UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

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

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

INSTITUTE, et al., . 

. Day 5 of Bench Trial

Plaintiffs, . 

. 

 - v - . 

. Friday, March 8, 2019 

LARRY HOUSEHOLDER, et al., . 8:57 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. 

American Civil Liberties Union THERESA J. LEE, ESQ.

 of Ohio Foundation EMILY R. ZHANG, ESQ. 

4506 Chester Avenue American Civil Liberties Union 

Cleveland, Ohio 44103 Foundation 

125 Broad Street, 18th Floor 

New York, New York 10004-2400 

ROBERT D. FRAM, ESQ. JACOB CANTER, ESQ. 

NITIN SUBHEDAR, ESQ. ROBERT DAY, ESQ. 

Covington & Burling LLP ISAAC WOOD, ESQ. 

One Front Street, 35th Floor Covington & Burling LLP 

San Francisco, California 94111 One CityCenter 

 850 Tenth Street, N.W. 

Washington, D.C. 20001-4956 

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 8:57 AM.)

(Wendy K. Tam Cho resumes the witness stand.)

JUDGE BLACK: Good morning. Please be seated.

We're here in the open courtroom on the record on Day 5 of

the trial in the matter of OAPRI, et al. versus Householder, et

al.

The witness is present. She's back on the stand.

Is there anything that requires the Court's attention

before we proceed?

MR. FRAM: Good morning, Your Honor. I don't know if

the Court would like, but we've got the daily time report.

JUDGE BLACK: Great.

MR. FRAM: From yesterday, for plaintiffs, we've got

an additional 257 minutes, for a total of 816 in the case so

far. For defendants and intervenors, an additional 76 minutes,

for a total of 580 minutes in the case so far.

JUDGE BLACK: Very well. And the parties agree on

that; is that right?

MR. McKNIGHT: Yes, Your Honor.

JUDGE BLACK: Great.

Are we ready to proceed to cross-examination of the

witness, from the defendants' perspective?

MR. McKNIGHT: One additional matter.

JUDGE BLACK: Okay.

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WENDY K. TAM CHO - CROSS 5 - 4 

MR. McKNIGHT: We'll have Mr. DiRossi ready and

available at 1:00 clock today rather than 2:00, if that works

for the Court.

JUDGE BLACK: That's good news. Thank you for

scrambling to get that done.

MR. McKNIGHT: Yes, Your Honor.

JUDGE BLACK: Are you ready to proceed this morning?

MR. McKNIGHT: We are, Your Honor.

JUDGE BLACK: From the intervenors as well?

MR. STRACH: Yes, Your Honor.

JUDGE BLACK: And the plaintiffs?

MR. SUBHEDAR: Yes, Your Honor.

JUDGE BLACK: Good morning, Doctor.

THE WITNESS: Good morning.

JUDGE BLACK: You remain under oath, and you

understand?

THE WITNESS: Yes.

JUDGE BLACK: Very well. Cross-examination. Brace

yourself.

WENDY K. TAM CHO 

a witness herein, having been first duly sworn, testified as 

follows: 

CROSS-EXAMINATION 

BY MR. TUCKER:

Q. Good morning, Dr. Cho.

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WENDY K. TAM CHO - CROSS 5 - 5 

A. Good morning.

Q. Nice to see you again.

A. You too, I think.

Q. Dr. Cho, you repeatedly stated during your direct testimony

that you drew a set of non-partisan maps; correct?

A. Under the conditions of which I specified, yes.

Q. But the actual redistricting process in Ohio is a partisan

process, isn't it?

A. It's run by partisan actors. I don't know if that defines

a partisan process.

Q. Well, you agree that politics are an inevitable part of the

redistricting process in Ohio, wouldn't you?

A. I'd say that's true.

Q. And that can be a constraint on that process, can't it?

A. So this word "constraint," if you mean it in the sense that

I should constrain my simulations, I would say no. If you mean

it affects what happens, I would say yes.

Q. Correct. So it's a constraint that the legislature has to

deal with that you don't have to deal with when you run your

simulation; is that accurate?

A. My simulations have no partisan effects, that's true. The

legislature, I don't know what they do.

Q. Well, your simulation doesn't have to get enough votes to

pass a map, does it?

A. Correct.

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WENDY K. TAM CHO - CROSS 5 - 6 

Q. Now, you can draw lots of maps using the Blue Waters

supercomputer at your university; correct?

A. Yes.

Q. In fact, I think you said that you can draw billions of

maps?

A. Yes.

JUDGE BLACK: Could you give me a moment.

(Discussion off the record.)

JUDGE BLACK: Thank you for the pause.

Q. Dr. Cho, your report states that your methodology produces

a very large set of possible alternative maps using the same

underlying geography and population as the enacted map; is that

correct?

A. That's correct.

Q. And I think, as you go on to state in your report, "In this

way the simulated maps form a baseline for a comparison and

understanding of the partisan effect of the enacted map"; is

that right?

A. That's right.

Q. But the problem we have with redistricting is that the

universe of possible maps is astronomically large, isn't it?

A. That's not a problem for redistricting. It makes it an

interesting challenge for drawing simulated maps.

Q. Well, to put this in context for everybody else, I think

I've heard you say before that the possible number of

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WENDY K. TAM CHO - CROSS 5 - 7 

redistricting maps for a state like Ohio would be exponentially

greater than the total number of seconds in the history of the

universe; is that right?

A. No. I said I've used that example, number of seconds since

the beginning of the universe is less than -- you know, is ten

to the 18th, but I didn't say anything about the maps for Ohio.

When I make that reference, I'm making reference to the

unconstrained graph partitioning problem, and this is not an

unconstrained problem.

Q. Well, you can't say how many total possible ways the state

of Ohio can be divided into 16 congressional districts, can

you?

A. That actually can be calculated. It's a very large number.

But I didn't calculate it.

Q. And because the number is so large, what your algorithm

purports to do is to draw a large sample of maps from this

total population that is currently not known; is that right?

A. Yeah. It's a large sample. It's a large representative

sample from an unknown distribution.

Q. In fact, I think you stated in your report that your

algorithm creates a random walk that is guaranteed to draw a

random sample from a distribution that is quantifiably close to

the space of all possible electoral maps; is that right?

A. That's correct.

Q. But what you define as feasible or possible in your report

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WENDY K. TAM CHO - CROSS 5 - 8 

is based upon the parameters that you set in your algorithm and

in your code; is that right?

A. That's correct.

Q. So I want to make sure it's clear exactly what sample

you're drawing here. You are not attempting to draw a

representative sample of all possible congressional districting

maps in the state of Ohio; right?

A. Yeah. So ones that don't follow the legal requirements

wouldn't be drawn.

Q. And you're not attempting to draw a representative sample

of even all possible districting maps in the state of Ohio that

meet basic legal requirements of contiguity and equal

population, are you?

A. No. They're contiguous. They're also equal population as

I describe them.

Q. But your sample is not a representative sample of all

possible maps that meet only those two criteria; correct?

A. Yeah, it's more constrained than that.

Q. What you're purporting to do is draw a representative

sample of all possible maps that meet the specific districting

criteria that you selected; is that right?

A. Right. So they're the legal criterion, population,

contiguity and VRA, and then they're the traditional

districting principles as I described them yesterday.

Q. And if you use different criteria, you'd end up with a

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WENDY K. TAM CHO - CROSS 5 - 9 

different sample set of maps, wouldn't you?

A. You could.

Q. Now, Dr. Cho, you agree that the proper simulation

comparison set for the current map is a set of maps that is

created using the same legal criteria that were used to create

the current map, don't you?

A. So the same legal criteria and then the other ones that I

mentioned, the traditional districting principles, which I

wasn't putting in the same camp.

Q. So to draw any legally valid conclusions from your

analysis, your simulated maps must include the maps that factor

in all the same legal criteria that led to the current map,

doesn't it?

A. I think I just said that.

Q. Okay. And when we're talking about legal criteria, you've

referred to the various redistricting goals that have been

recognized as valid goals by the U.S. Supreme Court; correct?

A. So when I say "legal," I separate those from the

traditional districting principles, but you seem like you're

subsuming them. Yes or no? Because I kept saying that, and

then you keep saying "legal criteria," no longer referencing

the other criteria.

Q. Let me be more direct with the question. The districting

criteria that you're talking about is districting criteria that

has been identified by the U.S. Supreme Court; correct?

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WENDY K. TAM CHO - CROSS 5 - 10 

A. Well, some of them. Not all of them. So yesterday I

mentioned incumbency protection, which they've discussed and I

discussed what I did.

Q. So if you're trying to use your simulated maps as a

baseline to compare to the enacted map, then in defining what

is a feasible map in your simulation, you'd want to use the

same nonpartisan criteria employed by the enacted map; correct?

A. Yeah. So if there's a legal criterion that has to be

satisfied by law, I have those in there. And then if there are

traditional redistricting principles that I specify, and I

discussed how I had those in there. If there are other

criterion that are not discussed by the Court but may be

perfectly fine, I don't have those in there.

Q. So if there were traditional districting criteria that the

enacted map follows, you'd want your simulated maps to follow

those same criteria; correct?

A. So I had the traditional districting principles, as I

specified. There are other traditional districting principles

that the Court has mentioned. And I think yesterday I said I

looked at the legislative record to see if the Ohio Legislature

cared about any of these things, because they're not required

to do them. So, you know, they rattled off the set in the

legislative record, but a lot of them they never came back to.

It's like a lesson. Right? Here's the set. I know the

set too. And then they never mention them, which implies to me

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they didn't care about them. They're just giving you a set.

Right? So I didn't include everything, if that's what you're

asking me.

Q. Your testimony today is that you do not include all of the

traditional redistricting criteria that the Ohio Legislature

considered when enacting the 2011 plan?

A. No. My testimony is they listed off the set and they

discussed some of them, and I read in the legislative record

how they discussed them. I got a sense of what went into the

map and what didn't go into the map, because they're not

required to use any of them, actually. They're not required to

keep the counties together, but they -- they chose to. We

talked about it. They said, We're going to do this. So I did

that.

They discussed incumbency protection, but it's not like

they're required to do that either. And then they discussed it

and I thought about it. I did that with all of them.

Q. You were trying to use the same traditional districting

principles that the enacted map followed so that your

simulation set was an apples-to-apples comparison; correct?

A. Yes.

Q. Because if you didn't use or follow the same criteria, then

it would be an apples-to-oranges comparison; is that right?

A. No, not necessarily. It would be a larger set.

Q. Okay. We'll come back to that.

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Now, in your report, and during your testimony yesterday,

Dr. Cho, you described the criteria that you believe guided the

congressional redistricting in Ohio. Do you recall that?

A. Yes.

Q. And I think you listed minority districts, preserving

counties, preserving cities, population equality and

compactness; is that right?

A. Yes.

Q. And you also testified yesterday that you obtained these

criteria from your review of the legislative record and your

belief that these were the neutral criteria employed by the

Ohio Legislature; is that right?

A. Yes, I read the legislative record, and these are the

things they discussed.

Q. But you admit that you don't know the actual intent of the

map drawers, other than what you inferred from the legislative

record; is that true?

A. That's true.

Q. And if there's testimony in this case from the drafters of

the plan and the Speaker of the House of the Ohio Legislature

that they considered different criteria, that would have

impacted the criteria you would have included in your

simulation, wouldn't it?

A. No, not necessarily.

Q. Well, if the legislature considered different criteria than

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what you put in your simulation, wouldn't you be comparing

apples to oranges?

A. So if there's testimony somewhere that says we wanted to

keep ten -- we only wanted to split ten counties, for instance,

that somebody had an e-mail or there's something out there that

says that, and I looked at the map and it only -- it split 23

counties, and then the legislative record says, We're trying to

keep counties together, then it doesn't matter to me that

there's some e-mail somewhere that I don't know about that says

they were trying to do something else.

Q. So you're putting your own subjective interpretation as to

what the legislature intended, aren't you?

A. No. I read the legislative record. I think it's pretty

objective. They mention some; they didn't mention others.

It's not like I'm treating them differently.

I did that with all of the traditional districting

principles. I treated them the same way. I looked at them. I

looked to see if they were mentioned in the legislative record.

I looked at how they mention them in the legislative record. I

did that in the same objective way for all of them.

Q. Okay. Well, do you understand from your review of the

legislative record that the Ohio Legislature wanted to created

a majority-minority district in northeast Ohio?

A. I understand they wanted to comply with voting rights law.

Q. But do you understand from your review of the legislative

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record that they specifically wanted to create a

majority-minority district in northeast Ohio?

A. I don't know what you mean by "majority-minority," because,

to me, when you say that, you're implying they want over 50

percent.

Q. That's exactly what I'm implying. Did you see that in the

legislative record when you reviewed it?

A. That they want over 50 percent?

Q. That they wanted to create --

Well, can a district be a majority-minority district if

it's not over 50 percent black voting age population?

A. So I think this is kind of a semantic thing, because if

you're saying "majority-minority," that implies that the

majority is the minority. That can happen in lots of ways. So

you can have majority minority in population, for instance.

That's not necessarily considered a voting rights district,

because maybe the BVAP is not high enough. Sometimes the BVAP

can be less than 50 percent, and the Court will recognize that

as satisfying the Voting Rights Act. So I'm not casting a

legal judgment here on what they're thinking, but the words you

use are a little bit confusing to me.

Q. Well, Dr. Cho, I understand that your opinions may be that

to comply with the Voting Rights Act, a majority-minority

district doesn't have to be created, but by definition, a

majority-minority district means that the minority population

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is 50 percent or greater of the population of that district,

doesn't it?

A. No. I think there's ambiguity there. Is it majority

population? Is it majority voting age population? Is it

majority citizen voting age population? I don't think that's

particularly not unambiguous.

Q. And are you aware of any Supreme Court cases that say that

a majority-minority district can have a minority population

less than 50 percent?

A. I think the Court has discussed things like that, yes.

Q. In what case did they say that, Dr. Cho?

A. I believe in Georgia v. Ashcroft they talk about influence

districts and how that can matter.

Q. An influence district is not a majority-minority district,

is it?

A. No.

MR. TUCKER: Let's pull up Joint Exhibit 1, please.

Q. And, Dr. Cho, this is the transcript from the House session

on September 15th, 2011, that I believe you testified yesterday

you reviewed and relied upon for identifying the criteria that

the legislature was considering when enacting the plan;

correct?

A. Yes.

Q. And I want to refer you to page 17 of the transcript, at

line 21 -- and I'll represent to you this is a continuation of

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Representative Huffman's testimony. 

Representative Huffman states: "The significant

application in this particular case is that it -- we are

required to draw a majority/minority district in the state of

how when that can be done. And, in fact, the map that you see

before you today in this legislation" --

Please continue to the next page.

-- "and was presented to the Committee, in fact, does that.

So that's one of the significant requirements by federal law

that we have met when we've drawn this map."

Do you see that testimony?

A. I do.

MR. TUCKER: Now, if you'd also pull up Joint Exhibit

3.

Q. Dr. Cho, this is the transcript from the Ohio State Senate

session on September 21st, 2011. Did you review this

transcript?

A. I looked at it, yes.

Q. And did you rely upon it in helping determine the criteria

that the Ohio legislature was using when drawing the 2011 plan?

A. I didn't focus on this one as much as I did on the one that

we just looked at, but I looked at it, yes.

Q. Well, let's turn to page ten. Beginning at line 13 -- and

this is the testimony of Senator Keith Faber: 

"When we were in Cleveland, we heard that it was very

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important to the community in Cuyahoga County, that we

redistrict a majority-minority district. We thought that was

important too, and this map includes a minority-majority

district, including the Cuyahoga County, Northeast Ohio region.

We thought it was also probably not just a good idea, it was

also going to be required to comply with the Voting Rights Act.

And the Voting Rights Act says, essentially, where you can draw

a continuity of interest minority district you need to do

that."

Do you see that testimony?

A. I do.

Q. So the legislative record reflects a desire by the Ohio

Legislature to create a majority-minority district in northeast

Ohio, doesn't it?

A. It does.

Q. And you recognize that under the 2011 plan, there is a

majority-minority district in northeast Ohio, isn't there?

A. There is.

Q. And do you know that there has been a majority-minority

district in northeast Ohio since 1968?

A. I didn't know that.

Q. But you didn't draw any majority-minority districts in your

maps, did you?

A. As I explained yesterday, I created one that's at least 45

percent BVAP, and that was as a result of Dr. Lisa Handley's

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analysis of what needed to be done to comply with the law. It

could be that the legislature decided that there was something

else that needed to be done that would comply with the law.

That doesn't mean, I don't think, that they're correct.

So, for instance, if there was in the legislative record a

statement that said We want to draw a 70 percent BVAP district

in this area, that's not required by law. Right? There's

something that's required by law, which is compliance with the

Voting Rights Act. And as long as you comply with the Voting

Rights Act, it's legally valid in that way. 

And if somebody says, I want to draw a 70 percent one, well

that may be their prerogative to try to draw 70 percent, but it

doesn't mean I have to draw 70 percent just because they think

they have to draw 70 percent, even if they genuinely believed

70 percent is what is required by law. It's not what they

think is required by law, it's what's required by law.

Q. Dr. Cho, in fact, none of your 3 million simulated maps

have a district that even reaches 48 percent black voting age

population; is that correct?

A. I believe that's correct.

Q. So none of your plans would have complied with an express

goal to create a majority-minority district, do they?

A. The -- the express goal is 50 percent BVAP, which, again,

we're quibbling here on what the definition of a minority

district would be or a district that would comply with the

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Voting Rights Act.

You keep saying it has to be over 50 percent. I'm not sure

what you're basing that on.

Q. Well, let's assume for this line of questioning, Dr. Cho,

that, by definition, a majority-minority district is a district

where the minority population is the majority, is over 50

percent.

A. I got that part.

Q. Okay. Assuming that to be the case, then none of your 3

million maps draw a majority-minority district, do they?

A. Yes, none of my 3 million maps have a district that is over

50 percent BVAP.

Q. Rather, you decided to use a 45 percent BVAP number in your

simulation; correct?

A. Well, that was the lowest. It could be that it would

create something that's higher, but it didn't.

Q. Yeah, we know none of them got up to 48 percent; right?

A. Yeah.

Q. And this criteria didn't come from your review of the

legislative record. It came from one of plaintiffs' other

experts, didn't it?

A. Well, I think I describe -- so if it's a legal criterion, I

don't -- it doesn't matter what the legislature thinks is

legal. It's a legal criterion. Right? That's different than

a traditional districting principle, which they don't have to

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do, like they have to do with the legal criterion. But the

legal criterion, if you've satisfied the law, you've satisfied

the law.

With the traditional districting principles, it's

different, because they don't have to do it. So then if they

don't have to do it, then I'm interested in, well, what did

they do? Did they care about it? Because they're allowed to

care about it as a neutral criterion. So if they cared about

this neutral criterion, how did they care? But with the law --

you know, if the law is you have to have a certain percentage

and they decide, well, I want to have 70 percent, that doesn't

matter.

Q. Well, Dr. Cho, District 11 in the current map is not a 70

percent BVAP, is it?

A. Well, I'm just saying 70 percent, 52, 50 -- it doesn't

matter what they're thinking. If you comply with the law, you

comply with the law.

Q. And are you aware of whether this district has ever been

challenged under Section 2 of the Voting Rights Act?

A. My understanding is nobody knows what the number has to be,

and that's why there was an analysis of what the number should

be; otherwise, we're just guessing.

Q. Dr. Cho, I apologize for cutting you off. That wasn't my

question. We are on a timed trial here. 

But my question was, are you aware whether or not there's

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been any Section 2 challenge to this district under the Voting

Rights Act?

A. I don't believe there has been.

Q. So you just accepted and employed the 45 percent BVAP

number in your simulation per the direction of plaintiffs'

counsel; isn't that true?

A. Yes, that's what I was informed to do.

Q. You didn't perform any independent analysis to determine

if, in fact, a 45 percent BVAP district in northeast Ohio would

comply with the Voting Rights Act?

A. Yeah, that's not within my expertise.

Q. Dr. Cho, regardless of whether or not a majority-minority

district was required by law to be created under the Voting

Rights Act in northeast Ohio, if the legislature believed that

it was required by law to do so, then that would be a

reasonable thing for them to do; correct?

A. Well, certainly if they believed that they had to do

something that was required by law, I would never fault them

for trying to comply with the law, because why would I do that?

I wouldn't fault them for that. Whether it's true what they're

trying to do, that's a different matter.

Q. And, Dr. Cho, had you required each one of your maps to

have a district that had a 50 percent or greater BVAP, you

would have ended up with entirely different maps, wouldn't you

have?

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A. I suppose, because none of mine have 50 percent BVAP.

Q. And your maps -- that would affect the partisan composition

for each of your simulated maps, too, wouldn't it?

A. That I wouldn't know until after I did it.

Q. But you didn't do it in this case?

A. I did not do it in this case, no.

Q. Now, Dr. Cho, you've also heard the term "minority

influence district" as well, haven't you?

A. I have.

Q. And is that where the population of the district has a

minority population that will allow them to have at least an

influence on the elections in that district?

A. That's the idea.

Q. And it can also be a valid redistricting goal for the

legislature to create minority influence districts, too;

correct?

A. Yeah, they could do that.

Q. And are there any districts in the 2011 plan in Ohio that

can be considered a minority influence district?

A. I didn't focus on that, but I provided that as output, and

I think there's often an influence district.

Q. Are you aware of whether any other districts under the 2011

plan, other than the district in northeast Ohio, are

represented by an African-American member of Congress?

A. I think so. I looked this up at some point, but I don't

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quite remember.

Q. Are you aware that District 3 in Franklin County has a BVAP

of over 30 percent?

A. Yes. And I think a lot of my districts in that area also

had a BVAP of about 30 percent.

Q. Are you aware, though, that many of your maps have

districts that only have a 17 percent BVAP?

A. It varies, yes.

Q. So if the evidence in this case shows that there was an

intent by the Ohio legislature to create a new district in

Franklin County that would be considered a minority influence

district, that is not something that you factored into your

algorithm, is it?

A. I didn't preclude that from happening, and I didn't see

anywhere that people were talking about trying to create such a

district. I think such a district often appears without even

trying.

Q. But your algorithm made no specific effort to create a

minority influence district in the Franklin County area, did

it?

A. This is correct.

Q. Now, another criterion that was discussed yesterday, and

that's required by law, is equal population; correct?

A. Correct.

Q. And that's required for one-person one-vote requirements?

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A. That's where it originates from, yes.

Q. And so because this is a legal requirement, this is

something that you tried to comply with in your simulation; is

that right?

A. That's correct.

Q. Now, you recognize that the current map in Ohio has a

population deviation of, at most, plus-minus one person between

districts; right?

A. Yes.

Q. So that's as nearly as practicable equal in population in

Ohio; right?

A. I wouldn't put that phrase on it, no.

Q. Well, you have 16 districts, and if the total population of

the state of Ohio can't be divided into 16 equal populous

districts, then how can you get closer than plus-minus one

person?

A. I'm not saying you can get closer. But that phrase "as

nearly as is practicable" wouldn't mean that you have to be

within one person.

Q. That wasn't my question, Dr. Cho. My question is, is the

Ohio map, as nearly as is practicable, equal in population?

A. That's what I'm saying. You're saying it's within one

person, and I'm saying that is not the definition of "as nearly

as is practicable," because you can deviate for other reasons.

Q. You're not disagreeing that the Ohio map can't be any more

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equal in population than it is; right?

A. Yes.

Q. But none of your maps have districts with population

deviation anywhere close to plus or minus one person, do they?

A. I think the smallest is .3 percent.

Q. Okay. And that's somewhere around 2000 people; is that

right?

A. Yeah. I'm not good at that kind of math.

Q. That actually surprises me, Dr. Cho.

A. No, I'm horrible at that, actually.

Q. Some of your maps go as high as one percent; right?

A. Yeah.

Q. If I told you that's around 7,000 people, would you have

any reason to disagree with that?

A. Yeah, I'm all about those approximations.

Q. So are you aware of any state in the country whose

congressional districting map has a population deviation of

between 2,000 and 7,000 people?

A. I haven't done that analysis.

Q. And are you aware that a plan with a population deviation

of only 17 people has been held unconstitutional?

A. Yeah. There's no number that will get you

constitutionality, as I understand it.

Q. But as I understood your testimony yesterday, you believe

that your use of a one percent population deviation threshold

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is still comparable to the enacted map; is that right?

A. That's correct, but not for the reason that one percent is

the same as equal, meaning zero or one person.

Q. And I understand your position in this case is that any map

that's within one percent population deviation can be brought

to population equality at the census block level without

compromising any other traditional districting principles; is

that right?

A. Any of the other ones that I had used, yes.

Q. Although when you're trying to equal out population, that

might require you to have to split a particular municipality;

correct?

A. No. I mean, there are municipalities that are already

split. You can just use those. You don't have to split a

different one.

Q. And I believe you referred to these maps when you would

equal out population as buddy maps?

A. Yes.

Q. You didn't create any buddy maps for this case, did you?

A. I did not.

Q. So, Dr. Cho, you believe that your simulated maps are still

comparable to the enacted map on population deviation even

though you use one percent; right?

A. No, that's not what I said. The one percent population, as

I explained yesterday, is not what the legislature did. And I

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explained that what we're interested in here is the partisan

effect. And I'm measuring partisan effect without introducing

additional unknown measurement error from going down to a

geographic unit where we don't know how that -- we don't know

the partisan breakdown of that other unit. We can do that to

equalize the population, but then we won't know what happens as

far as partisan effect.

Q. But you don't know what the partisan effect will be of

zeroing out the population for each of your maps, do you?

A. Well, I explained this yesterday. If you're down to one

percent, and that would be the maximum, I explained why, you

know, you can make this very logical argument that once you

zero out, you're not going to change the partisan effect. I

mean, it's possible, and I explained a scenario under which

that would be possible, but that scenario is so unlikely that I

don't think it -- I don't think it happened. Or if it

happened, it almost never happened. And if it did happen, I

would find it really hard to believe that it happened for all 3

million of my maps. And even if it did happen for all 3

million of my maps, it would barely move my histogram at all.

Q. I understand, Doctor. Your testimony is that I can zero

out population and it's going to have little effect on the

output of your maps; is that right?

A. Little effect on the outcome of my analysis.

Q. Dr. Cho, yesterday you talked about your testimony in the

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case in Pennsylvania. Do you recall that?

A. Yes.

Q. And in that case, the Pennsylvania congressional

redistricting plan was being challenged in two different

lawsuits, one in federal court and one in state court. Do you

recall that?

A. Yes.

Q. And in the state court case you were testifying on behalf

of the state legislature; correct?

A. Yeah. You were my attorney.

Q. And you were offering opinions criticizing two of the

plaintiffs' experts in that case. Do you recall that?

A. Yes.

Q. One was Dr. Jowei Chen; correct?

A. Yes.

Q. And one was Dr. Wesley Pegden, P-e-g-d-e-n?

A. Yes.

Q. And both Drs. Chen and Pegden also have algorithms that are

designed to simulate maps; correct?

A. Definitely for Dr. Chen. Dr. Pegden was trying to do

something a little bit different, but in the same ballpark.

Q. Dr. Cho, you recall testifying at the trial in the

Pennsylvania state court case; correct?

A. Yes.

Q. And at that trial you were under oath just as you are

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today?

A. Yes.

Q. And you agreed to tell the truth; right?

A. Yes.

Q. And you did tell the truth at that trial; correct?

A. Yes.

MR. TUCKER: Your Honor, I have copies of the

transcript from the day of trial for Dr. Cho's testimony in

Pennsylvania. May I approach the witness?

JUDGE BLACK: Yes. Thank you.

Q. And, Dr. Cho, isn't it true that you criticized Dr.

Pegden's methodology in Pennsylvania because he only used a one

percent or two percent population deviation; correct?

A. My criticism of Dr. Pegden was that he created maps that

had two percent and then he created maps that had one percent.

And his argument was that when you go from two percent to one

percent, you see a certain effect direction. And he argued

that when you go from one percent to zero percent, that effect

would continue in that same direction. And that's the argument

that I criticized, that you go from two percent to one percent,

he sees a direction, and he assumes that direction has to

continue from one percent to zero, and that argument is not

logically true.

MR. TUCKER: Let's pull up page 1218 of the trial

transcript from Pennsylvania.

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Q. And beginning at the bottom, on line 21, the question was,

"So what, in your mind, is -- is idiosyncratic or unique about

redistricting that limits the application of this theorem?" 

And your answer: "So one of the limitations is the way he

defined what's a valid map is not, in my opinion, the right way

to do it because he leaves out -- for instance, kind of like

Dr. Chen, he leaves out incumbency protection. But Dr. Pegden

leaves out even more. He left out preserving cities. He

didn't preserve" equal population "at the same level that the

current map preserves it at. He uses two percent. Current map

is at zero. He tried one percent. The current map is at zero.

"So we're comparing something else, because if you're

constrained to have population equality and then you say, Okay.

The maps I'm going to compare to constrain...at a different

level, it's like, Well, do you -- do you get some partisan

effect from that, you know, relaxing of that constraint; do you

get some partisan effect from not preserving cities?"

Was that your testimony in the Pennsylvania case?

A. It was. And I think if you read the rest of it you'll see

that I was explaining exactly what I explained to you just now,

his argument was two percent to one percent, it's the same

direction from one percent to zero, and that's just not true.

Q. But Dr. Pegden used two percent and one percent population

equality thresholds in Pennsylvania, and you found that his

methodology was not reliable; correct?

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A. It's not his methodology -- well, okay. I also have issues

with his methodology, but the thing I'm describing there is he

made an argument that you go from two percent to one percent

and it produces a certain direction, and that direction will

continue from one percent to zero, and that is false. It's in

there.

Q. Dr. Cho, you also authored a report in the Pennsylvania

state court case. Do you recall that?

A. Yes.

MR. TUCKER: Your Honors, may I approach the witness?

JUDGE BLACK: Yes. Thank you.

Q. All right. Dr. Cho, is what I handed you a copy of your

report that you authored in the Pennsylvania state court case?

A. It is.

Q. And the statements in that report are accurate; correct?

A. Correct.

Q. I want to refer you to page 11 of your report. Do you see

the paragraph immediately below the block quote?

A. The one that says, "However, the population deviation"?

Q. Yes.

A. Which?

Q. So right below the block quote you say, "However, he does

not require his bag of alternatives to meet all of the same

criteria (preserving cities and incumbent protection), and on

other criteria, such as population equality, he allows his

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candidate maps to systematically be worse than the candidate

map."

A. I see it.

Q. "This decision biases what appears in the candidate set of

comparison maps."

A. I see it, yep.

Q. Did I read that correctly?

A. Yes.

Q. And if you turn to page 12, in the middle of the paragraph

that continues from the previous page, you state, "His third

point is that the threshold does not" --

A. Where is this? I'm not --

Q. They're bringing it up on your screen, if you look.

A. Okay.

Q. "His third point is that the threshold does not affect the

outcome." Do you see that?

A. Yes.

Q. And then further down below, the last two sentences, you

state: "This statement is a broad and sweeping claim that is

not backed up with empirical evidence. He simply asserts the

fact, which is non-obvious. Partisan bias is not a proxy for

population deviation. The two do not move in lock step with

one another."

That's what you said in your report in Pennsylvania;

correct?

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A. Yeah, and that's exactly what I've been saying to you is

that he says that the direction of bias keeps going in one

direction, from two percent to one percent, from one percent to

zero, and that's a logically flawed argument. That's the

argument I'm making there.

Q. But, Dr. Cho, you didn't do any analysis to determine if

you zeroed out population, if it would affect the partisan

outcome of your maps, did you?

A. So this is a completely different argument. Because he did

two percent, noticed the direction from two percent to one

percent, and said that implied it's the same direction from one

percent to zero. I did one percent, and I'm explaining to you

why at one percent you can zero it out and not have it have a

material effect on your results.

Q. But you provide no analysis to support that, do you?

A. I supplied a very logical argument for why that wouldn't

happen.

Q. But no analysis?

A. I did not actually do it, but I supplied a logical

analysis.

Q. Dr. Cho, let's discuss a little bit about incumbency

protection.

A. Okay.

Q. You admit that your simulation makes no specific effort to

protect incumbents; correct?

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A. True.

Q. And, in fact, you have no idea how many incumbents are

paired in any of your 3 million simulated maps; right?

A. I didn't check.

Q. But you agree that incumbency protection is a traditional

districting principle; right?

A. So I think we've talked about this a bit already, but when

it complies with the law, when it complies with this notion of

you're doing this for the voters, then it can. If you're doing

it as a cover for entrenchment or you're doing it purely for

partisan motivation, then it's not.

Q. You agree that incumbency protection is not

unconstitutional?

A. Again, that would depend on how -- I mean, you used the

word, and I just made it more precise, and you want to go back

to this unprecise definition. So I would not say that, no.

Q. Well, at a minimum, incumbency protection involves avoiding

the pairing of incumbents in the same district; right?

A. That could be one way to operationalize that, yes.

Q. But you also agree that incumbent protection is not simply

not having another incumbent in the same district; it is the

drawing of lines that the incumbent retains his core

constituency?

A. So I have said in the political science literature that's

certainly one way that we conceive of it, yes.

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Q. That's clear in political science literature, isn't it?

A. Absolutely.

Q. Now, my understanding of your testimony on direct, Dr. Cho,

is that you did not factor in incumbency protections because

you do not believe that it was a priority of the Ohio

Legislature when enacting the 2011 plan; is that right?

A. Well, when I looked at the legislative record, I thought

they made that pretty clear.

Q. So part of it, I think, is what you just said, that you

gleaned that from reviewing the legislative record; is that

right?

A. Yes.

Q. But you also said that you believe that there was no intent

to protect incumbents, because the plan does not maximize

protection of incumbents. Do you recall saying that yesterday?

A. Well, that's another piece of evidence, because, first, he

says you know, Kucinich, he doesn't have a district. They're

not protecting Kucinich. 

And then they say: We paired some people. We paired more

people than we needed to pair. 

And then he said, We didn't even intend to do that. It

just happened.

So when I read those, especially that way, you know, one

right after the other, that was my feeling, yes.

Q. But you'd agree that a plan doesn't necessarily have to

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protect every incumbent possible for incumbency protection to

still have been one of the priorities of the legislature, do

you?

A. Yeah, it could be. I didn't have see any evidence of that.

They seem pretty clearly to be disavowing that they were trying

to do that.

Q. Well, Ohio is losing two congressional seats following the

2010 Census; right?

A. Yes.

Q. It's going from 18 to 16 seats.

A. Correct.

Q. So at least two incumbent pairings were going to be

required?

A. Right. And they did three.

Q. Well, in Pennsylvania, you recall that the state, after the

2010 census, was going from 19 seats to 18 seats?

A. Correct.

Q. And you inferred in that case that incumbency protection

was a goal of the legislature because there was only one

pairing?

A. Well, it's more, you know, a totality of circumstances.

Right? So, first, the plaintiffs asserted it, that there was

incumbency protection. And I'm on the defense. I'm not

reading the legislative record in Pennsylvania. But they

asserted it, the plaintiffs. So I was like, okay, they

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asserted it. 

And then I noticed, oh, they didn't pair it. They did, you

know, minimum pairing or -- yeah, minimum pairings. Right?

They didn't pair more people than they needed to. The

plaintiffs have already asserted that they were doing it. So,

you know, as part of the defense, I was like, "I don't know. I

don't see otherwise either."

Q. But, Dr. Cho, do you also recall inferring that incumbency

protection was one of the goals of the Pennsylvania Legislature

because there was only one pairing?

A. Yes. So I think I just explained it to you. The

plaintiffs asserted it, and it's against their interest, so as

part of the defense, I wasn't going to say, Hey, take that

back; that's bad for you.

They asserted something that was bad for them, so I assumed

they, you know, independently decided that they had evidence of

that. And then I noticed that they didn't do any pairings

that, you know, they didn't have to. So I thought, okay, I'm

with you.

Q. So here you refused to make the same inference simply

because the state paired three sets of incumbents when only two

were required?

A. So, again, I'm talking about the whole picture. You keep

bringing back little pieces. Right? So the whole discussion:

Kucinich doesn't have a district. Kucinich has to run.

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Kucinich wins his district, then he wins his district. But

it's not Kucinich's district. He doesn't own a plot of land in

Ohio. He has to run.

And then they said, We paired three sets of incumbents.

