1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

OHIO A. PHILIP RANDOLPH 

INSTITUTE, et al.

Plaintiffs,

v. 

LARRY HOUSEHOLDER, Speaker of the 

Ohio House of Representatives, et al.

Defendants.

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

Judge Timothy S. Black 

Judge Karen Nelson Moore 

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

 

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO INTERVENORS’

MOTION TO EXCLUDE THE EXPERT REPORT AND TESTIMONY OF

DR. LISA HANDLEY

INTRODUCTION

Intervenors seek to exclude Dr. Handley’s district-specific, functional-analysis—the only 

analysis of this kind submitted in this case—as irrelevant. Dr. Handley’s analysis will aid the 

trier of fact in determining whether the legislature drew District 11 to contain 52% black voting 

age population (“BVAP”) in order, as Intervenors represent in their motion, “to protect the 

minority equal electoral opportunity the Act guarantees by creating a majority-minority district 

in northeast Ohio.” Ints.’ Mem. in Support of Mot. To Exclude the Expert Report and Testimony 

of Dr. Lisa Handley (“Ints.’ Mem.”) at 3 (Jan. 18, 2019), ECF No. 152-1 at 3. Intervenors and 

Defendants cannot use VRA as a shield against liability by professing compliance with federal 

law, without allowing plaintiffs to disprove the validity of this justification. Moreover, as Dr. 

Handley’s analysis encompasses both election prior to and after the drawing of the challenged 

map, it can be used to address VRA compliance at various points in time. Finally, Intervenors’ 

position, based on one court opinion, that ecological inference estimates must be accompanied 

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by confidence intervals is incorrect. Dr. Handley provided a measure of uncertainty for her 

ecological inference estimates, just not the one on which Intervenors apparently insist. 

Intervenors do not correctly present the reliability standard under Daubert v. Merrell Dow 

Pharm., Inc., 509 U.S. 579 (1993). Dr. Handley’s methodologies—well-established and wellaccepted in racial bloc voting analysis—are reliable. Her report and testimony should be 

admitted.

ARGUMENT

A. Dr. Handley’s analysis is relevant.

Expert testimony is relevant, and therefore admissible under Rule 702, not only when it 

relates directly to the claims of the case, but when it is “helpful to the trier of fact.” Wynacht v. 

Beckman Instruments, Inc., 113 F. Supp. 2d 1205, 1210 (E.D. Tenn. 2000) (citing Daubert, 509 

U.S. at 591). While intervenors correctly read Dr. Handley’s report to make no mention of 

partisan gerrymandering, that does not mean her report is not relevant in a lawsuit about partisan 

gerrymandering. This is especially true in light of what Intervenors made transparent in their 

Daubert motion: they argue that District 11, drawn to contain 52% BVAP, “was a result of the 

General Assembly’s choice to comply with the Voting Rights Act.” Ints.’ Mem. at 3.1

 In other 

words, Intervenors and Defendants themselves contend that complying with the Voting Rights 

Act is a justification for drawing Congressional District 11 to contain 52% BVAP. Dr. 

Handley’s district-specific, functional analysis, including elections from both before and after 

 1 In discovery, Plaintiffs have identified emails among the map drawers that are picking BVAP for 

District 11 out of thin air, suggesting that the concern was not for identifying the BVAP actually 

functionally needed to ensure the minority population an equal opportunity to elect candidates of choice. 

See, e.g., Declaration of Emily R. Zhang in Support of Plaintiffs’ Opposition to Intervenors’ Motion to 

Exclude Dr. Handley (“Zhang Decl.), Ex. D.

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redistricting, speaks directly to the validity of such a justification. Dr. Handley’s analysis also 

assists the Court in considering the Plaintiffs’ Proposed Remedial Map and simulations.

1) Dr. Handley’s analysis aids the trier of fact in evaluating the state’s justification of VRA

compliance.

Intervenors’ contention that Dr. Handley’s analysis does not “fit” this litigation because it 

does not discuss the “partisan motive” of the legislature is patently untenable. Ints.’ Mem. at 8. 

