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Judicial Watch • Stewart – Part I

Stewart – Part I

Stewart – Part I

Page 1: Stewart – Part I

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Number of Pages:208

Date Created:July 16, 2014

Date Uploaded to the Library:October 23, 2014

Tags:Voter ID, Voter Fraud, Stewart


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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. 9:01 a.m.
 
TRANSCRIPT THE PRELIMINARY INJUNCTION MOTION HEARING
 VOLUME
 
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 165  Filed 07/18/14  Page 208  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 165  Filed 07/18/14  Page 208
 
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 208

Case 1:13-cv-00861-TDS-JEP Document 165
 102
 
107
 145
 177
 181
 
INDEX
 

PLAINTIFFS' WITNESSES:
 
GEORGE GILBERT, (CONTINUED)
 
Cross-Examination Mr. Farr
 Redirect Examination Ms. Riggs
 
Recross-Examination Mr. Farr
 
ROSANELL EATON
 
Direct Examination Ms. O'Connor
 
REPRESENTATIVE RICK GLAZIER
 
Direct Examination Mr. Brook
 Cross-Examination Mr. Strach
 
JIMMY HAWKINS
 
Direct Examination Mr. Joyner
 Cross-Examination Mr. Peters
 
GARY BARTLETT
 
Direct Examination Ms. Riggs
 Cross-Examination Mr. Farr
 
Redirect Examination Ms. Riggs
 Recross-Examination Mr. Farr
 
CHARLES HAINES STEWART, III, PH.D.
 
Direct Examination Mr. Cooper
 
NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208 
Received
 
EXHIBITS
 
Exhibits: Identified
 PX-216 Legislative fiscal note
 
PX-60 State Board Elections 121
 memorandum
 
PX-56 State Board Elections report 130
 PX-42 Dr. Stewart's expert report and 190
 
surrebuttal report
 PX-168 Dr. Stewart's supplemental 190
 
expert report
 
DX-1 7/13/05 Affidavit Gary 168
 Bartlett
 
NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208
 
PROCEEDINGS
 
THE COURT: Good morning. We'll continue with the
 
testimony Mr. Gilbert. can retake the stand, please.
 
remind you you are still under oath. The defendants were going examine. Mr. Farr?
 
MR. FARR: Thank you, Your Honor.
 
CROSS-EXAMINATION MR. FARR Hello, Mr. Gilbert. Good morning. How are you today? I'm not used getting this early, but here. know each other, not? Yes, do. thank you for your service the citizens North
 
Carolina the elections director Guilford County. would
 
also like thank you for the help you have given over the
 
years when have called you and asked you questions. didn't get depose you this case, I've just got couple background questions that came yesterday.
 
You said yesterday you had worked for two senators. Could
 
you tell who those senators were? Senator John Culver from Iowa and Senator Chris Dodd from
 
Connecticut. What the partisan affiliation those two senators?
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208  

Cross Mr. Farr --George Gilbert They were both Democrats. All right. And are you registered Democrat,  unaffiliated Republican? I'm registered Democrat. Have you always been registered Democrat? Yes, have. Have you given political contributions candidates? No, have not. Have you done that since you've retired executive  director from the board elections? No, have not. want start out with something that Senator Blue said  yesterday. don't know --were you the courtroom when  testified? caught the end his testimony. made comment that thought that the rules for  determining when someone eligible vote ought the  same for all voters. Would you agree with that? general, yes. What have found --I mean --but,  fact, the rules aren't exactly the same. perfect world --for all voters even now. think, general, the  effect those rules should the same, but the necessary  the details are not necessarily going fit all situations.  You've got registration mail, you've got registration  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208
 
person, you've got registration through various means, and the
 
circumstances dictate the procedures, think. But everyone who registers mail eligible vote
 
based upon the way everyone else registered mail; that
 
correct? Based upon the way everybody else mail registered,
 
yes. Right. And people that register person, they are
 
eligible vote based upon the same rules that apply
 
everyone else who registers person? That correct, but they are not the same the rules
 
that apply the person who registers mail. Okay. But, theory, you'd agree that the rules ought --whatever the rules registration are for different
 
types registration, they ought the same for all
 
voters? Certainly the standards for eligibility are the same for
 
all voters. Okay. And that's good thing? Yes, is. Just hold that thought for little bit. You said your
 
direct --I don't want flippant, but you said wasn't
 
like really big deal retrieve absentee ballots. Can you
 
kind explain that, what you meant that? just meant that all the absentee ballots, and that
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
all early voting and by-mail ballots, which are classified
 
absentee ballots under North Carolina law, are identifiable and
 
retrievable. And how they get retrieved? Can George Gilbert just
 
say, going retrieve ballot, does something else
 
have happen? They are ballots the iVotronic system. That's the type voting system that use, the electronic voting system.
 
Once the election over, retrieve the cartridges from each
 
machine that contains the ballot images for each vote that has
 
been cast, and those ballot images are stored the central
 
tabulation system precinct, and they have number
 
associated with each ballot. That number the voter's
 
absentee voting number. when want retrieve ballot
 
from the iVotronic system, all have process those
 
ballot images within the central tabulation system, that
 
precinct, call all the ballot numbers, and then select
 
the one that needs retrieved and deleted. Okay. But the question how you know --why are you
 
retrieving ballot? You just don't retrieve any ballot.
 
How you get the point where you want retrieve
 
ballot? would want retrieve ballot it's same-day
 
registrant and two verification notices had come back
 
undeliverable prior the canvas. That ballot would
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
canceled. find that someone voted Election Day and voted
 
absentee, would need retrieve that ballot and cancel the
 
absentee ballots. Provisional ballots that are cast the
 
iVotronic machines --and there are few those still.
 
There would quite few them. There were prior
 
same-day registration, quite few provisional ballots, that
 
you don't determine whether not those should counted
 
until the canvas. those have retrieved and then the
 
determination made whether they should tabulated
 
not. there are quite few circumstances under which you
 
need retrieve those ballots. there challenge process that relates whether
 
not ballot retrieved? No, because the challenge process --ballots under -17
 
ballots that are cast under the challenge process are not
 
counted that election that challenge sustained unless
 
there court order open and count those ballots.
 
there challenged ballot where the challenge sustained,
 
then that ballot would not involved. How you know whether --let's talk about the mail
 
verification system because think there was some confusion
 
about that.
 
When someone registers vote and registration
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
submitted the county board, the county board sends
 
verification letter that voter? That's correct. And that's sent First-Class Mail? Yes, that's correct. It's nonforwardable. And there return service request it? That correct. days expire and the card doesn't come back, the
 
voter considered verified? The voter considered verified unless the card does come
 
back later. Right. Yes. But doesn't come back within days The state system then automatically changes their status;
 
that's correct. Okay. And then the card comes back, how did you know the Guilford County Board Elections that the card would
 
come back? Any cards that come back are scanned staff into the
 
system. There return mail module the computer system;
 
and when you scan those cards, automatically records the
 
central registration system that the card was returned, and the
 
central registration system has set rules that
 
dictate what occurs.
 NAACP, al. -Preliminary Injunction/Vol.
 
