1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

OHIO A. PHILIP RANDOLPH 

INSTITUTE, et al.

Plaintiffs,

v. 

LARRY HOUSEHOLDER, Speaker of the 

Ohio House of Representatives, et al.

Defendants.

No. 1:18-cv-00357-TSB-KNM-MHW

Judge Timothy S. Black 

Judge Karen Nelson Moore 

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

 

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION IN LIMINE TO 

EXCLUDE THE TESTIMONY AND REPORTS OF DR. M.V. HOOD III

Pursuant to Federal Rules of Evidence 401, 403, and 702, Plaintiffs respectfully submit 

this memorandum of law in support of their motion in limine to exclude the proposed testimony 

and reports of M.V. Hood III. Plaintiffs do not dispute that Hood could, if offering appropriate 

testimony, qualify under the relevant standard as an expert in political science. However, the 

vast majority of the opinions offered by Hood in this case do not meet the standard for reliability 

required under the governing standard.

INTRODUCTION

The introduction of expert testimony is governed by Federal Rule of Evidence 702 and 

the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 

(1993), pursuant to which expert testimony must be qualified, reliable, and relevant to be 

admissible. “Daubert pointed out that Federal Rules 702 and 703 grant expert witnesses 

testimonial latitude unavailable to other witnesses on the ‘assumption that the expert’s opinion 

will have a reliable basis in the knowledge and experience of his discipline.’” Kumho Tire Co. v. 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 1 of 15 PAGEID #: 5090
2

Carmichael, 526 U.S. 137, 148 (1999). A proffered expert witness must be qualified “by 

knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Where a Court 

determines that an expert is sufficiently qualified, it then considers whether the offered opinion is 

relevant and reliable. See, e.g., Rodrigues v. Baxter Healthcare Corp., 567 F. App’x 359, 361 

(6th Cir. 2014) (“Yes, the rule requires an expert to be qualified. But no, its requirements do not

end there.”); Rose v. Truck Ctrs., Inc., 388 F. App’x 528, 534 (6th Cir. 2010) (determining expert 

qualified, then assessing that opinion unreliable). An expert’s testimony must be based on 

“‘sufficient facts and data’ and ‘[be] the product of reliable principles and methods.’” E.E.O.C. 

v. Kaplan Higher Educ. Corp., 748 F.3d 749, 752 (6th Cir. 2014) (quoting Fed. R. Evid. 702(b), 

(c)). The proponent of the testimony bears the burden of establishing its admissibility by a 

preponderance of proof. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000).

ARGUMENT

Defendants retained Dr. Hood “to provide an assessment of Ohio’s congressional 

districts.” Declaration of Theresa J. Lee in Support of Plaintiffs’ Motion in Limine to Exclude 

Testimony of Dr. M.V. Hood III (“Lee Decl.”), Ex. A (Ex. 1 to 12/17/2018 Hood Deposition)

(“Hood Report”) at 2. In providing his assessment, Dr. Hood makes a number of claims by 

simply reproducing “summary statistics” provided to him by counsel for the Legislative 

Defendants. Lee Decl., Ex. B (Transcript of 12/17/2018 Hood Deposition) (“Hood Dep.”)

at 21:2-22:3. He further makes conclusions or “inferences” that do not follow from the 

underlying materials, see, e.g., Hood Dep. at 165:15-166:7, including by making cause and effect 

assertions in a way that he would not in conducting his academic research, see id.. at 161:11-18. 

He also makes data selection choices that are contrary to his description of the data used and for 

which he offers no underlying reason for the particular selection, and by so making, skews the 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 2 of 15 PAGEID #: 5091
3

data to support his assertions. Hood Report at 11-12; Hood Dep. at 131:16-132:3. Dr. Hood also 

states “facts” in his report that are not in the record, and he either provides no citation at all or an 

incomplete one, such that even he is unclear as to what information is reflected in the “source.” 

