UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

. . . . . . . . . . . . . . . . 

OHIO A. PHILIP RANDOLPH . Case No. 1:18-cv-357 

INSTITUTE, et al., . 

. Day 3 of Bench Trial

Plaintiffs, . 

. 

 - v - . 

. Wednesday, March 6, 2019 

LARRY HOUSEHOLDER, et al., . 8:58 AM 

. 

Defendants. . Cincinnati, Ohio 

. . . . . . . . . . . . . . . . 

- - - 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE TIMOTHY S. BLACK, THE HONORABLE KAREN 

NELSON MOORE AND THE HONORABLE MICHAEL H. WATSON, JUDGES 

APPEARANCES: 

For the Plaintiffs: 

FREDA J. LEVENSON, ESQ. T. ALORA THOMAS-LUNDBORG, ESQ. 

DAVID J. CAREY, ESQ. THERESA J. LEE, ESQ. 

ELIZABETH M. BONHAM, ESQ. EMILY R. ZHANG, ESQ. 

American Civil Liberties Union American Civil Liberties Union 

 of Ohio Foundation Foundation 

4506 Chester Avenue 125 Broad Street, 18th Floor 

Cleveland, Ohio 44103 New York, New York 10004-2400 

ROBERT D. FRAM, ESQ. 

JEREMY M. GOLDSTEIN, ESQ. 

Covington & Burling LLP 

One Front Street, 35th Floor 

San Francisco, California 94111 

For the Defendants: 

STEVEN T. VOIGT, ESQ. 

Ohio Attorney General's Office 

Constitutional Offices Section 

30 East Broad Street, 16th Floor 

Columbus, Ohio 43215 

Proceedings recorded by stenotype; transcript

produced by computer-aided transcription.

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APPEARANCES (Continued): 

For the Defendants Larry Householder and Larry Obhof: 

PHILLIP J. STRACH, ESQ. 

MICHAEL D. McKNIGHT, ESQ. 

ALYSSA RIGGINS, ESQ. 

BRODIE ERWIN, ESQ. 

Ogletree, Deakins, Nash, Smoak & Stewart, 

 P.C. 

4208 Six Forks Road, Suite 1100 

Raleigh, North Carolina 27609 

For the Intervenors Steve Chabot, Brad R. Wenstrup, Jim Jordan, 

Bob Latta, Bill Johnson, Bob Gibbs, Warren Davidson, Michael 

Turner, Dave Joyce, Steve Stivers, Robert F. Bodi, Charles 

Drake, Roy Palmer III, Nathan Aichele, Republican Party of 

Cuyahoga County and Franklin County Republican Party: 

PATRICK T. LEWIS, ESQ. KATHERINE L. McKNIGHT, ESQ. 

Baker & Hostetler LLP E. MARK BRADEN, ESQ. 

Key Tower Baker & Hostetler LLP 

127 Public Square, Suite 2000 1050 Connecticut Avenue, N.W. 

Cleveland, Ohio 44114-1214 Suite 1100 

Washington, DC 20036-5043 

ROBERT J. TUCKER, ESQ. 

ERIKA DACKIN PROUTY, ESQ. 

Baker & Hostetler LLP 

200 Civic Center Drive 

Suite 1200 

Columbus, Ohio 43215-4138 

Also present: Stephen N. Najarian, Trial Consultant 

Forrest Williamson, Paralegal, Baker & 

 Hostetler 

Law Clerks: Christopher D. deLaubenfels, Esq. 

Hannah Gelbort, Esq. 

Adam Kleven, Esq. 

Caitlin Miller, Esq. 

Madison R. Troyer, Esq. 

Courtroom Deputy: Rebecca R. Santoro 

Court Reporter: Luke T. Lavin, RDR, CRR 

Potter Stewart U.S. Courthouse 

100 East Fifth Street, Room 103 

Cincinnati, Ohio 45202 

Telephone: (513) 564-7500 

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P R O C E E D I N G S

(In open court at 8:58 AM.)

JUDGE BLACK: Good morning. Please be seated. A

couple of minutes of 9:00.

We are back in the open courtroom on Ohio A. Philip

Randolph Institute, et al. versus Larry Householder, et al.

Plaintiffs' counsel is here. Defense counsel is here.

Intervenors' counsel is here.

Intervenors' counsel is standing. Do you require the

Court's attention?

MS. McKNIGHT: Yes. Good morning, Your Honor, and

thank you.

There is one administrative cleanup issue I need to deal

with with the Court regarding three exhibits from yesterday.

JUDGE BLACK: Okay.

MS. McKNIGHT: I've spoken with plaintiffs' counsel

about this issue. The exhibits I'm talking about are I25, I27

and I31. Yesterday, intervenors' moved for the admission of

those exhibits. Plaintiffs lodged objections. The Court

stated that the objections were noted but did not resolve

admission, and I understand that for the record we need to hear

from the Court the magic words "admitted conditionally" or some

similar phrase so that we know that we need to resolve the

objections at a later date.

THE COURT: Does the plaintiff wish to be heard?

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MR. FRAM: Your Honor, that's our understanding also.

We are working out a briefing schedule on the post-trial issues

on admissibility. We hope to run through all that pretty

quickly. But as long as it's understood that our objections

are not waived, we do not have any trouble if that's the

language the Court wants to use about these sorts of exhibits.

JUDGE BLACK: 25, 27 and 31?

MS. McKNIGHT: Intervenors', correct, Your Honor.

JUDGE BLACK: All right. Admitted conditionally.

Did you hear the magic words?

MS. McKNIGHT: Yes. Thank you, Your Honor.

(Intervenors' Exhibits 25, 27 and 31 were conditionally

admitted.)

JUDGE BLACK: Yes, sir.

MR. STRACH: Good morning, Your Honor. I just wanted

to note for the Court, we're pleased to let the Court know that

we have an agreement on the time from yesterday. Yesterday's

time for the plaintiffs' was 262 minutes, for a total time for

the plaintiffs so far of 436 minutes. Yesterday's time for the

defendants, and intervenors of course, was 104 minutes, for a

total time of 275 minutes.

THE COURT: And the plaintiff agrees?

MR. FRAM: Your Honor, we can't top what Mr. Strach

just said. We agree.

JUDGE BLACK: Very well. It's a credit to you. We'll

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CHRISTOPHER WARSHAW - DIRECT 3 - 5 

note that as such.

Are we ready to ask the witness to retake the stand, from

the plaintiffs' perspective?

MS. THOMAS-LUNDBORG: Yes, Your Honor.

JUDGE BLACK: Very well. Defense as well?

MR. STRACH: Yes, Your Honor.

JUDGE BLACK: And the intervenors?

MR. LEWIS: Yes, Your Honor.

JUDGE BLACK: Very well. Is the witness available?

If you'd be willing to approach the stand, sir.

(Christopher Warshaw resumes the witness stand.)

JUDGE BLACK: You are still under oath; you

understand?

THE WITNESS: Yes.

JUDGE BLACK: You may be seated.

Counsel can begin when you're ready.

MS. THOMAS-LUNDBORG: Your Honor, may I approach the

witness? I believe he needs a copy of the binder.

JUDGE BLACK: Yes. Thank you.

CHRISTOPHER WARSHAW 

a witness herein, having been previously duly sworn, testified 

further as follows: 

DIRECT EXAMINATION (Continued) 

BY MS. THOMAS-LUNDBORG:

Q. Dr. Warshaw, if you'll recall yesterday we were talking

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CHRISTOPHER WARSHAW - DIRECT 3 - 6 

about some of the data that you produced in this case.

A. Yes.

Q. And your data was produced in R; is that correct?

A. That's correct.

Q. And what is R?

A. It's an open-source software program commonly used by

political scientists, economists, and scientists more

generally, as well as increasingly in industry to conduct

statistical analysis.

Q. And did you include your elections data source in R?

A. Yes.

MS. THOMAS-LUNDBORG: If we could put up P474. P474

is a Plaintiffs' Exhibit. It was produced natively, as the

slipsheet indicates.

If we could please put up the native file. And if we could

scroll through the native file. And keep scrolling just to the

end to get a sense of size.

Q. Does this native file appear to be your election data that

you discussed?

A. Well, if you scroll to the top -- if you go back to the

top, I think this is the DW-- this is actually the DW-Nominate

data --

Q. Great.

A. -- that's on the ideology of members of Congress.

Q. And that was produced in R?

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CHRISTOPHER WARSHAW - DIRECT 3 - 7 

A. Exactly. Well, I produced a data file and then R code in

order to work with it.

Q. Great.

MS. THOMAS-LUNDBORG: If we could -- and the

plaintiffs move in P74.

UNIDENTIFIED MALE SPEAKER: 474.

MS. THOMAS-LUNDBORG: Sorry. 474.

JUDGE BLACK: Any objection?

MR. STRACH: No objection.

JUDGE BLACK: It's admitted.

MR. LEWIS: No objection.

(Plaintiffs' Exhibit 474 was admitted.)

MS. THOMAS-LUNDBORG: Okay. If we could put up P504.

And this has the slipsheet that says this document was also

produced natively. If we could open the native file.

Q. Does this appear to be a copy of some of the R code that

you said that you ran?

A. Yes, it is.

Q. And when you run the R code, what's the output of the R

code?

A. Well, it outputs all of the tables, figures and analyses

that I use in my report, that I show in my report.

MS. THOMAS-LUNDBORG: Plaintiffs move to admit P504.

JUDGE BLACK: Any objection?

MR. STRACH: Not from the defendants.

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CHRISTOPHER WARSHAW - DIRECT 3 - 8 

MR. LEWIS: None from intervenors.

JUDGE BLACK: They're admitted. It's admitted.

(Plaintiffs' Exhibit 504 was admitted.)

MS. THOMAS-LUNDBORG: If we could put up P507. P507

was also produced natively. If we could publish the native

file.

Q. Is this also a copy of your R code?

A. Yes, it is.

MS. THOMAS-LUNDBORG: Plaintiffs move in P507.

JUDGE BLACK: Any objection?

MR. STRACH: None from the defendants.

MR. LEWIS: None from intervenors.

JUDGE BLACK: P507's admitted.

(Plaintiffs' Exhibit 507 was admitted.)

Q. And you mentioned a moment ago that when you run the R code

you get tables.

MS. THOMAS-LUNDBORG: Plaintiffs would like to publish

P -- and if you'd bear with me for a minute -- 575 -- I mean

475, excuse me. This was also produced natively.

Q. This document, it's titled P475, which is the exhibit

number. The native title is "Declination Data."

When you run the R code, do you get, for example, Excel,

such as this?

A. You do. I would note, though, this is actually Professor

Warrington's declaration data that I used to validate mine.

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CHRISTOPHER WARSHAW - DIRECT 3 - 9 

Q. Thank you.

A. The tables that I output look exactly like this.

MS. THOMAS-LUNDBORG: Plaintiffs move in 475.

JUDGE BLACK: Any objection?

MR. STRACH: None here, Your Honor.

MR. LEWIS: None, Your Honor.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 475 was admitted.)

Q. And then one last document --

JUDGE WATSON: It's 475 or 575?

MS. THOMAS-LUNDBORG: 475 is the last one.

-- which is P570.

Q. When you print an Excel spreadsheet, does it look something

similar to that?

A. Yes, it does.

Q. Okay. And this is a copy of numbers that were run for your

mean median?

A. Exactly. This looks like the output of some of my code.

MS. THOMAS-LUNDBORG: Okay. Plaintiffs move in 570.

JUDGE BLACK: Any objection?

MR. STRACH: No, Your Honor.

MR. LEWIS: No, Your Honor.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 570 was admitted.)

Q. Okay. Let's go back to your -- if we could go back to your

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CHRISTOPHER WARSHAW - DIRECT 3 - 10 

October report, which is Exhibit 571. 

And it is tab 1, for folks following along in paper, and

page 16. If we could look at Figure 2.

What does Figure 2 show?

A. Well, this shows the vote-seat curve that I calculated for

Ohio based on its 2012 election results. So what I did is, I

applied uniform swings to the actual election results where I

think we discussed earlier Democrats received 47 or 48 percent

of the vote in the actual election at the statewide level. So

I applied uniform swings to swing that from 20 percent all the

way to 80 percent. And the -- so that's what the X axis shows.

The Y axis shows the share of the seats that Democrats

received for each vote share. So just as an example, in the

upper right corner of the graph, it indicates that if Democrats

had received 80 percent of the statewide vote, they would have

received a hundred percent of the seats. Conversely, if they

received 20 percent of the vote they only would have won one

seat.

The interesting part of the graph is the blue area in the

middle. So the blue area in the middle, it shows the range of

vote shares that Ohio has actually seen over the last two

decades, where Democrats received somewhere between 41 or 42

percent of the statewide two-party vote share and around 52

percent of the statewide vote share.

Q. And just to walk through the -- what this exhibit shows --

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CHRISTOPHER WARSHAW - DIRECT 3 - 11 

sorry, just to walk through what this exhibit shows, when

Democrats are projected to get 50 percent of the vote, how many

seats are they projected to get here?

A. So it shows that if they received 50 percent of the vote

they only receive 25 percent of the seats.

Q. And then 51 percent of the vote?

A. Still only 25 percent of the seats.

Q. Okay. And then when is the first time in this figure that

Democrats would gain an additional seat?

A. When they receive about 52 percent of the vote they would

get one more seat.

MS. THOMAS-LUNDBORG: If we could publish Exhibit 476.

And that is tab 3 on page 12, Figure 8.

Q. What does this figure show?

Sorry. I'll let the witness get there.

A. This shows the same graph using 2018 election results

rather than 2012 election results.

Q. Now, there appears to be some difference between the 2012

and 2018 results. Can you explain what that is?

A. Sure. Well, there's modest differences between the graphs,

but I'll start first with what's exactly the same. So this

indicates that just like based on the 2012 election results, if

Democrats get between about 42 and 50 percent of the statewide

vote across an entire range of vote shares, they still only

receive 25 percent of the vote. However, based on the 2018

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CHRISTOPHER WARSHAW - DIRECT 3 - 12 

results, now it looks like if Democrats get to 51 percent of

the vote, they pick up two more seats. And they keep -- and

they would stay with 37 and a half percent of the vote all the

way up to 53 percent of the statewide vote. And they don't get

to half the seats until they get 55 percent of the statewide

vote.

Q. Thank you.

A. And I'll just note the Democrats, as the blue -- as the

blue rectangle shows, Democrats have never actually received 55

percent of the vote in recent Ohio elections.

Q. Now, we discussed yesterday that this analysis is related

to responsiveness and competitiveness of Ohio's elections, and

we spent some time talking about partisan bias.

Is there any relationship between competitiveness or

responsiveness of districts in partisan bias?

A. Well, I think these are two different concepts, but the

idea behind the competitiveness and responsiveness measures is

that a party conducting a gerrymander would try to lock in

partisan bias, would try to insulate it against swings and

voter preferences by having an uncompetitive or unresponsive

map.

MS. THOMAS-LUNDBORG: If we could publish Exhibit 572,

which is tab 2, page eight, Figure 1.

Q. What does this figure show?

A. So this figure shows the relationship between the

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efficiency gap, which to remind everyone is one of the measures

that I use -- one of the metrics that I use to measure partisan

advantage in the districting process.

So one of the critiques that someone made of the efficiency

gap is that in order to achieve a neutral efficiency gap, you

might have -- mapmakers might create uncompetitive elections or

uncompetitive districts. But what this graph shows is that,

empirically, there's essentially no relationship between the

efficiency gap and the percentage of competitive elections in a

state.

Q. If we could move to page nine in the same exhibit, and

Figure 2, please. What does Figure 2 show?

A. So this is the exact same graph, but it uses three of the

other metrics that I show -- that I analyze in my report: The

declination, the mean median, and symmetry. And, again, it

analyzes a relationship between the absolute value of these

metrics. So, in other words, if there's more partisan

advantage in the districting process, how does that affect the

number of competitive elections?

And, in general, what it indicates for these metrics is,

actually, that more partisan bias in the districting process

leads to fewer competitive elections; whereas, more neutral

maps actually increase the number of competitive elections.

So I think looking across the different metrics, what I

would conclude is that there's somewhere between little to no

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relationship between partisan bias and competitiveness, and

potentially, actually, that more biased maps decrease

competitiveness. So I think, in general, this concern is

unfounded.

Q. Thank you. If we could go back to Exhibit 571. And we

don't have to publish any specific page at this point, but I

believe in section seven of your report you discuss durability.

A. Yes.

Q. What is durability?

A. Well, durability is the idea that how -- how likely is it

that a particular level of partisan bias in the first election

after a redistricting will endure through the rest of the plan.

So to analyze that, I look at the relationship between the

efficiency gap declination and the other metrics that I look

at, in 2012, which, again, is the first election after the

redistricting plan went into place, and the elections in 2016

and then also in 2018, in my most recent report.

Q. Okay. Let's now go to that section. I believe it is on

page 30 of your report. Now, I believe you measured durability

two ways. You ran correlation; is that correct?

A. Yes. I think I actually did three ways.

Q. Okay.

A. So the first is I just looked at the correlation between

the various metrics in 2012 and 2016, and I found that they're

all highly correlated with each other. So it's not the case

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CHRISTOPHER WARSHAW - DIRECT 3 - 15 

that the various metrics are kind of changing in random ways

between the elections.

Second, I looked at -- statistically, I analyzed, well, how

big are the metrics in 2016 compared to the size in 2012? And

what I found is that they're somewhere between about 60 and 80

percent as large as they were in 2012, which I view as being,

you know, quite a large and robust relationship that indicates,

looking across the nation as a whole, these maps are quite

durable.

Q. And is that the analysis that you just discussed the

regression analysis?

A. It is. So that's -- I'm sorry. That's reported in Table

6.

Q. Thank you. And you said you ran it across the nation as a

whole. So these aren't Ohio's numbers, these are across the

whole data set?

A. Exactly. This is looking across all elections across the

country between 2012 and '16.

And then the third one I was going to discuss is looking at

Ohio, specifically. So I actually compared just the raw values

for all of the metrics in Ohio between 2012 and 2016, and

looking across all of them, in general, they were similar.

There was some more decay in some compared to others, but

looking across all the metrics they're similar in 2016 compared

to what they were in 2012.

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Q. Now, we're looking at the 2016 numbers. If we could go to

the 2018 numbers, which are in Exhibit 476 on page 11. That's

the third tab. And what did you find with the 2018 numbers?

A. So, once again, I found that the 2018 numbers were highly

correlated with the metrics in 2012, and they're about 60 to 80

percent as large as the metrics were in 2012. So again, it's

not the case that these metrics are either bouncing around

randomly or decaying all the way to being sort of neutral or

unbiased metrics over the course of the redistricting cycle.

And then, finally, all of the metrics for Ohio look fairly

similar between 2012 and 2018.

Q. If we could look at Plaintiff Demonstrative Exhibit 75.

Sorry. 74. Now, when you say all of the metrics for Ohio are

fairly similar, is that when you look at the chart of the

metrics?

A. Exactly. So I was talking specifically about the partisan

bias metrics, looking at the first five columns. So if you

compare, for instance, the efficiency gap in 2018 to the

efficiency gap in 2012, they're almost identical. The mean

median is a little bit smaller, but also still shows a robust

Republican advantage. The declination is nearly identical in

2018 and 2012. Both symmetry metrics are nearly identical.

So looking across all of the metrics, what I would conclude

is that they've been quite durable across this entire

redistricting cycle, and, thus, are unlikely to go away on

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their own without any kind of intervention into the map.

Q. Thank you. Now, in addition to conducting analysis on the

actual plan, did you also conduct analysis on the plaintiffs'

proposed remedial plan?

A. I did.

Q. And if we could go to your report, 476, page 15, Table 2.

What does Table 2 show?

A. So in Table 2 I analyze the partisanship of each district

in the plaintiffs' remedial map based on aggregating out

precinct level data from the 2012, '16 and '18 House elections

and the 2012 and '16 presidential elections.

Q. And how did you treat uncontested elections to generate

your analysis?

A. I imputed the results in those elections using the same

statistical model that I used in the rest of my main report.

Q. If we could look at Table 3 on the same page, please. What

does Table 3 show?

A. So here, once again, I calculated -- I took the data that

we just showed you in Table 2, and I calculated each of the

metrics of partisan bias or advantage in a districting plan for

the remedial map using these five election sources, so using

the 2012, '16 and '18 House elections and the 2012 and '16

presidential elections. And, of course, that's a lot of

numbers to throw at you or you're going to throw at me. So on

the last column on the right, I calculated the average across

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all of those different election sources, and I think that's

what we should really focus on.

Q. And what did you conclude based on this table?

A. Well, looking across all of the different metrics, there's

very little partisan bias in the remedial map. There's still a

very small Republican advantage that may reflect the underlying

geography of Ohio, but all of those metrics are relatively

close to zero and are certainly not historical outliers.

Q. I'd like to shift gears a little bit away from a lot of the

metric-heavy part of your testimony and talk a little bit about

polarization and how you treated popularization in your report.

The last section of 571 of your report is on polarization;

is that correct?

A. Yes.

Q. And why did you include this section?

A. Well, in order to analyze, in order to understand the

effect of gerrymandered elections on representation on the --

what happens in our government, I think you have to put it --

line it up side by side with the growing polarization in

Congress. And this growing polarization means that

representatives in Congress nearly always vote in ideologically

extreme ways with their party. So voters that face severe bias

against their party in the translation of votes to seats don't

have their views fairly represented in Congress. And if it

weren't for polarization, then it may be the case that

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gerrymandering wouldn't be such a big deal for the

representation that voters receive, but when you put

gerrymandering and polarization together, it has large and

pernicious consequences for representation.

Q. And I think we discussed this a bit yesterday, but since

that was many hours ago, do political scientists study

polarization?

A. Yes. This is a large topic of study for political

scientists.

Q. And what is political -- what has political science said

has happened to polarization in the last decades?

A. Well, at both the elite and mass level, but particularly at

the elite level in Congress, polarization has grown

dramatically. In other words, the distance between the

ideological -- the average ideological positions of Democrats

and Republicans in Congress has grown quite substantially.

MS. THOMAS-LUNDBORG: If we could publish Exhibit 571,

page 35. Page 35, yeah. And we can publish this figure

together. Okay.

Q. So let's start at the top. What does Figure A show?

A. So Figure A shows the DW-Nominate score for every single

member of Congress over the last 45 years or so.

Q. And if you could, remind everyone what DW-Nominate is.

A. Of course. So DW-Nominate is the most commonly used metric

of the roll -- of the ideological manifestations of

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legislators' roll call voting behavior in Congress; in other

words, how liberal or conservative they are. This has been

used by hundreds if not thousands of political science

articles.

Q. And what does the DW-Nominate score in A indicate?

A. Well, each dot here, as I just explained, represents a

different member of Congress, and the red dots are Republicans

and the blue dots are Democrats. And what it indicates is that

in the 1970s, on average, certainly there is a difference

between Democrats and Republicans, but there was a lot of

overlap between the parties. So it could have been that in a

competitive district the ideological positions of Democrats and

Republicans might not have been all that different from each

other.

But in the modern era, if we fast-forward all the way to

2016, and the most recent -- well, I guess two Congresses ago

now, there's a massive difference between Democrats and

Republicans. There's no overlap between the parties, which you

can see from the white space between the red and blue dots.

The most moderate or conservative Democrat is still far more

liberal than the most moderate Republican.

And then if you turn to the bottom panel, this shows the

average difference between the parties. And what it indicates

is that over the last 40 years, the difference between the

parties has grown about 50 percent, which is obviously quite a

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large growth.

Q. And is this figure for the whole Congress, both Ohio and

all the other states?

A. Correct. This shows members of Congress from across the

country.

MS. THOMAS-LUNDBORG: If we could go to page 37. And

if we could -- yes.

Q. What does Figure 15 show?

A. So this shows the exact same DW-Nominate ideology scores

for members of Congress from Ohio. And it indicates that in

Ohio, just like in the country as a whole, there's no overlap

between the ideological positions of Democrats and Republicans,

and over the last 40 years the gap between the parties has

grown enormously.

Q. If we could go to Table 9 on page 38. What does this table

show?

A. So this shows the relationship between the efficiency gap,

which, again, is one of the metrics of partisan bias that I

use, and the role call voting behavior or the ideology of

members of Congress. And the reason that I do this analysis is

that one way of thinking about the growing consequences of

gerrymandering is, essentially, what gerrymandering does at a

simple level is it means that, in Ohio, Republicans are more

likely to get elected than Democrats. And then, increasingly,

as Republicans take more conservative positions relative to

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Democrats, what that means is that, in a gerrymandered state

like Ohio, you're going to have more and more conservative --

if it's a Republican advantage, there will be more conservative

members of Congress elected.

So what this shows is that there's a large relationship

between the efficiency gap and the ideological positions of

members of Congress. And then in the right column here I show

that that effect is growing substantially over time, just as we

would expect, based on the going polarization in Congress.

Q. Now, the next section, subsection of your report deals with

the Affordable Care Act. Why did you look at the Affordable

Care Act?

A. Well, the Affordable Care Act is probably the most salient

political issue over the last decade. It was the largest most

important legislative priority for Democrats in 2009 and '10

when President Obama took office, and then repealing the

Affordable Care Act was the most important priority for

Republicans really ever since then.

Q. And what did you find in your analysis of the Affordable

Care Act?

A. Well, what I looked at is -- is I compared survey data on

the mass public's views on the Affordable Care Act to how their

legislators voted on an effort to repeal the Affordable Care

Act. And what I found is that citizens are much more likely to

agree with a member of Congress from their party. Most

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Democrats favored keeping the Affordable Care Act, just as most

Democrats in Congress did, and most Republicans in the public

thought that we should repeal the Affordable Care Act, just

like most Republicans in Congress.

So in states with a large partisan bias in the

redistricting process, which here I use the efficiency gap to

show, if we turn to Figure 16 on page 40, what I found is that

in states with a pro-Republican advantage in the efficiency

gap, Democrats were much less likely to agree with their member

of Congress' position on the Affordable Care Act than

Republicans were, whereas in states with a pro-Democratic

efficiency gap, Republicans were a lot less likely to agree

with their member of Congress. And that's what the lines on

this graph show. These are averaging across all states.

Q. And what happens when the efficiency gap is zero?

A. So when the efficiency gap is zero, when there's no

political partisan bias in the redistricting process, Democrats

and Republicans are about equally likely to agree with their

member of Congress, which I think from the point of view of

someone who studies representation, it's exactly what we should

want to see. So my conclusion is that in states with a large

partisan bias in the redistricting process, this degrades the

representation that citizens receive from members of Congress.

Q. Okay. If we could look at Figure 17 on page 42. Now, in

addition to looking at the Affordable Care Act and surveys

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regarding the Affordable Care Act, what does Figure 17 show?

A. So the next thing I did in addition to trying to analyze

the relationship between gerrymandering and the representation

that citizens received in Congress, I wanted to see if it also

degraded citizens' trust in their representatives. And so to

do that I used a survey from 2014 called the Cooperative

Congressional Election Study which, as we discussed earlier, is

a large scale, widely-used survey of the American public. And

I calculated the percentage of people in each state that trust

their representative to do what's right. And what I found is

that in states with a large efficiency gap, like Ohio, citizens

are much less likely to trust their representative to do what's

right than in a state like Washington or Minnesota or

California where there's little bias in the redistricting

process.

So overall, this suggests to me that the redistricting

process has a large and profound effect on citizens' trust in

their representatives.

Q. And is Ohio indicated on this figure?

A. Yes. Just like in my other graphs, all the dots here show

an individual state, and the lower right shows Ohio. So what

you can see is that Ohio has some of the lowest trust in their

representatives in the country, and, of course, also has one of

the most -- the largest partisan bias in the map.

Q. And what was your overall conclusion based on the analysis

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that you did of polarization and partisan bias?

A. I think that gerrymandering and partisan bias in the

redistricting process has profound and pernicious consequences

both on the representation that citizens receive, as well, as

their trust in government, which suggests to me that

gerrymandering contribute -- or undermines citizens' faith in

government and indeed their faith in democracy.

MS. THOMAS-LUNDBORG: I have no further questions at

this time.

CROSS-EXAMINATION 

BY MR. LEWIS:

Q. Good morning, Professor Warshaw. I'm Patrick Lewis on

behalf of the intervenors. I believe we've met before.

Now, Professor Warshaw, you're familiar with the

traditional redistricting principles recognized in the field of

political science; are you not?

A. Yes, at a broad level.

Q. Would you agree, for example, that keeping communities of

interest together is a traditional redistricting principle?

A. Well, I think that's a -- yes, I would agree that's a

traditional principle used for legal purposes. I don't think

it's one that political scientists typically focus on, though.