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Cross Mr. Farr --George Gilbert  Central registration system meaning the state system?  The state's voter registration system, yes.  And that's --is that called SEIMS?  That's correct. you know what that stands for?  State elections information something system.  Close enough.  Close enough.  All right, sir. who sends the second card? do.  The system automatically generates that second  card actually. you scan the bar code the first card,  the system automatically generates that second card, and  goes out the next mailing.  Okay.  And one those cards comes back before canvas  day, that voter's ballot counted, not?  That's correct.  And cards come back before canvas day, but two come  back after canvas day, that voter's vote would counted?  That's correct. what happens voter who has both cards returned  the board elections after they voted?  The system and what --as mentioned yesterday, state  statute provides that that voter would automatically put  the confirmation process. the system would produce  confirmation notice, which forwardable notice, that  
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voter, asking that voter return this card with your current
 
address it. that confirmation notice not returned
 
the voter within certain period time, think maybe
 
days, then that voter is, believe, flagged inactive. Okay. And when they come vote the next time, they would
 
specifically asked update their address. Right. But explain His Honor. That someone that
 
situation who has had two verification cards returned and the
 
confirmation card not returned, they're placed what's called
 
inactive status? That's the best recollection. And that person --if shows someone shows
 
impersonating that person the next election, that person
 
will allowed vote, will they not? that person provides the updated address information. Well, could claim that the original address that
 
gave was his address, could not? That happens, and that --sometimes that true the
 
Postal Service didn't deliver the mail properly. You know,
 
know that that occurs. There also the potential for someone giving false
 
address originally, failing mail verification after they voted,
 
becoming inactive, and then coming back and voting again the
 
next election, giving the same address they had given
 NAACP, al. -Preliminary Injunction/Vol.
 
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initially; isn't that correct? Well, that's more likely for people who register mail who register person through --you know, than
 
for same-day registrants since the same day registrant has
 
produce documentation showing their name and their current
 
address before they are allowed that same-day
 
registration. they have provide, you know, current
 
documentation that; whereas, other voters not. Okay. you say more likely for someone who
 
registers days before the election game the system
 
giving wrong address, failing mail verification, going
 
inactive and then coming back and giving the same incorrect
 
address the next election than for same-day registration
 
people? would say theoretically it's more likely. Okay. don't recall having --we didn't have that kind
 
situation any reason believe that that had occurred, but
 
theoretically, yes. Okay. Sir, did you ever back and analyze what
 
percentage voters, say, 2012 who voted --who registered days before the election and then subsequently became
 
inactive because they mailed --or failed mail verification?
 
Did you ever look that? Yes, did.
 NAACP, al. -Preliminary Injunction/Vol.
 
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Cross Mr. Farr --George Gilbert Oh, you did? Yes. And you have report that? had report it. longer have  possession, but it's probably somewhere the computer the  board elections. Okay. Did you study sent copy that the state. Did you study how many people who did same-day  registration voted --had their vote counted canvas and then  subsequently failed mail verification and became inactive? That data would that report, yes. And it's your testimony that the percentage people who  may have gamed the system giving wrong address, voting,  and then failing mail verification higher for people who  register days before the election than for those who  register during same-day registration? That's correct. was roughly double the rate. Okay. think characterizing that people potentially gaming  the system ignores many the realistic factors regarding mail  delivery that have encountered over the years. Okay. that --your study was limited Guilford  County? study was limited Guilford County.  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208  

Cross Mr. Farr --George Gilbert All right. compared people who register days  before the election versus people who same-day registration,  between those two people, which one those voters has more  time either pass fail the mail verification process? The ones who register days prior election have more  time pass fail. Okay. Mr. Gilbert, somebody fails mail verification  before they vote, what their status? They are valid --if they fail mail verification before  they vote, then their status that denied voter. And that particular person, they come back and vote  again, they have reregister, they not? They have reregister; that correct. And this contrast somebody who fails mail  verification after they vote and becomes inactive; they can  come back and vote the next election and claim the same  address that they had used previously? That correct, but that was because that was anticipated North Carolina statute. Well, didn't ask you what was anticipated North  Carolina statutes. was asking you there difference  between people who fail mail verification before they vote  versus those who fail mail verification after they vote? heard that. that correct?  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208  

Cross Mr. Farr --George Gilbert That correct. Someone who fails mail verification before they vote  denied and asked reregister the next time? That correct. And someone who fails after they vote does not have  reregister; they can claim the same address that they had  initially used? That correct. don't have your declaration front me, but seem recall, and you correct I'm wrong, that you stated  your declaration that you had trouble completing the mail  verification process for same-day registration individuals  prior the county canvas. Did you say that? Yes. would say that today, yes. Okay. What 100 people came the last day early  voting and did same-day registration --which would the  Saturday before the election under the prior system, think; that correct? That correct. --those people could not possibly complete mail  verification before the canvas, could they, Mr. Gilbert? Yes, they can. Oh, really? Really. You've had people who have had two cards returned who did  
NAACP, al. -Preliminary Injunction/Vol.  
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208
 
same-day registration the Saturday before the election, and you
 
had those cards returned before the canvas? Mail turnaround Guilford County typically two
 
three days. When mass mailing out --let's say
 
split precincts, and send new verification notice all
 
the voters notifying them their new polling place change,
 
something like that. mail that notice out Monday, the
 
majority return mail would back that office Friday. would get some back Wednesday, would get bulk back Thursday, and another bulk back Friday. What
 
trickles later --I don't know why trickles later.
 
may got mishandled begin with, but the later that
 
return mail comes in, the more likely the Postal Service
 
mishandled anyway. Right. most comes back within week. Most comes back within week? After mailing. The first cards come back within week? The bulk will come back three days. You put out
 
another mailing the next day and another three days. You are
 
talking about total six seven days. that would mean under your theory that people who
 
register days before the election would most certainly have better chance going through the mail verification process
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
than someone who registered the end same-day
 
registration? And when get card back Was that yes no? Yes, is. You testified that you had very little knowledge voter
 
fraud Guilford County? That's correct, little experience. Little none,
 
would say. Mr. Gilbert, tell what precinct worker does when
 
checks voter. precinct worker instructed ask that voter state
 
their name and where they live. You are talking about early
 
voting Election Day? Well, are they different? Slightly. Let's both then. early voting, they ask the voter --what they are
 
asking the voter the same thing. early voting, they
 
would then look that voter the electronic poll book that
 
they have available and determine what that voter --one,
 
that voter registered the address that they stated.
 
so, then they provide the voter with voter authorization
 
form, which the voter has sign, and also identifies the
 
ballot style for that voter since they are --all ballot styles
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 the county are available every early voting site. The
 
voter would then sign that affidavit, stating that, you know,
 
they are who they say they are and they haven't moved, and then
 
the precinct official the polling place official early
 
voting initials that form authorize that person vote.
 
The voter then put line taken voting machine. Election Day, instead looking the voter name
 
and address the electronic poll book, have printed poll
 
book that send the polling place. they look the voter there. that printed poll book, there label that has
 
all the voter's information it, and that label peeled
 
off and placed the authorization-to-vote form, and the voter asked once again verify that all that information
 
correct and sign the authorization-to-vote form, which
 
becomes the poll book for that precinct. the voter states his name and address and signs the
 
form, the precinct official has give them the ballot? That's correct. Okay. What tools resources does precinct official
 
have determine whether not the person who giving that
 
information might impersonating someone else? the polling place, only their knowledge local people
 
and that's limited. the early voting, even more
 
limited there. So, basically, poll workers pretty much have take the
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
word the voter that they are who they say they are? That's the way the system works, yes. And they have way the present time North Carolina have any availability confirm the person who
 
says they are? Independently, no. All right. And so, for example, someone wanted come and vote for inactive voter and had the information for
 
the voter's address and was not that person, could fraud poll worker stating the inactive voter's name, stating the
 
address, and signing the affidavit? Hypothetically. Well, that's true, isn't it? That could happen? Yes, sir. And there would way for the precinct worker know
 
whether that had happened not? That's correct. All right. Now, wanted ask you about some testimony
 
you gave that --I think you said that the provisional ballots
 
have gone down after same-day registration? That's correct. Okay. What sort studies did you conduct show
 
causal relationship between that? Was this correlation,
 
did you actually hire someone see the introduction
 
same-day registration was cause the reduction
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
provisional ballots? Well, it's not question doing study.
 
question the process itself. person came --prior same-day registration, person came and presented
 
themselves vote and could not find their name the
 
registration rolls, they were offered provisional ballot.
 