Dr. Handley’s analysis does “shed [] light” on whether the challenged plan and specifically 

District 11 are unconstitutional partisan gerrymanders by probing the purported basis for drawing 

a district with 52% BVAP. Id. As such, Dr. Handley’s report does, in fact, “bear on partisan 

intent or effect in some way, shape, or form.” Ints.’ Mem. at 9 (emphasis in original).

An analogy to the non-VRA case cited by Intervenors, Harris v. Arizona Independent 

Redistricting Commission, 136 S. Ct. 1301 (2016), proves instructive.2

 Harris involved a 

redistricting challenge “on the ground that the plan’s districts are insufficiently equal in 

population.” Id. at 1305. Plaintiffs in that case alleged that the population deviations reflected 

“the Commission’s political efforts to help the Democratic Party,” while the Redistricting 

Commission ultimately proved that it in fact reflected “efforts to achieve compliance with the 

federal Voting Rights Act.” Id. at 1307. That Harris was centrally about malapportionment did 

not make motives “to secure political advantage for one party,” id., or to comply with the Voting 

Rights Act any less “relevant” to the litigation. Likewise, Defendants’ and Intervenors’ ability to 

 2 A similar analogy can be made in the racial gerrymandering context. The claim in a racial 

gerrymandering case is that race predominated the drawing of district lines. Often, the state defends itself 

against such a claim by stating that race was taken into consideration in order to comply with the Voting 

Rights Act. See, e.g., Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788, 801 (2017). In 

those cases, certainly Voting Rights Act compliance is relevant to the litigation. And whether the 

compliance was genuine and valid is a central issue of dispute that the trier of fact must resolve. See, e.g., 

Cooper v. Harris, 137 S. Ct. 1455, 1472 (2017) (finding that legislature’s view that the BVAP in the 

district had to exceed 50 to avoid § 2 liability to be “at war with our § 2 jurisprudence”).

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demonstrate that District 11 was actually drawn to comply with the Voting Rights Act, and not 

simply pay lip service to it, is a relevant—and indeed crucial—component of this case. Dr. 

Handley’s analysis of what the Voting Rights Act actually requires could not be anything but 

relevant.

Intervenors then claim that Dr. Handley’s analysis is irrelevant because “the law did not 

require the Ohio General Assembly to conduct an ‘analysis’ like hers before drawing a majorityminority district.” Ints.’ Mem. at 10. The law certainly did not permit the map drawers to just 

pick a BVAP without any grounding in what would be required for compliance with the VRA. 

Intervenors are free to rely on their mistaken interpretation of what Section 2 of the Voting 

Rights Act requires. But their reading of Section 2 does not dictate the admissibility of Dr. 

Handley’s report and testimony. Dr. Handley’s racial-bloc voting analysis, the touchstone of the 

Gingles preconditions, is central to Section 2 liability, Thornburg v. Gingles, 478 U.S. 30 (1986). 

And as Section 2 liability is apparently now the professed justification, Dr. Handley’s analysis is 

relevant and should be admitted.

Neither of the Supreme Court cases Intervenors cite, Voinovich v. Quilter, 507 U.S. 146 

(1993), or Bartlett v. Strickland, 556 U.S. 1 (2009), hold that “there is no independent 

requirement that states assess any Voting Rights Act criteria before choosing to draw a majorityminority district,” Ints.’ Mem. at 11. Plaintiffs in Voinovich sued over the creation of majorityminority districts because a “larger number of ‘influence’ districts—districts in which black 

voters would not constitute a majority but in which they could, with the help of a predictable 

number of cross-over votes from white voters, elect their candidates of choice”—could be 

drawn. Voinovich, 507 U.S. at 150. The Court rejected plaintiffs’ “packing claim” after 

determining that plaintiffs “failed to demonstrate Gingles’ third precondition—sufficient white 

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majority bloc voting to frustrate the election of the minority group’s candidate of choice.” Id. at 

158. Far from not requiring states to “assess any Voting Rights Act criteria before choosing to 

draw a majority-minority district,” Ints.’ Mem. at 11, Voinovich reminds states that Voting 

Rights Act liability will be determined by the effect the drawn district has on minority voters’ 

opportunity to elect. If anything, Voinovich reaffirms the importance of conducting a racial-bloc 

voting analysis, as liability under Section 2 depends “exclusively on the consequences of 

apportionment:” whether it has “the effect of denying a protected class the equal opportunity to 

elect its candidate of choice.” Voinovich, 507 U.S. at 155 (emphasis in original). 

