me, his feelings were 

hurt, and he claimed that I defamed him. 

Q. What is the status of that lawsuit?

A. That's still pending. 

And the one prior to that was, he also sued me, 

for the same reason, but different things that I said, 

but in that case, he claimed that three of my e-mails 

caused his heart efficiency to drop by 65 percent.

Q. Caused his heart efficiency to drop? 

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A. Yes, his heart function to drop 65 percent. 

Q. Okay. 

A. So it's going to be interesting to talk to his 

cardiologist, when we get to that, but, you know.

Q. Have you ever been a plaintiff in a lawsuit?

A. Yes.

Q. And what are those cases?

A. Well, the one that comes to mind was -- well, a 

couple. I brought actions to get public records under 

Chapter 119 of the Florida Statutes. And I think there 

may have been three of those, maybe, over the years. 

Q. Any besides public records lawsuits?

A. No. I don't recall any.

Q. Okay. Thank you. 

Did you prepare for today's deposition?

A. I did have a conversation with Mr. Unger and 

George, and I apologize, I don't know whether it's 

Levesque or Levesque, but with George, on Saturday, and 

we talked for about 45 minutes.

Q. Did you do anything else to prepare, besides 

that meeting?

A. No.

Q. No review of any documents?

A. No.

Q. All right. Did you speak with anyone, besides 

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Mr. Unger and Mr. Levesque, in preparation for the 

deposition?

A. No.

Q. All right. Okay. Turning now to the City of 

Miami redistricting process after the 2020 census -- 

A. Uh-huh.

Q. -- when did you begin performing work on that 

redistricting process?

A. That would have been in 2021, probably the 

Fall.

Q. And how did your involvement begin? How did 

you become involved in the City's -- 

A. I received a call from Miguel De Grandy. We 

had done the two prior redistrictings, and so he 

basically told me, it's time to get the band back 

together. He asked me if I was interested in doing it, 

and I told him okay. 

And then we went about setting forth the 

contracts that we were going to be working under, and 

when those got signed, I got to work.

Q. Okay. On that subject, what was your fee 

arrangement for the redistricting work?

A. I got -- well, I charged them a flat $50,000 

fee, which would cover everything from the moment we 

signed up, until the time that they adopted a plan. And 

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Case 1:22-cv-24066-KMM Document 166-4 Entered on FLSD Docket 01/29/2024 Page 8 of 68
after that, if they wanted me to do any further work, I 

would be billing them at $500 an hour.

Q. And did they end up wanting you to do 

additional work?

A. No.

Q. That's a "No"?

A. Yes, that's a no.

Q. Okay. So the contracts were finalized, and 

then you began work?

A. Yes.

Q. What work were you doing? Can you walk me 

through what work you were engaged in, from the 

beginning, after the 2020 census?

A. Okay. Well, I first wanted to establish a 

baseline, so I got the most recent boundary map for the 

City of Miami, and then I -- and that would be showing 

not only the City boundaries, but the boundaries of the 

five then existing districts, and inputted that into the 

software, and then prepared a report, with Miguel, on 

the status, and, you know, how things look currently, 

based upon the 2020 census figures.

Q. And you said, "How things looked." Was that 

looking at just total population from the 2020 census or 

anything additional?

A. Well, I mean, all of the -- that was looking at 

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Case 1:22-cv-24066-KMM Document 166-4 Entered on FLSD Docket 01/29/2024 Page 9 of 68
the public law, I believe it's 94-171 data, which deals 

with population, population by race, population by 

Hispanic or not, and then voting age population, and all 

of those categories, and then also look at voter 

registration data, because that was included in the 

software that we were using.

Q. What program is that?

A. It was a program that the State of Florida put 

together for its redistricting. 

Q. Florida Redistricting, I think it's called. 

A. Right. Well, you access it on the website, 

FloridaRedistricting.gov. And so I set up an account, 

and had several versions, when I would do something to 

lay it out. It would generate reports, that gave me an 

indication of how voters in each of those districts 

voted in certain statewide races, and so that's 

preliminarily what I did.

Q. Okay. And how was that preliminary information 

used? You gave that to Mr. De Grandy and then?

A. Well, I prepared a report. I gave all of our 

report styling to the members of the City Commission, 

but made sure that Todd, the City Clerk, had it in both, 

digital format, so he can post it on the website, if he 

wanted to, as well as hard copies. 

We then -- the two of us had a meeting with 

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each of the members of the City Commission, in fact, 

several, over the entire process, to talk about various 

things.

Q. Those are the public meetings -- the public 

redistricting meetings that happened -- 

A. No. We also had some individually with them, 

in their offices.

Q. I see. 

Is it your understanding that you have a -- 

that the work you were doing, that was not made public, 

is attorney work product?

A. I don't have an understanding, one way or the 

other. I would leave that to the City, whether they 

wanted to claim that it was attorney work product.

Q. Okay. Is it your understanding that the 

meeting -- private meetings that you had with City 

Commissioners or their staff are protected by some type 

of privilege?

A. Again, if the City wants to assert a privilege, 

they can. I don't have an opinion, one way or the 

other.

Q. Okay. Okay. We may get into that a little bit 

more later on. 

A. Fine.

Q. So you did the preliminary work. What other 

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work did you do at the beginning of the redistricting 

process in 2021?

A. Well, I went back and tried to familiarize 

myself with the different neighborhoods and communities 

of interest, took a look at what changes had been made 

over the past ten -- I mean, I live in Miami. Well, I 

believe in Palmetto Bay, which is a suburb south of 

Miami, but to familiarize myself with some of the 

changes that have gone on in the City of Miami 

demographically. I looked at some of the census data 

from the last census, the 2010 census, in order to see 

what kind of -- more to refresh my recollection and get 

an idea of what kind of trends we were looking at, in 

terms of the increase or the decrease of any constituent 

population group.

Q. Did you analyze racially polarized voting?

A. Yes.

Q. Can you talk more about that analysis and what 

you did?

A. Sure. Well, what I did was, I went to the 

website of the Supervisor of Elections for Miami-Dade 

County, and I downloaded the registration data for all 

of the precincts in the County, the registration data 

for all of the elections that had taken place, focusing 

mostly on County-wide elections. So that would be 

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Statewide elections, because they would cover the entire 

County, as well as County-wide elections. It's kind of 

hard to do -- well, I actually may have -- because I had 

the data, I may have looked at, I think I did, City 

elections, but the City elections are done by district. 

I mean, I was involved also with the lawsuit 

that eventually caused the City to adopt districts, but 

I didn't rely on -- I looked at it, but I did not rely 

upon it, you know, but there are two accepted 

methodologies to see if there is polarization in voting 

by either race or ethnicity, and I had done that kind of 

analysis going back into the 1990s. 

I was the attorney who handled the case that 

brought single-member districts to Miami-Dade County's 

Commission and to the Miami-Dade County's School Board, 

and because, in neither case, the plaintiffs, who hired 

me, provided me with the resources, I learned how to do 

the analysis myself. I have a political science degree, 

but, you know -- and so I did that kind of analysis in 

the City of Miami, and then drew upon what I had learned 

through those prior matters, because I also looked at 

it, besides -- during the 1980s, involving the County 

and the School Board, but in the recurring 

redistrictings, I looked at it, to make sure that there 

was still evidence of racially polarized voting going 

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on.

Q. And what did you find?

A. I found that -- well, drawing upon the baseline 

of it being incredibly significantly County-wide, back 

when I did the School Board and the County case, moving 

forward, it still existed, not to the same -- I wasn't 

getting the same high R score values when I did the 

regression analysis, but when I did a scattergram of the 

results versus the different ethnic indicators, I did 

see a significant degree of racial polarized voting, 

especially in cases where you either had a candidate who 

was of a particular minority group, and cases where the 

candidate might not be a member of a minority group, but 

he identified -- either identified with the group or the 

group identified with him.