Hood Report at 18-22; Hood Dep. at 154:23-157:6. Finally, he purports to offer an opinion on 

Plaintiffs’ standing, clearly a legal determination to be made by the Court, which he is not 

qualified to offer, see Hood Dep. at 179:2-9. A single one of these errors may perhaps have gone 

to the weight of Dr. Hood’s opinions, not their admissibility. However, taken together, they 

amply demonstrate that Dr. Hood has not offered reliable opinions admissible under Rule 702. 

Rather, his report appears to be a catch-all directed by counsel for the Defendants.

Dr. Hood’s report proceeds in eight substantive parts, which each suffer from different 

particular errors that utterly undermine the reliability of his work. Due to the grab bag nature of 

Dr. Hood’s report, this motion considers each of the parts in turn. 

A. The opinions offered in Section III of Dr. Hood’s Report and any related testimony 

are unreliable and should be excluded.

In Section III of his Report, Dr. Hood simply reproduces, in a format that matches his 

font selection, “summary statistics” that were provided to him by counsel for the Defendants. He 

asserts that he is assessing the challenged map and the Proposed Remedial Plan on a number of 

traditional criteria, including population equality, incumbent pairings, compactness, and 

communities of interest. Hood Report 3-10, Tables 1-3, 5-10. However, upon questioning, Dr. 

Hood indicated that each of these were the “summary statistics” provided to him by Defendants’ 

counsel. Hood Dep. at 20:3-12; 21:2-22:3. Dr. Hood did not compute the population or 

compactness of any of the congressional districts, geo-code the incumbents to determine which 

were paired, or review the maps to determine the number of counties and subdivisions split. Id.

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 3 of 15 PAGEID #: 5092
4

at 21:2-22:3. As he did not conduct any analysis to determine if the summaries provided to him 

were accurate, he is not making use of any specialized knowledge that would assist the Court. 

Additionally, in his deposition, it became clear that the summary statistics provided 

included at least one error, which undermined his “conclusion” that the challenged map 

improved upon the 2002 map in one of these areas of traditional redistricting. Hood Dep. 

at 74:6-76:23; 78:3-6. The summary report regarding the number of counties split by the 2002 

map indicated that 25 counties were split, but listed three counties that were only contained in 

one congressional district, for a real total of 22 split counties. Lee Decl., Ex. C (Ex. 10 to 

12/17/2018 Hood Deposition); Hood Dep. at 74:6-76:23. Based on this incorrect summary 

information, he then wrongly concluded that in some aspects the challenged plan “made slight 

improvements over” the 2002 plan. Hood Report at 7; see Hood Dep. at 79:17-80:12. Simply 

reprinting “summary statistics” from an interested party plainly is not a “reliable principle[ or]

method.” Fed. R. Evid. 702(c). For this reason alone, even leaving out the errors included in 

those summaries, Section III of Dr. Hood’s report is not sufficiently reliable for admission under 

Rule 702.

The only of the Tables in the Section that Dr. Hood generated were Tables 5 and 11, 

which considered what percentage of the previous district was retained in the new district for 

each 2011 incumbent. Hood Dep. at 22:4-11. However, as Dr. Hood did not geocode the 

residences of the 2011 incumbents, id. at 21:20-22:3, (nor did he provide the incumbent 

addresses used by Defendants’ counsel to the Plaintiffs, as is required under Rule 26), he cannot 

reliably testify that the core retention values he calculated are correct. Moreover, Dr. Hood’s 

conclusion with respect to the core retention values is contrary to that he has published in his 

peer-reviewed work. In his report, Dr. Hood concluded that because the challenged map had 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 4 of 15 PAGEID #: 5093
5

average core-retention of 55.6%,1 this demonstrated that the map was drawn for the purpose of 

incumbent protection. Hood Report at 5. However, in describing an average core retention rate 

for a congressional redistricting in Georgia, Dr. Hood described an average core retention rate of 

68.7% as a map that “greatly altered the relationship between representatives and constituents.” 