You know, they didn't have to pair three sets. And then he

goes on -- I mean, he's still talking. And he goes on. He

says, We didn't even intend to do that; it just happened.

Q. So do you think that the rest of the incumbents weren't

paired was an accident?

A. Well, I don't know if it was an accident or not, but there

is Representative Huffman saying, "I didn't intend to do this."

So --

Q. And are you aware --

A. I don't intend to do it either, but I don't prevent it from

happening. If it happens, it happens. Just like he says, it

just happened. So, okay.

Q. Are you aware of Representative Huffman's role in the mapdrawing process?

A. No.

Q. So if it was a priority of the legislature to protect

incumbents around the state, and we have testimony from the

record in this case on that point, is your position that we

should ignore that evidence because the legislature paired

three sets of incumbents and not two?

A. So I did what I thought was reasonable to do given the

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legislative record. Now, in my view, they disavowed this

"we're protecting incumbents" idea. And why they did that, if

they really were -- but, you know, you could -- if you go on

the legislative record and say, Hey, look we're protecting

incumbents, it kind of looks bad.

Maybe they didn't want to look bad. I don't know. Maybe

they were trying to do it and they wanted to say they weren't

trying to do that. I don't know that either. But they said

they weren't trying to do it. And so -- in that way -- in that

specific way they said, "We're not trying to do it."

And so I'm not trying to do it. If you have other

evidence, people are sending e-mails saying, Yeah, we're going

to protect all of the incumbents or We're going to do this or

We're going to do that, that's actually immaterial to what I'm

doing, because I'm not required to do that. 

And, actually, that idea is already encompassed in my

simulations. Because if they're trying to do it or if they're

not trying to do it, I set a baseline that is nonpartisan.

Right? And so if they're trying to do it -- it's just like,

you know, the military base thing. If they're trying to do it

and it's legitimate --

Q. Okay. I apologize, but we are on a timed trial here and I

want to --

A. But I'm not done answering your question.

JUDGE BLACK: Let her finish her answer.

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Q. Proceed, please.

A. And so if they're trying to do it, it's just like the

military base. They're trying to do something. And these

things, they have partisan effects, all of them, regardless of

whether they intended to have a partisan effect or not. And so

once you see the baseline that has no partisan effect, then you

can factor in all these other things, all these other things

known and unknown, with e-mail, without e-mail. And then you

can say, All right, this thing -- you know, supposedly all

these nonpartisan decisions moved the map, the partisan effect

of the map. And so they're in there. They're in my analysis.

Q. So, Dr. Cho, you just stated, though, that incumbency

protection, if that was a goal, that could have a partisan

impact on the map; correct?

A. Yeah, because incumbency protection can be a very partisan

goal. It can also be a nonpartisan goal.

Q. So if there's evidence in this case that incumbency

protection was a priority, and if you leave out incumbency

protection from your simulation, then your maps aren't an

appropriate baseline to compare to the enacted map, are they?

A. That's not true, because if they had incumbency protection

in any way, in any form -- first of all, we don't know what the

partisan effect is. It might be very partisan. Maybe they

only have the interests of the voters in mind and they're not

thinking partisan at all. But that partisan effect is picked

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up in my analysis.

Q. But, Dr. Cho, if you leave out incumbency protection, and

it is demonstrated incumbency protection was one of the

priorities of the legislature, then you don't know if the

partisan bias in the enacted plan is the result of incumbency

protection or some other improper purpose; correct?

A. Well, I also don't know if incumbency protection, as you

were saying it, is some partisan -- you know, cover for some

partisan goal like entrenchment. And that I wouldn't factor

into my simulation because that would not be a legal criterion.

Q. Well, isn't this exactly what you said in Pennsylvania, Dr.

Cho?

A. What is that?

Q. Well, let's take a look at your trial testimony, again,

from Pennsylvania.

Now, we've already talked a little bit your criticism of

Dr. Pegden in Pennsylvania. Now I want to talk a little bit

about your criticisms of Dr. Jowei Chen. Okay?

A. Okay.

Q. Do you recall Dr. Jowei Chen was an expert for the

plaintiffs; correct?

A. Correct.

Q. And he generated an algorithm that simulated two sets of

500 maps; do you recall that?

A. I don't remember the number, but that's probably right.

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Q. You don't dispute that?

A. Not without looking it up, I don't.

Q. And, in fact, do you recall concluding that neither of his

sets were properly comparable against the enacted map in

Pennsylvania?

A. I had a lot of issues with his simulations, yes.

Q. And one of those issues was that his first set did not

include incumbency protection; correct?

A. Yeah. Especially after he asserted that you needed to,

yes.

Q. I want to refer you to page 1178, beginning at line 5. And

the question was: 

"Okay. And so why, in your view, is Set 1 not an

appropriate set of maps to compare against Act 131? 

And your answer: "Because it left out incumbency

protection" --

And then as your answer continues: "-- which is

constraining, obviously, on what kind of maps are drawn. So --

so if they don't use it, they're leaving out a constraint that

the map drawers who used 131 used. And so then they aren't

comparable because, then, you're comparing apples to oranges.

Right? You have to use the same -- the same constraints."

That was your testimony in Pennsylvania; correct?

A. Correct. And in Pennsylvania they asserted that this is

something that went into the map drawing.

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Q. And, again, if it was asserted in this case, and there's

evidence in this case that it's something that went into the

map drawing and you didn't include it in your simulation, by

your own testimony, you'd be comparing apples to oranges,

wouldn't you?

A. No. Because we're -- we're, again, in this area of what

are we talking about when we say incumbency protection. And

there's a very clear distinction, which is, when you're doing

it for the voters and when you're using it as a cover for

entrenchment. And I keep bringing up that distinction and you

keep leaving it out.

Q. Well, let's continue on, Dr. Cho.

Later on page 1178, beginning at line 18, the question: 

"Okay. Dr. Cho, do you agree with the manner in which Dr.

Chen defines incumbency protection in his report?"

And your answer: "He defines it as the 17 incumbents have

to be in separate districts. To me, in political science, our

understanding of incumbency protection is not just that the

incumbents have to be in different districts. One of the

reasons we have" --

Please continue to the next page.

"one of the reasons incumbency protection is used a lot is,

for instance, if you want to get a map passed, a lot of times,

you have to satisfy certain people. And sometimes that is --

translates to protecting incumbents, meaning they -- they will

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feel happy with their district.

"And they wouldn't feel happy with their district, for

instance, if you -- just -- just because you haven't paired

them with another incumbent. They want a certain kind of

district composition. And so that affects, for instance, the

partisan metrics of the plans that are drawn.

"So if a plan is drawn with incumbency protection, that

affects the partisan -- the partisan metrics. And so if you

leave it out, then you might say, Oh, this was obviously

partisanship when it was, at least partly, incumbency

protection."

Again, that was your testimony in Pennsylvania; correct?

A. It was.

Q. And, Dr. Cho, had you factored incumbency protection in

your simulation, again, you'd end up with 3 million

different-looking maps, wouldn't you?

A. Well, I wouldn't know it until I tried it. And regardless

of whether different or not, we wouldn't know what the partisan

effect was just by saying that they're different. And, also,

you know, Pennsylvania was a completely different case. We're

in Ohio. And in Ohio, there are different claims that are

made. And in Pennsylvania, you know, given the totality of

what was going on, what the plaintiffs asserted, what was done

in the simulation, how it was done, is completely different.

Q. So in Pennsylvania incumbency protection was a valid goal,

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and it might be one of the explanations for the partisan bias,

but in Ohio it's not a valid goal, and can't explain partisan

bias; that's your testimony?

A. No, that is not my testimony. In Pennsylvania the

plaintiffs asserted that incumbency protection was at play.

They asserted that. And then in Pennsylvania they paired --

you know, they did the maximum numbers of -- or the minimum

numbers of pairings that they could possibly have done. Right?

In Ohio we have Representative Huffman talking about how

they didn't do it, and they didn't do -- they didn't pair

everybody that they needed to. They did more than that.

So, you know, in addition to not being, you know, at

minimum, not maximum incumbency protection, you know, they

didn't do that. And then they said they didn't even intend to

do that lower level of incumbency protection, that it just

happened.

And it's not as if you have to protect incumbents. You

don't have to protect them. You can if you do it in the

interest of the voters, but, you know, there is a form that is

legally valid or, you know, the form that the Supreme Court has

said you can do, and then there's this other form, which I

think everybody can understand is -- it's just naked

partisanship. And one is valid and the other is not. And, of

course, if you, you know, use the nakedly partisan version of

incumbency protection, it affects what you get out of your map.

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Q. So, Dr. Cho, just to conclude, regarding your simulation,

the enacted map has exactly equal population, but your maps, at

best, have .3 percent population deviation?

A. Correct.

Q. And some as high as one percent?

A. Right. I think, technically, they all have to be below one

percent, so --

Q. Some are pretty close to one percent?

A. Yes.

Q. And the enacted map has a majority-minority district with a

BVAP of over 50 percent, but none of your maps do, do they?

A. Correct.

Q. And the enacted map protected all but three sets of

incumbents, but your map makes no effort to protect incumbents;

isn't that right?

A. It makes no effort to not either.

Q. Well, Dr. Cho, I want to shift gears a little bit and talk

about the algorithm that you ran in this case. The algorithm

that you used to simulate your three million congressional maps

for Ohio is something you've been working on for a number of

years?

A. I wouldn't know how to quantify how long I've been working

on it.

Q. And your report indicates that your algorithm is an

evolutionary algorithm. Do you recall seeing that?

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A. It's an evolutionary Markov chain Monte Carlo algorithm,

which I would not characterize as an evolutionary algorithm.

Q. So when you use the phrase "evolutionary algorithm" in your

report, that's not really accurate, is it? It's not an

evolutionary algorithm?

A. No, it is absolutely accurate. It's an evolutionary Markov

chain Monte Carlo algorithm. That is not an evolutionary

algorithm. I know it has that same word. But this is a very

technical thing, and "evolutionary algorithm" has a very

technical definition, and this is not that.

Q. One of the things I believe you testified yesterday is that

the algorithm you employed in this case is very different from

what you called your PEAR algorithm, P-E-A-R, correct?

A. It has elements that I developed for PEAR. It is

different.

Q. Well, the PEAR algorithm is an optimizer, you said; right?

A. Yes, it's an optimization algorithm.

Q. It's trying to optimize some particular parameter or

criteria?

A. Correct.

Q. And in this case your algorithm is a sampler?

A. Correct.

Q. Now, in order to implement your algorithm for purposes of

this case, you had to run code; correct?

A. Correct.

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Q. The algorithm is just a general procedure?

A. The algorithm is just a general procedure? I never call my

algorithm just a general procedure, but you can keep going and

I can figure out what you mean.

Q. Is it a set of steps?

A. Yes.

Q. Okay. But you need the code to actually implement the

algorithm?

A. Yes.

Q. And you wrote your code in C?

A. C++.

Q. And the code that you provided in this case was not in a

single C file, was it?

A. Okay. It couldn't have been that way, but yes, it was not.

Q. It's sort of a set of different parts of code that are

linked together? Is that a fair representation?

A. Not really.

Q. Well, how would you describe it?

A. Well, it comes in different files, if that's what you're

asking.

Q. So there are different multiple files -- there are

different parts of the code that, then, have to work together?

A. Yeah. Some are what we'd call, you know, .c files, some

are .h files. Some are, you know, .o files. Yes, it

typically -- it comes in pieces, I guess.

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Q. And is it true that to run the code in this case you

executed certain things from the command line?

A. Yes.

Q. And did you change certain functions of the code at the

command line?

A. They're called parameters.

Q. You changed some parameters at the command line when you

ran the code; correct?

A. I didn't change the parameters. I set the parameters.

Q. Okay. How many parameters did you set at the command line?

A. I couldn't given you the number offhand, but I gave you --

we've given that to you prior to today.

Q. You kept a recording of all the things you entered into the

command line?

A. Yes.

Q. And you're indicating today that you produced that in this

case?

A. Yes.

Q. Where was that produced?

A. I assume you got it from counsel.

Q. Sure. But is there a particular file that that came in?

A. I don't know, because I didn't give it to you I gave it to

them and I assume they gave you something.

Q. Now, you disclosed certain parameters written to your code

in your report; correct?

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A. Correct.

Q. And I think these are some of the ones we've already talked

about. For example, none of your maps would split more than 23

counties; correct?

A. Correct.

Q. And your maps all preserve cities to at least 96.7 percent

threshold; correct?

A. 78, I think.

Q. You're more exact than I am.

But, Dr. Cho, there are numerous parameters of your

algorithm that are not disclosed in your report; correct?

A. I don't believe so.

MR. TUCKER: Your Honors, may I approach the witness?

JUDGE BLACK: Yes. Thank you. Why don't you just

hand them to me.

MR. TUCKER: I'm not falling into that trap.

Q. Dr. Cho, I've handed you what's been marked as Intervenors'

Exhibit I5.

A. Okay.

Q. And this is a letter from Emily Zhang to Patrick Lewis

dated October 12th, 2018. Do you see that?

A. I do.

Q. Have you seen this letter before?

A. Yeah, I saw it at deposition.

Q. And on page two there's a heading "Report of Wendy Cho,

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Ph.D." Do you see that?

A. I do.

Q. And on point four underneath that heading there's a

discussion of certain operative parameters. Do you see that?

A. I do.

Q. And those are the ones disclosed in your report; correct?

A. In my report or right here?

Q. In your report. The population deviation, compactness,

county/town?

A. Oh, you mean --

Q. You discuss those --

A. When I say "parameters," I'm referring to those values,

.01, .85. I didn't disclose those in my report. Those are

disclosed here.

Q. And then further underneath it says, "Further, for your

convenience, additional incidental parameters are provided as

follows."

Do you see that?

A. I do.

Q. And on the first line there's something called "weights."

A. Yes.

Q. And a bunch of numbers?

A. Yes.

Q. And these are described as incidental parameters; is that

right?

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A. That's correct.

Q. Do you agree with that description?

A. I think it's a fine adjective.

Q. Well, the weights that are immediately under that

description, these are used to calculate what you called

fitness scores for your maps; correct?

A. Correct.

Q. And these fitness scores measure how good a map is at

meeting your criteria; is that right?

A. No, I wouldn't agree with that characterization.

Q. Well, you recall being deposed in this case; correct?

A. I do.

Q. Do you recall saying at your deposition that these weights

are used to calculate the fitness score for each map, and that

the fitness scores measure how good the map is at meeting that

criteria?

A. Well, what I recall from the deposition is we'd had a lot

of talk where we were not understanding each other because we

would use words that I thought were technical, and you would

use them in a non-technical sense. And then I would answer

something, and then you would say, "You mean this?" And I

would say no.

This also falls in that category where, if you want, I can

explain the whole fitness thing to you. I think I did that at

deposition. And I can explain to you how the weights work.

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But this part where you say it describes how good your maps

were, that's such an imprecise word, how good your maps were,

that, to me, it's hard to converse. We talk about technical

things, but we don't have any technical background or

description of what we're talking about.

And so when you say something like how good they were,

maybe at some point I agreed to this characterization, but I

feel like the way you want to convey it now is something not

consistent with what I had agreed to.

Q. So do you believe the phrase how good the maps were or are

is vague?

A. Yeah. It's really imprecise here.

Q. Well, let's take a look at your deposition testimony.

Dr. Cho, at your deposition there was a court reporter

there. Do you recall that?

A. Yeah. Do I have a copy?

Q. I'm going to hand you one in a minute.

A. Oh, sorry.

Q. I just want to lay the foundation that there was a court

reporter present at your deposition?

A. Yes.

Q. And you were sworn under oath to tell the truth?

A. Yes.

Q. And you did tell the truth at that deposition?

A. Yes.

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Q. And the court reporter took down all the questions and

answers from that deposition; correct?

A. Yes.

Q. You had a chance to review your transcript?

A. Yes.

MR. TUCKER: May I approach the witness, Your Honors?

JUDGE BLACK: Yes.

Q. I'd like to refer you to page 196 of your deposition

transcript.

MR. TUCKER: And if we could pull that up, please.

Thank you.

Q. On line three you state: "So these refer to these weights.

See 'weight fit pop, weight fit compact'?" 

"Question: I see that."

"So --"

"Question: So what does fitness mean?"

And your answer: "Fitness means how -- how good is this

map."

Did I read your testimony from your deposition correctly?

A. Same thing I'm doing now, I'm gesturing "good," because

that has no meaning to me.

Q. But those are your words; correct?

A. Yeah, but I have little quotes going on or something like

this (gesturing) going on there, which the court reporter

picked up.

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Q. Well, each of your criteria that are listed -- if we can go

back to Exhibit I5. Each of the criteria that are listed get a

weight; correct?

A. Correct.

Q. Equal population got a weight of .6.

A. Correct.

Q. And you recall testifying in your deposition that these

fitness scores help guide the movement of your Markhov chain?

A. Correct.

Q. So they aren't just really incidental parameters, are they?

A. They are.

Q. Well, they're helping to guide the movement of your Markhov

chain; right?

A. So if you keep going in the deposition, which I don't know

if this is where you're going now, but I explain it further.

Right? So on the next page, the page after that, the page

after that, I'm explaining to you how that works in the

algorithm. So, for instance, I say, "It's embedded in what we

call the Metropolis-Hastings criteria that determines

acceptance or not."

And then you said on page 199, "I hate to ask, but what is

the Metropolis-Hastings criteria?" 

And then I describe that to you. 

And you continue to ask me about that, and you're basically

saying: "So you only pick the good maps?" 

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And I say, "No, that's incorrect. It doesn't do that.

That's not the purpose of Metropolis-Hastings criteria."

It does have an effect, but the Metropolis-Hastings

criteria goes back to the whole idea of how Metropolis -- how a

Markhov chain Monte Carlo algorithm works. You have this --

it's a Metropolis-Hastings Markhov chain Monte Carlo. There's

lots of ways to have an MCMC. My MCMC is a Metropolis-Hastings

MCMC.

And so you have to have this kind of criteria. And it does

not pick just good maps. You have to have some measure of

goodness, which is not what you're referring to. Because this

is, again, this -- our conflict, which is I'm trying to talk in

a technical sense with the technical definition, and then you

ask me things like, does this mean good. And it doesn't.

Q. Dr. Cho, again, we are in a timed trial. Your counsel will

have an opportunity to, on redirect, ask you further to clarify

this point. And my question was not that anyway.

My question was merely don't the fitness scores guide your

Markhov chain?

A. Yes.

Q. And they guide your algorithm; correct?

A. I wouldn't say they guide the algorithm, no.

Q. Well, they guide your Markhov chain on to which parts of

the total space of possible maps that it's going to search;

correct?

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A. Correct. And that's theoretically grounded, that the way

it works it produces a representative sample. You're trying to

say the way it works it's not representative. That's just

simply false.

Q. And, Dr. Cho, if you had used different weights, you would,

again, generate a different set of maps; correct?

A. Every time I run the algorithm it actually generates

different maps. That has nothing to do with anything.

Q. Well, that would be particularly true if you used different

weights, wouldn't it?

A. No, that would not be true, because the algorithm produces

a representative sample. So if the sample is different, it can

still be a representative sample. This has nothing to do with

those weights.

Q. But if you had a different -- strike that.

If you had different weights, you'd end up with a different

sample; right?

A. If I ran it again with the exact same weights I would have

a different sample. That has nothing to do with what we're

talking about here.

Q. Well, Dr. Cho, that's not my question. My question is, if

you use different weights, you would end up with a different

sample? Yes or no.

A. The weights have nothing to do with it. That's why they're

incidental.

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Q. Dr. Cho, I'll ask it one more time. If you ran the

algorithm with different weights, you would end up with a

different sample? Yes or no.

A. I would say that that is true in the sense that if I did

anything, anything at all, it would turn out with a different

sample. Nonetheless, they would be representative.

Q. All right. Dr. Cho, let's take a look at a few brief parts

of your code. And due to the order that's been entered by the

Court in this case, I'm going to hand you a hard copy so you

can review it but I'm not going to provide hard copies to the

Court or the rest of the parties, but we will display only

small portions of your code on the screen. Okay?

A. Okay. 

MR. TUCKER: May I approach, Your Honors?

JUDGE BLACK: Yes. Thank you.

Q. Dr. Cho, I've handed you what's been marked as Plaintiffs'

Exhibit 89.

JUDGE BLACK: Excuse me. I'm sorry. Was there some

part of the order that precluded the fact-finders from seeing

the code?

MR. TUCKER: I'm happy to display the --

JUDGE BLACK: No, you can't display more than whatever

we defined in the order. It's difficult for us to follow if

you're not going to give us a copy of the paper code.

MR. TUCKER: Your Honors, I would be happy to, during

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WENDY K. TAM CHO - CROSS 5 - 59 

the break, try to get copies. We may actually have more

copies. Can I have one minute, Your Honor?

JUDGE BLACK: Yes.

MR. TUCKER: We, in fact, do have three copies, Your

Honor. May I approach?

JUDGE BLACK: Perfect. Yes. I'm not going to steal

the code.

MR. TUCKER: Now, the only problem, I'll represent to

the Court, is these pages aren't numbered. So it might be a

little bit difficult, but I will try my best to refer the Court

to wherever we are looking in the code.

JUDGE NELSON MOORE: They look that like they're

numbered.

JUDGE BLACK: What are these things in the right

margin?

MR. TUCKER: May I approach, Your Honor?

JUDGE BLACK: Yes.

(Mr. Tucker knocks nameplate over.)

(Laughter.)

MR. TUCKER: Can we put that on record?

This, I believe, is Plaintiffs' Exhibit --

JUDGE NELSON MOORE: No. But there's a .49 .50, and

it starts with .1, .2. 

MR. TUCKER: I believe that's trying to paginate the

code.

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WENDY K. TAM CHO - CROSS 5 - 60 

JUDGE BLACK: Right.

MR. TUCKER: I had not realized our office had done

that. So, yes, I will be able to refer you.

JUDGE BLACK: Will you thank the person that did that? 

MR. TUCKER: I will very much thank him.

JUDGE BLACK: Very well.

Q. Dr. Cho, I want to refer you to page 64 of your code.

A. I -- I don't have pages.

Q. Yeah. Unfortunately, I know that might be a problem, and

I'm going to try to pull up --

JUDGE BLACK: Can we swap it out?

MR. TUCKER: Sure.

(Mr. Tucker retrieves the document from the Court and hands

it to the witness.)

THE WITNESS: This is -- oh, so this is -- this is

half of this?

MR. TUCKER: Yeah, we tried to simplify it.

THE WITNESS: I actually can't see this. 

MR. TUCKER: Well, we're going to pull up specific

parts of the code.

THE WITNESS: I mean, the font is really tiny.

JUDGE BLACK: Judge Moore has offered to share her

copy with me.

JUDGE NELSON MOORE: Yes, but it is minuscule.

JUDGE BLACK: It's minuscule.

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MR. TUCKER: Your Honor, for the record, this is why

we took issue with the code being under seal, but we are

going --

THE WITNESS: This is twice as tiny as I supplied it

to you.

MR. TUCKER: We are going to do the best we can to

show Dr. Cho the only parts of the code in compliance with the

Court's order.

JUDGE WATSON: Do you have a magnifying glass?

MR. TUCKER: I do not. But we are going to blow up

the parts of the code. We're only going to be brief with the

code, I promise. 

JUDGE BLACK: Very well. 

MR. TUCKER: We just want to look at a couple of

things.

JUDGE WATSON: Brief with the code. Good thing. Go

ahead.

Q. So, Dr. Cho, I'm looking at page 64 of your code, and we've

culled out -- again, we're only allowed to show a small portion

of your code.

A. I see it.

Q. But do you see, at the bottom here, there are various

weight fitness scores; is that correct?

A. I see it, yes.

Q. Okay. And the first one for city break says .5; is that

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WENDY K. TAM CHO - CROSS 5 - 62 

correct?

A. That's correct.

Q. Okay. But in the letter we received from plaintiffs'

counsel, you indicated that the weights for city breaks was

.05; is that true?

A. Yeah, it might be. I'd have to look back, but I'll take

your word for it for now.

Q. So when you were executing your code at the command line,

did you change these parameters?

A. I don't change these parameters. In the code there's a

default number, and you can change or enter the parameter at

the command line. So, you know, for instance, if I wanted to

run it for another state or I wanted to do them different, I

would do that at the command line. Otherwise, it goes to

default value.

Q. Now, somebody just reviewing your code wouldn't then have

known what you input at the command line at the time you ran

your code, would they?

A. But we told you.

Q. But outside of the letter that we received after we

inquired in this case, nobody reviewing your report or your

code would have been aware of that, would they?

A. That's true.

Q. And do you know how many other parameters that you input at

the command line that are different than what's in your code?

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A. It should be in the letter.

Q. Those are the only ones?

A. Yes.

Q. You're sure of that?

A. Pretty sure.

Q. Okay. Now at the bottom here, there's one that says:

Float weight, underscore, fit, underscore, incum equals 0.2; is

that correct?

A. I see it, yes.

Q. Is this a weight for a parameter for incumbency protection?

A. Yes and no. Yes in the sense that that's what it would be.

No in the sense that I never implemented anything with that.

Q. Okay. So you could factor in incumbency protection into

your code; correct?

A. Actually, I have no code for that. I've thought about it.

I haven't done it.

Q. And I believe you testified that the code you produced in

this case contains different parts of your PEAR algorithm, too;

correct?

A. Correct.

Q. But you didn't describe in your report what parts of the

PEAR algorithm are incorporated into your code, did you?

A. I do not specify in my report exactly which parts of PEAR

are in the algorithm, but if you look at my publications on

EMCMC, you can figure out which parts would come from PEAR.

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WENDY K. TAM CHO - CROSS 5 - 64 

They don't directly come from PEAR either. I have to modify

them to work with MCMC.

I think we talked about this at the deposition also, that

you can't just bring something in. It has to be modified. You

have to think about how these things would work together. It's

not nearly as simple as you're making it seem.

Q. I am not trying to make it simple. In fact, Dr. Cho, quite

the opposite.

There are also parts of this code that you wrote that's

contained in Exhibit P89 that you did not use in this case;

correct?

A. That's correct.

Q. But you didn't disclose in your report the parts of the

code that you didn't use, did you?

A. It should be clear from the code which parts are used and

which parts aren't used. It's true that I didn't go through

and kind of cull it for you, because this is not code, as I

explained yesterday, purely for redistricting. There's a lot

of stuff in here that I've developed over the years for

different things that you can use for redistricting or not.

And so I pulled those things together.

I could go through and, you know, delete things, but it's

not necessary for me to delete things. What I gave you was

everything and more. And I guess you're complaining about the

"more," because it's not clear to you which part was the more

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and which part was the not. But if you look at the algorithm

or if you read the code -- and I'm completely with you on this,

it's really hard to read. It's even hard for me to read. If I

don't look at my code, like, every day, I forget what things

are, because it's code.

Q. And I think you testified in your deposition that, in fact,

this is not how you would look at your code, is it?

A. That's correct.

Q. I want to pull up one more part of the code, page 54.

A. But it's all of it.

Q. On page 4 there's a part of your code that reads "int n

equals 0, int k equals 8." Do you see that?

A. I do.

Q. What does this represent?

A. I can't tell from what I'm looking at, and I don't know

where in the code we are, so I can't tell you.

Q. We have a hard copy of the code in front of you. Would

that help if you look at it? 

A. I know, but I don't know where it is.

Q. So sitting here in the courtroom today, and just based on

this, you can't tell us what these lines of code --

A. Well, if you give me a little time and I can find it, then

I can tell you exactly what it is. But looking at this thing

that you put up, I have no idea.

Q. Well, take a minute or two, Dr. Cho.

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A. Do you think you can point it out to me?

Q. I can try. I can tell you it's on page 54. So it's about

halfway through the stack. And on your other one, the pages

are numbered.

A. But that one, the font is too small. I can't see anything.

Q. Dr. Cho, let me try and ask you this way. Does the "k

equals eight," does that represent the number of congressional

districts that are to be created?

A. No. We would input that on the command line. Or we --

yeah. No. And, I'm sorry. I'm getting kind of old, and I

really can't see what's going on on this. It's way too small.

But I assure you we had 16 districts, because we output -- we

had output for 16 districts.

Q. But is it possible that this is another one of the

parameters that was changed at the command line?

A. You know, if you look at the -- here. It says number of

districts: Sixteen. It's under incidental. Maybe you think

that's not incidental, because if I made it eight I'd get

different output. This is true. So maybe you wouldn't call

that incidental.

I think of it as a really minor thing that we told the

algorithm there are going to be 16 districts. And I'm not sure

why we would point to something like this. Because, you know,

when you code, you create a variable, you always give it a

default value. That's just standard coding. So I'm not sure

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what we're talking about here that I changed something, I

actually made it 16 districts instead of eight. I don't know

what we're talking about here.

MR. TUCKER: Your Honor, I know we're coming up on

10:30, about the mid-morning break, and I'm at a good stopping

point if that's good for the Court.

JUDGE BLACK: I didn't hear all of that. I heard it's

10:30.

(Laughter.)

JUDGE BLACK: How are you coming?

MR. TUCKER: I still have a little ways to go.

JUDGE BLACK: All right. We'll take a break. And

maybe you can pursue what you're trying to pursue and get it

figured out during the break. 

MR. TUCKER: I will review, and we may either clean

this up or we'll move on.

JUDGE BLACK: Very well.

MR. TUCKER: Thank you, Your Honor.

JUDGE BLACK: We're going to break for 15 minutes till

quarter of 11:00.

Doctor, please do not discuss your testimony during the

break.

THE WITNESS: Okay.

JUDGE BLACK: All right.

COURTROOM DEPUTY: All rise. This court is in recess.

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(Witness temporarily excused.)

(Recess taken: 10:31 AM - 10:48 AM.)

(Wendy Tam Cho resumes the witness stand.)

JUDGE BLACK: You may be seated. Thank you.

Dr. Cho (handing magnifiers).

THE WITNESS: Thank you.

JUDGE BLACK: The ones that you choose not to use

would you give back to us?

THE WITNESS: Okay. Thanks.

JUDGE BLACK: The Court has found some magnifying

instruments and handed them to the witness. Perhaps they're

not necessary.

Are you prepared to continue your cross?

MR. TUCKER: Yes, Your Honor.

JUDGE BLACK: If you'd be willing to approach.

MR. TUCKER: Your Honor, I very much appreciate your

providing the magnifying glass to the witness, although I think

we are going to move on from the code, at least for now.

JUDGE BLACK: You don't need the magnifying glasses?

(Laughter.) 

JUDGE NELSON MOORE: You went to all that trouble.

MR. TUCKER: Not now. Maybe in a little bit.

JUDGE WATSON: Judge Barrett will be very upset.

JUDGE BLACK: Well --

Q. Dr. Cho, are you ready?

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A. I'm ready.

Q. Now, you restricted the runtime of your algorithm on the

supercomputer to four hours; is that right?

A. Yes.

Q. You could have let it run longer?

A. Yes.

Q. And those four algorithm -- or strike that.

In those four hours, is it correct that your algorithm

generated billions of potential maps?

A. Correct.

Q. And, again, with potential or feasible maps being those

that met your criteria; correct?

A. Correct.

Q. Now, although your algorithm generated billions of maps in

that four-hour period, you only reported on a sample of about 3

million; correct?

A. Correct.

Q. So I think, as you and I agreed at your deposition, what we

have, really, here is a sample of the sample; is that right?

A. That's correct.

Q. Do you know how many feasible maps your algorithm could

have produced if you ran the code for 48 hours?

A. It would be a lot more.

Q. So you don't know how many feasible maps, again, with

feasibility being meeting your criteria, you don't know how

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many feasible maps could be created for the state of Ohio, do

you?

A. I don't know the exact number, no.

Q. Let alone how many potential maps there are for the state

of Ohio that the legislature could legally adopt?

A. I don't know the number, no. What I created was a sample

of that set.

Q. And you don't provide any analysis for how accurately your

3 million maps uniformly sample the possible districtings of

the state of Ohio, do you?

A. I don't provide that in my report, though in my

publications I present that type of information.

Q. And we'll get that in a little bit, thank you, Dr. Cho.

Moreover, would you agree that the purpose of a simulation

is ultimately to generate maps that a human might draw? Is

that right?

A. Yeah, in the sense that they're legally viable and in the

sense that I've described already.

Q. Now, we understand that you did not generate any pictorial

maps from your simulation that we could look at; is that right?

A. That's correct.

Q. So we don't know what these maps actually look like?

A. That would be correct, yes.

Q. And you also did not produce any shapefiles so we could

load them into a software to take a look at any of these maps;

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is that right?

A. Also correct.

Q. Now, we know that your simulation drew 16 congressional

districts within the boundaries of Ohio, we just don't know

where within Ohio those 16 districts are; correct?

A. Yeah. You don't have a picture.

Q. And we cannot know the geography of Ohio covered by each of

these 16 districts in each of your 3 million simulated maps;

correct?

A. I don't know how that's different than the last question

you asked.

Q. So the same answer?

A. I guess. If we don't know the geography -- I mean, I know

the geography of Ohio. I guess it's an imprecise question to

me, so I'm -- and I'm not sure why you asked it again and

changed the word is what I'm trying to get at.

Q. Well, we can know a few things about your maps; right? We

know that your code created maps with at least one district

with a black voting age population which, for short, BVAP, of

at least 45 percent; correct?

A. Correct.

Q. And can we agree for purposes of these questions to refer

to that district in each map as the VRA district?

A. Sure.

Q. And we know that in the maps your simulation created, the

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sample you provided us, no map included a VRA district with a

BVAP as high as 48 percent; correct?

A. Correct.

Q. Now, understanding that Congressional District 11 in the

enacted plan has a BVAP of over 50 percent, we could assume

that none of the VRA districts in your 3 million maps is

identical to Congressional District 11; correct?

A. Correct.

Q. Now, yesterday you testified that you checked to confirm

that the VRA district in each of your maps was drawn within the

Cleveland area. Do you recall that?

A. Yes.

Q. But you have not produced any of those maps for us to be

able to confirm that the VRA district was always in the

Cleveland area; right?

A. Yes. You can't confirm that, yes.

Q. How many did you check?

A. How many what did I check?

Q. How many of your maps did you check to see that the VRA

district was in the Cleveland area?

A. When I developed the algorithm, all you have to do is check

to see what county it's in.

Q. Did you print out any maps to see if it was in Cuyahoga

County?

A. No, but you can print that. You don't have to do a map.

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You can just say, when you find this district, what county is

it in?

Q. And at your deposition, even after we took a break to

locate where that check is in your algorithm, you could not

find it at that time in your code, could you?

A. It's true at my deposition I didn't find it, yes.

Q. Would you be able to take a look at a copy of your code now

and find where it ensures that the VRA district is in the

Cleveland area?

A. I've subsequently looked through the code for this exact

purpose, and I know we had it in the code because we had

printed it out and checked. It is no longer in the code, and

it's not in the code that I provided to you, because after I

ran it and, you know, you produce millions of these maps and it

never appears anywhere else, I decided it had to be there. So

I took it out because it's part of code cleaning, as it were,

that if a line of code is not doing anything, I delete it.

And also, you know, as I've explained the code, this code,

to me, is -- I want it to be kind of a general purpose piece of

code. So when I have lines like that in there that I'm not

going to ever use again, I delete them.

Q. So I want to make sure I'm clear on this, Dr. Cho. So you

deleted a portion of your code that you used to run your

algorithm for this case?

A. No. When I ran it for this case, it wasn't -- when I ran

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the simulation for this case with this code, that line wasn't

in there. When I developed the code and I was testing that

piece of it, that line was in there.

Q. Okay. I'm glad I clarified then.

So at the time you ran the code in this case you did not

include the code that ensured that the VRA district was in the

Cleveland area?

A. It doesn't ensure it. It checks.

Q. So you weren't able to check for purposes of this case,

were you?

A. No. I've checked it a lot and I've produced millions and

millions of maps before I produced this one because there's a

whole development process. It's not like I somehow came upon

this code and then I ran it for the first time and I never

checked. I checked a lot.

I mean, when you develop code, it takes a long, long time.

And you have lots of lines in there that are no longer in there

now because I'm debugging, I'm checking things, I run

something, I print out stuff, I check it. And once I'm assured

or once I'm sure that something works, I no longer print all

this, like, extra stuff because it's too much stuff. It's

unnecessary.