Q. And would you agree that the preservation of cores of

existing districts from one districting plan to the next is a

traditional redistricting principle?

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A. Yes.

Q. Okay. And would you agree that preserving cores of

existing districts can help provide continuity of

representation between voters and their members of Congress?

A. Yes. I think that's one factor that can do so.

Q. And would you agree that the preservation of cores of

districts is particularly important in a situation where a

state loses seats in Congress in a redistricting cycle from one

to the next?

A. I don't have an opinion about that.

Q. Would you agree that incumbency protection is a traditional

redistricting principle?

A. Yes. I think that's a commonly used redistricting

principle.

Q. And as someone that studies Congress, would you agree that

the more senior a representative in Congress becomes, the more

influential that member of Congress becomes?

A. Generally speaking, yes.

Q. And would you also agree with me that the more senior and

influential a member of Congress becomes, the more -- the

greater their ability to provide benefits to their home state

becomes as well?

A. Again, generally, yes, but I think the literature on that

is, actually, not entirely clear. It looks like the main

finding of the literature is, in general, the kind of people

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who are good at getting benefits to their district are always

good at it and it doesn't change very much with seniority or

with committee status.

Q. But at the least you'd agree with me, surely, that having

the speaker of the U.S. House of Representatives be from your

state is probably good for that state; right?

A. Yes.

Q. Okay. And you're familiar with the Voting Rights Act, are

you not?

A. At a broad level, not at a -- I'm not familiar with all the

legal details of it.

Q. And you would agree with me that compliance with the Voting

Rights Act has become, since the passage of the Voting Rights

Act, a redistricting principle that redistricting authorities

need to be concerned with?

A. Yes.

Q. I'd like to turn to your discussion about the metrics of

partisan bias that you use in your report. First, I had a few

questions about sort of the theory underlying your approach.

So to start, it's fair to say that you view gerrymandering,

partisan gerrymandering specifically, as being accomplished

through the use of packing and cracking voters; right?

A. Yes, I think that's the main tool that mapmakers use to

conduct gerrymandering.

Q. And do you recall yesterday defining cracking as a process

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where the redistricting authority draws plans with a number of

districts with a narrow majority of the favored party in them?

A. Yes.

Q. Okay. How do you define "narrow"?

A. Generally, fewer -- less than 60 percent, but I don't think

there's a -- one clear bright line, but I think, qualitatively,

when I think of it, that's kind of how I think of it.

Q. All right. So a 60 to 40 district you would view as a

narrow majority?

A. Yes. I think that if a party were to win a large number of

districts by -- with a vote share of less than 60 percent, then

that would be a very efficient map.

Q. And what do you base your opinion that -- 

That 60 percent figure you just used, what's your basis for

that number?

A. As I said, there's a qualitative judgment. I don't think

there's any bright line in the political science literature on

exactly what constitutes a cracked district.

Q. And have you attempted to empirically study the line at

which that district would become -- that majority would become

narrow, in your view?

A. No.

Q. Do you recall yesterday defining packing as the process of

drawing a limited number of districts where the disfavored

party wins by -- I think the term you used was an overwhelming

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majority?

A. Yes.

Q. And do I recall that you gave 80 percent as that number

that would constitute an overwhelming majority?

A. Well, that was an illustrative figure. I didn't mean that

to be a bright line.

Q. Do you have a bright line?

A. I don't. I don't have a bright line on packing in my head.

Q. And have you attempted to study for this, empirically

analyze for this case where a line might be drawn when a party

wins an overwhelming majority?

A. I have not.

MR. LEWIS: I'd like to pull up Plaintiffs'

Demonstrative Exhibit 72. Okay. And I think we have -- this

is page three or should be page three of Plaintiffs'

Demonstrative 72.

Q. Do you recall this chart from yesterday, Professor Warshaw?

A. Yes.

Q. Great. And this chart depicts the winning vote share for

each of Ohio's 16 congressional districts from 2012 to 2018;

correct?

A. Correct.

Q. Of the 16 districts in Ohio, how many districts do

Democrats win by 80 percent or more?

A. The 11th District.

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Q. Any others?

A. No.

Q. How many times have Democrats won the 11th Congressional

District by 80 percent or more?

A. Well, twice, but it was uncontested in 2012 and likely

would have been won by 80 percent or more.

Q. Now, for your analysis in this case, though, we have an

uncontested race. Isn't it true that you impute a 75 to 25

percent split to that district?

A. No, it's not, actually. I use a complicated statistical

model -- it's described in depth in my report -- to impute the

results based on the presidential results as well as past and

future congressional results in that district. So I don't use

the 75/25. I use that as a robustness check for my result. I

don't use it in my main report.

Q. Okay. And in your report do you identify what value you

imputed to the 11th Congressional District in 2012?

A. No. But we could certainly look it up in the data that I

provided.

Q. All right. Now, another concept that you discussed

yesterday was, you know, the concept that the people that are

being packed and cracked are the -- you used the term

"disadvantaged party," and then a related term, "disadvantaged

party supporters." Do you recall that?

A. Yes, I do.

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MS. THOMAS-LUNDBORG: Sorry.

JUDGE BLACK: Yes, I'm sorry.

MS. THOMAS-LUNDBORG: I just want to have a standing

objection to some of the characterization of testimony

yesterday. Somewhat at a disadvantage in that it was

yesterday, but I believe that some of the testimony has been

characterized incorrectly.

JUDGE BLACK: Don't be mischaracterizing the

testimony. The objection is noted.

Q. And, Professor Warshaw, in fact, you talk about

disadvantaged party and disadvantaged party supporters in your

report; do you not?

A. Yes.

Q. Okay. How do you define disadvantaged party supporters?

A. Well, the disadvantaged party supporters are one where

they're not the party that controlled the redistricting process

and they are a party that faces a large disadvantage in the

translation of votes to seats, just like we've seen in Ohio.

Q. And when you talk about the disadvantaged party supporters,

who are the supporters?

A. People that vote for candidates from that party.

Q. And how does one identify who the disadvantaged party

supporters are?

A. Well, of course, there's no way based on election results

to identify them at the individual level because of the secret

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ballot in the United States. You could ask them on a survey

which candidates they supported, and then we could identify

them at the individual level. Or we could identify, sort of at

the aggregate level, we could identify the percentage of people

in each locality that were supporters of each party.

Q. Okay. And, in particular, is it fair to say that you don't

rely on party registration in your analysis in this case?

A. That's right. I don't rely on party registration in this

case or any case, because I think party registration is almost

always a very noisy indicator of which party you support.

Typically, people register with a party as a, you know, as a

teenager or a 20-something and then don't update it over time.

Q. Okay. So does that suggest then that someone could

register as a Republican, but, over time, become a Democrat?

A. Sure. Over the course of their lifetime somebody might

slowly switch.

Q. Now, based on that election data that you referred to, at

what level -- you know, how do you determine how many times

does somebody have to vote for a Democratic candidate before

your analysis would score them as a supporter of the Democratic

party?

A. I don't think I've thought about that question.

JUDGE BLACK: Counsel for plaintiff wish to be heard?

MS. THOMAS-LUNDBORG: Just objection to the

characterization of his analysis.

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JUDGE BLACK: The objection is noted.

Q. Specifically, what election data -- and I understand that

you can't -- we can't tell how any specific voter votes because

of the secret ballot and other factors that you've identified.

But for your analysis, what election data do you leverage to

attempt to determine, you know, where a disadvantaged

supporter -- disadvantaged party supporters might reside?

A. I wasn't asked to do that in this case.

JUDGE BLACK: Excuse me.

MS. THOMAS-LUNDBORG: Objection to vagueness. If

there's a particular analysis in which counsel is referring to.

JUDGE BLACK: The objection's noted. Counsel can

respond or not in terms of further questions.

MR. LEWIS: Okay.

Q. So, Professor Warshaw, for each district, and we'll start

with efficiency gap and we'll expand it from there, you measure

election performance based on the congressional districts

themselves; correct?

A. That's correct, based on the congressional elections

themselves.

Q. Okay. And why did you make the choice to use congressional

election return data as opposed to some other form of data?

A. Well, the target of a gerrymander is the legislative

elections, so in this case I was asked to analyze the partisan

bias in the Ohio congressional election. So it made sense to

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focus on the elections that were the target of the gerrymander,

which is congressional elections. And then I use presidential

election data just to impute the congressional elections, but I

think that was a theoretical choice I made. But in the modern

era, it doesn't matter very much. You could have used

presidential results or any other statewide results and it

would yield very similar answers. Because the voters are

cleanly sorted into parties and they typically vote the same

way for different offices, the correlation between

congressional election results and presidential election

results is about .9. So they're extremely highly correlated.

Q. Now, for the mean-median metric do you also rely on

congressional election return data to perform your mean median

analysis?

A. I do.

Q. I'll ask you the same question for the declination. Do you

use congressional election return data for the declination?

A. Yes.

Q. And for your two measures of partisan symmetry, same

answer?

A. Yes.

Q. Okay. And do you use that congressional election return

data for all five of your partisan metrics for the same reason

that you gave for the efficiency gap?

A. Yes.

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Q. Now, aren't there other sources of election data that you

could have used for your analysis, like, for example, statewide

races?

A. Well, I could have used the presidential election returns,

because those are available for all 50 states, historically, at

the congressional district level. I could have used other

statewide results. And what I found, again, is that those were

almost perfectly correlated with congressional results, so it

doesn't matter what you use.

In the case of Ohio, I could have used other statewide

results like governors' races or something. I would expect it

would yield very similar results. You couldn't actually do the

historical analysis that lies at the heart of my report for

those other races because there's not data on governors'

elections by congressional district going back in time for all

50 states. So we simply lack the data to conduct a full

analysis using other statewide races.

Q. Now, Professor Warshaw, are you aware of what election

data -- have you studied how the Ohio legislature used election

data in connection with evaluating proposed districting plans

back in 2011?

A. No.

Q. Are you aware of what election data the Republican caucuses

of the Ohio General Assembly used when evaluating potential

districting plans for the 2011 congressional plan in Ohio?

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A. No.

Q. Are you aware of what election data the Democratic caucuses

of the General Assembly used to evaluate potential plans in

2011?

A. No.

Q. Are you aware of what a partisan index is?

A. Yes. Well, I should say I'm aware of it at a broad level.

I don't know if I'm aware of exactly your use -- the way you're

referring to it in Ohio.

Q. Sure. In general, what do you understand a partisan index

to be?

A. Well, I think there's two ways that people use that term.

The way -- I think the best way to use it would be an index

that aggregates across multiple types of races to try to

produce an average of how well each party might do in each --

in a given constituency. Another way it's sometimes used by,

like, the Cook Political Report is based on presidential voting

patterns to try to produce an index for how the -- the sort of

partisan lean of each district.

Q. So, for example, if someone took a mixture of the

presidential election results and maybe some statewide office

results and averaged them together, would you consider that to

be a partisan index?

A. Yes.

Q. Okay. And could a partisan index be used as a source of

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election data to perform an efficiency gap analysis?

A. It could, but I think there's no theoretical reason to

prefer that for -- if you're doing observational data as I'm

doing, there's no theoretical reason that you would do that

instead of the legislative elections themselves.

Q. Okay. So to be clear, for your efficiency gap

calculations, the only time that you used any statewide

election data was to impute results to uncontested races;

correct?

A. That's exactly right. But I also just -- I should say on

the statewide elections you're referring to, I think an

important thing you'd want to understand is what's the

relationship between state-level races and congressional

elections. Because if, indeed, like in the south for much of

this period, and I think possibly in Ohio, people vote

differently in down-ballot elections than they do in federal

elections like Congress. So that's why typically political

scientists focus on presidential elections as the most

indicative of congressional voting patterns. Usually state

races are less indicative of congressional voting patterns.

Q. So you do not calculate an efficiency gap in this case

using statewide data except as we already discussed for

imputing results in uncontested races; correct?

A. I think I actually did calculate it using presidential

voting patterns as a robustness check, and I found that it was

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extremely highly correlated with the estimate based on

congressional elections, but I don't think I actually looked at

what those values actually were for Ohio. But, in general, I

found it was highly correlated with the version based on

congressional elections, and I think I report that in a

footnote somewhere in my report.

Q. So why not use all the election data available to you for

your -- or why did you not publish all the results for election

data available to you for your report in this case?

A. Well, again, I think, theoretically, the target of a

gerrymander is legislative elections. So that's -- when you

have the actual election results in front of you, that's the

one that makes the most sense to use. Though, again, in the

modern era, I wouldn't expect to get anything differently with

other elections, especially the other federal elections.

I think for assimilated maps -- so when I'm looking at the

remedial map, it's a little bit different, because there is --

the district lines are getting moved around. You could argue

that maybe you should use some sort of exogenous election like

presidential voting patterns. I don't have a clear position on

that, as I think I discuss in a footnote, but that's why for

the remedial map I reported both presidential and congressional

results.

Q. Now, if you had calculated and reported results for your

efficiency gap analysis using that statewide -- those statewide

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numbers, then the Court would have had available to it more

information to decide whether using that congressional data was

reasonable; isn't that correct?

A. Sure. I think, you know, I could have done that just for

Ohio and didn't for space reasons, but, again, the data would

be unavailable for other states. So even if we could do it for

Ohio, it would be difficult to construct such an index for

other states, which is the main reason I didn't do it in my

report.

Q. And would you agree with me that when conducting your

partisan bias analysis using -- and we'll start with the

efficiency gap. The choice of what election data you use can

impact the results; right?

A. Of course, it can impact it on the margin. But as I said,

when I actually looked at the relationship between the

efficiency gaps based on congressional results and presidential

results, they were extremely highly correlated with each other.

So on average, there certainly aren't large differences between

them.

Q. Well, you performed that correlation only using

presidential and only at a national level; correct?

A. That's correct, because that's the only data that's

available for congressional districts, the other partisan

election data at the national level.

Q. And so would you agree with me, then, that there's no

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uniformly accepted way to measure the partisanship of a

district; right?

A. Yes. But I do think the most commonly used method in the

political science literature is what I do here, which is using

the legislative election results themselves. That's the

approach taken by Gelman and King in their seminal articles, as

well as most of the recent literature.

Q. Now, isn't it true, Professor Warshaw, that Ohio voters

split their tickets, and they'll vote in the same election for

both Democratic and Republican candidates? Isn't that true?

A. That's surely true in some cases, but as I discussed

earlier, the vast majority of voters are well sorted into

parties based on their ideology and typically vote similarly up

and down the ballot. And that's particularly true in federal

races.

Q. But you haven't studied that specifically with respect to

Ohio; correct?

A. Well, as I discussed a second ago, I found that I obtained

almost identical results across the country using presidential

and congressional election results. So given the high

correlation between them, I didn't find it necessary to look

further at Ohio.

Q. Now, Professor Warshaw, are you aware that in the 2018

gubernatorial election in Ohio that now-Governor Mike DeWine, a

Republican, defeated the Democrat, Richard Cordray, by a vote

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of 50.4 to 46.7 percent?

A. Yes, basically. I didn't know those exact percentages, but

it sounds right.

Q. It sounds right? Okay.

And are you also aware that in the same general election,

Ohio voters reelected U.S. Senator Sherrod Brown, a Democrat,

who defeated the challenger, a Republican, Jim Renacci, by

approximately a 53 to 47 percent margin?

A. Yes.

Q. Okay. So that's a fair -- that's -- at least some

crossover voting had to have occurred in Ohio; correct?

A. Sure. And in any election it's certainly true that a

couple percentage of people can cross over to different

parties. But I would say that 90 percent of people vote

similarly across different elections for the same party, but

certainly not everyone does. That's probably how elections can

swing a little bit year to year.

Q. Okay. Now, Professor, yesterday, I believe that you

testified that you believe that the 2018 elections, at least

nationwide, constitute a wave election year for Democrats. Do

you recall that testimony?

A. I do.

Q. And why did you believe that last year was a wave election

for Democrats nationwide?

A. Well, at the nationwide level, as I said, I think in the

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direct testimony, there were two rationales. One is there was

a large swing toward Democrats from the last few elections, but

I think, more importantly, Democrats received an overwhelming

majority of the two-party vote share in nationwide House

elections. I think they received 53 or 54 percent of the

statewide -- or of the nationwide House vote and won the House

vote by around eight points, which is as large as any margin in

recent history, and I think actually a larger vote margin than

the 2010 Republican victory, which is commonly considered a

wave.

Q. All right. And when you talk about that congressional

vote, what you're talking about is where you aggregate the

two-party congressional vote for all votes cast for Republican

candidates and all votes cast for Democratic candidates; right?

A. That's correct.

Q. Okay. Would you consider 2018 to have been a wave year for

Democrats in the state of Ohio?

A. Well, compared to the last few elections, the Democratic

vote share swung seven or eight points, I think, in -- the

two-party vote share swung seven or eight points toward

Democrats. And I think this was the -- Democrats received the

highest vote share in 2018. I think they received roughly the

same vote share in 2012, and it's probably 2006 or '8 is the

last time they received a higher vote share than in 2018.

Q. But Democrats didn't receive a majority of the two-party

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vote share in Ohio in 2018, did they?

A. No, they didn't. I think that, you know, as we discussed

during -- I believe during my deposition, I think that Ohio

leans slightly to the right, right now. Clearly in a -- on the

average election, Republicans -- you know, narrowly the

Republicans win statewide elections in Ohio.

Q. And, in fact, in 2018, Republicans won every -- they won

the governor, the attorney general, the auditor, the treasurer

and the Secretary of State; correct?

A. Yes, I believe that's true.

Q. And I think you predicted where I was going, but, I mean,

you'd agree with me that Ohio is leaning farther to the right

in this decade than in the prior decade; right?

A. Yes, I think that's fair to say.

Q. Let's talk a little bit more about the efficiency gap. So

when was the efficiency gap first proposed as a measure of

partisan bias?

A. Well, it was proposed by a political scientist named Eric

McGhee in a peer-reviewed article in Legislative Studies

Quarterly in 2014.

Q. Okay. And then later Eric McGhee co-authored or authored a

number of -- or some papers with another person, a law

professor named Nicholas Stephanopoulos; right?

A. Yes.

Q. Okay. And is it fair to say that the efficiency gap was

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proposed as a measure of partisan bias for the purpose of

addressing concerns raised by the U.S. Supreme Court in

prior -- in redistricting litigation in the 2000s?

JUDGE BLACK: Excuse me.

MS. THOMAS-LUNDBORG: Foundation.

JUDGE BLACK: There's an objection as to foundation.

It's noted.

A. Well, I don't -- I wouldn't want to peer inside the minds

of the authors. I'm fairly certain that wasn't Eric McGhee's

intent when he originally developed it. That may have been --

I think that was the thrust of the law review article that he

later published with Stephanopoulos, but I don't think that was

the original motivation for it. I think it was simply that he

thought that the symmetry measure developed by Gary King and

co-authors had some theoretical and empirical drawbacks, so he

wanted to just develop a better measure of partisan bias.

Q. Now, you mentioned a later law review article. Professor,

are you referring to the 2015 University of Chicago law review

article entitled "Partisan Gerrymandering and the Efficiency

Gap" authored by Stephanopoulos and McGhee?

A. Yes, I am.

Q. Okay. All right. Now, Professor Warshaw, is it fair to

say that the efficiency gap was proposed as a measurement of

partisan bias across an entire congressional district plan?

A. Yes.

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Q. And would you agree with me, Professor Warshaw, that the

efficiency gap analysis you conducted in this case would not be

able to tell us if a specific congressional district was drawn

with discriminatory partisan intent; correct?

A. That's correct. It's focused -- the plan as a whole had a

partisan intent.

Q. And would you also agree with me that the efficiency gap

analysis you conducted in this case would not be able to tell

us if the plan exhibited a discriminatory partisan effect on

the voters of a specific district?

A. I don't know that I thought about it quite like that.

My -- the analysis in my report is focused at the statewide

level.

Q. Okay. Now, for purposes of comparing Ohio's efficiency gap

to the efficiency gap of other states, you don't compare Ohio

to all other of the 50 states, do you?

A. No. As I discuss in the report, I compare it to states

with more than six congressional districts.

Q. And why did you define the cutoff at states with six

districts in this plan?

A. Well, I think the exact cutoff is a little bit arbitrary,

but tell -- Eric McGhee and then later Stephanopoulus and

McGhee discuss in their papers, the efficiency gap -- one of

the drawbacks of the efficiency gap is that it can be highly

variable in states with a very small number of districts. So

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to have the most reliable inference as possible of a partisan

bias, I simply don't look at small -- states with a small

number of congressional districts.

Q. Okay. Now, are you familiar with the work of Professor

Wendy Tam Cho?

A. Broadly speaking, yes.

Q. All right. And do you recognize her as a political

scientist who has published and taught on redistricting issues?

A. Yes.

Q. Are you aware that, 2017, Professor Cho published a paper

in the University of Pennsylvania Law Review at Volume 166,

page 18, entitled "Measuring Partisan Fairness: How Well Does

the Efficiency Gap Guard Against Sophisticated as Well as

Simple-Minded Modes of Partisan Discrimination"?

A. I think so. Yeah, I don't have that -- I don't have the

exact -- I don't have it clearly in my mind, but I think I've

seen it at some point. I know during deposition we discussed a

paper by Cho, and I can't remember if that's the one. So it

would be helpful, if you have specific questions, to put it in

front of me.

Q. Sure. Absolutely. We can do that.

MR. LEWIS: Why don't we display Intervenors' Exhibit

50, and we'll start at the first page.

Q. I'm showing you what has been identified as Intervenors'

Exhibit 50, Professor Warshaw. I'll represent to you that this

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was an article published by Professor Cho that we did use in

your deposition. Do you recognize this article?

A. Yes, it looks familiar now.

Q. And I'd like -- and you have reviewed this article, have

you not?

A. At some point in the past. Again, I can't remember all the

details, but I have read it at some point.

Q. Sure. I'd like now to turn to --

JUDGE BLACK: Excuse a me.

MS. THOMAS-LUNDBORG: If counsel has a copy of the

article.

MR. LEWIS: It's been marked. It's Intervenors'

Exhibit 50.

A. You're going to show me on the screen anything you want me

to comment on?

Q. Yes. I don't have very much to comment on the article. It

shouldn't -- hopefully we --

JUDGE BLACK: Should we pause until they have a copy

of it? We're pausing until you have a copy of it. Somebody

appears to be frantically searching through a bag.

MS. THOMAS-LUNDBORG: Thank you.

JUDGE BLACK: You may proceed. The copy's been

provided to the plaintiffs' counsel.

MS. THOMAS-LUNDBORG: Yes, Your Honor, I have a copy

now.

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JUDGE BLACK: Very well.

Q. And, specifically, Professor Warshaw, I'd like to turn

to -- we'll put up on the screen for you page 20 of the

article, which is the fourth page of the -- law review articles

have that pagination issue. There's page 20.

And, Professor, on this page of the article she --

Professor Cho -- describes what she calls, quote -- and this is

the highlighted sentence here at the top -- "a basic and

uncontroversial requirement for a partisan fairness measure

as," quote, "the ability to produce a value that is comparable

across electoral plans."

Do you agree with Professor Cho's statement?

A. At a broad level, yes.

Q. Now, because you, for your efficiency gap analysis, you

only consider states with at least six districts in the plan,

does that mean that you don't consider any electoral plans with

states that have less than six districts?

A. Exactly. I don't examine states with six or fewer

districts.

Q. Okay. Now, Professor Warshaw, in Footnote 10 on the same

page of this article, Professor Cho offers the view that,

quote, "A general measure of partisan fairness should, however,

work for any size delegation."

Do you agree with that statement?

A. No.

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Q. So you think -- you think she's wrong?

A. I do.

Q. Now, at the end of this paragraph on this Footnote 10 --

A. I'll give an analogy.

Q. Sure.

A. So we have lots of metrics, for instance, the DW-Nominate

metric that we use for the roll call voting in Congress. If --

we used it for -- to measure the ideology of all members of

Congress; however, I wouldn't recommend using it if a member of

Congress only casts, say, five roll call votes, because the

measure would be extremely noisy if you only cast five roll

call votes. But that doesn't impugn the overall validity of

the measure.

So, too, I wouldn't recommend a -- the efficiency gap or

indeed most of the other metrics that I use for a plan with

only a handful of congressional districts for the simple reason

that the metrics would be extremely noisy. But just as that

doesn't impugn the validity of Nominate scores, it also, in my

view, doesn't impugn the validity of the partisan bias metrics.

Q. Now, Professor Cho -- back to my question. Now she's

responding in this article to Stephanopoulus and McGhee, who

you indicated used eight districts as the cutoff as compared to

six; right?

A. Well, I used seven as the cutoff.

JUDGE BLACK: Excuse me. Excuse me.

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MS. THOMAS-LUNDBORG: Foundation.

JUDGE BLACK: There's an objection as to foundation.

A. Well, I used more than six, so seven is my cutoff, and I

think the appropriate comparison for them is eight. And

there's no strong reason for that. I think that's an arbitrary

difference between seven and eight. It wouldn't affect any of

my results.

Q. So she indicates in her -- she has a count -- she says at

the end of this paragraph, quote, "While larger states have

more districts, restricting the analysis to states with eight

or more Members of Congress removes data from twenty-nine (or

58% of) the states."

Do you disagree with her calculation that "restricting the

analysis to states with eight or more Members of Congress

removes data from twenty-nine [of]...the states"?

A. Well, you'd have to focus on a particular redistricting

period to make that precise. So I don't know what

redistricting period this is referring to, but certainly it's

approximately right.

Q. And do you know, as you sit here today, how many states,

for your analysis of the 2012 congressional district plan, you

omitted data from due to the fact that the state did not have

at least seven congressional districts in its plan?

A. I believe 26.

Q. 26.

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A. So, in my view, this isn't -- this is a ripe area for

social science research, and I think that going forward

researchers will develop better metrics for states with smaller

numbers of congressional districts. The fact that our metrics

aren't as useful for states with very small number of districts

doesn't mean they don't tell us something very useful about the

states with more than six districts, which constitute the vast

majority of districts in Congress.

Q. And, similarly, would you also agree with me that the

efficiency gap becomes less reliable in cases where you have

this -- an extreme result, for example, I think you mentioned

Massachusetts as an example where one party wins all the seats

but has less than a hundred percent of the vote.

A. No, I don't agree with that.

I think it's important to be clear. The efficiency gap is

not a metric of proportionality. So it's not asserting that

there needs to be a one-to-one relationship between votes and

seats.

Q. Now, do you recall -- do you recall when we took your

deposition on November 30, 2018?

A. Yes.

Q. Okay. And a court reporter was present; correct?

A. Yes.

Q. The court reporter -- and you were sworn to tell the truth

just as you are today?

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A. Yes.

Q. All right. Do you recall me asking you the question if

there are any factors that make the efficiency gap less

reliable in certain instances?

A. No, not specifically. But I'm sure you did. I trust the

transcript.

Q. Okay. Well, let's pull the transcript up.

If we can go to page 60.

Okay. And specifically I'm looking -- we're going to --

And on page 60 at line 16 I asked: Are there any factors

that make the efficiency gap less reliable in certain

instances?

Do you see that?

A. I did. This isn't the question you just asked me, though.

Q. Okay.

A. So in Massachusetts, Democrats don't, in fact, win more

than 75 percent of the vote; they win more than 75 percent of

the seats.

Q. I see. Okay.

A. So if they had won more than 75 percent of the vote, which

has happened, at most, a handful of times in U.S. history, then

it is true that the efficiency gap can yield weird answers.

But, again, I think in the real world that we live in, that's

not a case that happens very often, if ever.

Q. Okay. Well, thank you for clearing that up. I appreciate

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it. All right.

I'd like to turn to your report on the efficiency gap. So

that's going to be PX 571, and specifically Figure 6 on page

22. All right.

Now, this is your -- this is your scatter plot of

efficiency gaps from 1972 through 2016 for the country as a

whole; correct?

A. That's correct. Again, focusing on states with more than

six seats.

Q. Got it.

A. So seven or more.

Q. Seven or more, okay. And in 2012, just to make sure we

have the numbers -- I think you report the numbers on page 23

of your report, if you need to look at that. But you identify

the efficiency gap as approximately negative 22 in 2012; right?

A. Yes.

Q. And in 2014, however, that number drops to negative nine

percent; correct?

A. Yes.

Q. Okay. And in 2016 it drops a little bit more; right?

A. Yeah, just a teeny bit to negative 8.7 percent, I believe.

Q. Okay. Now, you've asserted in your report that 75 percent

of the efficiency gaps nationwide from 2000 -- or excuse me --

from 1972 to 2016 lie between negative ten and positive ten

percent; is that correct?