Q. Okay. And when you say you found patterns of 

racially polarized voting, I imagine, did you first look 

to confirm or assess whether each racial group was 

politically cohesive?

A. Well, that's part of it. I mean, there is a 

methodology called Homogeneous Precinct Analysis, which, 

under the standard that was adopted by the Supreme Court 

under the Thornburg versus Gingles case, advocated only 

looking at those precincts that were 90 percent or 

greater of an ethnic or racial group, which is tough in 

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the City of Miami, because I don't think we had any at 

the time -- for the past ten years or so, any precincts 

that were 90 percent or greater. So, you know, you can 

drop the baseline down, but you do that with the 

understanding that that gives you less reliability, but 

you can still see patterns. And so when I did that, I 

still saw that there were patterns. 

The thing that I found, when I did the Carrie 

Meek and Xavier Suarez's cases, in South Florida, we had 

a function of shifting coalitions, and this is 

especially true back before you had a large cohort of 

non-Cuban Hispanics in the voting population. You had 

shifting coalitions in that, when you had a Black 

candidate running against a White candidate, Hispanics 

would coalesce with Whites and vote against the Black 

candidate. And when you had a Hispanic candidate 

running against a non-Hispanic White candidate, the 

Black voters would vote with the White non-Hispanic 

voters against the Hispanic candidate. So you could see 

those shifting coalitions going back and forth being 

built. 

It became less important, in a City like Miami, 

as over the years, the percentage of non-Hispanic Whites 

has decreased, you know, from the 2000 population census 

to the one that we had in 2020.

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Q. So, for the most recent cycle, you found that 

voting was racially polarized between Black and other 

voters?

A. Yes.

Q. Did you find that voting was racially polarized 

between Hispanic and other voters?

A. Yes, to some degree, but by the time that you 

get into the last part of the cycle, the non-Hispanic 

Whites, who had been the predominant voting population 

of registered voters, became less and less. I mean, 

they dropped to a plurality, and, then, eventually, to a 

minority. So their effect on the outcome of an election 

was not -- became insignificant.

Q. Did you find -- so you mentioned the shifting 

coalitions in past decades. 

A. Yes.

Q. Did you find coalition voting or crossover 

voting in more recent elections?

A. Not really. Not really. And, again, that was 

looking at County elections or County-wide elections in 

Dade County. Well, I don't know if I'd call it Dade 

County. 

But, yeah, I mean, I did, to some degree, but I 

did the analysis, but did not see that there was a 

coalition between White and Hispanic voters that 

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prevented the election of a Black candidate.

Q. But maybe talking more precisely about 

crossover voting, some percentage of White voters, for 

example, cross over to support Black preferred 

candidates?

A. Well, yeah. I mean, in some instances -- for 

instance, if you take the Barack Obama election, that 

had a tremendous amount of support among Whites, among 

Blacks, and while we don't have voter data -- well, we 

do have registration data by age and ethnicity. I don't 

think the numbers were high enough so I felt comfortable 

doing an analysis and using that as part of my -- you 

know, telling them that. 

As somebody that lives down here, second and 

third generation people of Cuban descent are more 

liberal than the people who came over, like my wife, 

that's a refugee. 

Q. Would you say that the patterns of crossover 

voting with White or Hispanic -- a segment of White or 

Hispanic voters crossing over to support Black preferred 

candidates, would you say that that crossover voting is 

significant in recent elections?

A. I don't really know, because I didn't do it in 

the City of Miami, and that would be the determinative, 

because if I looked at it -- if I look at it as the 

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County as a whole, it would take in voters in Pinecrest 

or Palmetto Bay, where I live, or it might take in large 

portions of Coral Gables, which had -- you know, it's a 

wealthier community. The demographics and background 

and social characteristics of the population are 

different than the population that you would find in 

Flagami or, you know, Little Gables which is part of the 

City of Miami. 

Q. Not yet -- 

A. Well, I understand Coral Gables wants it, too, 

so there may be, you know, a gun fight over that.

Q. To back up a little bit, so when you were doing 

your RPB analysis, you were looking at all precincts 

County-wide or just precincts within the City of Miami?

A. Just precincts in the City of Miami. 

Q. Okay. 

A. But that gives you -- I mean, I would look at 

it from the standpoint of, does racially polarized 

voting exist. I wasn't looking at it in terms of what 

level do I have to put in a district to make it perform 

for this particular racial or ethnic group.

Q. So that second question of what, in this case, 

Black percentage would you need in a district to be able 

to perform or to be able to usually perform, you weren't 

looking at that question?

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A. No, but I was basing it upon my understanding 

of both, the law, psat practices. I mean, I've drawn 

districts in other areas, and so I'm familiar with the 

standards. It used to be that, you know, you would try 

to draw a district, especially given evidence of 

racially polarized voting, and you'd try to make the 

district as high in numbers of the ethnicity, race, in 

order to assure that they will be able to elect the 

candidate of choice, if the coalition doesn't hold. 

Given our history of shifting coalitions here 

in Dade County, I was looking for a way to draw a 

district that was going to be as sturdy in population, 

especially for District 5, as I could.

Q. Okay. Going back a little bit just to drill 

down a little bit further on what precisely you were 

getting from the Supervisor's website, so you were 

taking the precinct level results of the elections that 

you were studying, right?

A. Right.

Q. And you had the information on -- were you 

using voter -- the current snapshot of voter 

registration by race in each precinct and comparing 

election results to current registration or did you have 

kind of a snapshot in time from each election 

registration by race?

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A. I was using registration numbers that were for 

the book closing for each election that I looked at. So 

I did not use 2000 election data to try to analysis a 

1992 election. 

Q. Okay. 

A. I know an expert that appeared in one of the 

cases I had, Allan Lichtman, who actually did that, 

representing the State of Florida, and when I pointed 

out that he did that, he was not happy with me, but that 

was as an attorney, not as an expert.

Q. You're really dating yourself if you remember 

when Allan Lichtman was appearing as an expert for the 

State of Florida. 

A. Like I said, I've worked -- 

Q. He's on the other side now. 

A. I worked on the redistricting back in 1982. I 

was Bill Sawdoski's legislative aide. Bill was very 

heavily involved in the redistricting, and so, 

consequently, I was very heavily involved with the 

redistricting, and that's where I learned to do a lot of 

this stuff. This is back at a time when the computers 

we used practically ran on steam. So this was my fifth 

redistricting cycle, so I am dated, you know.

MR. WARREN: Off the record briefly, Ms. 

Sanchez. 

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(Discussion off the record.)

BY MR. WARREN:

Q. So you had the book closing voter registration 

by race for each precinct that you were looking at?

A. Right, and for each election that I was looking 

at, that I had to match up.

Q. And comparing that to precincts level results?

A. Correct.

Q. Okay. But did you compare the -- sorry, I'll 

rephrase that. 

So you were looking at, for each election 

studied, the total registered voters by race, by 

precinct, not the voters who actually voted by race in 

each precinct?

A. No, but I did look at turnout, in terms of, am 

I seeing a system -- like, for instance, going back to 

the 1980s, when I did that -- and, in fact, going back 

to the '80s, actually, when I was working at Bill 

Sadowski, one of the things we looked at was voter 

turnout in different communities, when it was actually 

repressed, and we may be heading back there now, in 

terms of what the government is doing, but see what kind 

of turnout you were getting, and that can inform you as 

to whether there is a greater need to draw these 

districts, but that's also one of those of Zimmer vs. 