Q. But Dr. Cho, you did not have that as part of your code in

this case to check to make sure that the VRA district was in

the Cleveland area, did you?

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A. I did not have that line, but I'm sure that district is in

that area, the Cleveland area.

Q. But nobody reading your code can be sure of that, could

they?

A. No.

Q. Understanding that we can't confirm that, let's assume for

the sake of the following questions that your algorithm did

ensure that the VRA district was drawn within the Cleveland

area. 

MR. TUCKER: And let's put up a map of that area. Can

you please put up Plaintiffs' Demonstrative 20. And if we

could zoom in on the Cleveland area.

Q. Dr. Cho, do you recognize this as a map of Congressional

District 11 under the 2011 Ohio plan?

A. I don't know the exact shape, but it's up there, and I'll

take your word for it.

Q. And just to be clear, we're talking about Congressional

District 11 is drawn with a north-south orientation in light

blue, and Cuyahoga County is more of an east-west orientation

to the north part of the map. Do you see that?

A. Yes.

Q. And my colleague is going to draw a line reflecting the

boundaries of Cuyahoga County to make that a little more clear.

It's a dotted line that's a little hard to see in the

demonstrative.

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Now, as he's drawing that, you see that there are parts of

Congressional District 11 that are contained within Cuyahoga

County; correct?

A. Yes.

Q. And there are parts of Cuyahoga County that are not in

Congressional District 11; right?

A. That's correct.

Q. Do you know how many voters in Cuyahoga County are in

Congressional District 11?

A. I don't know the exact number, no.

Q. Do you have an approximate?

A. No.

Q. Do you know how many voters in Cuyahoga County are in

Congressional District 11?

A. I couldn't give you a number on that, no.

Q. And so you cannot know the percentage of voters in common

between Cuyahoga County and Congressional District 11; correct?

A. Correct. I mean, I could find out, but I don't know

sitting here, no.

Q. And you obviously cannot know the percentage of voters in

common between any one of your VRA districts in your simulated

maps and Congressional District 11; right?

A. Say that again.

Q. You cannot know the percentage of voters in common between

any one of the VRA districts in your simulated maps and

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Congressional District 11; right?

A. Well, I could know that, but I don't know it.

Q. Now, Dr. Cho, we've already talked about that your use of

the 45 percent BVAP number came from counsel and, specifically,

one of plaintiffs' other experts in this case; correct?

A. Correct.

Q. In the context of the Voting Rights Act, do you know what a

district-specific functional analysis is?

A. I think so, but I'm not -- I don't know what you're

referring to. So if you want to clarify, I can --

Q. Sure. Well, Dr. Handley testified earlier in this case

that that is a term used by her, her co-authors, courts and the

Department of Justice when referring to the Voting Rights Act.

Are you aware of that?

A. I am now.

Q. Have you reviewed Dr. Handley's testimony that she gave in

this case?

A. I have not.

Q. Do you know that conducting a district-specific functional

analysis is how Dr. Handley identified her 45 percent BVAP

number?

A. I'm still not positive what you're referring to, but you're

referring to her analysis and I haven't seen it, so I guess

I'll say no.

Q. Now, I'll represent to you that Dr. Handley was very clear

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in her testimony to this Court that when drawing a Voting

Rights Act district, a map drawer must conduct a districtspecific functional analysis. Would you disagree with that?

A. I still don't know what she did, so I guess I can't really

agree or disagree, but I'm sure you're going to be more

specific soon.

Q. Are you aware that Dr. Handley performed a

district-specific functional analysis for Congressional

District 11 in this case?

A. I'm not sure how this differs from the last couple of

questions, because I still don't know what it is because I

haven't read the report, so I'll say no.

MR. TUCKER: Well, let's take a quick look at her

report.

Will you please pull up Plaintiffs' Exhibit 254.

Q. And immediately under the introduction it states: "My

analysis of participation rates and voting patterns in the 11th

Congressional District of Ohio has led me to conclude that a

district with a 45 percent black voting age population would be

an effective minority district."

Do you see that?

A. I do.

Q. Now, you did not conduct any district-specific functional

analysis in this case for any of your VRA districts in any of

your simulated maps; correct?

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A. Correct. I only required them to be above 45 percent BVAP.

Q. And, in fact, that would have been impossible for you to

do, because we don't even know what your VRA districts look

like, do we?

A. So if you're asking me do we have to know what they look

like for some other reason that involves this district-specific

functional analysis, then I would say yes.

Q. We don't know what particular towns and cities are

contained within each of your VRA districts in each of your 3

million simulated maps, do we?

A. We don't, but we have actually quite a good idea.

MR. TUCKER: Well, let's pull back up Plaintiffs'

Demonstrative 20. And if we can zoom in again on the Cuyahoga

County area.

Q. And, again, you just used a single 45 percent BVAP target

number for all of your VRA districts and all of your 3 million

simulated maps; correct?

A. Correct.

Q. But in zooming in here, we don't know, for example, whether

Lakewood would be within your VRA district, do we?

A. We do not know.

Q. We don't know whether Brooklyn would be in your VRA

district, do we?

A. So we don't know for sure which ones are in there, but I

did look at this particular area, and I looked at where the

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BVAP was. This was just my own interest. And you pretty much

have to take all the areas where you have any significant

African-American population to even get this thing up to 45

percent. So we pretty much know what's included, because you

pretty much have to take all of it.

Q. But you didn't actually look at any of your maps to see

which of these towns and cities were included, did you?

A. I did not. But I'm explaining to you, I looked at it. You

pretty much have to take all of them.

And so if you're saying, Did you exclude this area of, you

know, the Cleveland area that has lots of African-Americans, I

would say no, because you pretty much can't exclude any of

them.

Q. But you don't know that as a fact, do you, Dr. Cho?

A. I pretty much know it as fact, actually, yes, because I

just explained to you, you pretty much have to take all of

them.

Q. Well, do you know that each one of your 3 million maps with

the VRA district includes Parma?

A. It's possible I could have excluded a little bit of it, but

to get up to 45 percent, as I explained to you, you pretty much

have to have all of them.

Q. What about on the east side? You don't know whether or not

your maps include Mayfield Heights?

A. The same answer.

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Q. And going up to the very top portion, you don't know

whether or not your maps, likewise, include the City of Euclid?

A. The same answer.

Q. And are you aware that the city of Euclid was under a

court-mandated level of 60 percent BVAP for certain electoral

districts?

A. I was not.

Q. And you did not conduct any district-specific functional

analysis on Cuyahoga County, generally, either, did you?

A. I did not.

Q. So your analysis applied a single universal target BVAP of

45 percent for all 3 million maps, regardless of the particular

geography that was included within the VRA district in each of

those maps; right?

A. This is true. But as I explained to you, this wasn't part

of the simulation, but I did look at this district and I did

look at the BVAP distribution in this area. And, as I

explained to you, you pretty much have to have all of them.

And so maybe there's a sliver here or a sliver there that's not

included. So I don't know if that happened or not, but

significant parts of the African-American population in this

area, they were all included.

Q. Do you know if any of the maps in your simulation for this

VR -- strike that. Let me ask a better question.

Do you know if any of the VRA districts in any of your 3

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million simulated maps went down into Summit County?

A. I don't, but I would highly doubt it.

Q. And so if you believe they were mostly contained within

Cuyahoga County, again, you didn't do any district-specific

functional analysis for Cuyahoga County, did you?

A. I did not.

Q. And you didn't send any of your 3 million maps to

plaintiffs' counsel or to Dr. Handley to conduct such analysis,

did you?

A. I did not.

Q. And aside from this particular district, Dr. Cho, you don't

know in any of your maps which counties are split or how

they're split; correct?

A. I do know that -- so there's 23 that are split in, you

know, two at least, some of them are split in three and some of

them are split in four, and that was part of the output. So I

never split them in three more often than the current map or in

four more often than the current map.

Q. But you don't know which counties are split?

A. Well, Franklin County has to be split. Hamilton County has

to be split. Cuyahoga County has to be -- you know. The

things that are too big -- there are certain cities that have

to be split. Columbus -- you know, they don't fit in one

congressional district. So I know something, yes.

Q. But your maps split more than the minimum number of cities

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and counties; correct?

A. Yeah. At most, 23.

Q. And you don't know -- of the ones that aren't mandatory,

you don't know which counties or cities are split, do you?

A. Correct.

Q. Dr. Cho, do you agree that when one creates an algorithm

that produces outcomes upon which we make decisions that the

details of that algorithm are material?

A. Yes.

Q. And you agree that if an algorithm is going to be used to

evaluate the constitutionality of a congressional districting

plan, it should be sufficiently scrutinized by the scientific

community to allow others, including the courts, to have

confidence in the process and the results?

A. So the courts have allowed all sorts of things. I wouldn't

venture to speak for the courts. They don't always require, I

don't know, whatever level that you're referring to as

scientifically valid. It is my own opinion that I value

something that is peer reviewed versus something that's not

peer reviewed, if that's your question.

Q. You don't fully agree with that statement, then?

A. I just think there are a lot of different things that we

could consider here. So if you're more specific and you want

to say something specific, I can tell you.

Q. Do you agree that transparency is warranted to the entire

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scientific and legal community?

A. So, again, I don't know what you mean by transparency. You

had all of my code, which I don't share with other people. I

think that's above and beyond the level of transparency that I

think is required. Because, in my publications, I talk

specifically about what I do, how I do it, why it's valid.

That's been reviewed by the scientific community.

Q. Well, Dr. Cho, let's, again, look at your words. And I

refer you to your Pennsylvania report again. Particularly, I

want to refer you to page 18.

MR. TUCKER: And if you could pull up Footnote 4,

please.

Q. Are you there?

A. Yes.

Q. Dr. Cho, in Footnote 4 you wrote: 

"After his report was served in this case, Chen offered to

make his code and maps available on a confidential basis to be

used only in this case. However, the short amount of time that

I would have been allowed to view the code would not have been

sufficient for me to explore or vet it properly. Further,

indeed, the point is not whether I would have been allowed some

short amount of time to view the code, but whether the

algorithm has been sufficiently scrutinized by the scientific

community to allow others, including the Courts, to have

confidence in the process and the results. Transparency is

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warranted, not simply to me in a short amount of time for one

Court case, but to the entire scientific and legal community.

It should be subject to peer review and accepted in the

scholarly community."

Those are your words in your report; correct?

A. I absolutely agree with them. And an algorithm is not

code.

Q. Well, Dr. Cho, you referenced your PEAR algorithm a few

times during your direct testimony and even on

cross-examination today. Do you recall that?

A. Yes.

Q. And you wrote a peer-reviewed paper on your PEAR algorithm;

right?

A. Correct.

MR. TUCKER: I'd like to pull up Plaintiffs' Exhibit

442.

Your Honors, may I approach?

JUDGE BLACK: Yes, thank you.

Q. Dr. Cho, is Plaintiffs' Exhibit 442 the peer-reviewed

article that you wrote on your PEAR algorithm?

A. Yes.

Q. And this is not the algorithm that you employed in this

case?

A. Correct.

Q. And you published pseudocode with this paper, did you not?

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A. Correct.

Q. And on pages 83 to 85 of the article you describe in detail

four different subalgorithms that went into this larger PEAR

algorithm; is that right?

A. I supply pseudocode, yes.

Q. So, for example, it talks about Algorithm 1 relates to

contiguity checking; correct?

A. Correct.

Q. And Algorithm 2 discusses how you generate a feasible

contiguous solution. Do you see that?

A. Yes.

Q. And Algorithm 3 discusses this doctrine of shifting

mutation?

A. Yes.

Q. Okay. Now, Dr. Cho, I want to refer you to the article

that you wrote about your algorithm in this case.

A. Okay.

MR. TUCKER: I'd like to pull up Plaintiffs' Exhibit

428.

Your Honors, may I approach?

JUDGE BLACK: Yes. Thank you.

Q. Dr. Cho, is Plaintiffs' Exhibit 428 the article that you

wrote about your algorithm that you used in this case?

A. Yes.

Q. And this is the only article that you've written about this

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particular algorithm; correct?

A. Correct.

Q. And it hasn't been published in any peer-reviewed journal,

has it?

A. So you want to distinguish between a peer-reviewed journal

and a peer-reviewed conference. I would say that's incorrect,

because those are the same.

Q. And that conference was in November of last year; is that

right?

A. That's correct.

Q. And you only disclosed the idea of your algorithm in this

paper; is that true?

A. If you're asking me if I disclosed the code, the answer is

no, I didn't disclose the code. If you're calling this the

idea, then this has been disclosed here.

Q. Well, do you recall at your deposition stating that the

purpose of this paper was to disclose the idea of your

algorithm?

A. Well, that's the purpose of all my publications: it's to

disclose an idea. That's what academia is about. It's about

ideas.

Q. And you admit you didn't provide any code along with this

paper; correct?

A. Nor with the PEAR one. Nor with any of my other

publications.

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Q. You provide pseudocode with the PEAR paper; correct?

A. Correct.

Q. And you didn't provide any pseudocode with this paper.

A. I don't think it was necessary with this paper, because

this paper is about melding two different types of algorithms

together, and that idea is novel in this context. And that's

the idea in this paper.

Q. This paper doesn't provide any detailed algorithmic steps,

does it?

A. So, for instance, the ones that are in PEAR, if you knew

what was going on, as I described, you would understand that

these algorithms are relevant here. And in this paper I

describe how you meld these types of algorithms with Markhov

chain Monte Carlo methods, which are completely different than

evolutionary algorithms.

So in this paper I'm explaining to you how you meld these

two types of algorithms that are intended to do two completely

different things, but that one can help the other to achieve

its goal in a more efficient and effective way.

Q. This paper is attempting to describe how you melded MCMC in

an evolutionary algorithm?

A. I guess we can use that description, sure. We'll say meld.

Q. But you haven't published any papers about how your EMCMC

algorithm can be applied specifically to the context of

redistricting, have you?

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A. No. This one says that. The example is redistricting

there, is how it applies.

Q. Are you referring to page two?

A. Uh-huh.

Q. And how many paragraphs do you talk about how this

algorithm can be applied to redistricting?

A. How many paragraphs?

Q. How many total paragraphs do you have analyzing how this

algorithm can be applied to redistricting?

A. I don't know. I'd have to count. The point wasn't

redistricting. The point was to explain this idea, and then I

said it can be applied to redistricting. I have supplied a

redistricting example. I showed that it worked. I don't know

that counting paragraphs means anything. It's like counting

words or not liking the font. The idea is there.

Q. And I'm trying to get an understanding of how detailed a

description you give about how you can apply this algorithm to

redistricting. So I'll ask my question again.

How many paragraphs of this paper address application of

your algorithm to redistricting?

A. I guess we can count that by counting how many paragraphs

use the word "redistricting." Do you want to count it that

way?

Q. However you want to count it, Dr. Cho.

A. I see one. There might be another. I don't know if

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there's another or not. I need to read the whole thing.

But to me that's not the point. Redistricting is not like

a thing. Redistricting is an application of a different thing.

It's an application of a graph partitioning problem. So if you

read other papers and they're talking about graph partitioning,

it applies to redistricting.

Q. Where in the paper, Dr. Cho, does it explain how your

algorithm begins building a redistricting map?

A. That's in my other publications.

Q. Which publications?

A. So in PEAR we talk about that.

Q. But PEAR is a different algorithm than you ran in this

case; right?

A. Well, PEAR has optimization. But whether you use PEAR or

you use EMCMC, you have to build up the map. And, you know,

look, I even have pictures in PEAR about building up the map

and then modifying the map. A lot of those are just the same.

Q. Where in this particular paper, Dr. Cho, does it

demonstrate how your algorithm continues to add different

pieces of geography to build a map?

A. That has nothing to do with MCMC. MCMC is about sampling.

That wouldn't ever be in a paper like this because that would

bore somebody who's interested in MCMC, because that's a detail

about something else.

I mean, I have lots of publications on redistricting, and

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then -- I guess I'm not sure what you're trying to say.

Because you want to say PEAR is different, and then you want to

say I bring PEAR in here. And then sometimes you want to say I

don't bring it in, because now if I talk about it in PEAR,

that's not in here. I mean, it's a -- it's a corpus of work.

Right?

Q. Dr. Cho, you've testified that your PEAR algorithm is

different than the algorithm in this case, and this is the

paper you wrote about the algorithm employed in this case;

correct?

A. That's correct.

Q. Okay. Where in this paper does it explain how your

algorithm would repair a map if it's not meeting the criteria

that you've employed?

A. That is -- it has to happen. I don't know why I would

describe that in here. Because if you don't already have a

map, there's no MCMC that could go on.

Q. Your algorithm, in this case, purportedly allows you to

make large jumps to traverse different parts of the space of

feasible maps; correct?

A. That part's in here.

Q. And where is that reflected in here?

A. So second paragraph, "Performance is compromised for

conceptual ease. Large moves may provide more efficient and

effective space traversal leading to faster convergence of the

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chain. However, to devise effective large movement is not

straightforward. Simply large movements often result in a

small Metropolis-Hastings ratio, which leads to rejected

proposals and a nonfluid and ineffective Markov chain. EA and

MCMC algorithms have to have the same goal."

That's kind of actually the point of this article.

Q. This paper also presents the results from implementing the

idea of your algorithm on a smaller data set; is that right?

A. That's true, yes.

Q. And it's a smaller data set of only 25 geographical units?

A. That's true, yes.

Q. What's the source of this data set?

A. This was a data set that was created by somebody else.

It's a publicly available data set.

Q. Was it for a particular state?

A. I believe the 25 came from Florida.

Q. And you claim, on the last paragraph -- or, I'm sorry. The

paragraph that begins, "Our EMCMC," on the right side on page

two. The next sentence you claim, "In our small data set with

known answers, there is substantial overlap between the true

distribution (shown in red). and EMCMC sampled solutions (shown

in blue).

A. Yes.

Q. Now, the space for potential districtings in Ohio is

infinitely larger than the space for the small data set;

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correct?

A. I would not agree with that characterization, infinitely.

That's a technical term.

Q. Exponentially larger?

A. Also incorrect.

Q. How much larger is it?

A. A lot.

Q. Well, how do you define "a lot"?

A. You can calculate it, but I didn't calculate it. And to

say "infinite" is wrong. Infinite is a specific thing. Right?

And people all the time use the word "exponentially larger." I

have to tell you, almost all the time that is incorrectly used.

I don't do that. That's one of my pet peeves when people do

things like that, so that's why I say it's wrong.

Q. Significantly larger; is that fair?

A. Sure. Significantly larger works.

Q. Let's look at Figure 1. And the figure on the right

purports to show that using the smaller data set you're

attempting to demonstrate that your algorithm is uniformly

sampling the space for that smaller data set; correct?

A. Correct.

Q. But you don't provide any similar analysis when you do it

on the larger data set for the sampling for the state of Ohio,

do you?

A. Well, that's impossible. I mean, if I had that larger data

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set I would just report that larger data set. The whole point

is I produce a representative sample. If I had the entire data

set for -- if I could do the whole thing for the state of Ohio,

I'd just do the whole thing.

Here I'm showing you when I know the answer, which I don't

for Ohio, I can produce a representative sample. So this is

how we do it in academia. You say -- this is how you verify

something. You have a problem that's hard to understand and

you show that it works on something where you know the answer.

And for this data set, I know the answer. 

And on the left you can see that somebody else proposed an

MCMC, and theirs doesn't work, and mine works. That's what I'm

trying to show there.

And even for this very simple small data set, it's not like

it's simple to devise an algorithm that will work. So that's

what I'm showing you there.

Other people tried. Theirs doesn't work. I did it. In

fact, mine came up with this solution in five seconds, and

these people have been running theirs like a long time. It's

because their algorithm doesn't work and mine does. That's

what I'm trying to show you there.

Q. What constraints did you use to produce Figure 1?

A. On the drawing?

Q. Yes.

A. So this data set is the state of Florida. Right? I didn't

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produce this data set. It's not my data set. I'm using it

because other people have used it to explore how well things

sample.

So in this data set there's, you know, 25 precincts, and

the only data we have on the data set is a little bit of

information. And another thing I've shown in other of my

papers, which I don't know if you brought today or not, but I

have other papers looking at this data set, looking at this

idea, but I believe there is ten to 11, I think, possibilities

to search, which is really quite a large number. It's

non-trivially a large number. And when you impose constraints

in those other papers, I give you the numbers. When you impose

contiguity, it reduces to this number of possibilities. When

you impose population constraints, it reduces even further. I

give you the actual numbers.

I've looked at this data set extensively, and, you know,

it's not -- it's not a huge data set, but it's not non-trivial,

which is why other people can't do it.

Q. Now, are you --

A. So I produce -- nobody has produced a good sample of this

except me. I'm the only one. This is the only algorithm that

is able to do it.

Q. Well, you aren't aware of anyone who's attempted to run

your code because you haven't produced it to anybody else, have

you?

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A. That's true. It's my code.

Q. And you haven't even produced pseudocode?

A. That's not true. Because in PEAR, that pseudocode is in

this code. I mean, if you look at that pseudocode and you look

at the actual code I gave you, that's the pseudocode for that

code.

Q. Dr. Cho, we're not talking about your PEAR algorithm.

That's not the one you ran in this case. You haven't produced

any pseudocode to any of your peers for the algorithm that you

ran in this case, have you?

A. You know, nobody provides code to other people. That's not

how it works. You write code. It's your code. You explain

the idea to other people. And, quite frankly, if you

understood MCMC and evolutionary algorithms and you took what I

described here, you could write code to do what I did. I mean,

I don't have to give you my code. I've told you how to do it,

and that is the goal of academia is we share knowledge. I

thought of something, I discovered something, I have an

innovation, I'm going to explain that to you. And if I don't

explain that well when it goes to the peer-review process, they

say, "I don't know what you're doing. I don't think that

works."

But my thing, I disclose what I'm doing, it goes through

the peer-review process, and the other people who are peer

reviewing say, "Hey, that's a good idea. That works. We would

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like to publish that."

That's how it works. I don't have to give them the code.

Because now if they understand what we're doing -- and people

who peer review understand the field in which you -- they're

peer reviewing, they're actually happy because -- I would be

thrilled if someone told me how to do it and kind of laid out

the steps in this way. I don't need their code. I know how to

code.

Q. Well, Dr. Cho, you actually analyzed Dr. Chen and Dr.

Rodden's algorithm using the same data set from Florida;

correct?

A. That's correct.

Q. And you wrote a paper about that; correct?

A. I did.

Q. And, in fact, didn't Dr. Chen and Dr. Rodden disclose

pseudocode with that paper?

A. No.

Q. You don't believe they disclosed their pseudocode.

A. We can get into this as much as you want because I know

this as well as anybody. In fact, I know it better than Dr.

Chen and Dr. Rodden, I think. I've looked at that extensively.

I know exactly what they're doing.

Dr. Chen and Dr. Rodden have no technical publications on

their algorithm. They have no publications on their algorithm.

I have I don't know how many publications on my algorithm, lots

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of them, on different pieces. The PEAR paper has different

pieces of the algorithm. This has different pieces of the

algorithm. It all comes together. It's been reviewed in

operations research. It's been reviewed by the supercomputing

community. It's been reviewed by the statistics community.

It's been reviewed by many different communities. And these

are technical publications. These aren't, "Hey, I have an idea

that maybe you could do this."

I also write in political science. I write for the legal

community. I write differently for all of those. It's been

vetted by lots of communities.

Dr. Chen and Dr. Rodden have a political science paper that

doesn't disclose their algorithm, doesn't have code, doesn't

sufficiently explain what they're doing. It is not the same

thing at all.

Q. So, Dr. Cho, as I understand it, you've criticized Dr. Chen

for the fact that what he produced as a pseudocode is not

really pseudocode; correct?

A. It is not even descriptive, in my opinion.

Q. And you've criticized him in the Pennsylvania case --

A. Yes.

Q. -- for not producing his code; is that right?

A. What I'm criticizing is that -- first of all, in

Pennsylvania, he runs an algorithm, and I understand his

algorithm completely. He --

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Q. Dr. Cho, again, we're on a timed trial here and I just want

an answer to my simple question. 

In Pennsylvania you criticized Dr. Chen for not disclosing

his code not just in that case, but, as we saw from your

report, to his peers and to the entire scientific community;

correct?

A. Because he has no technical publications and I have a lot.

Q. But you likewise have not disclosed your code to any of

your peers or anybody in the scientific community, have you?

A. We don't disclose code. We disclose ideas. We explain to

people how things work, how to do them. Code is just something

you write after you understand what to write.

Q. In fact, in Pennsylvania, Dr. Chen did produce his code in

that case; correct?

A. Yes.

Q. It was subject to a confidentiality agreement that you

refused to sign; is that right?

A. This is correct. And you would know this as well as I

would because you were my attorney. And I explained to you why

I wouldn't sign that confidentiality agreement. And it was

because I would have to give up my intellectual property

because of the way it was written, and I was not willing to do

that.

And furthermore, I explained to you, I didn't need to see

that code, because he had an idea just like I have an idea.

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And I know his idea doesn't work, regardless of what the code

is.

So, for instance, if you were going to tell me, you know,

there's a live elephant in the room, and you had a little box,

a little wooden box that was maybe two inches by two inches by

two inches, and you told me you were going to put that live

elephant in the box, I don't need to see your code for how to

do it. I can just tell you, you can't do it.

Q. Dr. Cho, let me stop you, again.

So in Pennsylvania, Dr. Chen required his code to be

subject to a confidentiality order, and you refused to sign

that order. In this case, you required your code to be subject

to a confidentiality protective order; is that correct?

A. I didn't need to see his code to know that the idea

wouldn't work. If you look at my publication about his method,

I explain to you why his method doesn't work. It's independent

of the code. 

Q. Dr. Cho, I apologize for cutting you off --

JUDGE BLACK: Excuse me. Excuse me. Would you

restate the question, please.

MR. TUCKER: Thank you, Your Honor.

Q. Dr. Cho, in this case you required that your code be

subject to a confidentiality protective order; correct?

A. Yes.

Q. Thank you. And for that reason, it cannot be disclosed to

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anybody outside certain parties that are subject to that order;

is that correct?

A. That's correct.

Q. And are you aware that plaintiffs' counsel in this case had

moved to seal your code?

A. Yes.

Q. So this would prohibit any of your peers who might be in

the courtroom today from being able to see more than a quarter

page of your code?

A. I guess within the courtroom today, that would be true.

Q. And Dr. Pegden makes his code available on his Web site,

doesn't he?

A. He does.

Q. Were you aware that Dr. Warshaw produced code that he used

in this case?

A. No.

Q. Now, Dr. Cho, you agree that in an academic setting people

will generally run the algorithm on a smaller data set to

verify it works? In fact, I think that was what you were just

explaining that you did.

A. It's a common practice, yes.

Q. And you did that with your algorithm in this case; correct?

A. Correct.

Q. But this smaller data set is not discussed anywhere in your

report, is it?

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A. No.

Q. And you didn't produce that smaller data set in this case,

did you?

A. It's publicly available. Anyone can get it.

Q. There's no analysis of this smaller data set in your

report?

A. Not in my report, but there's extensive analysis in some of

my other publications.

Q. Dr. Cho, I want to shift gears a little bit and talk about

the partisan bias metrics that you employed after you generated

your set of 3 million maps.

After you ran your simulation, you then compared your

simulated maps against the enacted map using a number of

different partisan metrics; is that right?

A. That's correct.

Q. And, in particular, you compared the number of seats won by

the Republicans -- or I should say the predicted number of

seats that would have been won by Republicans -- under the

enacted map with the expected number of seats to be won by

Republicans under each of your simulated maps; right?

A. Correct.

Q. Now to calculate the number of seats won by Republicans in

each of your simulated maps you have to first estimate the

number of Democrats and Republicans in the state; correct?

A. Correct.

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Q. And I think, as you state in your rebuttal report, you were

trying to determine how many Republicans and how many Democrats

are in Ohio?

A. Correct.

JUDGE BLACK: You need to slow down.

Q. And to do this you use past election data?

A. Past and current, yes.

Q. But you agree there's no perfect measure of which election

data to use; right?

A. Yes. It's an estimate.

Q. Using elections that are good for Republicans will make the

state look more Republican?

A. That was the point I made in my rebuttal report, yes.

Q. Similarly, using elections that are good for Democrats will

make it look like the state has more Democrats?

A. Yes.

Q. Now, to calculate the estimated partisan makeup of each

district in each of your 3 million simulated maps, you used

election data from eight statewide races in 2008 and 2010; is

that right?

A. I'm counting.

Yes.

Q. Even though you're then attempting to compare those metrics

to the outcomes of congressional elections that occurred in

2012 to 2018; correct?

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A. Correct.

Q. So you were assuming that the way someone votes in a

statewide election is how they will vote in a congressional

election?

A. Incorrect.

Q. Why is that incorrect?

A. I'm measuring underlying partisanship. I'm not measuring

your vote.

Q. But you're measuring whether or not somebody is a Democrat

or a Republican and then comparing that to the results of

congressional elections; correct?

A. Yes.

Q. Well, there are lots of unique factors that go into

congressional elections; correct?

A. Correct.

Q. One is incumbency, isn't it?

A. Correct.

Q. And there can be cross-ticket voting?

A. Absolutely.

Q. So a voter may vote for a Democratic governor and a

Republican congressman?

A. Correct.

Q. Now, I believe you indicated the average two-party

Democratic vote share, based upon the eight elections you used,

was 48.68 percent?

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A. I don't have it in front of me, but I'll take your word for

it.

Q. And the most common outcome using this index for your

simulations was eight Republican seats; is that right?

A. I think so, yes.

Q. Now, you could have used 2012 to 2016 congressional

elections to determine the partisanship of each district;

right?

A. I could have, yes.

MR. TUCKER: Let's take a look at your rebuttal

report. Can we please pull up Plaintiffs' Exhibit 88, and

please turn to page 12, Table 3.

One second, Your Honor. I think I have the wrong table.

JUDGE BLACK: Very well.

MR. TUCKER: Please turn to page eight, Table 2.

Q. Okay. In this table, Dr. Cho reflects the Republican vote

share for congressional elections since 2010 in the second

column; correct?

A. Yes.

Q. So the Democratic vote share would just be the inverse of

that number from a hundred; right?

A. Right. It's two party.

Q. So in 2012, the Democratic vote share would have been 49

percent?

A. Yes.

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Q. And in 2014, it would have been 40 percent?

A. Yes.

Q. And in 2016 --

A. Now you're taxing my simple calculation abilities.

Q. I have the advantage of doing it in advance, so --

A. Then I'll take your word for it.

Q. And in 2016, it would be 41.8 percent; correct?

A. Okay.

Q. So if you had used congressional elections for 2012, 2014,

2016, you would have had an index that would have had a lower

Democratic vote share; correct?

A. This is true. And I explained in my report why one

wouldn't want to do that, not just why I didn't do that, why

people shouldn't do that.

Q. And that, in turn, would have caused your simulation to

create, likely, more Republican seats; correct?

A. Yes.

Q. Now, in your rebuttal report you also indicated that you

then looked at an index using 2012 to 2014 statewide elections.

Do you recall that?

A. Yes, that's correct.

Q. And I believe you calculate the two-party vote share,

again, as pretty close to something like 48.6 percent?

A. I'll take your word for it.

Q. But you did not include all statewide races in 2014, did

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you?

A. That's correct.

Q. In fact, you eliminated three races: The attorney general,

the governor, and the secretary of state races in 2014; right?

A. Also correct.

MR. TUCKER: Can we pull up on the rebuttal report

page 11, Table 4.

Q. And, in fact, each of those races were won by the

Republican candidate by 60 percent or more; correct?

A. Correct.

Q. But these were contested races?

A. They were, yes.

Q. And had you included those, that would have dropped the

Democratic vote share; correct?

A. That is correct.

Q. Dr. Cho, now I want to skip quickly to your supplemental

report, which is Plaintiffs' Exhibit 426.

A. I see it.

Q. On page three you indicate that when you use 2018 statewide

election data and overlay that data over your 3 million

simulated maps, you actually result in almost 1500 maps that

would be predicted to have 12 Republican seats; correct?

A. Correct. It's not visible on the plot, but, yes, there are

12-4 maps. It's not visible on the plot because it's so small

compared to nine seats, it's not visible. But there's

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something there, yes.

Q. But using only nonpartisan criteria, you were able to draw

some maps that would result in 12 Republican seats; correct?

A. Yes, it's possible.

Q. Now are you aware that plaintiffs are offering a remedial

map in this case?

A. I heard something about it. I really -- I haven't seen it.

I don't know anything about it.

Q. You have not seen that remedial map?

A. I have not.

MR. TUCKER: Can we pull up Plaintiffs' Exhibit 90.

Q. I'll represent to you this is the first page of the report

authored by Dr. Cooper -- or Mr. Cooper in this case.

A. Okay.

Q. You have not seen this report before?

A. I have not.

Q. Okay. Will you please turn to page three. In paragraph 5,

do you see where Mr. Cooper says that he also "drew the plan in

compliance with the requirements of the 2018 Ballot Initiative

approved by Ohio voters in May 2018"?

A. I see it.

Q. And then below in paragraph 6, do you see where he

indicates that he drew the remedial plan to comply with

traditional redistricting criteria, including equipopulation,

contiguity, compactness, compliance with the Voting Rights Act,

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and preserving communities of interest?

A. I see it.

Q. And you understand those to be nonpartisan, neutral

districting criteria, correct?

A. Well, they can be. Sometimes compliance with the VRA will

encompass some partisan aspect, and then it's not. But they

can be, yes, as well as preserving communities of interest.

Q. Now I want to refer to Plaintiffs' Exhibit 91, in

particular, Exhibit S.

And, Dr. Cho, I'll represent to you this is a chart

provided by Mr. Cooper and is a comparison of the 2012, 2014,

and 2016 House election results between the enacted plan in

Ohio and his remedial plan. Okay?

A. Okay.

Q. I want you to look at 2014. How many districts would have

a Republican vote share of 50 percent or greater?

A. In what?

MR. SUBHEDAR: Your Honors --

JUDGE BLACK: Excuse me.

MR. SUBHEDAR: -- I'm just going to object as lack of

foundation.

JUDGE BLACK: Very well. It's noted.

A. I'm sorry. In what?

Q. For 2014, how many of the districts in Mr. Cooper's

remedial plan would have a two-party Republican vote share of

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50 percent or more?

A. So is this one Republican or Democratic? It's Democratic;

right?

Q. Well, I guess it's fair to say you can't figure that out

without -- the extent of it there.

So these are the two-party Democratic vote shares. So if

it's easier, let me reask the question in a better way.

How many districts in Mr. Cooper's remedial plan in 2014

have a Democratic vote share of under 50 percent?

A. Of under 50 percent?

Q. Yes.

A. Is it 11? I'm not sure.

Q. I think it's 12.

A. Twelve?

Q. District 12, 2 --

A. It could be 12.

Q. Okay. And then in 2016, how many districts in Mr. Cooper's

remedial plan do you see have a Democratic two-party vote share

of under 50 percent?

A. Is it 11, or is it 12, again?

Q. I get 11 this time.

A. All right.

Q. So, Dr. Cho, I want to now turn back. Thank you for

endeavoring me in that. I want to turn back to your report.

So that's Plaintiffs' Exhibit 87 on page 33. And the paragraph

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that starts "Figure 19." The last sentence you state, "There

were also cases of 6 seats and 11 seats, but those occurred so

infrequently in comparison to 7-10 seats that the histogram

bars for 6 and 11 seats are barely even visible in the plot."

Correct?

A. I see it, yes.

Q. And in none of your maps under this data did you get 12

Republican seats?

A. Which date is this, '08-'10?

Q. Yes.

A. That's correct.

Q. So although Mr. Cooper uses nonpartisan criteria to draw a

remedial map, and his analysis shows that in 2014 that map

would be predicted to result in 12 Republican seats, and in

2016 it would be predicted to result in 11 Republican seats,

none of your 3 million maps predict that, do they?

A. This is a completely different exercise.

MR. SUBHEDAR: Can I just have a continuing objection

to the lack of foundation?

JUDGE BLACK: Yes. Thank you.

A. It's a completely different exercise than what I'm doing.

He's looking at congressional districts. So this is not -- I'm

looking at underlying partisanship. We're talking about

different things here.

Q. And are you aware that Mr. Cooper tried not to pair

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incumbents in his remedial map?