Lee Decl., Ex. D (Ex. 11 to 12/17/2018 Hood Deposition) at 210. While Dr. Hood noted that at 

issue in the article was mid-decade redistricting, and thus a different case, he could not testify to 

any reason why 55.6% did not likewise “greatly alter[]” the relationship. Hood Dep. at 146:9-

149:4. He could not point to any specific percentage that would be considered demonstrative of 

incumbency protection, and would have the Court take it on just his say-so. Courts should not 

“admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” 

Kumho Tire Co., 526 U.S. at 157 (internal citations omitted).

Finally, in its analysis of the Proposed Remedial Plan, this Section does not offer the trier 

of fact any help in understanding the evidence in this case. In an attempt to paint the Proposed 

Remedial Plan as defective (even though it substantially betters the challenged map on all 

traditional redistricting criteria), Dr. Hood assessed the Proposed Plan based on the 2011 

incumbents. As Dr. Hood himself testified, the Proposed Remedial Plan is of course only 

presented for future use, Hood Dep. at 90:12-23, and many of the 2011 incumbents are no longer 

incumbents, id. at 90:24-91:20. As the Proposed Plan is offered as a forward looking alternative, 

it explicitly considered the incumbents presently in office to avoid incumbent pairing. Assessing 

the Proposed Plan for future use based upon incumbents long out of office simply does not make 

sense, and thus does not “help the trier of fact to understand the evidence or to determine a fact 

in issue.” Fed. R. Evid. 702(a).

 1 Dr. Hood’s report finds a core retention rate of 55.7%, but two of the digits in the rate for District 5 are 

transposed. Hood Report at 6 (reads 56.4%, but according to Dr. Hood’s data should be 54.6%).

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 5 of 15 PAGEID #: 5094
6

B. The opinions offered in Section IV of Dr. Hood’s report and any related testimony 

are unreliable and should be excluded.

In Section IV, Dr. Hood recites a now familiar refrain that political geography is the 

cause of the gerrymandered map. Hood Report at 10-13. However, the metric he uses to support 

this conclusion does no such thing. Dr. Hood presents the Moran’s I Coefficient for Ohio as if it 

demonstrates that natural packing is the cause of the composition of Ohio’s gerrymandered 

districts. Id. at 13. However, the coefficient shows only that Democrats live near Democrats, 

and Republicans live near Republicans. Hood Dep. at 101:25-102:13. While this may be 

interesting in theory, it does not show, as Dr. Hood admits, that Democrats live near Democrats 

at greater rates than Republicans live near Republicans, id. at 104:23-105:6, so there is nothing to 

say that this spatial relationship underlies the congressional districts’ compositions. Thus, this 

discussion does nothing to “help the trier of fact to understand the evidence or to determine a fact 

in issue,” Fed. R. Evid 702(a), and in fact tends to obscure that it is actually a measurement of 

both Republicans and Democrats living near their co-partisans. 

Moreover, that Democrats tend to live in more dense areas further does nothing to assist 

the Court. The facts themselves belie that natural clustering lead to the creation of the partisan 

gerrymander at issue. In Dr. Hood’s own Figures, it is clear that it is not the presence of 

Democratic VTDs near one another that lead to Ohio’s gerrymander. Looking at Dr. Hood’s 

Figure 4, it is plain that Democrats living in and around the city of Cincinnati did not naturally 

cause the partisan make-up of the districts there. Rather, the line between Districts 1 and 2 

snakes through the City of Cincinnati, cleaving it in two. On its face, this is clearly not “natural 

packing.” See also Hood Report, Figure 5 (District 11 includes much of Cleveland and then juts 

to the south, through Republican VTDs to then pick up part of Akron. This too is not “natural 

packing” but the deliberate packing of geographically disparate groups of Democrats into one 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 6 of 15 PAGEID #: 5095
7

District). The conclusions offered and Figures generated in aid of Section IV are simply not 

grounded in the facts in this case and must be excluded for that reason. Fed. R. Evid. 702(d). 