It is especially hard to see why and how Bartlett might support the legislature’s decision 

not to conduct any analysis to determine whether the lines it drew had “the effect of denying a 

protected class the equal opportunity to elect its candidate of choice.” Voinovich at 155. Bartlett

clarified that Section 2 does not “require state officials to draw election-district lines to allow a 

racial minority to join with other voters to elect the minority’s candidate of choice, even where 

the racial minority is less than 50 percent of the voting-age population in the district to be 

drawn.” Bartlett, 556 U.S. at 6. But nowhere in the opinion did the Court disturb the validity of 

the three Gingles factors and their centrality to establishing a Section 2 violation. Id. at 11-12 

(describing development of Gingles factors and treating them as current). The legislature in this 

case may have decided to throw caution to the wind when it came to the Voting Rights Act, but 

they cannot claim that the Court, either in Voinovich or Bartlett, gave them permission to do so.

The City of Euclid cases Intervenors cite, Ints.’ Mem. at 12, also do not justify exclusion 

of Dr. Handley’s analysis, nor do they support the legislature’s failure to conduct any racial-bloc 

voting analysis. The City of Euclid’s liability in its school board and city council races does 

nothing to undermine Dr. Handley’s analysis of federal and statewide election results in her 

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report. Moreover, if the Euclid cases gave the Ohio legislature, as Intervenors insist, “good 

reason to fear Voting Rights Act liability,” id., the legislature had all the more “good reason” to 

conduct an analysis to determine whether the district it drew had “the effect of denying a 

protected class the equal opportunity to elect its candidate of choice.” Voinovich at 155 

(emphasis in original). 

The final reason Intervenors claim that Dr. Handley’s analysis is irrelevant is that “more 

than half the elections Dr. Handley cites postdate the redistricting.” Ints.’ Mem. at 12.3

 This 

ignores the utility of Dr. Handley’s analyses for other purposes, see infra Section A.2, and also 

betrays a lack of understanding of Dr. Handley’s analysis.

As detailed in Dr. Handley’s report, she conducted “a district-specific, functional analysis 

of voting patterns by race to ascertain the black voting age population necessary to provide black 

voters with an opportunity to elect their candidates of choice in the vicinity of the 11th 

Congressional District of Ohio.” Declaration of Emily R. Zhang in Support of Plaintiffs’ 

Opposition to Intervenors’ Motion to Exclude Dr. Handley (“Zhang Decl.”), Ex. A (“Handley 

Rep.”) at 1. Her determination that a “45% black VAP district offers black voters a realistic 

opportunity to elect their candidates of choice to represent the 11th Congressional District” is 

based principally on Tables 10 and 11 in her report. Id. at 16-17.

In reaching her recommendation, Dr. Handley took a lowest-common denominator 

approach: she ensured that under all the elections analyzed, black voters have a realistic 

opportunity to elect their candidates of choice. Concretely, in Table 10, the estimated vote share 

 3 This argument also further undermines Intervenors’ (perhaps, and Defendants’) argument that that 

District 11, drawn to contain 52% BVAP, “was a result of the General Assembly’s choice to comply with 

the Voting Rights Act.” Ints.’ Mem. at 3. Looking only at the analysis of election results available at the 

time of the 2011 redistricting indicates that compliance with the VRA could have required an even lower 

BVAP than the 45% Dr. Handley identifies (and lower still than the 52% that the map drawers grabbed 

out of thin air).

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of black candidates-of-choice under the second to last column—“percent of vote [Blackpreferred] cand[idate] would have received if district was 45% black VAP”—all exceeded 50%. 

By contrast, at 40% BVAP, the last column, “the results for one of the contests (the 2014 

gubernatorial general election contest . . . , the black-preferred candidate would receive 50.6% of 

the vote) would be razor sharp.” Handley Rep. at 15. 