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McKeithen, an old Fifth Circuit District -- or Fifth 

Circuit, excuse me, Court of Appeals opinion, that the 

Supreme Court cited in Thornburg, saying that these, 

while none of them are dispositive, they are all 

illuminative. 

And so, yeah, I looked at voter turnout to make 

sure that there was not -- you know, in a race where you 

were only getting 10 percent of the Black population 

turning out, 90 percent of the White population turning 

out, that would warrant an investigation as to why. If 

it was a question of 62 versus 63, you know, it would 

not.

Q. Okay. One thing that was mentioned at the 

preliminary injunction hearing in this case, I don't 

know -- did you attend the preliminary injunction 

hearing?

A. No.

Q. Did you review the transcript after?

A. No.

Q. Did you hear about the testimony that was given 

at that hearing from anybody?

A. I read a newspaper article about it. I had not 

been retained by the City to work with them on either 

that hearing and this lawsuit or the subsequent map that 

was drawn or to give an opinion as to any of the maps 

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that the ACLU and Grace have put forward.

Q. Okay. So one thing that was -- that Mr. De 

Grady testified at the preliminary injunction hearing is 

that you did an analysis to confirm the presence of the 

three Gingles preconditions in the City of Miami. Is 

that an accurate summation of your -- 

A. Yes.

Q. Okay. So you did that with respect to Black 

voters and confirmed that the Gingles preconditions are 

present for Black voters?

A. Yes. 

Q. Did you -- 

A. And I also did it for Hispanic voters.

Q. And what did you conclude with respect to 

Hispanic voters?

A. Well, I mean, the first Gingles precondition, 

is the population large enough and compact enough to 

form a majority in any single-member district, the 

answer to that questions is yes. The second criteria, 

does the minority group show political cohesion, I 

looked at that, and I'm especially looking at some of 

those County-wide -- you know, statewide, national and 

county-wide races that cover the City of Miami, as well. 

Yeah, that Black voters were showing great political 

cohesion. 

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Again, the Gillum race stands out, for 

Governor, against Ron DeSantis. I can't remember the 

name of the attorney general that we had, who ran in 

that same election, in the general election. There was 

greater support for him in the Black community, and Bill 

Nelson versus Rick Scott. And while neither of them are 

African-American, I wanted to see if there was a 

division between how Black voters and other components 

of the population voted, and so I noticed that, you 

know, White voters voted at a higher percentage, I 

believe, for Bill Nelson. Hispanic voters, in that 

race, did not support him.

Q. Okay. And so, for Hispanic voters, with the 

second Gingles precondition, same thing, the conclusion 

was that Hispanic voters are usually generally -- 

A. Politically cohesive, yes.

Q. And the same thing with the third Gingles 

precondition for Hispanic voters?

A. Well, looking at it -- I mean, the standard, as 

announced by Gingles was, do White voters. And, so, 

again, in Miami-Dade County, you have to look at 

non-Hispanic White as a component, as opposed to just 

White, because White voters will pick up White 

Hispanics. So you have to use that figure. 

But, yeah, I saw political cohesive voting 

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among Hispanics. Again, by the time we got to the end 

of the election cycle -- excuse me, the census cycle, 

non-Hispanic White voters, I think, were 15 percent of 

the registered voters in the City of Miami, and they 

were about the same number as Black voters, although 

Black voters were compact, in terms of their residence 

patterns. Non-Hispanic White voters were not. 

So as much as everybody would like to say that 

District 2 is the White district, that was silly, you 

know.

Q. Would a fair characterization of the third 

Gingles precondition be -- well, as it was stated in 

Gingles, that the White majority vote sufficiently as a 

bloc usually to defeat the minority groups' preferred 

candidate?

A. Well, that's a characterization of the Gingles 

criteria, yes.

Q. Okay. So that's true of Black voters, the 

majority of the electorate in the City of Miami usually 

defeats -- usually votes sufficiently as a bloc to 

defeat the Black preferred candidate in elections within 

the City of Miami, right?

A. If those elections were held just in the City 

of Miami. 

Q. Right. 

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A. And then drawing upon data from the City of 

Miami precincts. Now, granted, those candidates may not 

have been defeated, because of the support of people in 

the County or in the State, but if we were just 

restricting the election to the City of Miami, then, 

yeah.

Q. Sure. 

So turning to Hispanics then, is it usually 

true that the majority in the City of Miami vote 

sufficiently as a bloc usually to defeat the choice of 

Hispanic voters?

A. No, because Hispanic voters are now 70 plus 

percent of the registered voters, and there isn't a 

group -- the non-Hispanic groups combined are not large 

enough to defeat the preferred candidate of Hispanics, 

The math just doesn't work that way. 

Q. Does that mean that the third Gingles 

precondition isn't present with respect to Hispanic 

voters in the City?

A. Well, if we were looking at it today, and the 

City of Miami were still using at large elections, I do 

not think -- and this is an opinion, I do not think that 

there would be a viable case today, under Section 2 or 

the 14th Amendment, on behalf of the Hispanic voter, 

because there's a very great likelihood that you would 

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have five Hispanic City-wide elected Commissioners on 

the City Commission. 

Q. So, Mr. De Grady, at the preliminary injunction 

hearing, testified that you found -- you confirmed that 

the three Gingles preconditions were present for 

Hispanic voters in the City?

A. Yes.

Q. Do you think that, at the time you did that 

analysis, that was incorrect or correct, based on what 

we've been discussing with Hispanics being a majority of 

the City electorate? 

A. I think doing the analysis was correct, yes.

Q. And the conclusion was that the third 

precondition was present for Hispanics?

A. Well, I mean, I did find that there was 

evidence of racially polarized voting. Was it 

sufficient to usually defeat their preferred candidate? 

Today, probably not, but has it existed in the past -- 

and very often, the way the Hispanic voters vote, versus 

the way that Black voters vote, is different. And so, 

to get a baseline, again, of how do Hispanic voters 

vote, that analysis needed to be done.

Q. Okay. That makes sense. Thank you. 

Did you use -- I guess, so you did this -- you 

did an analysis, RPB. Gingles preconditions are 

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present. At a certain point, draft maps are being made, 

right? 

A. Right. Well, as I said, the first thing I did 

was draw a present -- well, a 2020 map, using the then 

existing districts, to see if we had a problem, given 

the population growth. You know, if, for instance, the 

population in each of the five districts had grown 

uniformly, then, there wouldn't be a need to redistrict, 

because there would be no substantial deviation from the 

Black population. So that was the first thing that I 

had to do, and then look at that, to see where, 

basically, the growth had taken place, just of the gross 

population.

Q. So I want to fast-forward a little bit to when 

draft maps are being drafted. 

A. Okay.

Q. Who was involved in that process? How did that 

play out?

A. It was me, sitting here, in my garage office. 

I have got a 42-inch high definition resolution monitor, 

because I have vision problems, and it's great to blow 

it up and -- I mean, your head is about two feet tall, 

from where I'm sitting right now, and then I just 

started looking at the maps and trying to -- because 

before we started drawing maps, we did go before the 

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Commission, we gave them a breakdown. I think -- Todd 

has a report. I don't know if you've obtained it. And 

I think that we even did a PowerPoint on where the City 

was, in terms of population, where the growth had 

occurred, which districts were above ideal population, 

and which districts were below ideal population, given 

that growth. 

And I believe the first hearing we had with the 

Commission, we asked them to lay out for us the commonly 

used criteria that they may want us to emphasize, things 

like retaining the core of existing districts, whether 

we were going to use a Congressional standard of 

deviation, which meant, as close to zero as possible, or 

whether we wanted to go within the maximum limit of, you 

know, up to 10 percent deviation from the highest to the 

lowest population district, whether we were to look at 

communities of interest, which they understood to be 

neighborhoods, whether we were going to use natural or 

man-made boundaries. 