After the advent same-day registration, person
 
came early voting and their name was not the
 
registration record, they were asked they wanted register
 
and vote same-day registrant. you have direct
 
one-to-one correlation switching from provisional
 
same-day registration ballots.
 
When people learned same-day registration, more them
 went vote early rather than wait until Election Day and find
 
out that they weren't registered. Did you conduct any surveys people determine that
 
was said, this just your supposition based your years experience? observation based upon the data that
 
experienced Guilford County. You observed that there were same-day registration and you
 
observed the number provisional ballots went down, but did
 
you ever survey people who did same-day registration decide that was the cause for the decline provisional ballots?
 
That's yes-or-no answer.
 NAACP, al. -Preliminary Injunction/Vol.
 
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Cross Mr. Farr --George Gilbert don't Well, don't think yes-or-no answer.
 
perceive relevant question. person given two options, you either vote
 provisional ballot you vote same-day registration when you early vote --when initiated same-day registration,
 
provisional voting during early voting evaporated. That was
 
longer the option that the voter was presented with. there correlation? Absolutely, one-to-one correlation. But you didn't study showing that was the cause
 
the drop provisional ballots? think are different tracks here. think are, too, but I'll drop that question. Thank you. What about --how has your poll book technology improved
 
over the years? Twenty-five years ago the poll book was produced the
 
precinct officials. When the voter came vote, the
 
precinct official wrote the voter's name the poll book.
 
Sometimes they would remember so; sometimes they
 
wouldn't. Now use the voter authorization form the poll
 
book itself.
 
The law changed North Carolina some years ago requiring
 
that the voter sign the poll book rather than have the precinct
 
officials write their name it. that point went
 NAACP, al. -Preliminary Injunction/Vol.
 
Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208
 
this voter authorization form, which the voter then --voter
 
signs, and the voter has hand the voter authorization form the machine assistant have the machine activated let
 
them vote. have much better system tracking and
 
getting the signatures all voters into the poll book.
 
Occasionally, precinct official might lose forget
 put --or voter might walk out with the voter authorization
 
card, but, and large, the system worked much more accurately
 
than did the past. you have the capacity update the poll books more
 
rapidly than the past? Oh, yes. The labels that place the poll book
 
one, the poll book for early voting automatic. It's updated
 
automatically from the computer when you activate voter
 
when you print out their authorization-to-vote form. That does
 
not require any additional manual handling the poll worker. Election Day, the labels that are printed the poll
 
book have bar code them, and when those come back into the
 
office, scan all those bar codes that updating voter
 
history can performed three four days; whereas,
 
1988, took until December. Has the technology this regard improved even since 2006 the present? Pretty much the same, but it's --I mean, think the
 
modules that the state has developed for updating voting
 NAACP, al. -Preliminary Injunction/Vol.
 
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history are working pretty well. don't recall what changes
 
took place from 2006 present. you know Cherie Poucher? Yes, do. She the director Wake County? Sure. worked together very closely over the years. You say she good elections director? the best knowledge, they haven't had any new
 
elections Wake County. this case, Cherie has testified --she has given
 
opinion that the drop provisional ballots related the
 
improved technology poll books. you think that's
 
possible explanation for the drop provisional ballots? Probably because always had --Guilford County was
 
the first county the State North Carolina employ
 
electronic poll books, which gave access much better
 
information the voters. voter came into the wrong
 
precinct Election Day, could look them the
 
electronic poll book and direct them the correct precinct.
 
That helped minimize our provisional voting, and Guilford
 
County has always had the lowest level provisional voting
 
the state. probably had not more than percent the number provisional voters that they had Wake County. Wake
 
County always had extremely high provisional voting because
 
their own procedures.
 NAACP, al. -Preliminary Injunction/Vol.
 
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Cross Mr. Farr --George Gilbert You and Cherie can have nice talk about that. have, many times. All right. I've got just --I just have one more line  questions that want ask you it's clear the record  and His Honor understands the difference the voting  equipment that you have versus other counties. talked about the DRE machine. What does that mean? Direct record electronic. That's also called touchscreen machine? Some direct record electronic machines are touchscreen and  some are push-button. Right. And how those --explain His Honor how those  work. Don't you have touch --the voter touches the screen? The names the candidates are displayed page just  like they are ATM machine, let's say. That's computer screen; right? Yes. Well, it's voting machine screen, but like  computer screen. liken iPhone. Similar, same technology. Right. Same technology. The voter has touch the square beside  the name the candidate for which they wish vote, and the generally lights that square, and that name  highlighted show the voter that their selection has been  
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Cross Mr. Farr --George Gilbert  made. When they through the entire ballot and they get  the last page, they are asked review their ballot, and  shows all the selections that they have made, shows them  any contest that they did not vote in, and they are asked  verify that. they choose back and vote contest  they missed, they simply touch that contest, and takes them  right directly back that. the voter has two  opportunities verify that the selections that they have made  are the ones that they want.  When they complete that process, they ask you confirm  your vote, and they press the confirm button, and says,  "Thank You for Voting." All right. Now, there touchscreen machine that the  voter putting his finger for the races each candidate  that wants vote for? That's correct. that the machine that actually records the vote? The vote recorded that machine multiple locations  actually. think they have three locations within the machine  that record the vote and that communicate among each other  that keeps double-check make sure that all those  three memory locations are reconciled security measure. Mr. Gilbert, haven't observed elections Guilford  County before, but have observed elections other counties  with touchscreen machines where they actually put cartridge  
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Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208
 
into the machine record the vote. The cartridge put into the machine activate the
 
ballot. Okay. And that's done Guilford County also? Yes. like, for example, because there may different
 
ballot styles precinct, voter might given different
 
cartridge use? Well, when you insert the cartridge the machine,
 
there are multiple ballot styles that precinct, the first
 
screen that would come would ask you select the ballot
 
style for that voter. That's the information that's the
 
authorization-to-vote form. you select the ballot style for
 
that voter and Who does that? The poll worker? The poll worker. Okay. All right. Now, most counties North Carolina
 
not have these touchscreen systems? Most counties North Carolina --I would say
 
three-quarters the counties Election Day use operable
 
scan ballots. During early voting, believe there are counties that use the touchscreen technology during early
 
voting. That was the case year and half ago when was
 
director. Did understand that you said that Guilford County
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your machines could actually count the provisional ballots? Yes. Was that the case the time you retired? Yes. the provisional ballots Guilford County, the
 
time you retired, were cast and counted the touchscreen
 
machines? During early voting, provisional ballots and, then
 
subsequently, the same-day registrations were cast and counted the electronic voting machines. the precincts, had
 
the provisional ballots. Election Day, had the
 
provisional ballots cast optical scan ballots. Okay. All right. Now, are you aware that the legislature
 
has passed law directing that all the counties get rid
 
their touchscreen machines? heard that. What your reaction that? It's too bad. You are not favor that, are you? No. All right. Mr. Gilbert, those are all the questions
 
have for you. Thank you very much.
 
THE COURT: Any other defendant? All right. Any
 
redirect?
 
