Joint Appendix — McCrory v. Harris, 136 S. Ct. 2512 (2016) (No. 15-1262)
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FILED
SEP 1 2 2016
No. 15-1262 | __OFFICE OF THE CLERK
[EE
3n the
Supreme Court of the Gnited States
PATRICK MCCRORY, in his capacity as Governor of
North Carolina, NORTH CAROLINA STATE BOARD OF
ELECTIONS, and A. GRANT WHITNEY, JR., in his
capacity as Chairman of the North Carolina State
Board of Elections,
Appellants,
Vv.
DAVID HARRIS and CHRISTINE BOWSER,
Appellees.
On Appeal from the United States District
Court for the Middle District of
North Carolina
JOINT APPENDIX VOLUME V
MARC E. ELIAS PAUL D. CLEMENT
Counsel of Record Counsel of Record
JOHN M. DEVANEY ERIN E. MURPHY
BRUCE V. SPIVA MICHAEL D. LIEBERMAN
PERKINS COIE LLP BANCROFT PLLC
700 Thirteenth Street, NW 500 New Jersey Avenue, NW
Suite 600 Seventh Floor
Washington, DC 20005 Washington, DC 20001
(202) 654-6200 (202) 234-0090
melias@perkinscoie.com pclement@bancroftplic.com
(Additional Counsel Listed on Inside Cover)
September 12, 2016
Statement as to Jurisdiction Filed April 8, 2016
Probable Jurisdiction Noted June 27, 2016
KEVIN J. HAMILTON
WILLIAM B. STAFFORD
ABHA KHANNA
PERKINS COIE LLP
1201 Third Avenue
Suite 4900
Seattle, WA 98101
(206) 359-8000
Counsel for Appellees
THOMAS A. FARR
PHILLIP J. STRACH
MICHAEL D. MCKNIGHT
OGLETREE, DEAKINS,
NASH SMOAK &
STEWART, P.C.
4208 Six Forks Road
Suite 1100
Raleigh, NC 27609
(919) 787-9700
ALEXANDER MCC. PETERS
NORTH CAROLINA
DEPARTMENT OF
JUSTICE
Post Office Box 629
Raleigh, NC 27602
(919) 716-6900
Counsel for Appellants
TABLE OF CONTENTS
VOLUME I
ECF 65 - Memorandum Order denying
Plaintiffs’ Motion for Preliminary
Injunction and Denying Defendants’
Motion to Stay, Defer, or Abstain,
U.S. District Court for North Carolina
Middle District (May 22, 2014)....................
ECF 95 - Notice by Christine Bowser, David
Harris of Parties’ Joint Filing of State-
Court Record, U.S. District Court for North
Carolina Middle District (July 1, 2015).......
ECF 104 - Defendants’ Rule 26(a)(3)(A)
Disclosures, U.S. District Court for North
Carolina Middle District (September 14,
ECF 125 Parties’ Joint Factual Stipulation,
U.S. District Court for North Carolina
Middle District (October 12, 2015)..............
ECF 144 - Defendants’ Notice of Appeal, U.S.
District Court for North Carolina Middle
District (February 8, 2016) ...................00..
P-006 - Letter from the US DOJ to NC DOJ
Preclearing the 2011 Congressional
Redistricting Plan (November 1, 2011) .......
P-007 - Letter from U.S. Rep. G.K. Butterfield
to N.C. Sen. Rucho and N.C. Rep. Lewis re:
July 19, 2011 Joint Statement (2011) .........
(1)
Page
10
15
235
242
246
il
TABLE OF CONTENTS—Continued
P-010 - Letter with attachment from U.S.
Rep. Mel Watt to N.C. Sen. Rucho and N.C.
Rep. Lewis re: Statement Regarding
Proposed VRA Districts (July 8, 2011)........
P-013 - NAACP e-mail frem Brent Woodcox to
Tom Farr and e-mail string re: attorney
client communications (June 30, 2011).......
P-015 - Second Affidavit of David Peterson,
Superior Court of Wake County, North
Carolina (January 4, 2012)..............0.......0...
P-016 - Fourth Affidavit of David W.
Peterson, Superior Court of Wake County,
North Carolina (May 8, 2012)......................
P-O17 - Expert Report of Stephen
Ansolabehere (December 23, 2013)..............
P-018 - Report of Stephen Ansolabehere in
Response to Thomas B. Hofeller (January
ib 102 sda nasi eatea sit baees twnahaeniiodabacee
P-067 - Statement by Senator Rob Rucho and
Representative David Lewis re _ the
Proposed 2011 Congressional! Plan (July 1,
P-068 — Joint Statement by NC Sen. Rob
Rucho and NC Rep, David Lewis re the
Release of Rucho-Lewis Congress 2 (July
i ccscecnan shone, cainand jenesithekinanniseunaiieonobeoresuin
P-069 — Data Analysis Charts for N.C.
Congressional Races: 1992-2001, including
Districts 1, 4, 5, 7, 8, 9, 11, 12, 13........000.....
Page
251
259
262
289
306
338
353
362
ili
TABLE OF CONTENTS—Continued
P-071 - Second Joint Stipulation (Dickson v.
Rucho), Superior Court of Wake County,
North Carolina (February 25, 2013)............
P-072 - 1992 Section 5 Submission (Letter
and Compendium from NC DOJ to US DOJ
re 1992 Congressional Plan) (January 28,
EE cies has aisicdgvdakodeciacandbercoebeste banigadaiites
P-073 - 1997 Section 5 Submission (Letter
and Compendium from NC BoE to US DOJ
re 1997 Congressional Plan) (April 9, 1997)
iit. eee ee eee eee eee eee eee eee eee eee eee eee eee eee eee eee ee eee
P-074 - 2011 Section 5 Submission (2011
Congressional Plan enacted by NC General
Assembly on July 28, 2011)...................
P-078 — Comparison of NC Congressional
Districts in Section 5 Counties for 1997,
NS iid dros nedsnwaahhaumenkovaideelahoutioedtanels
P-106 2011 NC CD 1 VAP by Race and
I Socdgad bs stirs Desavnstinencecdavwina ected caothancese
P-107 2011 NC CD 12 VAP by Race and
ii instadencoi ca Couibesvusssasaeebnsidpdiadpenss
P-111 ~— District Attributes: VAP by Race,
Data for the NC Congressional Plan in
effect between 2001 and 2011......................
VOLUME II
P-129 - Deposition Transcript of Thomas
Hofeller Harris v. McCrory, U.S. District
Court for North Carolina Middle District
SERNA ho Be ns fe tai reer es po
Page
381
394
421
457
491
493
499
503.
iv
TABLE OF CONTENTS—Continued
P-136 — NC General Assembly Joint Senate
and House Redistricting Committees
Meeting Transcript (July 21, 2011).............
P- 137 - NC General Assembly Senate
Redistricting Committee Hearing
SROMETIE GIG BE, BIEL) ...cc.ciccccossscesecteccess
P-139 - NC General Assembly Senate Floor
Debate Transcript (July 25, 2011). .............
P-140 - NC General Assembly House
Redistricting Committee Transcript of
Meeting on Senate passed Redistricting
PE I TEs BOWE E Pic ccccosstissseccesavenwecpenczessces
VOLUME III
D-2.28 — 2001 Split VTDs in Districts with
40% or Greater Total Black VAPs (CDs 1
a Oe
D-2.60 - 2001 Congressional Plan - Districts
with non-Hispanic White VAP under 50%,
Election Winners (CDs 1 and 12).................
D-2.64 - 2001 Congressional Plan - Districts
with Black Voter Registration Over 40%,
Election Winners (CDs 1 and 12) ................
D-2.66 - SCSJ Congress — Districts with
Black Voter Registration Over 40%,
Incumbents (CDs 1 and 12)......................26:.