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A. Yes.

Q. So would you agree that even compared to historical norms,

an efficiency gap that's within that plus or minus ten percent

range is not extreme?

A. I think if we were to look -- if the only data we had in

front of us was 2014 or '16 efficiency gaps, then I wouldn't

say those were historical outliers.

Q. And specifically to my question, would you also agree that

that -- an efficiency gap of within that plus or minus ten

percent range would not be extreme?

A. I don't know that I've thought about it in quite that way,

but I think we -- I think we wouldn't have enough information

on its own to conclude that a plan was an historical outlier if

the only data we had in front of was an efficiency gap that lay

between negative ten percent and ten percent.

Q. And you'd agree with me that your analysis does not provide

a specific value of the efficiency gap beyond which you would

conclude that a plan was a gerrymander; correct?

A. No. As I think I tried to state clearly in both my earlier

testimony, as well as in my report, that my view is that we

should look holistically at all of the metrics that we have in

front of us, as well as at the entirety of the districting --

of the elections in the redistricting cycle.

Q. Now, you say you need to look at the elections for the

entirety of the redistricting cycle. Does that mean you would

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need to look at, for example, to judge the 2012 plan, that

you'd need to see every election conducted through the life of

that plan? 

A. No. I simply mean that we shouldn't put on blinders to

data we have in front us. That if we're conducting the

analysis today, then we should look at the last four elections.

If you were conducting the analysis in the fall of 2013, then

you would only have the 2012 election.

And so I think if all we had was the 2012 election, and you

looked across all of the metrics that we had and concluded that

across all of the metrics this looked like an historical

outlier, and that could be -- that could be strong enough

evidence to judge a plan as partisan gerrymander.

Q. Even though two years later the value of the efficiency gap

would be cut by more than half?

A. Well, this is why I think it's really important to look

holistically at all the metrics, because when you look at not

just the efficiency gap but at the four other metrics that I

show, none of the rest of those metrics show a drop as large

the efficiency gap. And, indeed, all of those metrics are

quite stable between 2012 and '16. The efficiency gap drops

for the mechanical reason that the Republican vote share

increased a little bit while, of course, the seat share was

designed that it couldn't change.

Q. Now, you say that the seat shared was designed so that it

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couldn't change. Did you study the process by which the

General Assembly drew the plan in 2011?

A. No. I'm -- I apologize. I used inartful language. What I

meant was that the way that the plan is constructed is that the

Democratic voters were packed into four districts. So there's

really no increase in vote share by Republicans that would

enable them to win those four districts, and it would take a

huge change in voter preferences to win those four districts.

So as the Republican vote share increased a little bit, their

seat share really can't change, really can't increase, so the

efficiency gap becomes a little bit less pro Republican as a

result.

Q. Would you agree with me that you don't have a specific

value of the efficiency gap where a plan would be considered an

historical outlier; is that correct?

A. No, there's no single valuing that I looked to. You know,

again, I think I would want to look holistically across the

metrics. And I think the kind of values that I look to, I

don't have a bright line in my head, but if it's, you know,

more extreme than, say, 80 percent in the previous plans and

more pro Republican than 90 percent, looking at an average

across the different metrics, then that wouldn't be

dispositive, but it would be indicative of a gerrymander.

Q. So a plan that would be -- that would come up to 79 percent

as opposed to 80 percent, the 79 percent is not an outlier of

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the 80 percent; is that your understanding?

A. No. Again, that's why I think it's important to be clear

that I think a bright line, you know, isn't very useful. I

think all we can say is that as the percentile increases, it's

more and more indicative of gerrymander. And, no, there's no

particular bright line number that I think we should think of

as being dispositive.

Q. So if you looked at all five of your metrics combined,

would you be able to draw a bright line?

A. No. Again, I think I would look to the average of all of

those metrics and say, you know -- or, on average, do they all

suggest that this is an historically extreme level of partisan

bias in the direction of the party that conducted the

redistricting, and that would be indicative of a gerrymander.

But there's no bright line, I think, that, you know, would

definitely be a gerrymander above some level and definitely

wouldn't be below that.

Q. And you're making that determination by judging a specific

plan under study compared to an historical average of all plans

with at least seven states in the -- or seven districts in the

plan since nineteen sev-- over the period of 1972 to 2016;

correct?

A. That's exactly right.

Q. Okay.

JUDGE BLACK: Would this be a reasonable time to

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pause?

MR. LEWIS: Oh, I'm sorry, Your Honor, of course.

JUDGE BLACK: No. Do you have more?

MR. LEWIS: I do, but I am actually at a break point

in my outline.

JUDGE BLACK: Very well.

We're going to break for our mid-morning break. We will

break until five minutes of 11:00.

During the period of the break, Professor, please do not

discuss your testimony with anyone. Understood?

THE WITNESS: Yes, Your Honor.

JUDGE BLACK: Very well. We're in recess till that

time.

COURTROOM DEPUTY: All rise. This court is in recess

until 10:55.

(Witness temporarily excused.)

(Recess taken: 10:33 AM - 10:54 AM.)

JUDGE BLACK: Please be seated. Thank you.

The witness can re-take the stand.

The witness remains under oath, and he understands.

Correct, sir?

THE WITNESS: Yes, Your Honor.

(Christopher Warshaw resumes the witness stand.)

JUDGE WATSON: Mr. Lewis, could I intervene just very

quickly. Professor Warshaw, I think I know what "noisy" means,

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but would you clarify it for the record, how you were using it.

THE WITNESS: Sure. I think, Your Honor, all of these

metrics that I'm using are proxies for this underlying concept

of partisan advantage or bias-in-districting process, and

there's no one perfect proxy for this underlying theoretical

concept we're trying to get at. So all of these have some

measurement error in their characterization of that underlying

concept, and that's why it's useful to look to multiple metrics

because all of them are measured with some error.

JUDGE WATSON: Right. Thank you.

JUDGE BLACK: I won't charge that minute to you. Go

ahead.

MR. LEWIS: Thank you, Your Honor.

BY MR. LEWIS:

Q. Now, Professor Warshaw, in a perfect world you would prefer

that a plan's efficiency gap be zero; right?

A. I don't know that I have personal preferences on it, but a

zero efficiency gap would indicate there's no partisan bias for

either party.

Q. Okay. Would you agree with me, though, that, other than

partisan gerrymandering, that other factors could cause a plan

to have an efficiency gap in favor of one party or another?

A. Yes.

Q. Okay. And in your report you cite -- well, let's put it

up. If we go to the report at page 16, Footnote 19.

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So if we could look at -- zoom in on that Footnote 19 in

your report.

Professor Warshaw, you talk here about, and I'll quote you,

"Partisan advantage in the districting process can differ

across states for reasons unrelated to the drawing of district

lines, such as variation in how different demographic groups

are distributed across geographic space."

What do you mean by that, Professor Warshaw?

A. Well, if voters from one party, as sometimes happens for

Democrats, are extremely concentrated in small geographic

areas, that can lead to a, you know, small disadvantages in the

vote-seat relationship, and that's what the Chen and Rodden

2013 article is about that I cite here.

And that's perhaps why in their remedial maps for Ohio, as

we discussed earlier, that there's still a little bit of

lingering pro-Republican bias that could be due to the

underlying geography, and that's what I was trying to get at in

this footnote.

Q. So it's your understanding as a political scientist that --

I think you mentioned the Democratic voters can cluster in

urban areas; is that correct?

A. Yes.

Q. Now, if Democrats were able to attract a different

coalition of voters, say, for example, they were able to get

more suburban voters into their coalition, would that affect

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the efficiency gap?

A. It could, although that's exactly what we saw in 2018,

where Democrats did attract suburban voters into their

coalition. And, in general, the partisan bias metrics for Ohio

stayed almost exactly the same as they'd been in previous

elections, which, again, further suggests to me that the

geographic factors are not the primary underlying cause in

Ohio.

Q. But, in general, if you have a party's voters concentrated

in a limited geographic space, is it your view that that would

be -- is it fair to say, I should say, that that would be an

inefficient, you know, geographic distribution of voters in a

single-member district system?

A. Yes.

Q. Okay. And in your Footnote 19 you go on to say, and I'll

quote you, that "It can also be affected by the intentional

drawing of district lines to accomplish goals other than

maximizing partisan seat share, such as ensuring the

representation of racial minorities."

Do you see that?

A. Yes.

Q. And how can partisan advantage -- and I assume that the

word "It" that begins the sentence refers back to "Partisan

advantage in the districting process," the prior sentence?

A. Yes.

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Q. Okay. I've done that many times in my own writing.

So how might ensuring the representation of racial

minorities affect partisan advantage in the districting

process?

A. Well, you can imagine in some cases in order to accomplish

Voting Rights Act goals you have to put, you know, 45 or 50

percent -- you create a district that is composed of 45 or 50

percent minority voters, typically. And since most AfricanAmericans vote for Democrats, that could also lead to a

district that is -- that Democrats are likely to win.

Q. And besides ensuring the representation of racial

minorities, are there other goals that a redistricting

authority might pursue that could have a -- that could affect

partisan advantage in the districting process?

A. Yes.

Q. Can you give some examples?

A. It's not something I've thought about, so I actually can't

give examples. But I'm willing to concede the point. There

probably are.

Q. Okay. So, for example, let me just offer one and get your

reaction. If, for example, the redistricting authority was

attempting to preserve communities of interest, might that be a

factor that could lead to a partisan advantage in the

districting process?

A. I don't know. I have never looked at that, nor has any

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political scientist that I know of.

Q. Okay. How about incumbency protection?

A. On average, I don't think incumbency protection should

affect the partisan bias, but it could lock in partisan bias

that just happened to have occurred right before the

redistricting, which is possible. It's part of what happened,

I think, in the 2011 redistricting plans. And that's why, in

my view as a scholar of representation, incumbency protection

is not a normative goal that we should aspire to, since I

think, in general, a plan that seeks to protect incumbents may

have pernicious consequences for representation.

Q. But I believe you've also testified earlier this morning

that incumbency can offer states an advantage in Congress if

they have more senior members of Congress; correct?

A. It can, but I think if it locks in a partisan bias that was

accidental or occurred -- you know, 2010 was an historic wave

election for Republicans. So I think a redistricting plan that

locks in that partisan advantage for Republicans and seeks to

make it durable over many future elections, I think that the

representational harms from that outweigh any advantages from

having more senior incumbents in Congress.

Q. Would you agree with me, though, that others could disagree

with that view in good faith?

A. It's possible, but I don't -- I think that what I just

stated would be a consensus view in political science --

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Q. Okay.

A. -- particularly since, as I talked about earlier, I think

the value of having a long-serving incumbent, while real, is

relatively small, and I think is actually a source of debate in

the literature. So I don't think it's -- I don't think it's a

very large advantage.

Q. Okay. Professor Warshaw, in your analysis in this case did

you calculate what percentage of the Ohio efficiency gap is

attributable to factors other than what you believe is

intentional partisan gerrymandering?

A. No. But if you look at the very next page of my report, on

page 18 -- 

Well, it's on page 17 in Figure 3 which we talked about --

or I talked about earlier in my direct testimony. 

-- we can see that partisan control through districting

process accounts for a large -- the bulk of the variation in

changes in -- in the efficiency gap and other metrics between

2010 and '12. And Ohio itself shifted 12 points in a

pro-Republican direction right when the new map kicked in, and

that was true across the different metrics. So from that I

conclude that, certainly in Ohio, partisan control of the

redistricting process had quite a large effect on all the

metrics that I look at.

Q. But you can't -- but in your report you do not offer a

specific value of the efficiency gap in Ohio that is

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attributable to any particular non-gerrymandering related cause

of a -- of the efficiency gap in Ohio; right?

A. That's right. That's exactly why I think -- we shouldn't

have a bright line, but instead look to historical outliers,

because I think to believe that these factors were the primary

driver for the partisan bias in Ohio, you would have to think

that the degree of urban concentration of Democrats was unlike

any other state in history, and also the kind of VRA objectives

that they faced in Ohio was unlike any other state in history,

which strikes me as a social scientist as unlikely.

The far more likely hypothesis based on the data that I

present in Figure 3 and then on the next page in Table 5 is

that, in fact, partisan control of the redistricting process is

exactly what drives the bulk of the partisan bias in these

plans that I'm finding.

Q. Now, Professor Warshaw, I'll probably -- we'll probably

come back to Figure 3 on page 17, but since you brought it

up -- 

MR. LEWIS: If we could pull up Figure 3 on page 17,

please.

MR. WILLIAMSON: Yes.

Q. Okay. When you plot this change -- well, first, for this

calculation does your analysis look at -- 

You know, you show Republicans controlled the redistricting

process in this topic. On the left-hand side you say control

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of redistricting process in favor of Republicans; right? What

does that mean if Republicans are in control of the

redistricting process for purposes of this figure?

A. That they have unified control of government or they

control both legislative chambers and the governorship. And

the legislature actually does control redistricting. It's not

a state where a commission decides redistricting.

Q. Does this analysis look at who controlled the redistricting

process in the prior dissenting redistricting process?

A. No. So I think that if we did, that would help magnify my

findings and it would suggest I believe that Republicans also

controlled the redistricting process in Ohio in the previous

cycle. So what it might show is that the effects of

gerrymandering compound on each other.

Q. And does this -- and this particular chart only shows the

difference in the efficiency gap between 2010 and 2012;

correct?

A. Yes. Because I think that difference is most indicative of

the immediate impact of the redistricting plan.

Q. Okay. So if there was any variation in a given state or in

the country as a whole in 2010 compared to 2012, wouldn't that

affect -- if 2010 was unlike the average efficiency gap over

the course of the prior decade, wouldn't that potentially

affect this result?

A. It certainly could. I mean, none of these metrics are

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perfect. But primarily that would be a shock that would affect

the country as a whole. So to the extent there's an intercept

shift, it would affect all states equally rather than just

states that Republicans or Democrats controlled, which is what

this chart is splitting out.

Q. You didn't study the politics of Ohio in particular in 2010

for this analysis, did you?

A. No. I'm familiar with my academic work, as we talked about

in deposition, with the politics of Ohio at a general level,

but for purposes of this report, I didn't conduct any

specialized analysis of Ohio voting patterns in 2010 beyond

what I show in the report.

Q. So just by looking at this figure, we couldn't tell if

there was any idiosyncratic effect in Ohio that may influence

where on that -- you know, the change in the efficiency gap

that you measure between 2010 and 2012; right?

A. No. Looking at Ohio in isolation we couldn't. But that's

why I conduct the analysis at a nationwide level, to show that

in the table on the following page that the effect of partisan

control of redistricting is a large and statistically

significant effect looking across all the states in the

country, and in that case we can rule out idiosyncratic effects

looking at the nation as a whole.

Q. Okay. Now, returning to my prior line of questioning, can

you give me a value of the -- or the percentage of Ohio's

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efficiency gap in 2012 that is attributable to VRA-related

issues?

A. I cannot.

Q. Can you given me a percentage of Ohio's 2012's efficiency

gap that's attributable to any other idiosyncratic factors in

the state, for example, the communities of interest and similar

considerations?

A. No. I think for purposes of comparing the Ohio plan

specifically to these other base lines of a -- what is, quote,

"neutral and non-partisan redistricting process," I think for

the purposes of that, Professor Chen's testimony later this

week will be most useful.

I'm sorry. Professor Cho. I'm sorry.

Q. Now, more broadly in your report you offer the opinion that

you believe, depending on what year, that partisan bias has

resulted in Republicans winning between one and four more seats

in Congress from Ohio. Is that fair?

A. Yes.

Q. Okay. But you can't tell us an exact number; right?

A. No.

Q. And you can't tell us what number of seats, if any, you

believe Republicans gain due to the effect of intentional

partisan gerrymandering versus any of the other factors we

talked about like geography or VRA goals; correct?

A. No.

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Q. Now, Professor Warshaw, you'd agree with me that the

efficiency gap can be volatile throughout the life of a

congressional plan; right?

A. Yes, I think I tried to be transparent about that in my

report, particularly for states with a small number of

districts, but even for larger districts it can be -- numbers

of districts, it can be somewhat volatile.

Q. Sure. And let's pull up your supplemental report PX 476,

page six and Figure 3.

A. I'm sorry. Where are you?

Q. We're going to be -- we'll get it up on the screen here,

but we're at page six, Figure 3.

A. Of --

Q. The supplemental report.

A. The 2018 report.

Q. Yes. The supplemental report, tab 3 in your binder.

A. Terrific.

Q. Now, this is your scatter plot of the efficiency gap in

Ohio from two thousand -- or, excuse me, from 1972 to 2018 for

all states with at least seven districts; right?

A. Yes.

Q. Okay. The efficiency gap in Ohio jumps around quite a bit

from 2012 to 2018; does it not?

A. I think it jumps around a fair bit. All of the values

display a pro-Republican map, but the level of extremity jumps

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around.

Q. So if a court is going to consider striking down a

districting plan as an impermissible partisan gerrymander,

doesn't it really matter what years the Court looks at in its

analysis?

A. Well, yes, if you were only looking at the efficiency gap.

But, first of all, I'd say a court -- most indicative of the

gerrymander is going to the first plan after -- the first

election after the plan goes into place, which is why I focus

on that in the bulk of my report.

And second, given the availability of multiple metrics, I

would recommend that a court use the available metrics that we

have. 

So in this case I calculate five different metrics. And

the other four -- all four of the other metrics are

substantially less volatile than the efficiency gap. So

looking across the metrics, it's very clear that the Ohio plan

has an historical anomalous level of partisan extremity.

MS. THOMAS-LUNDBORG: Your Honors?

JUDGE BLACK: Yes.

MS. THOMAS-LUNDBORG: I just wanted to register an

objection to the last question as asking the witness to render

a legal opinion.

JUDGE BLACK: Very well. None of the witness' answers

are to be deemed legal conclusions.

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MR. LEWIS: Yes. Thank you, Your Honor. It was not

the intent of the question.

JUDGE BLACK: Understood.

Q. So if we turn to this -- if we go back to this efficiency

gap, and I -- if we look at -- if I understand correctly, your

assessment of Ohio's efficiency gap, it is based on the fact

that it's an outlier, historically speaking; right?

A. That's correct.

Q. Okay. And if that's the standard that we use to judge a

gerrymander, an outlier statistic -- why don't you define for

the Court what an outlier means, statistically?

A. A value of a distribution that's more extreme than the

majority -- than a large majority of the values of that

distribution.

Q. And so if we imagine the bell curve where you're talking

about an outlier, you're in that little tail at the end, one

end or the other of the bell curve; right?

A. Exactly. That's what I show on Figure 1, two pages earlier

than this.

Q. Sure. So if we take the view that an efficiency gap score,

Ohio's efficiency gap score in 2012 is beyond the pale and we

draw the line and we say at that level it's an impermissible

gerrymander, we draw the line -- and we'll just draw a line

there. That works. Okay.

Then in future years isn't it a huge risk that a plan

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that -- for example, it looks like we -- and I realize this is

not an exact science, but if we look at some of those other

values for the efficiency gap in states in, for example 2012 or

2014, in future years, wouldn't those plans become the outlier?

A. Well, I think that our evaluation of outliers, it's

possible, could evolve, but I think that the -- it's not

something I've thought about in any detail. I think that, for

now, what we can say is that the current Ohio plans are an

outlier, you know, really no matter what your definition is,

your precise definition is. So I don't think that we need to

figure out how this -- how we might use a standard in ten years

or 20 years that --

Q. Yeah. Okay. So if the -- if the analysis of these plans

is an outlier depends on where a plan falls in historical

average, if you're a redistricting authority in, say, 2021

trying to draw your plans, how would you know if an efficiency

gap score or potential score for a plan would be an outlier at

the time you're drawing the plan?

A. Well, I think that if you didn't use partisan intent in

drawing the map, it wouldn't be something you'd have to worry

about because it wouldn't be anywhere close to being an

outlier.

Q. But if -- is that a normative judgment of yours that

redistricting authorities should not consider partisanship in

connection with drawing districts?

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A. It's not something I've thought -- I don't have an opinion

about that.

Q. Well, regardless of whether they consider intent or not, if

redistricting authority is trying to decide, Am I going to

adopt this plan or not? Is my plan going to get struck down as

a gerrymander under the Warshaw test?, how do they determine if

they're an outlier or not?

A. Well, I think if you evaluate a plan based on the various

metrics that I have proposed and based on those metrics as we

talked about earlier, if it's an outlier on looking across

those metrics on all or most of those metrics, then that would

be indicative that it's a gerrymander. And I can't speak to

the legal standard of when courts should strike it down, but --

Q. And then for each successive year in a plan, the line for a

statistical outlier, depending on where you set it, could

change from year to year; correct?

A. Well, I think that, again, I would focus most of all on the

first year of a plan, and then I would look to the average of

all of the results of the remainder of the plan. And if we do

that in the case of Ohio, if we look at the results across the

average -- the average results across all the plan, on all --

on most or all of the metrics, it's still more extreme than 95

or 96 percent or more pro Republican, I should say, than at

least 95 percent of previous plans. And I think any

statistician or political scientist would agree that that's an

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outlier.

Q. But those values -- if you're looking at an average, with

each succeeding year you're adding additional data to the data

set; right? I mean, every year you're getting however many

more elections or however many more dots are getting added to

the average; right?

A. Yes.

Q. Okay. So each year that calculation of what is or is not

an outlier changes; doesn't it?

A. It will change a little bit, but that's true of any

statistical distribution: that you're adding data to it. I

mean, I think the lesson of the last 40 years is you can look

at the graph and it hasn't changed dramatically. I mean, in

the 1970s we had plans that displayed partisan bias just like

we do today.

Q. Okay. Professor Warshaw, you indicated in your report that

you believe that an efficiency gap could be somewhat sensitive

to the outcome of a handful of close elections. Do you recall

that?

A. Yes.

Q. Okay. And, specifically, let's pull up your rebuttal

report. P572. And specifically I'd like to direct you to page

three. That's tab 2 for those following in paper.

Now here, Professor Warshaw, I believe that you're

responding -- and I'm under section 3.2, that first paragraph.

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And here you're responding to a criticism, by Professor Tom

Brunell, of your efficiency gap analysis; correct?

A. Yes, that's correct.

Q. Okay. And I believe you're responding to a criticism that

he raises around the volatility of the efficiency gap; correct?

A. Yes.

Q. Okay. And one comment that you made, about six lines down,

you have a sentence, and it reads, "No state with more than 6

seats went from an Efficiency Gap that dramatically favored one

party (as does Ohio's) to one that favored the other party."

Do you see that sentence?

A. I do.

Q. And why is that representation you've made in that

sentence, why is that important to understanding your point in

response to Professor Brunell's criticism of volatility?

A. Well, I think the most important part of my responses are

the quantitative responses later. I mean, this was merely

illustrative -- 

Q. Sure. 

A. -- to sort of qualitatively describe the durability. But

if you had a number of states that went -- like if you imagine

the efficiency gap in Ohio went from negative .2 for favoring

Republicans to .2 favoring Democrats and it bounced back and

forth and there were a large number of states where that was

true, you know, then it could be concerning about what this was

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capturing. In fact, we don't observe that in the real data.

Q. Okay. Now I'm just returning briefly to the point about,

you know, the results being impacted by a couple of close

elections. Ohio had a few pretty close congressional elections

in 2018; did it not?

A. Yes. We talked about earlier there were, I think, two

maybe competitive elections where the Republican won with 51

and a half percent or so of the vote.

MR. LEWIS: Okay. And why don't we pull up

Plaintiffs' Demonstrative 72.

Q. And, Professor Warshaw, is it fair to say that there were

two congressional elections in Ohio that the Republican won

with less than 52 percent of the vote?

A. Yes.

Q. Okay. So wouldn't you agree with me that the efficiency

gap in Ohio in 2018 could have been impacted by those two very

close races?

A. Yes. But I think those -- while those were competitive

races, the result wasn't -- it wasn't so close that I would say

the result was random. I mean, the Republican won those races

by three points, so most -- if you were to rerun this --

imagine this as sort of a simulation. If you were to rerun

this simulation a hundred times of this race, the Republican

would have won that race the large majority of those times.

This isn't a case where it, like, you know, randomly could have

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tipped back and forth between Democrats and Republicans.

So I think what we'd be most concerned about is a race

where, you know, one party won with like 50.1 percent of the

vote, because that truly could have been -- you know, anything

could have determined that close of an election, but I wouldn't

put these in that category.

Q. So you don't believe that any candidate -- for example, you

don't believe that any candidate-specific factors could have

influenced the election outcomes in the 1st or 12th

Congressional Districts?

A. No, that's certainly not what I'm saying. I mean, I think

that certainly candidate-specific factors affect any election.

But I think here we look at the broad patterns across

districts, and that reflects the Republican advantage in this

map.

Q. But if, for example, those two results were flipped or even

one -- let's say, for example, if District 1 had flipped and

instead the Democrat had prevailed at 51 percent, would that

have affected the efficiency gap in Ohio?

A. Absolutely. But I think the thing to keep in mind is it

also would have increased the Democrats' vote share. So it

wouldn't -- it's not like you would have -- you would hold the

vote share constant and assume a seat flip. 

Like if you increase the Democrats' vote share in this

district, that would increase their statewide vote share. And,

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indeed, most commonly the thing that would increase their vote

share in this district would actually be a uniform shift in the

Democrats' seat vote share in all districts. So that would

imply that with a higher vote share, Democrats should get a

higher seat share. So the effect on the efficiency gap is

actually somewhat ambiguous, probably would lead to a slightly

less pro-Republican efficiency gap, but probably not by as much

as just shifting the seats would imply.

Q. So, Professor Warshaw, I'd like to turn to, very briefly,

your efficiency gap analysis of Mr. Cooper's proposed remedial

plan. And, specifically, let's turn to page 15, Table 3 of

your supplemental report, which is P476 or tab 3 in the binder.

A. Yes. I believe I'm there now.

Q. Okay. So this provides your analysis, this Table 3 on page

15 of the supplemental report, this provides your calculation

of the efficiency gap of Mr. Cooper's proposed remedial plan

from 2012 to 2018; correct?

A. Yes.

Q. Okay. And you calculate the efficiency gap of his proposed

plan as a negative .11 in 2012; right?

A. Yes.

Q. And so in your view would that be a fairly strongly

pro-Republican efficiency gap?

A. Yes. If you're looking at that in isolation, I wouldn't

say it's a large anomaly, but that's a pro-Republican --

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certainly a pro-Republican efficiency gap.

Q. Okay. What's the plan's efficiency gap in 2018?

A. .05.

Q. So that's an efficiency gap of five percentage points in

favor of the Democrats; correct?

A. Yes.

Q. All right. So when you earlier responded to Professor

Brunell's criticism by indicating that no state with more than

six seats went from an efficiency gap that dramatically favored

one party to one that favored the other party, isn't that

exactly what the efficiency gap does with Mr. Cooper's remedial

plan?

A. No, I think I intentionally used the language

"dramatically." And the example I provided was a state like

Ohio that had a negative 20 percent efficiency gap flipping to

being positive. I mean, I think that as -- as I responded to

the question from the Judge earlier, there's measurement error

on any of these metrics, and the closer they get to zero. The

less surprising it is that -- they're going to bounce around a

little bit over time, which we've talked about at length now.

So it's less surprising that, occasionally, one would flip over

the zero line. 

But if you look, on average, across these metrics, you

know, as we talked about, all of them display a little bit of

pro-Republican advantage, which may reflect geography or other

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factors, but on average, they reflect relatively little

partisan advantage. So I'd say, on average, this is a

relatively neutral map.

Q. Right. So a 16-point shift in the efficiency gap to you is

not particularly significant; is that correct?

A. Well, as we talked about, I think the efficiency gap can be

volatile election to election, and that's why it's important to

look at the average across multiple metrics and, if they're

available, multiple elections.

Q. At the very end of this -- the farthest right column, you

calculate averages. Does that average also include the 2014

House elections?

A. To be honest, I'm not sure.

Q. Okay. 2014 was a good year for Republicans, right, in

Ohio?

A. Yes.

Q. Okay.

A. Though it's important -- I mean, to the extent it affected

the metrics, we talked about earlier in general they had a

little bit less pro-Republican bias that year. So I think if I

had included it, if anything, it would make these maps look

probably more neutral than they do here.

Q. But you didn't perform or report that calculation here, did

you?

A. I don't think so, but I'm not a hundred percent sure, to be

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honest. I would have to go back to my code to check for sure.

I don't show it in the table, which suggests I probably didn't

include it in the average, but I'm not a hundred percent sure.

Q. Okay. Now, earlier you testified about using a model to

impute results in un-- to uncontested congressional races;

right?