We also made them aware of the fact that we 

could not, and I, frankly, would not, try to break up 

census blocks. You know, because in some instances, 

I've been aware of someone saying, "Well, I know that 

block there. I want this apartment building, which is 

over here, but the rest of it, I don't want." No. If 

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it's a census block, that's what you're getting. And I 

didn't see the -- I also went through to see if there 

were any anomalies in the data. From the censuses we 

used, there was an error that put, I believe, a small 

residential neighborhood, with only about 10 houses, 

they gave a population of like over 500 people, and so 

something went wrong, something got inputted wrong, but 

the time for the City to have notified the Census Bureau 

had expired. So I could not go back there and say, even 

though it says this number, 500, I know that it's 

probably about maybe -- maybe 80, so I'm going to use 

that figure, because I had to use the 97-141 data that 

was given to me, and that's what I drew it on.

Q. So you were drafting different options using 

the criteria that the Commission had adopted in the 

Commission Meeting?

A. Yes.

Q. At that point, had you met with individual 

Commissioners yet?

A. I don't recall. I think I may have, because 

they -- one of the criteria was to keep the core of 

existing districts. I think I may have made an attempt 

to equalize out the populations, and then used that as a 

map, and went with Miguel and we sat down. I believe I 

made a 24 by 36 map, you know, large format print, for 

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each of the Commissioners, and as I was going along, I 

believe I also made sure that Todd got one.

Q. And that was before you presented the very 

first draft map in early February 2022?

A. I believe so, and we got some feedback from 

some Commissioners.

Q. Do you remember the feedback that you got?

A. We got some that said, "Oh, I really like this 

neighborhood. I have friends who live over here. I 

want them to stay in my district. Can you do that?" 

And it was always, "I've got to look at the 

numbers. And so if I can do that, everything balances 

out, I'll see what I can do. If I can't, I'll let you 

know." 

Q. Do you remember any feedback that you got from 

Commissioners that you did incorporate into the drafts 

that you presented in public meetings? 

MR. LEVESQUE: Objection, and I'm going to 

instruct him not to answer on the basis of 

privilege.

BY MR. WARREN:

Q. Mr. Cody, will you follow that instruction?

A. I guess I'm going to. I don't -- once -- 

privilege is kind of like honor, once you lose it, it's 

kind of hard to get it back. So I will heed George, but 

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I would not take it as an offense if you ask the Judge 

or the Magistrate to consider the issue, and if you want 

to come back, we can come back.

Q. Mainly, right now, I just want to be clear what 

the scope of the privilege is and what you're refusing 

to answer on the grounds of privilege. I think it may 

be quick and easy for me to ask whether conversations 

that you had with Commissioners, outside of public 

meetings, whether you'll refuse to answer questions 

about those conversations?

MR. LEVESQUE: I would certainly be 

asserting privilege for those conversations, 

based upon attorney work product, and 

instructing him not to answer, if that helps 

you.

MR. WARREN: That helps. 

BY MR. WARREN:

Q. Okay. So, another question I have about the 

work you were doing on draft maps relates to District 5 

and what role, if any, you played in analyzing whether a 

particular draft configuration of District 5 would 

continue to perform for Black voters. 

A. I did that throughout.

Q. And could you walk me through what you did when 

you were looking at that?

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A. Well, the voter registration data that we had 

was imperfect, because the State of Florida and any data 

vendor that you go to, when you ask them to give you 

voter registration data, they have data for a precinct. 

They have not geocoded individual voters to individual 

blocks. So if, for instance, you take half of the 

voters or half the population of a precinct, you are 

assumed to take half the voters and an even half of 

every demographic constituent. 

So that may not be the case. You may have, 

within that block, a building, which, for instance, is 

overwhelmingly Black and a building over here which is 

overwhelmingly White, but in terms of that software, it 

will say, okay, you took half of the Blacks and half of 

the Whites or the Hispanics or whoever, while it may not 

be true. But when it comes to things like that, you're 

doing this based upon guesstimates. 

To give you a -- besides a hundred percent 

data, it's all pretty much based upon understanding and 

experience and that kind of thing. So I would look at 

the data, but I would know that, depending on the 

precincts that we split -- and we didn't do it based 

upon precincts, because the County was in the process of 

reprecincting the entire County and were waiting on the 

City of Miami's district lines, and that's how they 

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would use those as cookie cutters, and then get the 

smallest component, and that would become a precinct. 

So if we used the 2000 year precincts as our 

building blocks, that wouldn't translated over to what 

would happen in the plan, after it had been adopted, 

under the new precincts.

Q. So a couple of questions from that. One is, 

did you have a geocoded voter file that you were looking 

at or no?

A. No.

Q. Okay. And, second, when you said you were 

looking at data to analyze whether a potential district 

could perform, what exactly were you looking at?

A. What I was looking at was, again, when the 

district -- when I would look at a conceptual district, 

I would use the FloridaRedistricting.gov software to 

generate reports, and I would say, okay, I want to see 

how -- you know, the population, the demography, the 

voting age population, the registered voters, you know, 

the constituencies of the registered voters and then 

how, for each of those component elections, did those 

candidates do. 

Q. Do you have a particular threshold of Black 

voting age population that you were mindful of when you 

were reconfiguring District 5?

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A. I was looking to get it as high as possible. 

In years past or cycles past, I believe that we got up 

to in the 60s. That was not possible, just due to the 

gentrification that had gone on in District 5. You 

know, the hurricane that we had back in the early '80s 

(sic), Hurricane Andrew, was the start of the -- well, I 

mean, if you want to go back -- you can go back into the 

'50s, when they moved I-95 directly through Liberty City 

and Overtown and split that community, but then 

Hurricane Andrew helped accelerate the depopulation. 

A lot of those people moved to like Miramar and 

South Broward, and that led to re-development of that 

core inter-wedge or intercity wedge, you know, that 

District 5 is.

Q. You mentioned, past cycles. Is it fair to 

characterize your approach or the City's approach in 

2003 and 2013, that, in District 5, you were trying to 

get the Black population as high as it could be?

A. Well, we were trying to get the Black 

population high enough to give us a performing district, 

in light of the level of polarization that we had seen 

in those particular, you know, ten-year cycles prior to 

our sitting down and doing the maps, you know. You 

know, I wasn't worried about how voters were voting in 

the 1980s when I was doing the 2010 election, because a 

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good many of them were dead, and, you know, new 

populations have moved in, but focusing mostly on the 

ten years prior. 

But I did -- I did want to, in this election, 

to get that number as high as possible, because there 

was not sufficient population to draw a second district 

where Blacks could have -- Black voters could have a 

determinative outcome in the election. If I put them -- 

a number of them into it, it probably would have turned 

out to be two or three, maybe four percent of the 

district population, in District 2, that would not have 

made, you know -- even with the Black growth in voters, 

it would not have been determinative, and putting them 

in District 1 would not have an effect on a district 

that still was going to be 70 percent Hispanic. 

So, to my mind, there would not have been no -- 

I was not diluting anybody, and I was not packing 

anyone, and I was not cracking any population group.

Q. So because it wasn't possible to increase the 

Black population in any of the surrounding districts in 

a way that would have a significant impact on the 

outcome of an election, it made sense to get the Black 

population of District 5 as high as it could be? 

MR. LEVESQUE: Object to the form. 

You can answer it. 

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THE WITNESS: Okay. Yeah -- well, given 

the trends that I had seen over the twenty plus 

years that I've been working on the City of 

Miami's redistrictings, and having a pretty 

good idea that this outflow of population was 

going to continue happening, I didn't feel, for 

instance, that putting a district at, let's 

say, 45 percent, crossing my fingers, that 

enough White voters or second generation 

Hispanic voters would vote with them, to give 

them the candidate of their choice, was 

something that I wanted to put all of my chips 

on, and I thought it was safer to try to retain 

as many of the Black voters -- you know, Black 

voting age population within District 5.