MS. RIGGS: Just few, Your Honor.
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REDIRECT EXAMINATION MS. RIGGS Good morning, Mr. Gilbert. Good morning. Just few questions. What was the partisan makeup the
 
board that hired you Guilford County 1988? was Republican majority board. Did you serve under Republican majority board for some
 
time? For the first four years term, yes. Okay. Mr. Farr asked you line questions about
 
verifications. There are couple things that want
 
clarify there, too.
 
What are some reasons verification mailing could come
 
back where the voter was eligible vote? variety reasons that uncovered over the years.
 
One, and one the more obvious ones, that the mail was
 
mishandled, which happens occasionally, you know. mean,
 
have lot respect for the Postal Service, and they
 
good job, but sometimes mails get mishandled. had --I would say quite frequently that first
 
verification notices would come back undeliverable, but second
 
verification notices did not. What did that tell you? Well, told --technically, told that the voter
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was verified, and could just that there was some
 
mishandling the mail the first verification notice for
 
some reason. were not able actually track individual
 
pieces mail find out what the reason for that was.
 
Another reason that voters have moved from the time
 
that they registered until the mail was delivered. said,
 
the verification notices are non-forwardable mail. are
 
highly mobile society, and think part the explanation mind for why had higher rate return mail from
 
preregistrants than did from same-day registrants that
 
the mail --the verification notices the people who
 
registered early typically went out every two weeks every
 
week got closer election; but when you were further
 
away from election, was longer period time between
 
the registration being filed and the notice going out, and,
 
statistically, more people would have moved. Did you ever --I'm sorry. Did you ever analysis
 
see whether same-day registrants moved? Well, yes, same-day registrants move, and know that --last year, think there was some question raised --not
 
last year, 2013, question raised about the voters that had
 
two notices returned undeliverable --the same-day registrants
 
who had two notices returned undeliverable. followed
 
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Redirect Ms. Riggs --George Gilbert fact, also, there problem with the registration  standards. person suppose register the address they  live days prior the election. Now, person  voting days prior the election, they may have already  moved; but the poll worker says, where did you live days  prior the election, that would the address which they  registered, and unless they got their new address the  mailing address, then would automatically come back  undeliverable. Were there voters who had moved who were eligible vote  when they did? Yes.  THE COURT: When they did what? When they moved  when they voted?  MS. RIGGS: When they registered and voted, same-day  registrants.  THE WITNESS: Yes.  THE COURT: For benefit, re-ask the question. The  question was: Were there voters who had moved who were  eligible vote when they did? MS. RIGGS question that related back first question was  were there ever same-day registrants who registered and voted,  you got notifications back, and you found out that they had  moved?  
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Redirect Ms. Riggs --George Gilbert Yes, there were cases that. Were those same-day registrants eligible vote the  day that they did vote? Yes, they were. You talked with Mr. Farr little bit about voter  impersonation. Have you ever had case voter impersonation Guilford County? No, not When voter registers vote, there signature  file for that voter? Yes, there is. And when voter goes vote later date, are they  required put signature down? Yes, they are. Would possible match those signatures there  was question? Yes, there would be; and when had cases double  voting, that was one the things that always did was match  signatures. Okay. When did Guilford County get electronic poll books? first tested electronic poll books believe the  year 2000 and implemented them --we've always had electronic  poll books early voting. started 2000 with that,  and then added electronic poll books the polling places Election Day aid getting voters the correct  
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precinct, probably about 2004. Had you had time observe the effect electronic poll
 
books the rate provisional votes cast before same-day
 
registration became law? had far more provisional ballots prior same-day
 
registration, but said, always had --we had the
 
electronic poll books even the precincts Election Day
 
starting 2004. the comparison --the only comparison
 
can make with other counties, and our rate provisional
 
voting was always substantially lower than most other counties. Does your opinion change about the relationship between
 
same-day registration and provisional ballots light the
 
electronic poll books? Well, I'm not sure understand quite what you are trying get at. Mr. Farr asked you about something that Ms. Poucher had
 
asserted this case. just want make sure understand. still your experience that same-day registration
 
dramatically reduced the amount provisional voting? Oh, certainly and directly early voting. The
 
alternative --instead provisional ballot, the alternative
 
was same-day registration. Almost all people that would have
 
voted provisional ballot previously then voted same-day
 
registration.
 
MS. RIGGS: further questions.
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Recross Mr. Farr --George Gilbert  MR. FARR:  Can have few?  THE COURT:  Limited the redirect?  MR. FARR:  Yes, sir.  THE COURT:  Yes.  MR. FARR: will. Thank you.  RECROSS-EXAMINATION MR. FARR  Mr. Gilbert, have you ever conducted survey why  verification cards did not come back Guilford County?  No. it's possible that sometimes the cards don't come back  even though the person never lived the address that gave  when registered?  That's correct.  You talked about comparing signatures the instance  double voting.  Uh-huh.  What does that mean, double voting?  When people voted, say, absentee and then voted  Election Day when our records indicated that people voted  absentee and voted Election Day.  Sometimes that was actually  the case; and explained yesterday, very frequently was  elderly people who had voted either mail early and then  voted Election Day, not knowing --not realizing that was  the same election.  
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Sometimes was mistakes poll workers who selected the
 
wrong label for, say, father and son who had the same name, mother and daughter. the father had voted early and
 
then the son came and they would take the father's label off
 
and put there, looked like the father voted twice.
 
That's when could look the signatures and see that they
 
were two different signatures, and would call them and
 
follow up, and the father and son said, yeah, both voted,
 
and the son's signature matched the one had record for
 
him and the father's signature matched the record had
 
him, knew that there was not irregularity there. There
 
was not, fact, double vote; was mistake the
 
precinct officials. situations like that were the times when would look signatures. Are there any other instances where you looked the
 
signatures? rule, no, except absentee voting sometime mail. Okay. Sometimes there were circumstances under which would
 
need check signatures, but general, no. So, like, you've never compared the signature somebody
 
who voted, failed mail verification, became inactive, then came
 
back the next election, and gave the same address and voted
 
again?
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Direct Ms. O'Connor --Rosanell Eaton would look those signatures when were looking  the registration record someone like that. you recall doing that specifically? Personally, no. Okay. But that's part the routine that the staff does when  they're processing registration applications. But you don't recall doing that yourself? No.  MR. FARR: have further questions, Your Honor.  THE COURT: All right. You may step down, sir.  (At 9:48 a.m., the witness was excused.)  THE COURT: The plaintiffs can call their next  witness, please.  MS. O'CONNOR: would now call Rosanell Eaton  the stand, please.  ROSANELL EATON, PLAINTIFFS' WITNESS, 9:50 a.m., being first  duly sworn, testified follows:  DIRECT EXAMINATION MS. O'CONNOR Good morning, Mrs. Eaton. Would you please introduce  yourself the Court. Yes, will. name Rosanell Eaton, and was born  Franklin County, Louisburg, North Carolina, and years  old, and have lived there frankly all life and attended  
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school there, elementary and high school. And, Mrs. Eaton, you are plaintiff this case; that
 
right? Say what? Are you plaintiff this case? And plaintiff this case. Have you submitted declaration this case? Yes, have. And for the record, that's PX5, JA30. Are you member
 
the North Carolina Chapter the NAACP? Yes, am. How long have you been member the NAACP? Sixty-five years. And also for the record, are you African American? Yes, am. Mrs. Eaton, are you registered vote North Carolina? Yes. When you first registered vote, where did you
 
that? After finishing school, asked mom and brother take the county seat, which Louisburg Franklin County,
 
because wanted get registered when time came for
 
vote, would capable. they did. They took down
 
there mule and wagon, and took about two hours
 
more get there.
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 went into the courthouse, and when walked in, there
 
were three men sitting there. didn't know what expect,
 
but whatever was expected, was ready for it. one asked
 
me, said, well, what are you here for, little lady? And
 
said, well, I'm here get registered vote when the time
 
comes. that gentleman looked the others and was two
 
three them all, and looked them and said, well,
 
what are going do? They said, well, don't know.
 