A. Yes.

Q. Okay. Now, from your Table 3, where you report that

efficiency gap of negative .11 in Mr. Cooper's remedial plan,

that wasn't your original calculation of the efficiency gap for

2012, was it?

A. To be honest, I don't know.

Q. You don't know, okay.

A. I'm happy to look at a page if you want to point me

somewhere.

Q. Happy to do it. So let's go back to your initial report,

PX 571. And I believe where we want to be is page 33 in Table

8. Maybe we can keep the -- let's keep Table 3 up on the

screen, and maybe if everyone's got their books, we can just

refer back. It might be the easiest way to do this.

A. Great.

Q. All right. So page 33 and Table 8. And here you calculate

the efficiency gap for 2012 as a negative .08; correct?

A. That's correct. I think here, as you are implying, I

didn't impute the uncontested districts in my initial report

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maybe.

Q. Okay.

A. But I think I did in the later reports.

Q. And so the effect of -- and I think you answered my

question.

So the decision to impute results to those uncontested

elections can affect the efficiency gap; right?

A. Yes. And I think it's certainly the best methodological

practice to impute the uncontested races, particularly when

you're looking at observational results. I think when you're

looking at simulations, it's a little bit less clear. I still

think it's probably best practice to impute them, but still I

think the best practice is a little bit more in flux. But in

my view, what I would recommend someone do is impute them,

which is what I did in my later reports when we realized I

hadn't done that in the main report.

Q. Okay. And the method that you used to impute those results

you mentioned was a -- how do you impute results?

A. So I used the results in contested elections, in past and

future elections, as well as results-available data from other

elections. So in this case I used precinct-level results. 

So the imputation model here focused just in Ohio, and it

was -- I imputed precinct-level congressional results based on

past and future congressional results in that precinct as well

as presidential voting patterns in that precinct.

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Q. And how did you determine what past and future election

results to use to calculate to impute a value in 2012 for those

uncontested races?

A. So in the case of 2012, I would have just used future

results. There is no past results that we can use for this

map.

Q. Sure. And how did you decide which races to include in

that -- in your calculation of the imputed result?

A. Well, methodologically I used the same approach that I used

for the observational -- for the uncontested congressional

races in my main report, which was to simply use the

congressional results and the presidential results. So that

you could -- you could think of this model as really being

identical to what I describe in my appendix to my main report,

except being at the precinct level rather than at the

congressional district level.

Q. And is there any disagreement in the literature about how

to construct that imputation model?

A. Not really. Not at a theoretical level. People use

different statistical models. So I used an open-source

statistical model that I helped develop. But, you know, there

was no disagreement in theory about whether you should use

available statewide elections as well as past and future

results at the congressional district level. 

And, for instance, that's what Eric McGhee has done in his

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various papers, Gary King does and Andrew Gelman in their

seminal papers. Simon Jackman has used that approach in his

expert reports for cases like this one. So I don't think

there's any disagreement about the basic approach.

Q. All right. And specifically as applies to Mr. Cooper's

proposed remedial plan, is it fair to say that your -- the

imputation of results to the uncontested races in 2012, in

fact, moves the efficiency gap for 2012 in the remedial plan

outside that plus or minus ten percent efficiency gap guideline

for that 75 percentile range? Isn't that true that it moves it

outside that 75 percentile range?

A. Yes. I mean, I certainly wasn't worried about the results

when I ran the models. I thought the imputation model was the

best way to do it, so that was the model I ran.

Q. Okay.

A. But I think that just speaks to it's important to look at

the average across all of the metrics. So any individual

metric will be a little bit noisy, so I certainly wouldn't

declare a plan to be a partisan gerrymander based on one

efficiency gap value of negative .1 in isolation.

Q. Now, Professor, I'd like to just turn now to the equation

that you used to compute the efficiency gap, so I think that

appears on page eight of your report. Let's grab that equation

and the paragraph below it. There we go.

So, Professor Warshaw, can you describe what this equation

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is doing?

A. Sure. This equation, in order to calculate the efficiency

gap at the statewide level and take into account variation in

turnout, the best equation to use is to use the seat margin of

each party, which is their seat share minus .5, and then

subtract -- so in this case, the Democrats' seat margin -- and

then subtract from that two times their vote margin, and that

yields an estimate of the efficiency gap that takes into

account variation in turnout across districts.

Q. Okay. And for purposes of that vote margin, are you

counting raw votes or percentages of vote?

A. I aggregate all of the votes up to the state level, the raw

votes rather than the percentages, and that's what takes into

account the variation in turnout. So then I calculate the

percentage at the statewide level based on the raw votes for

each party in each district.

Q. And when was this -- and why -- is there a -- turnout

vary --

In the original formulation of the efficiency gap, wouldn't

you agree with me that turnout, unequal turnout, can affect the

calculation of the efficiency gap?

A. Well, the initial version of the efficiency gap didn't

take -- it didn't really take turnout into account; it just

looked at the vote percentage in each district and,

essentially, assumed equal turnout. And so this is why, in

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2017, in a peer-revied article in 2017, Eric McGhee developed

this adapted version of the efficiency gap that takes into

account variation in turnout. And I think in all of his

subsequent work this is what he's used and he recommends and I

agree with that.

Q. And how do you know that this formula controls for

variation in turnout from district to district?

A. Well, it can be mathematically shown that it does, which is

what Professor McGhee does in his 2007 Election Law Journal

article. I think he presents the mathematical proof.

Q. All right. Now, you're not an expert in mathematics, are

you?

A. Well, I'm an expert in statistics, which obviously uses a

lot of math. I wouldn't claim I'm a mathematician, but I do

think I'm an expert in statistics. But the article is just

based on -- again, was peer reviewed, which means it passed,

you know, scientific standards.

Q. Now, where you multiply, you have the seat share less

twice, or two times the, vote margin. Why do you multiply the

vote margin by two?

A. Because this is simply what the initial wasted votes -- if

you assume equal turnout across districts, this is exactly what

the initial efficiency gap formula implies. But I think

implicit in the efficiency gap is an assumption that the

historical norm of a two-to-one relationship between seats and

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votes, which is the vote-seat curve that historical U.S.

elections have observed, is a reasonable benchmark. And that's

what this formula reflects.

Q. Okay. So stated more generally, then, is that the

implication of this formula that for every percentage increase

in a party's vote margin, the party's expected to receive a two

percent increase in seat margin?

A. Exactly.

Q. Is that term called a "swing ratio" in political science?

A. Yes, that's one of the terms that people use for that.

Q. Okay. So if we assume a perfectly symmetrical seat-vote

curve but with a swing ratio that is greater than two, meaning

that for every percentage increase in the vote margin the party

receives greater than two percent increase in the seat margin,

that efficiency -- the resulting efficiency gap would not be

zero under this formula; correct?

A. That's true.

Q. So that means that if the true swing ratio is larger than

the two that's assumed in this formula, wouldn't that amplify

the efficiency gap of a plan?

A. It could, but, again, two things -- I say two things in

response. First is that the two-to-one swing ratio is the

historical norm in U.S. elections. This just reflects the

history of the United States.

And secondarily, to the extent that, you know, different

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states could have small variations around that natural

vote-seat curve, you know, as I emphasized repeatedly, no

metric is perfect and that's why we should look to multiple

metrics.

Q. Okay. Now, Professor Warshaw, in your rebuttal report you

cite to a 2018 Stanford Law Review article authored by

Professors Stephanopoulus and McGhee entitled "The Measure of a

Metric"; do you not?

A. Yes.

Q. Okay. And do you consider that work a reliable authority

on the efficiency gap?

A. Well, it's not peer reviewed, so it hasn't been judged by,

you know, a reviewing panel of its peers. However, in my

evaluation of an article, the analysis there matches what I've

independently done for the analyses that I've replicated, so I

think that I view it as reasonably reliable with the caveat

that it hasn't been peer reviewed.

Q. Sure.

MR. LEWIS: Okay. Let's go ahead and pull up on the

screen the three. All right.

Professor Warshaw, I'm going to provide you and counsel and

the Court with copies of the article that we've just discussed.

May I approach, Your Honor?

JUDGE BLACK: Yes. Thank you.

MR. LEWIS: The nameplate survived.

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JUDGE BLACK: I'm still looking for that other guy.

MR. STRACH: We're going to send him back to North

Carolina.

Q. All right. Professor Warshaw, do you recognize what I've

handed you as the 2018 article in the Stanford Law Review

authored by Professors Stephanopoulus and McGhee entitled "The

Measure of a Metric: The Debate Over Quantifying Partisan

Gerrymandering"?

A. Yes, I do.

Q. And this is the article that you cited in your rebuttal

report dated November 26, 2018?

A. Yes.

Q. I'd like for you now to please turn to page 1534 of this

article. And, specifically, I'd like to direct your attention

to that second paragraph. We can leave the zoom where it is.

Do you see where Professors Stephanopoulus and McGhee

write, quote, "The fit is not perfect - at both electoral

levels, historical responsiveness has been slightly higher than

2"?

A. Yes.

Q. So is that problematic to you that the authors of the

efficiency gap have acknowledged that responsiveness has been

slightly higher than two historically?

A. Well, the previous two sentences read, "The charts also

include a seat-vote line with a slope of 2," and "In both

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cases, the points cluster quite tightly around this line."

So I think the point of this analysis, which my own

independent analysis confirms, is that the -- the historical

vote-seat relationship is quite close to two. I actually think

if you look at more recent elections, theirs looks at the long

term, which is actually ever so slightly less than two. But

regardless, it does cluster tightly around two, which both

their analysis and my own independent analysis confirm.

Q. Okay. But at the end of the day --

JUDGE WATSON: Are we there yet?

(Laughter.)

MR. LEWIS: Soon.

Q. The variation in that swing ratio, that assumes a swing

ratio of a two is ultimately an assumption that you're applying

in the efficiency gap; is it not?

A. It's one of the -- I think the efficiency gap has multiple

foundations. The first foundation is simply that of the

foundation around wasted votes. But then that corresponds --

the way the wasted votes formula is developed corresponds to

this two-to-one swing ratio.

So, again, like in my view, the historical swing ratio is

quite close to two. You know, you would never expect it to be

exactly two. But, overall, the efficiency gap does reflect the

historical relationship between votes and seats in U.S.

elections.

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And you can -- if you turn to the next page of their

report, on 1335, you can just see -- or 1535, you can see this

visually, that clearly the dots tightly cluster around the

two-to-one vote-seat curve.

MR. LEWIS: Your Honors, this is sort of a natural

break point in my cross. We may want to consider taking a

lunch break and finishing after lunch.

JUDGE BLACK: How long do you anticipate your

continued cross will be?

MR. LEWIS: Less than one hour.

JUDGE BLACK: I think it would be unfortunate to make

you continue your cross at this time with the duration of your

cross interfering with the panel's lunch.

(Laughter.)

JUDGE BLACK: Accordingly, I agree with your

proposition.

We'll break now. We'll break for an hour and five minutes

and be back at 1:00 o'clock and continue.

During the break the witness will not discuss his

testimony. And he understands that; correct?

THE WITNESS: Yes, Your Honor.

JUDGE BLACK: Very well. We're on break until 1:00.

COURTROOM DEPUTY: All rise. This court is in recess

until 1:00 o'clock.

(At 11:56 AM, a luncheon recess was taken.)

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AFTERNOON SESSION

(In open court at 12:59 PM.) 

(Christopher Warshaw resumes the witness stand.)

JUDGE BLACK: Thank you. You may be seated.

We're apparently back from recess, although I define recess

differently. 

Plaintiffs' counsel is here. Defendants' counsel is here.

The intervenors' are here. The witness is on the stand. 

You remain under oath. And you understand, sir?

THE WITNESS: Yes, Your Honor.

JUDGE BLACK: Very well. You may continue your

cross-examination.

MR. LEWIS: Thank you, Your Honor.

CROSS-EXAMINATION (Continued) 

BY MR. LEWIS:

Q. Professor Warshaw, I'd like to switch gears with you now

and talk a little bit about some of the other partisan bias

metrics that you evaluate in your report.

MR. LEWIS: And can we go ahead and pull up PD74.

Okay.

Q. Now, Professor Warshaw, you calculate the mean-median

difference for Ohio for each year from 2012 to 2018; correct?

A. Yes.

Q. Well, Professor, does the mean-median difference

measurement account for political geography?

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A. No.

Q. Does the measure allow you to account for incumbency

protection?

A. No.

Q. Does the measure allow you to distinguish between any

partisan bias due to gerrymandering versus factors other than

gerrymandering?

A. No, not looking at it in isolation.

Q. Would you agree with me that packing and cracking can occur

in a districting plan in a manner that does not affect the

mean-median measure?

A. Yes. I think I stated that in my report.

Q. Would you further agree with me that this metric can't tell

us how many seats a party gains through partisan bias in a

district plan?

A. Yes. I think I also stated that in my report, although you

can -- you can get a rough approximation of it actually by

looking at the actual distribution of seats, but it takes a

little bit more effort than it does than the efficiency gap.

Q. And would you agree with me that the mean-median analysis

you conducted in this case does not measure if a specific

district in Ohio's plan was drawn with discriminatory partisan

intent?

A. Yes. It's not a metric designed to look at specific

districts.

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Q. Okay. And, likewise, would you agree with me that the

mean-median difference analysis you conducted in this case does

not tell us if a plan exhibited a discriminatory partisan

effect on voters in any specific district?

A. That's correct.

Q. And do you have a bright line number for a mean-median

measure beyond which you would consider a plan a gerrymander?

A. No. Just like the efficiency gap, I would look at its

level of extremity relative to the historical distribution of

mean-median differences and look for historical outliers.

Q. All right. Just turning briefly to the declination, when

was the declination metric first proposed in the literature?

A. I believe it was proposed in 2017 by a mathematician at the

University of Vermont named Gregory Warrington.

Q. Okay.

A. And that was subsequently published in a peer-reviewed

article in the Election Law Journal.

Q. Okay. And would you acknowledge that the declination

metric has not been subject to a broad critique in the academic

community?

A. I think that's -- I think that's fair. I think it's a

newer metric, but I'm not aware of any wholesale critiques of

it.

Q. All right. And in your report is it fair to say you

describe the declination as being a similar concept to the

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efficiency gap?

A. Yes. I think they're both trying to Kaptur the underlying

partisan bias or advantage in a districting plan and they're

quite closely related empirically.

Q. All right. Would you agree with me that the analysis you

conducted in this case using the declination metric can't tell

us how many seats a party gains through a partisan bias in a

district plan?

A. That's correct. The declination is not designed to tell us

a specific number of seats; it's simply designed to be an

indicator of partisan bias and it's designed to be very easily

comparable across states and across time.

Q. Okay. And would you agree with me, Professor Warshaw, that

the declination analysis you conducted in this case would not

be able to tell us if a specific district in a district plan

was drawn with discriminatory partisan intent?

A. Yes, that's correct.

Q. And would you likewise agree with me that the declination

analysis you conducted in this case would not be able to tell

us if a plan exhibited a discriminatory partisan effect on

voters in a specific district?

A. That's correct. It's a statewide metric.

Q. And does the declination metric control for turnout

variation between districts?

A. I don't -- I don't believe so, no.

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Q. Now, Professor Warshaw, you used two symmetry metrics. You

have symmetry and then the symmetry with the counterfactual

50-50 breakdown. Do you see that?

A. Exactly. And that mirrors the work that Gary King and his

coauthors have done, especially his work with Andrew Gelman.

Q. I'd like to turn briefly to page 16 and Figure 2 of your

initial report. So tab 1 in the binder and P571 for the

exhibit.

Now, Professor, I understand this is from your

responsiveness analysis, but is this plot reporting that 50-50

symmetry metric?

A. Yes, that's another metric that you could derive from this

plot.

Q. Okay.

A. Even though it's not exactly -- as you're saying, that's

not how it was designed, but --

Q. I was just looking for a nice way to describe it based on

what you -- so we didn't have something -- something a little

different than just a number. That's -- 

A. Yes.

Q. So it's fair to look at it for that purpose?

A. Yes.

Q. Okay. This is an initial question. In Figure 2 at the

bottom, you're indicating that if the Democrats only had a vote

share of 20 percent, that they would have one seat; correct?

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A. Yes, that's right.

Q. Do you happen to know which seat that might be?

A. I don't. I mean, it was the seat we discussed earlier, I

think, where the vote share was above 80 percent in two of the

elections and then it was uncontested perhaps in one. I don't

remember which seat number that is.

Q. Okay. If I told you that was the 11th Congressional

District, would that --

A. I'd still need to see it in front of me.

Q. Okay.

A. I trust you're telling the truth, but, yeah.

Q. Okay.

A. I still don't know it by heart.

Q. All right. Now, would you agree with me that Democratic

congressional candidates have never achieved a 50 percent or --

well, that the Democrats have never achieved a 50 percent or

better vote percentage in Ohio's congressional elections from

2012 onward?

A. Correct. They did during the previous decade, which is why

that's reflected in the blue area here, but they haven't since

2012.

Q. Okay.

A. Or since the new plan went into place.

Q. Okay. Professor, does this -- and what we're using this

plot for is that counterfactual 50-50 symmetry measure;

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correct?

A. Correct.

Q. Okay. And does that metric control for political

geographic differences?

A. No.

Q. Does that metric control for incumbency protection?

A. No. It's like the other metrics. It's simply trying to

Kaptur partisan bias in the districting process. It's not

trying to account for other potential things that we might want

to characterize.

Q. Okay. So then isn't it possible that some, if not all, of

a -- of any asymmetry in -- reported in the counterfactual

symmetric 50-50 metric is attributable to factors other than

intentional partisan gerrymandering?

A. Sure. But as I talked about earlier, this was -- this

symmetry metric was more pro Republican in 2012 than 97 percent

of previous congressional elections. So I think in order to

believe that, you would have to think the geography, the

underlying geography or incumbency protection in Ohio was

different than 97 percent of previous elections, which seems

unlikely to me. I think the much more likely explanation is

that this was the result of the -- of the intent to draw a

partisan gerrymander.

Q. And at what percentage -- so you say it's 97 -- it's more

Republican than 97 percent of plans. What's that percent -- is

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there a percentage point at which you would no longer believe

that it is the result of intentional gerrymandering?

A. There's no bright line that I can point to.

Q. So 90 percent may or may not be enough?

A. I think what I would -- I think all I can say is that if

you're looking across the metrics on average, I think that if

it was more than about 90 percent -- if it was more in favor of

one party than about 90 percent of previous maps, I think that

would be very indicative of a partisan bias looking across the

different metrics. But I don't have -- I don't have a bright

line for any particular metric.

Q. And even the metrics combined is -- you have not offered

the opinion in your report that 90 percent is the value beyond

which a plan is a gerrymander; correct?

A. No. I think for me that would just be indicative. It

still wouldn't be a bright line that would make -- that I would

think it's dispositive, but it would be indicative of one.

Q. Okay. And would you agree with me that the partisan

symmetry analysis you conducted in this case, whether using the

counterfactual symmetry metric or the other symmetry metric you

use, would either of them allow you to determine if a specific

district was drawn with discriminatory partisan intent?

A. No. These are both statewide metrics, so they don't enable

you to characterize a particular district.

Q. And, again, with respect to those two metrics, the two

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symmetry metrics, would you agree with me that the analysis you

conducted in this case using those metrics would not be able to

tell us if a plan exhibited a discriminatory partisan effect on

voters in a specific district?

A. No. It could be the same answer. These are statewide

metrics. They're not designed to characterize a particular

district.

Q. Now, your report provides an analysis of responsiveness and

competitiveness in Ohio's congressional plan. I'd like to talk

a little bit, first, about your responsiveness analysis.

So to make sure we're working with the most recent data,

I'd like to turn to page 14 and Figure 10 of your supplemental

report. So that's P476 or tab 3 in the binder.

Okay. So in this particular chart how are you defining the

level of responsiveness of a plan?

A. So this is based on counterfactual uniform vote swings that

would lead to a vote share in the average district between 45

and 55 percent. So what we see is how does the number of seats

change for this -- or how does, say, the Democrats' seat share

change based on this ten percent vote-share change.

Q. Okay. And like other aspects of your analysis in this

case, is it true that you only consider for this analysis those

states that have at least seven districts in their

congressional district plan?

A. Yes.

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Q. And have you performed an analysis of responsiveness where

you consider states with six or less congressional districts in

their plan?

A. I think I calculated it, but I didn't report it for all of

the analyses in my --

In my reports, I focus on states with more than six

districts, just for consistency.

Q. Okay. Now if the plan -- why does the responsiveness --

you would agree with me then that the responsiveness in Ohio's

congressional plan from 2012 to 2018 varied from election to

election; correct?

A. It did a bit using this metric, yes.

Q. Okay. And the vertical line, dashed line, right around --

just slightly less of .2, that's the average level of

responsiveness from 1972 to 2018; correct?

A. Yes.

Q. All right. So if your plan is to the right of the line,

that means you're more responsive than the historical average;

correct?

A. Yes, using this metric.

Q. Got it. Okay. So wouldn't you agree with me that the 2012

plan was more responsive than the historical average in 2018?

A. I would, using this metric, but I can -- the reason for

that is because this metric goes from 45 to 55 percent, which

is what I calculated just for consistency with the literature.

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But as we talked about earlier, Democrats have never actually

gotten above 50 percent. In this plan, they haven't gotten

more than 50 percent of the vote share. So all of the seat

swing in this responsiveness evaluation occurs with more than

50 percent vote share for Democrats, which hasn't actually

occurred during this redistricting period. So in some ways,

like, the responsiveness here is all kind of hypothetical, that

if Democrats would get more than 50 percent, seats might shift.

But, remember, these responsiveness metrics are trying to

give us an indication of the durability or insulation of a

plan. And what we've actually observed in real life is that

despite a range of different election results where Democrats

have gotten anywhere from around 40 to 48 percent of the

two-party vote share, their seat share hasn't actually changed.

So, indeed, this plan does seem to be insulated against changes

in voters' preferences in the range of election results we

actually observe in Ohio.

Q. Your understanding is that these values would change if

Democrats had, in fact, achieved a greater than 50 percent vote

share in a two-party vote in Ohio in 2018; correct?

A. Exactly. I think that's what this metric is telling us.

If Democrats had gotten, you know, 52 percent of the vote, then

that would have been fairly responsive, although it still would

have displayed a large bias against Democrats with the -- for

instance, the graph in Figure 8 shows that even if Democrats

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had gotten 55 -- it would have taken 55 percent of the vote in

2018 for Democrats to win half the seats. And if Democrats had

gotten 51 percent of the vote, they still would have received

far less than half the seats.

Q. Now, although you report those numbers as percentages,

there are only 16 seats that one can Kaptur; right?

A. Yes, that's true.

Q. Okay. So every seat reflects approximately -- what? One

divided by 16 is about what, six and a quarter?

A. That sounds about right.

Q. Okay. So every time -- so you get two seats. That's about

12 and a half percent; right?

A. Exactly.

Q. Okay. And, in fact, on Figure 8 on page 12, I believe your

testimony was that if Democrats got to 55 percent of the vote

share, that they would get half the seats; right?

A. Exactly. So they would -- I projected they would win eight

seats if they were to win 55 percent of the vote share.

Q. And due to that natural clustering or that natural packing

phenomenon that we talked about earlier, is it a total surprise

that in a system where you have single-member districts, that a

party might have to win slightly more than 50 percent of the

vote to Kaptur 50 percent of the seats?

A. Perhaps not, but I wouldn't characterize 55 percent as

slightly more than half of the vote. I mean, that would be a

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ten-point margin between the parties, which is larger, for

instance, than in the wave election either in 2010 or '18 that

we observed at the national level.

So that would be the equivalent -- what you're essentially

saying is that to believe the geography is what's driving this,

you would have to believe that geography means that in order to

win even half the seats in Ohio, Democrats would have to have a

wave election in their favor larger than we've seen at the

national level in decades just to get half the seats in Ohio.

And I don't -- I don't know of any political scientist that

argues that geography has such large effects.

Q. Okay. Why don't we turn to page -- or PD73. Okay. Now,

Professor Warshaw, in -- you claim in your report that -- you

describe the GOP as narrowly winning the statewide

congressional vote in 2014 and 2016. Do you recall that?

A. In -- I don't recall them -- I don't recall saying that in

2014 and '16. I may have said that about 2012 and '18, but I

don't think I would have said -- if I said that about 2014 and

'16, then it was certainly an error.

Q. Okay.

A. Because those certainly aren't narrow statewide results. I

think they're competitive, which is what I might have said. I

characterize a statewide vote share between 40 and 60 percent

as potentially competitive at the statewide level, but I

wouldn't characterize it as narrow.

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Q. Okay. Well, help me understand that then. Why don't we

turn to page 23 of your initial report. So 571, tab 1 in the

binder. Because you write on that first -- not the first full

paragraph but the continuation, you write, quote, "In 2014 and

2016, Republican candidates retained the same 75% share of

Ohio's seats, even while just narrowly winning the statewide

vote."

Do you see that, Professor?

A. I do, and I'll -- I'll own up. I think I misspoke there.

I think that's wrong and those were not narrow victories.

Q. Now, Professor, just taking a step back, do your

responsiveness metrics, your -- strike that.

In general, Professor, is it fair to say that your

responsiveness metrics just look at whether the candidate that

wins the election is a Republican or a Democrat; correct?

A. That's correct, yeah. Yes.

Q. Okay. So it wouldn't -- I'm sorry. Okay. I didn't mean

to speak over you, Professor. I'm sorry.

So that -- that metric is not sensitive to any within-party

variation between different types of Republican or Democratic

candidates; correct?

A. That's correct.

Q. So, for example, if you had a moderate Republican versus a

conservative Republican, that type of variation would not be

captured in your response metrics; correct?

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A. Well, it would be partially captured because the statewide

vote share would also -- it would be reflected in the vote

share as well as the seat share. So I don't think it's

entirely true that it wouldn't be reflected at all, but it

probably wouldn't be entirely reflected.

Q. Well, how would the voter seat share be affected if a

particular district is represented by a more moderate

Republican versus a more conservative Republican?

A. Well, to the extent that -- well -- sorry. For purposes of

elections it might be reflective. Maybe you're talking about

something else. Maybe I misheard you, so I'm sorry.

Q. Okay. Right. I was just looking at sort of where --

responsiveness -- I think. Okay. I think I understand where

we're going. Okay. I apologize for that.

Isn't it true that if a -- that even if a congressional

representative in a safe district, in a district where you

would view it as not responsive or competitive, wouldn't that

representative still have to be responsive to their voters'

concerns to avoid a challenge at the polls?

A. Not necessarily. I mean, certainly not opposite party

voters. Because they, in an uncompetitive district, would be

very unlikely to lose the general election. It's possible

they'd have to be responsive to primary voters. But even

there, I think what -- what we know empirically is that

within-party responsiveness to voters who have a preference is

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pretty modest.

Q. Okay. Let's turn to competitiveness. Now, Professor, you

use a pretty specific definition of competitiveness; right?

It's that an election with a winning party has 55 percent or

less of the vote; correct?

A. Exactly.

Q. Okay. At 55 to 45, you're in that range, you're

competitive under your analysis; correct?

A. Exactly.

Q. Now, on Table 4 of page 14 of your report -- and let's see

if we can get there. Okay. Table 4 of page 14, you attempt to

correlate measures of partisan bias in states with more

competitive elections; correct?

A. Exactly.

Q. And here you use a competitiveness measure between 40 and

60 percent; correct?

A. Exactly. I mean, here I'm trying to -- it's a different

thing I'm trying to characterize. This isn't trying to

characterize any particular election like I am in the other

metric. I'm simply trying to look at states where the --

really that aren't, like, dominated entirely by one party would

be a different way -- it probably would have been a more artful

way of saying this. I wasn't trying to necessarily say

competitive states. It was more states that are not one-party

states like, say, you know, the south in the 1970s and '80s for

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Democrats.

Q. Okay.

A. Because I want to be clear that in those states, certainly

the metrics do diverge a little bit more, in states that are

really dominated by one party.

Q. Okay. All right. And my last question on this table

before we move on is, now you conclude here that there's a high

correlation between all these different -- all five of your

partisan metrics; correct?

A. Yes.

Q. Okay. And you believe that those five metrics are both

theoretically and empirically correlated; correct?

A. Yes.

Q. Okay. So returning to competitiveness briefly, I'd like to

turn to Figure 9 on page 13 of your report -- of your

supplemental report, excuse me. Plaintiffs' 476 or three in

the binder.

All right. So, Professor, this Figure 9 appears to show

the proportion of competitive congressional elections in each

state from 1972 to 2018; correct?