BY MR. WARREN:

Q. And you felt that you achieved that in the map 

that the City eventually passed?

A. Yes, the one that they passed when I was 

working with them, yes.

Q. Okay. That's helpful. Thank you. 

You mentioned one metric that you were looking 

at was Black voting age population. 

A. Yes.

Q. And you also mentioned that you were looking at 

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registered voters, which was in the legislature 

software? 

A. Yes.

Q. How were you factoring in voter registration by 

race in your analysis of whether a given configuration 

would perform for Black voters?

A. Well, I was looking to see if Black voters 

would constitute nearly a majority. I mean, the 

standards that have been adopted by the Court, going 

back to Thornburg and coming down through the cases that 

have been decided since then, they say you draw 

districts based upon population. I was mindful of what 

voter registration was by race, but I did not -- again, 

because of the inherent inaccuracy of the data, because 

once you start splitting precincts up, you're just 

getting a guess of what you would have, the best number, 

in my mind, was Black voting age population, as opposed 

to registration. 

You know, registration kind of gave you a 

thumbnail as to where that district would be, but only 

really a suggestion. So I did not put a lot of weight 

on that.

Q. And what about election results for past 

elections?

A. Well, that was included in the software, and so 

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when I would generate a report, I would go out to the 

columns that included the different races, you know, all 

of it. It had, in the software, all ten years' worth of 

statewide elections, and so I would generate all of 

those, some of which I would not pay a whole lot of 

attention to, some of them, in terms of the Black 

population, were very important. 

I can tell you that the Black population in the 

City of Miami did not support Marco Rubio in his last 

election. So if you wanted an example of -- you know, 

but the Hispanic population in the City of Miami voted 

for him overwhelmingly, you know. But as I said, it's 

an indicator, it's not necessarily, in my mind, 

determinative. You know, you have to fall within the 

population guidelines, within the margins that are 

allowable, and then these other criteria become, you 

know, less certain, but certainly things to be evaluated 

and considered.

Q. And when you're referring to, you have to fall 

within the population guidelines, are you talking about 

total equal population or something else?

A. Yes, total population. 

Q. Okay. When you were looking at election 

results from past elections, did you have a particular 

candidate vote share that you said, well, if this drops 

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below this threshold, that that's a concern, or if the 

Black preferred candidate is not going to prevail in a 

certain percentage of these elections that I'm studying, 

that's going to be a problem? Did you look at it that 

way or not -- 

A. I looked at it more in terms of -- I'm sorry, 

did you want -- 

MR. LEVESQUE: If I can, object to the 

form.

THE WITNESS: Okay. Sorry. 

Yeah. I didn't set out with a threshold 

and said, this is the bright line that I'm 

going to apply, but I would just look at the 

results in each of the elections, for each of 

the generated districts, and I would see, you 

know, for instance, in District 5, how did that 

vote work out, how did it work in the other 

four districts for each of these candidates.

BY MR. WARREN:

Q. Do you recall, in any map that you were looking 

at for District 5, was there ever an instance where the 

Black preferred candidate in any of the past elections 

was not going to prevail?

MR. LEVESQUE: Objection. 

MR. WARREN: What's the basis of the 

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objection? 

MR. LEVESQUE: When you're referring to any 

of the past maps for District 5, it's not clear 

if you're talking about for 2022, 20 -- it's 

pretty broad.

BY MR. WARREN:

Q. Any of the maps that you were drafting and 

looking at in the 2020 cycle, when you were looking at 

District 5 and looking at past election results in the 

legislature software, was there ever an instance where 

the Black preferred candidate would not have prevailed 

in the draft boundaries of District 5?

A. I don't recall any instance where that 

happened.

Q. Would that have been a concern, if there had 

been an election where the Black preferred candidate 

didn't prevail? 

A. It would have been, because it might have been 

an indication that either there's a problem with 

political cohesion, but that sort of begs the question 

of, is that a Black preferred candidate, and I would 

want to do some further analysis. For instance, in 

Miami-Dade County, at one point, we had eight County 

Commissioners who were elected from residence districts 

but at large, and an at large elected mayor, all acting 

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as a legislative body, not an executive major. 

We did, at one point, have a Black County 

Commissioner, we had a Hispanic County Commissioner, but 

neither one of which were the preferred candidate of 

either of those communities. So, yes, using that as an 

example, I would say that would concern me, and that did 

concern me, in that case. And one of the reasons I got 

involved and volunteered to be a non-paid attorney for 

so many years was that I saw that pattern and those 

candidates didn't have an equal opportunity to get 

elected. 

Q. So going back to analyzing the 2020 draft maps, 

if you had -- let's say you had to draw a district and 

there were few elections in the legislature software 

that the Black preferred candidate would not have 

succeeded within the boundaries of that district, you 

looked at what was going on underneath the surface there 

and you find that, well, in that election, Black voters 

were not as cohesive as normal, that would impact your 

analysis of how relevant those elections were? 

A. I can't answer that question. You're asking me 

to speculate based upon a whole bunch of different 

layers of what ifs. I can tell you what I did. I'm not 

going to, frankly, speculate on what I would have done 

had some of the data been different. I'd have to look 

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at it. 

Q. Okay. Going back to, you had mentioned that 

you just weren't going to draw a District 5 with a 45 

percent Black voting age population; is that a fair 

characterization?

A. If I could draw one that was higher, yes. If 

45 percent -- if an influence district was the best that 

we could have accomplished, I would have encouraged the 

County Commissioners -- excuse me, the City 

Commissioners to adopt a plan that at least does that, 

and I think that's backed up by the recent decision out 

of the Supreme Court involving Alabama, where they said 

you had to draw one Black majority district and one 

strong influence district. So I think that there is 

some merit in drawing an influence seat, but where I had 

an instance where I could draw a majority Black voting 

age population district, I would have said, we need to 

draw that -- 

Q. I see. 

A. -- especially where the excess population above 

that couldn't be moved to a neighboring district where 

it would help determine the outcome of that election, in 

terms of the Black preferred candidate. But, again, 

looking at this area of the law, as far as I understand 

it, a minority group that could only be four or five 

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percent of a district doesn't have the right to be in 

another district. The Supreme Court has drawn the 

lines. 

Q. I see. 

So, because you could draw a District 5 with an 

over 50 percent Black voting age population, it wasn't 

advisable to draw one below 50 percent?

A. I didn't think it was advisable, although -- 

no, scratch that, I didn't think it was advisable. 

Q. And in the end, the Commission did adopt a 

District 5 with over 50 percent BVAP? 

A. Yes.

Q. Okay. Going back a little bit to past cycles, 

are you -- do you remember any discussion of the 65 

percent rule coming up in past redistricting cycles?

A. Oh, yeah.

Q. Can you talk about what the 65 percent rule is 

and how it factored in, in previous decades? 

A. Okay. Well, my understanding from just being a 

student of this whole process, especially coming out of 

an era, the '60 and '70s -- well, I mean, going back to 

the '60s, when Black -- we had to enact a Voting Rights 

Act to ensure that people had an opportunity to register 

to vote, and when dealing and working through that whole 

inertia against registration, putting a district at 

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something like 65 percent, if you could, would mean that 

you were building a castle around this voting 

population. It was secure from outside onslaughts of 

people not wanting to vote the way -- and would give 

this group, as the Court has said, a reasonable 

opportunity to elect a candidate of their choice. 