D-2.67 - Fair and Legal Congress - Districts
with Black Voter Registration Over 40%,
Incumbents (CDs 1 and 12) ...................ue
Page
605
654
685
825
866
867
868
869
Vv
TABLE OF CONTENTS—Continued
D-4.5 - Congress Zero Deviation NC CD Map
(2010 Census), including Actual Population
based on 2010 Census Results, by VAPs,
and for 2004 and 2010 Election Results......
D-5.6 - Excerpt of NC General Assembly
House and Senate Redistricting
Committees Public Hearing Transcript
TL IEUED Scnctcieccscc biscosek sadasaccsueexawwnnetesoces
D-5.7 — Testimony of Anita Earls, SCSJ-
NAACP before NC General Assembly 2011
Redistricting Public Hearing (May 9, 2011)
Dr. Ray Block, Jr., Executive Statement,
Racially Polarized Voting In 2006, 2008,
and 2010 in NC State Legislative Contests:
A Report for the SCSJ (2011)...........00....0.2..
Anita S. Earls, Emily Wynes, LeeAnn
Quatrucci, Voting Rights In North
Carolina: 1982-2006, 17 S. Cal. Rev. L. &
ge RE es ee aes
D-5.8 - Executive Statement by Dr. Ray
Block, Jr., Racially Polarized Voting In
2006, 2008, and 2010 in NC State
Legislative Contests: A Report for the SCSJ
Ss in AIG SAS ROMS a el Reel rg EN EE Da! SSE
D-5.10 - Thomas L. Brunell, Report on
Racially Polarized Voting in North
Cre GN BG BPR cccscceci sc scccnsisiescccceces
Page
871
876
883
888
903
956
vil
TABLE OF CONTENTS—Continued
Page
D-5.11 - Joint Statement by NC Sen. Rob
Rucho and NC Rep. David Lewis (June 17,
D-8 - Laura Leslie, Butterfield disputes
chairs’ statement, WRAL.com (July 5,
RP sah cabs cehedteed ticasra taseriin see cote tcieemsuneaanesoeidha pix tenon 1062
D-14 —Letter from NC Sen. Rucho and NC
Rep. Lewis to Hon. Floyd McKissick re:
redistricting criteria and legal issues (May
Wig INE dics csssbctuaanntansscatinaiendiiaiebannenesspdatanses: 1066
D-15 — Letter to NC Sen. Rucho and NC
Rep. Lewis from Michael Crowell and Bob
Joyce, UNC School of Government (May
Fg ian bctettastincinatietnasdeidiikeccavssscuassunnieeute 1072
D-25.8 - Rebuttal Expert Report of Thomas B.
Hofeller, U.S. District Court for North
Carolina Middle District (January 17,
aac b aseideia gases css) cednenats daeheeacanedtede bane: 1092
D-25.10 — Report of Stephen Ansolabehere in
Response to Thomas B. Hofeller Rebuttal
I I IIIS So ciiccnences <a.casesenandeccnedsous 1121
D-26.1 - Second Expert Report of Thomas B.
Hofeller, U.S. District Court for North
Carolina Middle District (June 4, 2015)...... 1136
D-27 - Letter from U.S. Rep. Mel Watt to NC
Sen. Rucho and NC. Rep. Lewis re:
Statement Regarding Proposed VRA
SOO GPCR GD; BEE) oc cciscccccoccesscccvccscccnsce 1193
vil
TABLE OF CONTENTS—Continued
Page
VOLUME IV
D-31 - Transcript of Dickson v. Rucho Bench
Teen GP GB, Ts WOE ov ccceniccncndscvcsissccas, 1196
Opening Statement:
Na ee I RE ae oe ee Meee 1204
REYES SE GIT prairie RP 1206
Testimony of Sen. Daniel Blue:
EPEP@CE TERMRATIEION ............c.ccccccccccscccccocesce 1210
CO TRIIIRIRGRORD 5... cess ccoccccscosceccccccesscn 1227
CO TINT once civcccccccncscccvcccececocccs 1240
Testimony of Eric Mansfield:
EPUOOS TUITION inc ccccccececccsecesccscccsscsce 1240
Cross Examination ..............-..-.ccc.cececceseees 1252
Redirect Examination...............0..-0.0cecceceee 1255
Recross Examimation ................ccccccccccsccces 1257
Testimony of Albert Kirby:
BPE OGE BRMTITIOEIOND ......ciicccccccsaccccccsocccocccces 1258
ETE ALLA SD 1264
Testimony of Rep. Larry Dwight Hall:
Direct Examination ........................... pOaa re 1266
CCHRPID HIIINIIIED 55. 5.c ccc cnccccccccoccccvcceses. 1285
a 1288
Redirect Examination.....................cc0ec0000- 1293
Testimony of Walter Rogers:
Direct Examination .....................0ccccecec000 1294
Te uaconcusubecs 1302
Ce ni csssacensaannas 1304
Vill
TABLE OF CONTENTS—Continued
Testimony of Goldie Frinks Wells:
Direct Examination ...............................
Cross Examination ..................................
Testimony of Linda Garrou
Direct Examination .............0c600000-..........
Testimony of Congressman Melvin Watt:
Direct Examination .................................
Cross Examination ...................................
Cross Examination ................................
VOLUME V
D-31 - Transcript of Dickson v. Rucho Bench
Trial (June 5, 2013), Vol. IT.........................
Testimony of Thomas Brooks Hofeller:
Direct Examination ............................
Cross Examination ................................
Cross Examination ................0.................
Testimony of Ruth Samuelson:
Direct Examination .............0.0.0..........
Cross Examination ..............................
Testimony of Sen. Robert Rucho:
Direct Examination .............................
Cross Examination ..............................
Testimony of Allan J. Lichtman:
Direct Examination ...........................
Cross Examination ...................................
1X
TABLE OF CONTENTS—Continued
Page
VOLUME VI
D-58 - Affidavit of Thomas L. Brunell
(Dickson v. Rucho), Superior Court of Wake
County, North Carolina (December 10,
DOES... .ccisvenccness cxcedbsdevoaseecuetsa cla 1961
D-61 - Judgment and Memorandum of
Decision, (Dickson v. Rucho), Superior
Court of Wake County, North Carolina
(Beil ©, BGI) ss sicceissssscccessecassercousanaeaee 1969
D-62 — Appendix to the Judgment and
Memorandum of Decision (Dickson v.
Rucho), Superior Court of Wake County,
North Carolina (July 8, 2013)..........00....0.. 2054
D-72 - Deposition Erika Churchill Excerpts
(Dickson v. Rucho), Superior Court of Wake
County, North Carolina (May 20, 2012)...... 2162
D-90A - Affidavit of Erika Churchill (Dickson
v. Rucho), Superior Court of Wake County,
North Carolina (December 19, 2012)........... 2208
D-100 - NC House of Representatives Session
Transcript of the Proceedings 7.22.11
(GIINIID oo soe xicnies <xivessenesdnecunstesebelueanen tan 2248
Transcript - Harris v. McCrory Bench Trial,
U.S. District Court for North Carolina
Middle District (October 13, 2015), Vol. 1... 2278
Testimony of Sen. Daniel Blue:
Der Oet TIAMAT ove cisisécké>vesoxtetternceas 2310
Crs TEGO «ccc cccccevens - ccnveteuncaen 2330
x
TABLE OF CONTENTS—Continued
Page
Testimony of Congressman Melvin Watt:
Direct Examination ..................-.....ccccecess 2361
i o csucdcwsceeececcncces 2373
Redirect Examination......................s0...000: 2408
VOLUME VII
Testimony of G.K. Butterfield:
BPEPOCE TEMTITIMCIOR ......0..00.c0ccceccscccscovcesses. 2411
Croes Examination .................cccccc..cccccccees 2418
Redirect Examination...................... ealnete 2444
Recross Examination ......................csceces00- 2446
Testimony of David Peterson:
Darect Fememimation .................-c0.ccccccccesees 2448
NG se duvacccescccececssers 2469
Redirect Examination...............0.........00008. 2486
Transcript - Harris v. McCrory Bench Trial.
