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Judicial Watch • Stewart – Part II

Stewart – Part II

Stewart – Part II

Page 1: Stewart – Part II

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THE UNITED STATES DISTRICT COURT
 FOR THE MIDDLE DISTRICT NORTH CAROLINA
 
NORTH CAROLINA STATE CONFERENCE CASE NO. 1:13CV658 THE NAACP, al.,
 Plaintiffs,
 PATRICK LLOYD MCCRORY, his
 
Official capacity Governor North Carolina, al.,
 Defendants.
 
LEAGUE WOMEN VOTERS NORTH CASE NO. 1:13CV660
 CAROLINA, al.,
 Plaintiffs,
 STATE NORTH CAROLINA, al.,)
 Defendants.
 
UNITED STATES AMERICA, CASE NO. 1:13CV861
 
Plaintiff,
 
STATE NORTH CAROLINA, al.,) Winston-Salem, North Carolina July 2014
 
Defendants. 9:02 a.m.
 
TRANSCRIPT THE PRELIMINARY INJUNCTION MOTION HEARING
 VOLUME III
 
BEFORE THE HONORABLE THOMAS SCHROEDER
 UNITED STATES DISTRICT JUDGE
 Proceedings recorded mechanical stenotype reporter.
 
Transcript produced computer-aided transcription.
 
NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229  APPEARANCES:  For the Plaintiff:  
(NAACP)  PENDA HAIR, ESQ.  ADVANCEMENT PROJECT  
1220 Street, NW, Suite 850  Washington, 20005  DANIEL DONOVAN, ESQ.  
BRIDGET O'CONNOR, ESQ.  KIRKLAND ELLIS, LLP.  
655 15th Street, NW, Suite 1200  Washington, 20005  IRVING JOYNER, ESQ. CENTRAL UNIVERSITY SCHOOL LAW Box 374  
Cary, North Carolina 27512  (LWV)  JULIE EBENSTEIN, ESQ.  
DALE HO, ESQ.  AMERICAN CIVIL LIBERTIES UNION FOUNDATION  
125 Broad Street, 18th Floor  New York, 10004-2400  CHRISTOPHER BROOK, ESQ.  
AMERICAN CIVIL LIBERTIES UNION Box 28004  
Raleigh, North Carolina 27611-8004  
ALLISON JEAN RIGGS, ESQ.  SOUTHERN COALITION FOR SOCIAL JUSTICE  
1415 Highway 54, Suite 101  Durham, North Carolina 27707  
(USA)  CATHERINE MEZA, ESQ.  JOHN RUSS, IV, ESQ.  
DAVID COOPER, ESQ. DEPARTMENT JUSTICE  
Civil Rights Division  950 Pennsylvania Avenue,  
Washington, 20530  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
APPEARANCES (Continued):
 
(Intervenor
 
Plaintiff): MARC ELIAS, ESQ.
 
PERKINS COIE, LLP.
 
700 13th Street, NW, Suite 600.
 
Washington, 20005
 
For the Defendants:
 
(State NC)
 
(State NC)
 
(Governor)
 
(Amici)
 
Court Reporter:
 
ALEXANDER PETERS, ESQ.
 
N.C. DEPARTMENT JUSTICE
 
P.O. Box 629
 Raleigh, North Carolina 27602.
 
THOMAS FARR, ESQ.
 PHILLIP STRACH, ESQ.
 OGLETREE DEAKINS NASH SMOAK STEWART Box 31608
 Raleigh, North Carolina 27622
 
BUTCH BOWERS, ESQ.
 BOWERS LAW OFFICE, LLC
 1419 Pendleton Street
 Columbia, South Carolina 29201 CHRISTOPHER COATES, ESQ.
 934 Compass Point
 Charleston, South Carolina 29412
 
BRIANA NESBIT, RPR
 Official Court Reporter
 
P.O. Box 20991
 Winston-Salem, North Carolina 27120
 
NAACP, al. -Preliminary Injunction/Vol.
 
Filed 07/18/14 Page 229

Case 1:13-cv-00861-TDS-JEP Document 166
 104
 
111
 135
 159
 159
 
Received
 
169
 
169
 
169
 
169
 
169
 
171
 
171
 
171
 
INDEX
 

PLAINTIFFS' WITNESSES:
 
CHARLES HAINES STEWART, III, PH.D. (CONTINUED)
 
Cross-Examination Mr. Farr
 Redirect Examination Mr. Cooper
 
Recross-Examination Mr. Farr
 
BARRY BURDEN, PH.D.
 
Direct Examination Ms. O'Connor
 Cross-Examination Mr. Farr
 
Redirect Examination Ms. O'Connor
 Recross-Examination Mr. Farr
 
EXHIBITS
 
Exhibits: Identified
 PX-44 Dr. Burden expert report 110
 
PX-169 Dr. Burden supplemental report 110
 PX1-200
 
PX212 North Carolina voter
 registration application
 
PX213 North Carolina absentee ballot
 request form
 
PX-216 Legislative fiscal note
 PX-224 State Board Elections'
 
response voter fraud inquiry
 PX-220 Email exchange from Alec Peters John Devaney
 PX-222 FTP Directory
 
PX-223 Board Elections memo 2013-02
 
DX-2 Mr. Trende's expert report
 DX-3 Dr. Stewart declaration/SC
 
USA
 DX-4 Dr. Stewart supplemental
 
declaration/SC USA
 DX-5 Dr. Stewart declaration/FL
 
USA
 DX-6 Dr. Stewart supplemental
 
declaration/FL USA
 
NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP Document 166 Filed 07/18/14 Page 229 
Received
 
EXHIBITS (CONTINUED)
 
Exhibits: Identified
 
DX-7 Mr. Trende chart Virginia
 voter turnout
 
DX-8 Dr. Stewart article, "Waiting Vote," Summer 2013
 
DX-9 Dade County, FL, sample ballot
 DX-10 Wake County, NC, sample ballot
 
DX-11 Wake County, NC, sample ballot
 DX-12 BNA article, "Expert Evidence
 
Report," 2008
 
NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP Document 166 Filed 07/18/14 Page 229
 
PROCEEDINGS
 
THE COURT: Good morning, everyone. Does anybody
 
have any issue need resolve before continue with
 
testimony?
 
MR. FARR: Your Honor, just mention that we've
 
considered the issue Dr. Stewart's supplemental report that had not read because haven't read everything this case. looked overnight, and waive any objection
 
being admitted.
 
THE COURT: Thank you. Let's continue then with our
 
witness.
 
(The witness returned the witness stand.)
 
THE COURT: will remind you you are still under
 oath, sir. Mr. Cooper you may proceed. MR. COOPER Good morning, Dr. Stewart. Good morning. left off yesterday talking about same-day registration. That's correct. And would like move this morning early voting. Okay. Which you also looked at? Yes. begin with, can you explain why state might want
 
offer early voting?
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229  

Direct Mr. Cooper --Dr. Stewart Sure. There are, would say, three reasons --we've got  three categories reasons why states would offer early voting experience.  The first related costs, that traditional Election  Day voting requires organizing throughout county. That  involves arranging for precincts throughout the county. That  can hundreds county, not thousands larger  counties. You need staff each those precincts, and you  need provide voting machines each those precincts.  And, course, local governments increasingly are under  fiscal constraints. One thought that having fewer  resources allocated into Election Day precincts and  consolidating those into early voting centers, counties are  able economize.  This relates second reason, which has with  administrative benefits. The administrative benefits, part,  arise from the economies. One the challenges that local  election officials talk about frequently the challenge  recruiting, retaining, and training poll workers who  increasingly are having implement complicated  increasingly complicated election laws; and moving more  voters and more resources into early voting centers, you need train and recruit fewer people, and, indeed, you are often  able rely permanent staff handle the voters they  come and vote. there greater assurance that your  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP Document 166 Filed 07/18/14 Page 229
 
employees will implementing the laws fairly, equitably
 
according the law. There are fewer opportunities that you
 
will have engage things like provisional ballots because the responsibility that case for the county give
 
the voter the correct ballot. there are many administrative
 
gains that can had properly implemented for early voting.
 
Finally, there the convenience matter, that voters have
 
increasingly been calling for more convenient ways vote.
 