So, yes, 65 percent, at one point, early on, 

was one of the bright-lines, and, then, you know, in the 

literature, it was like, well, what if you could only 

get 62 percent, was 62 percent okay. We did draw large 

percentage districts in the City of Miami, in terms of 

Black population, in the 2000, 2010 census, but that's 

because we had the population. 

I mean, I don't know if you're familiar with 

Midtown. Okay. Midtown, that re-development, moved a 

whole lot of people out of the City of Miami, the 

overwhelming majority of whom were Black, and the people 

who could afford to move into the condos that they built 

was not the population that was moved out. So that 

decreased the Black population.

Q. In 2003 and in 2013, do you recall a 

bright-line, like 65 percent, being used in drawing 

District 5?

A. I believe we were -- well, we were always 

looking to see was there a population large enough and 

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compact enough to do as many districts, as could be 

done, in terms of majority. And then we would say, 

okay, well, how high a majority could we do. At no 

point did we ever see that we could do two districts, 

and that continued. 

One of the questions was, when we got the 

census data, and, you know, Miguel and I were hired, I 

went to go, just to make sure -- I pretty much knew, but 

I wanted the statistics to show me. 

Q. Okay. 

A. And so, you know, I looked at the present -- or 

at least the 2020 census figures for District 5 and saw 

that it was, I believe, the least populated district in 

the City. Again, I have not reviewed, and it's been a 

year and a half since I looked at the stuff, but 

District 5 was way underpopulated. So part of the 

challange is, how do we bring people in, without 

diluting the cohesive minority group that's here, and so 

we had to work around the edges.

Q. And looking for areas with as high a Black 

population around the edges to add, as you could?

A. As we could, yeah. 

Q. Okay. 

A. I mean, it might have been easier had they 

said, you know what, forget the boundaries, start with a 

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fresh map and start drawing districts, and it may have 

been easier to get something else or get something 

higher, but having been told to use the core of the 

existing districts, and the other criteria that's going 

through those different check boxes, the District 5 that 

we came up with in that plan was the one that fit those 

criteria and met our understanding of the law.

Q. Okay. I wanted to follow up on something that 

you said about past cycles. You know, you said that 

first we look to see whether you could draw more than 

one Black performing district in every decade. You 

confirmed that it's not possible, right?

A. Right.

Q. And, then, at that point, the goal then is to 

shore up the one Black performing district with as high 

a Black population as you can get?

A. Right. Now, one of the things that was talked 

about publicly by Commissioners during all of those 

cycles was, should we amend our Charter to add more 

seats? The Dade County Commission went from eight seats 

and the mayor to thirteen, because that's what they 

proposed during the remedy phase that we had in that 

case, and so a Judge could order, you know, via the 

Supremacy Clause, a remedy that is not provided for in 

your government documents, and especially since they 

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were the ones that proposed it. You know, we did get 

some citizens who intervened, who complained about what 

the County did. So, I mean, I'm aware of it, and had we 

gone to seven or nine, could there have been more 

African-American majority voting age population 

districts, very possibly. 

I didn't do a full analysis. My back of the 

envelope was, maybe, but they first had to amend the 

Charter, and to do that, they had to take up a Charter 

amendment election or get sued under the Voting Rights 

Act and offer that as a settlement, but dealing with the 

situation I had before me, yeah, I could not -- I could 

not, in any of those cycles, see a way to draw two Black 

voting age population districts, even setting aside 

would they perform or not or do you have an opinion as 

to whether they would perform, just in terms of those 

numbers, no.

Q. So, knowing that, then, the goal is to shore up 

the existing district with as high a Black population as 

possible, right? 

A. No. The goal is to draw a district that allows 

the members of the cohesive minority group to elect 

their candidate of choice, and, again, given the amount 

of polarized voting that I saw, I did not see the sense 

in importing large numbers of, especially, Hispanic 

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voters, into District 5, and, then, saying, let's cross 

our fingers and hope that it performs, when I know that 

if I had kept the Black population, voting age 

population, there, it would very probably perform, where 

if you move that population out, it would be a coin 

toss.

Q. You say it would be a coin toss. Is that 

assessment looking at recent election results or 

something else?

A. It's based upon the analysis that I had done, 

and also my understanding of the political conflicts 

between non-Hispanic Blacks, Hispanics and non-Hispanic 

Whites.

Q. Okay. 

A. And so diluting the Black population in 

District 5 below a majority, and especially, in light of 

the likely trend of the deforestation, if you will, of 

the Black population in that district, it didn't make 

sense to me to try to calculate what today is the bare 

minimum that will perform in this next election cycle, 

and not try to take into account movements of population 

over time. We did that in -- after the 2000 census. We 

did that during in the 2010 census. We looked at 

population trends during this cycle, too. We were not 

interested in just making sure that a Black preferred 

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candidate got elected from District 5, in 2023, and then 

through the remaining elections, until the next 

redistricting cycle, we didn't care. We tried to take 

that into consideration. 

Q. You mentioned relying on population trends to 

make that prediction? 

A. Yeah. Well, I mean, one of the things that we 

looked at in past cycles, I mean, this is -- again, I 

don't know if you're from Miami -- 

Q. My family is. 

A. Okay. Well, if you grew up down here, and you 

knew Bill Sadowski, you probably grew up down here, but 

I don't know if you recall, but on Biscayne Boulevard, 

in Downtown, right across from the water, there were 

numerous empty areas that were parking lots, and the 

developer owned them, and didn't do anything but have 

those parking lots. 

Those have been developed now into these 

massive condo towers, and the people who moved in, 

again, just like Midtown, were not African-American 

voting age population. So you've had both, a 

diminution, in terms of the gross numbers decreasing, 

and also the numbers of other ethnicities increasing, 

and what we did was try to account for the fact that 

we're probably going to continue that pattern of either 

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the non-Hispanic Black population increasing and/or the 

none -- well, the Hispanic; and the Black population 

decreasing.

Q. So based on past history and the past trend, 

the expectation is that that trend will continue?

A. Yes. I expect it to continue.

Q. Okay. One second. 

Going back to past cycles, again, I'm trying to 

relive the history, since you've got so much of it in 

your head. 

A. That's a nice way of saying I'm old.

Q. The role that the 65 percent, you know, rule of 

thumb played in the Commission's crafting of District 5 

in 2003 and 2013, would you say that the Commission was 

applying a 65-percent rule of thumb in those cycles?

A. I don't recall. I honestly just do not recall. 

Also one of the hazards of being old.

Q. I'll have to take your word for it. 

A. I have socks older than you, so --

Q. Okay. I don't have a response to that. 

I think this is most of what I wanted to talk 

about. I guess, there was a lot of discussion in the 

Commission meeting about gentrification and guarding 

against the impact of future gentrification in District 

5. Beyond what you already stated, how did that factor 

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into your assessment of whether a potential District 5 

would continue performing?

A. I mean, I knew through the meetings that they 

were concerned about that. That's something that I had 

been aware of, for the three election -- three census 

cycles that we, you know, worked on, and I've seen. So 

what they said really didn't have a whole lot of impact 

on me or my approach.

Q. Okay. I'm just looking over to see what else I 

want to wrap up with. 

Your involvement in the process concluded after 

the Commission passed the map in 2022?

A. Yes. Well, there were some cleanup things I 

had to -- I think Todd couldn't read the thumb drive 

that I gave him at that last meeting, so I had to 

regenerate that, but in terms of doing work or analyses, 

no.

Q. Okay. Okay. Going back to -- you said, you 

know, you would not have advised drawing a 45 percent 

BVAP district because of the risk that such a number 

had, and the fact that you could draw one over 50 

percent; is that a fair characterization?

A. Right. And that there was no benefit to be 

achieved in another district by moving that Black 

population to another district.