See Pride, 218 F.3d at 578 (“Rule 702 requires that the expert’s testimony assist the trier of fact. 

. . . [the] testimony must ‘fit’ the facts of the case.”)

C. The partisan index used in Sections IV, V, and VIII of Dr. Hood’s Report and in his 

2018 Supplemental Report, the opinions based upon it, and any related testimony 

are unreliable and should be excluded.

In Section IV, Dr. Hood described his partisan index as one “based on statewide, 

contested elections for the decade preceding the 2010 redistricting-cycle.” Hood Report at 11. 

He then went on to identify the statewide races, but notably excluded five of the “statewide, 

contested elections [in] the decade preceding the 2010 redistricting-cycle.” Dr. Hood left out the 

2002 statewide races, and offered no explanation for why he did so. Id. at 11-12, Table 12; Hood 

Dep. at 131:16-132:3. Moreover, the 2002 results data was plainly available to the General 

Assembly at the time of the redistricting2 and were even included within the Hood data files 

Defendants provided to Plaintiffs in accordance with Federal Rule of Civil Procedure 26.

This selective use of data wholly undermines the reliability of the conclusions offered 

therefrom in Sections IV, V, and VIII, and the 2018 Supplemental Report. Dr. Hood uses this 

index in Section V to assert that from the perspective known at the time of its passage the 

challenged map was thought to be competitive, and that the partisan composition barely differs 

 2 In addition to the plain temporal fact that 2002 election results were available in 2011, evidence adduced 

in discovery demonstrates that in fact the 2002 election data was on hand and used by the map drawers at 

the time of redistricting. See, e.g., Lee Decl., Ex. H (Exhibit 14 to Deposition of Heather Blessing) 

(screenshot of historical election data in map drawing software); id., Ex. I (excerpts of transcript of 

Deposition of Heather Blessing) at 133:09-21 (testifying that the codes in Exhibit 14 refer to “historical 

election data” and that the number indicates the year); id., Ex. J (excerpts of transcript of Deposition of 

John Morgan) at 44:02-44:17 (confirming he used election results data for elections from 2002-2010); id.,

Ex. K (Exhibit 25 to Deposition of Clark Bensen) (includes individual election results for prior decade); 

id., Ex. L (excerpts of transcript of Deposition of Clark Bensen) at 165:11-166:13, 168:2-6 (testifying that 

Exhibit 25 was created in the course of 2011 redistricting and generated from a Maptitude file to which 

map drawers had access).

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 7 of 15 PAGEID #: 5096
8

from the Proposed Plan. When an index actually “based on statewide, contested elections for the 

decade preceding the 2010 redistricting-cycle,” Hood Report at 11, is used, it is evident that it 

would have been known at the time that the challenged map vastly favored Republican voters at 

the expense of Democratic voters. Compare Hood Table 15 with one using an index with the full 

set of races:

Comparison to Hood Table 15. Actual Partisan Classification of Ohio’s Congressional Districts3

District Percent Republican Classification

1 60.3% Safe Republican

2 59.7% Safe Republican

3 40.8% Safe Democratic

4 59.6% Safe Republican

5 59.9% Safe Republican

6 51.4% Competitive, Leans Republican

7 55.3% Safe Republican

8 64.2% Safe Republican

9 39.8% Safe Democratic

10 56.1% Safe Republican

11 25.4% Safe Democratic

12 60.2% Safe Republican

13 38.6% Safe Democratic

14 54.3% Competitive, Leans Republican

15 57.2% Safe Republican

16 55.7% Safe Republican

 3 This Table uses the same “Classification” structure described in Hood Report at 14 and used in his Table 

15. The Index used to identify the “Percent Republican” is the same as that described in Hood Report at 

11 n.16 except with the 2002 races included, that is: The exact formula is as follows: [(Republican Vote 