Notably, she analyzed general and primary elections from 2008 to 2016, therefore 

including elections from both before the challenged map was drawn and after. While the 

recommendation noted in her report is based on the totality of all the data analyzed, her Tables 

10 and 11 provide all the analysis needed to make a similar determination based on any subset of 

the data. For instance, if Intervenors want to learn what percentage Black VAP is necessary for 

minority voters to elect their candidates of choice based purely on data available in 2011, they 

have only to refer to Tables 10 and 11. Handley Rep. at 16-17.

2) Dr. Handley’s analysis aids the trier of fact in evaluating other evidence in this litigation.

As Plaintiffs are cognizant that the Voting Rights Act’s requirements implicate many 

aspects of this litigation, Dr. Handley’s analysis has correspondingly been applied in other 

evidence in this litigation. As such, it is not only relevant for evaluating the validity of the 

state’s VRA compliance justification for District 11, but also for evaluating Plaintiffs’ Proposed 

Remedial Map and Dr. Cho’s simulated maps. 

Dr. Handley’s analysis aids the trier of fact in evaluating the validity of Plaintiffs’ 

Proposed Remedial Map. Plaintiffs submitted a proposed remedial map in this case. The district 

in the Cleveland area, also numbered District 11, has 47.48% BVAP. Zhang Decl., Ex. B 

(“Cooper Decl.”) ¶ 42. The proposed remedial map is, as its name suggests, a forward-looking 

proposal. As such, Dr. Handley’s analyses, incorporating data post-2011, aids this Court in 

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ensuring that the remedial map is drawn compliant with the Voting Rights Act and hence does 

not have the effect of denying minority voters of an opportunity to elect their candidates of 

choice. Dr. Handley’s analysis also aids the trier of fact in evaluating whether Dr. Cho’s 

simulated maps against which to compare the challenged map are compliant with the Voting 

Rights Act. 

B. Dr. Handley’s analysis is reliable.

The reliability inquiry under Daubert is whether “the reasoning or methodology 

underlying the testimony is scientifically valid.” Daubert, 509 U.S. at 592-593. There is no 

doubt that the three (not two, as indicated by Intervenors, Ints.’ Mem. at 4) tried and true 

techniques that Dr. Handley employed in her report are scientifically valid. These three 

methodologies combined are the epitome of reliability under the factors enumerated in Daubert, 

including “testing, peer review, publication, error rates, the existence and maintenance of 

standards controlling the technique’s operation, and general acceptance in the relevant scientific 

community.” U.S. v. Langan, 263 F.3d 613, 621 (6th Cir. 2001). As Dr. Handley noted in her 

report, homogeneous precinct analysis and ecological regression (ER) were credited in the 

Supreme Court’s opinion in Thornburg v. Gingles, 478 U.S. 30 (1986), and ecological inference 

(EI) has been widely accepted by courts since. Handley Rep. at 7; id. at n.10 (providing source 

that lists cases using EI). Indeed, it is hard to imagine a set of methodologies more well-tested 

and accepted in the federal courts. 

Intervenors do not claim that Dr. Handley used unconventional or incorrect methodology 

to conduct her district-specific, functional analysis, nor do they claim that Dr. Handley applied 

any of these methodologies incorrectly. Indeed, in Appendix B of her report, Dr. Handley 

included the entire output that her statistical programs produced, including the standard errors, 

the “known or potential rate of error,” Daubert, 509 U.S. at 594, for each of the EI estimates, that 

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Intervenors are free to consult for their particular desired “measure of statistical certainty,” Ints.’ 

Mem. at 4. Intervenors assert that Dr. Handley does not provide “any measure of statistical 

certainty.” Id. This is patently false. Dr. Handley provides the entire output of her EI analysis, 

including the standard error. App’x B to Handley Rep. at 26-33. Standard errors, which Dr. 

Handley presents, are a measure of certainty just as confidence intervals are, contrary to what 

Intervenors endeavor to claim.