they went around, and then they told --he told that what wanted was stand straight with hands down
 
beside me, look straight the wall, don't look either
 
one, and don't miss word and speak the Preamble the
 
Constitution the United States America. Did you that? Yes, stood and did what said. And just for second, you remember approximately what
 
year this was? When did it? Yes. said that was wonderful and, mom, you should proud this little girl. Were you able register vote that point? Then told that there would some materials for fill out, which was address and name full and
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whatever. they give those materials. filled them out
 
and turned --give them back them and they sketched --they
 
looked them, and then they said, well, don't see any
 
reason for you not able vote when the time comes. told them, thank you very much, and they thanked and
 
left. Mrs. Eaton, approximately when was this? What year did
 
you register vote? What year? Yes. was --I was like years old. that would have been the 1940s? Yes. And that time were there many African Americans
 
registered vote? What? Were many other African Americans registered vote
 
that time? No, very few. All the ones --you know, not any young
 
ones, people age. Okay. Let's talk about your experiences with voting since
 
that time. Have you ever served poll worker elections? Yes, served poll worker. began observer.
 
After observing eight nine years the poll, then began work the polls. went work the polls
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assistant. worked assistant for about 30-some years,
 
guess. Then after being there long time, mostly was the
 
first judge they selected, and they selected work
 
judge and --when took that position, kept that position
 
until '12, '13. worked that position about 30-odd years
 
dealing with the ballots. And you served poll judge until the year --last
 
year, 2013? worked 2013. Mrs. Eaton, let's also talk about --have you been
 
involved efforts help others register vote? Yes. After period two, three years and people got
 
little accustomed registering, was selected the county
 
commissioner the county, along with two others, try and
 
get people registered vote. were called and named
 
commissioners, registrar commissioners. After our jobs --we
 
just volunteered. volunteered work the county, but
 
worked for years like that. Did you only help African Americans register vote,
 
who did you help register? helped any and everybody. When went college
 
register people, registered all races. had drive,
 
registered all parties, anybody that came. And over the years, you have idea how many people
 
you helped register vote?
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Direct Ms. O'Connor --Rosanell Eaton went their Yes, helped people with health issues.
 
homes and helped them and trained them how register and what and explained them. you have idea how many people you helped
 
register over the years? Well, over the early years, remember over 4,000
 
between 4-and 5,000. Then after that, become --my job got pinchy just stopped keeping record, but still --I
 
available. When you were helping folks register, did any the
 
African Americans that you helped express you any fears that
 
they had about registering vote voting? Yes, had people that was afraid register, and would
 
try explain them why would they be, and they would say
 
they lived sharecrop, and they would afraid that the
 
landlord would make them move, and they didn't have anywhere
 
go. they would resent us, and then went around and back
 
and around --I would come back around them and ask them,
 
and some would agree register the second turn and some
 
would not because that. And you believe that any African Americans still have
 
fears anxiety related voting? Yes. Most the time, they --they kind feel like
 
some resents, and wherever they are after they vote, they are
 
real thrilled about afterwards. They are coming up. They
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are better. Have you also worked efforts help people actually
 
vote, what they refer "Get Out the Vote" efforts? Yeah. Like have voter registrations and have
 
canvassing and classes and church affairs and, you know, like
 
party affairs, anything that would see people and know that
 
they were there. Mrs. Eaton, why have you dedicated much your time
 
and effort over the years helping people vote and
 
voting-related activities? Well, think because foreparents forefathers
 
didn't have the opportunity registering and voting and any
 
opportunity. when was young --I love history, read
 
the history, and then decided was just intention try
 
and help people reach their point that they could
 
something since they couldn't anything. you remember when early voting was first introduced
 
North Carolina? Early voting was established 2007 --2000. And you remember --well, first all, guess have
 
you yourself used early voting? Yes, I've used --I use early voting most the time. And you remember the first time that you used early
 
voting? The first time early voting came about was thrilled
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death. daughter and were the first get the election
 
board sign the papers. And why was important you get there first and use
 
that early voting opportunity? Well, working the polls many years and being
 
around the polls, realized that that would asset that
 
would give them little more time. Time very important poll, and that would give them time get started and get
 
registered and get voting before the main day came up. The day the election, was just going very crowded,
 
course. first, wasn't bad, but the people moved
 
North Carolina --North Carolina growing state. There are
 
many, many people here, and they are coming every day. it's
 
just impossible for them get there that day, and they
 
don't there the time when say 7:30, close the polls,
 
they can all down the walk, but they cannot vote. People
 
work Raleigh from Louisburg and different places, and they
 
cannot get there --they are afraid they can't get there and
 
vote before they work. After going work, they are
 
afraid they can't get back, and just mob-like trying
 
get from Raleigh and places where they work. Okay. Specifically with respect African American
 
voters, have you observed whether they --whether African
 
American voters use early voting? Yes, they use quite bit, quite bit, lot.
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Direct Ms. O'Connor --Rosanell Eaton Based your experience connection with voting  efforts, why you believe that early voting important  African Americans? The reason believe early voting great help  because that gives people time, time very important, and  gives them time for people that are home and can't get  there because someone have take them because they don't have  vehicles. That will give people --some workers maybe,  volunteers take them the polls and vote, and that will  give people time for people come from their jobs.  That's why it's important for people able cast their vote because should have accessible time  instead cutting down. And, finally, Mrs. Eaton, are you concerned about the  reduction the early voting period that resulting from the  HB589 legislation? Yes. think very important that have time for  them get there. And why are you concerned about that? that they can have more opportunities because others  feel like voting should free and accessible everyone and  give everybody chance.  MS. O'CONNOR: Thank you, Mrs. Eaton.  THE COURT: Any questions for Mrs. Eaton?  MR. PETERS: No, Your Honor, not from the defendants.  
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THE COURT: Help her down and please careful
 
the ramp. Mrs. Eaton, thank you.
 
(At 10:06 a.m., the witness was excused.)
 
THE COURT: Please call your next witness.
 
MR. BROOK: Good morning, Your Honor. Christopher
 
Brook from ACLU North Carolina for the League Women
 
Voters plaintiffs, and would call Representative Rick
 
Glazier the stand.
 
REPRESENTATIVE RICK GLAZIER, PLAINTIFFS' WITNESS, 10:07
 
a.m., being first duly sworn, testified follows:
 
DIRECT EXAMINATION MR. BROOK Good morning. Could you state your name for the record. Sure. Good morning. It's Rick Glazier. And could you just start off your testimony this morning
 
providing with some your educational background? Certainly. got bachelor's degree from Penn State
 
University and J.D. from Wake Forest University, School
 
Law. After you graduated from Wake Forest University, School
 
Law, can you just sort take through your vocational
 
background from that point forward? Certainly. first two years out law school, was
 
assistant public defender Fayetteville, North Carolina.
 
then got picked --I was lucky get picked and served three
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years law clerk the Honorable James Fox the
 
Eastern District North Carolina and then served
 
additional two years the United States Magistrate Judge
 
Wallace Dixon the Eastern District North Carolina his
 
law clerk.
 