2002 Governor/Total Two-Party Vote Governor)+(Republican Vote 2002 Attorney General/Total TwoParty Vote Attorney General)+(Republican Vote 2002 Auditor/Total Two-Party Vote 

Auditor)+(Republican Vote 2002 Secretary of State/Total Two-Party Vote Secretary of 

State)+(Republican Vote 2002 Treasurer/Total Two-Party Vote Treasurer)+ (Republican Vote 2004 

President/Total Two-Party Vote President)+(Republican Vote 2004 U.S. Senate/Total Two-Party Vote 

U.S. Senate)+(Republican Vote 2006 U.S. Senate/Total Two-Party Vote U.S. Senate)+(Republican Vote 

2006 Governor/Total Two-Party Vote Governor)+(Republican Vote 2006 Attorney General/Total TwoParty Vote Attorney General)+(Republican Vote 2006 Auditor/Total Two-Party Vote 

Auditor)+(Republican Vote 2006 Secretary of State/Total Two-Party Vote Secretary of 

State)+(Republican Vote 2006 Treasurer/Total Two-Party Vote Treasurer)+(Republican Vote 2008 

President/Total Two-Party Vote President)+(Republican Vote 2010 U.S. Senator/Total Two-Party Vote 

U.S. Senator)+(Republican Vote 2010 Governor/Total Two-Party Vote Governor)+(Republican Vote 

2010 Attorney General/Total Two-Party Vote Attorney General)+(Republican Vote 2010 Auditor 

General/Total Two-Party Vote Auditor)+ (Republican Vote 2010 Secretary of State/Total Two-Party 

Vote Secretary of State)+( Republican Vote 2010 Treasurer/Total Two- Party Vote Treasurer)] / 20.

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 8 of 15 PAGEID #: 5097
9

Once the available data is used, the outcome for the challenged map is exactly as expected and 

exactly as it has performed in the elections under it: 12 Republican seats, and 4 Democratic seats. 

Once the available data is used, it is also clear that this is not a map characterized by competitive 

districts.

Dr. Hood leaves out an election year that should be included based on his own 

description of the index (one “based on statewide, contested elections for the decade preceding 

the 2010 redistricting-cycle”). Hood Report at 11, see also Lee Decl., Ex. E (Hood Suppl. Rep.)

at 7 (using same pre-redistricting index). When this omitted data is applied, it undermines the 

exact conclusion he is aiming to draw. Taken together, this demonstrates that his index and all 

related testimony is not based on the “sufficient facts or data” necessary for admission of expert 

opinion testimony under Federal Rule of Evidence 702. 

D. The opinions offered in Section VI of Dr. Hood’s Report and any related testimony 

are unreliable and should be excluded.

Two overarching errors in Section VI make it unreliable, and thus should be excluded, as 

failing to meet the requirement of Federal Rule of Evidence 702(c): (1) there is no source 

information for any of the purported facts included therein, thus making it unable to be checked, 

and (2) Dr. Hood draws inferences from the listed information in a way contrary to the methods 

that should underlie such work. In this Section, Dr. Hood lists the purported previous offices 

held by candidates for office and amounts of money raised. He does not provide any citations 

whatsoever for the previous offices held, Hood Report at 19, nor can he recall what the sources 

were, Hood Dep. at 154:23-156:6. For the money raised, he references two websites at the most 

general URL address, but does not provide any information regarding how he extracted the 

information therefrom. Moreover, with respect to this information he does not know what 

information is reflected by the “source.” Id. at 156:7-157:6. 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 9 of 15 PAGEID #: 5098
10

The second error of this Section is even more serious—totally undermining the reliability 

of the opinions offered. Throughout Section VI, Dr. Hood concludes that the lack of experience 

by the challenging candidates and the lower amounts of money they raised account for their 

losses. Hood Report at 19, 22. However, Dr. Hood does nothing more than list the purported 

experience and campaign contributions in support of this assertion. He did not consider the all 

too likely fact that the district lines themselves were the cause of such less-experienced candidate 

recruitment and lower campaign contributions. Hood Dep. at 157:7-160:7. He further admitted 

that the district lines themselves could have been the cause of these other election related factors. 