A. I saw that.

Q. So, Dr. Cho, isn't it true, at the end of the day, we don't

know if the differences in the partisan makeup of the enacted

map and your 3 million simulated maps are the result of some

partisan intent, or possibly other nonpartisan criteria that

your simulation did not consider, like incumbency protection?

A. That's untrue.

Q. But you don't know, because you didn't factor in certain

other nonpartisan criteria?

A. No, that's not why it's untrue. What's untrue is I've

already said you can get a 12-4 map. Right? These maps are

possible. In fact, I created some of them. And, in fact, they

are possible from a nonpartisan process. You can get a 12-4

map from nonpartisan process.

What I'm trying to explain is, that's super unlikely, but

it could happen. It's like the thousand heads in a row. It

can happen. But if I saw a thousand heads in a row, I'd be

suspicious that that was a fair coin. I'm not saying it's not

a fair coin because that can happen.

And I'm demonstrating for you here that you can get a 12-4

map from a nonpartisan process. That can happen, yes. But

given that the distribution I produced places it somewhere

else, and then you have these, you know, allegedly nonpartisan

other decisions that go into it, and it moves that effect all

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the way to the right, it's like the thousand coins. Because if

it was really not partisan, then sometimes it would make it a

little more Republican, sometimes it would makes it a little

more Democratic, because it's not partisan. It shouldn't have

a biased effect. It shouldn't be that the nonpartisan decision

made it a little more Republican, and then the next nonpartisan

decision made it a little bit more Republican. It's like the

heads. Heads, heads, heads, heads, heads. It's like after so

many heads, I'm thinking, "Let me see that coin."

Q. But, Dr. Cho, you don't know how much more likely 12

Republican seats would be if you factored in an incumbency

protection, do you?

A. If I -- if I made the maps separate the incumbents, then I

don't know, yes.

Q. Thank you. And, Dr. Cho, you're not offering any opinions

in this case on how much partisanship is too much; correct?

A. I am not.

Q. You're not testifying that a particular number of districts

must be competitive for the map to be constitutional?

A. I am not.

Q. You're not testifying how many additional seats the

Republicans must have gained for it to be called an

unconstitutional partisan gerrymander, are you?

A. No. I present an analysis and I say, "This is possible and

it's unlikely," and I show you, you know, what's likely and

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what's not, and I think it's for the Court to decide is that

unlikely enough that they're willing to say, "That's a lot of

evidence that it's partisan." That's for the Court.

I just supply the histograms, and the -- you know, these

pictures, and then they -- it's for the Court to say, "This is

typical, this is not typical," or how typical they want it to

be before they say it's unconstitutional.

MR. TUCKER: Your Honor, I know that I'm about to

start treading dangerously into the Court's lunch hour. I

think I have one more section left that I can wrap up in about

ten minutes, if the Court would like me to proceed.

JUDGE BLACK: You can proceed with ten minutes.

MR. TUCKER: Thank you.

Q. Now, Dr. Cho, in your report you also analyze how each

individual plaintiff in this case would fare under all of your

3 million simulated maps versus how they fared under the

enacted map; correct?

A. Yes. I provided a graphic on that.

Q. And I'm actually going to put up plaintiffs demonstrative

106, which I think was discussed with you yesterday. And I

think -- I believe that you testified about this demonstrative

yesterday.

A. I did, yes.

Q. The blue lines represent the total distribution of

Democratic vote shares in all of your 3 million simulated maps;

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correct?

A. That's correct.

Q. And the blue X, as you indicate in the demonstrative, or as

the plaintiffs' attorneys have indicated, is the mean of the

simulated maps?

A. Correct.

Q. And the circle is the median; correct?

A. Correct.

Q. Now, there are several plaintiffs that are not going to be

in a district that has a 50 percent or greater Democratic vote

share in any of your 3 million maps; right?

A. I don't know which ones they are, but there were some, as I

recall.

Q. So if you look at District 5 -- or number -- yeah, District

5, Plaintiff Deitsch, the whole distribution is below the 50

percent line; correct?

A. I can't tell, but -- yes.

Q. And the same would be true for Plaintiff Nadler?

A. Just a second. Let me go back a little.

Yes.

Q. And the same would be true for Plaintiff Megnin?

A. Yes.

Q. And the same would be true for Plaintiff Thobaben?

A. Who?

Q. In the 15th District.

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A. Yes.

Q. And for several others, the mean and the median value, so

in your average map, they're still going to be in a district

that has got a less-than-50-percent Democratic vote share;

correct?

A. I think so, yes.

Q. So, for example, in District 4, Plaintiff Libster would

fall in that category?

A. Yes.

Q. And in District 12, Plaintiff Dagres would fall in that

category?

A. Yes.

Q. Let's take a look at Plaintiff Myer in District 13. Well,

actually, let's -- I need to shift to the actual figure in your

report.

MR. TUCKER: So can we pull up Plaintiffs' Exhibit 87.

I'm sorry. Wrong one. Plaintiffs' Exhibit 426, page seven,

Figure 4.

A. I'm sorry. What are we looking at? The supplemental?

Q. Yes. It's the supplemental report, page seven, Figure 4.

Do you recognize this figure?

A. I do.

Q. And this is a similar figure to what we were just looking

at, but now you've got additional data points showing the vote

shares based on various election data; correct?

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A. Correct.

Q. So looking at Plaintiff Myer in District 14, no matter

which election returns data you look at, Plaintiff Myer is in a

district with higher Democratic vote share than any of your

simulated maps; correct?

A. Yes. And that's true for several of the plaintiffs.

Q. And, in fact, in some of these simulated maps, even though

Plaintiff Myer is currently in a district that's going to elect

a Democrat, she's in a district that may elect a Republican;

correct?

A. Well, yes, that's correct. But then later on, the flip

side, when you were explaining this the other way, you didn't

say -- you biased it in the other direction. So, for instance,

if the district doesn't hit 50 percent, I feel like you're

implying, therefore, they couldn't elect a Democrat. I think

that's not true.

So, for instance, in my supplemental report on the previous

page, in Congressional District 12, they almost elected a

Democrat. Right? And if that district had been a little bit

more Democratic, they probably would have popped over that

line, because they were right smack -- right below that line.

So if you increase it and you make it more competitive,

that's good for that plaintiff. And that district could elect

a Democrat, even though there were fewer than -- even though

it's under 50 percent.

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So I guess that characterization where you're saying, "Here

now," and you're going on the flip side and you're saying,

"Well, this definitely wouldn't happen," on the other side, you

didn't say the same thing.

Q. Well, Dr. Cho, I think the point here is that when your

simulation is drawing maps and it's making changes to

districts, those changes, it might benefit one of the

plaintiffs and it might make one of the plaintiffs worse off;

correct?

A. It's possible, yes.

Q. Redistricting is a zero-sum game; correct?

A. Yes.

Q. Now, Dr. Cho, you are not opining that any particular

plaintiff lacks the ability to have an influence on their

member of Congress, are you?

A. If that means could the plaintiff, like, call up his

congressman, make a plea and influence his congressman, yeah,

anyone can do that.

Q. And you're not testifying any particular plaintiffs have

been shut out of the political process, are you?

A. I'm actually not making any statement about this graphic.

This is also something that I think of as I'm supplying

information and I supply it across multiple data sets, multiple

years, in different ways. 

It's kind of like my last analysis. When I was looking at

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the maps I did it for, you know, elections before the

redistricting, I did it for elections after the redistricting.

I'm not telling the Court what to do. I'm supplying

information, and I'm doing the same thing here.

I'm not saying this plaintiff this, that plaintiff that.

I'm supplying information, and they can look at that and, you

know, synthesize that as a whole, I think. That's how I view

my role here.

Q. I just want to make sure it's clear for the record. So

your answer to my question was a no, you're not offering that

opinion?

A. No, I'm not offering opinions.

MR. TUCKER: Thank you, Dr. Cho. No more questions.

JUDGE BLACK: Does the plaintiff have redirect?

MR. SUBHEDAR: I will have some. I didn't know if

anybody --

JUDGE BLACK: Oh, I'm sorry. Is the defense going to

examine?

MR. McKNIGHT: I don't believe we have any questions,

Your Honor.

JUDGE BLACK: Very well.

MR. SUBHEDAR: So I will have some redirect. I need

to figure out exactly how much. It may be a good time to take

the lunch break, Your Honor.

JUDGE BLACK: Do you have a sense for how long?

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MR. SUBHEDAR: Probably, maybe 15, 20 minutes, maybe a

little bit longer.

(Judges confer privately.)

JUDGE BLACK: Are you familiar with this Judge's

commitment to a timely lunch?

MR. SUBHEDAR: Yes, I am, Your Honor.

JUDGE BLACK: Let's break for an hour till 1:05.

We'll have a short redirect and hope not to keep the

defendants' witness waiting.

MR. SUBHEDAR: Yes, Your Honor.

JUDGE BLACK: Break until 1:05. The witness is not to

discuss her testimony during the break.

And she understands; correct?

THE WITNESS: She does.

JUDGE BLACK: Thank you.

COURTROOM DEPUTY: All rise. This court is in recess

until 1:05.

(Witness temporarily excused.)

(At 12:05 PM, a luncheon recess was taken.)

- - - 

AFTERNOON SESSION

(In open court at 1:05 PM.)

JUDGE BLACK: Thank you. Please be seated.

The witness can re-take the witness stand.

(Wendy K. Tam Cho resumes the witness stand.)

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MR. TUCKER: Your Honor, if I may. 

JUDGE BLACK: Yes. 

MR. TUCKER: Apologies for interrupting. We have one

housekeeping matter.

JUDGE BLACK: Yes.

MR. TUCKER: Intervenors want to move for the

admission of certain exhibits that were used during the

cross-examination.

JUDGE BLACK: Very well.

MR. TUCKER: Exhibits Plaintiffs' 89, Plaintiffs' 428,

Plaintiffs' 442, Intervenors' 5, Joint Exhibit 3. 

And we also seek to move for the admission of Dr. Cho's

report from the League of Women Voters case in Pennsylvania and

the transcript from her trial testimony in the case in

Pennsylvania.

JUDGE BLACK: Any objection as to the admission of

those exhibits?

MR. SUBHEDAR: One moment, Your Honor.

(Plaintiffs' counsel confer privately.)

MR. SUBHEDAR: I think there may be some of those that

are not on the exhibit list that was given to us previously.

JUDGE BLACK: If you'd keep your voice up for this old

man.

MR. SUBHEDAR: I'm sorry. I believe there are some of

those that may not have been on the exhibit list that was

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provided to us earlier. So in terms of having them admitted

into evidence, I would need to just cross-check those, if I

could.

MR. TUCKER: Your Honor, we will admit that the report

and the trial transcript were not on the exhibit list. They

were impeachment exhibits. But under Rule 613(b), they can be

admitted as substantive evidence.

JUDGE BLACK: Very well. Any objections?

MR. SUBHEDAR: No, Your Honor.

JUDGE BLACK: They're admitted. 

(Joint Exhibit 3, Plaintiffs' Exhibits 89, 428 and 442;

Intervenors' Exhibit 5; Dr. Cho's report from Pennsylvania

League of Women Voters case and Dr. Cho's Pennsylvania trial

testimony were admitted.)

MR. STRACH: Your Honor?

JUDGE BLACK: Yes. Good afternoon.

MR. STRACH: Good afternoon.

JUDGE BLACK: I missed you this morning.

MR. STRACH: I'm glad to hear that. I wanted to

notify the Court that one of my clients is in the room today --

Frank Strigari with the Ohio Senate -- just for the Court's

information.

JUDGE BLACK: Thank you. He's been here before;

right?

MR. STRACH: Yes, Your Honor.

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JUDGE BLACK: Good to have you back. This has been

exponentially fun.

THE WITNESS: I object.

(Laughter.)

JUDGE BLACK: I'm not sure either word is used right.

Be that as it may, pull yourselves together. 

The witness remains under oath, and she understands?

THE WITNESS: Yes.

JUDGE BLACK: Redirect?

MR. SUBHEDAR: Thank you, Your Honor.

REDIRECT EXAMINATION 

BY MR. SUBHEDAR:

Q. Dr. Cho, on cross-examination you provided some testimony

in response to counsel's questions about how your simulations

process generated, I think you used the phrase, billions of

maps and then you took a sample of that to get to the 3 million

maps on which you have presented analysis and opinions; is that

correct?

A. That's correct.

Q. Okay. Can you explain how you know that the -- well,

strike that.

Are the billions of maps that I just referred to, are those

billions of maps representative of the entire set of feasible

maps that result once you apply the legal requirements and the

traditional districting criteria that you applied as

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constraints in your process?

A. Yes. So the approximately 300 billion maps that were

created are a representative sample of the underlying set, and

the 3 million maps I presented, which is a sample of that, you

know, billions of maps is also a representative set.

Q. Okay. So how do you know that the billions of maps are

representative of the entire set of feasible maps that result

once you apply the constraints that you applied?

A. So the billions of maps is actually what is output from the

algorithm, and I pare it down 3 million because it's so much

output to process.

So to prevent that issue, I sample from that the billions

of maps that are actually output, that is the original

representative set, and then I create a set that's also

representative, that's smaller, via a technique it would be

just one MC. It would just be a regular Monte Carlo. 

And that -- I don't know if I would call that technology,

but the way to do that is actually very common and very well

known.

Q. Okay. So focusing on the billions of maps, can you explain

how you know that the billions of maps are representative of

the full set of feasible maps?

A. So that is what I was referring to as what is output from

the EMCMC algorithm. And I think we talked about how I know

that that's a representative set. You know, it's built on this

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theorem that we had already discussed, and then we had

discussed other stuff about how I built off of the theorem and

then I have all these publications about it.

Q. Okay. And then going from the billions of maps down to the

3 million sample that you then analyze and presented

conclusions on, how do you know that the 3 million maps are

representative of the billions of maps?

A. So I think I just said that. That going from the billions

to the 3 million is a result of what we call just a regular

Monte Carlo sampling algorithm, and that's actually extremely

well known. I don't think anyone would question that. There

actually is no innovation there on my part. It's a very

standard technique, and you can see it in the code, how it's

done. It's actually very simple.

MR. SUBHEDAR: Okay. Can we pull up Dr. Cho's expert

report from the Pennsylvania case. And let's go to page 18,

Footnote 4.

Q. Now, Dr. Cho, you were asked some questions during your

cross-examination about this footnote, and I'd like you to take

a moment to read -- you can read the entire footnote to

yourself if you'd like, but I want to draw your attention to

the sentence roughly in the middle that starts with "Further,

indeed, the point is not whether."

Do you see that sentence?

A. I do.

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Q. Okay. So what I'd like to ask you is whether anywhere in

this footnote you have criticized Dr. Chen for not publishing

his code.

A. No, I have not.

Q. And what are you criticizing Dr. Chen for in this footnote?

A. I'm criticizing him for not telling anybody what his

algorithm is in sufficient detail or to have had that algorithm

vetted by the scientific community, that he doesn't have any

publications, he never explained to anyone what even the

algorithm is. The code is irrelevant.

Q. Okay. So at any time in the Pennsylvania litigation,

whether this in footnote or otherwise, did you offer a

criticism of Dr. Chen for not having published his code?

A. No.

Q. Okay. Now let's talk about the algorithm that you used in

this case. And let's pull up Plaintiffs' Exhibit 428, please.

Now, you were asked some questions during cross-examination

about this article. First of all, let me ask you did you

publish the algorithm that you used in this case in this

article?

A. Yes.

Q. Okay. And is this article peer reviewed?

A. Yes.

Q. Now, you were asked some questions about whether you

disclosed code in this article. And just to confirm, you did

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not disclose any actual code in this article; correct?

A. I did not.

Q. Okay. Now, in your many years of submitting articles for

publication in peer-reviewed journals and other publications,

have you ever come across a situation in which the submission

of your code was part of the peer-review process?

A. No. It's never part of the peer-review process.

Q. Okay. Now, in your --

MR. SUBHEDAR: And we can take that down. Thank you.

Q. In your initial expert report, which was Exhibit P087, and

in your follow-on reports, your supplemental report and your

rebuttal report, you presented a number of analyses in which

you use different sets of data in connection with your

simulated maps; is that correct?

A. That's correct.

Q. Okay. And I believe in one case you use 2008 and '10, in

some cases you use 2012 to 2014, and in other cases 2018. And

you testified to this on cross; right?

A. Yes.

Q. Okay. Now, when you were using these different sets of

election returns, did you consistently use only statewide

election data?

A. I did.

Q. Okay. And did you consistently exclude -- strike that.

Did you consistently include only those elections that were

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competitive?

A. I did.

Q. Okay. And what was the definition of competitive that you

used in that regard?

A. So the definition I used was that the result was within

this --

Did you say competitive or not competitive?

Q. Competitive.

A. So it's competitive if it's within this 40-60 range, 40

percent to 60 percent, the two-party split.

MR. SUBHEDAR: Okay. Can we please pull up

Plaintiffs' Demonstrative 106.

Q. So in this demonstrative, Dr. Cho, what is the data that

was -- the election return data that was used in conjunction

with the simulated maps?

A. 2008-2010.

MR. SUBHEDAR: Okay.

And if we could pull up P087, please. And if we could go

to Figure 1, please.

Q. In this figure -- 

MR. SUBHEDAR: Sorry. Figure 1, please, on page 13.

Q. So this is the histogram that you prepared for one of the

plaintiffs in the case; correct?

A. Correct.

Q. Okay. And can you just clarify what election return data

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you used in this regard when preparing this particular

analysis.

A. This was also '08-'10. Everything in the initial report

was from the '08-'10 data. I mean in my simulated stuff.

MR. SUBHEDAR: Okay. Now let's please pull up

Plaintiffs' Exhibit 426.

And if we could go to page seven, Figure 4.

Q. Now, you provided some testimony on cross about this

figure. I just wanted to confirm or clarify what is the

election data that you use in conjunction with your simulated

maps in order to generate these blue lines that are on this

graph?

A. This one's from the 2018 election returns.

MR. SUBHEDAR: Okay. Can we please pull up

Intervenors' Exhibit 5, I005.

Q. Now, you recall you were asked some questions by counsel

about this particular letter; correct?

A. Yes.

Q. And can you just remind us, when did you serve your initial

expert report in this case?

A. October 5th.

Q. Okay. And just so the record is clear, do you see a date

on this letter?

A. October 12th.

Q. Okay. And those are 2018; correct?

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A. Correct.

MR. SUBHEDAR: Okay. Let's pull up Plaintiffs'

Exhibit 598, please.

Q. Now, you recall you were shown this document and asked some

questions about this document during cross; correct?

A. Yes.

Q. And just to be clear, you had never read this report or

this declaration prior to this?

MR. TUCKER: Objection, Your Honor.

JUDGE BLACK: Basis?

MR. TUCKER: I don't believe that was one of the

documents that she was shown during cross.

(Plaintiffs' counsel confer privately.)

MR. SUBHEDAR: I'm sorry, Your Honor. I think that

she may have been shown an earlier version of this declaration.

I don't have the exhibit number for that. 

Do you have that handy?

MR. TUCKER: Yeah. I believe she was shown P90 and

P91.

MR. SUBHEDAR: Okay. Can we pull that up for a

moment.

Q. Okay. So do you recall seeing this document during your

cross-examination?

A. Yes.

Q. Okay. And you had never read this document before today. 

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A. No.

Q. Is that right?

A. That's correct.

Q. Okay. Now, as you can see, this has a title of the

"Declaration of Williams S. Cooper," and you were shown some

images, a table from this document, and asked to count how many

of the percentages were below 50 percent. Do you recall that

general testimony?

A. Yes.

Q. So let me now bring up Plaintiffs' 598. Now, do you see

the title of this document is "Third Supplemental Declaration

of William S. Cooper"?

A. Yes.

Q. And have you ever seen this document before?

A. No.

MR. SUBHEDAR: Okay. Let's go to page three, please,

Figure 1.

Q. Okay. And do you recall during your cross-examination you

were shown a table similar to this that did not have the final

column with the "2018" label, but do you recall generally

seeing a column similar to this during your cross-examination?

A. Yes.

Q. Okay. Now, you don't know how these numbers in this table

were generated; is that correct?

A. I do not.

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Q. Okay. Can you please look at the last column, 2018, and

look at the heading "Proposed Plan." Do you see that column?

A. I do.

Q. Just for sake of comparison, can you take a look at the

numbers in that column and count how many are under 50 percent.

A. I think eight, but I've been known to miscount.

MR. SUBHEDAR: Okay. I have no further questions,

Your Honor.

JUDGE BLACK: Very well.

Professor, you have survived and you are free to go.

THE WITNESS: Thank you.

JUDGE BLACK: Thank you.

(Witness excused.)

JUDGE BLACK: Where do we stand from the plaintiffs'

perspective?

MR. FRAM: Your Honor, we have a couple of matters

before we rest.

JUDGE BLACK: Yes.

MR. FRAM: First is the matter of moving into

evidence, subject to the parties' right about their objections

post-trial, our amended trial exhibit list. This was the

Amended Appendix L to the motion we filed. As of this date we

still have not received any opposition to that amendment. I

don't know if an objection stands. But we have copies of that,

and I'd be happy to provide it to the Court and the Court's

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clerks at this time.

JUDGE BLACK: You're speaking of your motion to --

MR. FRAM: Our motion attached an amendment to

Appendix L. Appendix L was plaintiffs' trial exhibit list --

JUDGE BLACK: Right.

MR. FRAM: -- per the Court's pretrial order. 

JUDGE BLACK: Right.

JUDGE WATSON: What's the ECF number, if you recall?

MR. FRAM: Of the filing --

JUDGE WATSON: Yeah.

MR. FRAM: -- of the motion?

JUDGE WATSON: Yeah.

MR. FRAM: I can get that for you.

237, Your Honor.

JUDGE WATSON: Thank you.

JUDGE BLACK: Okay. We've got the document

identified. I recall it.

MR. FRAM: If the Court would like, I've got hard

copies. If not, we can just refer to the number.

JUDGE BLACK: I don't know where you're going. Where

are you going?

MR. FRAM: We're moving into evidence the trial

exhibits on that trial exhibit list.

JUDGE BLACK: And have they been discussed by

witnesses?

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MR. FRAM: Some of them are discussed in the

deposition testimony, some by live witnesses. They have been

subject to the meet and confer and exchange of objections the

Court directed pretrial and are subject to the post-trial

briefing that we discussed on the first day, if they continue

to have any objections, if they stand on any of those

objections.

JUDGE BLACK: All right. So you're moving into

evidence all of the exhibits on your Amended Appendix L of ECF

23?

MR. FRAM: Correct, Your Honor.

JUDGE BLACK: Is there an objection? 

JUDGE WATSON: 237.

JUDGE BLACK: 237. My mistake.

MR. STRACH: Yes, Your Honor. And we don't object to

their admission subject to the objections we've raised and our

right to brief those. I will note that there are some exhibits

that we will be discussing in the briefing that weren't used

with any witness, so just to highlight that. That will be an

issue, but we're certainly happy to brief these issues and

allow the Court to move on today.

JUDGE BLACK: Very well.

The intervenors have anything further on this issue?

MR. LEWIS: Your Honors, as was discussed on day one

of the trial, we do intend to oppose the motion to amend the

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exhibit list to add 15 previously undisclosed exhibits. So we

can have a brief on file over the weekend on that issue. But

we think that that, you know, is a threshold issue that should

be decided, at least with respect to the limited scope of

documents that they're seeking to add as untimely exhibits.

JUDGE BLACK: The Court's inclined to admit them

conditionally subject to post-trial brief objections. Did you

need to be heard further in that regards?

MR. LEWIS: Your Honor, we do not.

JUDGE BLACK: Very well. They're admitted

conditionally subject to post-trial brief objections.

(All exhibits listed in Amended Appendix L of ECF 237 were

conditionally admitted.)

MR. FRAM: The second item, Your Honor, there are some

joint exhibits, and we want to make sure that we move those in

as well, specifically Joint Exhibits 1 through 31. They've

already been lodged with the Court, the actual exhibits.

JUDGE BLACK: Is there any objection to the admission

of Joint Exhibits 01 through 31?

MR. STRACH: No, Your Honor.

JUDGE BLACK: From the intervenors?

MR. LEWIS: No objections, Your Honor.

JUDGE BLACK: Joint Exhibits 1 through 31 are

admitted.

(Joint Exhibits 1-31 were admitted.)

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MR. FRAM: Finally, Your Honor, I mentioned the

deposition designations that have been lodged with the Court

per the Court's order. The docket number there is 230-1. And

the designations and counter-designations for the plaintiffs

were in Appendix A, and we'd like to move those in evidence,

subject, again, to know there will be some post-trial briefing

on objections.

JUDGE BLACK: Any objection to conditional admission?

MR. STRACH: Not to conditional admission.

JUDGE BLACK: From the intervenors?

MR. LEWIS: We join the defense.

JUDGE BLACK: Conditionally admitted.

(Plaintiffs' designations and counter-designations for

depositions listed in Appendix A of ECF 230-1 were

conditionally admitted.)

MR. FRAM: And finally, Your Honor, I just want to say

for the record, I keep alluding to this post-trial objection

process. We did discuss it on the first day. I just want to

say the plaintiffs understanding of what this is in case

there's -- before we rest.

JUDGE BLACK: And we want to suggest what we're

looking for.

MR. FRAM: Okay. We're happy to --

JUDGE BLACK: I think the hope is that the plaintiff

will file its findings of fact and conclusions of law first,

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not simultaneously. That will give the defense an opportunity

to look at your proposed findings of fact and conclusions of

law, and they may be able to agree to some of them. So we're

hoping to see findings of fact and conclusions of law after

yours is filed, and we'll pin it down. We're negotiating this

as we speak.

And then on the objections, you know, we'd like to see --

Do you want to state it?

JUDGE NELSON MOORE: We thought that each side should

file a statement of their objections with their reasoning, and

then each side should have a chance to respond to the

objections raised against their own exhibits or evidence, and

then a time for reply. And we hope that that would happen very

quickly, and we thought five days after the trial concludes for

the first wave of objections by each side, including the

intervenors doing theirs, the defendants doing theirs and the

plaintiffs doing theirs, and then five days later the

responses, and then, if replies are necessary, doing that

within another five days.

MR. FRAM: Understood, Your Honor.

I would suggest perhaps the following might be helpful.

The time frame makes a lot of sense to us, first, and we talked

about it on the plaintiffs' side, and we've actually made a

proposal a few days ago to defendants and intervenors with a

timeline roughly along those lines.

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Our thinking, though, on a couple of buckets of evidence,

we wouldn't need to restate the objections, necessarily, in

five days, because we thought that's what we already had done.

On pretrial we've been required to disclose our objections, and

we did so, and so did the defendants and intervenors. So in

some sense that's been taken care of. Similarly for the

deposition designations. We've all done it.

The one place it hasn't been done is where you had live

testimony at trial or something came up for the first time at

trial that had not been subject to that pretrial process.

There, of course, we understand there's a need for people to --

per the Court's order, there's the opportunity for post-trial

objections. Pretrial already said so on page six. We

understand that. And our thinking would be, for that material,

if you hadn't already lodged your objection pretrial on that

exhibit or on that deposition designation, sure, five days

after trial is a good time to come in with any new objections

and then, five days thereafter, responses.

Our thinking was for anything where objections have already

been lodged on the exhibits or the designations, that would be

also on the same ten-day clock. So ten days after trial, all

the responses to objections come on in. That had been our

thinking about -- as we parsed out the different buckets of

evidence.

Now, if that's consistent with -- if the Court wants to

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revise that or has a different view --

JUDGE NELSON MOORE: We were hoping that maybe you

would not be continuing with objections that had been raised

previously but would be able to focus for us on what were the

important objections, because some of them, frankly, seem very

de minimus.

MR. FRAM: I appreciate that and share the sentiment.

And we've been through a few rounds of this before, but of

course -- how about the following? If any party wants to

withdraw objections previously lodged, we should have to notify

each other by that five-day deadline so that the ten-day

response period is just focused truly on that which remains at

issue? It avoids the evil of people coming up with whole new

objections. It can go the other way, is my concern. We've

been through the whole process, and it would be unfortunate to

see, five days from now, people coming in with brand-new

buckets of objections to documents and designations which we've

already been through multiple rounds on.

JUDGE BLACK: All right. We're working this through.

Where are the objections that you've been through rounds?

MR. FRAM: My understanding is we've got about -- on

the exhibits --

JUDGE BLACK: Where are we going to find them?

MR. FRAM: Oh, where are you going to find them? You

know, we've already -- we've exchanged -- 

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Have they been filed with the Court, the objections?

MR. STRACH: We just exchanged them with each other.

MR. FRAM: Am I right about that? Because I know we

have definitely exchanged a spreadsheet. We've got these

spreadsheets where they list them and we've identified them to

each other. We've even identified our responses to each other.

JUDGE BLACK: Okay. And where do we find that?

MR. STRACH: We would have to file it. It's a very --

it's going to make your head hurt when you read it. It's a

very --

JUDGE BLACK: My head already hurts.

(Laughter.)

MR. STRACH: We could certainly file that. We have a

spreadsheet that has the latest iteration of what the parties

have exchanged back and forth.

JUDGE NELSON MOORE: Okay. You know, we really don't

want to be focusing on unimportant things here, and just --

I've seen the various spreadsheets of objections. And for us

to spend a lot of time on that is not a good way to resolve

this case. So that's why we thought having you file, in five

days, what your continuing objections are. And if you've

already done all the work, you can just plop that into your

position paper.

But as I say, some of the objections that both sides have

raised seem that they're not really that consequential and we

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don't want to need to spend time worrying about those. 

The intervenor I guess has something to say.

MR. LEWIS: Your Honor, thank you very much.

You know, we certainly share the sentiment of the Court

that it's not productive for any of us to be, you know,

fighting unnecessarily over exhibits. If I may make the

suggestion it may be better for us if the objections and

responses are filed actually subsequent to the plaintiffs'

proposed findings of fact. And the rationale for that is many

of the exhibit objections hinge on the manner in which the

exhibit is being used and the purpose for which the exhibit is

being offered in evidence.

For this limited selection of documents that have been used

live at trial, it is in fact true we have a pretty good idea,

based on the trial testimony, how exactly those documents are

going to be used. But as this Court is aware, the majority of

the testimony is coming by deposition designation. And until

we see the findings of fact and conclusions of law proposed by

plaintiffs and really understand how they want to work with

those documents, it's going to render some portion of those

objections that we've lodged -- particularly, for example, on

hearsay, you know -- difficult to dial in, whereas if we see

the proposed findings of fact and conclusions of law, it may,

frankly, render some of those objections moot or would allow a

more refined process to address those objections.

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JUDGE BLACK: We're looking for a refined process.

MR. FRAM: Yeah.

JUDGE BLACK: So you're on the right track.

MR. LEWIS: Thank you, Your Honor.

MR. FRAM: Might I suggest the following: that five

days after trial we provide the Court with a spreadsheet where

we boil down the objections some more. We understand we're not

adding any new objections if you've already put your objections

in pretrial on the exhibits or designations.

But in the responses that come in in ten days with the

findings, if the party's putting in for the hearsay issue a

document not for the truth under 801(c)(2), or for state of

mind, for example, under 803, that you have to clearly say so

when you respond to the objection so the Court has the whole

package there at the time of the findings.

The reason I suggest that rather than waiting and

sequencing this, if we're already going to have sequential

findings and then briefing on evidence thereafter, inevitably

it's going to keep delaying and delaying the ability for the

Court to enter its order. And as we've said from day one, with

the scheduling orders, we very much are hoping that the

Court -- we put the Court in a position of being able to do its

work as quickly as the Court can following the trial. But we

would rather not see this drag on and on and on.

So we're ready, if we're putting in a document on a hearsay

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exception, to say so right in our response, and you'll have

that at the same time as the other findings and it should be

relatively easy and straightforward to evaluate.

(Judges confer privately.)

JUDGE BLACK: We want to confer among ourselves

outside your presence and come back with the reaction.

MR. FRAM: Okay.

JUDGE BLACK: So we'll try and do it during the break.

We probably don't have to figure this out today, but after the

break we may have a reaction.

MR. FRAM: All right. Well, thank you, Your Honor.

I believe that's all the evidence from the plaintiffs'

case, both the witnesses, the deposition designations, the

exhibits and the joint exhibits. So with that, Your Honor,

plaintiffs rest.

JUDGE BLACK: Plaintiffs rest? 

MS. LEVENSON: Plaintiffs rest.

JUDGE BLACK: Very well.

PLAINTIFFS REST

MR. STRACH: Good afternoon, Your Honor.

JUDGE BLACK: Good afternoon.

Good afternoon, Mr. Voigt.

MR. VOIGT: Good afternoon.

JUDGE BLACK: I didn't mean to overlook you. I missed

you this morning as well.

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MR. STRACH: One thing I wanted to -- before we put on

our witness. While you are thinking about this timing issue,

we would also like some guidance on whether five days includes

weekends or not, so we can all schedule our time accordingly.

JUDGE BLACK: Do you acknowledge weekends in your

life?

MR. STRACH: Not many.

JUDGE BLACK: Very well.

MR. FRAM: Not only that, Your Honor, we would join in

the sentiment and we suggest we try to avoid a Monday filing

deadline, particularly we're dealing with a lot of cite

checking going on. We've all been around and we know what that

means for certain individuals' weekends if it's a Monday

deadline. So if it's at all possible with the Court's

schedule, we would request a Tuesday filing deadline.

JUDGE BLACK: We will try and accommodate you.

MR. FRAM: Thank you.

JUDGE BLACK: Yes, sir, on behalf of the defendants?

MR. STRACH: Yes. May it please the Court, we do have

a witness today, and we call Ray DiRossi.

JUDGE BLACK: Very well. If we can have Mr. DiRossi

approach the witness stand.

Would you pause for the oath to tell the truth and raise

your right hand. Do you solemnly swear or affirm that your

testimony today will be the truth, subject to the penalty of

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perjury?

THE WITNESS: I do.

JUDGE BLACK: Very well. You may be seated.

I've told everybody that seat tips back, so get a feel for

it. And then we're going to need you close to the federal

microphone.

Counsel, when you're ready you may proceed.

DEFENDANTS' EVIDENCE

MR. STRACH: All right. Thank you, Your Honor.

RAYMOND E. DiROSSI 

a witness herein, having been first sworn, testified as follows: 

DIRECT EXAMINATION 

BY MR. STRACH:

Q. Good afternoon, Mr. DiRossi.

A. Good afternoon.

Q. Could you state your name for the Court, please.

A. Sure. Raymond Edward DiRossi.

Q. And can you spell your last name for court reporter?

A. D-, as in David, i-R-o-s-s-i.

Q. All right. Could you give the Court a sense of your

background, your professional background.

A. Yes. So currently I am the finance director for the Ohio

Senate. I started in the state legislature in 1991, and I was,

at the time, studying finance and marketing at Ohio State

University. 

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Got very involved in the budgetary process of the state,

the state legislature, our budget, the number of budgets that

we do, and kind of bounced around in different jobs. I was the

finance director in the Ohio House for four years. I am

currently, as I said, the finance director in the Senate. And

I'm really focused on tax policy, economic development and the

numerous state budgets that the state does.

Q. All right. And what's your current job, just to be clear.

A. Finance director for the Ohio Senate.

Q. All right. Are you familiar with redistricting in Ohio,

congressional districts, in particular?

A. Yes.

Q. Did you have any role in congressional redistricting in

2001, in the prior decade cycle?

A. I did, yes.

Q. Explain to the Court briefly what your role was, in

general.

A. So at the time, you know, I think everybody would agree,

redistricting is a very unique thing for the state of Ohio.

The state of Ohio does not have traditional year-round staff

that focus on that effort. So every decade that that comes up,

when the actual process happens, it's somewhat a little bit of

a shuffle to try to find the right people to do it.

So as early as 1998, when the process was coming up, there

were really no staff from the previous decade from the '90

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census that has been involved in that process. So I was asked

to get involved, worked with the legislative task force on

redistricting, understand how the Census Bureau was interacting

with our boards of election, and just get up to speed on some

of the litigation and lawsuits that are out there and get ready

so that I could be part of the process in 2001.

Q. All right. And what was your role in the actual line

drawing or map drawing in 2001, if any?

A. So, yeah, I was very involved in the creation of our

legislative districts and also the congressional districts in

2001.

Q. All right. And you mentioned something called the

Legislative Task Force on Redistricting. Can you explain to

the Court briefly what that is?