This has given --put strains traditional mail-in voting,
 
which estimation and the estimation think most
 
election officials the least secured method voting. more voters want vote earlier, election
 
officials, experience, and large, would prefer
 
accommodate that having voters nonetheless come into
 
official sites where they can scrutinized and overseen
 
professional and centralized election staff. the end the day, ends being win-win for
 
county governments fiscally, administratively, and for voters. Could you briefly explain what your --summarize what your
 
conclusions were about early voting? Yes. They were two sorts. First all, the empirical
 
finding, which that North Carolina African Americans have
 
been relying early voting --or rely early voting
 
the elections that examined higher rate than white
 
voters do. That's the empirical finding.
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
The more substantive finding that, consequence
 
reducing the number days early voting, the administrative
 
gains that just mentioned will undermined voters who
 
would have voted the period that has been abolished are
 
redistributed other parts the voting system. Most
 
those will redistributed into the remaining days early
 
voting, the foreshortened period, and that will cause greater
 
congestion the polls, greater tensions, greater pressures
 
administer things undermining, like said, those
 
administrative gains.
 
For voters who are seeking convenience, they may
 
some them may encouraged vote the mail-in absentee
 
ballot route, which has some deficiencies with respect early
 
voting.
 
Finally, some these voters, those who would have voted
 
during the abolished period, will voting Election Day,
 
which again will greater cause strains Election Day voting time when North Carolina has been moving away from
 
Election Day voting. this will have not only imposed costs people who,
 
their prior behavior, have shown that their preferred method
 
voting the earliest days early voting, will impose
 
costs them, but the costs --there are serious knock-on
 
effects those voters redistribute throughout the system and
 
cause greater congestion the polls.
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
Because African Americans are predominantly using the
 
early voting system, these added costs will down
 
disproportionately with African Americans. also the case that there will fewer people who
 
vote result the 10-day early voting period? Yes. conclusion
 
MR. FARR: Objection.
 
THE WITNESS: conclusion that there are likely fewer people who vote. Part --my conclusion is, some degree, people who would have either --who would have
 
voted during the early voting period will deterred from
 
voting they themselves experience longer lines, greater
 
congestion read about longer lines, greater congestion
 
either the remaining early voting period during the
 
Election Day period, yes. MR. COOPER your report, Dr. Stewart, you discuss lines early
 
voting sites. Can you explain how that relates the burdens African American voters? Yes, two ways. First all, very briefly, line
 
imposes costs. And the degree --it imposes direct monetary
 
costs, maybe wages foregone, those sorts things.
 
certainly imposes time costs voters; and lines are
 
longer, then, you know, there will costs imposed, and
 
African Americans are more likely subject those.
 NAACP, al. -Preliminary Injunction/Vol.
 
Filed 07/18/14 Page 229
Case 1:13-cv-00861-TDS-JEP Document 166 well, within the election administration community,
 
lines are also seen kind the canary the coal mine,
 
indicating other problems that have arisen polling place
 
because, you know, one the reasons why you can get lines
 
that just don't have capacity push people through the
 
system.
 
The other reason you have lines that as, say, there are
 
more questions about voter registration or, Election Day,
 
about provisional ballot-related things, those sort
 
administrative actions also take time.
 
And when you see long lines forming, you know, there
 
are two possibilities: One, you just don't have enough
 
equipment; the other that you have other problems
 
emerging the polling place because the congestion itself
 
that are not directly lines. Now, did you look any data regarding lines North
 
Carolina? Yes, did. And what was that data? The data used was drawn from the Survey the
 
Performance American Elections that mentioned the
 
opening testimony; and that survey, which
 
administered representative sample adults throughout
 
the country, every state the country, one the questions there about the experience with voters voting how long
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
did you wait line vote, and was able extract out the
 
voters that survey who had voted North Carolina and
 
compare them voters who voted all the other states.
 
What found was for the 2008 and the 2012 elections,
 
Election Day, the average wait time for North Carolina voters different from the national average. During early
 
voting, wait times are longer North Carolina, have been
 
longer North Carolina, than the national average for early
 
voting wait times. Was that statistically significant difference? Yes, the average differences are statistically significant the early voting side, yes. And there anything that you can say about congestion
 
waiting times midterm elections? There couple things that can say about
 
congestion waiting times midterm elections. Now, again,
 
the thing keep mind, which the obvious one, that
 
congestion --holding everything else constant, you are going get more congestion you have more people arise --you
 
know, coming the polls.
 
General elections presidential years are the elections
 
with the greatest turnout, and should expect and
 
observe greater congestion. midterm elections, turnout
 
lower, and so, they say, the first approximation with
 
lower turnout average, holding everything else constant,
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
would expect less congestion and the problems that arise from
 
congestion. However, there also variation within midterm
 
elections, fact, greater variation among different types
 
midterm elections than there variation among presidential
 
elections. The reason being that there kind coming
 
and going both how hot the campaigns are and, North
 
Carolina, whether there Senate race the top the
 
ticket not. within state like North Carolina that doesn't always
 have statewide race the top the ballot, midterm
 
elections, like the one that's coming up, that will have
 
Senate race the ballot, will edge bit more toward the
 
presidential years, and should expect greater congestion midterm year like the one coming up. there anything you can say about the election coming compared with the election 2010? Well, mean, think that most people, certainly who have
 
been reading newspapers and been paying attention the
 
political environment, know that the 2010 election general
 
nation --I'm sorry --the 2014 election nationwide general seen being very hotly contested election because the
 
political control the U.S. Senate for question, and
 
North Carolina one the states which, not only one U.S. Senate seats up, but polls and other observers tell
 
that this going hotly contested election.
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229 this comparison 2010 which, while there was
 
also nationwide some, you know --it was also hot political
 
year, within North Carolina, there was not the degree
 
contestation over the Senate race. this much hotter
 
turning out --developing hotter year the
 
Senate side. And when you testified few moments ago that the 10-day
 
early voting period will result fewer people voting, that
 
was --you did say that few moments ago; correct? believe did, yes. there any other --did you look some data from
 
Florida when you reached that conclusion? Yes. original report, make reference
 
conference paper that wrote with Professor Paul Gronke
 
Reed College where examined Florida and compared turnout
 
the 2008 election with the 2012 election and, particular,
 
within the context the fact that Florida the intervening
 
years had also reduced the number early voting days.
 
And that analysis, --I concluded two things.
 
One that found that although there were greater tensions
 
placed the early voting process, roughly, the same number
 
people continued early vote. Secondly, there was clear
 
deterrent effect turnout among people who had voted 2008
 
who ended not voting 2012, and the patterns were very
 
consistent with the --with conclusion within political
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
science that the people most deterred would less
 
sophisticated voters with less education and fewer resources
 
vote, the sense that the people who were the most deterred
 
were the ones who had previously voted toward the end the
 
period, and people who were voting toward the end the period average tend voters who have paid less attention
 
politics, have lower education, and are less engaged with the
 
political system. Now, let back your empirical finding that African
 
Americans are --disproportionately have been relying early
 
voting. Right. And can ask you explain briefly how you reached that
 
conclusion? Yes. this case was able match together
 
information from the voter registration lists with information
 
from the absentee ballot database. Both these are the
 
databases mentioned previously. Using the racial information
 
from the voter registration list, was able ascertain the
 
racial makeup people who had voted early and compared them the other voters North Carolina. Let ask you turn Figure your initial
 
report, which the Joint Appendix, page Number 846.
 
Ms. Solomon, you could put this the screen, would
 
appreciate it.
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
Dr. Stewart, does this figure summarize your conclusions this question? Yes. have several tables and figures that talk about
 
the results, but this graphically shows the greater use
 
early voting African Americans North Carolina, yes. And the difference the greater use African Americans opposed white voters, that statistically significant? That difference for 2008, 2010, and 2012, for the entire
 
periods, yes. should point out that that not the case for
 
2006 that graph.
 
THE COURT: When you say for the entire period,
 
you mean for each election separately?
 