Id. at 160:19-161:10. In his academic work, Dr. Hood is “very cautious about making cause and 

effect claims” even when he completed statistical modeling to demonstrate the relationship. Id.

at 161:11-17. He completed no such multivariate analysis here, purportedly because there were a 

limited number of data points. Hood Report at 23 n.30, Hood Dep. at 161:18-20. However, in 

his published work, he regularly completes multivariate analyses across congressional plans. 

See, e.g., Lee Decl., Ex. D at 207-08. When questioned on just this ground, he pointed to the 

consideration of VTDs within the district in that particular article, but admitted that Ohio also 

has VTDs. Hood Dep. at 161:21-162:15. 

By failing to consider alternate causes—and worse still, the very cause that Plaintiffs 

challenge in this case—the opinions presented in Section VI of Dr. Hood’s report are unreliable 

and should be excluded. See Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009) 

(failure to consider other possible causes cautions against certifying an expert).

E. The opinions offered in Section VII of Dr. Hood’s Report and any related testimony 

are unreliable and should be excluded.

In Section VII, while Dr. Hood conducts a regression equation with respect to the 

historical trajectory of the efficiency gap in Ohio, he then makes a giant inference therefrom: that 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 10 of 15 PAGEID #:

5099
11

is, that the efficiency gap amounts to a measurement of proportional representation. It is clear on 

the face of all of the academic work on the efficiency gap that this is not what it measures. Dr. 

Hood’s work in Section VI does not offer any analysis that grapples with this literature, and 

instead follows with a litany of “what if” speculation, for which he offers no grounding or 

expertise. See Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 250 (6th Cir. 2001)

(“‘knowledge’ connotes more than subjective belief or unsupported speculation”). Dr. Hood did 

not conduct any independent analysis of partisan bias metrics in Ohio. Hood Dep. at 166:9-

167:2. He speculates about the application of the efficiency gap with respect to both uncontested 

elections and to unequal turnout elections, Hood Report at 26 nn.35, 38, as though they were 

unexplored, while both were considered and analyzed in the Report of Plaintiffs’ expert, Dr. 

Warshaw, which Dr. Hood had and reviewed at the time he wrote his report and reviewed. Hood 

Dep. at 10:5-21; Lee Decl., Ex. F (Ex. 4 to 12/17/2018 Hood Deposition); see also Hood Dep. 

at 167:13-168:6. Neither Dr. Hood’s unfounded inference regarding the efficiency gap, nor his 

disjointed listed of questions demonstrates any “specialized knowledge will help the trier of fact 

to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). These 

speculative questions are not admissible opinion evidence. Tamraz v. Lincoln Elec. Co., 620 

F.3d 665, 671 (6th Cir. 2010) (“nothing in his testimony suggests the sort of ‘knowledge’ on this 

point that the Rules require—only speculation, which is generally inadmissible”).

Additionally, while not related to the efficiency gap, Dr. Hood also includes in this 

Section VII the confounding assertion, “Professor Cho’s districting simulations are based on the 

idea that the partisan seat distribution should roughly mirror the state’s overall political makeup.” 