A. Yes, that's correct.

Q. Okay. And the vertical line that is sort of between the .1

and .2, that represents the average over the period; correct?

A. Yes, that's right.

Q. Okay. Now, using this kind of competitiveness, isn't it

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fair to say that in two out of four of the elections held under

the 2012 congressional plan that Ohio's plan was relatively

average in its competitiveness compared to the nation as a

whole?

A. I think that's fair. If you look across the plan as a

whole, I think it's certainly less competitive than the nation

as a whole, if you look across the four elections. But

certainly 2012 and '18 were not substantially below the

historical average.

Q. Sure. 2014 and 2016, though, I think, isn't it --

A. Sorry, 2012 and '18 I meant to say. I'm sorry.

Q. No problem. Those 2014 and 2016 elections that you

indicate are not competitive, weren't those really strong years

for Republicans in congressional elections?

A. They were. So I think, you know, if I could conjecture

what happened with the map, the mapmakers likely cracked the

districts here such that Democrat -- or Republicans were

expected to win by around -- with around 55ish percent of the

vote, maybe a little bit more than that. And so in these wave

years for Republicans, then those districts became more

Republican and none were competitive. And in the wave year and

good years for Democrats, those districts that were designed to

be around 55 percent for Republicans became a little more

competitive, but on the whole, on average, they were like right

on the bubble of competitiveness and, on average, were expected

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not to be competitive.

Q. And when you describe the analysis you just provided as

conjecture, what does that mean to you?

A. I can't rigorously point to something in my report, but,

you know, thinking about what would explain the pattern that we

see here and connecting the dots with the other parts of my

report.

Q. Well, you have not provided an empirical analysis to

support the conjecture that you've just given here today;

correct?

A. That's correct.

Q. Okay. And would you agree with me that Ohio's -- degree of

competitiveness in Ohio's congressional plans have, you know,

skipped around quite a bit dating, frankly, all the way back to

1990, at the least?

A. Yes.

Q. Okay. I'd like to return briefly to our discussion from

this morning about partisan intent. And you focus on one-party

control of the redistricting process as being a, you know, a

criteria that you point to for partisan bias.

A. Where are you? I'm sorry.

Q. Well, I'm just -- I'm talking more generally. We can go

back, if you prefer to go right out of the report, we can go to

page 16 of your primary report, which is, I think, where you

start your discussion.

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A. Great. Thanks.

Q. Sure. And did you study -- well, let me start here. While

this may seem like a blindingly obvious question, please, you

know, bear with me. So what's the causal mechanism by which

you believe unified-party control of state government affects

the degree of partisan advantage?

A. When you control -- when you can pass a redistricting plan

without support from the other party in a unified government,

then you can draw the map such to convert your party's votes to

seats as efficiently as possible, usually via cracking and

packing.

Q. And is it fair to say that for your analysis that you added

this one-party control requirement to your -- well, let me take

a step back.

And just so that we're clear, your position is that for a

plan to be a partisan gerrymander, not only must your partisan

metrics favor a specific party and not only must those metrics

be considered outliers, but the benefited party must also be

the party in control of the redistricting process; correct?

A. I think that's foundational in that definition of a

gerrymander is you have to be able to demonstrate partisan

intent. I mean, I suppose there could be a very unusual case

where there was, like, an independent governor or something

that leaned toward one of the parties, but yes, I think in

general.

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Q. Okay. And is it fair to say that you require this

one-party control element because your partisan bias metrics

standing on their own are not sufficient to identify a

so-called partisan gerrymandered map; correct?

A. Well, I think I've tried to be clear about their metrics of

partisan bias. On their own, they don't -- they're not

dispositive for -- that it's a gerrymander, so you have to

connect the effect of partisan bias here with intent, and the

intent we can infer from the unified control of the government.

Q. Would it matter to your analysis if a redistricting plan

passed on a broad bipartisan basis?

A. I think that if the vast majority of the members of the

minority party supported it, it's possible, but I don't know of

cases like that. And, in general, I think as I talked about

during the direct testimony, the party that controls the

redistricting process has a great deal of power over what's

going to pass. So you would expect -- you'd always expect some

minority members to vote for it, either for idiosyncratic

reasons because the bill was packaged with other bills, or for

reasons of trying to carve out something in their own district.

Q. And so, for example, if a majority of the minority party of

one of the Houses of the Ohio General Assembly voted for the

plan, wouldn't that have an impact on your results, on your

analysis?

A. No. It would still be unified control of government where

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it's pretty clear that the party that controls the government

has the power to draw the map and potentially package it with

other things to attract minority party support. But I don't

think that would be relevant for determining whether it was a

gerrymander.

Q. And have you performed any empirical research to support

that, your conclusion in this case?

A. No. To my knowledge, the consensus in political science is

that political scientists define a gerrymander based on whether

there's unified control of government, and I don't know of any

academic study that's tried to tally up roll call votes.

Q. Okay. And to be clear, for purposes of forming your

opinions and writing your report in this case, you didn't study

the process by which Ohio adopted House Bill 369; correct?

A. No. And that's because, again, I don't think that's

relevant. If there was unified control of government, I

wouldn't look to the roll call voting pattern for the details

of the bill passage as important pieces of indicators.

Q. Okay. I'd like to briefly return to PD74 just for a

moment. Now, in your analysis to conclude that a plan is a

partisan gerrymander, you require -- how many of these partisan

metrics have to be an outlier for a plan to be a partisan

gerrymander under your analysis?

A. Well, I think what I said, they all have to favor the party

that drew the map and point in the same direction, and then

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looking at the average across the metrics, I would want it to

be an outlier. I think there could always be a case where, you

know, one metric might not be as much of an outlier as others.

But I think looking holistically across the measures you would

want it to be an outlier in order to classify a plan as a

gerrymander.

Q. So each measure has to be an outlier, or through some

calculation all five averaged together have to be an outlier?

Which is it?

A. The latter.

Q. The latter, okay. And not to belabor what we've discussed

about at length today already, but in your report you don't

provide a specific value beyond which the plan is presumed for,

you know, an outlier, beyond which the plan is presumed to be a

gerrymander; correct?

A. No. Again, I think that the Michigan plan -- or the Ohio

plan here is such an outlier that when you're more extreme than

99 percent of the historical plans, you know, we don't have

to -- I don't have to draw a bright line below that.

Q. Okay. Now, for 2010, which -- you understand that 2010

existed under the prior congressional plan; correct?

A. Yes, that's true.

Q. Okay. And would you agree with me that in 2010, that

several of your partisan bias metrics would not, in your view,

be an outlier?

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A. Sorry, in 2010?

Q. In 2010, yes.

A. Yes, certainly looking holistically across them, I wouldn't

classify 2010 as an outlier.

Q. Okay. And, in fact, I believe you testified yesterday that

you viewed the mean-median difference, in particular, in 2010

as very modest; correct?

A. Exactly.

Q. Okay. So therefore you'd agree with me, then, that the

plan in effect in 2010 was not a partisan gerrymander under

your analysis; correct?

A. Well, I don't -- I don't think I have a -- how do you put

this? I think certainly the metrics that we have in front of

us are not indicative of a partisan gerrymander.

Q. Thank you. All right.

I'd like to turn now to your discussion of political

polarization. How long has political polarization been on the

rise in America?

A. I would say since the early '70s. Political polarization

reached its minimum in the early '70s and it's been increasing

steadily since then. Yeah.

Q. And do we find political polarization in bodies other than

the U.S. House of Representatives?

A. Yes. All legislative bodies in the United States are

increasingly polarized.

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Q. So, for example, the United States Senate, would you

consider the United States Senate to be increasingly polarized?

A. Yes.

Q. Now in section 9.3 of your initial report, beginning at the

bottom of page 37 and carrying over to page 38, so that's P571

or tab 1 in the notebook --

A. Uh-huh.

Q. There we go. -- you describe -- and I'm reading that text

at the bottom of page 38, but we'll keep both pages on the

screen so you can see the whole thing.

A. Sure.

Q. You indicate that, quote, "In the most recent Congresses,

comma, a ten percent pro-Republican shift in the efficiency gap

is associated with a .095 shift to the right in a DW-Nominate

score."

Do you see that?

A. Yes, I do. 

Q. So if we round that up to a .1, is that then suggesting --

MR. LEWIS: Let's do this. Let's go back to 37 and

Figure 15. And if we could zoom in on that left chart. There

we go.

Q. So do I read that -- do I read your analysis correctly that

if we have a ten percent change in the efficiency gap, that the

average DW-Nominate score would change by a margin of nearly .1

on this scale?

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A. Yes, that's exactly right.

Q. Okay. I wanted to make sure my scales were right before we

went any further here.

Okay. So you indicate -- you've testified that the Ohio

efficiency gap changed from 2010 to 2020 (verbatim) by a margin

that exceeded ten percent; is that correct?

A. Yes. I can't read the exact number, but yes.

Q. Okay. So is it then fair to say that we would expect that

the DW-Nominate score for Ohio members of Congress should

increase, then, between 2010 and 2012 by approximately .1?

A. I think somewhere in that ballpark, although the regression

is based on a nationwide analysis; it wasn't based on just

Ohio. So, of course, there will be a little bit of -- a little

bit of measurement error there.

Q. Okay. Do you see a .1 difference in the DW-Nominate scores

between 2010 and 2012 on this chart?

A. I do, in fact. It's hard to visualize, but what you can

see is that in -- the mechanism, remember, for this is that

there's fewer Democrats elected. So in 2012, in the little

tiny dots in the bottom, there are two fewer -- I think -- I

believe there were two fewer Democrats. So the -- I didn't --

I didn't draw a line here of the average DW-Nominate score

across parties because that wasn't what I was trying to show in

this graph. But I'm fairly confident that if I had drawn a

central line it would have shifted about .1 up.

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Q. But you have not performed that calculation as you sit here

today, have you?

A. No, but I think that we can -- we can both look at this

chart and we could easily do the calculation and I'm fairly

certain that's what it would show. So I don't think the chart

here is at all inconsistent with the regression results at the

nationwide level.

Q. Well, you'd agree with me that there was very little change

in Ohio's congressional delegation from 2010 to 2012; right?

A. I can't remember the exact numbers, but it went from -- it

went from five to four Democrats or six to four. I can't

remember. But there was certainly a change.

Q. And in your report on the bottom -- on page 38, you talk

about that .095 difference as being a difference in the

ideologies of Senator Cornyn and Senator Graham; correct?

A. Yes. 

Q. All right. And do you recall in that time frame

approximately what Senator Graham's DW-Nominate score actually

was?

A. I know when I originally wrote this paragraph, which I

wrote about a year ago, I consulted their DW-Nominate scores

quite closely and they were exactly, whatever the distance,

.095 apart.

Q. But you don't recall what the DW-Nominate score actually

was at the time?

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A. I don't. I only know they were exactly .095 apart when I

wrote this.

Q. Okay.

A. And I think, just to put it qualitatively, Cornyn is one of

the leaders of the Senate, has consistently been quite

conservative. Graham, until the last year, was widely

considered one of the most moderate Republican senators. He

backed -- he almost voted for the cap-and-trade climate bill.

He's consistently backed compromises on immigration. So I

think in the last year he's become a little bit more

conservative as he's getting closer to his re-election in 2020. 

But if you look over the past decade and compare Graham and

Cornyn, you know, it's easy to just sort of qualitatively pick

bills and see that Graham was one of the ones, you know,

looking to compromise with Democrats, whereas Cornyn was on the

right of his party.

Q. So then when you assess Senator Graham's conservatism or

political moderation, you're looking at more than just one

legislative vote; correct?

A. Oh, absolutely. I mean, the DW-Nominate score is

aggregating across hundreds of votes, and, indeed, it's

actually aggregating across their entire time in Congress. So

it's not even just looking at a single Congress, because what

we know is that Congresspeople basically take the same

ideological position with some modest changes over their entire

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time in Congress. So you get a much more accurate picture of

any member of Congress' ideological positions by both

aggregating across all of their roll call votes as well as

aggregating across multiple Congresses.

Q. So you wouldn't want to just pick one -- one vote or one

issue in isolation; right?

A. Well, for purposes of looking at members of Congress who we

easily have data on hundreds of roll call votes, by looking at

hundreds of votes, we can get a very precise estimate of their

ideological positions. But I think what the examples I gave

you for Graham and Cornyn show is that, because congressional

roll call voting lies in one dimension. Most of the issues you

would cherry pick might -- or you might pick would -- would

support the general one-dimensional positions from the

DW-Nominate scores, and that's because roll call voting in

Congress is so one dimensional.

Q. So speaking of that, turning to the next page, page 39,

this is where you provide an analysis of partisan

gerrymandering in connection with the Affordable Care Act

repeal; correct?

A. Yes.

Q. And here you're examining the relationship between roll

call voting in Ohio's preferences on the repeal of the

Affordable Care Act; right?

A. That's correct.

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Q. And the data you leveraged for this analysis, it was a

survey from 2016; is that correct?

A. Yes, I believe that's right.

Q. Okay. Now, you'd agree with me that healthcare is a very

polarizing issue in the United States, wouldn't you?

A. Well, I think it's both polarizing, but it's been the most

salient issue of the past decade, and in politics usually

issues become more -- or are a little bit more polarized when

they become the most important issue as healthcare has been.

Q. So for your analysis in this case, why didn't you look at

multiple issues and why did you only instead look at, you know,

a highly polarizing issue like repeal of the Affordable Care

Act?

A. Well, what I've shown in my academic work is that public

opinion, just like congressional roll call behavior, lies along

one main dimension. So in modern American politics, Democrats

tend to hold liberal positions -- that hold liberal positions

in the Affordable Care Act also tend to hold liberal positions

on a range of other issues. And likewise, Republicans who

oppose the Affordable Care Act also tend to hold conservative

positions. 

So what that means is that regardless of which issue I

examined, as long as it was a relatively salient issue that

people knew something about, I wouldn't expect the results to

look any different from the one here.

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But unlike the congressional roll call data where the

DW-Nominate scores are very easily available and very easily

comparable, you know, it's harder to figure out how to

translate the -- do the analysis of the mass public in a way

that's digestible. The data isn't quite as easy to get and

then sort of display. So I picked healthcare because both --

as I said, it was -- because it was the most salient issue.

But then secondarily, just for data convenience issues, you

know, it would have taken a lot of time to do this kind of

analysis for a wide range of issues.

But I wouldn't have expected the results to differ if I had

done so, so I decided that just for economy reasons it made

sense to focus on one issue.

Q. So you can't tell us for sure, if you'd looked at a menu of

five or six policy positions, if your results would have

differed?

A. I can't tell you for sure, but based on my academic work

which finds that public opinion is one dimensional -- in other

words, lies along a main liberal/conservative spectrum just

like the roll call voting behavior in Congress -- I wouldn't

expect the results to differ across issues.

Q. So based on this analysis, then, doesn't your analysis

imply that Democrats, who live in what you term to be packed

districts, would be far more likely to agree with their member

of Congress?

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A. That's -- that's right, if you were to think about it at

the districts level. But it turns out that there's more people

that live in cracked districts than in -- more voters live in

cracked districts than packed districts, is I think one thing

this suggests, this graph suggests. In other words, more

Democrats actually live in the 12 cracked districts than in the

four packed districts.

Q. Finally, you conduct an analysis in section 9.5 of your

report, beginning on page 41, where you purport to draw a

connection between what you consider partisan gerrymandering

and citizens trust in their representatives. And for this you

use a question that appeared in the 2014 CCES survey; is that

correct?

A. Yes, that's correct.

Q. Okay. And the specific question that was asked was quote,

"Do you trust your district's Representative in Congress to do

what's right"; is that correct?

A. Yes.

Q. Has that -- how often is that question asked in CCES?

A. To my knowledge, it hasn't been asked in other surveys, so

that was why I focused on this one particular survey, because

we just lacked data on -- and, obviously, I think it's a useful

and interesting question to ask, but to my knowledge it hasn't

been asked on other large-scale surveys.

Q. And had that survey question been -- been validated in the

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political science literature so that we have a good idea what

it's actually measuring?

A. I can't answer that specifically, because I wasn't -- I

haven't looked at that. But I can say that the people that

design the -- that design the CCES are some of the top survey

methodologists in political science. So if a question is on

the common battery of questions that goes to all of the

respondents to the survey, then it's generally passed

scientific muster and is viewed by some of the top survey

methodologists in political science to be a valid question.

Q. Do you know why the question hasn't been asked since 2014?

A. They always rotate questions on and off the CCES for a

number of different reasons. You only have about ten or 15

minutes of time to ask respondents questions and so you can't

ask them everything that you might like.

Q. And you identify -- if we could turn now to page 42 of your

report. All right. And here you draw a -- you're showing the

relationship between the absolute value of the efficiency gap

and the survey -- the response to the survey question; correct?

A. Yes, that's right.

Q. Okay. First of all, overall, those are pretty -- pretty

low, in general, which, is it fair to say that Americans don't

seem to have very much confidence in their members of Congress

to do what's right?

A. I think that's fair to say.

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Q. Okay. In fact, the highest observation appears to be less

than 40 percent?

A. I think that's right.

Q. Okay. And you're aware, Professor Warshaw, that there have

been redistricting lawsuits filed, for example, in both

Maryland and Virginia; right?

A. I don't think I knew there was a partisan gerrymandering

case in Virginia, but I certainly knew there was one in

Maryland.

Q. Sure. But you know there have been multiple racial

gerrymandering cases in Virginia; correct?

A. That's -- yes, I knew that.

Q. Okay. And you know that there was a partisan

gerrymandering case brought in Wisconsin; do you not?

A. Yes, I did know that.

Q. Okay. So these are just three observations right here.

Would you agree with me that in these cases you have pretty --

you know, pretty high level, relatively speaking, of

respondents saying that they trust their representative despite

allegations that -- or despite the presence of litigation

alleging that these plans are gerrymanders; correct?

A. Yes, that's right. And what I'm showing in this graph is

this national relationship between state -- between partisan

bias and trust in their representatives, but certainly there's

some states that are off the main line.

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Q. And, in fact, the statistical significance that you're able

to show with this data set is only significant at the ten

percent level; correct?

A. That's correct. I mean, with only 23 states or 24 states,

whatever there are here, I don't think that's surprising.

Q. Yeah. And your report and analysis in this case does not

establish any causal relationship between the absolute

efficiency gap and the response to the CCES question; is that

correct?

A. That's true. With a cross-sectional relationship like

this, we can't rule out confounders. I think this is

suggestive of a causal relationship, but it certainly doesn't

nail it down.

Q. Now, Professor Warshaw, are you aware that the state of

California draws its congressional districts using an

independent commission? Are you?

A. Yes.

Q. Okay. Is it your contention that the present California

delegation to Congress after the 2018 election is less

polarized than the Ohio delegation?

A. Well, I think I'm making no claims here about polarization

and the difference in polarization across states. I'm simply

characterizing different levels of partisan bias across states

which is a wholly different quantity.

Q. Now, Professor Warshaw, you aren't offering an opinion in

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this case about voters' opportunity to influence their members

of Congress, are you?

A. Well, certainly voters whose candidate wins the election

are more likely to have their views represented in Congress. I

haven't analyzed for purposes of this paper or this report

the -- after an election what happens and whether like citizens

lobbying or something analyzing -- affects members of Congress.

Q. Okay. And you aren't opining in this case that, overall,

Democratic voters in Ohio don't regularly vote for candidates

who win elections, are you?

A. Certainly they do vote for candidates that win elections

sometimes. But on the whole, what I'm saying is that in

congressional elections, the Democratic voters are much likely

to have the candidate they prefer win the election than

Republican voters are, which, in turn, means that their views

are less likely to be represented in Congress.

Q. But whatever happens in a congressional election, you're

not asserting any impact on the overall ability of Democratic

voters, you know, to regularly -- you know, to vote for

candidates of their choice in other elections; correct?

A. Certainly they're free to vote however they choose, but I

think that if their candidates consistently lose, then their

preferences aren't going to be represented in the legislature

and in government at-large.

Q. But, for example, Democrats in Ohio were more than capable

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of voting for Senator Sherrod Brown twice during this decade;

correct?

A. That's correct.

MR. LEWIS: Okay. I have nothing further, Your

Honors.

Thank you very much, Professor Warshaw.

MR. STRACH: Very few, Your Honor.

I can't represent a number, but I can say very few.

CROSS-EXAMINATION 

BY MR. STRACH:

Q. Good afternoon, Professor Warshaw. Phil Strach. Good to

see you again.

A. Good to see you, sir.

Q. Good afternoon. I have just one line of questions that I

want to clarify with you.

You testified earlier how there's some research suggesting

that seniority in Congress is not necessarily a large advantage

to a state. Is that a fair characterization?

A. I think what the research suggests is that some members of

Congress are more effective at procuring funds for their state,

and that tends to be a function of who they are rather than

their seniority for the most part. I'm not saying it procures

no benefits, but I think the bulk of the differences in

effectiveness among members are sort of fixed attributes to

that member.

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Q. Okay. Are you aware of the -- do you happen to know about

the Wright-Patterson military base here in Ohio?

A. No. I apologize, I don't.

Q. So you don't -- so you wouldn't know that it's the largest

military base in Ohio then; is that correct?

A. No. That is correct, I don't know that.

Q. Right. You wouldn't know that it's one of the largest

military bases in the country, then, would you?

A. No, I wouldn't. I don't know that.

Q. All right. Well, assuming that to be the case, if

incumbency protection was used to ensure that that military

base would not be eliminated by the federal government, if

incumbency protection was used to do that, is it fair to say

that that would be very important to the people of that state?

A. It is. But I think it's a factual incorrect foundation for

the question. I mean, first of all, military bases are usually

eliminated through a commission which operates independently of

members of Congress. So individual members of Congress

actually have very little control over when a -- particular

bases are closed. And to the extent they did affect whether a

particular base closed, surely, whoever the member of Congress

was from there would share the opinion of trying to keep that

base open. But, most importantly, bases are typically closed

through a nonpartisan commission rather than through individual

members of Congress.

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Q. So is it your testimony that members of Congress can't

influence that process?

A. I don't want to say they have no influence, but they have

very, very little influence, at least in past -- in the most

recent rounds of base closings they're done through commissions

rather than through an ordinary legislation.

Q. All right. And you've never been a member of Congress;

have you?

A. No, but I am familiar with the academic literature on this

particular question.

Q. All right. Have you ever been in a state legislature?

A. No.

Q. All right. So if a state legislator said it was important

to the state to elect congressmen, Republican and Democrats,

who could protect the military base, you wouldn't be in a

position to dispute that; would you?

A. Well, I'd be able to say that that assertion I don't think

is supported by the bulk of the literature.

MR. STRACH: Thank you, Your Honor. That's all I

have.

JUDGE BLACK: Very well. Redirect, if any?

MS. THOMAS-LUNDBORG: Just very, very brief, just to

clear some things up on the record.

JUDGE BLACK: Umm-hmm. That's what they all say.

As much as you want. Go ahead.

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CHRISTOPHER WARSHAW - REDIRECT 3 - 131 

MS. THOMAS-LUNDBORG: It will be brief.

REDIRECT EXAMINATION 

BY MS. THOMAS-LUNDBORG:

Q. Good afternoon, Dr. Warshaw. I believe you were asked some

questions about imputations earlier.

Oh, sorry. I think we're waiting to get the display back

up.

I believe you were asked some questions about imputations

during cross-examination and whether you had conducted

imputations in your initial report in the remedial map.

Do you recall that?

A. Yes.

Q. Okay. If you could turn to Exhibit 572. What date is this

report?

A. So this is my rebuttal report dated November 26.

Q. And could you turn to page 12 of the report, please. Page

12 at the bottom. Thanks.

Could you read what you stated in the second paragraph.

A. In the second full paragraph I say: In my updated

analysis, I used the actual U.S. House elections from contested

districts. For precincts in uncontested districts I imputed

each party's vote share using the same statistical model that I

discuss on the appendix of my initial report. 

Q. Thank you. And then if you read the sentence starting at

the bottom which begins at "For instance," which discusses --

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actually, if you could just read the paragraph beginning with

"Based on these results."

A. Right. Based on these results, it is straightforward to

calculate the same gerrymandering metrics as in my initial

report. For instance, I estimate that congressional elections

under the remedial map would have a relatively neutral

Efficiency Gap across this period -- 2012-16 elections of -.05.

Q. And if you recall, earlier you were asked if you averaged

2014. Does it appear that you were including the 2014 number

in this average here?

A. Yes.

Q. If we could go to Exhibit 571, and I'm on the footnote

beginning on page six, footnote five.

Now, you were asked -- are you there?

You were asked in cross-examination a lot of questions

about what data that you use and whether you use congressional

data. And you mentioned that in a footnote you discuss the use

of congressional data versus statewide data. Is this the

footnote that you were referring to?

A. Yes, that's exactly right.

Q. Could you read the sentence that carries over that begins

with "In practice."?

A. "In practice, though, both legislative races and other

statewide races produce similar efficiency gap estimates

(verbatim) for modern elections where voters are well sorted by

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CHRISTOPHER WARSHAW - REDIRECT 3 - 133 

party and ideology. Indeed, the data indicate that the

correlation between the efficiency gap estimates based on

congressional elections and presidential elections is

approximately .8 for elections held after 2000 and .09 for

elections held after the 2011 redistricting cycle."

MS. THOMAS-LUNDBORG: I have no further questions.

JUDGE BLACK: Very well. Thank you, Professor. You

may step down.

THE WITNESS: Thank you, Your Honor.

(Witness excused.)

JUDGE BLACK: Is the plaintiff prepared to call

another witness?

MS. LEE: We are, Your Honor.

JUDGE BLACK: Very well.

MS. LEE: Plaintiffs call William S. Cooper.

JUDGE BLACK: If Mr. Cooper would be willing to

approach.

MS. LEE: And I believe the deputy has binders for the

panel, the clerks and the witness.

JUDGE BLACK: You don't want to try and hand it to me?

MS. LEE: I think I've learned from others' mistakes.

JUDGE BLACK: We're going to get you close to the

witness stand. And if you would pause and raise your right

hand for the oath to tell the truth. Do you solemnly swear or

affirm that the testimony you give today will be the truth

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WILLIAM S. COOPER - DIRECT 3 - 134 

subject to the penalty of perjury.

THE WITNESS: I do.

JUDGE BLACK: Very well. Go ahead and get acclimated.

The seat tips back. And we're going to need you near the

microphone.

THE WITNESS: Feels good.

JUDGE BLACK: Good. You got it? We're going to need

you closer to that expensive federal microphone.

THE WITNESS: Okay.

JUDGE BLACK: Very well.

MS. LEE: Good afternoon. As I just mentioned, the

witness has a binder in front of him as does each of Your

Honors. Included are exhibits that have been agreed to by the

parties, so I'd like to move them into evidence in order of the

tabs in the binder. P90, P454, P91, P92, P93 and P598.

JUDGE BLACK: There's no objection from the other side

as to admission of these exhibits?

MR. McKNIGHT: No, Your Honor.

JUDGE BLACK: They're admitted.

(Plaintiffs' Exhibits 90, 91, 92, 93, 454 and 598 were

admitted.)

WILLIAM S. COOPER 

a witness herein, having been first sworn, testified as follows: 

DIRECT EXAMINATION 

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WILLIAM S. COOPER - DIRECT 3 - 135 

BY MS. LEE:

Q. Would you please state your name for the record.

A. My name is Williams S. Cooper.

Q. And where do you reside?

A. I live in Bristol, Virginia.

Q. What is your relationship to this case?

A. I have been involved in this case since midsummer of 2018

when I was retained by the ACLU to develop some redistricting

plans.

Q. Okay. Could you please turn to tab 2 of the binder in

front of you. For identification purposes, this is P454. It's

the longest of these tabs, so if you want to flip through to

identify what it is.

A. Yes.

Q. Do you recognize this document?

A. Yes. This contains my initial declaration and exhibits.

Q. Tab 2?

A. Oh, I'm sorry. Tab -- it includes my exhibits --

Q. Okay.

A. -- to the initial declaration, which is tab 1.

Q. Okay. And if you'd just turn to the second page under the

tab, which is Exhibit A. What is presented here?

A. This is simply a compilation of my work as it relates to

redistricting plans over the years since the late 1980s.

Q. And does this exhibit contain a listing of the cases in

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WILLIAM S. COOPER - DIRECT 3 - 136 

which you've testified?

A. Yes. Again, going all the way back to the late '80s. Most

of those were actually in Virginia.

Q. Is this document current?

A. It is not a hundred percent current. This was produced, as

you can see from the heading, in mid-September of 2018. So I

think I've submitted a second document that adds a couple of

cases where I've testified since then.