THE WITNESS: Yes, sir. look 2008, take all
 the voters for that period; then look 2010, all the voters
 
for that period; and then 2012, all the voters for that period,
 
each one separately, yes, sir. MR. COOPER Okay. Let turn now out-of-precinct voting, which
 
was the third provision that you looked at? Correct. Can you first just briefly explain what out-of-precinct
 
voting means? Yes. Out-of-precinct voting this case
 
circumstance when voter Election Day goes precinct,
 
and discovered that they are not --they are not the
 NAACP, al. -Preliminary Injunction/Vol.
 
Filed 07/18/14 Page 229
Case 1:13-cv-00861-TDS-JEP Document 166
 
precinct that they have been assigned according the
 
records the voter registration database.
 
The voter then votes provisional ballot, which then,
 after the election during the canvas period, scrutinized and
 
then counted according the rules the state. What are some reasons that someone might show
 
precinct that they weren't assigned to? Well, there variety scenarios, but the bottom
 
line, it's not only the case, it's experience, both
 
talking election officials and watching some precincts
 
myself, that the scenarios are the following sort: voter
 
goes precinct with good faith, believing they are the
 
right place typically. They and they get the table
 
check in, and they are told they are the wrong place; you
 
need somewhere else. And that point, the voter
 
there various interactions that take place.
 
Voting out-of-precinct suggests couple possibilities.
 
One, that the voter really believes that they are the right
 
place, and there must mistake, and going vote
 
provisional ballot. other instances, the voter, because
 
time crunches transportation difficulties, cetera,
 
concludes that this the only chance they have vote and
 
that going the place that the election official
 
telling vote, but, again, may not actually where
 
they should vote. They are unable there, and this
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
their best chance voting, and they vote the provisional
 
ballot, the out-of-precinct ballot. Now, there possibility that some races won't
 
some votes the out-of-precinct ballot won't counted;
 
correct? That's correct. Why would someone vote that ballot anyway? couple things. One the things think needs
 
kept mind when look statistics, and report this report, about half the ballots are counted their
 
entirety, which suggests that either those voters didn't get
 
wrong much maybe, fact, they were the right
 
precinct after all. And then others cases, you know, the
 
ballot will counted partially according the overlap
 
where they voted and where the record say the residential
 
precinct is.
 
So, experience, the reason why you would vote this
 
ballot that it's likely your mind, you are the
 
voter, the best choice because the alternative likely
 
not voting all. And what did you conclude the impact disallowing
 
out-of-precinct ballots African American voters North
 
Carolina? Well, the conclusion, again starting empirically, African
 
Americans partake this feature the law higher rate
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
than whites do, and that's the first part.
 
The second part that because the nature this
 
provision, it's longer available, these are votes that
 
just will not counted. this one the features
 
the law that should --that will result fewer votes being
 
counted, and because these votes will predominantly African
 
American, will fewer African American votes compared
 
whites not counted. And regarding your empirical conclusion that African
 
Americans disproportionately use out-of-precinct voting, how
 
did you reach that conclusion? reached that conclusion by, again, merging together --this case there provisional ballot file data set
 
provided the state. merged that together with the
 
voter registration file, getting the racial information from
 
combination the two files, and then doing the analysis
 
the racial composition the users different types
 
provisional ballots. And can you turn Table your report, which
 
Joint Appendix, page Number 876? Yes, I'm there. Does this table summarize your findings this question? Yes, this table provides the summary statistics pertaining the disproportionate use African Americans compared
 
whites, and the top all provisional ballots. The bottom
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
part, the part, talks about out-of-precinct provisional
 
ballots, and documents how African Americans use
 
out-of-precinct provisional ballots ratio between two4
 
and three-to-one compared whites. Dr. Stewart, does the lack same-day registration have
 
any relationship the availability out-of-precinct voting? Well, yes. same-day registration, think
 
actually --as talked about earlier, same-day registration opportunity for voter --there couple things.
 
Actually, let start again.
 
The important thing about same-day registration
 
happens within the window early voting; and when voter
 
uses the same-day registration provisions, they are within
 
actually kind official setting where they can deal with
 
registration issues and, fact, may even change registration, they've moved, those sorts things, which they're
 
obviously not able they are voting precinct
 
Election Day. out-of-precinct voters, you know, are unable deal
 
with the registration issues that they would able deal
 
with the same-day registration setting. we've now talked about burdens imposed each the
 
provisions that you considered. your opinion, how these
 
burdens create unequal opportunity vote for black voters compared white voters?
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229  

Direct Mr. Cooper --Dr. Stewart Well, first all, each instance, African Americans  have shown their behavior greater tendency rely each these --rely each these provisions. different ways, moving forward, African Americans will  therefore subjected the burdens different ways given  the different procedures, through same-day registration,  through the difficulties less sophisticated voters actual  register and vote.  For Election Day --I'm sorry --earlier voters, for the  ability vote more controlled, high-quality,  administrative-quality environment, and the case  out-of-precinct voting, able vote when there  question about whether the voter has shown the right  place.  These are kind connected, mentioned previously,  connected issues, and each case, they are instances where  African Americans would disadvantaged compared whites. Okay. Before wrap up, would like ask you couple questions about the information that you considered  reaching your conclusions.  First all, conducting your analysis, did you use  data regarding turnout rates? did not. did not analyze turnout rates reports. And why that? couple reasons. The primary reason that the issue  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP Document 166 Filed 07/18/14 Page 229 burdens, I've discussed them previously, are not entirely
 
matters turnout rates. noted --or least indicated turnout rates, that have gone through, tried
 
emphasize the administrative difficulties that arise these
 
changes. Given the empirical issues involved, which will get next point, the place focus the short term are the administrative burdens.
 
The second thing that, well, there are right and wrong
 
ways analyze turnout had concluded that turnout was the
 
right way proceed. There large literature political
 
science that explains turnout, and mentioned that literature surrebuttal report. It's very rich literature.
 
focused the role of, among other things, registration under
 
the laws and influencing turnout levels. That literature takes
 
into account the wide variety factors that into turnout
 
rates. Some them are election laws, but there are other big
 
factors that statistically oftentimes swamp the effect
 
election laws, like the demographic characteristics voters the hotness the elections efforts the campaigns. you look this literature, big and rich; and
 
big, mean uses lot data and takes lot time and
 
attention amass that data that analysis properly, and you can that analysis, but would say that when the
 
research done about the effects of, say, the changes
 
HB589, should they ahead and implemented general
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
elections, that will the literature that takes couple
 
years put together properly and that research properly.
 
And --then, finally, you know, we're talking about
 turnout effects that may affect future elections. Given all
 
the difficulties --the difficulties doing this research
 
right, that don't have the parallel universe which the
 
2014 general election has already been run. order reach
 
conclusion about turnout, don't have that data yet; whereas, have solid data about the use these different
 
provisions recent history North Carolina. Did you consider data from the May 2014 primary
 
conducting your analysis? No, did not. And why that? Well, couple reasons, the big reason being that did
 
not consider primaries all conducting analysis. The
 
reason didn't consider primaries all that primaries are
 
highly varied elections, and what was endeavoring was understand how the effective provisions the law were used African Americans the elections which there was the
 
greatest turnout.
 
Now, why that? The reason because the burdens
 
are going largely imposed the administrative process, need understand those instances which the
 
administrative process under the greatest stress. The
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229
 
analogy draw that MIT every year there competition
 
about building bridges where the students are given ball
 
string, and they say build some bridges. One the things you
 
have predict the weight which the bridge will fail;
 
and then after the students have built the bridge, they put
 
into this contraption. They add more and more weight until the
 
thing collapses. the point greatest stress that you
 
actually learn the most about the bridge. similar way, studying elections which the
 North Carolina electoral system its greatest stress,
 
can see what the weaknesses are and where the administrative
 
challenges are.
 
Primaries --the first thing that turnout
 primaries is, first approximation, about quarter the
 
turnout the corresponding general election. back the
 
analogy, you are not putting whole lot weight. This
 
the bicycle going over the bridge. This not the 18-wheeler
 
going over the bridge, maybe, more aptly, the Ford Focus
 
going over the bridge rather than the Cadillac. that's one
 
thing.
 
The other thing that primaries are just much more
 
variable with respect where the races are being run.
 
general elections, particularly presidential elections, the
 
same person the top the ballot everywhere. two out three midterm elections North Carolina, the same person
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229 the top the ballot --or the same people are the
 
top the ballot the Senate race.
 