Hood Report at 25 n.33. Dr. Cho’s report, of course, does no such thing (it rather shows millions 

of possibilities that could occur using a partisan index based on actual elections). Moreover, Dr. 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 11 of 15 PAGEID #:

5100
12

Hood cites Dr. Cho’s entire report for this proposition, and could not even answer what about her 

report, opinions, or analysis lead him to such a conclusion. Hood Dep. at 165:15-166:8 (“that’s 

the inference I’m drawing, I guess). For an expert opinion to be admissible, it must logically

follow. See R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (expert 

opinion must “outline a line of reasoning arising from a logical foundation”). Minimally, the 

expert must be able to explain to the court why his inferences should be made. See Kumho Tire 

Co., 526 U.S. at 157 (courts must not admit opinion evidence on the “ipse dixit of the expert”). 

Dr. Hood does neither of those things here and thus his opinion regarding Dr. Cho’s work should 

be excluded.

F. The opinions offered in Section VIII of Dr. Hood’s Report and any related 

testimony are unreliable and should be excluded.

In Section VIII, Dr. Hood contends that it is the “shifting partisanship” in Ohio that has 

led to the outcomes under the challenged map (as opposed to the clear 12-4 split easily known at 

the time, as demonstrated supra at Section C, “Comparison to Hood Table 15”). However, the 

same data selection bias that plagued the use of the index in Sections IV and V makes it 

insufficient to support Dr. Hood’s conclusions in Section VIII as well. It is therefore 

inadmissible as it fails to meet the requirements of Federal Rule of Evidence 702(c).

This entire Section, as well as Section IV in Dr. Hood’s Supplemental Report, use 

insufficient data in order to conclude that a “substantial partisan shift” occurred in Ohio after the 

challenged redistricting. Lee Decl., Ex. E at 7. As discussed above, by leaving the 2002 

statewide races out of the partisan index, Dr. Hood understates the Republican composition of 

the state prior to redistricting, in an effort to suggest that the entrenched 12-4 Republican 

outcome in the congressional delegation since 2012 is caused by this supposedly “substantial” 

shift instead of by the construction of the challenged map. When applying actually sufficient 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 12 of 15 PAGEID #:

5101
13

(and readily available) data, there is only a 2.2 % shift in the Republican share of the vote total 

for statewide races.4 This is not “substantial” and does not explain the outcome under the 

congressional map.5 

Additionally, Dr. Hood’s selective use of data (that favors his—or Defendants’—

predetermined conclusions) is demonstrated in yet another way in this Section. In addition to Dr. 

Hood’s failure to include 2002 in Figure 1, he commits yet another data selection error in order 

to bulk up his claim of a partisan shift. While he describes his Figure 7 as being “analogous” to 

Figure 1, he does not include all of the statewide races in determining the partisan percentage to 

assign to each VTD in the post-redistricting period. Dr. Hood leaves out three of the five 2014 

statewide races. Hood Report at 27 n.39 (the full list of races held between 2012-2016 is laid out 

in the very next footnote, n.40). He includes the two most Republican of the 2014 statewide 

races, and leaves out the other three. Lee Decl., Ex. G (Ex. 17 to 12/17/2018 Hood Deposition); 

Hood Dep. at 171:8-21. This is part of the pattern of data selection choices throughout Dr. 

Hood’s report that serves to understate the Republican partisan make-up of Ohio prior to the 

redistricting and then overstate the Republican partisan make-up of Ohio following the 

 4 Using the official elections results from the website of Defendant Secretary of State, and applying the 

formula identified by Dr. Hood and updated supra at n.3 demonstrates the following shift, updating Table

5 from Dr. Hood’s Supplemental Report:

Years Percent Republican Difference from Pre-Redistricting (2002-2010)

2002-2010 52.8% ----

2012-2016 57.5% 4.7%

2012-2018 55.0% 2.2%

These post-redistricting percentages are slightly different than those presented by Dr. Hood. Dr. Hood 

did not provide underlying data demonstrating how he reached his percentages, or any underlying data at 

all for his full set of 2012-2018 races, so Plaintiffs are left to guess why the discrepancy exists.