A. Yeah. So, as I said, it's a very unique process for the

state of Ohio. And as early as, I think, after the 1990

census, there wasn't a process in the state by which the state

prepared for the coming census. So sometime in 1990 or '91, a

statute was passed that created this entity, statutory entity,

the Legislative Task Force on Redistricting and Demographic

Research.

The statute requires that it has a committee membership and

also requires that the chairs, the cochairs of the committee

are able to take action on behalf of it. The statute also

requires that they be bipartisan, they have to be one member

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from each party. And that's a statutory requirement.

But it does all of the things leading up to the census. So

when the legislature is doing its duty to draw congressional

districts, or the Ohio Apportionment Board is doing its duty to

draw legislative districts, the task force is the entity

working behind the scenes to help them allocate money to the

various caucuses, put the proper contracts in place, and

basically prepare the state for that process.

Q. All right. Does the task force draw any districts?

A. It does not it.

Q. Does it adopt any districts?

A. It does not.

Q. So what exactly does it do before the map drawing begins?

A. So slipping my budget hat back on, so -- it is the entity

to which the state legislature appropriates money. So

immediately after a census and a process is put in place, it

will start contracting with universities, traditionally, around

the state, so that they can work with our 88 county boards of

election to work with the census to make sure all of the things

are in place for the next census.

And I know that was relatively easy for me to say in a

sentence or two, but it's a very complex and intricate process

that takes years to do, and to do right.

But the task force is the entity that does all of those

things behind the scene. A couple -- a couple cycles ago we

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bought -- the task force bought equipment, software, and we put

them in the ten major metropolitan libraries around the state

so that people could have access to the proper technology and

software and data to be able to participate in the process.

This time through, we didn't do that because technology had

evolved. So that's what we do.

Q. All right. Does the task force do any funding for the

legislative caucuses?

A. So, as I mentioned, the bipartisan cochairs of the task

force are empowered to take action on behalf of the board. And

back in the last -- this cycle and the last cycle and the cycle

before in the '90s, it made allocations to the Republican

caucuses and the Democratic caucuses in equal amounts so that

they could do everything that the joint caucuses felt they

needed to: Hiring staff, buying computer equipment, travel,

mileage reimbursement, and those types of things.

Q. All right. So, in your experience, once the caucuses

receive their funding from the task force, do the Democratic

and Republican caucuses work together to draw maps?

A. Certainly they can, but, traditionally, the experience has

been that each of the caucuses go off in their own direction.

They hire whoever they feel they have to hire. They buy the

equipment they feel they need to buy. They, you know, may hire

experts to help them. And they will produce the maps. And

then they will come back into the appropriate venue to actually

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enact the districts.

Q. And is the appropriate venue the legislative process?

A. For a congressional redistricting, right, the state

legislature enacts congressional districts as a bill, and it's

a bill that has to be signed or vetoed by the governor.

Q. Okay. So the way it's worked in practice is the Democratic

caucus goes off and draws their maps; right?

A. Yep.

Q. And then the Republican caucus goes off and draws their

maps; is that right?

A. Right. And then they come back in the legislative process.

One of them or both of them are turned into a bill that is --

then goes through the traditional legislative process.

Q. Okay. When I use the term "political index," do you know

what I'm talking about?

A. Well, I certainly have something that I think of, but I

know that everybody hears that term and thinks of their own --

their own thing.

Q. In 2001, when you were working on the congressional map,

did you have a political index that you used?

A. Yeah. So in 2001, I had advocated for and we had created

what was called in 2001 the unified index, which was simply

just we took five races that had happened in the previous

decade -- so in 2001, the decade before -- statewide

non-judicial races that were relatively close and evenly

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divided in the party who won. And we would, basically

simplifying, weight that information down to get a snapshot of

the historical election results that we could refer to always.

Q. And is that similar to what you use in the 2011 process?

A. It's actually exactly what I did in the 2011 process,

except that, obviously, I used five races from the most recent

decade and -- I used different races.

Q. All right. And do you remember what the outcome for the

parties were in the congressional elections of the last decade,

the decade of 2001, when you drew the maps?

A. Yeah, it was pretty volatile. So it ended being -- 13 to

five was the party control at the end of the decade.

Q. All right. Do you remember what it was in 2008, before

that result?

A. Yeah. It actually flipped control, and I think it was --

well, it flipped control and the Democrats took control of the

delegation. I think there were four or five seats that flipped

hands.

Q. All right. During the 2001 process, did you communicate

with any members of Congress about the maps, the congressional

maps?

A. On occasion, rare occasion.

Q. All right. Did the members of Congress have any veto

authority over what you did in 2001?

A. Well, probably every member of Congress thought that they

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had veto authority, but in reality, none of them did. I mean,

we were very interested -- I was very interested in the

opinions of everybody. But, ultimately, my direct boss, the

president of the Senate and also the Speaker of the House was

Tom Niehaus and Bill Batchelder. They were the ones that were

the principals. They were the ones responsible for getting a

bill through the legislature and getting it enacted into law.

Q. All right. In the 2001 process, where did you physically

draw the districts? Where were you physically located while

you were doing this work?

A. Yeah. So back in 2001, I had been an employee in the

General Assembly for about a decade. I started in 1991, as I

mentioned. And, as I said, very unique process, and I -- I

knew that the facilities that the state -- at the statehouse

and the facilities at the Vern Riffe Center, which is where the

House of Representative officers are, was very incompatible for

what was going to be necessary for this process, so we took

some time and looked for some type of offsite office space,

which we ultimately found and used in the 2001 process.

Q. And where was that located?

A. It was at the DoubleTree Hotel.

Q. And did you have various names for what you called that

office?

A. Yes.

Q. What were they?

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A. Well, I called it -- the DoubleTree Hotel was probably the

most one. We called it the hotel. We called it the

redistricting office. We called it the office. We called it

offsite.

Q. And did you ever call it "the bunker" in 2001?

A. I did.

Q. And why did you do that?

A. So it was really towards the end of the process, so a

little bit of explanation. And I know we're talking about the

congressional redistricting, but the legislative piece here is

relevant.

The constitutional timelines for when the legislative map

had to be adopted by the Ohio Apportionment Board required that

by the end -- the first day of October of 2001, we had to have

this map in place. And it was also my first time going through

this process.

And, you know, without saying more, we all know what

happened on September 11th of that day, 2001. And so I

happened to be sitting in the DoubleTree Hotel that very

morning when all of that was happening. And it was actually at

that case that I referred to it as that, the bunker.

Q. All right. Did you have a role in the 2011 congressional

redistricting?

A. I did.

Q. And what was your role this decade?

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A. So for maybe the first time in a couple decades there was

somebody on Capitol Square who had been through the previous

decade: myself. So I ended up being very prominent in that

role in 2011, both in the congressional and the legislative

process.

Q. All right. And was this task force on redistricting, was

it also in place this decade like it was the last decade?

A. It was doing all of the things to set the table, so to

speak, so that the legislature and the apportionment board

could go through their processes.

Q. All right. Did it operate any differently in 2011 than it

did in 2001?

A. Bipartisan cochairs made allocations to the caucuses. I

think the amount was a little bit higher the second decade

through. Things were a little more expensive. But, basically,

the process was the same.

Q. All right. Okay. So let me focus you on the 2011

congressional map. I want to kind of start from a high level

before we kind of walk through the specifics.

Were there any overarching, big issues that you were faced

with in the drawing of that map?

A. Yeah. So the -- I mean, there's a few. I mean, obviously

the state was losing two congressional districts. So that was

something that was confronting us in how -- what was going to

be our policy to address the loss of two congresspeople.

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We also had a significant policy -- or significant shifts

in population that had been happening throughout the decade.

So we were looking to address those areas that had grown or

areas that had contracted in population, some of which were

very significant.

And we also -- was very aware from the previous process, I

knew that in the congressional map there was one district in

northeast Ohio, the 11th Congressional District, that was a

majority-minority district, and so great care was being taken

to look at that district and make sure that it was going to be

created in a way that would be satisfactory.

There was also, in Franklin County, one of the areas that

was seeing tremendous population growth, it was made clear from

some of the principles that I talked about, the desire to make

a new district in Franklin County that would have the ability

to elect, for the first time ever, a second member of the

minority -- minority to Congress.

Q. All right.

A. So those were kind of the big, overarching goals that we

were looking at.

Q. All right. Did anyone from Washington, D.C. dictate to the

legislature what those goals were?

A. Yeah, they didn't -- they didn't dictate, but everybody had

opinions, obviously. And nobody was -- nobody was shy about

expressing them, but nobody was able to dictate. We had to

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get -- the leaders had to get a bill passed through the

legislature. That was the ultimate issue.

Q. All right. After the election of 2010, what was the

partisan makeup of the delation from Ohio?

A. In the congressional map after 2010?

Q. Yes.

A. It was 13 to five.

Q. All right. 13 Republicans?

A. Correct.

Q. And five Democrats?

A. Yes.

Q. So you mentioned that two incumbents would have to be

eliminated because of the loss of two seats. What would the

delegation look like after that was done?

A. Well, in -- you know, one thing that we kind of didn't

catch a break on, we were, you know, hoping that maybe some of

those congressmen wouldn't be running -- or congresswomen

wouldn't be running for reelection. But all had indicated they

would be running for reelection. 

So we weren't able to just absorb the district that was

going to be open. So the decision was made to pair two

Republicans together and two Democrats together. So we would

have ended up with 12 and four.

Q. Twelve Republicans and four Democrats?

A. That's correct. Sorry.

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Q. All right. So if you were going to have 12 Republican

incumbents and four Democratic incumbents, what approach, if

any, did you take with those remaining incumbents in terms of

drawing a map?

A. Well, we -- you know, on the Democratic side, that's where

a lot of the focus was from the Democratic members of the

legislature as well. You know, there were five, and one of

them was the congresswoman that represented the 11th

Congressional District, Congresswoman Fudge. 

And nobody thought it was a good idea to pair anybody with

her, being a district that was a majority-minority district.

And so if you looked at the geographic distribution of where

the other four Democratic members resided, a decision was

quickly made of which two -- which two members of the

Democratic party to pare down.

MR. FRAM: Your Honor, move to strike this last

statement about the Democrats in the northeast, based on lack

of foundation.

JUDGE BLACK: Objection's note.

Q. So, Mr. DiRossi, you know, you recall you were going to

have 12 Republican and 4 Democratic incumbents. Was there any

approach you took to deal with the remaining incumbents,

Republican or Democratic?

A. After the two Republicans were paired and the two

Democratic were paired?

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Q. Yes.

A. Well, like I said, obviously, they all had their opinion.

So drawing or creating a district where they would be happy

helped with getting votes in the legislative process, because

that's where we had to make sure that we had the votes to get a

bill passed.

Q. All right. Were you trying to draw 12 just, quote,

"Republican districts" in the map?

A. No.

Q. All right. Why not?

A. Well, I don't -- you're giving me a lot of credit, first of

all, to think that I could do that. As we just talked about in

the previous decade, the lines that I had worked on were really

very volatile. Republicans controlled the delegation,

Democrats controlled the delegation. 

And that wasn't my charge anyway. That was to produce a

map for the legislature to consider and enact. It wasn't to

guarantee anything.

Q. All right. Let me focus you in on the final map that was

enacted and actually implemented. Do you recall that being

House Bill 369?

A. I do.

Q. All right. Which two Democrats ended up being paired in

that final map?

A. It was Congresswoman Kaptur from the Toledo area, Lucas

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County, and Congressman Dennis Kucinich from western Cuyahoga

County.

Q. And can you tell me why those two were paired?

A. There was a lot of -- a lot of conversations that were

happening, but it was very clear that the Democrats wanted

Dennis Kucinich to be the one that was out.

MR. FRAM: Objection. Foundation. Hearsay.

JUDGE BLACK: Very well. The objection's lodged.

Q. And how did you know that?

A. I was getting feedback from a number of mechanisms, a

number of people that were having conversations with the

Democrats or with other party leaders.

Q. And who were those people?

MR. FRAM: Your Honor, I'll object, again. The

witness keeps talking about, There were these conversations,

something about, The Democrats thought. Move to strike. I can

have a standing objection keeping in that direction so as not

to disrupt the testifying. But he keeps testifying about these

conversations existed out there about the Democrats.

JUDGE BLACK: It sounds like hearsay.

MR. FRAM: Well, hearsay, Your Honor.

MR. STRACH: It may be or may not be.

JUDGE BLACK: Yes.

(Judges confer privately.)

JUDGE BLACK: The objection has been lodged. It's

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been noted. It will be addressed post-trial. If you want to

do anything to change the circumstances of the objection,

you're welcome to.

MR. STRACH: All right. Thank you, Your Honor.

Q. Who were those specific people that you were talking to

that were giving you this feedback?

A. So I was talking to a number of people. I was talking to

Bob Bennett, the former chairman of the Ohio Republican Party,

who had been the chairman twice and had some incredible

relationships with former Democratic chairs and also some of

the county chairs and individual members. So he was an

invaluable resource.

Q. All right. And did Bob Bennett then discuss these things

with you personally?

A. Yes.

Q. And did Bob Bennett's conversations that he was relaying to

you impact how you drew the lines?

A. Yes. And it was consistent with the feedback I was getting

from other sources as well.

Q. All right. What did the -- did the pairing between

Representative Kucinich and Representative Kaptur, did it

change in any way over the course of the map-drawing process?

A. It did, significantly.

Q. In what way?

A. Well, in the original map, great care was taken to try to

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make it -- I guess I'd use the term fair. But basically you

had a congresswoman whom had a significant part of her district

from the previous decade in the Toledo area in Lucas County,

and Congressman Kucinich who had a significant population from

western Cuyahoga County. And so we were trying to put about --

make the district as close to 50 percent from both of their

home areas as we could. And then the area in between it that

they, neither of them, had ever represented, you know, was kind

of neutral territory. So it was the same approach we took with

the Republican pairing.

Q. And with respect to the Democratic pairing, is that how the

final map ended up?

A. No, it was changed significantly in 369.

Q. In what way, in general?

A. Well, there were a lot of requests from the legislative

Democrats and people around Congresswoman Kaptur --

MR. FRAM: Objection, Your Honor. Hearsay about

requests from these other Democrats.

A. That --

JUDGE BLACK: Excuse me. We're going to lodge the

objection and deal with it. Why is it not hearsay?

MR. STRACH: Well, Your Honor, likely a lot of this

will be not used for the truth of the matter asserted but goes

to intent, why the lines were drawn the way they were drawn.

JUDGE BLACK: Well, we look forward to the competing

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objections. You may proceed.

MR. STRACH: Thank you, Your Honor.

Q. So let me go back to that question. How did the district

itself, the one in which Representative Kucinich and

Representative Kaptur were paired, how did that district itself

change by the time the map was -- by the time 369 was enacted?

A. Yeah. So there were significant additional territory in

Lucas County, a number of Toledo wards that were added to the

district so that the population of Toledo would be increased.

There were a significant number of wards of -- well, maybe not

as significant, but a number of wards in Cleveland that were

removed from the district so that there would be less

population from the Cleveland area in the district. And then

the connections in between were significantly reduced in their

population, that kind of neutral territory, specifically in

Lorain County where another district was brought up to be

assigned that territory so that the balance could be shifted

over to Congresswoman Kaptur's historic district.

Q. Okay. All right. And did you make this decision on your

own to do this?

A. No, it was with all the feedback that I was getting from

all those sources.

Q. All right. So did Bob Bennett give you any feedback that

caused you to redraw the CD9 in that manner?

MR. FRAM: Objection. Hearsay.

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JUDGE BLACK: Very well.

A. Yes.

Q. Okay. And with respect to Mr. Bennett, is he still alive

today?

A. He is not.

Q. And when did he pass?

A. A few years ago.

Q. Did anyone else give you any information that caused you to

change that congressional district in that manner?

A. Yeah, in conversations with President Niehaus, who was one

of the two principals, I was getting feedback from -- from him

that was consistent with what was being told to me by Bob

Bennett.

MR. FRAM: Objection. Motion to strike. A statement

about what was consistent or not as to the content. Hearsay.

JUDGE BLACK: Noted.

A. Also from Representative Batchelder, Speaker Batchelder, he

was providing the same feedback that that was the intent in

order to get additional votes from the Democrats and the

Democratic delegation, those are the changes we have to make.

MR. FRAM: The same objection, the same motion to

strike.

JUDGE BLACK: Very well. Noted.

MR. STRACH: We will certainly consent to a standing

objection if that's appropriate.

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MR. FRAM: We would be delighted if we could, I just

don't know where the questions and answers are going. So I'm

happy to minimize disruption, but the questions keep coming in

different places on these statements by others.

JUDGE BLACK: Give me a minute.

White noise.

(Judges confer privately.)

JUDGE BLACK: The white noise off.

I thought I ordered something symphonic. We're still

working on that.

Plaintiffs' counsel, if the defense elicits testimony that

somebody outside of court said something other than the

witness, the Court would grant you a standing objection to

those. Does that help avoid the need to continue stating

objections on a regular basis?

MR. FRAM: Yes, Your Honor.

JUDGE BLACK: It helps?

MR. FRAM: It does.

JUDGE BLACK: You have that standing objection.

MR. FRAM: Thank you, Your Honor.

JUDGE BLACK: Very well.

MR. STRACH: Thank you, Your Honor.

JUDGE BLACK: I think that was your idea.

MR. STRACH: That was my idea.

THE COURT: I hate to credit you.

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MR. STRACH: Every now and again I have a good idea.

JUDGE BLACK: All right.

MR. STRACH: All right. Thank you, Your Honor.

Q. Mr. DiRossi, I'm going to put the final map -- we're going

to display the final map, because I want to talk about some

specific aspects of the map. And I think it will be helpful to

you and the Court to actually see it.

MR. STRACH: So if we could put up Defendant's Exhibit

1. 

And, Your Honor, I think, just because I'm a little old

school, I think it may also help to have a physical copy.

JUDGE BLACK: Okay.

MR. STRACH: So I'm going to hand a copy to counsel,

the witness and the Court, if that's okay.

JUDGE BLACK: Very well.

MR. STRACH: And I am going to avoid --

JUDGE BLACK: You're familiar with what your deputies

have been doing all week.

MR. STRACH: I do have a height advantage, though.

That might be better.

Q. All right. Mr. DiRossi, you've got it on your paper, on

the screen. Let's just focus in on Congressional District 9.

Can you describe to the Court where that district is on this

map?

A. Yeah. It's the district that starts in Lucas County in

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Toledo and moves east and ends up on the west side of

Cleveland.

Q. All right. And so you were describing how the district

changed in the final House Bill 369. Now the Court's got this

in front of them. Can you explain that again with reference to

the map?

A. Sure. So, as you said, this is the -- this is the map that

became law. But in the original map there was a significant

population in Lorain County that was also part of the 9th

Congressional District, which was removed to make the district

lighter in population and need to grow. It picked up

significant population in Lucas County, and it lost population

in Cleveland. 

And so, basically, where we had originally designed this to

be kind of teeter-totter that was evenly balanced between

Congresswoman Kaptur and Congressman Kucinich, the effect of

the final map was really kind of tilting the teeter-totter to

Toledo, so that there was much more Toledo in it and less --

less Cleveland.

Q. And did that have a practical effect on the shape of the

district?

A. It did. It made it a little more elongated, but it also

made it a lot thinner.

Q. All right. Okay. We're going to keep this display and

keep your map out for the next few questions. Did you receive

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any feedback from Democrats regarding what should be done with

Montgomery County in the final map?

A. Yes.

Q. First, tell the Court what you did, and then we'll talk

about who told it to you.

A. Okay. So in the original map, Montgomery County was split.

There was a significant portion of Montgomery County that was

in the 10th District. And there was also the 8th District that

came around through Miami County down into Huber Heights and

Riverside area on the northeastern quadrant of Montgomery

County.

The Democrats in the legislature said they wouldn't provide

votes for the map unless Montgomery County was made whole. So

what we did in this map was we made Montgomery County whole,

which then required the district to be redrawn, because then it

had too many people, obviously, since -- when we made

Montgomery County whole.

Q. And making Montgomery County whole, what effect did that

have on other districts or the map itself?

A. Yeah. So, obviously, it -- it had, in the previous map, if

I can do this from memory, it had significant populations of

Pickaway County, Fairfield County, and I think one other

county, and those had to go away. So, then, those had to go

into yet another district, which I believe ended up being the

15th, as you see it here on the map. 

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So it kind of created these ripple effects. If we were

moving just a few people, it really didn't matter, but in this

case we were moving, you know, close to a hundred thousand

people, if not more.

Q. Did this change to make Montgomery County whole have any

effect on the Republicans who were paired?

A. Yes. So, as I mentioned, that kind of even teeter-totter

approach that we used in the northern district, we also did

that in this district where Congressman Turner, Republican from

Dayton, and Congressman Austria, Republican, both incumbents,

were paid paired.

The districts were pretty balanced where they would have to

run in a primary and we'd all have to find out who won on

Election Day, but the effect of this map was tilting that

teeter-totter -- if you'll permit me to keep using that -- well

towards Montgomery County. And the effect was that Congressman

Steve Austria then decided not to run.

Q. All right. With regard to the change to the request to

make Montgomery County whole, where did you learn -- who made

that request?

A. Well, it was the legislative Democrats from Montgomery

County.

Q. And who told you about that request?

A. I mean, I heard that from everybody, from Bob Bennett, I

heard it from Tom Niehaus, I heard it from Bill Batchelder, and

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I heard it from some of the other staff people.

Q. All right. And was the information that was relayed to you

the reason why you made the changes to Montgomery County and

the resulting changes?

A. Absolutely.

Q. All right. Let's focus now on District 11 in this map.

Could you orient the Court to where District 11 is, CD11?

A. Oh, I'm sorry. I thought you were talking to him.

Oh, yeah, it's the northeast Ohio districts. It starts

into Cuyahoga County and works down into Summit County.

Apologize.

Q. Is this the district that had been historically a

majority-minority district?

A. It is.

Q. Okay. And who was representing this district at this time?

A. It was Congresswoman Fudge.

Q. All right. What input from Democrats did you receive

regarding Congressional District 11 during the map-drawing

process?

A. So this is, as I mentioned when we were just getting ready

to get started, this is one of the areas where I was very

focused that this was the only district in the map that was a

majority-minority district, and so I wanted to take great care

to make sure the district was drawn the way that the incumbent

wanted it. 

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And so I -- I remember preparing -- I did prepare two maps:

One of these districts that was primarily drawn in Cuyahoga

County, and another map that was basically the one before us

that went down into Summit County. And they were submitted

through a number of channels to get to Congresswoman Fudge for

her review.

MR. FRAM: Objection, Your Honor, to separate from

hearsay. There's a foundation question here about any contacts

that the witness has ever had with Congressperson Fudge or any

members of her staff.

So if there's -- there can be a standing objection on

any -- any foundation as regards contacts with the Democrats,

that could avoid the need for additional foundation objections

and motions to strike.

JUDGE BLACK: Are you comfortable with that?

MR. STRACH: That would certainly be fine with us,

Your Honor.

JUDGE BLACK: Very well. We'll proceed in that way.

A standing objection as to foundation.

Q. So you just mentioned a minute ago you prepared, if I heard

you correctly, you prepared two maps of Congressional District

11, one entirely within Cuyahoga County and then one that went

down to Summit; is that right?

A. That is correct.

Q. And why did you prepare those maps?

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A. Well, the initial thought was to see if we could draw a

district in Cuyahoga County that would be a majority-minority

district, and we were up able to do that. And so we were

trying to take great care to do -- to have a majority-minute

district since it's historically, for decades, been that way,

and the only way to do that was to bring the district south

into Summit County. 

And, as I mentioned, one of the things we wanted to do was

make sure that the 11th District was drawn in a way that

Congresswoman Fudge supported. And so the decision was made to

put a couple of alternatives in front of her and have her give

us some feedback.

Q. And who did you give those maps to?

A. I would have given those maps to Bob Bennett, I would have

given them to Bill Batchelder, and I would have given them to

Tom Niehaus.

Q. Did you, in fact, give them to those gentlemen?

A. I did.

Q. And what then came back to you as the result of that

process?

A. What came back was that the district going down into Summit

County was the preferred option.

Q. Who told you that?

A. I heard that from Bob Bennett, but it was confirmed by

conversations with the other principals.

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Q. With Speaker Batchelder and President Niehaus?

A. Yes.

Q. And did they tell you who they talked to to get that

feedback?

A. I know -- by name I couldn't tell you the names, but I know

Speaker Batchelder had a number of good friends in the

African-American community in northeast Ohio that he was

talking to.

Q. Okay. So when -- when these gentlemen came back to you and

said Representative Fudge preferred the district that went into

Summit County, obviously, you didn't know that as a fact;

right?

A. I took their word for it.

Q. Right. And as a result of what they told you, did that

then cause you to draw the district the way it was drawn in the

final map?

A. Yes.

JUDGE WATSON: Mr. DiRossi, are you saying that

Congresswoman Fudge is the person that okayed the map? Or are

you saying that the preferred map from everybody that Mr.

Bennett, Mr. Niehaus and the speaker spoke to preferred?

THE WITNESS: Your Honor, it was my understanding that

the maps were going to make their way to Congresswoman Fudge.

But, obviously, I was not present for that.

JUDGE WATSON: All right. Go ahead.

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MR. STRACH: Right. Okay.

Q. And did Mr. Bennett or President Niehaus or Speaker

Batchelder ever tell you -- give you any information about why

Representative Fudge or any of the African-American community

preferred the one district over the other?

A. I mean, it was mentioned that the district being retained

as a majority-minority district was important. And also there

was considerable concern of pairing Congresswoman Fudge with

Dennis Kucinich, who was viewed as very formidable and saying

he would run no matter who he was paired against.

MR. FRAM: Your Honor, objection on the term

majority-minority. What does it define when he's talking about

voting age population, registered voters and the like? So

objection. Vague.

JUDGE BLACK: Objection's made.

MR. STRACH: May I?

JUDGE BLACK: You may continue or you may address it

as you choose in terms of your questioning.

MR. STRACH: Thank you, Your Honor. We'll do that.

Q. Are you aware of -- when you say "majority-minority

district," are you speaking of black voting age population or

something different?

A. I'm referring to non-Hispanic black voting age population.

Q. All right. Thank you. Now, were you aware of and part of

the -- let me do it this way.

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After House Bill 319 was enacted, why -- why wasn't House

Bill 319 ever implemented?

A. So House Bill 319 was passed with sufficient majorities in

the legislature to become law, but under the Constitution, it

had to wait 90 days for -- before it could go into effect to

allow the voters to mount a referendum if they chose.

Q. So did that spur any action on your part or the part of the

legislative Republicans with regard to the congressional map?

A. I mean, at the time of the passage of 319, no, we were

shifting 100 percent to the apportionment process, which was

the legislative redistricting, but then it became abundantly

clear that there was an active petition drive and

signature-gathering effort that, if successful, would cause the

map to not go into effect. And then I'm not sure what would

have happened with the timelines for running the next

congressional races.

Q. All right. Did -- during this period when you said it was

becoming clear that the signatures were being gathered, et

cetera, did any negotiations take place between the state

legislative Democrats and state legislative Republicans?

A. Yes. So at some point there was the decision that, okay,

we're going to start working on yet a new -- a new map, which

became House Bill 369. And the Republican legislative leaders

and the Democratic legislative leaders were engaged in

conversations of what changes have we made in order for you to

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RAYMOND E. DiROSSI - DIRECT 5 - 175 

provide votes -- to provide votes to pass the second map.

Q. All right.

MR. FRAM: Your Honor, it's a separate and distinct

foundation objection. This has to not do with conversation

with the Democrats, but conversations with the Republicans.

He's not laid a foundation that he's part of the negotiation

process or who's talking to them about these decisions.

JUDGE BLACK: Very well.

MR. STRACH: That was my next question.

JUDGE BLACK: Go ahead.

Q. Sure. Mr. DiRossi, were you part of the negotiations on a

staff level between legislative Democrats and legislative

Republicans at that time?

A. I mean, any time that they wanted to -- either side wanted

to see something visually or have numbers crunched, I was the

one that was doing it, most likely, but I wasn't the one,

physically, in the room negotiating it.

Q. Right. You were preparing maps to be used for proposals,

et cetera?

A. Exactly.

Q. During this negotiating time period are you -- did you ever

see any of the maps proposed by the Democrats in this time

period?

A. No.

Q. Okay. Now let me focus you back on District 11. Focus you

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RAYMOND E. DiROSSI - DIRECT 5 - 176 

back on the map here.

Were there any effects on other districts that were caused

by drawing Congressional District 11 the way it's drawn in this

map?

A. Yeah. So anybody who knows kind of what was happening in

northeast Ohio, you've got a number of communities that were

experiencing significant population loss. You've got the loss

of two congressional districts which required the districts to

grow by 80,000 people, maybe even more. And so by pairing or

bringing the 11th District from Cuyahoga down into Summit

County, really kind of split northeast Ohio with a significant

population to the east and a significant population to the

west. So that ripple effect, you kind of see it in how some of

the other districts are curling around the 11th District.

MR. FRAM: Objection. Foundation. Lay opinion on

demographic changes.

JUDGE BLACK: Very well.

MR. FRAM: Not established with -- unless this is

offered for the truth.

Q. Mr. DiRossi, did you, in fact, draw this map?

A. Yes.

Q. Did the shape and location of Congressional District 11,

from a map-drawing perspective, have any impact on any of the

incumbents in that area of the state?

A. Yeah. In conjunction with the population shifts that were

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happening, we had two -- two congresspeople who were living

very close together who ended up being paired in the district

as well, which was necessary because of the new District 3 that

was being created in Franklin County.

Q. And did you recommend that pairing, from a map-drawing

perspective, yourself?

A. I think a number of us came to that conclusion that because

of the population shifts and the way that 11 was being put into

the map, that that was going to be necessary.

Q. All right.

All right. Let's now focus on Congressional District 3,

which is in Franklin County. Did you become aware of any input

from Democrats regarding the shape and location of that

district?

A. Yes.

Q. What was it?

A. So, as I said, one of -- kind of when you look at the map

and it's blank, one of the things that was kind of an

overarching goal of the map was to create a new district in

Franklin County that might be able to elect a second member

from the minority to Congress from Ohio for the first time

ever.

And a number of people, including myself, who had worked

with and in and around Joyce Beatty, who was not a

congresswoman at the time, thought she would be an ideal

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candidate for that. She had indicated -- both her and her

husband Otto had indicated that they would be interested in

running in that. So there was a lot of back and forth with

them about creating the district there. And then ultimately it

had to be changed to meet some of her requests in the final

map.

Q. And you said there was back-and-forth. Who was the back

and forth between?

A. The same people, although with Franklin County there were

some other people involved. I was talking to Bob Bennett, my

legislative leaders, but I know there were other people having

conversations with her and Otto, her husband.

Q. All right. So you had --

MR. FRAM: Objection. Vague as to some people, same

people and so forth.

JUDGE BLACK: Very well.

Q. So with respect to your conversations with Bob Bennett, did

you receive information from Bob Bennett about drawing a

district -- drawing this district for Joyce Beatty?

A. Yes, that she was interested in running, and, with some

modifications, you know -- there were modifications to the map

that she wanted to see.

Q. All right. And what, specifically, did Mr. Bennett tell

you he knew about what she wanted in that district?

A. So there was considerable concern that Mary Jo Kilroy, who

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was a -- I believe a former commissioner for Franklin County

but had also been a member of Congress, would consider running

against her for this district. And so they wanted to make sure

that her residence was physically not in the district. And

then Joyce Beatty, before she was Congresswoman Beatty, had

worked for Ohio State University. And so the request was that

she wanted the district to have certain property of Ohio State

University in the district so she could represent her previous

employer.

Q. And to be clear, was this information you were receiving

from Mr. Bennett?

A. Yes.

Q. And was Mr. Bennett telling you he was receiving this

information from Ms. Beatty?

A. In -- not exclusively, but I think conversations with her

and also her husband Otto.

Q. Okay. Can you describe for the Court any impact drawing

District 3 in this manner had on other districts and on the map

itself?

A. Well, obviously, it's a new district of Franklin County.

In the previous decade, the map that I helped produce, there

were three districts as well, but none of them were completely

contained within Franklin County like this one was. So that

did create an outward pressure for the other districts, which

kind of shows why the -- both the 12 District and the 15th

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District become more sprawling districts than just traditional

central Ohio districts.

Q. All right. And do you know this because you were the one

drawing the map?

A. Yeah. Yes.

Q. Did you ever refer to this district's Congressional

District 3 as a sinkhole?

A. No.

Q. Did you ever hear anyone in the state legislature, either a

member or a staff member, refer to CD3 as a sinkhole?

A. Never.

Q. Did you ever refer to any group of voters as dog meat?

A. I'm sorry. As --

Q. Dog meat.

A. Dog -- no.

Q. Did you ever hear anyone do that?

A. No.

Q. Can you tell us what the vote was on HB 369?

A. Yeah. So just by way -- I know that's a very simple

question, but for 369, there were two votes by the House and

two votes by the Senate. And the reason for that is that the

bill was passing as an emergency measure so that it would go

into immediate effect. So we avoided that problem of the

timelines for the election could be preserved and there could

be adequate time for people to file their candidacy petitions

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and all that.

So the House -- the House vote on the emergency clause was

78 to 16. It was pretty lopsided. And the vote on the bill

later, subsequent to that, was 77 to 17.

Q. All right. With regard to the emergency clause vote that

was 78 to 16 in the House, do you know how the Democrats voted?

A. I believe that -- in the House, specifically, you're

asking?

Q. Yes.

A. Yeah. I believe 22 of the 40 members of the Democratic

party in the House voted for the emergency clause.

Q. And then the vote on the bill itself as an emergency, what

was the Democratic vote on that?

A. Twenty-one of 40. A majority of them.

Q. All right. And then on the emergency clause, do you know

what the vote was in the Senate?

A. Yeah. Even more lopsided. So it was 29 to four.

Q. All right. And do you know what the vote was in the Senate

for the bill itself?

A. It was 27 to -- let's see. Twenty-nine to four and 27 to

six.

Q. All right. And of the vote on the emergency clause in the

Senate that was 29 to four, what was the Democratic vote?

A. You're testing my memory. I believe of the ten members of

the Senate, there were Democrats, six of them voted for the

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emergency clause.

Q. All right. And then how many -- of the ten Democrats, how

many of them voted for the bill itself?

A. Four.

Q. Okay. All right. Let me focus your attention now on other

issues. We're going to keep the map up because we're going to

be looking at some counties, et cetera. But I want to focus on

just other -- I'm just going to call them, quote, "political

issues," and that's how I'll style this section of our

discussion.

Were there any issues in Mercer County that affected how

you drew any district?

A. Yes. So if you look at the final map, there's obviously

three congressional districts that come together in Mercer

County. There was a member of the legislature who resided in

Mercer County. He was very passionate about where the district

boundaries should be and what territory should be in which of

those three congressional districts. So we spent a decent

amount of time looking at that issue.

Q. All right. And are you familiar with a company called

Timken?

A. I am.

Q. Was there any issue involving Timken that affected the map?

A. Yeah. There was a request very late to make sure that the

Timken headquarters was included in, I believe, the 16th

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Congressional District.

Q. All right. Were there any examples of requests like that

from any other Republicans or Democrats?

A. Yeah. So we mentioned the request in the 3rd District

about having Ohio State inside the district. There was also --

I remember, specifically, dealing with the 9th District with

Congresswoman Kaptur. There was a request to make sure -- or

to change the district so that the NASA Glenn Research Center

in Cleveland, I think it's the Brookpark facility, and also the

Plum Brook Station in Erie County, which was kind of like their

satellite research station, to make sure that both of those

facilities would end up in the final version of the 9th

District.

Q. And how did you learn of that request?

A. Through Mr. Bennett.

Q. Okay. And was that request the reason -- well, let me ask

you this. Did those facilities end up being drawn into

Representative Kaptur's district?

A. They both were, right. I think she was -- I think she was

either on the Armed Services Committee or she was hoping to be

on the Armed Services Committee, and I was being told that that

would be very positive for her to represent those areas, and it

would be good for us to have a high-ranking member representing

those areas --

Q. And was this information you were being told by Mr. Bennett

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the reason why you drew the district to include those

facilities?