Primary elections, regardless the primary
 election, 2014 any other year, the names the top the
 
ballot are going determined who running which
 
party which legislative races which part the state.
 
That's really area where, getting back political science
 
literature turnout and election laws, cetera, you need lot serious --you need lot serious
 
empirical work. think telling that when searched for the
 
parallel --so report surrebuttal about the turnout
 
literature general elections. also searched for the
 
parallel literature about turnout primary elections.
 
can't find because --I would say because that parallel
 
literature doesn't exist because the empirical obstacles
 
creating valid approach the question.
 
This very hard question. look forward
 
being tackled somebody, but, the moment, beyond
 
serious analysis the constraints this case. your surrebuttal report, you did discuss some the
 
issues that you just talked about; correct? Correct. Did you undertake comprehensive analysis this year's
 
primary data that report?
 NAACP, al. -Preliminary Injunction/Vol.
 
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Cross Mr. Farr --Dr. Stewart No, did not. simply remarked the --made  comparison about the number contested legislative seats and  noted that --what's been reported about the upcoming the  current Senate election compared 2010. Okay. And that --what's been reported, that what  you just mentioned earlier? Yes. Did you review table prepared one the defendants'  experts that reported data from this year's primary? Yes, and that's reflected supplemental report, yes. What did you conclude from that table? Well, wrote two things, one, and won't repeat it,  having with whether primaries all are comparable, but  the other thing took from that table was that African  American --to the degree that take anything away from  that primary, that African Americans continue partake  early voting North Carolina greater rate than whites.  MR. COOPER: Thank you, Dr. Stewart. have  further questions.  THE COURT: Any cross-examination, Mr. Farr?  MR. FARR: Just bit, Your Honor.  CROSS-EXAMINATION MR. FARR Dr. Stewart, hello again. Good see you. Good see you.  
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Cross Mr. Farr --Dr. Stewart met earlier last month deposition Washington,  D.C., did not? Yes, did. I've handed you your deposition this case, which may reference during cross-examination. may hand  copy the judge some point time move forward. wanted ask you, sir, who hired you witness  this case? was hired the Justice Department. When were you hired? was hired the end last summer. would have been July? Toward the end July August. memory fails  this point about the detail. just remember was the end the summer, maybe even September. Your first report was filed this case April,  think? that's the information front you. Well, looking --well you had six seven months prepare this report? Between the time was retained and the time that filed original report. And you had the resources the United States Justice  Department your disposal?  
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Cross Mr. Farr --Dr. Stewart did not have all the resources the Justice  Department. had time and had assistance from  essentially research assistant help the data  analysis. And your first report was 103 pages long? that's what you counted, will trust that, yes. won't get calculator out that. believe you  had over 100 exhibits that first report? Many which were reporting the quality the state  files, yes. And you also then did surrebuttal report several weeks  after that? Yes, did. And when you did that surrebuttal report, did you prepare  that after you had received the reports that the defendants  have filed from their experts? Yes, believe did. And that was pages long also, was not? surrebuttal report --my signature page 43. Now, wanted start off just hitting couple  things that you've testified about direct examination. You  kept using the phrase "sophisticated voters." you remember  that? Yes, sir. And fair say that you think sophisticated (sic)  
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voters are less able understand the rules that apply when
 
you show vote register? Unsophisticated voters, which took shorthand,
 
term art, which summarizes basically the human capital
 
voters, yes. Right. And you are saying that unsophisticated voters
 
have more trouble figuring out what the rules and regulations
 
are for voting. that your testimony? People who have lower education and who have less --that
 
pay less attention public affairs will have greater problems
 
figuring out how vote, yes. Okay. your testimony that African Americans are
 
less sophisticated than white voters; that right? understanding that African Americans have lower
 
levels education North Carolina, and know from the
 
public opinion work that African Americans report that they
 
paid less attention public affairs average than white
 
voters probably because the differences the education. you think they are less able figure out what the
 
rules are for when you have register vote and when you
 
have vote? The ability figure these things out related one's
 
education. said, that ability --those average abilities
 
are due differences things like education. Okay. then you are saying that African American voters
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have less ability figure out what the rules are for voting? said African Americans have less education, which leads ability navigate the rules the game. Okay. Isn't that racial stereotype, Dr. Stewart? I'm making --I reporting statistical findings
 
that try actually get beyond the racial stereotypes.
 
Indeed, that's one the reasons have been giving the
 
responses that have been giving. think it's the duty
 
the social scientist, once you find differences between whites
 
and blacks, understand the root those differences, and
 
the root those differences, and large,
 
understanding the literature are due the different levels education. Did you ever take survey --did you ever survey
 
the case African American voters North Carolina see
 
they were less able understand the rules for voting and
 
registration? have not done any survey that asks directly about
 
understanding the rules registering and voting. Now, you talked about out-of-precincts voters? Yes, sir. And you gave two reasons for why people wouldn't want
 
vote out-of-precinct, did you not? gave couple reasons why they wouldn't, yes. One them was that they didn't know where their precinct
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was, and the other one, think you said, was they wouldn't
 
have time get their precinct? They didn't know --yes, think that's fair
 
characterization. Have you done survey voters who voted out precinct North Carolina ask them why they voted out precinct? conclusion based observation other states
 
and talking election officials over the years about such
 
circumstances, but have not done survey North Carolina. Right. That's --I remember you admitted that your
 
deposition. And also, Dr. Stewart, are there any other reasons
 
why people might vote out precinct besides the two you
 
mentioned? I'm sure there are many reasons why they might vote out
 
precinct. For example, isn't possible that political groups might
 
take voters precincts without regard whether the person registered that precinct? That could happen. which case, it's the voter -20
 
when they are informed that they are precinct that not
 
where they are registered belonging, it's their decision
 
what that circumstance. Right. And it's also possible that voter would
 
intentionally wrong precinct just because doesn't
 
want take the time his right precinct, even though
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Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229 does have time that. Isn't that possibility? It's possibility. It's not been observation. Let's talk about your observations, Dr. Stewart. Have you
 
ever served chairman county board elections? No, sir, have not. Have you ever served elections director No, have not. --being the person who actually runs the elections? have never been election official any capacity. Yes, sir. Have you ever worked precinct official? No, no, have not. All right. Dr. Stewart, now
 
MR. FARR: Your Honor, you may want have copy
 his deposition for reference because going ask him
 
about some exhibits deposition.
 
THE COURT: All right. MR. FARR So, Dr. Stewart, want you turn Exhibit 103 your
 
deposition. you recall this the declaration that one
 
our experts filed, Mr. Sean Trende? Excuse me. 103? Yes, sir.
 
MR. FARR: Excuse me, Your Honor, need hand
 
another exhibit, you don't mind?
 
THE COURT: All right.
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Cross Mr. Farr --Dr. Stewart MR. FARR With this line questions, Dr. Stewart, have give
 
you full copy Mr. Trende's declarations because his
 
exhibits are not attached the copy that was your
 
deposition.
 
MR. FARR:
 

THE COURT:
 
filed this case?
 
MR. FARR:
 

THE COURT: will have mark this new exhibit. this the same report that has been
 
Yes, sir, has.
 For the record, the deposition
 
Dr. Stewart dated Thursday, June 19, 2014.
 
THE CLERK: Defendants' Hearing Exhibit Number MR. FARR you have Hearing Exhibit front you,
 
Dr. Stewart? That's the pile papers --this collection? Yes, sir. It's Mr. Trende's original report with his
 
exhibits attached. Okay. would like for you --I want
 
ask you some questions about this. Could you turn
 
Exhibit Exhibit Mr. Trende's deposition? Yes. Right.
 