Q. Okay. What is your current occupation?

A. I'm a GIS consultant, a mapping consultant, mainly working

with socioeconomic analysis, and even more specifically, with

census data as it relates to socioeconomic analysis and

redistricting.

Q. And how long have you done this mapping-related work?

A. Again, since the late 1980s. Really, prior to that time,

there was very little mapping work around unless you were

working off a main frame at a think tank somewhere where you

could actually see a map on screen, probably going back as long

ago as the late '70s.

Q. In that time, how many redistricting plans have you drawn?

A. I've developed thousands of redistricting plans, but a

rough estimate is I've drawn probably plans for roughly 750

jurisdictions, some of those with only a few hundred people in

them, and many of them involved just one plan and nothing went

further than that. Others have gone on for years and years.

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WILLIAM S. COOPER - DIRECT 3 - 137 

Q. Have you ever drawn statewide plans?

A. Many times.

Q. Were any of those congressional districting plans?

A. I've drawn congressional districting plans in, probably, a

half dozen states, maybe more. Several southern states like

Georgia, Alabama, Virginia, Louisiana, Florida. I've drawn

plans in Maryland, Pennsylvania, Ohio obviously. So I've done

a fair number of congressional plans.

Q. Other than in this case, have you ever drawn plans related

to a partisan gerrymander?

A. I have made a brief appearance in the Benisek case in

Maryland, just a short-term project to demonstrate that the

defendants could have drawn another plan that would have been

even worse from a partisan standpoint, but at the same time, at

least looked a little better to the naked eye. I was working

on behalf of the defendants, but I was not very involved in

that case.

Q. And do you recall the case Smith v. Clark in Mississippi?

A. That was in the early part of the 2000s where I worked on

a -- a plan that would have led to a less partisan

congressional plan in the state of Mississippi. The state of

Mississippi lost a congressional seat in the 2000s after the

2000 census was released, which meant that the delegation lost

a Democratic seat in north Mississippi. And so I testified at

a trial showing that one could have probably produced a plan

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WILLIAM S. COOPER - DIRECT 3 - 138 

that would have at least given Democrats a fair fight in the

north Mississippi District. That was argued to the Supreme

Court and lost by the Democrats, so the net effect is there are

four districts in Mississippi now and three are Republican.

Q. And have you done any other plans, not necessarily expert

work in a case, but just drawn other plans related to a

partisan redistricting?

A. Yes. Recently I worked for Governor Wolf in Pennsylvania

last January and February over about a four- or five-week

period to produce a plan for his office that was later

submitted to the court along with several other proposals from

different parties in late February of 2018, and the court,

within one day, just selected a special master's plan.

Q. Sure. And we've already touched on that you have testified

as an expert before, and the cases that are listed here in

Exhibit A.

Generally, in cases where you've testified as an expert,

have you drawn districting plans in those cases?

A. I think in almost every instance, except for a case in --

well, there's a case in 1990 in Virginia, Moon v. Beyer, which

related to school district elections. But now that I think

about it, I didn't actually testify; I simply submitted the

declaration.

Q. In your work in redistricting and demography do you analyze

census data as a regular part of your job?

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WILLIAM S. COOPER - DIRECT 3 - 139 

A. Yes, both in drawing the redistricting plans, and also I

frequently testify in redistricting cases that involve Section

2 of the Voting Rights Act. So -- I will also testify on

Senate Factor 5 relating to socioeconomic disparities between

races.

Q. And do you generally submit declarations in the cases in

which you testify?

A. Almost always.

Q. Well, in your declarations do you generally author either

illustrative or remedial districting plans?

A. Yes.

Q. Have Courts implemented any of the remedial plans you have

drawn?

A. Yes, in several instances.

Q. Is it ever the case that the remedial plan implemented is

the same as the illustrative plan you author at the beginning

of the case?

A. That does happen. In fact, it happened as recently as last

week. A federal court in Mississippi has ordered what was an

illustrative plan as a court-ordered plan in a state Senate

district in Mississippi. It was a Section 2 lawsuit, Thomas v.

Bryant.

Q. When you have testified as an expert in the past, have you

been accepted by the court as an expert?

A. Yes, in all circumstances.

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WILLIAM S. COOPER - DIRECT 3 - 140 

Q. Well, have there ever been a time the court did not qualify

you as an expert?

A. No.

MS. LEE: Your Honors, we move to qualify Mr. Cooper

as an expert in the fields of redistricting, map drawing and

demography.

JUDGE BLACK: Defense wish to be heard?

MR. McKNIGHT: No objection to the qualification in

those fields.

JUDGE BLACK: The intervenors?

MR. TUCKER: No objection, Your Honor.

JUDGE BLACK: The Court deems the gentleman an expert.

Congratulations.

THE WITNESS: Thank you.

(Laughter.)

THE WITNESS: Not worthy.

Q. Mr. Cooper, what were you asked to do in this case?

A. I was asked to prepare a plan that undid what the lawyers

had considered to be a partisan gerrymander. And so I

proceeded from that standpoint with my census data and mapping

software to reexamine the plan that was adopted in 2012 and

apply traditional redistricting principles to result in a map

that was a little more fair for Democratic voters and at the

same time visually more appealing.

Q. And what did you take undoing the partisan gerrymander to

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mean?

A. I took it to mean that I knew at the present time with the

2012 election plan that the split in the delegation in Ohio was

12-4, and I was also aware that there were many Democratic

voters in certain parts of the state, namely in the Cincinnati

area; Hamilton County; northeast Ohio, particularly in Cuyahoga

County, Summit County; as well as a stronghold of Democratic

voters in Franklin County, in Columbus. So I initially started

looking at those areas to see if maybe, with more

regularly-shaped districts, one could create a plan that led to

a more balanced partisan result.

Q. Were you asked to do anything else in this case in addition

to drawing a proposed plan?

A. I was asked to develop a database of election data from the

precinct level for the 2012 and 2014 and 2016, 2018 elections.

Q. Were you asked to respond to the reports of any of the

experts from the other side?

A. Only to the report of Dr. Hood.

Q. And so you had just mentioned data compilation. If you'd

just flip to Exhibit B under tab 2 in the binder in front of

you.

A. Yes.

Q. Does that exhibit describe your data compilation work?

A. Yes, it does.

Q. Okay. We'll return to the work you did responding to the

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defendants' experts, but first I would just like to discuss

your work in creating a districting plan. In general, not just

specific to this case, how do you go about drawing a

districting plan?

A. Well, the first task is to obtain the census data and

geographic data that would allow you to pull up a plan on

screen. So I obtained -- or, actually, I already had what is

known as the PL 94-171 file, which is the first file released

by the census for purposes of redistricting. 

Every decennial census comes out in the early spring of

each year ending in one. Like 2021 will be the next year. And

using that file, I merged that with electronic files called

shapefiles that the Census Bureau releases with information

that goes from the county level and state level all the way

down to a census block, which is the equivalent, in a city, of

nothing more than maybe a city block, and in rural areas a

block can be much larger geographically because it's more

sparsely populated. 

And you can layer on top of that information about census

tracks or subunits of census tracks called block groups, which

are aggregations of census blocks. Then, of course, you can

also show on-screen boundaries for municipalities and for

school districts and for political subdivisions like townships

as we have in Ohio. So I had many different layers of

geography to look at using my GIS software as I was preparing

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mine.

Q. What type of software do you use in constructing

redistricting plans?

A. The software package I use is called Maptitude for

Redistricting. It's probably the most widely used software for

redistricting purposes, but there are other software packages

out there that can also be relied upon. But I'm pretty much

exclusively working with Maptitude.

Q. And when you're working in Maptitude, what do you view on

the screen?

A. I view a map that would show the whole state at any one

point in time, but I can zoom all the way down to street level

and actually look at this block and determine whether there's

anyone living here overnight, you know, as part of the census

enumeration. So I can see just about anywhere in the state

almost instantaneously just by zooming in.

Q. Did you submit a declaration in this case?

A. I submitted a declaration. I believe it was dated -- my

first declaration was October 5th, I think, of 2018.

Q. Could you please turn to tab 1 of the binder in front of

you. And for identification this is P90. Do you recognize

this document?

A. Yes. This was the initial declaration.

Q. What does this declaration lay out?

A. Well, for starters, I provided a little bit of demographic

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background for the state as a whole breaking out how population

has changed between 2000 and the census of 2010 as well as

updated census estimates through 2017, at the statewide level,

showing not just total population, but also a breakout of

population by race and ethnicity.

And I looked at other -- other smaller units of geography,

like metropolitan statistical areas which are combinations of

counties around the state, as well as the region of the state

which is predominantly Appalachian. And so in Figure 2 you see

population for those regional areas and population change over

time. And I think I have -- I have a table in here that shows

population by county for 2000, 2010 or 2017.

The Census Bureau provides estimates on an annual basis for

counties and the state but nothing under the county level. So

the 2017 estimates came out in the spring of 2017 at the county

level, so there will be updated stats sometime later this

spring for 2018.

Q. Does this declaration lay out background on the 2002 and

the 2012 plans?

A. Yes. In the third section I begin to provide a bit of

information on the 2002 plan and then move along to examine

what the 2012 plan looks like in terms of the districts as well

as the number of counties that are split by the 2012 plan. You

can see that information is starting in subsection (b)

paragraphs 24 to 29.

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Q. And then the declaration continues to lay out the proposed

remedial plan?

A. Yes.

Q. Did you review the 2012 plan in your work?

A. I did. I spent quite a while looking at it and analyzing

it from various angles. If one wants to really spend a lot of

time looking at it with great detail, you can click on a Google

map and actually see the whole thing all the way down to street

level.

Q. And the Google map you're referencing is the address listed

in paragraph 29?

A. Right.

Q. Okay.

MS. LEE: Could you please put up P90 at page 12,

Figure 5.

Q. And what's depicted here?

A. That is the 2012 plan.

Q. And when you reviewed the 2012 plan, did you identify

anything notable about it?

A. Well, I noticed that there were a number of counties that

were split multiple ways. Cuyahoga is split four ways, Summit

County is split four ways, Portage is split three ways, I

believe Stark is split three ways, Hamilton is split only two

ways but in sort of a -- in an irregular fashion. So that

jumped out at me. As well as the elongated District 9 known as

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Snake on the Lake. It runs from Toledo into -- into Cleveland.

And I also examined Franklin County, which has three districts

under the 2012 plan and is very irregular in shape.

Q. And referring back to your testimony earlier about how you

generally go about constructing a redistricting plan, how did

you go about constructing the proposed remedial plan that you

offer in this case?

A. Well, I started by seeing if there would not be ways to

reconfigure these population centers so that the District lines

were not so odd and extraordinarily unusual in shape.

So I was applying what are known as traditional

redistricting principles, but at the same time I was also aware

of Ballot Initiative 1 that had just been adopted statewide as

a result of the referendum. And so I knew that according to

the ballot initiative, any plan drawn in the future, at least

after the 2020 census at a minimum, would have to keep the city

of Cincinnati in a single district and the city of Cleveland in

a single district. So I wanted to also follow the ballot

initiative as well as just apply traditional redistricting

principles in any plan that I produced for you guys.

Q. In addition to keeping those -- Cincinnati and Cleveland

whole, do the requirements of the -- of Ballot Issue 1 mirror

what you consider to be traditional redistricting principles?

A. Yes, by and large.

MS. LEE: I'd like to please put up P90 at page three.

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If you're on paper, it's page three as well, paragraphs 5 and

6.

A. Yes.

Q. Are these the criteria that you used in drawing your

proposed remedial plan?

A. Yes. Traditional redistrict criteria, which would include

districts of equal population. Actually it has to be zero

deviation from the ideal district size for a congressional

plan. The districts have to be contiguous, compact and need to

comply with the Voting Rights Act.

Q. So you had just touched on equipopulation and contiguity.

Are those, would you say, the easiest to view, in sort of a yes

or no way, a plan complies with them?

A. Yes. Because you can get an instant readout from the

mapping software to know exactly what the underlying population

is, whether it's over a hundred people or under a hundred

people, whatever. And there is a menu item in Maptitude for

Redistricting which will automatically check for contiguity.

So those two are easily dealt with in a yes/no fashion.

Q. How do you assess compactness in a plan?

A. One way is to do the eyeball test and just take a look at

it and see if it makes sense visually. And that was my initial

concern with the 2012 plan, because it makes no sense visually.

But there are compactness tests which one can run using

Maptitude, so I employed two of the measures, the Reock Test

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and the Polsby-Popper Test as I was developing and comparing

and contrasting plans.

Q. If a district is larger in area, does that necessarily mean

it will be less compact?

A. No.

Q. And why not?

A. Well, you can have a district that's very small, an area

that's a city council district or state legislative district

which could be not at all compact and score very low on the

Reock or Polsby-Popper scores but maybe cover a very small area

just because it's densely populated.

Q. How do you define or assess communities of interest?

A. Well, it's something of a vague term and defined many

different ways, but I think it's fair to say a community of

interest would represent a -- an area or a region where there

are certain cultural or socioeconomic ties, historical ties.

And it can also be applied to minority populations as well,

taking into account the Voting Rights Act, where there's often

a community of interest as it relates to Latinos or

African-Americans in a Section 2 case, and in this case, too,

for that matter.

Q. Do you ever use counties or municipal political

subdivisions as a more objective way to identify communities of

interest?

A. Yes. That's a more objective way. It's not foolproof, but

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if you can show that you've attempted to keep counties and

cities together with a minimal number of splits or divisions,

that's an indication that you've preserved communities of

interest.

Q. Could an area along a waterfront be considered a community

of interest?

A. Could be.

Q. Did you observe any such communities of interest in Ohio?

A. Well, I think there was probably a community of interest

along the Ohio River and there is, obviously, Lake Erie, so

that is a kind of a community of interest.

I would question whether putting Toledo and Cleveland in

the same district along a 115-mile strip of land is necessarily

abiding by the real meaning behind the term community of

interest. Because to do that -- even though all that area

along Congressional District 9, in fact, is pretty much on Lake

Erie -- to do that you've got to split about five counties,

which in and of themselves are communities of interest. So I

don't really think you can draw Congressional District 9 and

argue that by so doing, connecting Cleveland with Toledo, you

are preserving communities of interest.

Q. How do you assess splits of counties and municipal sub --

excuse me, municipal civil divisions?

A. How do you assess splits?

Q. Yes.

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A. There is also a menu item in Maptitude that will give you

an instant readout of the number of counties and what are

called MCDs, metropolitan civil divisions or also known as

townships in Ohio, so I can see as I'm drawing a plan exactly

how many I split. Of course, as you're just working on a city

or a county, as part of the larger plan you can just visually

tell whether or not you're splitting. But as a final check,

you can always run the menu item on Maptitude and it tells you

exactly how many counties and political subdivisions have been

split with population breakouts.

Q. In drawing the proposed remedial plan did you split any

counties or other political subdivisions if you could avoid it?

A. No, I did not. There, of course, are many different ways

one can draw a plan, so it's sort of difficult to say if you've

hit the optimum. In the proposed remedial plan, that plan

splits 14 counties and 27 political subdivisions or townships.

So there may be another way to draw a plan that would have

even fewer splits, but I did not arrive at that solution. And

part of the problem is because, in addition to traditional

redistricting principles, one also has to attempt to take into

account the incumbents and their residences, because incumbents

can live just about anywhere. If you try to avoid pairing

incumbents, sometimes you're forced to split political

subdivisions or counties. So that's a factor that's always

lurking in the background.

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Q. If there are fewer districts to be drawn in a congressional

Plan, should that lead to fewer county splits?

A. Generally speaking, yes. For example, in the 2002 plan

there were 18 congressional districts, dropped down to 16, so

one would expect that you could reduce the number of county

splits by one or two under normal circumstances just because

you're working with fewer districts.

Q. Did you look at election results in drawing the proposed

remedial plan?

A. I had compiled information for the 2012 and 2016 elections

right at the outset as I was developing the proposed remedial

plan, and I also had available at my disposal the same data set

that the state legislature had. It's referred to in my report

as the Ohio Common and Unified Redistricting Database. And

that was prepared by a professor from Cleveland State as well

as another professor, I think, from Ohio University and some

graduate students over about a two-year period. And it breaks

out election results by precinct for the 2008 and 2010

elections, and perhaps even prior to that, but I think only for

2008 and 2010, and also included information about statehouse

and state Senate districts that were in place at the time of

the release of the 2010 Census. So I relied on that as well,

and there was just an enormous amount of political data in that

data set, including presidential contests and state legislative

contests.

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Q. Were you reviewing the whole set of election results when

you were drawing the plan?

A. No. I mainly focused only on House results. But I did

have that information available, so I occasionally glanced at

it. But I was not constantly monitoring every little -- every

little change in the percentage of the Democratic presidential

voting, 2008, as I was drawing the plan, for example.

Q. And you referred to constantly looking at -- you weren't

constantly looking at the other results. But for House results

were you constantly looking at them while you were drawing the

plan?

A. No.

Q. Were you here earlier for Dr. Warshaw's testimony today?

A. I was here for his testimony today but not yesterday.

Q. Do you recall that he was asked about the calculation he

did of the partisan metrics related to the remedial plan?

A. Yes.

Q. Is this the first time that you are learning of what the

partisan metrics for the proposed remedial plan were?

A. Yes. I have not met Dr. Warshaw, nor had I seen his expert

report or follow-up supplemental report even to this day.

Just -- all I know is what I've seen here today at trial.

Q. Okay. Once you've drawn the proposed remedial plan, did

you compare features of the 2012 plan with the proposed

remedial plan?

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WILLIAM S. COOPER - DIRECT 3 - 153 

A. Yes.

Q. So you had earlier mentioned that in assessing compactness

one of the things you do is a visual review of the districts,

so I'd like to show you about five of the districts under the

current 2012 plan and the proposed remedial plan that you

submitted in this case.

MS. LEE: Could we please put up P454 at pages 28 and

49. We are in tab 2 of the binder, but since we're popping

between two pages, electronically may be easier for folks.

Q. Do you have that on your screen? Do you see it?

A. Yes, I do.

Q. Okay. What is depicted here?

A. Well, on the left side you see the current U.S. House

District 1 which includes part of Cincinnati, part of Hamilton

County, and then goes into Warren County at the northeast

corner to pick up all of Warren County. So it's in two

counties of Warren and Hamilton.

And on the right-hand side you see the proposed remedial

plan, District 1, which is entirely in Hamilton County and

includes all of Cincinnati. A small part of Hamilton County is

in District 2 because Hamilton County has a population of, I

think, somewhere around 825,000 or so. So part of Hamilton

County would have to be put into District 2 and in a

16-district plan. 

Q. In your view, do you consider District 1 in the proposed

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WILLIAM S. COOPER - DIRECT 3 - 154 

remedial plan to be more regularly shaped than that in the 2012

plan?

A. Yes. That's an easy one.

Q. I would like to ask you also to compare District 3 under

each of the plans, which is in Franklin County. 

MS. LEE: If we could please put up P454, pages 30 and

51.

Q. And, Mr. Cooper, what is depicted here?

A. Again, on the left-hand side is Franklin County and

District 3. Under the 2012 plan and on the right-hand plan --

on the right-hand side is the proposed remedial plan showing

District 3 highlights, the yellow in both instances, with the

other districts surrounding it in gray shade.

Q. Do you find anything notable about the difference between

these two districts?

A. Well, yes. One is easy to figure out where the district is

and, obviously, much more regularly shaped. Present day

District 3 is a mess, really.

MS. LEE: Okay. Continuing on in this same exhibit,

could we please put up pages 36 and 57.

Q. What is depicted here?

A. On the left-hand side you see District 9 -- the so-called

Snake on the Lake -- running from Toledo all the way into

Cleveland and Cuyahoga County, crossing Sandusky, Erie, Lorain.

So you can see it's a long snake-like district. 

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And on the right-hand side you see the proposed remedial

plan, District 9, which encompasses only Lorain County and part

of Cuyahoga. Cuyahoga has to be split because it's well over a

million people, so there are going to be more than two

districts in Cuyahoga for sure.

MS. LEE: And continuing on in this same exhibit,

could we please put up pages 38 and 59. 

Q. Mr. Cooper, what is depicted here?

A. This is District 11. And, again, on the left-hand side you

see District 11 is drawn in the 2012 plan, which includes part

of Cuyahoga and then goes down into Summit County in a very

weird fashion, splitting Akron in bizarre ways. And you

compare that with the proposed remedial plan, District 11,

which is entirely in Cuyahoga County and much more reasonably

shaped.

Q. And does the proposed remedial District 11 contain the

entire city of Cleveland?

A. Yes. Again, I'm following Ballot Initiative 1 which would

require that all of Cleveland be in a single district.

Q. And I won't make us go through the entire map, but I would

like to look at just one more, please.

MS. LEE: Please put up pages 40 and 61 in this same

Exhibit P454.

Q. Mr. Cooper, can you identify what's depicted here?

A. Yes. On the left-hand side we're looking at District 13,

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which is part of Trumbull, Mahoning and into Portage County and

then into the weird boundaries within Summit County, which is

actually split among four districts. We're just looking at two

of them so far.

And on the right-hand side you'll see District 13 under the

proposed remedial plan, which includes a little bit of Mahoning

and then all of Trumbull, Ashtabula, and Lake Counties.

JUDGE BLACK: Can you stay close to the microphone.

Judge Watson would appreciate it.

(Laughter.)

MS. LEE: Thank you.

Q. We had touched on compactness before. Mr. Cooper, did you

compare the 2012 plan and the proposed remedial plan on

compactness scores?

A. Yes, using the objective compactness scores, Reock and

Polsby-Popper.

Q. Okay. And in tab 2 at Exhibit H -- 

MS. LEE: And we can just put it up on the screen,

P454 at page 73.

Q. Is that -- is this that comparison of compactness scores?

A. This is the comparison between the proposed remedial plan

and the 2012 plan. And you can see that the proposed remedial

plan scores significantly higher on Polsby-Popper in terms of

minimums and maximums as well as the overall mean. The bottom

line figure, the mean, shows that Polsby-Popper has a .35 score

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under the proposed remedial plan versus .19 under the 2012

plan. And the differences are not quite as large using the

Reock score where one sees a .41 mean average versus .35 in the

2012 plan. 

And as I explain in my report at some point, there are

issues relating to the Polsby-Popper score and the Reock score

for Congressional District 9 because of the way the Census

Bureau has extended water blocks that are part of these

counties along Lake Erie, out into the middle of Lake Erie.

And if you remove those water blocks, then District 9 scores

very low. So it is very misleading to look at this chart and

just look at the objective scores without that -- taking that

into account.

Q. Is there a hard cutoff measure under either of these

metrics for compactness?

A. Not -- not really, because you can have districts that are

reasonably shaped and follow jurisdictional boundaries perhaps

that would score low but would not be unreasonable.

Q. For both of these measurements, does the measure always

land between zero and one?

A. It always lands between zero and one. This Polsby-Popper

score is a perimeter score over area of a district. The

formula's in my report. But it's just a way to take into

account the perimeter and the area it covers, and if you have a

low score, in other words, something close to zero, that's an

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WILLIAM S. COOPER - DIRECT 3 - 158 

indication that it's not a very compact district, generally

speaking.

The Reock score is a little easier to understand because

it's just simply a ratio of an area for a circle drawn around

the district. And, again, districts that start getting below

.20 are somewhat problematic, generally speaking, in my

opinion. But not always. There are exceptions.

Q. Did you compare the 2012 plan and the proposed remedial

plan as far as county and municipality splits?

A. Yes.

Q. Okay.

MS. LEE: And if we'll please put up P454 at page 66.

Q. What is indicated here?

A. This just breaks out the counties that are split between

one or more districts or .2 or more districts under the

proposed plan and the 2012 plan.

Q. And for reference, this is Exhibit F from the appendix to

your original declaration.

If we turn to the next page in this exhibit, what is

indicated here?

A. This also shows the metropolitan civil divisions or

townships that are split between districts under the 2012 --

under the proposed plan on the left-hand columns and the 2012

plan in the right-hand columns. As I think I've mentioned, the

proposed plan splits 27 political subdivisions statewide

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compared to 73 in the 2012 plan or 55 of those which have

populations involved. Because there are some political

divisions that are split in the 2012 plan that involve

unpopulated areas, so if you don't count those, you're left

with 55 splits. So about twice as many political subdivision

splits in the 2012 plan versus the proposed plan.

Q. Okay.

MS. LEE: And could we just turn to the next two pages

in this exhibit. 

Q. This just continues the rest of the listing of the MCDs

split under the 2012 plan; is that correct?

A. That's correct. So the left-hand column has nothing there

because there were only 20.7 splits.

Q. Did you review the 2012 plan and the proposed remedial plan

regarding the non-dilution of minority voting strength?

A. I did. The proposed plan maintains a minority opportunity

district in Cuyahoga County with an overall black voting age

population of about 47 percent, which, as I understand it, is a

percentage that would -- would normally allow African-Americans

and other minorities in that district to elect a candidate of

choice based on the analysis that Dr. Handley conducted. She

testified yesterday. I was not here. But my understanding is

a 45 percent district, in her view, would be adequate. So

given that, I made the decision just to keep District 11

entirely in Cuyahoga County.

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WILLIAM S. COOPER - DIRECT 3 - 160 

Q. Why did you create a district that had a slightly higher

black voting age population than the 45 percent identified by

Dr. Handley?

A. It just happened. I put all of the city of Cleveland in

District 11 along with, I think, maybe a couple of suburbs, so

the end result was I had a 47 percent district. I was not

trying to max it out in any way.

Q. If you could please turn to Exhibit D2 under tab 2 in the

binder in front of you.

MS. LEE: If we could put up P454 at page 26.

Q. And is this the Population Summary Report for 2012, the

current Ohio congressional plan?

A. Yes.

Q. And what is the black voting age population in District 1?

A. In District 1 in Hamilton County and part of Cincinnati and

Warren County, the black voting age population, which is

indicated in the third from the right column, percent 18+. And

the AP stands for any part black, so it includes a small

percentage of African-Americans who are of more than one race.

And the percentage would be 21.3 percent.

MS. LEE: Okay. And could we please put up P454 at

page 47, which is Exhibit E2 under tab 2 in the binder in front

of you.

Q. Is this the Population Summary Report for the proposed

remedial plan?

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WILLIAM S. COOPER - DIRECT 3 - 161 

A. Yes, it is.

Q. And is the black voting age population in District 1 higher

under this plan?

A. Yes, it's about five percentage points higher. It's 26.74

percent. And, again, this just happened because I left

Cincinnati in a single district rather than splitting it into

part of District 2 as well as District 1.

Q. And did you consider the non-dilution of minority voting

strength in any districts in addition to Districts 1 and

Districts 11, which we've already discussed?

A. I was also mindful of the significant black population,

minority population in District 3, which is in Franklin County,

so I did take that into consideration as well. The percentage

in the proposed remedial plan for District 3 is 30.31 percent,

which is about the same as it is in the 2012 plan, maybe a half

point less.

Q. Okay. Did you compare congressional election results under

the 2012 plan and the proposed remedial plan?

A. Yes.

Q. Okay. If you could flip back to your declaration at tab

one in the binder in front of you and please turn to page 20. 

MS. LEE: If we could please put up P90 at page 20,

Figure 8.

A. Yes, I have it.

Q. Sure. Thanks. What is depicted here in Figure 8?

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WILLIAM S. COOPER - DIRECT 3 - 162 

A. This just compares the percentage Democratic vote by

congressional district for the proposed plan versus the 2012

plan across three post-2010 election years: 2012, 2014 and

2016.

Q. How did you compute the percentages shown in this figure?

A. I took precinct level data, disaggregated it to the census

block level based on the voting age population in the precinct

versus the census block and then reaggregated it back up to the

congressional district level.

Q. Are these predictions of what the outcome would be in these

districts?

A. No. They simply are historical in nature and would reflect

nothing more than the vote for each one of those three election

years.

Q. This is the aggregation of actual vote percentages in the

underlying VTDs; is that right?

A. That's correct. And it's only head-to-head contests. So

if there was a third party -- head-to-head Democrat versus

Republican. So if there was a third-party candidate, that vote

share is not counted, so these would add up to a hundred

percent Democrat plus Republican.

Q. And continuing on on page 20, looking at paragraph 51, were

there any uncontested congressional elections in those years?

A. Yes. In 2012, District 8 was uncontested. That was

Representative Boehner's district. And also there was no

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WILLIAM S. COOPER - DIRECT 3 - 163 

Republican candidate in District 11.

Q. And in 2014, was there an uncontested election?

A. There was no candidate for the Democrats in Congressional

District 7.

Q. Well, did you impute election results for those uncontested

races?