U.S. District Court for North Carolina
Middle District (October 14, 2015), Vol. IT.... 2490
Testimony of Stephen Ansolabehere:
NES MIEERIIEOOED, ........<ccccscccccccccsceccccessss 2493
Cross Examination ...........................00-.... 2553
Redirect Examination.........................0.005. 2627
Recross Examination .................200c0cc0eeee0e- 2631
Testimony of Dan Frey:
no ccencscescocsnnccersescoss 2639
I os saaenaonenscene 2664
Testimony of Thomas Brooks Hofeller:
EPEROOS TEMMMETIMEION ........0....cccecccsccccccceesss . were
xi
TABLE OF CONTENTS—Continued
Page
Transcript - Harris v. McCrory Bench Trial.
U.S. District Court for North Carolina
Middle District (October 15, 2015),
fe eR ARES Mets Ti en ie 2 2707
Testimony of Thomas Brooks Hofeller ........ 2713
Direct Examination cont. ...................00.00 2713
EE an 2755
Redirect Examination. ....................s..0.s000 2834
Rebuttal Witness Stephen Daniel
Ls ce auamegiseenel 2856
I IUD 6 icis sc cani'nvindensacsentvidscecs 2856
1590
[229] STATE OF NORTH CAROLINA COUNTY
OF WAKE IN THE GENERAL COURT OF
JUSTICE SUPERIOR COURT DIVISION
11-CVS-16896
MARGARET DICKSON, et al.,
Plaintiffs,
Vs.
ROBERT RUCHO, et al.,
Defendants.
NORTH CAROLINA STATE CONFERENCE
OF BRANCHES OF THE NAACP, et al.,
Plaintiffs,
Vs.
THE STATE OF NORTH CAROLINA, et al.,
Defendants.
11-CVS-16940
(Consolidated)
Volume II of II
Pages 229 — 435
TRANSCRIPT OF PROCEEDINGS
The above captioned cases coming on for hearing
Wednesday, June 5, 2013 Special Civil Session of
the Superior Court of Wake County, Raleigh, North
Carolina, before the Honorable Paul Ridgeway, the
1591
Honorable Alma Hinton and the Honorable Joseph
Crosswhite, Judges presiding, he following proceed-
ings were had:
APPEARANCES
For the Plaintiffs:
EDWIN M. SPEAS, JR., ESQ.
JOHN W. O’HALE, ESQ.
CAROLINE P. MACKIE, ESQ.
Poyner Spruill, LLP
Post Office Box 1801
Raleigh, NC 27602-1801
ANITA S. EARLS, ESQ.
CLARE BARNETT, ESQ.
ALLISON RIGGS, ESQ.
Southern Coalition for Social Justice
1415 West Highway 54, Suite 101
Durham, NC 27707
ADAM STEIN, ESQ.
Tin Fulton Walker & Owen
312 West Franklin Street
Chapel Hill, NC 27516
Appearances Continued >>>>
Reported by: Ranae McDermott, RMR, CRR
[230] Appearances (Continued)
For the Defendants:
ALEXANDER (Alec) McC. PETERS
Special Deputy Attorney General
SUSAN KELLY NICHOLS
Special Deputy Attorney General
Office of the Attorney General
Post Office Box 629
Raleigh, NC 27602
1592
For the Defendants Rucho, Lewis, Dollar, Dockham,
Berger and Tillis:
THOMAS A. FARR, ESQ.
PHILLIP J. STRACH, ESQ.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
4208 Six Forks Road
Suite 1100
Raleigh, NC 27602
INDEX
DEFENDANTS’ WITNESSES
Page
THOMAS BROOKS HOFELLER, PhD
Direct Examination by Mr. Farr ......................... 233
Cross Examination by Mr. Speas........................ 295
Cross Examination by Ms. Earls......................... 343
RUTH SAMUELSON
Direct Examination by Mr. Farr......................... 356
Cross Examination by Ms. Earls......................... 359
ROBERT RUCHO
Direct Examination by Mr. Farr ......................... 361
Cross Examination by Mr. Speas.....................-.. 364
PLAINTIFFS’ REBUTTAL WITNESS
ALLAN J. LICHTMAN, PhD
Direct Examination by Ms. Earls........................ 370
Cross Examination by Mr. Farr.......................05- 413
DEFENDANTS’ EXHIBITS
1593
ID/Accepted
De Gr Oe a Fe oc an cee tkcdbsensen deiransiacoant 234/369
2— Affidavit of Raleigh Myers and attached
I citi saissiiennushdekoucstehcteviledantaadiagaaiashs ited anion 369/141
3 — Map of Congressional District 12............... 283/369
4 — Map of District 54 and part of District 51. 287/369
5 — Map of Rucho Lewis Congress 8 ................ 291/369
6 — Map of the enacted 12th District ............... 263/369
7— Map of the 2011 Fair and Legal
Congressional plan ...................csecceecseeceees 292/369
8 — Maps of District 12 in 2001 and 2011........ 245/369
D — BEG CE TRBIIIGS 6. nc ccciscecsncccccccccenscccsscssessccess 265/369
BG — FI OE BINNS BB ccc ns cesscccescscreiccsncsessocetess 265/369
11 ~ Minority Statistics & 2008 Presidential
annem a GOR toe Redd PENG NREL ABN BEEF 89 5 ZA, 258/369
12 — Minority Census Data chart..................... 272/369
14 — Listing of split VTDs in the 4th District
and the 12th District in the enacted
(NRT Nigel RIG Vk Set Reet, Beir re Mea 67/369
15 — 2001 Congress Zero Deviation plan........ 199/
16 — 2011 Rucho Lewis Congress 3 plan......... 199/
17—Map_ showing the enacted Senate
ETS TSE PRR BAR Boe: Fe hoetaes eRe Eh Ee Be 271/369
18 —Southern Coalition for Social Justice
Senate plan or the AFRAM plan.............. 272/369
19 — Map of the House districts in the Martin
House Fair and Legal plan....................... 284/369
20 — Lewis Dollar Dockham 4 offer enacted of
House Representatives plan..................... 284/369
PLAINTIFFS’ REBUTTAL EXHIBITS
12 — CV of Allan Lichtman, PhD ..................... 373/374
20 — Table 1 - Electoral Analysis of Previous
State House Districts With Black Voting
1594
Age Population Greater Than or Equa! to
40% & Below 50% ..........0.......cccccccsecvseccoses 406/412
21 — Table 2 — Electoral Analysis of Previous
State House Districts With 50%+ Black
Voting Age Population........................06.... 406/412
22 —Table 3 — Electoral Analysis of Previous
State Senate Districts with 40%+ Black
Voting Age Population............00.....000...... 407/412
23 — Table 4 — Electoral Analysis of Previous
Congressional Districts with 40%+ Black
Voting Age Population..............0............... 408/412
24 —Table 5 — Comparison of State House
Districts 30%+ Black Voting Age
Population, Previous Districts and
BNO TICBI NOE 0 cecin.ctcccsccnssvccescessseseess 411/412
25 —Table 6 — Comparison of State Senate
Districts 30%+ Black Voting Age Popula-
tion, Previous Districts and Enacted
I aadahatrirciies skicanneiniens poecbihoes susunsinnantaianis 411/412
26 — Table 7 — Ecological Regression Results
for Previous Senate District 5, 2008 and
2010 General Elections..................00..0000... 411/412
27 — Table 8 — Ecological Regression Results
for Previous Senate District 24, 2008 and
2010 General Elections..................00......... 411/412
28 — Deposition Exhibit 286, Second Affidavit
of David W. Peterson, Ph.D., January 4,
PINE eucais bai cucaaieddabenclaninaess biideianuie ina tacukceds clus baaais 412/412
29 — Deposition Exhibit 287, Third Affidavit
of Plaintiffs’ Statistical Expert, David W.