THE COURT: For the record, it's Exhibit
 
Dr. Trende's expert report, which Defendants' Exhibit
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MR. FARR: Yes, sir, thank you, Your Honor. MR. FARR All right. You looked Dr. Trende's report prior
 
giving your surrebuttal, did you not? Yes, did. And looking Exhibit where Mr. Trende lists
 
states with out-of-precinct voting. you see that? Yes, see that. And you see where says that Florida did not have
 
out-of-precinct voting? see that. And you see where says that South Carolina does not
 
have out-of-precinct voting? see that. And you see where says Virginia does not have
 
out-of-precinct voting? Yes, see that. you have any reason dispute Mr. Trende's analysis? have reason dispute this. All right. And you didn't dispute your surrebuttal
 
report? did not. Okay. Let's now turn Exhibit Mr. Trende's report. Okay. This the --his assessment the states with in-person
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early voting. you see that? Yes, do. you see that says that Florida had days
 
in-person early voting 2012? Yes, see that. Okay. And North Carolina has reduced its early voting days; right? just trying find how alphabetized North
 
Carolina. Yes. could step back say that, having not seen the text
 
that this belongs and not studied --you said --you were
 
asking about 2012. this for 2014 because North Carolina had
 
more than days 2012? all know that 2012 North Carolina had days, and
 
it's going have days 2014. Correct. just want make sure that are talking
 
about Unless Mr. Donovan has his way. understand disagrees
 
with that. South Carolina not listed having early voting,
 
it? not listed. And Virginia listed not having early voting;
 
correct? That's correct.
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Cross Mr. Farr --Dr. Stewart And you don't dispute that, you? don't dispute this proper characterization those
 
laws. Okay. Now, let's turn Exhibit and this
 
Mr. Trende's assessment analysis the states that have
 
same-day registration. you see that indicates that
 
Florida did not have same-day registration? see that. And you don't dispute that? dispute. And you see that indicates that South Carolina did
 
not have same-day registration? see that. And you don't dispute that? not dispute that. Okay. And indicates that Virginia does not have
 
same-day registration? That correct, and don't dispute that. And you don't dispute that, you? No, not. Now
 
MR. FARR:
 

THE COURT: MR. FARR
 
May approach the bench, Your Honor?
 Yes, you may. handing Exhibit declaration Charles
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Stewart made the State South Carolina the United
 
States America, and handing Exhibit rebuttal
 
declaration Charles Stewart the State South Carolina the United States.
 
Okay. Dr. Stewart, you have those exhibits, and Yes, do. And Exhibits and are reports that you gave the
 
request the United States Department Justice Section proceeding where South Carolina was seeking Court
 
preclearance their voter bill; that correct? Yes. And don't want through all this. can you
 
want to, but fair say that these two reports you
 
testified that the South Carolina voter bill would have
 
disparate impact African Americans? Yes, did. And you know what the resolution this case was? --I not recall the details the resolution
 
the case. told you that the law was eventually precleared
 
the Court, would you have any reason dispute that? understanding that --it's understanding, and not lawyer nor have studied this, that both sides had
 
something declare victory there; but, yes, take your
 
point, that the law was precleared with some understandings
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Case 1:13-cv-00861-TDS-JEP Document 166
 
about how various provisions the law would implemented
 
the state. Right. You testified would have disparate impact,
 
and the Court precleared the plan? They precleared the plan with these understandings, and
 
that's understanding, yes. Okay.
 
MR. FARR: May approach, Your Honor?
 
THE COURT: Yes. MR. FARR handing Exhibit the declaration Charles
 
Stewart the State Florida the United States America Exhibit
 
THE COURT: that the District Court
 
Washington?
 
MR. FARR: Yes, sir. Exhibit will the
 
supplemental declaration Charles Stewart the State
 
Florida the United States America. MR. FARR Okay. Dr. Stewart, you have Exhibits and before
 
you? Yes, do. And are these the declarations that you filed the
 
request the United States Department Justice Section proceeding the United States District Court for the
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District Columbia? Yes, they are. And this was preclearance action that the State
 
Florida had brought preclear certain election laws,
 
including the reduction the number early voting days? That was the action, recall. Right. And just saw that Florida reduced their early
 
voting days compared the 10-day period under HB589; that correct? That correct. Okay. don't have through the reports. you
 
want No. Okay. Did you not say these reports that the reduction the early voting time would have disparate impact black
 
voters? wouldn't --can have like second refresh
 
memory? Sure. You can the conclusion, that will help
 
you. Thank you. Could you repeat your question? Isn't fair say that your reports you testified
 
that the reduction the early voting days Florida would
 
have disparate impact black voters? Yes.
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Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229 All right. You can put those aside. would like for you now turn your deposition,
 
Exhibit 103, which the Trende report minus the exhibits.
 
don't need the exhibits anymore. this will easier for
 
you look at, think. would like for you turn page
 
39. Yes, sir. went over this your deposition, did not,
 
Dr. Stewart? probably did. don't recall directly right now. All right. Well, this part Mr. Trende's report,
 
was --he has table there reporting and comparing the turnout Florida 2008 versus 2012. you see that? Yes, sir, do. And you did not dispute these figures your surrebuttal,
 
did you? did not. And Dr. Trende reporting that nationally --the
 
total vote nationally was now 1.7 percent. you see that? Yes, do. Okay. And you don't dispute that? reason dispute that. And shows the total vote Florida was 1.0 percent? see that. Okay. Now, we'll turn early voting, and Mr. Trende
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reports that the early voting was down 10.7 percent 2012 compared 2008. Yes, see that. Okay. And then reports that the voting Election Day
 
was higher 2012 and 2008. you see that? Can you point that out me? the one, two, three --third column. That seems total voting Florida, not Election Day
 
voting. Right; that's what saying. Oh, I'm sorry. misunderstood. Election Day voting was up, right, Election Day?
 
MR. COOPER: Objection. It's confusing. MR. FARR you have the exhibit front you? have the exhibit front me. The column believe
 
you are referring to, the third over, says "Total Voting
 
Florida," which take the total number people voting,
 
which would include early voting, absentee voting, and Election
 
Day voting. Okay. Great. the total vote went Florida percent? Yes. And went down nationally minus 1.7 percent; right? see that, yes.
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Cross Mr. Farr --Dr. Stewart And Dr. Trende reports that between 2008 and 2012 the  turnout for black voters only went down .9. you see that?  That's less than percent. Yes, see that. also reports that the white vote went down  3.3 percent, does not? see that. Okay. regardless whether not they had long lines Florida, Dr. Stewart, far the number African  Americans who participated the election, your testimony  the Florida case was wrong; the turnout, established the  election, did not have disparate impact black voters?  MR. COOPER: Objection, mischaracterizes the  testimony.  THE COURT: Overruled.  THE WITNESS: recall earlier report, and  have not studied detail, was not --I mean, turnout  one factor, but needs --when you are making  predictions about turnout, was mentioning during the  direct, there are many factors that play into turnout,  including the hotness the election and other things. the --I would approach political  scientist, asking, all things being equal --in retrospect now  with the data front us, holding everything else constant,  did the law lead lower higher turnout? But terms  
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Case 1:13-cv-00861-TDS-JEP Document 166 Filed 07/18/14 Page 229 just the raw numbers here, the numbers are what they are. MR. FARR Right. The decline black turnout from 2008 2012 was
 
less than the national average, and was less than the
 
decline than white turnout Florida? That indeed true, and there are many factors that --as mentioned earlier, that into turnout. Okay.
 
MR. FARR: May approach the bench, Your Honor?
 
THE COURT: Yes.
 
MR. FARR: would like hand the witness
 
actually, Exhibit 122 from the Trende deposition.
 
THE COURT: this being assigned new exhibit
 number? How are you referring this?
 
MR. FARR: How about call Hearing Exhibit
 
Number
 
THE COURT: All right. MR. FARR Okay. you have Hearing Exhibit front you,
 
Dr. Stewart? Yes, do. And you recall that this was chart that Mr. Trende
 
prepared and introduced his deposition describing
 
Virginia voter turnout race from 1998 2012? Yes, recall this.
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Cross Mr. Farr --Dr. Stewart And you didn't dispute this document during your  deposition your surrebuttal? Well, believe the deposition did note that  Dr. Trende did not use the individual-level data here which would have gotten different results than using the published  Census Bureau data. What you mean individual-level data? Well, addition the data that are published the  Census Bureau, which Dr. Trende relies on, you can download  from the Census Bureau get from the data archives the social  scientists use the actual individual answers the survey  questions, and you can calculate turnout yourself.  The Census Bureau uses nonorthodox way calculating  turnout. Political scientists would typically download the  data directly, calculate these percentages directly, and  and believe mentioned deposition that would have  mentioned the individual-level data and the way that  political scientist would have approached this question. But you did not back and that your supplemental  report? No, sir, did not. And based upon the data that Mr. Trende has cited  Hearing Exhibit would you agree that the black turnout,  percentage their voting-age population, increased 2008  and 2012 compared prior years?  
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Cross Mr. Farr --Dr. Stewart
 Again, this not how That's what these numbers say.
 
would perform this analysis political scientist, but these
 
numbers are what they are. This not how you would it, but also true that
 
the black candidate choice Virginia for the presidential
 
race was President Obama? believe that's true. Isn't true that President Obama carried Virginia
 
2008 and 2012? believe that true, yes. And we've already agreed that Virginia does not have early
 
voting? does not have early voting. And does not have out-of-precinct voting? saw that earlier, yes. And doesn't have same-day registration? And doesn't have same-day registration.
 