Following five years law clerking, was hired
 associate the Fayetteville law firm Beaver Holt
 
Richardson, became the partner and managing partner year and half later that firm, and stayed partner the law
 
firm for years. then served one year counsel with Raleigh law firm
 
after had gotten the legislature and then went into
 
full-time teaching outside the legislature. I've served --for
 
the last seven years, I've served 75-percent visiting
 
professor Fayetteville State University, teaching their
 
undergraduate law-related courses, and 25-percent adjunct
 
professor law Campbell University, School Law. And what you teach Campbell University, School
 
Law? teach two courses, pretrial civil litigation, which I've
 
taught either once year twice, depending when it's
 
offered since 1991, with three years exception, and then also teach --or I've taught four semesters state
 
legislative policy-making and ethics. You referenced the course that answer your tenure
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the legislature. When were you first elected the
 
legislature? was first elected the legislature 2002 and have
 
been reelected each time since. And which the two bodies the legislature have you
 
served in? The House Representatives. Has that been since 2002? has. Prior being elected the North Carolina House
 
2002, did you have electoral experience? did. served from 1996 2002 the Cumberland
 
County Board Education, elected '96 and reelected
 
2000. Any further experience with the electoral process,
 
electoral politics? Certainly experience terms working other folks'
 
campaigns that dated back college, but terms
 
experience, those are two elected offices. What sort experience did you have working other
 
people's campaigns? worked back college --when was registered with
 
different party Republican, worked for Senator John
 
Hines Pennsylvania his campaign and then worked for the
 
1980 primary campaign for later President Bush. didn't win
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the 1980 primary. switched party registration after that 1980 election,
 
and campaigning work after that time was for both Republican
 
and Democratic candidates locally, and eventually law
 
partner, Billy Richardson, ran for the legislature 1990.
 
was his campaign manager then and again '92 when won and '94 when won. Going back your tenure the legislature, can you tell little bit about what the district districts that you
 
have represented have looked like throughout the years? Certainly. I've actually represented three districts
 
since have been the legislature. represented district
 
for two years from 2003 2004, which was House District 44. served since 2004 the second district that was given,
 
which was House District 45, and then that went until this last
 
round redistricting. served that district for eight
 
years and then went back, and now these two last years, have
 
been serving House District again. What are some the distinct features the districts
 
that you've represented the House? They are both --all three the districts were
 
Cumberland County-specific districts. was one-county
 
district, but they had very different demographics. The
 
majority the time when was House District 45, that
 
district had some inner city, where lived, but was dominantly
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 rural district. Our county separated the Cape Fear
 
River, and lot our county what call "East the
 
River," much more suburban and rural. district had lot that population; whereas, current district all compact and the city, it's
 
separated very different that regard.
 
The district that currently very much two-way
 
district, that is, represent some the most wealthy
 
neighborhoods Cumberland County precincts, and represent
 
some the poorest, and literally the district not divided the railroad tracks but all but. Are there particular different distinct groups that you've
 
represented your time representing Cumberland County the
 
House? Certainly. From demographic point view, the current
 
district, for example, have percent Caucasian,
 
about percent African American, the remainder Native
 
American Hispanic Latino Asian American. The district
 
that previously represented had slightly higher African
 
American population it. One thing that was similar both happen represent awful lot military service
 
members, their families, and veterans because district
 
borders Fort Bragg, North Carolina. You referenced Fayetteville State previously your
 
testimony. Are there other colleges, universities
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Cumberland County? Certainly. There are actually three. There
 
Fayetteville State University, which has about 6,000 students
 
full-time; Methodist University, which private four-year
 
liberal arts institution where wife works, and that has
 
enrollment about 23-, 2,400 students, which was the
 
center previous district; and then Fayetteville Technical
 
Community College, which one the largest community
 
colleges North Carolina and the country, which has
 
enrollment about about 12,000 FTE but partial enrollment close 45,000 students, and that's the heart
 
district and has been all the way through. Have you represented your time the legislature
 
students those particular institutions? Yes, all those institutions. How many times since you first ran for the North Carolina
 
House 2002 have you been the ballot? have been the ballot for primary and general
 
elections each time since 2002. that would make
 
approximately times coming up, and then was the ballot
 
twice for the school board. What your efforts typically entail when you are the
 
ballot? depends little bit obviously the nature the
 
campaign, whether I'm tenaciously opposed whether it's
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more limited opposition, but have won because district
 
has, all three types districts, been swing district;
 
and have tried emphasize ground game, and tend awful lot door-to-door campaigning. That is, fact,
 
how won first election for the school board, and I've
 
maintained that since. lot telephone banking
 
personally with volunteers, and lot town hall
 
meetings and one-on-one group meetings with different
 
organizations and social groups throughout the city; and then,
 
obviously, like any campaign, there media component and
 
component that deals with press and mailing and television and
 
radio. you work the polls when you are the ballot? do. Can you tell little bit about what that entails? every election. Partly --we are all creatures
 
superstition. For me, first election won think over the
 
last five days doing --hitting about 3,000 doors and then
 
spending all Election Day two precincts, and try
 
greet all the voters and pick the precincts that are the
 
most highly contested the largest turnout precincts, and
 
tend spend all day there. have done that now throughout career, and there from 6:30 the morning until
 
7:30 the evening greeting voters either one two
 
precincts only that day.
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And then early vote, what I've tried do, again given
 
job responsibilities, try there for quarter
 
half the day one the three early vote sites that really
 
connect with district. have seven Cumberland County,
 
but three are where the vast majority voters district
 
vote. you just referenced early voting. You've been involved electoral politics North Carolina before and after the
 
advent no-excuse early voting; that right? That's correct. Did that advent no-excuse early voting change your
 
electoral tactics? Certainly. would think they changed most everyone's
 
tactics. You wanted encourage many your voters
 
into early vote that there wasn't excuse something
 
that might have happened that would prevent them from voting
 
Election Day. was certainly easier for you able
 
then target what you needed you went through Election
 
Day. the technological has moved allow determine
 
each night who's voted that day, it's actually made easier
 
and bit cheaper for able then parse down
 
targeting and final mailing and final work know those who
 
have already voted. from candidate's perspective, you've had change
 
sort your technological campaigning. personal level,
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 has changed well. I've really tried increase voter
 
contact even earlier than did before, and I've tried
 
follow up, and that follow-up wasn't, for example, necessary
 
Election Day very much; but now, for example, the first week
 
early vote, will have folks either telephone
 
door-to-door determining that the people who are going early
 
vote say they will.
 
Then part job that night the candidate will
 
get list maybe 100 people who said they were going vote the next day, and will usually call them and say
 
thank you for telling campaign worker that you are
 
going vote, and just wanted tell you how much
 
appreciated that way get them make sure that they
 
are going early vote and sort ask them and commit them that, and found very successful. You referenced passing just then the impact campaign
 
costs that early voting has had. Can you amplify that?
 
What impact, any, has the advent no-excuse early voting
 
had campaign costs? There certainly lot things that have impacted
 
campaign costs, which have gone dramatically. Early vote
 
not one them. The price media has been extraordinary.
 
The gerrymandering and polarization districts that were
 
there where there has been narrowing over the years those
 
that are competitive has meant that more and more money
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pushed into the competitive districts that might have been more
 
spread out years ago.
 