Despite that, Intervenors invent a problem with Dr. Handley’s report out of whole cloth: 

that she did not provide confidence intervals. Yet they cite no precedent where a court excluded

expert testimony of EI estimates for want of confidence intervals. What they do cite are cases 

that discuss confidence intervals or statistical uncertainty, but with one exception, do so without 

any indication of whether confidence intervals are required or indeed dispositive. The totality of 

these cases do not indicate any consensus on whether confidence intervals are required for EI 

estimates, let alone confer authority to exclude Dr. Handley’s report for not including them. 

Intervenors cite Hall v. Louisiana, 108 F. Supp. 3d 419 (M.D. La. 2015), only for 

proposition that courts favor EI over ER. A closer look at the opinion (finding a Section 2 

violation) reveals that the court did not in any way require confidence intervals in EI analyses, 

nor is there any suggestion in the opinion that the EI estimates the court credited in its findings 

included any confidence intervals. In Rodriguez v. Harris County, 964 F. Supp. 2d 686, 766 

(S.D. Tex. 2013), the confidence intervals were derived from a “regression” analysis, not EI, and 

there is no indication from the opinion that the court credited the confidence intervals in its 

analysis or relied on them in any way. Similarly, in Montes v. City v. Yakima, 40 F. Supp. 3d 

1377, 1405 (E.D. Wash. 2014), and Benavidez v. City of Irving, 638 F. Supp. 2d 709, 725 (N.D. 

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Tex. 2009), the courts discussed a dispute between the experts about confidence intervals, but 

did not require them to be included with EI point estimates or rely upon them in any way.

In Bethune-Hill v. Virginia State Board of Elections, 326 F. Supp. 3d 128 (2018), the 

court included a discussion of confidence intervals in explaining why it did not credit the 

testimony of one of the experts, without holding that confidence intervals must be included or 

relying on them in any way. The expert who the court declined to credit was Dr. M.V. Hood III, 

who is also serving as an expert for Defendants in this case. Id. at 178 n.60. Dr. Hood had 

claimed that one of plaintiffs’ experts failed to accompany his estimates “by a degree or range of 

uncertainty” when in fact plaintiffs’ expert “expressly included confidence intervals in all of his 

statistical estimates.” Id. Moreover, the court noted the irony in Dr. Hood including “no such 

measures of uncertainty” (i.e., an error rate of any kind, not necessarily confidence intervals) in 

his own ecological inference results. Id. The citation to Bethune-Hill only demonstrates Dr. 

Hood’s unreliability through his incorrect allegation regarding the failure to include confidence 

intervals, concurrent with his own failure to do so. See also Pls.’ Mot. to Exclude Testimony and 

Reports of M.V. Hood III (Jan. 18, 2019), ECF No. 150.

Missouri NAACP v. Ferguson-Florissant School District, 201 F. Supp. 3d 1006 (M.D. 

Mo. 2016), is the only case Intervenors cite that contains language seeming to mandate inclusion 

of confidence intervals with EI estimates. Specifically, the case quotes the testimony of the two 

competing experts who testified at that trial regarding the inclusion of confidence intervals (it 

does not issue a holding requiring the use of confidence intervals in all cases). Id. at 1042. And

one case is a far cry from it being so “widely known that courts have issued opinions attesting to 

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their importance.” Ints.’ Mem. at 15.4

 Furthermore, in Missouri NAACP, the court did not even 

mention EI standard error, 201 F. Supp. 3d 1006, which is the error rate for the EI estimates that 

Dr. Handley presented. It is not even clear that the court—in the single case relied upon by 

Intervenors—would have required confidence intervals (specifically) if the experts there 

presented error rate in another fashion. 

Moreover, in Missouri NAACP, the court’s discussion of confidence intervals for EI 

estimates occurred in its opinion issued post-trial, after all the evidence, including those with 

only point estimates and not confidence intervals, id. at 1044, were fully aired at a six-day trial, 

id. at 1016.5

 “Vigorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate means” for Intervenors to 

attack any purported uncertainty in Dr. Handley’s results. Daubert, 509 U.S. at 596. Intervenors 

could have retained an expert—like Defendants did in Montes City, Benavidez, and BethuneHill—to demonstrate any unreliability in Dr. Handley’s estimates. They elected not to do so. 