MR. FARR: Your Honor, may ask request for
 
personal reason early break?
 
THE COURT: normal break?
 
MR. FARR: Five minutes will fine.
 
THE COURT: We'll take our break little bit early.
 
We'll take 15-minute break then.
 
(The Court recessed 10:08 a.m.)
 
(The Court was called back order 10:24 a.m.)
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THE COURT: Mr. Farr, are you ready proceed?
 
MR. FARR: Yes, thank you, Your Honor, very much.
 
MR. COOPER: Your Honor, before proceed, just
 quickly wanted clarify. Counsel has referred Mr. Trende
 
several times Dr. Trende. His qualifications are the
 
record part his declaration. just wanted note for
 
the record that does not have Ph.D.
 
THE COURT: Okay. Thank you.
 
MR. FARR: apologize for that, Your Honor. Like
 said, will confess, little scatter-brained this
 
case with 3,000 pages documents. apologize for
 
referring
 
THE COURT: Actually, 6,587. That got added
 this morning.
 
MR. FARR: not doctor. has master's
 
degree.
 
THE COURT: understand that. Thank you. You may
 
proceed. MR. FARR All right. Dr. Stewart Yes, sir. --I want see --I forgot ask you some questions
 
about those exhibits that looked from Mr. Trende's
 
report. Let's see can without going back it.
 
Mr. Trende, think, has concluded that majority the
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states not have same-day registration. Would you agree with
 
that, would you dispute that? would agree with that. true that majority the states not have
 
out-of-precinct voting? believe that true. Now, want you turn your deposition, Exhibit 124,
 
which your initial report, Figure 11. Could you direct there again? It's your deposition marked Exhibit 124. believe your original report, page 56, Figure 11. Yes, sir. Figure 11, you are reporting the Court the number
 
days for early voting and the states that you have listed
 
that figure; correct? This report the difference between the opening and
 
closing days the early voting periods the various states. you got, for example, the left side, "Law effect 2012," and you show North Carolina had days; and
 
comparison the states that you listed there, which are all
 
states with early voting, North Carolina appears the
 
middle? Yes, sir. And then you got the right-hand side "as affected
 
HB589," and you drop North Carolina down fourth from the
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bottom with days early voting. you see that? Yes, sir. Okay. You didn't include the number states that did
 
not have early voting this chart, did you? No, because they don't have early voting. Okay. But this chart makes look like that are
 
fourth from the bottom early voting, does not? indicated the chart, this illustrates where North
 
Carolina would have fallen had HB589 been effect 2012
 
among the states with early voting, yes, sir. then want you turn now Exhibit 103, which
 
Mr. Trende's report. would like you turn page 11,
 
Figure Yes. All right. And this Mr. Trende's report where
 
giving the Court his report all the states and how many
 
early voting days exist for all states, not? Well, treats states without early voting having zero
 
early voting days. Right. But the Court was interested knowing how
 
other states handle early voting, wouldn't beneficial
 
know how all states handle early voting? would just know that political scientist doing
 
this, profession, would note that these states don't
 
have early voting and that these states do, and among the
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states that do, these are the number days. Right. And you didn't include that your report? Correct, because they don't have early voting and,
 
therefore, aren't informative about early voting dynamics. But when you include the states that still don't have
 
early voting with those that do, even under HB589, North
 
Carolina still remains about the middle the United
 
States? one were that, the chart what the chart is. Right. North Carolina's 10-day period about the
 
mean, the middle, how all states the United States
 
handle early voting? Similar response. political scientist, this not
 
how would develop scale this sort. just
 
saying, with few minor exceptions, don't dispute the
 
numbers here; but this not how social scientist would
 
develop scale that measures the extent which state has
 
early voting. didn't ask what social scientist would do. asked
 
you you include the states that don't have early voting with
 
the states that do, North Carolina about the middle
 
the way all states treat early voting? That's where North Carolina this figure, yes. And you don't dispute these facts? Like said, there little back and forth about some
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Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229 these numbers, but they don't materially affect where North
 
Carolina would this figure. Okay. Now, want ask you question about concept
 
you mentioned your deposition called revealed
 
preferences. Yes, sir. And you didn't talk about that your direct examination, don't think? don't believe so. believe may have alluded it. Did you rely upon that concept preparing your report? Yes, does appear the report, yes, sir. Okay. read little bit about this, have probably
 
got enough knowledge too dangerous for myself, but would
 
revealed preferences --was that something that Congress came with originally try understand consumer behavior? That's understanding. I've encountered within
 
political science; but when read the intellectual history,
 
that's where understand comes from, yes, sir. Revealed preferences deals with what consumers choose from
 
the array choices that are available them the time the
 
study made? That's how understand it, yes, sir, that context. Revealed preferences does not really --doesn't really
 
apply predicting how consumers will choose the future
 
their choices change?
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Cross Mr. Farr --Dr. Stewart their choices change? You use the term different array choices" your  deposition. Well, doesn't necessarily predict --so --well, the  answer among some the people, and depends what they  had chosen previously --among those who had previously chosen option that's been taken away, because are basing our  inferences what we've observed, don't necessarily know  what they will when you take that choice away; but there  also assumption within this area that can continue  predict that the people who had chosen the things that are  still there, everything else equal, will continue with those  choices.  That's why it's --you have specify who you are talking  about when you have taken away choice Right. --an option really. But revealed preferences deal with what they have actually  chosen from the array options that were available them  when they made their choice? That's correct. Okay. And when there different array choices  given them, what they did the past doesn't necessarily  predict what they'll the future with different array  choices?  
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Cross Mr. Farr --Dr. Stewart Again, depends which choosers you are talking about  and what the array choices is. the array choices  subset the old array, you may able make one set  predictions. the array choices entirely different,  then would say you probably don't have --you probably can't  make predictions. very fact dependent. Let's explore that little bit. someone voted during  early voting during the 7-day (sic) period time, can you  predict that they are likely vote during early voting during  the-10 day period time? From that data alone, that data alone does not contain  information about what they would they only had two  choices the choices had changed the way that you  described. Well, what you just take away out-of-precinct voting?  The fact that they chose the past, that doesn't say what  they will the future with different array choices,  does it? Well, you think that out-of-precinct voting matter choice the same way that early voting matter  choice, but don't think out-of-precinct voting choice  the same sense. Voters don't choose precinct vote? They choose precinct vote, but would dare predict that very few, any them, precinct  
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hoping vote provisional ballot. So, yes, they the
 
precinct, but would say they are not choosing the
 
out-of-precinct method when they are going that precinct. But you haven't done survey North Carolina voters
 
determine what their intent was when they did out-of-precinct
 
voting? have not done that survey; that true. We've
 
established that. All right. Now, are there factors that can impact
 
revealed preferences that would make the preference not really
 
legitimate questionable? don't quite understand the question. Let give you example. Let's say consumers had
 