5 A quick look at the Table supra at 8 demonstrates that a +2.2% Republican shift does not alter the 

partisan breakdown known at the time of the redistricting in any of the congressional districts. Adding 

2.2% Republican to any of these districts’ assigned percentages does not shift a single seat between the 

parties. Even leaving aside 2018, a +4.7% Republican shift does nothing to alter the partisan breakdown 

known at the time as demonstrated in the Table supra at 8.

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 13 of 15 PAGEID #:

5102
14

redistricting. Dr. Hood selectively uses data to bolster his claim that there is a “substantial” 

partisan shift in Ohio, in an effort to assert that this is the true reason that a purportedly 

“competitive” map became entrenched 12-4 Republican. His insufficient use of data and 

unreliable methods make these opinions inadmissible under Federal Rule of Evidence 702.

G. Dr. Hood is not qualified to offer an opinion on whether plaintiffs have standing and 

the other opinions offered in Section IX of Dr. Hood’s Report and any related 

testimony are unreliable and should be excluded.

Dr. Hood frames Section IX as contemplating whether Plaintiffs have standing. Dr. 

Hood admittedly is not an expert in federal court subject matter jurisdiction, nor is he an 

attorney. Hood Dep. at 179:2-9. He is not qualified to offer any such opinion. 

To the extent Dr. Hood attempts to frame this Section as something other than that 

outside his expertise, it offers the Court no “help . . . to understand the evidence or to determine a 

fact in issue.” Fed. R. Evid. 702(a). He simply lists a smattering of speculative questions, 

repeats what Dr. Cho’s simulations demonstrated for certain of the Plaintiffs, and relists the

partisan percentages (already amply discussed as faulty above) for the districts in which certain 

Plaintiffs live. This simply is not the sort of specialized knowledge or reliable opinion that offers 

anything to the Court, and so should not be admitted under Federal Rule of Evidence 702. See

Tamraz, 620 F.3d at 671 (rejecting speculation); Nelson, 243 F.3d at 250 (same).

H. Dr. Hood’s Section X conclusions are utterly unreliable and should be excluded.

As discussed above, Dr. Hood’s report is riddled with unreliable methods, ungrounded 

conclusions, conclusions reached in a manner contrary to his academic work, and insufficient 

data. For all of these reasons, the “conclusions” offered in his Section X are utterly unreliable 

and should not be considered by this Court.

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 14 of 15 PAGEID #:

5103
15

CONCLUSION

For all of the reasons discussed above, Dr. Hood’s proposed opinion evidence does not 

have the required reliable basis demanded of expert testimony, and should be excluded.

January 18, 2019 Respectfully submitted,

T. Alora Thomas-Lundborg

Dale E. Ho

Theresa J. Lee

Emily Rong Zhang

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

athomas@aclu.org

dho@aclu.org

tlee@aclu.org

erzhang@aclu.org

/s/ Freda J. Levenson, trial attorney

Freda J. Levenson (0045916)

American Civil Liberties Union of Ohio Fdtn.

4506 Chester Avenue

Cleveland, OH 44103

Tel.: (216) 472-2220

Facsimile: (216) 472-2210

flevenson@acluohio.org

Robert Fram

Nitin Subhedar

Jeremy Goldstein

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Tel.: (415) 591-6000

rfram@cov.com

nsubhedar@cov.com

jgoldstein@cov.com

Kyunghoon John Woo**

Covington & Burling LLP

1999 Avenue of the Stars

Los Angeles, CA 90067

Tel.: (424) 332-4800

jwoo@cov.com

Michael Baker

Perrin Cooke

Peter Rechter

Robert Day

Kaitlyn Demers

Covington & Burling LLP

850 Tenth Street, NW

Washington, DC 20001

Tel.: (202) 662-6000 

mbaker@cov.com

pcooke@cov.com

prechter@cov.com

rday@cov.com

kdemers@cov.com

Attorneys for Plaintiffs

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 150-1 Filed: 01/18/19 Page: 15 of 15 PAGEID #:

5104