A. It is.

Q. Was there any issue with the city of Loveland?

A. Yeah. A little closer to where we are.

So at the time Congresswoman Schmidt lived in Loveland.

But Loveland splits both the Clermont County border and the

Hamilton County border, and she specifically lives in the

Clermont County piece of Loveland. And she wanted all of

Loveland to be in her district. So we had to go over the

border of Hamilton County and take the Hamilton County piece of

Loveland and put that in the 2nd District to accommodate that

request, which we also did.

Q. All right. And who did you get that request from?

A. I think that came from the folks in D.C.

Q. Okay. Which folks?

A. I think that was Tom Whatman.

Q. And is the -- and, in fact, did you make that change in the

map?

A. That change was in the map, yes.

Q. And did you make that change because of the request relayed

to you by Mr. Whatman?

A. Yeah. So I obviously had to a chat with the president of

the Senate and Speaker Batchelder, but it was my recommendation

that that was a fair request to make and is something that we

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could easily accomplish. So we did it.

Q. All right. And just to be clear, at the end of the day, if

you made a change, did you have to get it approved?

A. Yeah. I had to. I mean, I was constantly -- maybe not

daily, but I was going back to Mr. Niehaus and the -- and

Speaker Batchelder. I mean, they were the ones that ultimately

they had to get the votes in the legislature. So while they

were giving me great freedom to have these conversations and

make changes, they ultimately had to be comfortable with it

that they could produce a bill that would get their necessary

votes.

Q. All right.

MR. STRACH: Let me ask if we can pull up Intervenors'

Exhibit 72. And if we can go to page two.

Q. Mr. DiRossi, if you can look on the screen, we've got an

exhibit that's going to have a series of maps regarding each of

the districts. And it represents that -- it shows the changes

from HB 319 to HB 369 for each district.

Let me ask you this to begin with. Are you familiar with

the districts as they were contained in House Bill 319?

A. Yes.

Q. And are you familiar with the districts as they were

contained in House Bill 369?

A. I am, yes.

Q. And are you aware of the changes that occurred between the

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two?

A. I am.

Q. All right. Let's focus on a few of these, and we're going

to start with Congressional District 1.

From your -- based on the information in your -- that

you're aware of based on your role in drawing this map, why was

Congressional District 1 drawn the way it was drawn?

A. Yeah. So the first thing I'd point out is a little bit of

history. So in the previous decade, in '01, where I was

extremely involved in that process, the district was a

significant portion of Hamilton County. But it also included

four townships in the southwestern part of Butler County. So

at the end of the day, it had part of Butler County and part of

Hamilton County in the district.

The intention this time was to try to have one whole county

in the district somehow. And I know I played around with the

math that you couldn't draw the district entirely in Hamilton

County because the population of the county was too large to

contain just one district. So by putting all of Warren County

in the district and then providing the rest of the district

down to zero population with Hamilton County, that's what we

were able to do.

Q. All right. And can you -- the decision to include Warren

County in this district, based on what you've testified, did

that impact the shape of the district in Hamilton County?

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A. Yes. Because in order to have most of the west side and

Cincinnati in the district, but also connect to Warren

County -- sorry, I'm not speaking into the microphone -- you

had to come across the northern area of places like Evendale

and some of the other Springfield Township northern places to

connect them, and it had to, obviously, be contiguous.

Q. Okay. All right. And just for the Court's information,

the legend on this map -- and it will be on every map -- if

there's an area shaded in red, that was dropped from 319 to

369. If it's in green, it was added from 319 to 369. And, of

course, if it's in yellow, it was common to both maps. So, for

instance, Mr. DiRossi on this map, do you recognize the area

shaded in red as an area that was dropped from 319 and 369?

A. Yes.

Q. And do you recognize the area shaded in green as an area

that was added to 369?

A. Yes.

Q. Okay. All right. Let's look at the next page,

Congressional District 2. Mr. DiRossi, does this page of the

exhibit look like a fair rendering of the changes from HB 319

to HB 369 in Congressional District 2?

A. Yes.

Q. And based on your knowledge and role in the map drawing of

this map, can you explain to the Court why these changes were

made?

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A. So not so much of what you see on the screen, but just to

the north of this is the string of counties: Montgomery,

Greene, Fayette, Pickaway, Hocking, that line. And as I

mentioned before, there was a request from the legislative

Democrats to make Montgomery County whole. And, obviously,

that included -- or caused a lot of population to move westward

in that district. So it -- some of these areas then had to be

assigned to other districts. So this is kind of a ripple

effect in that change.

Q. All right. All right. And let's look at Congressional

District 3, the next page.

Mr. DiRossi, does this image appear to be an accurate

rendering of the changes to Congressional District 3 from House

Bill 319 to House Bill 369?

A. Yeah. Obviously, a lot more change is going on here than

in some of the previous maps, but yes, it does. It is.

Q. All right. And can you explain why these various -- in

general, these changes -- you've got a lot of green areas that

were added, you've got some red areas that were dropped. Based

on your knowledge and participation in the map-drawing process,

do you know why those changes were made?

A. Yeah. These were the ongoing conversations with then --

then non-Congresswoman Joyce Beatty about what her preferences

would be. And I would just point out that anybody who knows

the geography of the state, we happen to be looking at the

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poster child of some of the worst geography in the state. And

so Franklin County looks a little bad to the eyes, but that is

because of the geography, because of just decades of annexation

policy, you have townships and township fragments scattered

throughout this county. You see it a little bit in Hamilton

County. Cuyahoga County is pristine, but that's -- that's

what's going on here.

Q. And when you say the "geography," give the Court a little

bit of an idea of what you mean by "geography."

A. Yeah. So when I was working on the maps, you're looking at

the layers of the geography in the state. You're obviously

looking at counties and then political subdivisions, whether

it's a city or a township, and then the wards thereof, the

precincts thereof. And then for congressional, you're down

into the census blocks. They try to balance out to zero

population.

But in a lot of those major urban areas like Cuyahoga, for

example, every township -- and there's only a small handful,

but all of the cities have borders that just don't overlap

others. In Hamilton County, you start to see some of the

townships that are fragmented and have non-contiguous pieces,

but in Franklin County it's just awful.

I believe the example that I used in a previous deposition

was that Franklin Township in Franklin County itself is in over

30 pieces that are just non-contiguous pieces of just where the

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city of Columbus has not annexed it. So when you're drawing

these and you're trying to -- you almost would have to try to

assemble Humpty Dumpty back together again after it's been just

shattered.

Q. All right. And let's look at Congressional District 4, the

next page. Mr. DiRossi, does this appear to be an accurate and

fair rendering of the changes to Congressional District 4 from

House Bill 319 to HB 369?

A. Yes. Yes, it does.

Q. All right. And can you explain to the Court, in general,

the reasons for the green being added and the red being taken

away?

A. Yes. So my objective in drawing this district was I had to

get another district up towards Lake Erie in order to make the

9th District tilt more to Toledo. And so you can see the 4th

District is dropping a significant portion of population in

Clark County, it's dropping a smaller population in Hardin

County, Wyandot County, Huron County, and also in Toledo. And

that's bringing that up to go up into Lorain County so it can

still balance, but also then allows the 9th District to shift

more over towards Toledo, which was a previous objective of

mine that I talked about. So significant changes here.

Q. All right. Let's go to CD5, the next page.

Mr. DiRossi, does this appear to be a fair rendering, an

accurate rendering of the changes to CD5 from House Bill 319 to

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House Bill 369?

A. Yes.

Q. And can you explain, from a general perspective based on

your knowledge and participation in the map-drawing process,

what these changes are?

A. Yeah. Another piece of the puzzle in order to -- back to

the 4th and the 5th District out of Lucas County a little bit

so the 9th could have more of Lucas County. And then,

obviously, you see the green areas where then it had to add

population in order to balance. So this is another offshoot of

what happened from the negotiations to get the votes on 369.

Q. All right. Let's look at CD6, the next page. Mr. DiRossi,

does this appear to be a fair and accurate rendering of the

changes, if any, to Congressional District 6 between House Bill

319 and House Bill 369?

A. It does in that there are no changes or maybe there is --

there is a possibility at Muskingum County there was literally

one person added to the district because of the -- having to

balance the districts to the person that just doesn't show up

here because it's so small.

Q. All right. You're referencing the zero deviation

requirement.

A. I am.

Q. All right. Let's look at Congressional District 7, the

next page. Mr. DiRossi, does this appear to be a fair and

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accurate rendering of the changes to Congressional District 7

between House Bill 319 and House Bill 369?

A. It does.

Q. And based on your knowledge of the -- and personal

knowledge and participation in the process, can you explain

what these changes were from?

A. So, yeah, we've -- so this is the other end of the

spectrum, on the eastern side of the 9th District. Obviously,

this district, District 7, had to back out of Lorain County so

the 4th District could come up and take that population. So

most of the district all the way from Stark County up towards

the lake was unchanged, but those were the changes that were

being done to free up population to change the 9th.

Q. All right. Then let's skip a page and go to -- and go to

Congressional District 8.

Mr. DiRossi, does this appear to be a fair and accurate

rendering of the changes to Congressional District 8 from House

Bill 319 to House Bill 369?

A. Yeah, exactly. So when we had to make Montgomery County

whole, this was the 8th District that to be backed out of

Montgomery County so that it could be made whole in the 10th.

So that's the big red chunk of population in northeast

Montgomery County. 

And then, obviously, the district then was light and needed

to add population. And so we were able to make Clark County

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whole, which was something we weren't able to do in the first

map.

Q. Okay. Let's look at Congressional District 9.

Mr. DiRossi, does this appear to be a fair and accurate

rendering of the changes to Congressional District 9 between

House Bill 319 and House Bill 369?

A. Yeah, it's really -- yes, it is.

Q. All right. And I believe you've explained these changes,

but could you just explain to the Court, based on your personal

knowledge and participation in the map-drawing process, what

the red and the green represent here?

A. Yeah. So this is really a good summary of all of those

districts we just talked about, the 4th, the 5th, and the one

that started in Stark County that we just talked about. You've

got the district adding population in Lucas County, green; and

you've got the district losing population in Cuyahoga County,

red; and also losing population in the connections between them

so that it could, as I said, the teeter-totter could be tilted

towards Lucas County.

Q. Well, all right. All right.

MR. STRACH: Can we skip one page and go to Inset B,

please.

Q. Mr. DiRossi, does this -- does it appear to be part of the

District 9 that we were just looking at, just blown up a little

bit?

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A. Yeah, this looks like a zoom-in on that previous map, yes.

Q. All right. There's been some testimony about a particular

township in this case called Florence Township. Do you see

Florence Township on this part of the map?

A. Thank you. Yes, I do.

Q. Okay. To your knowledge, based on your personal knowledge

and participation and drawing these districts, was Florence

county -- was Florence Township split in any way?

A. Not intentionally, no.

Q. But was it split?

A. I didn't split it. This would have been an easy assignment

that, again, with the layers that I chose, I would have taken

the township boundary and I would have assigned it to the 4th

District in its entirety. So that was my intention.

Q. And is that what you did?

A. Yes, that's exactly what I did.

Q. All right. Let's skip one page and go to District 10.

Mr. DiRossi, does this appear to be a fair and accurate

rendering of the changes to District 10 from House Bill 319 to

House Bill 369?

A. Yes. Yes.

Q. And based on your personal knowledge and participation in

the map-drawing process, can you explain what changes were

being made here?

A. Again, Montgomery County being made whole caused a

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significant spike in population in the district. And so we

started over on the east side and just got rid of territory

until we could balance out the district somewhere in Fayette

County where we had to go down to the census blocks and balance

it out.

Q. All right. Let's go to the next page, Congressional

District 11. Does this appear to be a fair and accurate

rendering of the changes, if any, to Congressional District 11

from House Bill 319 to House Bill 369?

A. Yeah. Throughout -- throughout this process of 319 and

369, there were a lot of requests that were coming to us from

the legislative Democrats. There were none for Congressional

District 11, so there are no changes. I think we got it right

the first time.

Q. All right. Were you aware of any amendments that were

proposed in the legislative process to change District 11?

A. I -- I think there -- there was an amendment proposed on

the floor of the Senate, but I do not believe that it was

specific to 11. I think it made a number of changes.

Q. All right.

A. But there were none that were presented to me throughout

the process to consider to change 11.

Q. All right. Let's look at the next one, CD12. Does this

appear to be a fair and accurate rendering of the changes to

Congressional District 12 from House Bill 319 to House Bill

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369?

A. Yes.

Q. All right. And could you explain to the Court what the red

and the green represent on this slide?

A. So, obviously, the changes in Franklin County were changes

that were all population neutral that were being made because

of the changes that had been requested on the 3rd Congressional

District. But I know it's far away from Lake Erie, but this is

where you see the ripple effect come all the way down into

southeastern Ohio. 

In order for the 4th District to get up into Lorain County,

one of the places that had to lose population was in Marion,

and -- Marion County. And so, obviously, the district then

needed to add population. And so we added population in

Muskingum County to balance it out. Even though it's, you

know, a hundred miles away, that's the ripple effect through

the map when you make one of those significant populations

changes.

Q. All right. And let's skip one page and go to Congressional

District 13. Does this appear to be a fair and accurate

rendering of the changes to, if any -- to Congressional

District 13 between House Bill 319 and House Bill 369?

A. It does, yes --

Q. All right.

A. -- in that there are none.

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Q. Okay. No changes.

And let's look at Congressional District 14. Does this

appear to be a fair and accurate rendering of the changes, if

any, to Congressional District 14 between House Bill 319 and

House Bill 369?

A. Yes. And, again, because the 11th District wasn't changing

in this process, these are two districts immediately to the

east of that. So when 11 didn't change, there was no reason

and no request from the Democrats to change these districts, so

they did not change.

Q. All right. Let's look at Congressional District 15, the

next page. Is this a fair and accurate rendering of the

changes to the Congressional District 15 between House Bill 319

and House Bill 369?

A. Yes.

Q. And what's going on here with the red and the green?

A. Yeah, so you've got -- you've got kind of -- again, it's

the changes to the 10th District in Montgomery, Greene and

Fayette County that are causing a lot of this significant

contraction and compactness of this district. And then also

you have the changes that were happening in the 3rd, but those

were pretty localized to Franklin County.

Q. All right. And then, finally, let's skip one and look at

Congressional District 16. Does this appear to be a fair and

accurate rendering of the changes to Congressional District 16

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that were made between House Bill 319 and House Bill 369?

A. Yes.

Q. And can you explain these changes?

A. Yeah. Not -- not significant, but we were adding a

little -- we were helping out the problem in the 9th a little

bit with the changes up in northeastern Ohio by adding some of

the green territory to the northern part of the 16th that was,

you know, able to effectuate the change in the 9th that we

wanted to see. And then just the red, kind of, was just

balancing out the rest of that.

MR. FRAM: All right. Your Honor, at this time we

would move the admission of Intervenors' Exhibit 72.

JUDGE BLACK: Any objection?

MR. FRAM: Your Honor, we're going to put in our

objections post-trial after we evaluate what the foundation --

his testimony is consistent with his recollection about the

changes. That's his testimony. But for the actual creation of

the exhibit, we'd like to see more of a foundation, because the

witness did not create these maps.

JUDGE BLACK: It's admitted conditionally.

(Intervenors' Exhibit 72 was conditionally admitted.)

Q. Mr. DiRossi --

MR. FRAM: We can take this one off the screen.

Q. -- you mentioned earlier the unified index that you

created. Do you remember that?

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A. I do.

Q. Why did -- why did you create the unified index and what

did you use it for?

A. So as I mentioned, I had created a unified index in the

previous decade, but the thing that I found fascinating was,

after the maps were rolling out, we were just inundated with

requests from everybody -- members of the media, members of the

press, Republican members of the legislature, Democratic

members of the legislature, congressional members -- everybody

was asking for indexes. And so I took great care in trying to

be a little bit more prepared this decade through to prepare

those documents in a concise way so when I inevitably would be

asked questions about it, I didn't have to fumble around. I

had some sheets that kind of had all -- could answer those

questions.

Q. And did you have the unified index in the Maptitude

software -- let me establish that. 

Did you use Maptitude as the software for drawing the map?

A. In this most recent decade, yes, that's what we used.

Q. And was the unified index included in that Maptitude

software as you were drawing districts?

A. Yes, it was.

Q. All right. Was there any other information that was in the

software that you could look at in the process?

A. Yeah. So maybe just describe how I set up my computer.

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Q. Yes.

A. I had two -- two big screens, and on the left screen I had

all of my data. And so I had the population of each of the 16

districts for the congressional piece, obviously, deviation

from population, the African-American voting age population,

the non-Hispanic voting age population, the Hispanic voting age

population. And then I also had the unified index. And then I

also had a number of other pieces of -- because everybody was

saying, Well, your index is not what I want to know. I want to

know this. So I had some other ones as well on there. And

that was all on my left screen. 

And then on the right was all the geography. So whenever I

would make a change on the right screen, all of that would

automatically change, you know, by itself.

Q. Okay. And were there other political indexes out there at

this time that you were aware of?

A. Yeah. So a lot of people -- again, we're dealing with

federal districts for congressional districts, unlike the

legislative districts. So a lot of people were saying, You

can't use your unified index. You've got to look at just the

presidential results. Pull up -- presidential results are the

indexes you should be looking at. So that was one big camp

that said those were the indexes to use. I chose to use the

unified index.

Then there was the folks with either the -- the D.C. folks,

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RAYMOND E. DiROSSI - DIRECT 5 - 201 

Republican or Democrat, who had their own system. I don't know

how to calculate it, but I refer to it as the D+1, D+2, R+1,

R+2 system, which I never figured out how to get that into my

software. So that's something that I always had to get from

other people. I could never calculate that on my own.

And then there were still other people, Jim Slagle with the

Ohio Campaign for Accountable Redistricting. I talked to him a

number of times throughout the process. He had his own

methodology of races that he wanted to look at. And the list

goes on and on. Everybody had their own opinion about this and

it just seemed that nobody really cared what mine was.

Q. Were there different notions in your experience in the 2011

map-drawing process that -- did people disagree about what a

competitive district was?

A. Absolutely.

Q. And what were some of the different views on that?

A. Yeah, so some people said, If it's anything more than 50

percent, depending on if you're looking at it from a Republican

or Democratic perspective, if it's 50 plus one or 49.99, that

makes it lean one way.

For other people there were plus or minus two percent up or

down. Plus or minus two and a half percent was one, and I

think the Ohio Campaign for Accountable Redistricting even went

as far as plus or minus five percent.

Q. All right. There's been some testimony in this case about

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RAYMOND E. DiROSSI - DIRECT 5 - 202 

the certain splitting that occurred in the map. So let me ask

you this just from the outset. Mr. DiRossi, what units of

geography did you use -- were on your screen when you were

drawing the map that became House Bill 369?

A. Yeah. And apologies for kind of sometimes referring to the

legislative thing, but I was doing these things simultaneously,

and so it's kind of all together. But for the legislative

side, that is a constitutional requirement that you use -- you

build districts with counties, political subdivisions, wards,

precincts thereof. And so that is the unit that I had my

system set up for.

I was able to add, for the congressional piece, census

blocks, and that was the lowest level of geography. And I used

that primarily when I had to achieve zero population deviation.

Q. All right. Did you use census tracts at all?

A. I did not.

Q. Were neighborhoods any unit of geography in your software

or on your computer?

A. They may be something that are in the Unified Redistricting

Database, but I was using political subdivisions, townships and

cities, precincts and wards. That's what I was using.

MR. STRACH: All right. Well, let's display P524.

It's the Niven report.

JUDGE BLACK: You'll tell me when you get to a smooth

breaking point.

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RAYMOND E. DiROSSI - DIRECT 5 - 203 

MR. STRACH: This is -- I've got maybe two questions

left.

JUDGE BLACK: That's smooth.

Q. Let's look at page 27 of Dr. Niven's report. Do you see

that on your screen, Mr. DiRossi?

A. I do.

Q. This was just a line that Dr. Niven -- referred to by many.

Do you know why this line was drawn the way it was?

A. So I'm trying to get oriented. This is in the 3rd

Congressional District, it says?

Q. Yes.

A. I mean, no. I mean, do we -- I don't know if this is a

census block or if this is a precinct. As I mentioned before,

the geography in Franklin County is some of the worst geography

that I'm aware of. So I just don't know what level or layer

this is.

Q. How did you comply with the equipopulation requirement?

A. So it's -- maybe, again, I get to put my budget hat on. It

became just math. It was a numbers game. I mean, you would

construct these districts at the larger geographical units:

Counties, political subdivisions, you know, down maybe to

precincts. And then if you were still thousands of people away

from the target population, I would stay at that level. But if

you found yourself 150 people short, you would be able to look

at the census blocks. And it just became, literally, a math

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RAYMOND E. DiROSSI - DIRECT 5 - 204 

game of, Okay, I need to trade 23 people here for seven here,

because that gets me closer to the target. And you literally

just keep doing that until you achieve zero population

deviation.

It is a mind numbingly, time-consuming process. And, as I

said, when you make one change in one district, it then has to

ripple all the way through. And so it sounds easy, but it's

very, very difficult.

MR. STRACH: All right. Thank you.

Your Honor, we've got no further questions for now.

JUDGE BLACK: Very well. We're going to take a little

longer break today because we need to confer. We will be back

at 3:25. We're in recess until that time.

COURTROOM DEPUTY: All rise. Court is in recess until

3:25.

(Witness temporarily excused.)

(Recess taken: 2:58 PM - 3:26 PM.)

JUDGE BLACK: Please be seated. Thank you. The

witness may retake the witness stand.

But I need to talk to the lawyers briefly. We've

conferred, and what we need to see is where you are on

objections. We've got some spreadsheet that lays them all out

that I don't think has been filed by either side.

Can you file those immediately? We'll look at them this

weekend, and then we'll come back with a plan.

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RAYMOND E. DiROSSI - CROSS 5 - 205 

Is that acceptable to the plaintiff?

MR. FRAM: Yes, Your Honor.

JUDGE BLACK: And the defense?

MR. STRACH: Yes, Your Honor.

JUDGE BLACK: And the intervenor?

MR. LEWIS: Yes, Your Honor.

JUDGE BLACK: We thought the intervenors' suggestion

was helpful. It pains me to say that.

MR. LEWIS: Thank you, Your Honor.

JUDGE BLACK: All right. Are we ready to proceed?

MR. FRAM: Yes, Your Honor.

JUDGE BLACK: Okay. Are we continuing direct?

MR. STRACH: No, Your Honor. I'm done with direct.

JUDGE BLACK: Magnificent.

Cross-examination? 

You're still under oath. You understand?

THE WITNESS: (Nods head up and down.)

JUDGE BLACK: You know what cross-examination is?

THE WITNESS: I'm about to find out.

JUDGE BLACK: Brace yourself.

THE WITNESS: I will. Thank you.

JUDGE BLACK: Very well.

Proceed when you're ready, sir.

CROSS-EXAMINATION 

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RAYMOND E. DiROSSI - CROSS 5 - 206 

BY MR. FRAM:

Q. Good afternoon, Mr. DiRossi.

A. Good afternoon.

Q. I think I was one of the folks in attendance at your

deposition.

A. I recall.

Q. Mr. DiRossi, 1994 until 1995 you worked for members of the

Republican caucus in the Ohio Senate; is that right?

A. In 1994, I had taken a leave of absence from the Senate and

I came back in 1995. So for '94, that's a little distinction.

Q. Okay. I gave you an extra year of job credit. So '95 to

2005, you were working for Republicans in the Senate; is that

right?

A. I worked for a Republican state senator from the Dayton

area, yes, for a number of those years, and then a staff person

in the caucus.

Q. Okay. And 2005 to 2008, you worked for Speaker of the

House Mr. Husted; is that right?

A. Husted, yes.

Q. Husted, I'm sorry.

A. That is correct. 

Q. I apologize. And you said you did some work in 2001 on

redistricting. In that year the Republicans had control of the

General Assembly; is that right?

A. Yes.

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RAYMOND E. DiROSSI - CROSS 5 - 207 

Q. And the governorship?

A. Yes.

Q. And in 2008, you started a business called Capital

Advantage; is that right?

A. That is true.

Q. And through Capital Advantage or as Capital Advantage you

were hired as a fundraiser for the Ohio Republican Senate

Campaign Committee?

A. I was.

Q. And that committee, that runs elections dealing with

Republican Senate candidates and, specifically, raises money

for Republican State Senate campaigns; is that right?

A. Well, the campaign does the elections. I was the

contractor for the money-raising side. So kind of

differentiation of roles. I wasn't involved in the other side.

Q. But you were a fundraiser for the Ohio Republican State

Senate.

A. I was. I am not anymore.

Q. Right. But in that period you were. Okay.

Now, in 2011, you entered into a contract with the

Republican members of -- the Republican members of the

legislative task force; is that right?

A. Yes.

Q. And that contract was effective around August 1; is that

right?

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RAYMOND E. DiROSSI - CROSS 5 - 208 

A. I do not recall the specific date, but that sounds close.

MR. FRAM: And maybe we could put Plaintiffs' Exhibit

102 up on the screen.

Q. Take a quick look at the beginning. Does that look like

your consulting agreement? I don't mean to deny you the

opportunity to look at the whole thing.

A. I was going to ask if my signature was on it.

MR. FRAM: Sure. Let's go to the signature block.

Q. See you're the third signature there. Is that your

signature?

A. Yes.

Q. And that was signed by Mr. Matthew T. Schuler; is that

right?

A. Yes. So, as I spoke of before, the legislative task force

authorized money for the Republican joint caucuses and the

Democratic joint caucuses to hire consultants, equipment and

other things necessary to perform the functions of

redistricting. And then this contract was one of the

expenditures from the Republican side, yes.

Q. So Mr. Schuler, he signed for the Senate side, and Mr. Troy

Judy, he signed for the House side; is that right?

A. Yes. The four chiefs of staff for the four legislative

leaders, two Republican and two Democrat, were authorized to be

the signatories on contracts.

MR. FRAM: Okay. If we can go back to that first page

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RAYMOND E. DiROSSI - CROSS 5 - 209 

of the agreement. If we can go down towards where it says --

let's see here. Down towards consulting payments. Can you

just put that up. Consulting payments.

Q. Was it the case -- okay.

MR. FRAM: Thank you, Stephen.

Q. Was it the case you were paid $75,000, and it was divided

up between two payments, one of 40,000 and one of 35,000; is

that right? For your work.

A. Can you ask that question again?

Q. Sure. This is money -- you were paid to do the map-drawing

work by the Republican members of the legislative task force;

correct? That's -- this is an agreement with the Republicans?

A. Yeah. The only thing, I don't know if it was for the

Republicans, but it was from the Republican authorization.

Q. Okay.

A. Yes.

Q. The Republican authorization -- okay. Mr. Judy and Mr.

Schuler, as the Republican chief staffers, signed this contract

with you; isn't that right?

A. Chiefs of staff, yes.

Q. Chiefs of staff, right. And they had an allocation to pay

you some money, and they paid you $75,000; is that right?

A. Yeah. They didn't pay me, but there -- there was a payment

made from the state treasury.

Q. And the payment was from the Republican allocation of the

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RAYMOND E. DiROSSI - CROSS 5 - 210 

state treasurer; is that right?

A. Pursuant to the bipartisan agreement of the task force,

yes.

Q. Okay.

A. Could I just point out one thing I didn't mention when you

asked your previous question. When I entered into this

contract, I had sought the advice of the legislative inspector

general, and he advised to cancel all of my existing work with

any other entities. 

So I resigned my fundraising duties. And this was other

than a -- I was serving as a board and commission member for

the Ohio Department of Transportation at the time. But I

severed all of my other duties on advice of the legislative

inspector general. And so this was my only contract at the

time. They never overlapped.

Q. Thank you. That was my next question. That was around

August -- you severed around August 4; is that right?

A. That sounds about right, yeah. It was very close to when

this was entered into.

Q. So, basically, in July, you still were doing your

fundraising work, but then starting August you had severed that

arrangement; is that right?

A. It was -- it was very abrupt about whether or not I would

even be involved in this process. That decision was made very

late by the principals. So it happened very quickly.

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RAYMOND E. DiROSSI - CROSS 5 - 211 

Q. I'm just trying to get the time frame right. Do I have it

right that you got a contract August 1, started working on the

redistricting, you severed your ties in August in terms of the

fundraising? And so that's the break, if you say -- like you

said, it was abrupt. There was this abrupt break from

fundraising in the July period to doing the map-drawing

consultancy in August?

A. Yeah. With the only caveat I'd say is I had an assistant

in the fundraising world. And so as it became clearer at the

very end that I was going to be doing this, the duties were

being shifted to my assistant and I was withdrawing. And then

we severed everything.

Q. Right. So putting aside your assistant, you're in the

fundraising world in July, but you're in the consulting

map-drawing world in August, for you, personally? Do I have

that right?

A. Yes.

Q. Okay. Now, we talked about that hotel room at the

DoubleTree. And somebody had to pick which room, literally,

which room to use. Is that something you did with Ms. Heather

Mann, now Heather Blessing?

A. You're referring to the second decade?

Q. In 2011, yeah.

A. Yeah, we went and looked at, I think, four or five

different office spaces that we could use. And we felt

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comfortable -- I felt very comfortable being there because we

had been in the same hotel the previous decade.

Q. All right. And there's a room -- I don't know if you

recall the number. Room 601 rings a bell? 

A. Yeah, I believe that was the room we were in in the second

decade.

Q. Yeah. And you took the hotel furniture out of the room and

you put some computers in; is that right?

A. Yeah. I mean, obviously, the room was set up to be a hotel

room. So there were things in there like desks and beds and a

couple of loveseats that weren't needed, and so we paid a small

fee to have those removed to make it more useful as office

space.

Q. And you had three computers in there, in the room?

A. There were three sets of computers.

MR. FRAM: Why don't we put Plaintiffs' Exhibit 109 up

on the screen, please. You can take a look at this.

Q. Mr. DiRossi, I don't know if you recall this invoice or not

from the DoubleTree.

A. I don't specifically recall it.

Q. Okay. Is it consistent with your recollection -- do you

see there, there's a charge for moving the furniture? Do you

see that?

A. Yes.

Q. The DoubleTree charged $50 to get those loveseats out of

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there? Do you see that?

A. Yeah. And other furniture, yes.

Q. And other furniture. Okay. And you see the date of this

invoice of July 12? Do you see that?

A. I do see that.

Q. Is that roughly -- is that consistent with your

recollection as to when you entered into an agreement with the

DoubleTree as to when you were going to secure this hotel room?

A. I don't know if that's the exact date, but it's around that

time.

Q. Around that. And do you see the -- if you look over here

on the left where it says Quantity, 1, Guest Room, July 17

through October 15, 2011. Do you see that?

A. I do.

Q. Okay. So you were paying for the room to be able to use it

starting on July 17; is that right?

A. I don't recall if that's functionally when we had access to

it, but we needed to start moving some equipment over there

before it was in use, fully in use.

Q. Okay. Were you over there in -- was it in use sometime

between July 17th and the end of the month?

A. I don't specifically recall.

Q. Were you over there during July?

A. I -- July -- it seems likely, if we had signed an invoice

for it, that it was over there, but it wasn't like one day we

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weren't there and magically the second day we were fully

operational. It took time.

Q. Right. And as you've already testified, during July you

had not yet severed ties on the fundraising side; isn't that

right? You were still an Ohio Republican fundraiser during the

time you were setting this room up?

A. Yeah. I don't have -- obviously, I signed a termination

contract, because there was a termination clause in my

contract. If I had that, I would know exactly what day I

severed officially, but I don't recall.

Q. Okay.

A. It may have been a little bit of time before the new

contract was in place. I can't recall.

Q. But in any -- you were doing some work, weren't you,

setting up this room before you severed your ties?

A. Well, with that -- I mean, without that data I just can't

recall that logistical timeline.

(Plaintiff's counsel confer privately.) 

MR. FRAM: I might be able to help you out a little

bit there. Yeah. You were -- this is not a trial exhibit.

This is for impeachment. May I approach?

JUDGE BLACK: Yes.

THE WITNESS: Thank you.

Q. Sir, if you could take a look -- 

MR. FRAM: This document, by the way, it was produced

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in discovery. DiRossi 0000527.

Q. I'll just represent that these -- the numbers that start

with your name DiRossi, that's because we got those from

discovery from you, sir.

Does this help refresh -- this has an August 1, 2011 date

saying that when the termination's effective and a signature,

dated August 4, 2011. Do you see that?

A. I do.

Q. Does that refresh your recollection as to when you

terminated your fundraising work?

A. I mean, it -- it doesn't make me remember it, but I see

that's when I signed it.

Q. You have no reason to doubt that, in fact, you terminated

your fundraising work effective August 1; isn't that right?

A. Right. That's --

Q. So you were setting up this hotel room while you were still

doing the fundraising work; isn't that right?

A. If, in fact, we were setting it up before August 1st.

Q. Otherwise you were paying for two weeks for no reason?

A. Well, I mean, I wasn't the only one with access to it.

There were people that were trying to have the furniture moved

out. That might have taken some time to do. And then there

was computer equipment that had to be purchased and had to be

brought over there and had to be set up. So there were a lot

of things that had to happen before the room actually became

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functional.

Q. Uh-huh.

A. That was all happening very fast. I don't recall those

exact dates.

Q. Okay. Now, you had keys to that Room 601; isn't that

right? Key card?

A. I did, yes.

Q. And Ms. Heather Mann had a key card?

A. Yes.

Q. Okay. And some of the IT people you were working with,

they had key cards, or not?

A. They might have had key cards at the time they were

bringing equipment over, but for the future they wouldn't have

had a key card.

Q. Did Mr. Troy Judy have a key card?

A. I believe so; I believe so.

Q. In fact, Mr. Troy Judy worked on -- you worked on one of

the computers, one of the three you mentioned?

A. I did.

Q. And Ms. Mann worked on one?

A. She did.

Q. And Mr. Judy, did he work on one?

A. When he was there.

Q. When he was there? Okay.

Anybody else work on one of those three computers?

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A. I mean, when you say "work on them," I mean I'm sure there

were other people that viewed the screens, but, really, those

were the three people that would operate -- operate the

machines.

Q. Okay. And is Maptitude up and running on all those

computers?

A. Yes, eventually. Yes.

Q. Okay. Did you need a password to access Maptitude and

access the computers?

A. Yeah. There was a pass -- I mean, there was a screensaver

that I think kicked on to save energy, or whatever. After 20

minutes you needed a password to get into that.

Q. So you had the password and Ms. Mann had the password and

Mr. Judy had the password; is that right?

A. Yeah.

Q. Anybody else have the password?

A. I actually don't know if the passwords were the same or if

we set our own.

Q. Had a password. Fair enough.

A. Yeah.

Q. Anybody else have a password to be able to work those

computers?

A. I don't have knowledge of that.

Q. You don't remember that?

A. No.

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Q. Okay. And you said some other people came on by and would

look at the screens. Let's go through some of the folks who

did that.

Speaker Batchelder come in and look at the screens?

A. He was there occasionally, yes.

Q. Senate President Niehaus?

A. Yes.

Q. Senator Faber?

A. Yes.

Q. A fellow in this courtroom, Mr. Mark Braden, he came by and

looked at and visited the room?

A. On a few occasions.

Q. Yeah. More than one. Any other Republicans you can recall

coming into the room and looking at those screens?

A. Are you talking approximate -- can you -- elected officials

or --

Q. Let's start with elected officials, then we'll talk about

staff. Who else came on over to the hotel room, Republicans?

A. I think Senator Widener. He was one of the senators we

talked about from Clark County. He was there maybe once or

twice.

Q. Uh-huh.

A. Let's see. I believe then auditor of state Yost was there

maybe two or three times.

Q. Okay.

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A. I think Jon Husted was there once. Again, I apologize. I

slipped into legislative redistricting. They were members --

at the deposition we talked about this a lot. They were

members of the apportionment board focusing on legislative

redistricting, and I just confused the two. So my apologies.

Q. You're doing great, because that's one of my next

questions. Let's just talk about the folks who visited to look

at congressional maps.

A. So scratch Jon Husted, scratch Dave Yost. They were there

because they were apportionment board members.

Q. That's what I thought you were going to say. Now, what

about staff, again, coming over to look at congressional maps?

A. Yeah. Maybe not so much to come over and look at

congressional maps, but there were a handful of staff that

would come over and check on us and see what was going on and

get updates on our process and timelines and all that stuff.