Peterson, Ph.D. dated April 12, 2012 ...... 412/412
ee oust nips oeakceissatemctidid cbictbdas aids cody oS 382/412
34 -~ Package of maps of District 32................ 339/
35 — Handwritten document authored by Dr.
RR ccedcal ened Rata, c idiend a ceapiaiad 393/412
1595
|233] (The Special Session of the Superior Court of
Wake County continued on Wednesday, June 5, 2013
before the Honorable Paul Ridgeway, the Honorable
Alma Hinton and the Honorable Joseph Crosswhite at
9:02 a.m.
JUDGE RIDGEWAY: Good morning. Welcome
back, ladies and gentlemen. I believe we were at a
point yesterday asking whether the whether there was
evidence for the Defense. Is there anything further
from the Plaintiff?
MR. SPEAS: No, Your Honor.
JUDGE RIDGEWAY: All right. Very good. Let’s
turn then to the Defense.
MR. FARR: Thank you, Your Honor. The Defense
would like to call Dr. Thomas Hofeller.
WHEREUPON, THOMAS BROOKS HOFELLER,
PhD, was called as a witness, having been first duly
sworn, and testified as follows:
JUDGE RIDGEWAY: Okay, Mr. Farr.
MR. FARR: Thank you, sir.
DIRECT EXAMINATION
BY MR. FARR:
@. Could you please state your name.
A. Thomas Brooks Hofeller.
Q@. And where do you reside?
A. Ireside at 7119 Marine Drive, Alexandria, [234]
Virginia.
Q. Allright, sir.And could | ask you, there’s a
there’s a notebook up there, a little black notebook
that says “Defendants’ Identification of Witnesses and
1596
Exhibits.” Would you please turn to Tab 1, which
would be Defendants’ Trial Exhibit 1.
A. Yes.
Q. And could you tell the Court what that is?
A. That is my resume.
MR. FARR: And, Your Honors, just one question
about this to speed up the testimony, I don’t propose
to go through all his experience and background,
unless you want me to.
Q. But do you what’s your higher education
experience?
A. I have a bachelor’s degree from Claremont
McKenna College, an MA and a PhD from Claremont
Graduate University.
Q. So may I call you “Dr. Hofeller” during the
course of this examination?
A. Certainly.
Q. Dr. Hofeller, thank you. Since that is what I
call you normally anyway, that will be more
comfortable for me.
Dr. Hofeller, could you tell the Court what [235]
your experience has been in in general in the area of
redistricting?
A. Well, 1 actually first got my redistricting
experience in California in 1965 in preparing a
database for the State of California which was
reacting to the One Person, One Vote rulings of the
Supreme Court and had to redistrict at the State
Legislative Chambers.
Q. What year was that?
1597
A. 1966.
Q@. And could you in general just tell the Court
about your other experiences in redistricting since
1965 through the present?
A. Well, Ive, of course, been active in the
redistricting process in the last five decennial census
redistricting processes doing work at the Rose
Institute of State and Local Government at Claremont
McKenna College in the ‘70s. I was cofounder of a
company which assembled a database and did
redistricting plans for the California State Legislature
in 1970 and ‘71.
I worked in several other states during that period
of time. I worked in the State of Mississippi in Connor
v. Finch in 1970 ‘78 for the Mississippi State
Legislature, was trying for the third time to get the
redistricting right, which they did at successfully at
that period of time.|I did work in many other states in
[236] the ‘80s, including North Carolina, testifying in
the Gingles case. I have testified in Illinois cases, in
the City of Chicago in city council cases. I’ve testified
in the Shaw case and have been active in North
Carolina since that time, since Gingles.
Q@. All right. So you have background in
redistricting in North Carolina and the demographics
of the State of North Carolina?
A. Ido.
@. And do you have any experience drawing
redistricting maps?
A. Yes.
Q@. Could you tell the Court a little bit about that?
1598
A. IV’m-—TIm sorry. Do you mean in North Carolina
or—
Q. In general.
A. in general?
I’ve — I’ve drawn many plans in North Carolina over
the decades, and I’ve also drawn plans across the
nation in many, many states.
Q. Okay. Now, Dr. Hofeller, were you ever engaged
by the General Assembly of North Carolina during the
2011 redistricting cycle?
A. Iwas.
[237] Q. And will you tell me the purpose of your
engagement?
A. Well, my first engagement with the General
Assembly, actually through your office, was in data-
base work preparing — helped — helping the legislative
staff to prepare a database. They were a little bit
behind in their database building work, and I had
some technical discussions with their staff and helped
move that process along so that the General Assembly
could meet its redistricting schedule.
I was then retained to essentially be the — the
gatekeeper and lead technical person, map drawer, in
the creation of the three Chambers — the two
Chambers plans and the Congressional plan.
@. Okay. And when you say “built” the database,
would you tell the judges briefly what you meant by
what — what went into the database?
A. Well, the — the census data is — is easy because
the census data comes from the U.S. Census Bureau.
It’s in a form that is built for redistricting specifically.
The problem is, is that election history and
1599
registration data is also required for redistricting. And
these databases do not come from the federal
government. They have to be constructed on a state by
state basis. Sometimes they’re constructed [238]
privately. In this case, the main responsibility is in the
hands of the legislative services organizations in
North Carolina.
However, the problem is, is that these election
databases are for multiple years. And so those years
have those — years’ data, both the registration and the
election data, have to be reconciled and put into one
single database that covers all of the years. There also
has to be primary data collected which is required for
racial bloc voting analysis.
Q@. All right, sir.And so is — is it fair to say that you
were involved in building the database and that
you were responsible for making sure the — the
redistricting maps were drawn in a manner that would
be approved by the General Assembly?
MR. SPEAS: Objection to the form. It’s a leading
question.
JUDGE RIDGEWAY: Overruled. Ill allow it as a
threshold question, but...
MR. FARR: Thank you.
A. Well, it was important to get the databases built
and built right and built completely. And I advised
really on that rather than actually technically building
them myself.My main responsibility was to ensure
that the plans were built legally and to inform [239]
the leadership of what was — what was possible to
draw and, as I said, to become the gatekeeper; to make
sure that the plans pressed forward, were kept track
of; that there was a ~— an official plan that was the plan
1600
into which any ideas or changes were made and to do
it in a time frame which would allow the General
Assembly to enact the plans; to get them precleared by
the justice department and have them in the hands of
the individual county election officials in time to
determine where each voter lived district wise and to
be prepared to begin the primary election cycle.
Q. And who was the decision maker, Dr. Hofeller,
about what plans would be released to the public or
inactive? Is that you or was it the General Assembly?
A. Those decisions were policy decisions, and all of
those policy decisions were the purview of the General
Assembly.
Q All right, sir. And do you understand what if
I if I say a “racial polarization study,” do you
understand what that means?
A. Ido.
@. Were you ever asked to perform a racial
polarization study?
A. Iwas not.
Q. Do you know why you were not asked to perform
a [240] racial polarization study?
A. Absolutely. Because, first of all, a_ policy
decision was made that others would do those
polarization studies, and there simply wasn’t time
enough for me to do those studies and to do what was
necessary to bring the plans to completion. That was a
very big job and that was what I was hired to do.
Q. All right, sir.And you’ve told the Court that you
had redistrict — pas* odistricting experience in North
Carolina.
A. I did.
1601
Q@. And when — when you began drawing maps, did
you have any assumptions about whether racial
polarization existed in the State of North Carolina?
A. I did.
@. Could you explain what those assumptions were
and why you had those assumptions?
A. Well, first of all, I had several decades of
previous experience in North Carolina.And in my
experience in North Carolina, racial polarization was
also deemed to have been present. And I had never
seen any studies to the contrary during that time
period; and, indeed, I would have operated under the
assumption that it was present this time, too. That
was later confirmed by studies which were presented
by other experts which [241] confirmed that and also
by testimony that was given before hearings.
@. Did you have any familiarity with redistricting
plans that had been enacted in North Carolina from
the 1980s through the 2000s?