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Q. Okay. Okay. And those reasons -- I guess 

those are -- it almost doesn't really matter, then, 

whether a 45 percent BVAP district, looking at all of 

the recent elections where there's racially polarized 

voting, would perform for the Black preferred candidates 

in those elections, because of the other reasons that 

you just mentioned, it just doesn't matter?

A. Well, again, you come at this from the 

standpoint of, with that software, you are 

disarticulating the election results for a precinct and 

breaking them up evenly for all of the blocks within 

that precinct. So it doesn't necessarily follow that a 

45 percent district will give you that result, because 

you don't know where, within that district, those 

particular voters are. That's only for us to associate, 

at least legally, here's the ballot that was slid into 

the machine, and here's, you know, Mrs. Alvarez. I can 

associate her, and I know how Mrs. Alvarez voted, and if 

I can do that with enough people, I can tell you I know 

exactly how these people, regardless of where they are, 

which blocks they're in, I can tell you how they voted. 

You can't do that. 

So the best you do are estimates, and I am not 

comfortable saying that, at 45 percent, you're going to 

get the results, because that data doesn't exist, just 

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like the citizenship data doesn't exist on a block 

level. It is data which comes from a community survey, 

just like a political polling survey. It's not tied 

down to each block and each house. I get, in the 

computer, the surveyors will give a number, which I 

believe is a rolling five-year average, of citizenship 

within the geographic area, meaning the city or the 

county or the state, but not what is it in this 

particular block bounded by US-1. 

So I can't say, I know that I could draw a 

district with this, because I applied the City's 

citizenship number city-wide, either in general or for a 

particular ethnic group, and that gives me the 

citizenship level in this district. You can't do that, 

and you can't say that, at 45 percent, you're going to 

get that result. I think you need to go as high as 

possible, not to the point where you're packing. 

I mean, I have seen instances, in other cases, 

where they wanted to take a Black district to 90 

percent. The attitude, when I did the Carrie Meek case 

on the County was, we don't mind there being a Black 

County Commissioner. We, the White community, just want 

to be the one who picks him. And so I think that you 

run too much risk of uncertainty, if you say that we're 

going to assume the data exists and shows certain things 

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concretely, when it doesn't. 

Your background is kind of blurred. Your face 

is clear. The background is blurred. Your face is a 

hundred percent data. The blurriness behind you is the 

survey data, and I can tell that you have some kind of 

painting with yellow and orange over your left shoulder. 

I can't tell you what it shows or who it is, but I can 

get an indication that there's a painting behind -- or 

an illustration behind your shoulder. That doesn't mean 

that I can tell you exactly what that is. 

And if you say, we're going to use citizenship, 

we're going to take that voting data and use it 

concretely, when that's not what it's really there for. 

You're inviting error and mistake.

Q. So because there's a margin of error in the 

reconstituted election results, when you're splitting 

precincts, because there's a margin of error in citizen 

voting age population in the American Community Survey, 

you know, you're suspicious of relying on that, it's 

better just to use -- 

A. Well, no. It's not -- I didn't even get into 

margin of error. What I talked about is, there is no 

way to disaggregate the information from the city level 

down to each individual block, and so that would be like 

me plucking a hair from your head and saying, I can tell 

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what color your eyes are. Those two things are not 

related. So there's no way for me to just say, I've got 

this huge number, the entire city. You know, I'm going 

to assume that the citizenship level for the entire city 

is what's in this particular City block. You can't do 

that. 

I mean, it may be tempting, and from a 

marketing standpoint, if you're a marketer and you got 

your MBA in marketing, if you say, I want to sell beans 

to the residents of this community, and I know that you 

have a certain number of Hispanics who like "frijoles," 

and, you know, our study shows us that our Black 

residents prefer three bean salad, that may tell you 

something, but it's not going to tell you about the 

behavior in this one individual household. Citizenship 

data is not going to tell you what that is, in one 

particular household, and if you can't do that, you then 

can't aggregate it out into a perspective district that 

you've put together. It doesn't work.

Q. Are you familiar -- and this is reminding me of 

this -- are you familiar with the Census Bureau's use of 

differential privacy in this past census?

A. Somewhat.

Q. It brings to mind some of the same issues with 

imprecision or error in the -- 

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A. Do you mean the fact that if they have a very 

low population in a particular census block, they will 

suppress the data? So, I mean, if you know that it's in 

a farm area and there are two households that live on 

this particular block, we will not report race, 

ethnicity, other factors, at that block level, for that 

block, because we don't want to -- or just one family 

living there, we don't want to give data so somebody 

could target them. Is that what you're talking about 

of -- 

Q. Yeah. My understanding is that every census 

block had some level of uncertainty injected into it 

now. 

A. It depends on what you're trying to protect. 

You would -- I don't know of any of the census blocks in 

the City of Miami -- let me take that back. I'm not 

aware of there being a substantial number of census 

blocks that only have one or two residents. We do have 

a number that have no population, but those are out in 

the bay, but I don't know -- I would have to look. I 

don't know of any that would have that population data 

suppressed, but it would show up once you start 

aggregating.

Q. So your understanding of differential privacy 

is that, unless you're talking about a census block with 

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an extremely small number of a couple of people, that 

the data is accurate?

A. Well, no. The data is accurate, but the data 

may not be -- the data at the block level may be 

suppressed. It's not that it's not accurate. You may 

not be able to see what's in that particular block, but 

when you pulled back and you saw, at the next level of 

geography -- let's say you said, okay, show me the City. 

Those would have those two people in that tiny, tiny 

de-populated district included in that number, but when 

you went back down to that regular level, you wouldn't 

be able to see what the characteristics are of that 

particular -- and this is -- you know, again the 94 -- 

97-1 -- it's either 97-141 or 94-171, yeah, but it is 

not that we have that each district has an amount of 

error built into it. 

There may be error in the sense that people 

didn't respond and -- my son worked as an enumerator 

for the census many, many cycles ago, and it may be that 

you had to go out, knock on doors, for somebody who 

didn't respond. In the end, you can accept, by talking 

to a couple of neighbors, "Do you know who lives there? 

Do you know how many kids they have? Do you know if 

anybody is over the age of 18," and with several 

sources, you can say, okay, we feel comfortable in 

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reporting, for that household, this is the number, and 

that may be an error, but just like that 550 person 

block -- you know, a ten-house block was an error, sure. 

There are errors in the census, but when you 

come to redistricting, you start with the assumption 

that that congressionally mandated data, which Congress 

this last cycle through said, we're not going to collect 

census data -- I mean, they had been doing it on the 

long form, but they said, we're not going to do it on 

the long form or the short form, the short form being 

the a hundred percent, everybody got those questions. 

And, then, a certain percentage got the rest of the 

questions, characterizing them as the long form people. 

You know, but the hundred percent data, you 

have to assume it's accurate; population, voting age 

population, population by race, population by ethnicity, 

voting age population by race and ethnicity. And, then, 

beyond that, you know, you can take into account things 

like the Zimmer factors, what is the income level, and 

you could say, okay, I can get that data for the City, 

and I know that people, who have a lower income -- 

especially during the '70s, people with a lower income 

level tend to vote at lower rates than people of a 

higher income status. You could take that into account, 

but you have to understand the differences between the 

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different kind of data, and to say that, well, there's 

uncertainty built into all of this, well, there might 

be, but the law presumes that the hundred percent data 

is correct, and that's what we draw congressional 

districts on and that's what we draw state districts on, 

and that's what I used in drawing these districts.

Q. A question, going back to the precinct election 

results and using the election results from the 

legislature software in estimating what the given 

election results would be in a proposed district, do you 

know how the legislature used the election results in 

their software in analyzing VRA compliance?