The chiefs of staff that we talked about, other chiefs of staff

had come over. Matt Schuler.

Q. Okay. These are all Republicans, though; is that right?

A. I don't know their registration, but they worked for the

Republican legislature.

Q. Did any Democrat staff come over to Room 601 at the

DoubleTree?

A. Not -- not in my -- not when I was there.

Q. Any Democrat legislative elected representatives come on

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over into the DoubleTree, 601?

A. Not -- not to my knowledge. Not that I recall.

Q. Okay.

A. Nor did I attend wherever they were.

Q. My understanding is sometimes work over there could be

pretty intense, like, almost 24-hour shifts; isn't that true?

A. Unfortunately, that's very accurate.

Q. Yeah. Is it fair to say that HB 319 was drawn in that

hotel room?

Let me be clear. At some point or another, the LSC

actually puts the map in the final bill form; isn't that right?

A. Yes.

Q. And for the record, could you tell us what the LSC is.

A. That's the Legislative Service Commission. It's the

nonpartisan entity that staffs the General Assembly, prepares

bills and laws, and puts them in the proper form so that the

legislature can vote on them and enact them.

Q. And you have to give certain computer files to the LSC so

they could do that; is that right?

A. Yeah. As I mentioned, this is so very unique. LSC did not

have the equipment in order to draft the actual bill, so we had

to provide the language to them, and then they --

Q. Right.

A. -- put it in the right form.

Q. And you gave -- did you give them a block equivalency file?

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A. I don't recall if there was a block equivalency file, a

block assignment file, a text file or some other type of

Maptitude output. I don't recall what --

Q. Okay.

A. -- what it was.

Q. But you gave them the Maptitude output and then they could

turn it into a bill form; is that right?

A. Yes.

Q. And for HB 319, you gave them the Maptitude output that was

generated in Room 601 at the DoubleTree; is that right?

A. Yes.

Q. Now, when it came to HB 369, you didn't generate that

Maptitude output in the DoubleTree, did you?

A. No.

Q. Do you know where that was generated?

A. Well, at that point we had terminated our -- we had

moved -- moved out, and I was working in the statehouse in an

office with Mr. Bennett and others. And Heather, I think, had

gone back to being an employee of the Ohio House of

Representatives. So she would have been working in the Riffe

Center.

Q. And on whose computer was the Maptitude output that was

used for HB 369? On whose computer was that generated?

A. So I think that's -- I think pieces of it might have come

from two different computers. I worked extensively on what

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became 369, but, obviously, Heather and I were still in

contact, so we might have been sharing some ideas to

incorporate. Does that answer your question?

Q. Basically. I think, if I understand you correctly, the

Maptitude output that was given to the LSC for HB 369 was

generated on a combination of your computer and Ms. Mann's

computer; is that right?

A. Yeah. I -- again, I can't -- I don't recall the specifics.

Heather might have been the one to actually send the file

there, but I know I had worked on a lot of what she was sending

there on my computer.

Q. But it was one of the two of you or some combination?

A. I would think so. I would think so, yes.

Q. I apologize for talking over you.

A. No. It's --

Q. It was one of the two of you or some combination?

A. Well, only one of us would have sent it to them. I just

can't recall which one.

Q. Fair enough. And for that, I think you said you weren't

doing that from a hotel room. By then you were doing it back

from your work offices; is that right?

A. Well, I was not an employee of the Senate, so I really

didn't have an office. I was in some closet-type thing, room.

And Heather, I think, was just in her regular office.

Q. So she either came from her regular office or from your

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closet; is that right?

A. Yes.

Q. Okay. So you didn't need a hotel room at that point to do

that work, did you?

A. Well, this was much less involved than the process for the

first piece. Much less.

Q. But you didn't go back to get some hotel room to go do it,

did you?

A. Well, it wasn't a defined process. The first time through

we knew that we were going to go through this process. The

second time it was really up in the air depending on what was

happening with the referendum, how negotiations with the

legislative Democrats were going, and, really, there was only a

signed -- a certain set of requests that they made that needed

to be worked on in order to produce what became the introduced

version of 369. So it was a much less involved process, and it

was not ideal to be where we were.

Q. So a lot more work was done on HB 319 to put the whole

package together; is that right? Is that what you're telling

me?

A. I mean, the time for 369 was much more condensed, and there

were finite requests that the legislative Democrats were

making. 319 was the whole process over a longer period of

time.

Q. Now, during your work on redistricting in 2011, did you

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work with Mr. Adam Kincaid?

A. Yes, in 2011.

Q. Okay. And you --

A. And by "work with," I mean he was one of a number of people

that would send ideas or I could bounce ideas off.

Q. Right. And he's with the National Republican Congressional

Committee; is that right?

A. I believe that's right.

Q. And you could talk with him about configuration of some

districts; is that right?

A. Well, not -- well, I could ask him, I mean, anything. He

was a resource. He was knowledgeable, as well as many other

people that I was talking to.

Q. But you did talk to him about configuration of districts,

didn't you?

A. Not -- I talked to him about ideas about the districts.

Q. Well, what about the "configuration of the districts"? Did

you talk to him about that?

A. What do you mean by configuration of the districts?

Q. Well, the shape of the district.

A. I guess -- I guess. I guess that's -- I mean, it was never

anything that defined.

Q. You talked to him about the geographical configuration of

the districts?

A. Yeah, maybe I would have shared ideas with him or struggles

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we were having after we had some of the major pieces that I

talked about earlier in place on some of the things that were

left and some of the troubles that we were having or some of

the requests that we were dealing with.

Q. Including the specific geographies of some of the

districts?

A. Well, he could certainly make suggestions.

Q. And he did that on specific geographic districts lines; is

that right?

A. On some cases I'm sure he did. I don't recall any

specifically.

Q. Did he send you some draft maps?

A. Oh, I'm sure he did.

MR. FRAM: Why don't we take a look at Plaintiffs'

119.

JUDGE WATSON: 119?

MR. FRAM: Yes, please.

Q. This is -- I've got an e-mail here on September 2, 2011

from Mr. Kincaid to you, Ms. Mann, and Mr. Whatman. Do you see

that?

A. I do.

Q. All right. And he's providing an attachment -- "Revised

attached." Do you see that?

A. Yes, I see that.

Q. And the heading is "New Idea Redraft." Okay. Do you

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recall him sending you a redraft of a map around the very

beginning of September, around September 2?

A. I -- I don't recall what this is referring to just based on

what I'm seeing here on my screen.

Q. But do you recall if he sent you maps -- revisions of maps

in early September of 2011?

A. Well, he -- he sent this e-mail, I'm sure. I just cannot

recall what it is.

Q. Okay. Let's just start out one step at a time. Do you

recognize his e-mail address?

A. I'm -- I mean, I believe it's his.

Q. Okay. And was that your e-mail address back then?

A. That is mine, yes.

MR. FRAM: Okay. Your Honor, we'd like to move

Plaintiffs' 119 into evidence. There are no pretrial

objections.

JUDGE BLACK: Any objections?

MR. STRACH: Your Honor, I don't have my list. We

would request that it be admitted conditionally. And, of

course, if it's got no objection, then there will be no

objection, but I just don't know at the moment.

JUDGE BLACK: Well, why don't you get your list. I'll

admit it conditionally. If there's no objection, there's no

objection. He's going to have his list in front of him.

MR. STRACH: I've got it. No objection. Sorry about

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that, Your Honor.

JUDGE BLACK: Thank you. Very well. That's what

you're going to file; is that right?

MR. FRAM: Yes. I think that's the list we'll be

filing.

JUDGE BLACK: Good.

All right. It's admitted.

(Plaintiffs' Exhibit 119 was admitted.)

Q. And then if we could go down to -- there's a 10:09 PM

response from you in this e-mail chain to Mr. Kincaid, Friday

night, 10:09 in the evening, saying you'd provide some feedback

to him over the weekend. Do you see that?

A. I see it.

Q. Okay. In fact, were you corresponding to each other late

at night about specific map suggestions?

A. Well, I was corresponding with everybody late at night for

this process.

Q. But, in particular, you were including Mr. Kincaid?

A. Well, in this case, obviously, I sent this e-mail at 10:09,

but I don't know if that means particularly.

Q. Well, if he was among --

Putting aside whoever else you might have been e-mailing

to, you were e-mailing to Mr. Kincaid around September 2, 2011,

about specific maps; isn't that right?

A. Well, again, I still don't recall what this new idea

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redraft is, but the e-mail is what the e-mail is, yeah.

Q. So the answer to my question is yes?

A. And the question is if I sent this e-mail?

Q. No. My question is do you recall e-mailing back and forth

with Mr. Kincaid in early September, 2011, about specific

mapping proposals.

A. I don't recall, but you're showing me the e-mail, so --

Q. And you have no reason to disbelieve that you, in fact,

were corresponding with Mr. Kincaid by e-mail about specific

map proposals in early September 2011?

A. Did I produce this document to you?

Q. No. This is from a public records request. But you may

have been one of the original responders to. This is not the

DiRossi subpoena from this case.

A. Yeah, I mean, it sure looks like something I might have

said.

Q. Okay.

A. Or an e-mail I would have sent.

Q. Okay. We go down to the next morning, 8:13 in the morning.

There's a further response back from Mr. Kincaid. And here

he's sending you, along with Ms. Mann and Mr. Whatman, screen

images and a spreadsheet for a block file that he sent the

night before. Do you see that?

A. I do.

Q. And he says he's also sending you a block file. Do you see

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that? Let's just talk about that a little bit, each piece of

that. Okay?

So do you recall Mr. Kincaid sending you spreadsheets about

different maps?

A. Yeah. I mean, I don't know if they were spreadsheets or

Word documents, but he would send supporting information.

Q. And that supporting information, that included political

scorings; isn't that right?

A. It could have. Geography changes. I mentioned that the

national folks were using a unified -- I was using a new

unified index. They were using a different mechanism that I

didn't know how to calculate. So they would always have to

send it to me. I couldn't calculate it myself.

Q. The metric they use, is that sometimes called the PVI

Index?

A. I refer to it as the R+1, D+1 system.

Q. Fair enough.

A. I don't know if that's PVI.

Q. Okay. We'll use yours, the R+1, D+1.

He would send you spreadsheets with R+1 and D+1 scorings

for congressional districts; isn't that right?

A. I'm sure he did sometime along with other -- other

information.

Q. Now, block files. Did you have any understanding of what

the phrase "block file" meant?

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A. Generally.

Q. It's a block-assigned file?

A. Generally.

Q. And that's where you have the census blocks and you

decide -- which tells you which ones are in which district; is

that right?

A. Yeah, I mean, it's -- I think we're getting down into the

weeds on the technology, but it's how the software -- you could

transfer --

You couldn't just send, like, a Word document to another

computer and open it. You had to send this very large file as

some type -- not encrypted, but text file that did all its

assignment.

Q. It took me a while, but I think I figured it out.

Maptitude, you can take all these census blocks, and if you

know which one's in which district, it can give you a map,

which tells you which map lines are drawn around those census

blocks; isn't that right? That's what Maptitude does?

A. It's the way you would transfer -- transfer the GIS

portions of the map from computer to computer.

Q. Right. And if you had political scoring information, say,

unified index about a census block, Maptitude, like one

gigantic adding machine, could add it up and tell you what the

scoring would be for the whole district; isn't that right?

A. Yeah. Along with the population deviations, the

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African-American populations, the Hispanic populations, all

those things.

Q. And you could get that, political scoring for the district,

using that giant adding machine that Maptitude really -- that

function that Maptitude had; isn't that right?

A. You're asking me if Maptitude could do that?

Q. You would take -- Maptitude would take that block

equivalency file, it could generate the map for the district,

and when it did that, it could tell you the political scorings

of the district as long as it had the political information

about -- at the census block level?

A. So, I mean, you're obviously focused on the political

thing, but you never just did that. It just did everything.

It was all a package.

Q. But it would always include the political scoring?

A. Well, it would always include everything.

Q. Including the political scoring?

A. Yes.

Q. Why don't we go to page four of the document, please,

September 3, 2011, 11:54 in the morning.

Now, you were copied on this, if I've got that right.

Actually, it was addressed to you from Mr. Whatman. Do you see

that? And, again -- do you recognize these e-mail addresses

from people that you were using back in the day?

A. Well, I definitely recognize mine. And I think Heather's

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is accurate, too. The other ones, yeah, I didn't really pay

attention to them. They look right.

Q. Okay. Now, do you see where he says Adam -- I'll quote.

"Adam: Did we tell you we needed the four-way split with the

changes also," quote/unquote? Do you see that?

A. I do.

Q. Do you have any recollection of a four-way split, what it

meant?

A. Yeah, this was one -- this was an idea that came from the

folks in D.C. to split Franklin County into four ways, which

was rejected.

Q. Right. And that approach would have resulted in -- well,

let me back up.

That was rejected, and instead, a new district was created

in Franklin County instead of splitting it up four ways; isn't

that right?

A. Well, as I -- as I mentioned, there were some overarching

goals that we wanted to achieve, the legislative leaders wanted

to achieve in the map, one of which was the creation of a new

district in Franklin County. So, obviously, this was contrary

to that, so it was, you know, discarded.

Q. Right. And you said -- the four-way split, that would have

resulted in 13 Republican seats; is that right?

A. I mean, the four-way split would have resulted in a

four-way split of Franklin County. I don't really recall

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anything else about it.

Q. You don't recall, for the statewide map, it would have

resulted in 13? Okay.

A. You're assuming that the map would, you know, have a

desired outcome. Again, as I mentioned, the unified index that

I had used and other things had been very volatile. So, you

know, those indexes are designed to look backwards and show how

previous election results had happened. It is very imprecise

going forward, and I can cite numerous examples of why that is.

Or my personal experience was that.

Q. But you thought the unified index was -- it was your

preferred index; isn't that right?

A. In a world of imperfect, it was the best thing that I could

come up with to show the historical election returns of

districts.

Q. Right.

A. And, of course, as I mentioned, nobody really agreed with

me.

Q. But everybody had some political index they were interested

in?

A. Yeah. Everybody had their own ideas.

Q. Okay. Now, during the redistricting process, is it clear

to you -- let me back up.

During the redistricting process, you were in communication

with Senate President Niehaus; is that right?

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A. Yes.

Q. It was clear to you that he was interested in Speaker

Boehner's input?

A. I mean, he was the Speaker of the United States House of

Representatives, so I'm sure he was interested in his opinion.

Ultimately, Speaker Batchelder and Tom Niehaus, the president

of the Senate, they were responsible for getting the votes in

the legislature to get the map through. And I am sure they had

numerous conversations with all kinds of interested parties

across the political spectrum, but at the end of the day, they

had the responsibility to make sure that the map that was being

voted on got the votes. 

So I'm sure a lot of people's opinions were important. I'm

sure they talked to a lot of people that were important, but

the people of the caucuses that were voting on it, that was

what was most important, and that was their responsibility.

MR. FRAM: Move to strike as non-responsive.

Q. My question to you, sir, is, from your conversations, your

personal conversations with Senate President Niehaus, was it

clear to you that he was interested in Speaker Boehner's input?

A. I thought I answered that. Yes, he was. He was the

speaker of the United States House of Representatives and so he

was interested in his thoughts.

Q. Okay. And I think we've already seen the e-mail. You were

in communication with Mr. Tom Whatman; correct?

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A. Occasionally, yeah.

Q. And you knew that he worked closely with Speaker Boehner;

is that right?

A. Yes. I don't recall in what capacity, but yes.

Q. And if you wanted feedback about what Speaker Boehner

thought about a map, Mr. Whatman, he was your point of contact?

A. That would be one. I guess it depends on what information

I was seeking. But I could have gone to President Niehaus or

Speaker Batchelder or some other channel.

Q. To understand what Speaker Boehner's views were?

A. Yeah. But, again, it depends on what information I was

seeking, maybe what method I would have used.

MR. FRAM: Why don't we put --

Q. Well, let me ask you a question.

MR. FRAM: Well, no. Let's put Plaintiffs' Exhibit

124 on the screen.

Q. This is an e-mail. It's Saturday night on September 10,

2011. And you received this -- I'm sorry. You sent this to

Senator Faber. Do you see that?

A. I do.

Q. Now, you recall Senator Faber?

A. Yes.

Q. Okay. And you had gotten to know him through your

fundraising work with Republicans, Ohio senators; is that

right?

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A. Well, he was the president of the Senate and a member of

the House of Representatives when I was in the House, and also

a member of the Senate when I worked in the Senate. So I've

known him a while.

Q. And in 2011, he was in leadership on the Republican side in

the Ohio Senate; is that right?

A. Yes.

Q. And you see there's a reference here how you put his

concept into a map. Do you see that?

A. I do.

Q. Okay. Now, do you see the next line there talking about

trading territory between CDs 4 and 5? Do you see that?

A. I do.

Q. And at that time Representative Jordan, he was the

representative from CD4; is that right?

A. Yeah. He was the congressman from Congressional 4.

Q. And Representative Latta was the congressperson from

District 5; is that right?

A. Yes.

Q. Okay. And do you see there you've got a map proposal -- 4

and 5, they're off in the northwest part of the state; is that

right? Northwest corner?

A. Yes.

Q. And that map --

A. Well, apologies. Number 4 ended up in Lorain County after

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we went through all of the iterations with 369, but, generally

speaking, they're northwest Ohio districts.

Q. Four goes a lot of places. I'll give you that. But part

of it is in the northwest corner; is that right?

A. Yes.

Q. And do you see that, it says NW "Ohio proposal.gif"? Do

you see that?

A. Yes.

Q. And that would have been the map that you sent back to

Senator Faber; is that right?

A. Right.

Q. And that's about northwest Ohio; is that right?

A. Without seeing that maybe blown up -- and I'm not sure

blowing that up is going to be helpful, but I'm pretty sure,

like what we talked about -- or I talked about before, Senator

Faber was the one I mentioned was very interested in Mercer

County. And both of these districts, I think, are two of the

three districts that converge in Mercer County. He was a

member of President Niehaus' leadership team. So I had spent

some time trying to -- I don't want to stay placate, but put

his thoughts into -- his ideas into a map and, you know, show

him that we were taking his -- his request seriously.

Q. Understood. And part of you taking him seriously is you

were giving him some political election scoring data, didn't

you, in this e-mail?

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A. Yes.

Q. You told him what Jordan's scoring was and Latta; right?

A. Yes.

Q. Now, here you used what you call -- "on presidential."

Okay? Is that the '08 presidential race?

A. Yeah, I'm sure it was. As I said, I would have liked to

stick to the unified index, but everybody else was looking at

different things. So, you know, a lot of times if they made a

specific request for something, it would -- I wouldn't use what

I had thought was the best way.

Q. And so here you could show him that Jordan's '08 election

scoring was 52.69 percent; is that right?

A. It is. I mean, that's what I -- I wrote, so I assume I got

that from --

Q. And that's for the map you were sending over to him?

That's what that scoring would be under, this map; is that

right?

A. Yeah. That would have been on whatever this northwest Ohio

proposal was.

Q. Okay. And similar here, Latta's was -- according to the

proposal, would have had an '08 presidential scoring of 51.91;

is that right?

A. Yeah. So this -- I think what I was trying to show here

is, I said on the geography -- again, I was talking about the

geography, that I traded territory between 4 and 5. And so,

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intuitively, one of the districts, when you trade geography, is

going to go up and one of them's going to go down. So I think

I was showing the geography changes that I was doing. I was

trying to show it as graphically, because I, you know, couldn't

send a block file or something like that. And then I was also

showing the political side. So both of those pieces together.

Q. Understood. You also say here, quote, DC is increasingly

pushed to put the lid on this, ellipses, close quote. Do you

see that?

A. I do.

Q. So at that point, on September 10, 2011, almost 10:00 at

night, you were letting Senator Faber know that D.C. wanted to

wrap this up?

A. Well, yeah, I think what I was doing here is I was --

Senator -- President Niehaus was getting frustrated that his

own members of the leadership this late were making suggestions

and running ideas and thinking of things. And so I was trying

to gently nudge and say, "We've got to stop. We've got to

stop." So I just was trying to use D.C. as trying to do this

to try to nudge him to say, "Hey, knock it off. We've got to

get this done." 

This is like hours, if not days, before the map was to roll

out. And I don't even know if we ended up doing this or not.

Q. Just a recollection that the map was actually introduced in

the General Assembly on the 13th of September. Do you recall

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that?

A. That -- that sounds right.

Q. That would be the Tuesday after the Saturday night?

A. That sounds right.

Q. Okay. But you didn't say President Niehaus wants to wrap

it up; you said D.C. wants to put a lid on it; right?

A. Yeah.

Q. Okay. Okay.

A. There was no need to -- trying to protect the president a

little bit and tried not to have one of his -- tell one of the

leadership members that the true leader of the caucus was

telling him "knock it off," so --

Q. Instead you said D.C. tells you to knock it off?

A. Yes.

MR. FRAM: Now, Your Honor, I'd like to move this

Exhibit 124 into evidence, again. Our version of this

spreadsheet says there are no objections.

JUDGE BLACK: Any objection to 124? 

MR. STRACH: My version of the spreadsheet is the

same. No objection.

JUDGE BLACK: No objection. It's admitted.

MR. FRAM: Okay.

(Plaintiffs' Exhibit 124 was admitted.)

Q. Let's stick to that weekend just before the map went in.

Let take a look at Plaintiffs' Exhibit 125. This one is

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entitled "Redistricting 'Tweaks.'" You're copied on it, but

this one is from Senate President Niehaus. Do you see that?

A. I do.

Q. Now it's Sunday morning, 9:25, the next morning. And he

was communicating to you and Mr. Whatman about these

last-minute tweaks. Do you see that?

A. I see where he said that.

Q. Is this part of what you said, he's getting a little

frustrated that some of his Senate members were coming in with

some last-minute ideas? Do you see that?

A. I see that.

Q. And then he says to you folks, he says -- well, let me back

up.

He identifies tweaks from Faber. We talked about those.

He also talked about tweaks from Senator Widener. Do you see

that?

A. I do.

Q. And we'll get to that in a second. But he does say, quote,

"Part of this process is letting them see how few options you

had."

Do you see that?

A. I see that.

Q. Right. So Senate President Niehaus wanted his members to

understand the limited options that you -- Mr. DiRossi,

yourself -- had; is that right?

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A. I mean, I didn't send this e-mail, so I'm not going to

speak for what the president of the Senate meant to convey.

Q. But he did convey -- you have no doubt he conveyed this; is

that right?

A. I see the e-mail, but you're asking me what he meant by it.

I don't -- I don't know.

Q. Okay. But he also conveyed it to Mr. Whatman; is that

right?

A. Well, he sent it to him, yes.

Q. Yeah. So this message was delivered to both -- to you, but

also to Mr. Whatman; isn't that right?

A. Well, I don't know if he meant to cc me for a reason or if

he meant to do it out of a courtesy because I was working on

it. Again, I don't know.

Q. You were actually an addressee, isn't that right, not just

a cc?

A. Yeah, but -- yeah. I don't know --

Q. Right.

A. -- what his intention was for including me on that.

Q. And so was Mr. Whatman. He was an addressee; isn't that

right?

A. It appears to be.

MR. FRAM: Okay. Your Honor, I'd like to move this

one into evidence also. And, once again, our spreadsheet shows

no objections.

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JUDGE BLACK: Any objection?

MR. STRACH: None here, Your Honor.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 125 was admitted.)

Q. And then he says the following, quote, "I am still

committed to ending up with a map that Speaker Boehner fully

supports, with or without votes from two members of

leadership." Do you see that?

A. I do.

Q. Do you have any reason to doubt that he, in fact,

communicated, in writing, Sunday morning, September 11, 2011,

that he was still -- he was committed to ending up with a map

that Speaker Boehner fully supports? Do you have any reason to

think he didn't say that?

A. If you want to ask me if he put it in an e-mail, I'll say

yes. But if you want to ask me whether he meant it or what he

intended or what message, I -- that's for him to say.

Q. There's a reference here to the Widener change again. I

want to ask you about that. But the easiest way to do that is

to -- maybe we could look at -- let's see. Plaintiffs' Exhibit

581, also September 11, that Sunday. This one's at 10:20 in

the morning. So we're just -- we're going forward about --

we're going forward about an hour. The last one had been 9:25

in the morning.

Now, on this one -- this is an e-mail from you on that

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date. Do you see that?

A. I do.

Q. Okay. And do you have any reason to doubt you sent this

e-mail?

A. No.

Q. You recognize your e-mail address; don't you?

A. Yeah. No, I remember this e-mail. I remember this issue.

MR. FRAM: Okay. Well, let's move it into evidence.

Again, no objections have been lodged.

MR. STRACH: No objection.

JUDGE BLACK: It's admitted.

(Plaintiffs' Exhibit 581 was admitted.)

Q. At that time, that Sunday morning, you were supposed to --

A. Could I just say -- I'm sorry, I apologize. I didn't

underline any of this, just for the record. I mean, you --

Q. Fair enough.

A. In a number of these e-mails there's things that have been

either underlined or emphasized. I wasn't doing that. I think

you're doing that.

Q. Thank you for the clarification.

A. Yeah.

Q. I appreciate that.

But you nonetheless said -- it's underlined, but you said

it. Quote, "I know you are expecting a map from me with

proposed Widener changes."

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But then you said you weren't going to be sending it over

because you just talked to Senate President Niehaus about it;

isn't that right?

A. Yep.

Q. Okay. And then you state some reasons why not in the

e-mail; isn't that the case? Do you recall, in fact, those

changes weren't going to work out given the amount of voters

you were going to now have to put into Stivers' district; is

that right?

A. In general, yes.

Q. That would be District 15?

A. Yes.

Q. Okay. About 110,000 voters would have to go into District

15 under Widener's proposal; is that right?

A. Right.

Q. Okay. And one of the things that would happen if you did

that, you put those 110,000 people into the district, it would,

quote/unquote, "push Stivers index down", quote/unquote? Do

you see that?

A. I do see that.

Q. And so you told President Niehaus -- you told Mr. Whatman

that's the reason you were not going to make those changes?

Yeah. So there's a lot going on here, and this is all

happening very fast. I think -- I don't know under the first

round of questions if we talked about what was happening in

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Clark County. But Senator Widener, just as Senator Faber, was

very passionate about what was happening in Mercer County.

Senator Widener and another member of the Senate leadership

team was very concerned about what was happening in Clark

County and the fact that in the 319 map Clark County was split

into two districts. 

And he was trying to find a way to unify Clark County. And

he really -- that was his goal. Where Clark County was unified

and what district and what else happened, he didn't care about.

He wanted Clark County to remain whole.

So, again, I hate to use the word "to placate," but the

president asked me to devote some time to Senator Widener's

ideas, to try to get them to see if something would work out.

And I knew full well that they wouldn't work out. 

And I was using -- I think using -- sending this -- I told

them that I would send it to D.C. to see what they thought.

And then I called and said, "Hey, I'm not even going to do that

because this doesn't work." And so the map that rolled out,

Clark County was split. And it wasn't until the second map

where we were able reach -- achieve this goal, but it was

because of the democrats requesting that Montgomery County be

made whole that started this cascade that we were able to unify

Clark County.

So that's all happening here. But this was another one of

the leadership member's late-asking for things that we said no

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to. And it was just kind of the legislative way that you

let -- you give the -- let the member know that you're working

on it and you took the request seriously. But, I mean, I knew

from working on the map that this wasn't going to work. And so

that's what all this is showing.

MR. FRAM: Your Honor, can I request a standing motion

to strike for both hearsay and lack of foundation every time

the witness testifies that something was done because of what

the Democrats wanted, the same as the objection before during

direct exam, rather than disrupt my own interrogation now.

JUDGE BLACK: Can I have some white noise if you've

been unable to get symphonic.

(Judges confer privately.)

JUDGE BLACK: Yes.

MR. FRAM: Thank you, Your Honor.

Q. Now -- and I apologize if you answered this. Your answer

came by a little fast before. 

One of the reasons that it didn't work out -- you were

saying it's not going to work out, this unifying Clark County.

At least as of September it wasn't going to work out was

because it would push Stivers' index down; isn't that right?

A. Well, yeah. I mean, but I was talking about -- that was

just one thing that I was providing him with. I was talking

about the significant population changes in the two -- the two

previous sentences, for lack of paragraphs, but then, as I

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said, I had that information available, so I -- I included that

in the e-mail, but I didn't underline it.

Q. I'm sorry, but --

A. I didn't underline it.

Q. No, I understand that.

A. Yeah.

Q. But you said it?

A. I -- I e-mailed it.

Q. Yeah. Now, let's go down just a little bit to 1:44 in the

afternoon. Sunday is what time? Time's a waistin' on Sunday?

A. I'm sorry?

Q. I'm just going down to the next e-mail down.

Mr. Whatman gets back to you that same day, the same

Sunday, the same e-mail chain. He thanks you and he says,

quote, "Yea that would be crazy." Do you see that?

A. I do.

Q. So Mr. Whatman, he agreed with your assessment that the

Widener changes in unifying Clark County was not going to work

out?

A. I mean, again, he sent that to me. That's what it appears,

but you can ask him what he meant by that.

Q. Okay. And then if we go down to the next e-mail -- let's

see. Yeah, it's 1:50 in the afternoon. Mr. Whatman e-mails

you again, and -- where he says, quote, "Ray was there some

other change you guys wanted to run by me? Got that impression

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from matts VM," voicemail, "a bit ago," quote/unquote. Do you

see that?

A. I do.

Q. So you were running other changes past Mr. Whatman on

Sunday, September 11?

A. I don't recall. I mean, this is -- this is crunch time

where we needed to get this bill to LSC. So I don't recall if

there were other things I was working on or this was kind of

the last -- the last one.

Q. Well, let's go down a little bit, the next e-mail.

A. Okay.

Q. You responded back to him. He asks you if there was more

changes you're going to run past him. And your response was

quote, "yes - I will call you momentarily once I get off phone

with Faber."

Do you see that?

A. I do.

Q. Okay. So, in fact, you were running changes past Mr.

Whatman on Sunday, September 11, 2011; isn't that right?

A. Well, I don't recall if I ever called him, but, again, this

is another leadership member taking, literally, every minute to

throw ideas against the wall and see if something would stick.

And, you know, as a staff person, we're trying to placate the

members, and maybe some -- you know just run out the clock.

So it might have been, Hey, I'll call you momentarily to

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say, Yeah, I have nothing. But, I mean, I don't recall what I

have -- I don't recall if I called him or what there might have

been.

Q. Let me see if I can unpack this a little bit. You were

talking with Faber about Faber's proposals that weekend; isn't

that right?

A. Yes.

Q. Okay. And you had to get off the phone with Faber before

you could get back to Whatman; isn't that right?

A. Yeah. I couldn't be on the phone with both of them.

Q. Right. And you told Whatman, I'll call you momentarily;

isn't that right?

A. That's what I said in the e-mail.

Q. It wasn't your practice to tell people you'll get back to

them momentarily and then blow them off; is that right? 

A. Well, sometimes. It was a very chaotic process.

Q. So you did that to Speaker Boehner's representative? You

told him, "I'll call you momentarily," but then you were just

kidding?

A. Well, I might have had the intention of calling him and

maybe I didn't call him. Maybe something else came up. Maybe

the president of the Senate called and I got on another call.

Q. Well, we can agree on that your intention was to get in

touch with him momentarily?

A. Yes. Yes. But to convey what -- you said it was

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predicated on there being other changes. I don't know that to

be true.

Q. Okay. Well, let's take a look at -- let's take a look at

Plaintiffs' Exhibit 126.

Now, this is now Monday. We've gotten past the weekend,

barely. Barely.

A. Yeah, I'm having flashbacks to 1:00 o'clock in the morning.

Q. 1:06 in the morning. Your crunch time. And you're

e-mailing to Senate President Niehaus, copying Senator Faber,

Matt Schuler, the chief of staff, and you're providing what you

call work -- quote, unquote, "Work product from tonight's

efforts." Okay? And here we've got -- you're providing them

some political scorings for Representative Latta and

Representative Jordan's districts; is that right?

A. Well, I'm doing that, but I'm also conveying the geography

changes. Again, I'm doing them together. You're just picking

out the political one. But they were -- they were -- I was

conveying all of this information.

Q. Right. Including the political information?

A. Both pieces of information.

Q. That's right.

MR. FRAM: And by the way, so we don't have to worry

about other issues again, we'd like to move to admit this

exhibit. Again, our spreadsheet shows no objections.

MR. STRACH: No objection.

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JUDGE BLACK: 126 is admitted, Plaintiffs'.

MR. FRAM: Okay.

(Plaintiffs' Exhibit 126 was admitted.)

Q. And do you see the subject line of the e-mail, quote,

"Proposed map for LSC"?

A. I do.

Q. Okay. So this was a proposal that you could -- to someone

to give to LSC for -- that they could turn into a bill; isn't

that right?

A. Well, I can't see the rest of this. I don't know if there

was an attachment to it or -- I'm sure you'll -- we'll get to

that, but --

Q. I think we will.

A. There you go.

MR. FRAM: Why don't we go down there and take a look.

Farther down. No, right up there. I'm sorry. No, it's the

"LSC Bill Draft." There you go.

Q. "Dot, bmp," do you recall that, the extension?

A. Yeah. It's a bitmap file. I am confused as to why it says

draft number 2, though.

Q. But that would have been a bitmap file for LSC; is that

right?

A. Yeah, it may have been. Yes. I mean --

Q. Okay.

A. Well, I apologize. I'm not -- I'm confused as to why I

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attached number 2. I don't know what -- I don't know what I

was meaning at that time. There should have been a --

Q. There might have been another -- I'm sorry?

A. There should not have been two of them. There should have

been one file being conveyed to LSC.

Q. Okay. But you have -- I think we understand. You have no

reason to doubt at 1:00 in the morning you sent this e-mail and

an attachment over to Senate President Niehaus, Senator Faber

and Chief of Staff Schuler; is that right?

A. No, I sent it.

Q. Okay.

A. And, again, you were pointing out the political indexes. I

mean, they're dealing with hundredths -- the hundredths of a

point. So without seeing what the changes were, my guess is

they were very, very, very minor.

Q. Right.

A. To move indexes three-one-hundredths or one-one-hundredths

of a point.

Q. Right. And in your e-mail at 1:00 in the morning, you

wanted to make sure they had that information. That was the

first thing you included.

A. Yeah. I don't -- I wouldn't read anything into the fact

that I put that before the geography. I know the geography was

important. I know the geography was important, because there

were issues with the 3rd Congressional District. Not the

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number 3, but the third district that was in Lucas County,

Kaptur's district.

Q. Okay.

A. So the geography here probably is more important than the

one-one-hundredth of a point of -- one rising and one falling,

it looks like.

Q. And yet you put that second?

A. Like I said, I wouldn't read anything into that.

JUDGE BLACK: Can you stay near that microphone.

THE WITNESS: I'm sorry. 

JUDGE BLACK: I'm asking for the two other judges. 

THE WITNESS: I'm trying to lean back to see this. I

apologize.

JUDGE BLACK: Very well.

Q. So that's 1:06 in the morning. A few more hours in the

morning. Let's get to 7:44 in the morning.

So President Niehaus responds to you?

A. I'm sorry. I -- when I lean back, the screen went blank.

So I must have turned it off somehow.

JUDGE BLACK: Okay.

THE WITNESS: I probably hit it with my knee.

JUDGE BLACK: We'll work right on that.

THE WITNESS: There must be a button or something that

turns it back on.

JUDGE BLACK: Let's see. Who wants to find the

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button?

JUDGE WATSON: It probably can't be found until Monday

morning.

THE WITNESS: I'll just push them all.

COURTROOM DEPUTY: Now --

THE WITNESS: It's back on. It was the last button I

pushed. It was the last. 

MR. FRAM: Thank you for resolving that.

A. I'm sorry. You were asking a question.

Q. Yeah. 7:44 AM, Senate President Niehaus sends you an

e-mail. Do you see that? Right?

A. Yes. I do see that, yes.

Q. And he asks you a question. He says, "Did Whatman sign

off?" Do you see that?

A. I do see that.

Q. Let's go 12 minutes later, 7:56, I think it was, in the

morning. If we can go down. And you respond, and the first

thing you say is, "Whatman signed off." Do you see that?

A. I do see that.

Q. Now you talked about geography a bunch, about how you were

moving different populations around concerning Lucas County.

Do you see that?