A. Idid.
@. Did — did those plans inform you at all in terms
of your assumptions about the presence of racial
polarization in North Carolina?
A. They did. And | was also mindful of the minority
districts that were created in previous plans,
particularly after Gingles, where they were located
and how they were comprised.
@. And did you ever have a chance to review
alternative plans presented by Democrats or — or the
Southern Coalition for Social Justice or AFRAM
during the 2011 redistricting process?
1602
A. Well, there was really only one set of plans that
was presented during the process, and that was the
AFRAM plans. The other plans came in at the very
last minute and really didn’t inform the district
building process. The districts were all but finalized
before those plans came out from the other side.
Q. Was there anything about those plans that
further informed your opinion about whether racial
[242] polarization existed in North Carolina?
A. Well, I noted that many of the districts were
created with 50 percent majority districts, and
districts were located in the same places that the
General Assembly’s enacted plan placed the districts.
Q. All right. Thank you.
I want to move to a different topic now, Dr. Hofeller.
I want to ask you about your recollections about how
the 2011 Congressional District 12 was created, and I
want to refer you and the Court to a map that’s in front
of you that’s been marked Defendants’ Trial Exhibit
15. Do you — do you have that map?
A. Ido.
Q. Do you know what that map is?
A. I believe that’s a map of the previous plan, the
one that was enacted in the last decade.
Q. All right, sir.And do you have the Defendants’
Trial Exhibit 16 in front of you?
A. Ido.
Q. Can you tell the Court what that is?
A. That was Rucho Lewis Congress 3, which was
the enacted plan this decade.
1603
Q@. All right. And are you familiar with the decision
by the U.S. Supreme Court in a case called Cromartie
versus Hunt or Cromartie versus Hunt?
[243] MR. FARR: Alec, sorry.
A. I think Ill use “Cromartie.”
There had been a lot of — of court activity
surrounding the 12th District, and this was a district
which was redrawn to be a politically drawn district
with the use of political data. And that was the
justification that’s often called “the Cromartie
Defense” for that district.
Q@. And was the — was the district at issue in
Cromartie taken to the U.S. Supreme Court?
A. Several times, I believe.
Q. Was — was the — did the — ultimately did the —
did the Supreme Court accept the political
justification or reject the political justification for
Cromartie?
A. As it — there was — the General Assembly was
successful in the Cromartie case with the political
justification, which was approved by the U.S. Supreme
Court.
Q@. Now, in drawing Congressional District 12, who
did you receive your instructions from?
A. I received the instructions from the General
Assembly.
Q. And what were your instructions?
A. Well, everybody was well aware that the — the
[244] 12th was not a—a VRA district. It was a political
district and it was drawn for political reasons, and
that that would be the only legal way to draw that
1604
district in this particular redistricting cycle. There
was no doubt expressed by anybody that that was to
be the way it was to be handled.
_ All right, sir.And could you turn to Defendants
Trial Exhibit 8, which is in the black notebook?
>
A. Okay.
@. Could you please tell the Court what that
exhibit is?
A. If I have the right exhibit, it’s — there’s no
exhibit sticker on it.
Q. Its -—it’s Tab 8 —
A. Okay. Well —
Q. — which means it’s Defendants’ Exhibit 8.
A. I think I actually have the wrong map. Sorry.
MR. FARR: May I approach the witness, Your
Honor?
JUDGE RIDGEWAY: If you'll approach, Mr. Farr.
JUDGE HINTON: Yes.
A. Well, I think I have
Q. Let me just check.
[245] A. Sorry. My eyes aren’t all that good,
actually.
Q. Did you prepare this exhibit, Dr. Hofeller?
A. I did.
Q. Could you tell the Court what it is?
A. It’s a —a set of two maps showing the district
passed in 2001 and the district as it was passed in
2011.
1605
Q. Can you tell from this exhibit the counties the —
the two districts are located in?
A. Yes.
Q. Could you tell the Court which counties those
are?
A. The district — it starts out in the north end in
Forsyth and Guilford Counties and transits through
Davidson, Rowan, and Cabarrus down to Mecklenburg.
The district is — the primary population centers in the
district are Forsyth, Guilford and Mecklenburg
Counties.
Q. [m sorry. Is that — is your — is that your
testimony for both districts?
A. Yes.
Q. Okay. So did you — are — are both districts in the
same six counties?
A. They are.
Q. And you have a — for the 2001 district, there
appears to be a line traversing the district and there’s
[246] an entry “95 miles.” What does that mean?
A. That is what I believe to be the longest distance
between two points of — of the district. In — in the 2001
district, it was 95 miles. In the 2011 district, it was 100
miles; five miles’ difference.
Q. Okay. And, Dr. Hofeller, stepping back for a
second, you say you received your instructions from
the General Assembly. Were there any particular
members of the General Assembly that you dealt with
more than others?
A. Yes.
Q. And who were they?
1606
A. That was the chairmen of the two redistricting
committees.
Q. And who were they?
A. Bob Rucho and David Lewis.
Q. And “Bob Rucho” is Senator Rucho?
A. I’m sorry. Yes.
Q. And —
A. And Representative Lewis.
Q. All right. Now, were you given any particular
political goals for redrawing the 12th District in 2011?
A. Well, the political goals were — they were
political goals, but the whole plan was a political plan
and there were political goals for the whole plan. So it
[247] is really impossible to understand the context of
the — the 12th District without understanding the rest
of the plan. But the goals for the 12th District were to
draw it in such a manner that it would increase
Republican opportunities in the surrounding districts.
So in the drafting of that plan, the idea was to take
VTDs or precincts, as you might characterize them,
that had the highest percentage of Obama vote and to
make the district as Democratic as possible, to take
Democratic strength out of the surrounding districts
and to take it out of the surrounding districts in such
a manner that it would suit the other political goals of
the — the drafters in the surrounding districts.
Q. So could you explain what — what some of those
surrounding districts were and what the goals were for
those districts?
A. They were the — the 6th, the 8th, the 9th, and
the 5th.
1607
Q. And what was the intent for those surrounding
districts?
A. Well, again, it was to maximize the Republican
political opportunity in all those districts. Do you want
me to be more specific?
Q. Sure.
A. Okay. Probably the weakest GOP district in —
[248] in the plan was the 9th District in Mecklenburg
County. The new plan was devised with about 100,000
more population in the 12th in Mecklenburg County to
take heavily Democratic precincts out of the 9th. The
6th District was changing its location markedly from
one plan to another, and one of the goals was to, again,
take Democrats out of Guilford County in the 6th and
put them in the 12th.
Whereas the strongest district going into it was the
5th, so less Democratic precincts needed to be included
in the 12th for the benefit of the 6th and the 9th.
Another thing that was required, as I think
everybody knows — well, not everybody — is that
Congressional maps have to be drawn with 0
deviation. There is no give at all in the deviations of
the district. It’s — many people have said redistricting
is like a — a balloon where you push in at one point, it
goes out at another point. I would characterize it more
as being like a water balloon because there’s no
compression of water; so where you push on one side,
you have to push on another.
And there were protracted negotiations in the — with
the Republican Caucus in particular about the — the
boundaries between the surrounding Republican [249]
districts; and, also, the population figures were
different in 2011 than they were in 2001. And so in
1608
order to balance the populations out and to achieve the
political goals and to meet One Person, One Vote given
the context of those lines, the corridor through which
the district — the 12th District transits from Forsyth,
Guilford to Mecklenburg County had to be moved
farther towards the southeast to accommodate those
population goals.
Q. All right. Now, what was the software program
that you used to draw these districts?
A. The software program was Maptitude for
Redistricting engineered by Caliper Corporation, a
firm located in Boston — well, not Boston, but in the
Boston area; Newton, I think.
Q. All right. And do you know what a “thematic”
is?
A. Athematic display in the terms of a Geographic
Information System, which is essentially what the
redistricting system was based upon, is a — a system
which displays maps and connects those maps with
data which is related to the units of geography that are
in the GIS system.