A. No. I'm not a political scientist so I did not attempt to

produce my own imputed results. I was aware that Dr. Warshaw

was going to go ahead and do that in his analysis.

Q. Why did you use percentages here in Figure 8 instead of

just vote totals?

A. It's just an easier way to review the data rather than

having what would amount to 16 columns with vote totals.

Q. Can you determine if a district is packed or cracked just

by seeing the percentage of the vote alone?

A. No, you cannot.

Q. And why not?

A. Because you have to take into account regional differences

in the spatial pattern of partisan voting, Democratic parts of

the state, Republican parts of the state. And also even in the

urban areas one would have to take a look at the underlying

population, not just partisan, but also racial. And taking

into account all those factors, then you could maybe arrive at

a conclusion as to whether a district is cracked or packed

along partisan or racial lines.

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WILLIAM S. COOPER - DIRECT 3 - 164 

Q. So if you put a city that had been split back together in a

single congressional district, would that be likely to drop the

Democratic percentage in the district that it previously had

been split into?

A. It could, but the reverse could -- well, in the -- in the

case of Congressional District 1 where I made Cincinnati whole

again, the impact was to significantly enhance Democratic

voting strength in Congressional District 1. But the reverse

effect would mean that in some of the rural counties that would

be in proposed plan District 2 along the Ohio River would have

a higher Republican percentage, obviously. But that area is

overwhelmingly Republican anyway. So I don't think that just

because Congressional District 2, under the proposed remedial

plan, has a higher Republican share that I'm in some fashion

packing Republicans into District 2, or, put differently, that

I'm packing Democrats into District 1 because it's got a higher

Democratic share by virtue of keeping Cincinnati whole.

Q. Do you think that a plaintiff who goes from a district with

a very high Democratic percentage is necessarily worse off in a

district with a lower Democratic percentage?

A. No, I don't think one could say that.

JUDGE BLACK: How are you coming?

MS. LEE: More than half.

JUDGE BLACK: Think it's time for a break?

MS. LEE: Okay.

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WILLIAM S. COOPER - DIRECT 3 - 165 

JUDGE BLACK: We're at almost 3:05. We're going to

break for 15 minutes to 3:20. During the break, sir, please,

do not discuss your testimony. Okay?

THE WITNESS: Okay.

JUDGE BLACK: Very well. We'll break until 3:20.

COURTROOM DEPUTY: All rise. This court is in recess

until 3:20.

(Witness temporarily excused.)

(Recess taken: 3:04 PM - 3:22 PM.)

(William S. Cooper resumes the witness stand.)

JUDGE BLACK: You may all be seated. Thank you. The

witness may re-take the witness stand. And the witness

understands that he's still under oath. Correct?

THE WITNESS: I do.

JUDGE BLACK: Very well. And you told me, what,

you're 90 percent through? Is that what I heard?

MS. LEE: Let's say 65.

JUDGE BLACK: Take the time you need.

JUDGE WATSON: Within in next five minutes.

Q. Referring back to your original declaration that we've just

been discussing at tab 1, have you discovered any errors in

your declaration since you finished it and it was produced?

A. I discovered a typo on page 11, paragraph 26 of my

declaration.

Q. And what is that?

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WILLIAM S. COOPER - DIRECT 3 - 166 

A. The paragraph reads, "The counties of Cuyahoga and Summit

are each split into four districts." And the final sentence

says, "Franklin, Lorain, Mercer, Portage, and Summit," again,

"are split into three districts." And that should be "Stark"

instead of "Summit."

Q. Did the error in that paragraph at all impact your opinion

in this case?

A. No, not at all.

Q. Did you find any other errors in your original declaration?

A. Well, I now have some question in my mind as to whether

there are 22 counties that are split in the 2002 plan or if, in

fact, it is 21. According to every piece of information I

found on the Census Bureau's Web site which identifies all

census blocks in the state as well as which congressional

district they are associated with, there are 22 counties that

are split. But if you look at the data, the Census Bureau

indicates that there is just one block of District 12 in Knox

County which has seven people in it. And if you go back and

look at the legislation that enacted the 2002 plan, it

indicates that Knox County is entirely in District 18 with no

part in District 12. So I believe it's a Census Bureau error,

but have not been able to identify with certainty that it is,

because even the Census Bureau's errata page on the Web site

does not identify that particular error as one of several

errors in Ohio. So it's either 22 or 21.

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WILLIAM S. COOPER - DIRECT 3 - 167 

Q. And would -- if it's an error, would the error of thinking

22 counties are split in the 2002 plan versus 21 counties

impact your opinions at all?

A. Well, only to the extent that it would suggest that it

would have been even easier to get below 20 split counties in

the 2012 plan with some reduction of the districts in the

congressional plan from 18 to 16. So right off the bat it

should have been possible to aim for 19 splits at a minimum.

And as we've shown with the proposed remedial plan, obviously

you can go much lower than that.

Q. And did you identify any other errors in the original

declaration?

A. Not in the text. I am aware of a mistake that surfaced

sometime in late November when we discovered we had an

incorrect address for Representative Jordan. Is that what

you're referring to?

Q. Yes.

A. Okay.

Q. And where did you get Congressman Jordan's address

initially?

A. I got it from the plaintiffs' attorneys.

Q. Yes. And I continue to apologize.

Did this incorrect address impact your work at all?

A. No. We had incorrectly identified Congressman Jordan as

living in Lima, and he actually lives in Urbana in Champaign

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WILLIAM S. COOPER - DIRECT 3 - 168 

County. So we have done a follow-up plan that changes

Districts 4 and 8 slightly to make sure that no incumbents are

paired in the proposed remedial plan.

Q. Okay. So if you'll please turn with me to tab 3 in the

binder in front of you. And for identification this is P91.

What is this document?

A. This document simply points out that error that I just

noted, correcting District 4 and 8, so that Congressman Jordan

is in District 4 and Congressman Davidson is in District 8 and

would not be paired with Congressman Jordan.

Q. And are there any other changes to the proposed remedial

plan besides that that you've just identified between Districts

4 and 8?

A. No. Other than changing a couple counties in that portion

of the plan, there are no other changes to any of the other

districts. It has no impact whatsoever on anything I said

prior to this November 30th declaration.

Q. Okay.

MS. LEE: And so if we could please put up P91, page

three, paragraph 5.

Q. And so the number of county and MCD splits remains; is that

correct?

A. Correct.

Q. And do the compactness scores remain the same?

A. They remain the same.

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WILLIAM S. COOPER - DIRECT 3 - 169 

Q. Did the changes you made in the proposed remedial plan,

corrected, at all impact the non-dilution of minority voting

strengths that you considered in your original plan?

A. No. There's no real impact on minority voting strengths.

Those are predominantly white districts to begin with, so that

had no effect.

Q. Does the proposed remedial plan, corrected, still comply

with Issue 1?

A. Yes.

Q. Okay.

MS. LEE: And if you'll put up P91 at paragraph 9.

Q. Are there any changes to the congressional vote

percentages?

A. Very minor changes in a range of plus or minus 0.3 to 0.4

and those new numbers are reflected in Exhibit S.

Q. And that's under this same tab as part of this exhibit; is

that correct?

A. Yes.

Q. Why did you make this correction to the proposed remedial

plan?

A. Well, first, because it was obviously in error, but

foremost, because we did not want to pair Congressman Davidson

and Congressman Jordan in District 8, and that corrected that

issue.

Q. Okay.

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WILLIAM S. COOPER - DIRECT 3 - 170 

A. Because the other plan actually had Champaign County

entirely in District 8.

Q. And so was this correction made in order to meet the

criteria you originally intended and described in your original

declaration?

A. Correct. My intention in the original declaration was to

avoid pairing all incumbents except for District 1 in

Cincinnati where two incumbents are actually placed in District

1 because two incumbents live in Cincinnati. Representative

Wenstrup lives in the western part of Cincinnati, so one could

modify that plan to place him in District 2 with no real impact

on anything other than the fact that one would be splitting

Cincinnati, which you could do now, but you cannot do in 2020

according to the ballot initiative that was adopted.

Q. Okay. Thank you. Could you please turn to tab 4 in the

binder in front of you. And for identification, this is P92.

Do you recognize this document?

A. Yes. This is a supplemental declaration that I prepared in

response to points raised by Dr. Hood in his expert report of

November 12th, 2018.

Q. And what were you asked to do with respect to the report

from Professor Hood?

A. Well, in his report Professor Hood had suggested that the

2012 plan was obviously drawn to protect incumbents, in most

instances, except that because the number of districts went

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WILLIAM S. COOPER - DIRECT 3 - 171 

from 18 to 16, as he indicates in his report, the legislature

decided to pair two Democrats in one district, two Republicans

in one district, and then pair a Democrat and Republican in the

third district. And his suggestion was that the 2012 plan was

able to deal with 2011 incumbents, whereas the plaintiffs'

proposed remedial plan would have created havoc on the

incumbents and required massive changes in the underlying core

constituency for these various incumbents.

So the purpose of this particular declaration was just to

show that one could have drawn a plan very similar in many ways

to the proposed remedial plan that would have protected the

same number of incumbents as the 2012 plan did for the 2011

incumbents, and at the same time split just 14 counties with

compactness scores that were about the same as the proposed

remedial plan, and political fairness scores that were very

similar as well. So a plan could have been developed much like

the proposed remedial plan, but overlaid onto the 2011

incumbents. So there were differences.

Q. How did you come to have the addresses for the 2011

incumbents?

A. I obtained, from the plaintiffs' attorneys, a geographic

shapefile that had already been produced by defendants as part

of discovery, it's my understanding. And it was actually

something that I could immediately pop up on the screen showing

the points where all the incumbents lived, and so I started

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WILLIAM S. COOPER - DIRECT 3 - 172 

with that file and assumed it was correct.

I did notice that Congressman LaTourette, who represented

District 14 at the time, was sort of put on top of the state

line between Ashtabula and Pennsylvania. I think I may have

looked at the address at some point and discovered that, in

fact, he lived somewhere else. And I then changed his address

to the zip code, which placed him in Lake County. 

And it turns out that that was also wrong. I learned about

that a couple days later. We got an updated address, again,

through the plaintiffs' attorneys, where I learned that he

lived in Bainbridge Township in Geauga County. So I then had

to prepare another plan that took into account that change of

address.

Q. Well, and were the addresses for the 2011 incumbents that

you were attempting to geocode provided for you in the

materials with Dr. Hood's report?

A. No, there was no information in Dr. Hood's report about

where the 2011 incumbents lived. And this was retrospective.

There would really be no reason, necessarily, to take any of

that information into account in developing a prospective 2012

proposed remedial plan. But in order to address his concerns,

I felt like we had to, and we did not have his address

information, assuming he had had it.

Q. And so if you'll please turn with me to tab 5 in your

binder. And for identification, this is P93.

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WILLIAM S. COOPER - DIRECT 3 - 173 

Do you recognize this document?

A. I do.

Q. And is this the correction that you just referred to?

A. Yes. This corrects what I had referred to as Hypothetical

Plan 1 and Hypothetical Plan 2. So this makes the address

corrections and so the two plans now that are corrected are

Hypothetical Plan 1A and Hypothetical Plan 2A.

Q. And when was this declaration executed?

A. I think the day after the other plans were -- were

submitted, a day or two after.

Q. What did you do to create the hypothetical maps that are

presented in this declaration P93?

A. Well, I, in large part, took the 2012 proposed remedial --

well, our proposed remedial plan and just began to make

modifications to fit it into the geographic dispersion of the

2011 incumbents. And so I made changes in order to protect all

incumbents except for three pairs as the state legislature had

done at the time. In other words, two incumbents who were

Republicans were paired.

I ended up pairing the same two, Representative Turner and

Austria, and the hypothetical plans, they are in seven. In my

first Hypothetical 1 Plan or 1A, I paired Representative Fudge

and Representative Kucinich, both of who live in Cleveland in

District 11, and I paired Representative LaTourette and

Representative Ryan in District 14.

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WILLIAM S. COOPER - DIRECT 3 - 174 

MS. LEE: And if we could put up P93 at page five,

Figure 3.

Q. Are these the incumbent pairings to which you were just

referring?

A. Yes. And then on the other side you see the pairings that

were actually adopted as part of the 2012 plan and where

Representative Kaptur and Kucinich were placed in District 9,

and Turner and Austria were in 7, and Renacci and Sutton were

in District 16, I think it is under the -- under the 2012 plan.

Q. Yes. And then you had mentioned there were two

hypothetical plans in this report.

MS. LEE: If we could go to P93 page 13, Figure 8.

Q. And are these the pairs of incumbents that you did under

your second hypothetical plan?

A. Yes. In this instance, I paired Kaptur and Kucinich in

District -- of -- was it Figure 8?

Q. Yeah, Figure 8. Hypothetical Plan 2A on the 2012 plan.

A. Oh, I'm sorry. I paired Sutton and Kucinich in District 13

in that instance, and previously I had paired Kaptur and

Representative Fudge in District 11. Hypothetical 1.

Q. Sorry. Just to clarify. Representative Kucinich and

Representative Fudge?

A. Kucinich and Sutton.

Q. In 2A. And in --

A. In 1A it was Kucinich and Fudge.

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WILLIAM S. COOPER - DIRECT 3 - 175 

Q. Okay. And so in creating these hypothetical maps you --

one district -- one of the paired districts featured two

Republicans; one, two Democrats; and the last a Democrat and a

Republican; is that correct?

A. That's correct.

Q. Okay. In drawing both these hypothetical plans and sort of

all of the plans you draw, do you always follow traditional

redistricting principles?

A. I did. These plans, again, split the same number of

counties, just 14. I think these plans split 34 political

subdivisions as opposed to 27. So there are a few more

subdivision splits, but still far less than is found in the

2012 plan. And moreover, perhaps most importantly, the

percentage of -- the mean average percentage of constituents

that are paired with their original incumbents, which is shown

in Figure 9, the core retention comparison showed that.

Q. Sorry. You're looking at page 14, Figure 9?

A. Yeah. Shows that there's virtually no difference, that the

plan that I prepared would have been as good in terms of core

retention as the 2012 plan. And, in fact, really, in a way, it

was even superior because Representative Kucinich was paired in

Hypothetical Plan 1A with Representative Fudge, but he actually

lived only about a mile away from -- from District 10 that has

no incumbent. So he could have run in that district without

a -- without another incumbent in that district.

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So, in effect, the Hypothetical 1A Plan has just two paired

incumbents, two Democrats, two Republicans. And Kucinich, even

though he was paired against Fudge, could easily have run in

District 10 without another incumbent and he would have had

almost 50 percent of his constituents in that District 10 --

49.9 percent I think.

Q. And because Representative Kucinich drew the short straw

under both of your hypothetical plans, under either plan he

could have run in the empty District 10; is that correct?

A. Right. And really just by shifting about a dozen

precincts, he could have been placed in District 10 in, say, a

Hypothetical Plan 3. The only -- the only reason for pairing

him against either Fudge or -- or Sutton was to achieve the

same combinations as the 2012 plan. There really was no need

to pair three incumbents. You could have -- three sets of

incumbents. You could have reduced it to two.

Q. And would you ever have paired the same exact incumbents as

the -- in the 2012 plan as opposed to incumbent pairings by

political party breakdown as described by Dr. Hood?

A. No, it makes no sense. Because Kaptur lives in Lucas

County, Toledo, and Kucinich was in Cleveland, so it made no

sense to create a Snake on the Lake just to pair those two

incumbents. It just baffles me as to why that was done. If

there was a non-partisan reason for it, I would like to know.

Q. And did you in this report compare the hypothetical maps to

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the 2012 plan?

A. Yes. In terms of compactness and core retention and

splits, all of these tables in this declaration show those

differences.

Q. Okay. And if you'll please turn with me to tab 6 of the

binder in front of you. And for identification, this is P598.

Do you recognize this document?

A. I do.

Q. And what is this?

A. This was a final declaration that I prepared that simply

added in the 2018 election results that, obviously, weren't

available to me when I filed the declaration in October. So I

just take the tables I had produced comparing the proposed plan

and the hypothetical plans that had just broken out 2012, 2014

and 2016 and added the 2018 results.

Q. So if you could turn to Figure 1 on page three of this

declaration. And so what is depicted here?

A. This shows the proposed plan versus the 2012 plan for all

four election years.

Q. And are the percentages for 2018 which are added in the

supplemental declaration compiled in the same way as you did

for 2012, 2014 and 2016?

A. Yes. I just aggregated precinct level information down to

the block level and then back up to the congressional district

level.

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Q. Okay. And if we turn to Figure 2 on page four of this

declaration, are these those same results for the proposed

remedial plan corrected with the correction related to

Congressman Jordan's address?

A. Yes. So the only difference would be involving District 4

and District 8, which are very minor, tenths of a percentage

point differences.

Q. And did you provide the 2018 congressional results for both

the Hypothetical Plan 1A and 2A also in this declaration?

A. Yes. That would be in Figures 3 and 4.

Q. And in these figures are the results for 2012 to 2016 the

same as in your earlier reports?

A. Yes.

Q. Okay. And so the only addition here is the 2018 election

results?

A. Just for informational purposes, showing the 2018 results.

Q. Okay, great. Thank you.

And so I'd just like to flip back to an additional matter

that you were asked to look at by the plaintiffs' counsel. If

you turn back to your original declaration, which is at tab 1,

and the last section of this report.

A. Yes.

Q. And so in Figure 9 what were you asked to do?

A. I was asked to compile election results for what was called

House Bill 319 in order to compare those results with the 2012

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plan, and also to analyze the number of split counties in the

House Bill 319 plan. 

And House Bill 319 split more counties, split 29 counties,

as opposed to what was House Bill 369 that became the 2012 plan

that split just 23 counties. So that was an improvement.

If you look at the election data in terms of partisan

performance, there's really not very much difference in the two

plans, but it did improve in terms of county splits and

political subdivision splits.

Q. And so if we go to the last exhibit in the initial

appendix, Exhibit "I" in P454, which is tab 2 of your binder --

A. Yes. Yes, I have that.

Q. And does Exhibit "I" just provide those election results

showing the difference, the partisan difference between HB 319

and the 2012 plan as we just discussed?

A. Yes, for all state elections.

Q. Okay.

A. For 2008 and 2010.

Q. Okay. When you create a districting plan, is there a

certain type of file that you create once the plan is set which

would allow someone to open the plan exactly as it is?

A. Yes. I produce what is known as a block equivalency file

that just lists every census block in the state -- there are

200-and-some thousand, I think -- and identifies what district

that particular block is in so that someone could take that

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and, within a matter of a minute or so, have it up on screen if

they have GIS software.

Q. Does a bit over 365,000 census blocks sound right for Ohio?

A. I think that's probably right. I said 200-and-some

thousand, but it's 365. Okay.

Q. Okay. And for each of the maps we've discussed in this

case did you create a block equivalency file?

A. Yes, for all four of the plans that are in this binder, the

proposed remedial plan and the two hypothetical plans, and then

the two corrections for the hypothetical plans, as well as a

corrected proposed remedial plan.

MS. LEE: As there are some maintained objections on

these block equivalency files, I just want to -- they're boring

to see -- but quickly walk through foundation with the expert.

So if we could please display P455.

Q. This is a document which is entitled "Proposed, underscore,

Remedial, underscore, Plan, dot, DBF" which was submitted along

with your original declaration and is dated October 5th, 2018.

A. Yes.

Q. Do you recognize this document? 

MS. LEE: And if we could scroll to the bottom so we

could see the size.

A. Yes. This is just a block equivalency file.

Q. All right. And does this appear to be the block

equivalency file for the original proposed remedial plan?

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A. Yes.

MS. LEE: Plaintiffs would like to move P455 into

evidence.

JUDGE BLACK: Any objection?

MR. McKNIGHT: No objection.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 455 was admitted.)

Q. Okay. Now I'd like to show P466. The native title of this

document is "Hypo 1A, dot, DBF," which is dated November 27th,

2018, the same day as your correction report for the

hypothetical plans.

Do you recognize this document?

A. It's bound to be the block equivalency file. There are

350-some thousand blocks. So I can't really say I recognize

it, but I know by the name of the file and the date that this

is the Hypothetical 1A block equivalency file.

MS. LEE: Okay. And plaintiffs move Exhibit P466 into

evidence.

JUDGE BLACK: Any objection?

MR. McKNIGHT: No objection, Your Honor.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 466 was admitted.)

Q. And now I'd like to show Plaintiffs' P467, which is a

document entitled, native file title, "Hypo 2A, dot, DBF," also

dated November 27th, 2018, and was submitted along with that

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same corrected hypothetical declaration.

To the extent you can from just seeing it here, do you

recognize this document?

A. I believe that to be the block equivalency file for Plan

2A, Hypothetical Plan 2A.

MS. LEE: Plaintiffs move P467 into evidence.

JUDGE BLACK: Any objection?

MR. McKNIGHT: No objection, Your Honor.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 467 was admitted.)

Q. Finally, I would like to show you P469, which is a document

entitled "Nov 30, dot, DBF," which is dated the same date and

was submitted along with your declaration of November 30th,

2018, that presented the correction to the proposed remedial

plan.

A. Yes.

Q. Do you recognize this document?

A. Yes.

MS. LEE: Plaintiffs would like to move P469 into

evidence.

JUDGE BLACK: Any objection?

MR. McKNIGHT: No objection, Your Honor.

JUDGE BLACK: Thank you. It's admitted.

(Plaintiffs' Exhibit 469 was admitted.)

MS. LEE: I have no further questions at this time,

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Your Honor.

JUDGE BLACK: Very well.

CROSS-EXAMINATION 

BY MR. McKNIGHT:

Q. Good afternoon, Mr. Cooper. Good to see you again.

A. Good afternoon.

Q. You testified about your experience drawing maps for

various parties and jurisdictions a moment ago. You would

agree with me that when you draw a districting plan every VTD

you decide to include in or remove from that districting plan

has a political consequence, wouldn't you?

A. Well, I mean, you could -- you could move VTDs that are

essentially the same, so -- in terms of political preference or

partisanship. So it's conceivable that every one you move

doesn't really have an impact.

Q. Okay. But how many VTDs have you ever encountered that

were exactly tied between Democrats and Republicans?

A. I don't know, but it could happen for sure.

Q. That would be pretty rare?

A. I'm talking about percentage terms, not raw numbers, of

course.

Q. Okay.

A. Give or two take two or three percentage points.

Q. Okay.

A. But, frankly, in this particular instance I was really not

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working with the VTDs as I was drawing the plans. I was

working with the political subdivisions primarily. Some VTDs I

did have to aggregate to, you know, meet "One person, one

vote," but I was mainly working with the 9,000 or so political

subdivisions in the state.

Q. But every one you decide to move generally is going to make

the district either more Democrat or less Democrat or more

Republican or less Republican; right?

A. Oh, generally there would be some difference. And I do

want to correct that. There are over 9,000 VTDs, but I think

there are only around 2,000 political subdivisions, just to

correct that.

Q. All right. Thank you. And based on your experience, would

you agree that some intent to gain political advantage is

inescapable whenever political bodies devise a districting

plan?

A. Probably. If it's a political body, there probably is that

lurking in the background, sure.

Q. And that intent will have at least some effect on the map

that's drawn; right?

A. True.

Q. And in drawing your hypothetical plans, you did not take

into account any request or preferences of members of the Ohio

General Assembly about how the district should be drawn, did

you?

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A. I was not provided with that information, no.

Q. And you also did not take into account any request or

preferences of members of Ohio's congressional delegation in

drawing any of your hypothetical plans, did you?

A. I did not. I was not provided that information.

Q. And you also did not consider any comments submitted by any

members of the public before the 2012 plan was enacted as to

how the public wanted the districts drawn, did you?

A. Again, I was not given that information if it exists.

Q. And you didn't consider boundaries of census tracks in

drawing your proposed remedial plan in this case, did you?

A. Not -- you know, I probably did early on look at census

tracks, but I was mainly working with municipal boundaries and

townships and, to a limited extent, precinct boundaries.

Q. All right. And that brings me to my next question, then.

In Ohio records of how precincts or VTDs vote are publicly

available, aren't they?

A. Generally speaking, I think you could get that information

for any election from the Ohio Secretary of State Web site.

Q. All right. And you use that publicly available data to

determine the vote share that each party received in

congressional elections over the course of multiple election

cycles; right?

A. Right.

Q. And in your reports you didn't use any election results

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from before the 2012 election cycle to evaluate any of the

plans that you drew in this case, did you?

A. I had information for '08 and '10, but you may be correct

that that was not part of my report exhibit, no.

Q. All right. But you did evaluate the maps passed under

House Bill 319 and the map that's in place today, the 2012 plan

as you call it, under both the 2008 and 2010 election results,

didn't you?

A. Correct. I just presented the data, right.

Q. Okay. If you'll turn with me, then, to tab 1 in your

notebook, which is also Plaintiffs' Exhibit 90. 

MR. McKNIGHT: If you want to put that up on the

screen for everybody. 

Q. Plaintiffs' Exhibit 90 is the first declaration that you

submitted in this matter; is that right?

A. Yes.

Q. All right. And I want you to turn to Figure 9, which is

located on page 22. Are you there?

A. I'm looking at Figure 9 on screen.

Q. Okay. Well, if you want to turn in your book, that's fine

as well.

A. Yes.

Q. Okay. The percentages shown in Figure 9 are the percentage

of the two-party vote that Democratic candidates for Congress

received in each district during the 2008 and 2010 election

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cycles; right?

A. Correct.

Q. And this chart shows that in the 2008 election cycle

Democrats received a majority of the vote share in six of

the -- I'm sorry, in seven of the 16 districts under the House

Bill 319 map; right?

A. I have to count them up. I think you're probably right,

but --

Q. And I can't --

A. Under the 2008 election?

Q. Yes, sir. I count District 3, District 6, District 7,

District 9, District 11, District 13 and District 16.

A. Okay.

Q. Is that seven?

A. I'll take your word for it.

Q. Okay. All right. And in the 2008 election cycle this

chart also shows that Democrats received a majority of the vote

share in seven of 16 districts under the 2012 plan that's

currently in place; right?

A. Yes.

Q. It's the same seven districts, isn't it?

A. Yes.

Q. Now, I think you testified earlier that your task in

drafting the remedial plan was to give Democratic voters a

better opportunity to elect their candidates of choice than

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under the 2012 plan; is that right?

A. Correct.

Q. And in doing that you define Democratic voters as people

who cast ballots for Democrats; is that right?

A. In a head-to-head contest with a Republican, right.

Q. All right. And as you define it, people don't have to vote

for Democrats in every election to be considered a Democratic

voter; is that right?

A. Yeah. I'm looking at the overall vote for a Democratic

candidate. So the vote could have come from independents or

others who were not registered Democrats, exactly.

Q. All right. And in your reports you don't provide any kind

of threshold for how often a person must vote for Democrats to

be considered a Democratic voter, do you?

A. No. I'm looking at the final results.

Q. And you cannot quantify how much better of an opportunity

Democratic voters, as you have defined them, would have to

elect their candidates of choice under your proposed remedial

plan as compared to the 2012 plan, can you?

A. Could you repeat that.

Q. Sure. You can't quantify how much better of an opportunity

Democratic voters would have to elect their candidates of

choice under your proposed remedial plan as compared to the

2012 plan?

A. Well, I think you can by looking at the span of election

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years, '08, '10, '12, '14, '16 and '18, and you could see that

that the prepared remedial plan leads to a better outcome for

the Democratic candidates.

Q. And when you say a better outcome, what do you mean?

A. More competitive districts and districts that would

theoretically elect a Democrat as opposed to a Republican.

Q. All right. And when you say a competitive district, how do

you define that?

A. I have used a self-imposed range of 47.5 to 52.5. I

understand a political scientist would have a different

measure. I'm not a political scientist. But as I was driving

the plan, the proposed remedial plan, and comparing and

contrasting that with the 2012 plan, I felt that like that five

percentage point range was reasonable in terms of assessing

whether a district was competitive or not. In other words, if

a district had 48 percent Democratic vote, I would have

considered that to be a competitive district even though it

would have still, at least theoretically, been won by a

Republican.

Q. All right. And in trying to give Democratic voters a

better opportunity to elect their candidates of choice, in some

instances Democratic voters could be shifted into a Republican

district; is that right?

A. That's true. And I was also, of course, taking into

account traditional redistricting principles, which I would

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argue the 2012 plan does not do, setting aside any partisan

performance.

Q. And isn't it true that in making some districts more

competitive for Democrats under your proposed plan, you also

made other districts less competitive than they were under the

2012 plan?

A. That could happen, correct.

Q. Now I want to turn next to tab 6 in the notebook that you

have in front of you, and that's Plaintiffs' Exhibit 598.