option buy blueberries strawberries, and they mostly
 
bought blueberries, but turned out that the blueberry dealer
 
was bringing the blueberries their house and charging them
 
less for than strawberries. Would that factor
 
deciding whether not the consumer prefers blueberries versus
 
strawberries? Well, two things: One, it's always
 
all-things-considered framework, but, secondly, the revealed
 
preferences framework also attempting abstract away from
 
the wide variety circumstances and considerations that
 
voters have. That's why needs considered within
 
all-things-being-equal context.
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Cross Mr. Farr --Dr. Stewart Right. But someone giving the blueberries away,  that doesn't mean the person prefers the blueberries the  strawberries they have pay for the strawberries? Well, again, you don't know that until you've observed the  behavior. Again, the choice set changes, then you observe  how the behavior changes. Okay. That ends being different sort analysis about  basically price elasticities. Now, you testified that --counsel for the Justice  Department said that you think that black voting will decrease, something that effect. you recall that? don't recall that. was not asked that. did say  that, was mistake behalf. your report, you have not predicted whether black  registration black voting will decrease 2014? have not made those sorts point predictions. have  made references with respect burdens, which sometimes will  affect the tendency register vote and, other cases,  will affect the administrative quality the election. But you have not testified that the elimination these  practices will reduce registration voting? have not been focused --like said, have noted that  there will times when people would deterred, such with  certain circumstances with early voting, but have not made  
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point prediction that says aggregate turnout will down,
 
understand the question. So, Dr. Stewart, what the point noting your opinion
 
that people will deterred you can't make prediction
 
how registration turnout will actually decrease? Because, said, predicting registration requires
 
multi-various statistical analysis and consideration all the
 
factors that into turnout levels. There large
 
literature that I've made reference to, and would outside the data order make point predictions about aggregate
 
turnout levels North Carolina moving forward. would outside the data that you looked at? would outside think the data and the analysis
 
that's possible this point. Okay. Now, making your study, you did not consider the
 
impact the preferences African American voters the
 
President Obama campaign North Carolina 2008 2012? did not. Again, didn't study turnout, and did not
 
make that centerpiece analysis, no, sir. Okay. And, yet, earlier today didn't you say that there
 
were lot issues that could affect turnout and registration
 
particularly when there hot election? did say there were many things that could affect
 
aggregate levels registration and turnout, yes, sir. And, Dr. Stewart, your deposition, didn't you testify
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that you think it's possible that the black participation rate
 
and registration and turnout could have increased North
 
Carolina even the absence same-day registration, early
 
voting, and out-of-precinct voting? Well, think the political science literature clear
 
that there are campaign effects that can move registration and
 
turnout rates independent the election laws, yes, sir. You did testify that it's possible that the participation
 
rate could have gone North Carolina without same-day
 
registration, early voting, out-of-precinct voting? think that certainly possibility, yes, sir. And you didn't study that? did not study turnout rates. Okay. Now, there --I believe your deposition you
 
were giving very good explanation retrogression
 
analysis, and appreciate that. Excuse me? don't think talked about retrogression. mean regression. get that confused just like get
 
doctor and mister confused. apologize. was regression analysis that you talked about the
 
deposition, and talked about that within the context
 
cross-state comparisons, did not? remember talking about regression bit and what
 
regression was. don't recall the details that discussion
 
with respect the subject matter, but there reason
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dispute your characterization. Okay. you were going try determine whether
 
not there was statistically significant relationship between
 
early voting, same-day registration, and out-of-precinct
 
voting, how would you that? You explained that
 
your deposition. would like for you tell the judge. Well, the deposition, believe, although, you know,
 
having not read the deposition that point --but the way
 
that would proceed that analysis would to, first
 
all, start with individual-level data, could. mentioned earlier the data from the current population
 
survey, the voting and registration supplement, which
 
survey that has individual survey respondent information it, would use that data, and would study those individuals.
 
There about, let's say, 50,000 pick average number
 
50,000 observations per election. would want make sure
 
studied voters from all the states and voters across wide
 
variety years, many years possible. With computer
 
technologies, could study ten elections. could have
 
half million different observations. would then back and would code the different laws
 
that were effect each time those respondents --reporting
 
their registration and voting behavior. Doing that, would
 
have information comparing across states any slice time.
 
Some states will have certain features law and others won't.
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Case 1:13-cv-00861-TDS-JEP  Document 166  Filed 07/18/14  Page 229 would also able study within states. Sometimes state
 
will change its laws. will have that leverage, and would
 
have the statistical empirical leverage being able study
 
the effects individual demographic characteristics like
 
education and income. your deposition, didn't you tell that you could
 
separate states --if you were trying determine whether
 
there was statistically significant connection between --or
 
relationship between early voting, out-of-precinct voting, and
 
same-day registration, you could separate the states that had
 
those practices from the ones that did not have those practices
 
and then make comparisons between those two states? Well, mean, that's one way --I mean, that's simple
 
way summarizing it. More precisely, would enter
 
variables that would code whether states had these procedures not particular elections, and the regression analysis
 
would produce estimated probability that, holding everything
 
else constant, someone would either register turn out and
 
vote function having one these laws available
 
them their state. So, for example, there was --I think we'll all agree
 
there was high turnout amongst African Americans the 2008
 
and 2012 presidential elections? Yes, sir. you could have compared the African American turnout
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the states without early voting, without same-day registration
 
and without out-of-precinct voting, and you could have compared
 
that the states that had those practices and done
 
regression analysis see there was statistically
 
significant relationship between those practices and turnout? mean, it's certainly possible that sort
 
analysis. would take many months, not years, that
 
analysis properly because you would need code the laws
 
the states for each one those years over time, and that's
 
not easy thing do. You would need acquire all the
 
other information about other laws that you would need
 
acquire, but one could certainly that, but would quite undertaking. Well, you could certainly get the turnout statistics for
 
2008 and 2012. That would fairly easy, would not? Well, you could get that, but that would not the best
 
way this analysis. You would want --you would
 
actually --you would want the individual-level data for many,
 
many years order control for many compounding effects possible. Okay. And another reason why you want many years possible that data that use and many people use, which the
 
Census Bureau data, it's well known that there are different
 
tendencies across the different states --response different
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states over underreport their turnout level. also
 
need this long time trend that can account for different
 
state respondents' propensities over underreport their
 
election behavior. just looking 2008 and 2012 this sort analysis
 
would limited value because the nature the data set would analyzing. Okay. you've been hired for seven eight months, and
 
you are saying you didn't have time cross-state
 
comparison the laws place states 2008 and 2012 and
 
the black turnout those states 2008 and 2012. Wouldn't
 
that have shed some light this issue? don't believe would have. testified before,
 
don't think turnout the core issue; and, furthermore,
 
think you are underestimating the amount time this
 
sort analysis way that's consistent with the principles political science. Okay. Let's back that for second. your
 
deposition --can you turn page 275. Actually, are going start page 274. you will see question there
 
line was "Okay. whether these practices have impact voter turnout your view not relevant?" And what was
 
your answer? answer was, "It's not relevant." Shall continue? You can you want to.
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Cross Mr. Farr --Dr. Stewart It's not relevant, and --"It's not relevant
 
disparate impacts --as understood the social sciences." Okay. whether not these practices that were
 
eliminated North Carolina are going depress black turnout participation not relevant? It's not relevant the time period that are
 
discussing, the short-term time period. And you are unable make --give any opinion today about
 
whether not these practices that have been eliminated will
 
depress registration turnout? have given testimony, report opinions
 
about the different mechanisms which there could reduced
 
levels registration and turnout, but I've made point
 
predictions about what those numbers would be. Right. you haven't predicted what the number would --or reasonable number would that could expect for
 
depressed black registration and black turnout? have not predicted aggregate turnout the upcoming
 
general election. Okay.
 

MR. FARR:
 
THE COURT:
 

THE CLERK: MR. FARR
 
May approach, Your Honor?
 Yes.
 Number So, Dr. Stewart, now want talk you about your
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Case 1:13-cv-00861-TDS-JEP Document 166
 
long-line testimony that you have given your report? Yes, sir. This article that you published
 
THE COURT: this Defendants' Number
 
MR. FARR: Yes, sir, Your Honor, Hearing Exhibit
 
Number Thank you. MR. FARR This article that you published the summer
 
2013, Dr. Stewart? Yes, sir. Are you familiar with this article? Yes, sir, am. All right. And how many times --I count least three
 
times this article where you made the statement that the
 
science long lines voting its infancy? don't know said three times, but believe
 
that. can show you where they are. trust that said it. you say three, because
 
believe it, would happy say more times. Well, good. That's good. Happy hear you say that.
 
your study long lines its infancy then, are you
 
ahead everyone else? Well, mean, have say ahead many other
 
people this area. This area -NAACP, al. -Preliminary Injunction/Vol.
 