A. I'm not sure. In 2000, Miguel De Grandy and I 

represented the Florida House of Representatives, and 

Jason Unger was part of our team. So I know that the 

data was available at that point. I'm not aware as to 

whether state legislators looked at it, other than from 

the standpoint of, let me see the district that I live 

in, how did they vote for this candidate or that 

candidate. 

Q. Talking about not 20 years ago, but this last 

cycle -- 

A. Right.

Q. -- do you know how the legislature used the 

election results in its software in the 2020 cycle?

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A. No. No.

Q. Okay. I think I only have one other question, 

which is just to clarify, because you had mentioned 

that -- well, you had mentioned packing, and I think you 

said that a goal was to get the Black, as high as 

possible, but not to the point where you're packing, and 

I just wanted -- 

A. Correct.

Q. -- to clarify what your understanding of 

packing is. 

A. My understanding of packing is that, that is 

concentrating a population of a protected class, that 

could have formed a majority in one -- well, in more 

than one district, for instance, into to just one 

district, where if I have an area that's a hundred 

percent African American, and I say, no, no, I'm going 

to -- well, I can make a district that's a hundred 

percent African-American population, or I could make, 

you know, if I wanted, a 150 percent African-American 

district, but I'm going to split that population among 

three districts, so that Black voters can't elect a 

candidate of choice in any of the three, but if I had 

done it in two, I could do it, but instead, I'm going to 

do it in one, and pack them together like sardines, and 

they get one elected voice in the representative body 

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that, you know, we're talking about.

Q. First of all, if you're able to draw a 150 

percent African-American district, I think you should 

increase your fee, but -- 

A. Well, no. I mean, if you had enough 

population, so that you could do -- you have enough 

population, that's compact, and it's 150 percent of the 

ideal district population, and you decide to split that 

out over three or four or five districts, that's where 

the problem comes in, and you try to put, let's say, all 

of them in one, and then you dilute the rest, that would 

be packing.

Q. Okay. 

A. Now, obviously, it's not the only example of 

packing, but just off the top of my head.

Q. That makes sense. So, to summarize, to you, 

packing is where you increase the concentration of a 

protected class in a district, but if the levels were 

decreased -- or that's done at the expense of creating 

an additional majority seat nearby?

A. One or more majority seats, yeah.

MR. WARREN: Okay. I don't think I have 

any more questions. Thank you. 

CROSS EXAMINATION

BY MR. LEVESQUE:

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Q. Mr. Cody, I've got just one question on that 

last topic that you were discussing. 

A. Sure.

Q. If you were able to draw District 5 with a max 

Black population, ignoring all of the other directions 

that the City Council gave you, such as keeping the core 

of the existing districts, voter cohesion and some of 

the other instructions that they gave -- 

A. Right. 

Q. -- put all of those to the side and draw a max 

Black, would you be able to draw a district that was 

higher than 50.3 percent?

A. Well, without engaging in violating the law in 

other ways, like trying to extend a tendril out the 

width of a street to get a pocket of Black population, 

assuming those rules still exist, and that I'm not, you 

know, gerrymandering, no. Like I could extend -- go 

down 95, the width of 95, until it got to US-1, go down 

the width of US-1, then go up and capture the Black 

Grove and make that part of District 5. Would that 

withstand a legal challange under the 14th Amendment, 

that that was a violation of other voters' rights, I 

don't think. 

Q. So would it be fair to say, then, that the 

population -- the Black voting age population that you 

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captured in the current district was generally 

geographically compact, so that what you've got is 

really what you've got, and there's not really another 

way to draw it, if you're going to do a Black district 

that is a majority Black district?

A. If you're looking for majority, which, again, 

was one of the key words that we saw on the Gingles 

decision, Miguel and I, the goal was to draw a district 

that had a majority Black voting age population, and so, 

yeah, given that as the criteria -- I mean, could I have 

gotten to 50 percent plus one person? Maybe. But it 

wouldn't have made sense in terms of keeping a 

neighborhood together. I pretty much came down to where 

I was trying to make sure that I wasn't dividing a Black 

neighborhood, such that somebody would say, okay, I live 

across the street from you, but I've got this other 

County Commissioner, who may not care about my concerns, 

but you've got the one in District 5, and I got thrown 

out of District 5. 

So I think 51.03 percent was probably the best 

that we could do -- the best we could do within the law, 

without looking at any other criteria.

MR. LEVESQUE: That's all for me, Mr. Cody.

THE WITNESS: Thank you, sir. 

MR. UNGER: No questions from me. 

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MR. WARREN: I think we are done. 

MR. LEVESQUE: Okay. We'll read. 

(Thereupon, the reading and signing not 

being duly waived, the deposition was concluded 

at 11:45 a.m.)

_______________________

DEPONENT

Sworn to and subscribed before me this _____ 

day of __________________, 2023.

 

_______________________

NOTARY PUBLIC

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CERTIFICATE OF OATH

STATE OF FLORIDA :

 SS

COUNTY OF MIAMI-DADE:

I, NIEVES SANCHEZ, Court Reporter, and a 

Notary Public for the State of Florida at Large, do 

hereby certify that STEPHEN CODY, ESQ. appeared before 

me via Zoom and was duly sworn.

WITNESS my hand and official seal in the 

City of Miami, County of Miami-Dade, State of Florida, 

this 19th day of October, 2023. 

__________________________

NIEVES SANCHEZ

Notary Commission Number HH 385498

My Notary Commission expires August 11, 2027

REPORTER'S DEPOSITION CERTIFICATE

STATE OF FLORIDA :

 SS 

COUNTY OF MIAMI-DADE:

I, NIEVES SANCHEZ, Court Reporter and a Notary 

Public for the State of Florida at Large, do hereby 

certify that I was authorized to and did report the 

deposition of STEPHEN CODY, ESQ.; that a review of the 

transcript was requested; and that the transcript is a 

true and complete record of my stenographic notes. 

I further certify that I am not a relative, 

employee, attorney, or counsel of any of the parties, 

nor am I a relative or employee of any of the parties' 

attorney or counsel, nor am I financially interested in 

the action.

DATED this 19th day of October, 2023.

_________________________

NIEVES SANCHEZ

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BAILEY & SANCHEZ COURT REPORTING, INC.

(305) 358-2829

October 19, 2023 

Stephen Cody, Esq.

c/o George Levesque, Esq.

Gray Robinson

333 S.E. 2nd Avenue

Suite 3200

Miami, Florida 33131

RE: Grace, Inc. vs. City of Miami

Dear Mr. Cody:

The transcript of your deposition, taken in the 

above-styled cause on October 10, 2023, is at my office 

awaiting your examination and signature. PLEASE 

TELEPHONE BEFORE COMING IN so that we may arrange a 

convenient time.

Please be advised that unless I hear from you by 

November 19, 2023, I will forward the original of your 

deposition to the deposing attorney, as though you had 

read and signed your deposition.

IN THE EVENT a copy of the transcript is being sent to 

the witness by counsel, kindly instruct the witness to 

make any changes thereto on a separate sheet of paper 

and refer to the page number and line number which 

corresponds to the change desired. DO NOT MAKE THE 

CORRECTIONS ON THE TRANSCRIPT. If you have any 

questions, please call.

Very truly yours,

NIEVES SANCHEZ

Court Reporter

cc: Nicholas L.V. Warren, Esq.

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ERRATA SHEET

IN RE: GRACE, INC., ET AL. vs. CITY OF MIAMI 

DEPOSITION OF STEPHEN CODY, ESQ.

TAKEN OCTOBER 10, 2023

DO NOT WRITE ON TRANSCRIPT - ENTER CHANGES HERE

PAGE # LINE# CHANGE

________________________________________

________________________________________

________________________________________

________________________________________

________________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

___________________

SIGNATURE

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