And they could have asked any number of the experts Defendants and Intervenors did retain to 

respond to Dr. Handley’s analysis. See, e.g., Zhang Decl., Ex. C (Brunell Rep.) at Curriculum 

Vitae 16 (Intervenors’ expert provided expert testimony at least once in a Voting Rights Act 

 4 Intervenors ignore court cases from this Circuit (including ones in which Dr. Handley herself was an 

expert) where the court credited the use of, among other metrics, EI and did not require the presentation 

of confidence intervals. See, e.g., United States v. City of Euclid, 580 F. Supp. 2d 584, 596 (N.D. Ohio 

2008) (holding that “statistical evidence of racial bloc voting may be established by three analytical 

models: homogenous precinct analysis (‘HPA’), bivariate ecological regression analysis (“BERA”), and 

King’s ecological inference method (‘King’s EI method’),” crediting Dr. Handley’s expert opinion, and 

not requiring confidence intervals); see also, e.g., United States v. Euclid City Sch. Bd., 632 F. Supp. 2d 

740, 746 n.6 (N.D. Ohio 2009) (crediting both ER and EI, noting that the metrics are “in fact, increasingly 

employed together,” and not requiring confidence intervals).

5 Looking at the point-estimate approach that was presented in Missouri NAACP, 201 F. Supp. 3d at 1044, 

in comparison to Dr. Handley’s Tables 10 and 11 and full EI output in Appendix B, Handley Report at 

16-17, 26-33, demonstrates that Dr. Handley presented a much more fulsome functional analysis than the 

expert in Missouri NAACP, including through presentation of standard error.

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case). They elected not to do so either. Dr. Handley also produced all of her EI output, 

including standard errors, along with all of her underlying data. 

Intervenors have offered nothing that even suggests that including the standard error is an

improper way to present the error rate for an EI estimate. Intervenors’ reliance on the discussion 

of expert trial testimony specific to a single out-of-district case does not demonstrate that this is 

insufficient under Daubert. Should Intervenors determine that any of Dr. Handley’s estimates 

are inaccurate, they are free to explore them on cross-examination. But this Court should not 

exclude Dr. Handley’s testimony, which relies on iron-clad and well-established methodologies, 

on the grounds that she did not report confidence intervals—statistical ranges that only a single 

court has indicated it may require with EI estimates—and reported error rate in another fashion.

CONCLUSION

For all of the reasons discussed above, Intervenors’ motion to exclude the report and 

testimony of Dr. Lisa Handley should be denied.

January 25, 2019 Respectfully submitted,

T. Alora Thomas-Lundborg

Dale E. Ho

Theresa J. Lee

Emily Rong Zhang

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

athomas@aclu.org

dho@aclu.org

tlee@aclu.org

erzhang@aclu.org

/s/ Freda J. Levenson, trial attorney

Freda J. Levenson (0045916)

American Civil Liberties Union of Ohio Fdtn.

4506 Chester Avenue

Cleveland, OH 44103

Tel.: (216) 472-2220

Facsimile: (216) 472-2210

flevenson@acluohio.org

Robert Fram

Nitin Subhedar

Jeremy Goldstein

Michael Baker

Perrin Cooke

Peter Rechter

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Alexia Romero

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Tel.: (415) 591-6000

rfram@cov.com

nsubhedar@cov.com

jgoldstein@cov.com

aromero@cov.com

Kyunghoon John Woo**

Covington & Burling LLP

1999 Avenue of the Stars

Los Angeles, CA 90067

Tel.: (424) 332-4800

jwoo@cov.com

Robert Day

Covington & Burling LLP

850 Tenth Street, NW

Washington, DC 20001

Tel.: (202) 662-6000 

mbaker@cov.com

pcooke@cov.com

prechter@cov.com

rday@cov.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I, Freda J. Levenson, hereby certify that this Memorandum in Opposition to Intervenors’ 

Motions to Exclude Dr. Handley was served upon all counsel of record in this case via ECF. 

/s/ Freda J. Levenson

Trial Attorney for Plaintiffs

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