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Case 1:13-cv-00861-TDS-JEP Document 166 
Cross Mr. Farr --Dr. Stewart Are you juvenile, teenager, adult? would like think the cutting edge, not the  bleeding edge, this kind research. Okay. you would turn page your article. There little star there for 443. you see that, which think page number? Yes. want read the judge what you wrote down the  sentence that says "low income voters"? basically that paragraph? Yep. "Unfortunately, neither theory nor data are informative  about the compositional effects lines election outcomes.  Casual empiricism suggests that most people believe long lines  deter lower-income voters, who have less flexibility their  days, and who are more likely hourly employees, and thus  feel the wait line pinch the pocketbook. However,  contrary argument could made. Despite the fact that  upper-income voters are less likely paid the hour, margin, their time more valuable than that low-income  voters. Arguments like this justify rationing scarce resources making consumers stand line, rather than pay the  market-clearing price that low-income consumers least  have chance acquiring high-demand items." what was interested you said that there  
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argument that lower-level income unsophisticated voters are
 
more deterred long lines, but there also argument
 
that --I guess what you would say sophisticated voters
 
might deterred because they've got more things and
 
more money make? Well, just read what stated. The point here that
 
one could make theoretical arguments, that's what are
 
doing, about why low-income folks higher-income folks would more deterred long lines. Your theory would point
 
either direction, and the idea that need empirically
 
test which way falls. Okay. let's --this probably won't empirical
 
enough for you, but let's just recall couple things.
 
Florida, after the reduction early voting --and you have
 
given testimony, think, that there were long lines
 
Florida --the black participation rate was down quite bit
 
less than the white participation rate was. Didn't over
 
that earlier today? went over that, yes, sir. Okay. And you've testified that there were long lines
 
early voting North Carolina 2008 and 2012, believe you
 
said that, and you said that the lines were shorter Election
 
Day North Carolina; that right? believe so, yes, did. And you've also testified that the black voters were more
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likely vote during early voting; that right? Yes, sir. And there was record turnout for black voters early
 
voting and total vote both 2008 and 2012; that
 
correct? recall, the record was and down bit
 
'12, but compared previous elections, was higher. But despite the long lines the early voting, which
 
where most black people voted, the black turnout was extremely
 
high? was higher than prior elections. And was higher than the white turnout? was higher, yes, sir. Okay. Now, want you turn --it's page this
 
document, and there paragraph that starts with star 446. want you turn that, please. Yes, sir. And so, first all, Dr. Stewart, you've never been
 
North Carolina precinct during election? No. Okay. And you don't know anything about how many poll
 
workers are assigned North Carolina precincts? Not sitting here, don't know. You didn't study that your report? did not report --that not report.
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Cross Mr. Farr --Dr. Stewart Right. And you didn't study how many voting machines are North Carolina precincts? That not report. And then page this document where there star  446, you give list things that can contribute long  lines besides the reduction early voting days, you not? Yes, holding everything else equal, the following would  affect lines under these circumstances. Yes, sir. These are factors that can affect long lines,  but doesn't matter whether you reduce the early voting  not? Again, holding everything else constant, yes, sir. Okay. the lines can reduced absentee voting  early voting you say? That's point number one. Okay. And you agree that the lines can reduced  enhanced poll book technology? Well, these are --to clear, this summary going down series hypotheses that one can test one were move  the study lines out its infancy. Right. these were things that could study and have been  suggested the literature, yes, sir. But there just lot things that cause long lines  besides whether the number early voting days are shortened?  
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Cross Mr. Farr --Dr. Stewart Well, clear, making distinction between  hypotheses and conclusions because --and this the point  things being their infancy. There are claims made about  administrative factors that cause long and short lines, but  these kind micro-level studies have not been done, have  rarely been done, few people have done them, but they have  rarely been done, and that would behoove drill down  into individual precincts and study these effects and come  with more precise estimates these figures. All right. that would mean, Dr. Stewart, that the long  lines Florida 2012 may not have been caused the  reduction early voting. There may have been any other  number other factors that could have caused the longer  lines. you agree with that? There are many factors that led --undoubtedly led  long lines, including pushing roughly the same number people  through apparatus and infrastructure that was strained  compared prior early voting. And there could have been other factors that you haven't  studied Florida; correct? Undoubtedly, these are complex matters that properly would  lend itself complex analysis. Okay.  MR. FARR: May approach the bench, Your Honor?  THE COURT: Yes.  
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MR. FARR: This going nine. Hearing
 
Exhibit Your Honor, sample ballot for Dade County,
 
Florida, for the 2012 general election, Exhibit Number 10, Your
 
Honor, sample ballot for Wake County, North Carolina, for
 
November 2010, and Exhibit sample ballot for Wake
 
County, North Carolina, November 2012.
 
MR. COOPER: Counsel, you have extra copy
 
that? haven't been provided copy this.
 
MR. FARR: This was provided you the same
 manner all the 200 exhibits that were marked and provided
 
us. here what have. MR. FARR Dr. Stewart, you have Exhibits 10, and 11? Yes, sir. you remember looked these your deposition? Yes, sir. you recall that Exhibit the ballot that was used Miami-Dade, Florida, the 2012 election? It's the official sample ballot, yes. You studied Miami-Dade, Florida, did you not, when you
 
were looking Florida? Miami-Dade number the data sets that I've used calculate line lengths. Right. And you had seen this ballot before your
 
deposition, had you not?
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Cross Mr. Farr --Dr. Stewart believe had. not exactly this one, have seen  Miami-Dade sample ballots. So, for example, Dr. Stewart, this not only was the sample  ballot, this was the actual ballot that was handed out  voters Miami-Dade County, was not? reason doubt that. Okay. could you just count how many pages this ballot  is? Well, the ballot itself starts page and ends page  11. That would pages. Right. And how many languages this ballot written in? appears have two, not --at least two. Didn't agree that there were three languages this  during your deposition? remembering that, and sitting here, have reason doubt that. just trying remind myself how  convinced myself that fact. And the first two pages are elections for offices, are  they not? Yes, sir. And the remaining one, two, three, four, five, six, seven,  eight, nine pages are constitutional amendments, referendums,  all sorts good stuff; right? Yes, sir. All right. Now, you recall that looked your  
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deposition Exhibit 10, which was the ballot for Wake County,
 
North Carolina, for November 2010? Yes, sir. And you recall also looked Exhibit 11, which was
 
the ballot for Wake County, North Carolina, for November 2012? Yes, sir. And you remember that asked you your opinion which these ballots would easier vote, and you did not
 
you chose not answer that question? remember back and forth about this, yes, sir. But didn't answer question initially which one
 
would easier vote, did you? Not initially, no, sir. Okay. Sitting here today, you have opinion about
 
which one these three ballots would easier vote? Well, think common sense would suggest that the shorter
 
ballot easier vote. The point made the deposition, believe, that these are empirical questions, and the
 
reason why didn't immediately accede the idea that
 
know, for instance, that Californians vote ballots that are
 
just long and just complicated, and they appear
 
able get through their voting process fraction the
 
time that Floridians do, and that's why make the point --in
 
all these instances, these sort questions need
 
answered actually timing people controlled environments
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filling out these ballots, but there doubt that common
 
sense would tell that the shorter ballot easier deal
 
with than the longer ballot. your article just looked at, you said that the
 
length the ballot was factor that can contribute long
 
lines? One that needs studied, yes, sir. All right. now want turn your report, the chart
 
that deals with your study waiting times North Carolina. think --I looking Exhibit 124 your deposition,
 
and believe this chart page 74. doing little paper management here. understand. Take your time. Yes, sir. Okay. Dr. Stewart, want talk about this for
 
second. The information that you used make this chart,
 
which Table page 74, where did that come from again? This data came from the Survey the Performance
 
American Elections. And were you not --you described yourself the lead
 
investigator? led the team 2008, and was the principal
 
investigator 2012, yes, sir. Okay. And the information this table relates only
 
the 2008 and 2012 presidential years?
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Cross Mr. Farr --Dr. Stewart Yes, sir. And you did not study for 2010 2006, which were  off-year elections? The SPA was not implemented those years, and did