Now, on direct I think you testified that this declaration

contains four charts with election results that were included

in your prior declarations but updated to include results from

the 2008 election cycle; is that right?

A. The 2018 election cycle.

Q. 2018, you're correct. Thank you.

So the first chart that I want to call your attention to is

Figure 1, which is on page three of that exhibit.

A. Yes.

Q. And this figure is the same as Figure 8 in your October 5th

declaration, which is your original declaration in this case,

except that it includes 2018 election results; is that right?

A. That is correct.

Q. All right. And so any testimony that you previously gave

in your deposition about Figure 8 in your October 5th

declaration would still be true today, at least as it relates

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to the 2012, 2014 and 2016 election cycles?

A. I think so.

Q. All right. In looking at the election results you provided

from the 2012 elections, Democrats would have received a

majority of the vote share in Districts 3, 9, 11 and 13 under

both your proposed plan and under the 2012 plan; is that right?

A. Right, with a couple of competitive districts.

Q. All right. And then --

MS. LEE: Excuse me, Your Honors.

JUDGE BLACK: Yes.

MS. LEE: Mr. McKnight neglected to mention District

16 in the column he just read.

MR. McKNIGHT: Well, with all due respect, the

question was what districts would Democrats have won under both

the 2012 plan and under the proposed plan, and it's only those

four districts.

JUDGE BLACK: The record will reflect what it

reflects. Please proceed.

Q. And in looking at the 2014 election results, it appears

that Democrats would have received a majority of the vote share

under the same four districts as under both your proposed plan

and the 2012 plan; is that right?

A. That's correct. But it's important to point out that there

are additional districts that would be considered competitive.

For example, District 16 under the proposed plan would be 48.5

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percent Democratic, versus 36.2 percent in the 2012 plan.

Q. All right. And under the 2016 election results it appears

to me that Democrats would have won or would have had a

majority of the vote share under both your proposed plan and

the 2012 plan in the same four districts: 3, 9, 11 and 13. Do

you see that?

A. And 16.

Q. Well, that's another district that they might have had a

majority in under your proposed plan, right. But I'm talking

about districts that Democrats won under both plans. It's the

same --

JUDGE BLACK: Excuse me. We need to get this

clarified. Counsel for the plaintiffs has stood.

MS. LEE: Just clarifying, Your Honor, District 9 is

not one of those districts. Misstating the contents of the

exhibit.

Q. Oh, I apologize. It's 3, 5, 11 and 13; and then 3, 9, 11

and 13 under the 2012 plan. Is that right?

JUDGE NELSON MOORE: This is going too fast. I think

we should start from the beginning.

MS. LEE: Okay. 

JUDGE NELSON MOORE: Because I haven't been able to

follow your numbers at all.

MR. McKNIGHT: Okay. All right. Sure. Sure. Thank

you.

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Q. So my question is, in comparing the election results under

the -- your proposed plan to the election results under the

2012 plan, it appears to me across the board, no matter what

election cycle it is, Democrats have a majority of the vote

share in District 3. Does that appear to be correct?

A. That is correct in all plans.

Q. Okay. And then looking at District 9, looking across the

board, it appears to me that Democrats had a majority of the

vote share across all plans there except in the years 2014 and

2016. Is that right?

A. Right. Of 2016, it would be a competitive district, 48.9

percent.

Q. And then if you look --

JUDGE NELSON MOORE: In 2014 it's 44.6; right? Am I

reading that right?

MR. McKNIGHT: Yes, Your Honor.

JUDGE NELSON MOORE: Thank you. 

MR. McKNIGHT: Yes, Your Honor.

Q. In looking at District 11, when you look across the board

it appears to me that Democrats would have a majority of the

vote share in that district; it doesn't matter who drew the

plan. Right?

A. Correct.

Q. And then looking at District 13, it looks like the

Democrats would have majority of the vote share across the

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board; it doesn't matter who drew the plan. Is that right?

A. That's correct.

Q. Now, the percentages in these charts that are reflected in

your reports, they are not intended to predict whether a

Democrat or Republican would have won any of those particular

districts; is that right?

A. No. This is -- you're correct in that it's simply stating

the vote share and is hypothetical, because obviously no one

was running in the proposed plan districts.

Q. All right. And as a result of the differences in the

districts, different candidates may have run under the

districts you drew as opposed to the districts that were

actually in place in 2012; is that right?

A. Potentially.

Q. Okay. And in addition to the proposed remedial plan, it's

also true that you can't say how many Democrats and how many

Republicans would have been elected in any election cycle under

any of the other maps you drew and included in any of your

reports; is that right?

A. Well, because these are hypothetical, theoretical plans,

obviously, I can't say with certainty that had the election

been held under those plans that they would have worked on

precisely the way you see in these charts, no, of course not.

This is indicative of what might have happened with some

historical evidence but by no means a predictor.

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Q. Thank you.

Now, I want to make sure I understand what happened with

respect to your errata report that we talked about in your

direct examination.

Now, I think you testified that you issued your errata

report from your original declaration to fix an error that

would have paired Congressman Jim Jordan and Congressman Warren

Davidson; is that right?

A. Yes. Initially I had information that Congressman Jordan

lived in Lima as opposed to Urbana, so I did not include Urbana

and Champaign County in his District 4, so that's why that

correction was made.

Q. All right.

A. There was never any intention to pair him and Congressman

Davidson in the same district.

Q. Okay. Now, Congressman Davidson was not the incumbent when

the 2011 -- or 2012 plan was adopted; right?

A. I don't know.

Q. It was -- it was Speaker of the House John Boehner was

in --

A. Well, okay. Right.

Q. Is that right?

A. Right.

Q. Okay. So what would have happened under your original

proposed plan is that Congressman Jordan and Congressman

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Boehner would have been paired; is that right?

A. Well, only because there was a mistake, because in my mind,

in the original proposed plan Congressman Jordan didn't live in

Urbana, he lived in Lima, so there would have been no pairing.

That would have cleared up somewhere along the line, as we have

done with the errata declaration that was filed in November.

Q. All right.

A. There was never any intention to pair Congressman Boehner

or Congressman Davidson with Representative Jordan.

Q. But it's fair to say that a plan that paired Speaker

Boehner with another incumbent would not have been adopted by

the Ohio General Assembly in 2011?

A. Probably not, although he would have been a very strong

candidate running against virtually any Democrat in that part

of the state. So that would have been a pretty safe pairing, I

would imagine.

Q. Okay. But in order to fix this issue you had to move

Champaign County and a part of Mercer County from District 8 to

District 4; is that right?

A. Right. It's really a nothing burger, to use an overused

term.

Q. I think that's a Southern term.

A. I've heard it a lot in recent months.

Q. All right. I know what you're talking about.

A. Okay. 

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Q. But the reason why it was a nothing burger, then, was

because even though you moved a whole county and then you had

to move portions of two other counties is because this is a

predominantly Republican area of the state; is that right?

A. That's true. It made it much easier to fix that mistake.

Q. All right.

A. Exactly.

Q. Now, we also talked about the supplemental reports you

submitted. And in those supplemental declarations you included

two hypothetical redistricting plans; is that right?

A. Right.

Q. And in doing that you consider the residences of the 2011

incumbents and you paired two Democratic incumbents, two

Republican incumbents, and one Democrat and one Republican

incumbent; is that right?

A. Yes.

Q. All right. But you did not pair the same incumbents who

were paired under the 2012 plan?

A. I'm not sure what you mean by that.

Q. Well, you didn't pair the same --

A. The only two incumbents that are paired in the 2012 plan

would be Representative Chabot and Wenstrup in District 1, and

that is only because of the ballot initiative. But, of course,

they weren't in place in 2011, so maybe your question is

directed in some other fashion, so go ahead.

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Q. Yeah. So my question is, you didn't pair the same

individuals who were paired under the 2012 plan, did you? In

other words, the two Democratic incumbents you paired were

Representative Fudge and Representative Kucinich; right? And

they weren't paired under the 2012 plan, were they?

A. No. Under the 2012 plan, for whatever reason, Kucinich was

paired with Kaptur so that you had the Snake on the Lake

district from Toledo to Cleveland.

Q. Okay. And under your map you paired Representative Ryan

with Representative LaTourette; right?

A. I did.

Q. Okay. And in the 2012 plan Congressman Renacci was paired

with Congresswoman Sutton; right?

A. I think so.

Q. Okay. All right. And so you -- in none of your reports

did you pair the same individuals who were paired in the 2012

plans, did you?

A. No. I did not pair Renacci and Sutton, I do not believe.

I was mainly attempting just to come up with a plan that had

basically the same core retention rates as the 2012 plan.

Q. All right. And you never paired Kaptur and Kucinich

either?

A. No, but I know it can be done. The problem is that if you

do it, you're creating a district that does not adhere to

traditional redistricting principles. So, therefore, I did not

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do that pairing.

Q. All right. And that was going to be my next question for

you, is why in any of the maps that you submitted in your

reports did you not try to pair the same individuals who were

paired in the 2012 plan?

A. Well, because I don't -- I don't think you can really

comply with traditional redistricting principles and create a

district that would have gone from Cleveland all the way up to

Toledo, splitting five districts, just to pair those two

incumbents. I mean, if you did, then you would have a district

that looked not unlike current District 9 under the 2012 plan

that I could not sign off on because it's not complying with

traditional redistricting principles, in my opinion.

Q. And would that pairing have affected the entire plan, in

your view?

A. You know, I suspect that I could have drawn that district

and still come up with similar retention rates. I don't know

that to be a fact, but it's probable. But I would not have

drawn the plan, because it makes no sense to draw a district

like that under any possible scenario that I can conjure up.

Q. But you never included a map like that in any of your

reports, did you?

A. Of course not, because I wanted to make sure that my plans

complied and adhered to traditional redistricting principles

and minimized county splits. In order to create the Snake on

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the Lake district, you have to split several counties

unnecessarily.

Q. Now, do you remember when I asked you that question in your

deposition?

A. No. Not off the top of my head, no.

Q. Okay. So I take it you don't remember what your response

was?

A. I do not specifically remember my response, no.

MR. McKNIGHT: Okay. Could we pull up page 165 of Mr.

Cooper's deposition.

Q. And I want you to -- I'm going to read starting at line 10

the question and answers that we went through there, and I want

you to listen and tell me whether I read it correctly.

I asked you -- starting on line 10 I said: Thinking about

the incumbent pairings that you did in either of these

hypotheticals, did you ever draw a hypothetical plan pairing

the same incumbents as the 2012 plan?

And your answer was: Pairing the same incumbents as the

2012 plan -- and you're talking about the same incumbents, the

2011 incumbents? 

And I said: That's right.

And you said: I don't think so.

And then I asked you: Why did you never try to do that?

And your response was: Because I might have ended up with

the 2012 plan. I don't know. I'm not sure -- I'm not sure why

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that would matter.

Do you see that?

A. Yes.

Q. Did I read that correctly?

A. Provided the stenographer took it down word for word

correctly, I assume so. I don't really see how that

contradicts anything I've said today, but maybe I'm missing

something.

Q. Okay. Now I want to look at Figure 3, which is in your

third declaration, and that's on page five.

Now, below Figure 3 there's a footnote, and that footnote

says the district numbers in Hypothetical 1A and Hypothetical

2A are assigned to facilitate comparisons with the 2002 plan,

rather than the 2012 plan.

Do you see that?

A. Yes.

Q. And why did you decide to do that with these two

hypotheticals?

A. Well, because originally the Dayton area was in District 7,

and District 10 was in Cuyahoga County. So I put District 7

back in the Dayton area just so you could compare the two maps,

the 2002 and the hypothetical 2011 plan, 1A and 2A.

Q. Did you consider the 2002 plan to be the benchmark plan?

A. It was in the sense that that part of the state had a

District 7 at the time, yes. 

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Q. All right.

A. I don't think it really impacts anything other than just a

district numbering scheme.

Q. All right. Well, in thinking about the district numbers, I

also notice that the district that you have in Franklin County

in Hypotheticals 1A and 2A is now identified as District 15; is

that right?

A. I have to look at the map, but that's possible.

Q. Okay.

A. Yes, at least in Hypothetical Plan 2. And I'm sure in

Hypothetical Plan 2A District 15 is in Franklin County.

Q. Okay. And you did that with respect to both hypothetical

plans; right? 

A. Yes. 

Q. And looking in your proposed remedial plan, the district

that's contained entirely within Franklin County is known as

District 3; is that right?

A. Yes.

Q. Okay. Why did you decide to change that numbering?

A. I think at that point I was then working off of the 2012

plan, and in the current 2012 plan there is a District 3 in

Franklin County; right? Isn't that --

Q. That's my understanding, yes.

A. Yes, yes. So that's -- that's another one that was

actually -- where the numbers are somewhat different.

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Q. Now, in your report, your testimony earlier today you

provided a comparison of the number of county and political

subdivision splits between your plans and the 2012 plan. But

you cannot provide a maximum number of acceptable county or

political subdivision splits for a congressional plan in Ohio,

can you?

A. A maximum number?

Q. Yes, sir.

A. You know, I can -- I can suggest that it would be better if

no more than 14 counties were split, as a maximum number. I

realize that's lower than what is allowed under Ballot

Initiative 1, but I think that's one way to ensure that plans

are drawn that comply with traditional redistricting

principles.

Q. All right. And do you remember when I asked you that

question in your deposition?

A. No. I must have had a different number. Go ahead and show

it to me.

Q. Okay. All right. Why don't we pull up, then, page 17 in

your deposition.

And looking at line 25, I think I asked you: And in your

opinion, is there an acceptable maximum number of county

splits? 

And your response was: I don't know. That's not something

I would be able to opine on.

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Do you see that?

A. Where is that, what line?

Q. It starts on line 25 of page 17.

A. Oh.

Yeah. Make that a little bigger, please.

Q. And the question, again, was: In your opinion, is there an

acceptable maximum number of county splits?

And your response was: I don't know. That's not something

I would be able to opine on.

Did I read that correctly?

A. Oh, you did. I just opined on it. 

I'll stand on what I just opined on today rather than

saying I couldn't opine on it two months ago.

Q. And in terms of a maximum number of political subdivision

splits, is there a maximum number that you find would be

acceptable of those?

A. I haven't looked at my declaration on how I answered that,

but that would be a little more difficult to come up with a

maximum number.

Q. I think your opinion, at least in your deposition, was that

you could not give me a figure on that --

A. Yeah.

Q. -- if you look down the page.

A. Right.

Q. Now, when you were drawing the maps, you had election data

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loaded into Maptitude; correct?

A. Some election data, right.

Q. Okay. And although you weren't constantly looking at it,

according to your testimony earlier, that data was available on

your screen, was it not?

A. I could reference it and access it, correct.

Q. And so --

A. Some of it. As I indicated, I did not have information for

2014 until the 2012 plan was really produced, so -- the

proposed remedial plan was really produced. So I was mainly

looking at 2012 and 2016 data.

Q. And so when a legislature is drawing a congressional plan,

is it appropriate for them to consider political data?

A. I think so. I mean, that's common practice.

Q. Now, are you aware that under your version of District 11,

and that's a district in Cuyahoga County, that district would

cease to be a majority-minority district for first time since

the 1960s?

A. I don't know that to be a fact, but I do know that it must

have been just barely above 50 percent in 2000. So it is now a

plurality minority district in the proposed remedial plan,

which, as I mentioned earlier today, was determined by

political scientist Dr. Lisa Handley to be a minority

opportunity district likely to elect a minority candidate of

choice. The district's 80 percent Democratic with

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substantial -- I assume she probably suggested that there was

substantial white crossover vote. So it's not like creating a

47 percent district in Mississippi, for example, where that

would be problematic from the standpoint of minority voting

strength.

JUDGE BLACK: Stay close to that microphone, please.

THE WITNESS: Excuse me.

Q. And you don't know whether anyone in the Ohio General

Assembly supported drawing District 11 as a majority-minority

district, do you?

A. I don't have information about who supported that objective

and who did not.

Q. All right. And you didn't try to draw a plan locking in

District 11 as it appears in the 2012 plan, did you?

A. No. Because it's really problematic. The way Summit

County is sliced and diced, you know, if this were a Section 2

case, I'm just not sure that would pass muster with the court

in terms of whether it would be an acceptable shape for a

majority-minority district. It's not -- not too good. It's a

little irregular.

Q. But no one's brought such a claim, to your knowledge?

A. No. To my knowledge, in Ohio no one has brought a claim on

Congressional District 11 as it is presently drawn or as it was

drawn in the 2000s.

MR. McKNIGHT: All right. Thank you, sir. No further

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questions from me.

CROSS-EXAMINATION 

BY MR. TUCKER:

Q. Good afternoon, Mr. Cooper. Good to see you again.

A. Good to see you.

JUDGE WATSON: Are you both being somewhat

disingenuous when you're saying that? 

MR. TUCKER: No, not at all.

JUDGE WATSON: I just wondered. Go ahead.

JUDGE BLACK: You checked the clock, no doubt. 

MR. TUCKER: I checked the clock. We will be done

well before 5:00 o'clock, Your Honor.

JUDGE BLACK: It's a credit to you.

Q. Mr. Cooper, do you know who was the most tenured member of

the Ohio congressional delegation in 2011?

A. Well, I would say John Boehner, but perhaps I'm mistaken.

So you might enlighten me as to who the other one would have

been.

Q. Sure. If I told you that it was Congressman LaTourette,

would it be a reasonable goal for the Ohio legislature to want

to avoid pairing Congressman LaTourette with another incumbent

member of Congress?

A. Perhaps. But on the other hand, if you thought that

Congressman LaTourette could take out another incumbent member,

maybe that would make it a good pairing. I realize that I

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paired LaTourette and Ryan in this hypothetical plan, but it is

just one of other possible hypothetical plans.

Q. And you answered my next question, was in both of your

hypothetical plans you paired Congressman LaTourette with

Congressman Ryan; correct?

A. Yeah. That would have been a real dogfight, I guess.

Right?

Q. Mr. Cooper, do you consider yourself a Democrat?

A. No, I'm not a Democrat. I'm not registered as a Democrat.

Q. Have you ever drawn any plans for any Democrats? Or I'm

sorry. For any Republicans.

A. Yes. I've drawn plans for jurisdictions in Mississippi

that would have been Republican districts or Republican city

councils, for example.

I'm working on behalf of the City of Decatur, Alabama,

which has one minority on city council, out of five. And I

don't know for a fact, but I'm assuming that individual is a

Democrat, but probably at least three of the others are

Republicans. It's north Alabama. It's most likely a

Republican city council.

Q. Have you ever drawn any plans for any Republicans in a

partisan gerrymandering case?

A. No, because I've really only been involved in the three

partisan gerrymandering cases that I mentioned previously.

Q. Now, I understand that you testified earlier that you could

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not see why the Ohio legislature would draw a map that paired

Congressman Kucinich with Congressman Kaptur. Is that correct?

A. I could not see why, but maybe you could enlighten us

today.

Q. Well, I want to pull up one of the exhibits to your report.

And do you recognize this map, sir?

A. Yes. This is the 2012 plan.

Q. And on this map you have both some blue dots and some red

dots. Can you describe what those are?

A. Yes. The blue dots represent Democrats, and the red dots

represent Republican congresspersons.

Q. And specifically if you could describe, there's a blue dot

right in the middle of the word "Cuyahoga." Do you see that

one?

A. Yes. That would be Representative Kucinich.

Q. And the blue dot below to the right of that, would that be

Representative Fudge?

A. Right.

Q. And the blue dot over by Lucas County, is that

Representative Kaptur?

A. Right.

Q. And then the blue dot in Trumbull County is Representative

Ryan; is that correct?

A. Yes. 

Q. Now, I want you to start from the premise that if you were

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drawing a map and somebody gave you the -- well, strike that.

Let me wind back.

Ohio is losing two congressional seats following the 2010

Census; correct?

A. Yes.

Q. It was going from 18 seats to 16 seats?

A. Right.

Q. So two incumbent members of Congress were no longer going

to have their seat after the redistricting; is that correct?

A. Correct.

Q. At least two?

A. At least two.

Q. Now, I want you to start with the premise that if somebody

asks you to draw a map with two different goals, the first goal

was with the loss of two seats you're going to pair two

Democrat incumbents and two Republican incumbents -- okay? --

and with the second premise being that you have a request to

protect Congresswoman Fudge and not pair her with another

member of Congress, including Congressman Kucinich. Okay?

A. I question that premise, but go ahead.

Q. I understand that. But with that premise, would that be a

reasonable reason why you would draw a district that would pair

Congressman Kucinich and Congressman Kaptur, given the location

and residences of the Democratic members of Congress that

existed in 2011?

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A. Not really, because I've shown in Hypothetical Plan 2A that

Kucinich could have been paired with Sutton rather than with

Kaptur.

Q. Okay. Well, assuming, then, that Representative Sutton and

Renacci, as we know happened in the enacted map, were paired,

is there any other way that you would pair two Democratic

members of Congress other than pairing Representative Kucinich

and Representative Kaptur?

A. Well, maybe I -- maybe I'm missing something, but I was

able to pair Kucinich and Sutton in Hypothetical Plan 2A. So

there was another way to do it without involving Representative

Kaptur.

Q. Well, if Representative Sutton and Representative Renacci,

who live -- 

I believe those are the blue and the red dots down by

Medina and Summit County; correct?

A. Yeah. Medina County would have been Renacci.

Q. So if there's already a pairing down there, would it have

been reasonable, if you're still trying to pair two Democratic

members of Congress together under the goal of two Democrat

paired, two Republicans paired, to pair Representative Kaptur

and Representative Kucinich in that -- under that premise?

A. Well, you know, again, I just don't -- do not think that

you can comply with traditional redistrict principles and pair

anyone in Cuyahoga County with someone in Lucas County in

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WILLIAM S. COOPER - CROSS 3 - 212 

Toledo. I just -- you've created this long stringy district

that splits three or four counties. I just -- it makes no

sense. There's got to be other ways to accomplish that, and

I've shown you two ways.

Now, it's true that I've paired Representative Kucinich

with Representative Fudge in Plan 1A, but the point that I've

tried to make was that Kucinich could very easily have run in

the neighboring district, which had no incumbent. So you're

not required to live in the district as a congressperson, so

you could -- he could have run in the neighboring district by

just either moving two miles or simply running in the district

even though he didn't really live in it. I don't -- I don't

think it would have been necessary to assume that he would have

run against Representative Fudge.

Q. Sure. Let me ask it this way, I guess. If there's a goal

of not pairing Representative Kucinich with Representative

Fudge and Representative Renacci and Sutton have already been

paired together, would it have made more sense to pair

Representative Kucinich with Representative Ryan all the way in

Trumbull County?

A. It would have been just as odd and probably not any way to

do that and comply with traditional redistricting principles.

MR. TUCKER: Thank you, sir. No further questions.

JUDGE BLACK: Redirect, if any?

MS. LEE: Just one, I think, Your Honor.

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WILLIAM S. COOPER - REDIRECT 3 - 213 

JUDGE BLACK: One question?

MS. LEE: I think one to set it up, and then the

actual question.

JUDGE BLACK: Two questions.

REDIRECT EXAMINATION 

BY MS. LEE:

Q. Do you recall -- you were just asked about your deposition

and whether you would have paired Representatives Kaptur and

Kucinich?

A. Yes.

Q. Do you recall that you were asked that at an earlier point

in your deposition as well, that you were shown?

A. No. No, I fail to recall that.

MS. LEE: Could you please put up page 152 of Mr.

Cooper's deposition, beginning at line 12. 

Q. And, Mr. Cooper, could you please read lines 12 through 22.

Why don't you take it to the whole page. Out loud.

A. Oh. Read starting on --

Q. Page 152 --

A. Yeah.

Q. -- line 12.

A. Oh, okay. Well, I'm asking his question, then. 

In looking at the incumbents you paired in Hypothetical 1A,

comparing them to the incumbents that were paired in the 2012

plan, why did you not pair the same incumbents as in the 2012

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WILLIAM S. COOPER - REDIRECT 3 - 214 

plan?

And my answer was: Well, to pair Kaptur and Kucinich, as

is done in the 2012 plan, you have to draw the "Snake on the

Lake." You have to combine Toledo with Cleveland in that

elongated district. So you're breaking traditional

redistricting principles, I think, in terms of compactness and

communities of interest. That's what I think. So it's a

mistake to try to pair two incumbents -- to pair two Democratic

incumbents who live that far apart when it would have been very

easy to draw a plan, as I've drawn in Hypothetical 1A and 1B,

that would have not paired -- well, 1B, I guess, reconfigures

11. But in this particular version 1A, there's no reason to

think that Kucinich would just -- he would have probably run in

a District 10 configured the way it's drawn in Hypothetical

Plan 1A.

JUDGE BLACK: All right. Intervenors' counsel is

standing.

MR. TUCKER: Yes, Your Honor. We object to this

question and answer, that the witness is just reading from his

deposition transcript. It's not a proper way to refresh a

witness' recollection. Thank you.

JUDGE BLACK: The objection's noted.

Q. So do you recall having explained the further details of

why you did not pair Representatives Kaptur and Kucinich at

your deposition, earlier than the time Mr. McKnight night just

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WILLIAM S. COOPER - REDIRECT 3 - 215 

presented to you?

A. Well, now that you've presented it to me and I sort of --

maybe I'm confusing what I recently said, but I think what I've

already said today is sort of consistent with what I said at

this point in the deposition. 

Q. Yes.

A. I realize it was kind of rambling and lots of sentence

fragments and garbled syntax, but basically it's the same

thing, isn't it?

MS. LEE: No further questions, Your Honor.

JUDGE BLACK: Very well.

You appear to have survived.

THE WITNESS: Well, maybe.

JUDGE BLACK: You are welcome to step down.

THE WITNESS: Thank you.

(Witness excused.)

JUDGE BLACK: And it's about quarter of 5:00.

Presumably we should break for the day. Is that the

plaintiffs' perspective?

MS. LEVINSON: At your pleasure, Judge.

JUDGE BLACK: I think we should break today at this

time. I mean, you're not going to get a witness on and off in

15 minutes, are you?

MS. LEVINSON: Well, we could get him on but not off.

JUDGE BLACK: All right.

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MR. FRAM: We can get him up there. 

(Judges confer privately.)

JUDGE BLACK: It's unanimous: We're breaking. It's

quarter of 5:00. You guys have been at it and it's been dense

but important. I'm going to enjoy the break. I hope you do as

well.

The Court prepares to recess till 9:00 o'clock tomorrow.

COURTROOM DEPUTY: All rise. This court is now in

recess.

(At 4:43 PM, the trial was recessed, to be continued on

Thursday, March 7, 2019, at 9:00 AM.)

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I N D E X O F W I T N E S S E S

PLAINTIFFS' WITNESSES: PAGE

CHRISTOPHER WARSHAW 

Direct Examination (Cont'd) 5 by Ms. Thomas-Lundborg 

Cross-Examination by Mr. Lewis ................... 25

Cross-Examination by Mr. Strach .................. 128

Redirect Examination by Ms. Thomas-Lundborg ...... 131

WILLIAM S. COOPER 

Direct Examination by Ms. Lee .................... 134

Cross-Examination by Mr. McKnight ................ 183

Cross-Examination by Mr. Tucker .................. 207

Redirect Examination by Ms. Lee .................. 213

- - - 

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E X H I B I T S

EXHIBIT NUMBER: ADMITTED

Plaintiffs' Exhibit 90 134 .......................... 

Plaintiffs' Exhibit 91 134 .......................... 

Plaintiffs' Exhibit 92 134 .......................... 

Plaintiffs' Exhibit 93 134 .......................... 

Plaintiffs' Exhibit 454 134 ......................... 

Plaintiffs' Exhibit 455 181 ......................... 

Plaintiffs' Exhibit 466 181 ......................... 

Plaintiffs' Exhibit 467 182 ......................... 

Plaintiffs' Exhibit 469 182 .........................

Plaintiffs' Exhibit 474 ......................... 7

Plaintiffs' Exhibit 475 ......................... 9

Plaintiffs' Exhibit 504 ......................... 8

Plaintiffs' Exhibit 507 ......................... 8

Plaintiffs' Exhibit 570 ......................... 9

Plaintiffs' Exhibit 598 134 ......................... 

Intervenors' Exhibit 25 ......................... 4

Intervenors' Exhibit 27 4 ......................... 

Intervenors' Exhibit 31 4 ......................... 

- - - 

C E R T I F I C A T E 

I, Luke T. Lavin, RDR, CRR, the undersigned, certify 

that the foregoing is a correct transcript from the record of 

proceedings in the above-entitled matter. 

 s/Luke T. Lavin 

Luke T. Lavin 

 Official Court Reporter 

- - - 

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