So a thematic is one way of displaying that
information on the screen usually by color according to
[250] some piece of — series of data on one item in the
database that’s connected with the GIS system. In this
case, in redistricting, they’re usually percentages of
one kind or another.
Q. Okay. And do you recall when you were drawing
this map the thematic that you had on your screen
when you were drawing the district?
A. Im sorry. Did I just —
Q. Did you have a particular thematic on your
screen when you were drawing this district?
1609
The 12th?
Yes.
Yes. It was a — a political thematic.
Could you tell the Court what that was?
It was the percentage of vote that President
Obama received of the two party vote. So it was
computed by dividing the Obama vote by the sum of
the Obama and the McCain vote.
Q. And —and so why were you doing that?
A. Well, because that was what we were using as
the political thematic for drawing these districts. It
was used in the other districts in the map, too, as the
primary thematic.
Q. And what
A. It was, after all, a politically drawn map.
[251] Q. And what — what unit of geography were
you applying to that thematic?
A. For the most part — and particularly in the 12th
District outside of the 1st District, actually — it was
VTDs.
Q. And what are “VTDs”?
A. A VTD — sometimes called a Vote Tabulation
District; but, actually, a voting district officially by the
Census Bureau — is created for the Census — I’m sorry
— by the Census Bureau for the states specifically for
redistricting use. States send back either maps or
electronic files which indicate where their election
precinct boundaries are, and those boundaries are
incorporated into the Census Bureau’s geographic
hierarchal structure actually called “TIGER,” a
POP >
1610
TIGER file. It’s an acronym. And the Census Bureau
releases a — a set of summary data for each VTD.
Q. Okay.So you were looking at VTDs with
information on your thematic from which you could
determine the Obama or McCain vote in that
particular VTD.
A. Actually, it was just the Obama vote; but by the
inverse, you knew what the other one was.
Q. Okay. Now, did you — did you have to divide any
VTDs in drawing this district?
(252) A. Idid.
MR. FARR: May I approach the witness, Your
Honors?
JUDGE RIDGEWAY: Yes, sir.
Q. Dr. Hofeller, ’ve just given you an exhibit that
we've marked as Defendants’ 14. Did you prepare that
exhibit?
A. Idid.
Q. Could you tell the Court what that is?
A. That is a listing of the split VTDs in the 4th
District and in the 12th District in the enacted plan
showing the — the populations in the plan. I could
explain the columns going across.
The first is the county in which the VTD is located.
Second is the VTD itself, and you'll notice that there
are two listings for each VTD that’s on one side or the
other side of the split. The next column is the district
number. I’ve shaded the district numbers green for
splits that involve the 4th CD and orange for the splits
that involve the 12th Congressional District.
1611
The next column is the population in the split itself;
so there are two numbers, one for one side and one for
the other. The next column is the population of the
whole VTD if it were unsplit, and the next column is
the percentage of the population in the whole VTD
which [253] was !ocated in each split side.
Q. And the last column — Dr. Hofeller, you have
that last column shaded in different colors. Could you
explain?
A. I do. The — the green — I’m sorry — the blue
indicates splits that were done for population
adjustment. The yellow indicates VTDs for political
split for political reasons. The red indicates VTD splits
for district contiguity or compactness.
Q. All right. So let’s — let’s start at the bottom and
talk about the divided VTDs in — in the 12th
Congressional District and let's. start with
Mecklenburg.
A. From the very bottom.
Q. Yes, sir. We’re going to work from the bottom
up.
A. There was one precinct split in Mecklenburg
and that was a split which added 17 people for the 12th
District which was a population adjustment split.
@. Now, tell — why do you — explain to the Court
why you have to make population adjustments, please.
A. Well, again, there’s— there’s no give on the — on
the population deviations in the Congressional
Districts. They all have to be at 0 or plus or minus 1
depending on how the State’s population is divided
when it’s divided by the number of districts. So [254]
adjustments have to be made at the boundaries of all
the districts in order to equalize those populations.
1612
Is it fair to say you’re equalizing the population
between the two adjoining districts with these splits?
A. Yes.
_ Ali right. Now, let’s go to the next divided
precinct, which appears to be in Guilford; and I think
that’s Jamestown 3. Could you explain to the Court
why you made that divided VTD?
A. Again, that was the same reason as the split in
— in Mecklenburg County; that was a population
adjustment.
Q. And that was between which two Congressional
districts?
A. Between District 6 and District 12.
Q. Okay. And — and then can we move to the next
divided VTD in Guilford, which appears to be Guilford
64.
A. Guilford 64 was a split of the precinct that was
done to bring the incumbent in the 6th into the 6th as
the — the plan was transiting through Guilford,
through that precinct. So it was, in essence, a political
split, but it was an incumbent seat.
Q. All right. And who was — who was that
incumbent?
A. I-I believe — I’m sorry. I’m just having one of
those...
MR. FARR: Do you mind if I ask him, Your Honor?
Q. Is it Howard Coble?
A. Yes. I’m sorry.
Q. Okay. And if you had not made that division of
that VTD, which district would have
1613
A. He would have been in the 12th.
Q. All right. Let’s go to the next division in
Guilford, which appears to be Guilford 60.
A. Again, Guilford 60 was split for population
adjustment reasons.
And what were the two districts impacted?
6 and 12 again.
And then the next division is in Guilford 46?
Yes.
Would you explain that.
Pr OPO Pe
Another population adjustment. What happens
when a plan is being finalized, often in re redistricting,
it’s — in Congressional maps, it’s referred to as zeroing
out the districts. So until the districts are really pretty
much settled, it’ — it’s not fruitful to be zeroing out the
districts. So you would see a redistricting person going
around the [256] perimeter of the district and trying to
find the appropriate bloc — the blocs with the
appropriate population or populations to hit that 0
mark. And there indeed might be other ways to do it,
but that’s the way it was done in this district.
Q. Allright. Dr. Hofeller, then, there appears to be
one final divided VTD in the — the 12th District in
Davidson. Could you explain that division, please?
A. Well, precinct 10 comes extremely close to
bisecting the district. So I actually took off a -— a
portion of the western extremity of that precinct and
put it into District 12, 130 people, so that that corridor
would be a little wider.
Q. All right. Now, in drawing the 12th District, is
there a thematic on the Maptitude software for race?
1614
No.
There is not?
> OP
I’m sorry. Was there?
Q. Is there — is there a thematic on the Maptitude
consistent for race?
A. Well, you can create any thematic you want.
Q. Okay.
A. So it’s possible to draw one for — for any — any
factor that’s in the database —
Q. All right.
|257] A. — including race.
Q. When you were drawing Congressional District
12, were you looking at any racial data?
A. There was no thematic racial data displayed.
Q. All right. And were you here yesterday for
Congressman Watt’s testimony?
A. Iwas.
Q. Do you recall his testimony about what Senator
Rucho stated to Congressman Watt about what
Senator Rucho had been told by leadership to ramp the
black percentage of District 12 over 50 percent?
A. I did.
Q. Did Senator Rucho ever instruct you to draw
this district so that it would be over 50 percent in total
black voting age population?
A. Absolutely not.
Q. Did he instruct you that it be over 50 percent in
any sort of black category?
1615
A. Absolutely not.
Q. All right. Could you turn to our black notebook
again and turn to Tab 12 — Are you at Tab 12
A. I’m at Tab 12.
@. —which is Defendants’ Trial Exhibit 12? Did you
prepare that chart?
A. I did.
[258] Q@. Would you tell the Court what that chart
is?
A. That’s a chart of the Minority Census Data in
several of the plans drawn in Forsyth County.
Q. VDmsorry, Dr. Hofeller. ’'ve got you on the wrong
exhibit. We'll get to that later. Turn to Exhibit Tab 11.
MR. FARR: My apologies, Your Honors.
A. Tab 11 is minority and presidential election
statistics for the enacted 2011 12th District and a
demonstration plan I have drawn, which I call the
“High Obama Vote Plan” showing the — the differences
between the two plans politically and demograph-
ically.