A. I do.

Q. And do you note the third line of your e-mail to Senate

President Niehaus, saying, quote, "it is fair to note that a

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good part of Lucas he is picking up is Republican territory"?

Do you see that, quote, unquote?

A. I do.

Q. So you wanted to make sure that morning you told Senate

President Niehaus that Representative Latta would be getting --

a good part of the territory he'd be getting in Lucas County

was Republican; isn't that right?

A. Is this -- is this the -- is this from the string before

that we were just talking about where the index has moved twoone-hundredths of a point, or is this something completely

different?

Q. Let's go back on up. Let's go to the top with me.

Yeah. You got the index here. You see it is the one where

the -- there's a tiny little difference between those,

two-hundredths of -- only two-hundredths of a point. It fell

only two-hundredths of a point.

A. Okay.

Q. And then you point out at 7:56 in the morning that it was

fair to note that a good part of Lucas County, and I assume

you're saying Latta is picking up, is Republican territory. Do

you see that?

A. I do.

Q. You have no reason to doubt you sent that?

A. No.

Q. Okay.

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A. But it looks like, as I was asking that this is related to

that previous string, that -- sitting here, I don't recall what

that territory was, but it must have been relatively

insignificant in size if it was just moving indexes twoone-hundredths of a point. That was just my point.

Q. Okay. But it was worth mentioning to Senate President

Niehaus at 7:56 in the morning?

A. Well, he had specifically asked about Lucas County in his

e-mail to me, so I was being responsive.

Q. Okay. And you understood that to mean he wanted to know

how much of the territory would be Republican territory, didn't

you?

A. Well, he was the president of the Senate. He was asking me

a question, so I was going to -- and this was like right before

we got this thing to LSC to go. So I was just providing him

the information that I thought would be relevant, whether it

was geography or political or both.

Q. Now, why don't we take a look at Plaintiffs' 127. This

one's September 12, 2011 and at 11:22 in the morning. And this

is entitled "Stivers maps." So it's your recollection this

concerned Senator Widener's suggestions that would affect

Stivers' area 15; is that right?

A. I don't see any reference to Widener on here, so I'm --

Q. It concerned District 15, though; isn't that right? That's

where Stivers was represented?

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A. Well, it says "Schmidt 08." I don't know if that -- maybe

that's a typo. So that's nowhere -- that's southwest Ohio.

Q. I was going to ask you about that. Let's start with there

are two couplets. There's "Stivers 08" presidential and

"Stivers unified," do you see that, the first two lines right

up there?

A. I see those two lines.

Q. Okay. And so 08 we already talked about, and it explains

how, under this proposal, under the Stivers' map that you drew,

that Stivers' presidential strength, Republican strength, would

go from 52.64 to 53.31. Do you see that?

A. Yes, yes.

Q. And that his unified index would go from 55.02 percent

Republican to 55.72 percent Republican. Do you see that?

A. I do.

Q. Okay. Now, you're sending this e-mail to Mr. Whatman; is

that right?

A. Yes.

Q. You wanted Mr. Whatman to know that District 15 was going

to be more strongly Republican under the map you were sending;

isn't that right?

A. I'm not sure what I was conveying. Because, obviously, the

flip side of this side I didn't include. Obviously, if I was

trading territory between two districts to achieve whatever

goal I was trying to achieve, one district would go up, the

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other one would go down. But I'm not mentioning which one was

going down, so I'm not sure what -- I don't recall what I was

referring to here with "Stivers maps."

Q. So there's no reference here to trading territory in this

e-mail?

A. Well, there had to be a territory change, or else the

indexes wouldn't have changed.

Q. But there was some kind of a district drawing line. I

understand you, sir. But you're telling Mr. Whatman on Monday

morning, for Stivers' district --

Which we can agree is 15; correct?

A. Yes.

Q. Okay. -- that under both indices that it's going to become

more Republican. You're telling Mr. Whatman that?

A. Yeah. As I mentioned before at the beginning, I mean, the

president, I'm sure, was very interested in what the Speaker of

the United States House of Representatives thought about the

map. Whether -- what he did with that information was his

decision in the legislative process, but I didn't -- I couldn't

pick up the phone and call Speaker Boehner. 

So this was the kind of way to which I would send

information or receive suggestions, and then we would have to

make a decision in the legislative process if it was something

worth pursuing or just say, no, we're not doing that. So this

is just another one of those information exchanges.

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Q. Right here --

A. Yeah.

Q. -- I'll just take "Stivers 08" Presidential, that change

was less than one point, do you see that, 52.64 to 53.31? Do

you see that?

A. I do.

Q. And for the unified index, again it's less than one point:

55.02 to 55.72. Do you see that?

A. Yeah, I still see it.

Q. So when a political index shifted by less than one point,

you still wanted to make sure that Mr. Whatman was informed;

isn't that right?

A. Yeah. Everybody cared about -- like I said, from the

beginning everybody wanted to see maps and indexes. That's

what the press asked about. That's what all of the citizens

groups asked about. That's what members asked about, both in

the legislature and in Congress. That's what people asked

about. So it doesn't surprise me that I would have been

sending that type of information to people.

Q. Now, the bill wasn't made public till September 13, that

Tuesday; right?

A. Again, I don't recall that date. I think you mentioned

that date. It sounds right.

Q. Before the bill was made public were you sending e-mails to

members of the press indicating the political scorings of

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individual districts of less than one point? To the press.

A. I wasn't, but other -- others might have been.

Q. Might have been. Do you have any basis for saying that

speculative thought?

A. Well, so if the bill at this point is at LSC, we are

probably preparing -- in the legislature they are preparing all

of those press documents and talking points and all of the

standing requests from the press for that type of information.

Many times it is shared with the press.

So while I don't recall -- but I'm sure I would have been

providing that information to the president of the Senate so he

had it at his disposal if that's what he chose to do with it.

Q. But as of this date, before it's gone public, you're

sending Mr. Whatman an e-mail with changes in political scoring

in District 15 with less than one percent change; isn't that

correct?

A. Yes.

MR. STRACH: Your Honor?

JUDGE BLACK: Yes.

MR. STRACH: May I inquire as to how much more cross

there will be? I'm getting concerned. We had to do a major

imposition on Mr. DiRossi to get him here today. I'm really

hoping we don't have to bring him back Monday. I'm going to

have little, if any, redirect, and I'm hoping even if we have

to stay a little later that we could get it done. Our direct

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was only about an hour and 20 minutes. So I would just like to

inquire.

JUDGE BLACK: How are you coming on cross?

MR. FRAM: I've got a little ways to go.

JUDGE BLACK: I'm sorry?

MR. FRAM: I've got a little ways. Let me look at

this outline here.

Well, we're through moving through the material, but -- and

I tried to delete some things from the direct so as not to be

repetitive, but I'm --

JUDGE WATSON: How about let's do it in the next ten

minutes?

MR. FRAM: I won't be -- I can do ten more minutes,

but I do have more than ten minutes of questions.

JUDGE BLACK: Okay. And you don't a clear sense of

how much more you have?

MR. FRAM: Obviously, part of it depends on the

answer, but it will be more than ten. So I don't know what

to --

JUDGE BLACK: 20, 30, 40, 50? Ballpark. I'm just

trying to figure it out.

MR. FRAM: I'm thinking within 50. 20 is probably

unrealistic. Probably could be. It could be an hour.

JUDGE BLACK: I inquired.

MR. STRACH: Your Honor, we would request that we stay

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and get it done this evening. Mr. DiRossi is working on the

State's transportation budget. He's got some very significant

duties that he's got to get done next week. Being here today

was a very significant imposition on his duties. We would

request that we stay and get it done today.

JUDGE BLACK: The request is noted.

MR. STRACH: Thank you, Your Honor. 

JUDGE BLACK: Have at it.

MR. FRAM: I'll proceed, Your Honor.

Q. Why don't we take a look at Plaintiffs' Exhibit 128. This

is an e-mail. It's a longish chain, so I'm not going to -- and

I will move things along and not go through the whole document.

It's dated September 12, 2011, and it starts out with an e-mail

from you to Mr. Kincaid. Do you see that?

A. I do, I do.

MR. FRAM: And, actually, we can move this forward

even faster. I'd like to move for its admission. There are no

objections.

MR. STRACH: No objection.

JUDGE BLACK: Very well. It's admitted.

MR. FRAM: Thank you, Your Honor.

(Plaintiffs' Exhibit 128 was admitted.)

Q. And you tell Mr. Kincaid that you're looking for a sign-off

on Speaker Batchelder and President Niehaus on the Stivers'

edit. Do you see that?

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A. I do.

Q. We've been talking about that it's Stivers' district. Do

you recall that?

All right. Why don't we take a look at page three of the

document at 9:28 in the evening on Monday, September 12. Do

you see Mr. Whatman sends you an e-mail at that time asking --

making a last-minute request in changing the map? Do you see

that?

A. I do.

Q. I think in your direct testimony you referenced a change

related to the Timken headquarters in District 16; isn't that

right?

A. Yes.

Q. Do you remember, in fact, getting, sort of the night before

the bill's going to be introduced, a request to change the map

from Mr. Whatman?

A. You mean during the earlier questioning?

Q. Right now. Do you remember back as things were happening,

the night before the bill was to be introduced, Mr. Whatman

comes in with a last-minute change regarding the Timken

headquarters?

A. I remember it being -- when I spoke earlier, I remembered

it being late. I didn't realize how late it was until I just

saw the e-mail.

Q. So this is generally consistent with your recollection

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that's how it all went down?

A. I mean, this is giving me a little more clarity of the

exact timeline, but I remember it being a late request dealing

with the Timken headquarters.

Q. And if we can go down to the next e-mail after this one

from Mr. Kincaid. And he asks -- do you see where he asks you,

he says, quote, "Ray, slash, Heather do you want me to do it

and send the file over, or will y'all do it?" Do you see that?

A. I do.

Q. If you go down to the next e-mail about a minute later you

responded. Do you see that? Quote, "You do and get

equivalence file to us asap."

A. I do.

Q. Do you recall asking Mr. Kincaid to make this change and

send it to you with a new equivalency file? Is that right?

A. I do.

Q. And equivalency file, it's another way of saying a block

assignment file; isn't that right?

A. Generally, yes.

Q. You could take that, put it in Maptitude, generate a new

map, send it over to LSC; isn't that right? 

A. Well, there would need to be -- there's a few steps that

you're skipping there. But it would have to be reviewed. I'd

have to review. We'd have to run it by the president and the

Speaker and make sure they were okay with it. 

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But as far as transporting the information to us, I

obviously didn't have the time do it. So I asked him to send

it to me and then I could review it to make sure that we felt

we were okay with it.

Q. As a tactical matter you need to have the block equivalency

file, a block assignment file, load it into Maptitude and send

it over to LSC. I understand there are approvals you need, but

that's the technical flow, isn't it?

A. Well, sending it to LSC is not part of the technical

process of Maptitude. I mean, from my process, I didn't have

time. This is right before the bill rolled out. We were

probably engaged in so many different -- preparing press

documents, getting ready to let members know, all the members

of the General Assembly know, and rolling out the bill, that I

said, "You do this. You send it to me." 

That way I knew I didn't have to spend that time doing it.

I could review it. I could get feedback if I thought it was

okay, and then I could get approval from the ultimate deciders,

which were the president and the Speaker.

Q. So Mr. Kincaid had the materials, the computer files and

the software so he could do this? You could ask him to do it;

right? 

A. Every member of the Ohio public had access to the Common

Unified Redistricting Database. That was what the task force

was supposed to do, get that information out to every member of

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the public.

Q. But he had the computer files for the maps you were working

on, so he could send you a revision at that late hour; isn't

that right?

A. Well, a lot of people did.

Q. Right. But including Mr. Kincaid?

A. Yes.

Q. So for this change he had the PIN; isn't that right?

A. Pardon.

Q. For this change he had the PIN?

A. No. This is no different than he was making a suggestion.

He was getting it to us. We would have to review it and we

would decide -- well, the president and the Speaker would

decide whether or not it was going to be put into the bill.

Q. Okay. So it wasn't clear whether you were going to say yes

or no. He was going to provide a suggestion; is that right?

A. Right.

Q. Okay. Let take a look at the -- let's go down a little

bit. And then -- hold on. Let's see now.

So at 10:42 in the morning -- in the evening, I'm sorry --

in the evening Mr. Kincaid wrote back "File exporting now." Do

you see that?

A. I do.

Q. So he did, in fact, send it to you, the equivalency file;

isn't that right? That's the file he's talking about; isn't

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that right?

A. (No response.)

Q. Okay.

JUDGE BLACK: Was that question answered? 

Q. Was that answered?

A. You're asking if he sent me an e-mail at 10:42 saying "File

exporting now"?

Q. And that that was an equivalency file?

A. Yes.

Q. Okay.

A. Sorry.

Q. And about a minute later, we go down, and you thanked him.

And then -- and then -- and then at 10:55 Mr. Kincaid sends you

the changed file. Do you see that?

We can go down. We can see the attachment for LSC draft

bill number 3.

A. Okay. I -- I see that in the e-mail, your highlighting.

Q. Any reason to doubt you got that?

A. I don't recall it, but I'm -- I'm sure it seems logical in

the string.

Q. And let's go down to the next morning, Tuesday, September

13, 2011 at 6:11 AM, e-mail from Mr. Whatman to Mr. Kincaid,

yourself, Ms. Mann, where he says, quote, "Stellar work on

short notice. Hope I didn't mess up making a bill."

Any reason to doubt that he didn't thank everybody for

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their stellar work on short notice on the day that, in fact,

the bill was introduced?

A. Are you asking me if that's what he said in his e-mail?

Q. Any reason to doubt that he sent it?

A. That he sent that e-mail?

Q. Yes. 

A. No, I -- no. I see it.

Q. All right. Okay.

A. I'm not sure what he means by the fact that it came back as

a revised, if that means that we, when we were doing our check,

had made some type of change to it that then had to go back to

him for his thoughts.

Q. You did put Timken in 16, didn't you?

A. As it turns out, not successfully. Parts of the

headquarter were put in 16, but parts of them were not.

Q. But parts did go in?

A. Some parts did and some parts didn't.

Q. Okay. 

A. Can you -- I'm sorry. Could you go back to the -- I can't

scroll or anything. Can you go back up to the e-mail where I

said you make the changes and get to us?

Q. All right. Where it says "You do," that one?

A. "You do and get to us," maybe, I think is what I said.

Q. Yeah, yeah.

A. There it is. September 12th, 9:36.

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Q. That's right.

A. You can see a lot of time passed between -- as I said, I

said: You do it and get to us. That gave me -- while he did

that work, I had the ability to check in with President

Niehaus, tell him what was going on, tell him what we were

hoping to see, and get some feedback from him.

So that's -- that's why I asked him to do it so I didn't

have to do it and then start that process. I mean, at this

point literally every minute was very, very valuable.

Q. And then you could convey all this to Senate President

Niehaus; right?

A. Yeah. Well, I was doing that before I got the file --

Q. Right.

A. -- it seems, from the exchange here.

Q. Okay, okay. I did have one question. If we could go back

to Plaintiffs' Exhibit 124. Let's take just a quick look at

Senator Faber's e-mail address that you used. Do you see that?

A. I do.

Q. "Faber@bright.net," that's not an official Ohio State

e-mail address, is it?

A. No.

Q. That's his personal address. If we look at 125, Senate

President Niehaus' address at 9:25 in the morning, he's sending

it from "@fuse.net." Do you see that?

A. I do.

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Q. It's also a personal e-mail address. So that's what you

were using?

A. (Nods head up and down.)

Q. And they were using it with you, their personal addresses

over that weekend?

A. Yes.

Q. Okay. Let's change subjects just a little bit.

Now, in Maptitude, we talked about how you have this

election results data in Maptitude. And do you recall

receiving that data from Mr. Clark Bensen as the source of the

political information you used in Maptitude?

A. Well, I think most of the -- most of the data came from the

Common Unified Redistricting Database that we talked a little

bit about. And then that data, as was not unlike the previous

decade, had some deficiencies in it. And so there was a

computer -- somebody who was much more savvy with computers

than I -- Clark Bensen -- who was able to refine that data to

make it -- to make it more workable.

Q. Now, he included -- the data you received from Mr. Bensen,

that included elections other than those that were in the OCURD

database; isn't that right?

A. I believe the unified -- the five races that I had selected

that I wanted to use for the unified database, I don't recall

if any or all of them were in the Common Unified Redistricting

Database. So the ones that were not, if any were, would have

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had to be added in, and I possessed the technical knowledge to

do that.

Q. So Mr. Bensen provided you information of those additional

elections; is that right?

A. I don't recall specifically what he did. But at some point

we conveyed to him what we wanted in the data, and he was able

to do it.

Q. Okay. And Mr. Bensen, he was a consultant for the

Republicans in Washington, D.C.; isn't that right?

A. I specifically don't know. I just remember him being

offered -- he was somebody that I had used for this same type

of service in the previous decade. And I found him to be very

reliable and very useful in getting the data in a workable

format. So it was made clear to me that he was available to

provide that service in this decade, and so I used his services

again.

Q. And the person who made it clear to you that he was

available to provide services in this decade, that was Mark

Braden, wasn't it?

A. You know, I don't specifically remember if it was him.

Q. Was it someone from Washington, D.C. Republicans who made

it clear to you?

A. Sitting hearing at the moment, I don't specifically recall

who it was.

Q. So this fellow just showed up with a bunch of election

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data, but you don't recall how you got it connected?

A. No. I said I've known him for the previous decade, since

2001, so -- there was some conversation. 

Again, things were happening very fast. Somebody said,

"Clark is available again to help if you have data issues."

And I said, "Oh, yes, I remember Clark," and so we were able to

connect.

Q. Now, you mention you used five elections for your unified

index.

A. Yes, both decades.

Q. So we'll talk about the 2011 decade. So you have the --

one of the -- let's see if I got the five right. Do you

remember the five?

A. I will do better hearing you say them than me telling. I

can remember a few of them. I remember a few of them.

Q. 2004 presidential?

A. That was definitely one of them.

Q. 2006, auditor?

A. I believe that was one of them.

Q. 2006, Attorney General?

A. I don't specifically recall. There's another presidential

one in there.

Q. 2008, Presidential?

A. Yes.

Q. And 2010, Governor?

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A. That sounds right, yes.

Q. So there's four you remember and there's one you're not

sure about?

A. That's sitting here at the moment, yeah.

Q. Okay. So it might have been 2006 attorney general, but

you're not sure.

It did not include any 2002 elections, did it?

A. Yeah. Obviously, the further you go back, the geography

changes, obviously. Anybody who knows boards of election knows

the geography is constantly changing. Boards of elections in

cities are constantly re-precincting, and so the further you go

back, the more where your data doesn't line up with your

geography.

Q. Right.

A. So I think I intentionally did not want to go back to 2002.

Q. Okay. So you didn't include that.

MR. FRAM: Why don't we put Plaintiffs' Exhibit 115 on

up.

Q. This is a DiRossi-produced document that we used, sir. The

number is at the very, very bottom. If we could just look at

that, that you produced in response to discovery in this case

from your files. Okay? 

Do you recognize this document?

A. I do recognize it. I think it was in color when I produced

it, so -- it's black and white here.

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Q. All right.

A. But I'm pretty sure I recognize it.

Q. In fact, you're the author of the document?

A. I believe so.

Q. Okay. And you create it after HB 319 was passed; is that

right?

A. You know, I remember you or one of your colleagues asking

me about this in the deposition. Sitting here, I apologize, I

can't remember if this is from 319 or 369, but it was one of

the documents that was created after the adoption of one of

those maps.

Q. Why don't we put up from your deposition if it will help

you.

A. Oh, great. Thank you.

Q. We can put that on the screen.

MR. FRAM: 236, lines 22 through 23. See the whole

piece of it so the witness can see it in context, please.

THE WITNESS: Yeah. Thank you. Thank you.

MR. FRAM: Why don't we just go down. We're 236.

Yeah, from 22 all the way down to, say, 25.

A. As you know from the deposition, there were a couple

different documents that I created various places that were --

that had indexes on them, and so this one just says this

document was created. I mean, it's --

Q. Okay. Is Exhibit 22 in your deposition?

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A. Okay.

Q. We can go up to that and see where 22 is introduced.

Are you not sure? You're sure you created it; you're just

not sure of the timing. Is that what you're saying?

A. I mean, if you're saying you showed me that as an exhibit

in the deposition and I said it was created -- 

THE WITNESS: Oops. You just scrolled off a page.

A. -- created after 319 was adopted, that helps refresh my

memory --

Q. Okay.

A. -- that that's when it was done, afterwards.

MR. FRAM: By the way, I'd like to move to have this

admitted. There are no pretrial objections.

JUDGE BLACK: Move to admit 115 or 236?

MR. FRAM: So that's -- yeah, that's Plaintiffs' 115.

JUDGE BLACK: You're moving to admit Plaintiffs' 115?

MR. FRAM: Yes, yes, Your Honor.

JUDGE BLACK: Is there an objection?

MR. STRACH: No objection.

JUDGE BLACK: Admitted.

(Plaintiffs' Exhibit 115 was admitted.)

Q. I want to look at some of these scorings. You see that

PVI, what you call D+1 R+1, column on the right?

A. I do.

Q. And you see there's a few lines about what those things

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mean at the bottom underneath the chart. Do you see that?

And let's take the second chart. The first one's the old

map, and the second one's the 16 district map. Do you see

that?

16 district map, you understand this to be 319?

A. It sounds like that's, yes, 319. After the passage of 319.

Q. After the passage. And it says R+5, quote, unquote, "R+5

is likely Republican." Do you see that?

A. Yeah. So as we talked about before, this PVI or the R+1,

D+1 is not something that I was able to generate. So this is

information that would have been given to me after the map had

been, you know, made available, and I would have taken that and

then just literally typed it in here. So I'm just kind of

regurgitating it. 

And again, the reason for it was, I wanted to use this

unified average. All these other things on here were all the

other things that people were talking about, including this PVI

stuff. So I just wanted to have it all on one sheet afterwards

so, when I was inevitably asked questions about it, I didn't

have to have nine different sheets of paper. So I was just

trying to consolidate the stuff.

Q. Okay. And I think you said the PVI information, that was

favored by certain national Republicans; is that right?

A. Well, I think not just Republicans but national Republicans

and Democrats use that system, or whatever it is.

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Q. You got this PVI information from national Republicans,

didn't you, not national Democrats?

A. I probably would have got them from Adam.

Q. Adam Kincaid?

A. Yes.

Q. All right. And the phrase at the bottom R+5 is likely

Republican. Now, you wrote -- you're the author of this

document?

A. Well, I am the author of the document and I created this

spreadsheet, but some of the information that's on here I am

just retyping from other sources. And these R+5 is this, up to

R5 is that, you know, that -- those are designations of a

system that I cannot create or duplicate or know how it works.

So I am just probably regurgitating something that had been

said or that one of the interest groups had said.

Q. But you didn't regurgitate something you thought was wrong,

did you?

A. Well, I would say I used the unified average. That's the

one I wanted to use. But sometimes you're swimming upstream

and too many other people --

Q. Right.

A. -- using something else, so -- I don't even know enough

about it to say whether it is right or wrong.

Q. Okay. And you say a lot of people had questions that they

want this information?

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A. Yes.

Q. In fact, that included members of the Senate leadership

team in Ohio; correct?

A. Yes.

Q. They wanted this political information; correct?

A. They -- as I said, everybody wanted this information, so

that would include them. They were no different.

MR. FRAM: Okay. Why don't we put Plaintiffs' Exhibit

56 up on the screen, please.

Q. I think you mentioned before you'd have two computer

screens going when you were working on maps. One would have a

map, and the other would have statistics and data on it; is

that right?

A. That's how my computer was set up.

Q. I want to just look at this. Some of the data that you're

seeing in this right table --

MR. FRAM: By the way, not only is there no objections

to this exhibit, it's actually part of a stipulation we have on

these Maptitude.

JUDGE BLACK: You're moving to admit it?

MR. FRAM: Yes, Your Honor.

JUDGE BLACK: Any objection?

MR. STRACH: No. It's subject to the stipulation.

JUDGE BLACK: Admitted subject to the stipulation.

(Plaintiffs' Exhibit 56 was admitted.)

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Q. Does some of this data on the right side look familiar to

you in terms of the kind of data that you would have on the

screen? I'm not saying the format of the table is the same

because we put it all on one screen, because you have two

screens. But does the data itself look familiar to you?

A. Could you go back to the first one.

Obviously, this is -- just kind of this layout is not the

way I looked at it, I think, as you said, or it's not how I was

set up. I mean, I -- I mean, there -- there's like 30

different data sets on here. I didn't have anywhere near that

amount, so by default, a number of these things were not things

that I was looking it. So if you want to go through them

individually --

Q. Why don't we start at the top. "ID," do you see 10? Do

you see that?

A. Yeah.

Q. You're saying that's for District 10, this data?

A. You know, I -- I believe that's what that is, yes.

Q. Okay. 

A. Yeah. 

Q. Okay. Why don't we take a look at page four. If we can go

down to the row that says "%" -- 

MR. FRAM: Yeah. There you've got it. Thank you.

Q. -- "% EA12, underscore, RV." Do you see that?

A. I do. It's highlighted on my screen.

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Q. I think you said the unified index was one of the pieces of

data you would be able to have when you looked at maps in

Maptitude; is that right?

A. That was one of the number of data sets that I had on my

left screen.

Q. And, in fact, the -- you can call it a code that you had

for the unified index, was that % EA12, underscore, RV?

A. Yeah. I guess I never understood why EA12 was the

designation, but I was told that was -- "Ray, that's your

unified index."

Q. There you go. So if you look at one of these Maptitude

data tables and you find that row, you find the unified index

scoring for that district; isn't that right?

A. Well, again, I didn't set it up this way, but as I said --

I think I've said repeatedly now that that was one piece of

information that was constantly on my screen, along with all of

the other ones that I listed.

Q. I understand. Constantly on your screen.

MR. FRAM: You can take that down.

Q. In drafting the congressional district map in 2011, I think

you talked about the pairing of different incumbents. Do you

recall that testimony?

A. I do.

Q. And you talked about the pairings of Representatives Turner

and Austria. Do you recall that?

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A. I do.

Q. The pairings of Representatives Kucinich and Kaptur?

A. I do.

Q. And the pairings of Representative Sutton and Renacci. Do

you recall that?

A. I do.

Q. And any time was there any conversation to pairing Sutton

and Kucinich instead of Kucinich and Kaptur?

A. On the Democratic side for pairings there was a lot of

conversations, and I was part of many of them, about which two

to pair, and so I'm sure Kucinich and Sutton were discussed.

Q. Do you recall pairing Kucinich and Sutton yourself in a

map?

A. They were not paired. 

Q. They were not.

A. I'm sorry.

Q. Did you ever draw up even a proposed map pairing Kucinich

and Sutton yourself? Did you ever do that?

A. I don't specifically recall that, but I do remember

exploring all of those options, because I remember having

conversations about why I thought that was a very bad idea.

Q. Okay.

A. Yeah. Congressman Kucinich in that pairing, if I may,

was -- 

You know, to pair Representative Sutton, Congresswoman

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Sutton from Summit County, a significant portion of the

district of Summit County that wasn't in CD11 would need to be

in there. 

And as I talked about all of the concerns about

Representative Fudge's district, it really wasn't so much, as

we all know in this room, that for Congress you don't have to

live in the district to run for the district. And where Dennis

Kucinich was really popular, where he was mayor and where he

had like this cult-like following was in western Cleveland.

And if you put him in a district with Sutton that was a

majority of Summit County, whether he was in that district or

not, the concern was he would then run against Fudge, because

that's where his constituents -- that's where his base of

support was.

So it wasn't so much about just physically put two and they

were locked in there. Wherever you paired Kucinich, it was

really where his old district was, where the concern was he

would run. And that's why nobody wanted to risk it that he

would run against Congresswoman Fudge. I'm pretty sure he was

quoted in the paper extensively saying he was running no matter

who he was paired against.

MR. FRAM: And just at this particular spot my

foundation and hearsay -- I know it's a standing objection --

would be applicable to everything in the last response.

JUDGE BLACK: Very well. We'll make a note of it.

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Q. In drawing districts in 2011 for either map, HB 319 or 369,

did you calculate compactness scores for the districts?

A. No.

MR. FRAM: Okay. If we could put Plaintiffs' Exhibit

454, D3 I think it is, page 28. I think it should be the map

of District 1. There you go.

Q. Did you ever analyze the compactness of a district that put

together a piece of Hamilton County and Warren County?

A. No.

MR. FRAM: We can take that down.

Q. Now, you mentioned a change in proposed District 3 related

to a residence of Ms. Kilroy, I think it was; is that right?

A. Yes.

Q. And I think you said that change did get made where she was

taken out the district; isn't that right?

A. Yes. 

Q. That affected a pretty trivial number of voters, didn't it?

About 800; isn't that right?

A. Yes. Congress -- well, now-Congresswoman Beatty, then not

Congresswoman Beatty, felt that it created an issue with former

commissioner or former congresswoman --

I just lost the name. I'm sorry. The Franklin County

commissioner.

If she was physically out of the district, even though she

could still run against her, it would create some type of

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RAYMOND E. DiROSSI - CROSS 5 - 285 

political advantage for Joyce Beatty to say that she doesn't

even live in the district.

So you are absolutely right. It may have been slightly

less than 800 people, but it was achieving a goal that

now-Congresswoman Beatty wanted to achieve.

MR. FRAM: Motion to strike subject to my standing

objection.

JUDGE BLACK: Very well.

A. You asked me the question.

Q. I think you said Mr. Braden had visited the hotel room at

the DoubleTree more than one time; isn't that right?

A. A few times.

Q. Yeah.

A. I said a few times, and I remember you said "More than

once," which is a few.

Q. A few, a few. More than twice?

A. Yeah.

Q. More than three times?

A. Probably.

Q. More than five times?

A. I wouldn't -- I wouldn't feel comfortable saying that

number.

Q. Between three and five?

A. That seems right.

Q. You weren't in court, I don't think, on Monday. We only

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asked you to join us, I think, yesterday to be here today. But

I don't think you, therefore, were able to see Mr. Braden's

opening statement. I'd like to put that on the board. It's

page 39 in the transcript.

And I draw your attention to where he says that, quote,

"Legislation has sometimes been described as a sausage-making

process. This is a legislative process. Sometimes sausage

making is unattractive." Do you see that?

A. I do.

Q. Okay. So were the sausages for HB 319, they were made in

Room 601 of the DoubleTree; isn't that right?

A. Well, that's where I was working out of, but conversations

between the principals were happening in the statehouse, they

were happening on cellphones, they were happening in people's

districts, they were happening all over. I mean, that's where

the decisions were being made. I was just functionally

operating the stuff and making suggestions based on the

impact -- input I was getting.

Q. So per your role in the process, you were making sausages

in the bunker; isn't that right? 

A. Well, I'm not going to say I was making sausages.

Q. Well, making -- if creating --

A. I took this very seriously. I mean, I had been involved in

this the previous decade. 

Q. Right. 

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A. And I felt that -- you know, I was one of the only people

on Capitol Square that had been through this for the previous

decade, so I felt the sense like I needed to do this again.

And forget the district mapping. Just the logistics that the

State had to go to to be ready to do this nobody knew, and I --

I mean, so I took -- I took it very seriously.

Q. I understood you took it seriously, and you took it

seriously in Room 601; isn't that right?

A. Well, for the first -- for the first bill, 319, I was in

601. For the other one I was in the statehouse, and that's the

one we were working with the Democrats on.

MR. FRAM: All right. Move to strike on the "working

with the Democrats," but other than that, I have no further

questions.

JUDGE BLACK: Very well. Give us just a moment.

(Judges confer privately.)

JUDGE BLACK: Redirect, if any?

MR. STRACH: Just one or two questions.

JUDGE BLACK: One or two?

MR. STRACH: Very quick. I promise.

JUDGE BLACK: Lawyers tell me two questions, and then

question number nine I become agitated.

A couple questions. Do whatever you like. We're going to

stay until you're done.

MR. STRACH: Thank you, Your Honor. I'm grateful for

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RAYMOND E. DIROSSI - REDIRECT 5 - 288 

that. I really appreciate that.

REDIRECT EXAMINATION 

BY MR. STRACH:

Q. Mr. DiRossi, just speaking of Congressional District 3,

which was just mentioned in your testimony with Mr. Fram, do

you recall, is -- 

Congressional District 3 is in Franklin County; correct?

A. Yes, it is.

Q. And Franklin County is split three different ways between

congressional districts; is that correct?

A. In the last map it was, in 2001 and in 2011, yes.

Q. Do you recall why it was split three different ways in this

map?

A. Yes. So there -- I forgot to mention that. There were

specific requests from the Columbus business community -- 

I mean, it's the Columbus partnership, I think is what they

call themselves.

-- specifically saying that they wanted to have members of

both the Republican and Democratic delegations in Franklin

County so that they could always have somebody to go to that

was in the majority, and it made sense for them to have that.

So we didn't want to split it four ways and we didn't want to

split it two ways. We wanted to keep it the way it had been

and achieve that with a new third.

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RAYMOND E. DIROSSI - REDIRECT 5 - 289 

Q. And was that in the form of a letter?

A. I am pretty sure they sent a letter to that effect.

MR. STRACH: Okay. 

Thank you, Your Honor. No further questions.

JUDGE BLACK: Very well.

MR. STRACH: I doubled up on you. I'm sorry.

JUDGE BLACK: Sir, number one, you have survived.

Number two, you are free to go. And number three, I know your

order of -- you weren't expecting to testify today and you made

a major league effort to be here today, and on behalf of the

Court and the community, I thank you.

THE WITNESS: Well, thank you very much.

THE COURT: You're free to go.

THE WITNESS: Thank you.

(Witness excused.)

JUDGE BLACK: Are we prepared to adjourn for the

weekend? 

From the plaintiffs' perspective?

MR. FRAM: We are, Your Honor.

JUDGE BLACK: From the defense?

MR. STRACH: Yes, sir, Your Honor.

JUDGE BLACK: From the intervenors?

MR. LEWIS: Yes, sir.

JUDGE BLACK: It's unanimous. We're adjourned for the

weekend. See you at 9:00 on Monday.

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COURTROOM DEPUTY: All rise. Court is adjourned.

(At 5:27 PM, the trial was recessed, to be continued on

Monday, March 11, 2019, at 9:00 AM.)

- - - 

MISCELLANEOUS

Plaintiffs Rest ................................. 143

Defendants' Evidence ............................ 145

- - - 

I N D E X O F W I T N E S S E S

PLAINTIFFS' WITNESSES: PAGE

WENDY K. TAM CHO 

Cross-Examination by Mr. Tucker .................. 4

Redirect Examination by Mr. Subhedar ............. 123

DEFENDANTS' WITNESSES: PAGE

RAYMOND E. DiROSSI 

Direct Examination by Mr. Strach ................ 145

Cross-Examination by Mr. Fram ................... 206

Redirect Examination by Mr. Strach .............. 288

- - - 

E X H I B I T S

EXHIBIT NUMBER: ADMITTED

Joint Exhibits 1-31 ............................ 135

Plaintiffs' Exhibit 56 279 .......................... 

Plaintiffs' Exhibit 89 122 .......................... 

Plaintiffs' Exhibit 115 276 ......................... 

Plaintiffs' Exhibit 119 227 ......................... 

Plaintiffs' Exhibit 124 240 ......................... 

Plaintiffs' Exhibit 125 243 ......................... 

Plaintiffs' Exhibit 126 252 ......................... 

Plaintiffs' Exhibit 128 263 ......................... 

Plaintiffs' Exhibit 428 122 ......................... 

Plaintiffs' Exhibit 442 ......................... 122 

Plaintiffs' Exhibit 581 244 ......................... 

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E X H I B I T S (Continued)

EXHIBIT NUMBER: ADMITTED

Intervenors' Exhibit 5 122 .......................... 

Intervenors' Exhibit 72 198 ......................... 

Dr. Cho's report from Pennsylvania League of 

 Women Voters Case ............................. 122 

Dr. Cho's Pennsylvania trial testimony .......... 122 

All exhibits listed in Amended Appendix L of 

 ECF 237 were conditionally admitted ........... 135 

Plaintiff's designations and counter-designations 

 for depositions listed in Appendix A of ECF 

 230-1 ......................................... 136 

- - - 

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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