You end well with tremendous influence, whether
 like not, for both sides outside money which,
 
course, didn't exist much and years. give you the
 
best example, said that ran law partner's campaign for
 
the legislature 1990, '92, and '94. raised approximately
 
35-to $40,000 for those campaigns and thought that was great
 
deal money. was run those elections. When ran
 
2010, had raise $275,000 for House seat, for
 
13,000-dollar House seat, and that gives you sense, think, how the money has changed; but early vote wasn't reason
 
for that. I'm going transition here the specific topic that
 
brings into court today. Are you familiar with what has
 
been referred this proceeding House Bill 589? am. you recollect it's introduction the North Carolina
 
House Representatives? do. And can you tell about what the general focus this
 
version --the original version House Bill 589 was? Sure. When was introduced April 2013, had won
 
premise, and that was the issue photo voter identification. was approximately 10-to 15-page bill that focused solely
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 that issue. And can you tell what the initial House consideration this version House Bill 589 entailed? can. was not the Elections Committee, but was
 
tasked that time caucus, along with Representative
 
Michaux, being the two leads our caucus prepare for
 
that bill. that vein, was involved discussions with
 
Republican majority that bill was being drafted,
 
was being prepared. Representative Lewis was basically
 
charge, although there were several members who were
 
instrumental the House side the putting the bill
 
together.
 
There was, would tell you, think perhaps the best
 
process have seen outside workers' comp bill where --a
 
few years ago where there was extraordinary stakeholder
 
process. For large bill, thought was the best process
 
possible the House side. There was compete agreement for
 
open discussions before the bill got drafted. There were two
 
large public forums announced days advance. think each
 
case people were allowed sign online. There were
 
probably about 100 people each the public forums that
 
spoke for several hours. There was large committee hearing the Elections Committee that went for number hours.
 
All amendments were taken. All amendments were debated. All
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amendments were voted.
 
Following the committee process, there was extended
 
floor debate that bill. Again, amendments were possible.
 
There was full debate and not time limited. Although voted
 
against that bill, there was nothing can say except that
 
process was excellent process and one that you would expect very substantial bill undertake. Who did the legislature hear from during their April
 
consideration House Bill 589? Part the discussions with Representative Lewis was that wanted make sure that heard from experiences out
 
state and other states that were looking photo had
 
already passed that and were implementing. both minority
 
and majority parties brought experts. For example, Ion
 
Sancho believe brought from Leon County Florida
 
talk about the Florida experience. There was expert brought
 
from Indiana talk about Indiana's experience. brought expert from the Brennan Center talk about national trends
 
and information. Civitas had expert that was brought
 
testify. there were number people heard from, both
 
get legal issues out the open and get cost issues
 
and get just practical implementation issues. You referenced the opportunity work with the majority
 
during the consideration the April version House Bill
 
589.	 Can you tell what that entailed?
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 Again, there was open discussion with Representative Lewis  about what provisions might likely the bill.  encouraged folks come talk about possible changes  language might like that they could consider it. There  was open agreement that --how many experts would bring,  and that each side would have equal opportunity present  those the committee. tried share, where could,  amendments that were being considered thought about.  there was pretty open process. Did you have adequate amount time review this  April version House Bill 589 before the full House voted  it? Oh, sure. was multi-week, almost month process  from the time was --really multi-month process the  development, but least three-or four-week process from  the time the bill was introduced the committee until was  voted the House floor. After it's voted the House floor, what happened  next? The bill passed. was sent over the Senate, and  sat the Senate for some time pending the United States  Supreme Court's decision Shelby County. What happened when the Shelby County decision came down? When the Shelby County decision came out, first  recollection was --either that day the next day, there was  
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Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208 statement the press the majority leader the Senate,
 
Tom Apodaca, that said, essentially, now get put the full
 
provisions the bill, and are going put everything
 
the bill. wasn't any more clear than that. the next thing following that statement that heard
 
was the morning that the bill --now 57-page bill, believe,
 
with some 40-plus provisions emerged was the morning was into Senate Rules Committee lunchtime early that
 
afternoon. Could you compare the April House version House Bill
 
589 with the Senate version that emerged the Senate Rules
 
Committee? Well, there was comparison. was 90-percent
 
different bill. Again, went from about 14-page bill
 
that was photo provisions that ensconced elimination public financing, increase contribution limits,
 
decrease transparency reporting, elimination same-day
 
registration, elimination 16-and 17-year-old early
 
registration capacity, cutback third early voting,
 
elimination Sunday early voting, limitations local
 
control over weekend hours, increase who would
 
acceptable challenge voters the polls; and then,
 
recall, there were number technical provisions, and there
 
was the out-of-precinct limitation, which is, think, pretty
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
important part the bill that also was included that
 
eliminated people from having their vote counted they voted
 
out-of-precinct. none that was earlier.
 
THE COURT: Excuse me. Are you done with your
 
answer?
 
THE WITNESS: Yes, sir.
 
THE COURT: this good time can take break
 
this morning?
 
MR. BROOK: Absolutely, Your Honor.
 
THE COURT: We'll take break for minutes.
 
(The Court recessed 10:39 a.m.)
 
(The Court was called back order 10:51 a.m.)
 
THE COURT: Mr. Brook, you may continue, sir.
 
MR. BROOK: Thank you, sir. MR. BROOK Before the break, were talking about the April 2013
 
version House Bill 589 and the Senate version House Bill
 
589 from July 2013, and you were comparing and contrasting
 
those different versions. Can you talk little bit about how
 
the voter photo identification provisions those respective
 
versions compare one another? Sure. There were several amendments that were done the
 
House side that work between the Republicans and Democrats try expand access and availability increasing the
 
numbers identification cards that would acceptable. For
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Filed 07/18/14 Page 208
Case 1:13-cv-00861-TDS-JEP Document 165
 
example, there was amendment passed that would allow the use university and community college identifications. There
 
were provisions passed that would allow certain local and state
 
governmental identity cards. recollection that there was
 
also amendment passed that would include certain government
 
benefit cards legitimate forms identification for vote.
 
When the Senate version came over, those compromises that
 
were part the debate --I thought thoughtful debate process the House were stripped. that thoughtful House April 2013 legislative process,
 
how relevant was the House consideration the July 2013
 
version House Bill 589? All but irrelevant variety ways. First, the vast
 
majority the new bill were new provisions that were never
 
discussed debated talked about the House side.
 
Second, some the, suggested, compromises and
 
amendments that were adopted were taken out.
 
Third, and going phrase this little differently,
 
but think important, built that House debate was importance relationships. Legislators work best when
 
they work together, and you can only that developing
 
credibility and relationships with each other. There were some
 
real relationships thought for very tough issue --there
 
was philosophical divide voter --that were created
 
very thoughtful, intelligent, and informed process the
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House side. have that all stripped out effectively with
 
what emerged from the Senate and then the next hours
 
process the House obliterated those relationships, which
 
have extraordinary impact how you work with each other, not
 
just that piece legislation, but all the public's
 
business. After the Senate passed House Bill 589, how long did you
 
have review that version 589 before came the House
 
floor? recollection that the second reading the Senate
 
side occurred afternoon, and then they passed it,
 
think, the next morning. The bill was sent over special
 
messenger the House. was calendared for immediate
 
consideration, recall, that afternoon. from the time left the Senate us, several hours. Was that adequate amount time? No, certainly not. was new bill with more pages
 
and more provisions and fundamentally affecting, think,
 
the constitutional rights every citizen the state and
 
effectively changing decades electoral reform the state.
 
So, no, couple hours was not sufficient. Can you take through and the Court through the House
 
consideration this July 2013 version House Bill 589? Certainly. came over, said, Your Honor, from
 
special messenger from the Senate. did not any
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committee. was placed the House calendar. were
 
session that afternoon. was placed the House calendar
 
some point that afternoon for immediate consideration. There
 
was time limitation imposed the debate the House floor,
 
and recollection two-hour limit, give take few
 
minutes. think the minority party was given either
 
minutes 100 minutes. The majority party took minutes.
 