Q. Okay. So what is the — just the — the — the main
difference between the way you — you drew the 2011
enacted plan and the High Obama Vote Plan?
A. Well, as I stated before today, the goals of the
enacted plan were political, but they were political in
the sense that it was important which — and precincts
were taken from each of the major counties and which
districts they were either taken or given to the
surrounding Republican districts.
In the High Obama Vote Plan with the exception of
the — the corridor through the three counties, | put up
1616
thematic — the political thematic again with a break
on the Obama percentage which took the very highest
Obama [259] precinct votes from all of the three major
counties, notwithstanding what would be the political
effect on the surrounding Republican districts.
Q. Okay. So could you tell — explain to the the
Court the chart that’s at the top of that page, could you
explain the columns that are in that chart?
A. Yes. First is the plan name. Second is the total
population of both — both districts, which of course had
to be the same because the High Obama — High Obama
Vote Plan is a complete plan of the —for the whole
state. The deviation, again, which I probably didn’t
need to put it in because it’s 00. The adult non
Hispanic/white percentage, the adult total black
percentage, the adult non Hispanic total black
percentage, the adult Hispanic percentage, and the
difference between the total black percentage and the
total non Hispanic/white percentage.
Q. All right. Dr. Hofeller, could you explain give a
little more detail to the Court about these categories
that you just described? Are — are these census
categories?
A. All of them — well, except — with the exception
of the last column, those are all data which are found
in the TIGER file — not the TIGER file — the Census
Bureau’s redistricting data file.
[260] Q. All right. So starting with the percentage
18 plus non Hispanic/white, can you put that in — in
English to what that means instead of the census
acronym?
A. Well, I guess the easiest way to say it is that
Hispanic is an ethnic identification and everybody
1617
identifies his or herself ethnically. And a majority
well, in — in — in most redistricting instances, one is
looking at Hispanics and blacks.So some _ African
Americans identify themselves as being ethnically
Hispanic. A good example of that would be Puerto
Ricans who speak Spanish as their — their native
tongue if they’ve come — if they live and have come
from Puerto Rico.
So the — it’s important to differentiate that from
total white population. It gives a truer indication of
what we would normally say the white voting strength
is in the district.
Q. And — and when it says “18 plus,” is that the
same as saying “voting age”?
A. Itis.
Q. All right. And what about the next column is “18
plus total black,” what does that mean?
A. Again, all of the people who identified
themselves as entire — wholly black or black and any
other race who were of voting age.
[261]Q. All right. And then, again, in — in
English, what’s “18 percent plus non Hispanic total
black”?
A. Again, that — that is the group of people who
identified themselves as either all or partially African
American, but did not identify themselves as being of
Hispanic ethnicity.
Q. And “18 percent plus Hispanic,” is that the
same as —
A. Again, those are all the — all the population that
identified themselves as being ethnically Hispanic —
Q. And the voting —
1618
A. -—or linguistically. You could also use that term
interchangeably.
Q. And it means “voting age population Hispanic,”
right?
A. Yes.
Q. All right. And then, again, explain what that
last column is.
A. Again, it’s — it’s the — the ~— the difference
between the non Hispanic whites and the total black
population
Q. Okay.
A. that are voting age.
Q. Now — now, based upon that chart, is there any
[262] meaningful difference between the enacted plan
and the High Obama plan as to those statistics?
A. Not in my judgment.
Q. All right. Now, let’s go to the second chart on
that page. What — what does that chart show?
A. That looks at the — the votes and percentages
for Obama and McCain in both plans. And then it, of
course, shows the total two party presidential vote in
the two districts. Again, it’s important to note that the
— there are minimal differences.
Q. All right. Now, I want to go back to something I
overlooked. The — we talked about what you did when
you drew the enacted 12th District and the — the VTDs
you divided. When you divided the VTDs, did that
change — did those divisions in the 12th District
change in any significant way the political perfor-
mance of that district for President Obama?
A. No.
1619
Q. Did it change in any significant way the racial
composition of that district?
A. No.
Q. All right. I want to do one more exhibit on 12.
Could you turn to Tab 6?
A. Okay.
Q. Can you tell the Court what this is?
[263] A. That's a detailed map of the enacted 12th
District showing major highways and VTDs and
shading the surrounding districts.
Q. Okay. And just so the Court knows what a VTD
is, could you take, say, Mecklenburg County and —
well, first let me say, are the VTDs identified by a
number?
A. Well, they're identified by what we would call a
alphanumeric depending on how the county names
their precincts. So up in Guilford County, you could
have a alpha designation followed by a number. In
other counties, they’re just numeric. So it ~
Q. Okay.
A. — depends on the naming system within each
individual county.
Q. All right. Let’s go into Mecklenburg County.
Could you just point out for the Court a couple of
numbers or a couple of VTDs so they can see how the
VTDs are designated on this map?
A. Again, my — these are very small numbers.
Q. Are you able to read it?
A. I might have a little trouble with them. There’s
a VTD at — at the far — well, not — kind of the nearest
1620
VTD to Union County in District 12, which I believe is
099. It’s like a test they put up on the screen when
you're getting your new glasses, which I'm [264]
yverdue for. And there’s a number inside that VTD,
which is the precinct number.
MR. FARR: Okay. And I think, Your Honors, Ill just
state for the record, I think he’s referring to 079.
A. To what?
MR. PETERS: No. I think he’s correct.
MR. FARR: It is 099? — Okay. I got it. My eyes are
just as bad evidently. All right.
A. I had the numbers in larger type font on the
screen when I was looking at them.
Q. All right. Now, let’s turn to Congressional
District 4. Can you tell the Court the instructions you
received regarding the construction of Congressional
District 4?
A. 4was essentially constructed and finalized after
the construction of Districts 12 and 1, and the purpose
of the district was to gather in as many Obama high
Obama percentage precincts into one district in the
central part of the state, again, to create more
opportunities for Republican candidates in the
surrounding districts.
Q. Okay. Could you please turn to Defendants’
Exhibit 9, which is Tab 9 in the notebook? And did you
prepare this exhibit, Dr. Hofeller?
[265] A. I did.
Q. And could you tell the Court what this exhibit
reflects?
1621
A. The red area is the — is District 4 placed on a
county grid, and it also has a — a line with two arrows
which indicates the farthest distance between two
points in the district.
Q. And -— and what would that be?
A. 88 miles.
Q. All right. Now, could you turn to Tab 10,
Defendants’ Exhibit 10? — And did you create this
exhibit?
A. I did.
Q. Could you tell the Court what this exhibit
reflects?
A. Again, this is the red — the red shading indicates
the 13th Congressional District was enacted in 2001
by the General Assembly, and it stretched a distance
of 111 miles from the northwest tip of Rockingham
County to the far eastern tip of Wake County.
@. And — and what was that length?
A. 111 miles.
Q. Now, Dr. Hofeller, in your mind, is there any
correlation between the 2011 4th Congressional
District and the 2001 13th Congressional District?
A. In my mind, it was a — a — a distance of [266]
some — a district of some miles, although not the
largest in the — the state, connecting three population
centers through less populated territory. So it
essentially reached from Raleigh over to — to
Greensboro probably taking route longer than the
total distance from one point in the district to another.
It also, incidentally, crossed through Guilford
County actually at a — a — a point — a point contiguity
1622
where I believe you would have to shrink down to
infinity — infinity small, the smallest —you couldn’t go
from one part of the district to the other without
disappearing like in a black hole. Point contiguity is —
has, I believe, been ruled to be unacceptable in North
Carolina since then.
Q. Is there any sort of geometrical connection
between the 2001 13th and the 2011 4th District?
A. Well, 1 would just characterize it in many ways
as a counterclockwise rotation. Instead of going east
west, the district now goes — District 4 goes north
south, again, connecting population centers.