That was imposed the beginning the debate.
 
Because the bill coming over strictly the manner
 that did, there was amendment process, committee
 
process that was used, and the limited debate that occurred
 
was the discussion the House floor and then the limited time prepare was about hour House --each side caucusing
 
before the scheduled floor session. Can you take the Court through what that House debate
 
the July 2013 version House Bill 589 entailed? can, although suspect that words are not going
 
sufficient here. was the most emotional two hours I've ever
 
spent public office, and that includes, for me, large
 
debates that was involved number controversial
 
issues the House. This was for some our members --for
 
many our members, feeling that their life's work was being
 
rolled back one two-hour session. For number African
 
American members the floor --and remember Representative
 
Michaux clearly having tears his eyes and speaking about all
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the civil rights battles that had fought and that thought had won now being lost and having refought yet again. was very emotional time. What will tell you and
 maybe the best way describe it, Your Honor, it's the only
 
time that know since was public office, and told
 
the only time modern North Carolina legislature, where every
 
member the minority asked speak the bill. were
 
having cut short time because that time limit, but every
 
one the members the minority spoke. There were two
 
who were absent. One minority member's son was undergoing open
 
heart surgery, and believe was Representative Brisson who
 
may have been off the floor well. every member spoke. the end those speeches, cast our votes, had decided that would all stand up,
 
which not protocol, and cast our votes together the same
 
time; and then number legislators simply stood together
 
and prayed for moment. have never been through anything like that public
 
life. doubt will again, but think stresses the
 
importance what was being done that evening and the
 
prevalent feeling the minority, the opposition, side
 
the bill about not only the process but the substance what
 
was occurring the House floor. think most felt that was ambush the people North Carolina that was
 
taking place, and pretty much said that speech.
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 How long did legislators who were opposed this measure  have speak during the floor debate? Again, were limited between and 100 minutes.  were running out time. think there were three lights  still and the speaker had granted several additional minutes that they could each have one two minutes talk that  every member got heard. was one the few that was given lead authority, and  think comments were about eight minutes, give take,  set out the arguments that had. would say that all  several the people who spoke had voted for the photo bill  when emerged from the House. member the minority, our  opposition, voted for this bill. not sure that answers your question. guess just average, how long did those voting against  have address these pages worth new measures? Well, you simply take the 100 minutes and divide  the people, two and half minutes person. Who spoke support this measure? That also was most interesting. There was only one person  that recall who spoke for the bill, which was very unusual. fact, have not ever seen that substantial bill  before. Representative Lewis appropriately, who was lead  the bill, gave the opening statement about the general  provisions the bill the first few minutes. Then the rest  
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Case 1:13-cv-00861-TDS-JEP Document 165 Filed 07/18/14 Page 208 the time was taken the minority members and their
 
opposition speeches, and then came back Representative
 
Lewis the end the debate, and held legal pad that had been taking notes and had about six seven points that wanted rebut, and gave paragraph two about each those six seven points, and that was the debate for the
 
majority side. There was one else that recall being
 
recognized being asked recognized, and you can tell
 
that the electronic screen and see who --if their light on. You've gone through number different elements what
 
the House's consideration the July 2013 version House
 
Bill 589 entailed. want sort circle back through some those individual components. Sure. You indicated that was matter hours that you had review the new version House Bill 589. Was that typical your legislative experience? This was the most atypical process that I've ever seen --what believe one the most substantial and
 
certainly constitutional bills that had done tenure
 
probably will ever tenure the House. was what
 
would tell you, bar none, the worst legislative process that
 
had ever been through, and have been through some bad ones
 
the Jim Black era, and have been through some through the
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last several years. This league itself.
 
This was the most --a combination truncated,
 
nontransparent, limited capacity for any public notice, public
 
input, scholarly discussion, understanding the provisions bill that was, say the least, controversial, full
 
substance, and dealt fundamentally with the most important part democracy, the right vote. was shocked it, not by, some respects, some the
 
provisions, but the --and, again, comments the floor
 
that night made clear --by the process had --I have
 
clarify this regard. When you're the majority for eight
 
years and you switch the minority, your role switches. For and lot the minority, you have sort
 
understand what that role is, and twofold. is, one, help govern wherever you can that, work across the
 
aisle create the best legislation you can for the state and
 
where you need fight for your principles where there
 
isn't compromise available. had spent lot time that year being one the
 
leaders caucus trying work through and help modify
 
and get bipartisan legislation through. That process really
 
takes time, and takes relationships, but is, think, the
 
right thing do. have that sort explode you the floor the
 
most important bill the session, undercut all those
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208
 
relationships engaging process that was --I can think other word say but pure ambush critical piece
 
legislation. The anger and the disappointment that existed was bad have ever seen the legislative process. You referenced that there was committee process when
 
House Bill 589 its July 2013 version came back the House? That's correct. that typical? No. When bill comes back after one body passes and
 
the other body makes substantial changes, there really are two
 
options that normally would available use. One put
 
the bill the floor quickly for nonconcurrence vote with
 
the understanding that you are going not agree the
 
changes the other side made, put the bill into conference,
 
appoint conferees, and start working through your differences.
 
Also that allows input from the outside those provisions
 
that you get better sense maybe where you might should
 
with the differences between the Senate and House version.
 
The other option that might occur that the bill, before put the floor after coming back from the body that
 
just passed the second set it, would sent committee,
 
back, this case, the House, that the new provisions
 
could explained and vetted and discussed committee, the
 
ultimate goal getting recommendation out that committee whether concur not concur.
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Case 1:13-cv-00861-TDS-JEP  Document 165  Filed 07/18/14  Page 208 there are plenty bills that come over with changes
 
that may substantial changes. Once you learn them, the
 
body that was the originating body says, you know, think the
 
other body has done good job; are going agree those.
 
Then will put the floor following the committee for
 
vote with understanding that it's been vetted, and that you
 
will eventually pass it, there disagreement,
 
committee wouldn't have helped understand any better.
 
Those are the normal way, the way you would
 any substantial change. The process this bill got was nothing
 
more than what give golf cart bill. Without committee process, did you have opportunity hear from experts about the impact the Senate version
 
House Bill 589? No. think there was some very, very short limited open
 
comment when the bill came Senate Rules. was not
 
Senate Rules for short period time, and whoever
 
happened there that day got two minutes talk. There
 
may have been eight ten people who said something, but there
 
was notice, was whoever happened monitoring the
 
committees that day. the House side, course, there was committee; therefore, there was hearing and
 
opportunity vet with anyone. You also noted that the only legislator who spoke favor House Bill 589 its July 2013 version was Representative
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David Lewis previously? That's recollection. How typical for bill this magnitude only
 
have one supporter speak its favor during House debate? Very atypical. was clear that directions were
 
given that only Representative Lewis was speak the
 
majority side and that there were not other comments. any candor --I said this deposition --if was
 
the lawyer representing the other side, that would have been
 
the legal advice gave because the enormous implications
 
the case and the creation the record; and was pretty
 
clear that Representative Lewis was going the only one
 
speaking and the only one answering. They certainly were not
 
given the time limitations had, the ability engage,
 
beyond getting our comments out best could. After the House passed this July Senate version House
 
Bill 589, did you have any conversations with Republicans about
 
the measure the immediate aftermath that vote? did. will preface saying when was --when the
 
debate was occurring the measure, was very clear that the
 
chamber was clearly different.
 
Normally, you have colleagues --and will standing
 
one side, and you will talking, and those the
 
minority often are talking across the aisle try engage;