Q. Okay. And mindful of your explanation of how
you drew the 12th District, would you again explain to
the Court how you went about drawing the 4th
Congressional District?
A. Again, it was a — a political draw. It was [267]
taking — let me go back to that map — taking highly
Democratic precincts as defined by the Obama McCain
vote from Wake County and Orange County and part
of Durham County, the part that wasn’t in the Ist, and
Alamance and connecting them with a _ large
concentration of Democratic voters in Cumberland
County.
Q. And, again, you are basing this on what
geographic unit?
A. The VTD.
Q. And what information did you gather about
each VTD?
_ A. Well, again, the — the thematic that I was using
in drawing this district was the percentage of the vote
for President Obama.
1623
Q. All right. In drawing this District 4, did you
have to divide VTDs?
A. I did.
Q. Could you turn back to Exhibit 14, please? Let’s
start at the top and go towards the bottom for this one.
So the first divided VTD you have listed for the 4th
District is in Alamance County; is that right?
A. Right. It’s the 13th — V —- VTD 13 in Alamance
County.
Q@. Okay. And
A. And it was — it was drawn as it was for a [268]
population adjustment between the — the 4th District
and the 6th District.
Q. And I want to make sure the Court understands
this. The “Counties” states the county. The “Voting
District” is 13. So that means that’s the VTD 13, is that
right, in Alamance County?
A. Yes.
Q. And then in district — that’s Congressional
district, and it’s your — you’re — you're dividing that
precinct between the 4th and the 6th Congressional
District?
A. Yes. It’s the same as we did for 12.
Q. Okay.
A. And then the population of the split on each side
and the whole population of the VTD and, again, the
percentages of each split.
Q. So just to make sure the Court understands, for
Alamance 13, 5,194 people were put in the 4th District
and 235 people were put in the 6th District; is that
right?
1624
A. That’s correct.
Q@. Okay. And the reason for doing this, again,
was...
A. The — the reason was to balance out the
population between 4 and 6.
[269] Q. Okay. Now, let’s go to Cumberland
County. Could you go through the — the divided VTDs
in Cumberland County and explain why they were
divided?
A. Well, there were — there were — let’s see, one,
two, three — four divided precincts in Cumberland
County. Again, you see that there are small
populations split off from the major portion of the VTD
in each case, and those were done to balance the
population between the 2nd and the 4th in
Cumberland County.
Q. Okay. And —- and could you, again, just explain
to the Court briefly we don’t — I don’t think we need to
go through every VTD, but could you explain the
divisions of the VTD in Harnett County?
A. Well, the — the — the Harnett County VTD split
is a0 VTD split, and it was done for the reason of — of
making the district contiguous.
@. All right. And then could you —
A. Legally contiguous.
@. -— could you please explain the divided VTDs in
Wake County?
A. In Wake County, the —- the VTD 01 33 and 01 36
were split for political reasons. 01 39 was a population
adjustment. 01 02 was, again, for a political reason. 01
16 was for contiguity — or I’m sorry — for compactness.
1625
O01 18, 01 21 and 16 02 were, again, done [270] for
population adjustment.
Q. Did the divided VTDs in the 4th Congressional
District have any significant impact on the political
performance of that district?
A. None whatsoever.
Q. Did the divided
A. Ifyouif you saw it, it would be in the
hundredths of percentages, I — I would imagine.
Q@. Did the divided VTDs have any impact on the
racial percentages in Congressional District 4?
A. Not any significant impact, no.
Q. Okay.
MR. FARR: All right. Your Honors, I would like to
now change to a different topic, and we have some
testimony on the Senate Districts in Forsyth County.
(Pause.)
MR. FARR: Whoa, whoa, whoa. What did I do wrong
here? ’m handing out the wrong map -— sorry. I did
give you the right one. Yeu got the right one.
You Honor, ’'m missing the Southern Coalition map.
I’m sorry. I don’t know what happened to it.
JUDGE RIDGEWAY: I've got — I have a book of
maps here, so I’ve got it here.
[271] MR. FARR: Okay. All right.
MR. SPEAS: Mr. Farr, do we get one?
MR. FARR: I’m sorry.
MR. SPEAS: Or two?
1626
MR. FARR: MI can’t find — find the Southern
Coalition map. Are there any extras? — Sorry. I’m a bad
paralegal. Here you go, Judge Hinton. I’m sorry.
JUDGE HINTON: Okay.
JUDGE RIDGEWAY: That’s extra.
JUDGE HINTON: Um hum.
BY MR. FARR:
Q. Dr. Hofeller, I now want to talk to you about
Senate District 32 in Forsyth County. Could you
identify the exhibit I've handed you marked as
Defendants’ Exhibit 17?
A. Defendants’ Exhibit 17 is a map showing the
enacted Senate districts also indicating the county
groupings in the solid blue line; so the shading is for
the districts, and the — the solid blue line is for the
county groupings.
Q. And so, for example, could you tell the Court for
the Rucho Senate 2, what county group is Forsyth
County located in?
A. Forsyth County is located in a two county [272]
group. And, also, the two county group contains two
districts.
Q. All right. Now
A. Districts 31 and 32.
Q. What’s — tell the Court what Exhibit 18 is.
A. Exhibit 18 is the Southern Coalition for Social
Justice Senate plan or the AFRAM plan, and it — it has
a three county group for — in which the Forsyth County
districts are contained, which also has drawn within it
three Senate Districts. The — the — again, the heavy
1627
blue line indicates the county groups throughout the
the plan.
Q. Okay. And in which — in both of these maps, in
which county or counties is Senate District 32 drawn?
A. Senate District 32 in both maps is drawn
entirely within Forsyth County, primarily Winston
Salem.
Q@. Okay. Now, I would like for you to turn to Tab
12 of our notebook, which is exhibit — Defendants’
Exhibit 12.
All right. Now, Dr. Hofeller, what do you —do you
know the — the population differences between the two
county group in which District 32 is located in the
Rucho Senate 2 versus the three county group that’s
found in the Southern Coalition plan?
A. I don’t precisely remember or know the actual
[273] populations of the group as a whole. I knew that
in the Southern Coalition district, the population of —
of the group allowed for the drafting of the three
districts that they drew within that group at lower
populations than was required by the two county
group found in Rucho Lewis.
Q. So-so let’s explore that.
A. Rucho, I think. I’m sorry.
Q. When you draw a Senate District, is there
something called an “ideal number”?
A. Well, there — there are two numbers that you
have to keep in mind. The first number is common to
each specific set of districts — one for the — well, one for
Congress, one for the State Senate, and one for the
House of Representatives which is the ideal district
population for the state, which is mathematically
1628
found by dividing the total population of the state by
the number of districts into which it’s being
subdivided.
. So — so to get an ideal number for a Senate
District, you divide the population by 50?
A. That’s right.
Q. Okay.
A. That’s the ideal district size for the state.
Within each grouping — the groupings being
determined by the provisions of Stephenson — there is
— would be an average district population for districts
drawn within the group which would be computed,
again, by dividing the population within the county
grouping by the number of districts you were going to
draw in it. And those two numbers would be different.
And depending on where that that average number
for the group ended up in relationship to the ideal
district population for the entire state, you could find
yourself facing different challenges in drawing the
districts.
Q. Okay. So let me see if I can put this in context.
Is is it fair to say that if you took a population in the
Southern Coalition plan in that three county group,
that the average population for those three districts
would be lower than the average population for two
districts drawn within the two county group in the
enacted plan?
A. That’s true.
Q. Okay.
A. That, of course, would be properly caused by the
most optimal compliance to the Stephenson county
grouping criteria.
1629
Q@. Okay.
A. It’s not — it’s not really a choice of — of the — the
map drafters.
1275] Q@. And does the Stephenson case put any
outer limits on the population deviation that a district
can have in order to still be lawful?
A. You have to stay within the plus or minus 5
percent range as — as defined by the Court; a little bit
different than in other states where the — the lowest
district — the — the difference between the lowest
district in the — drawn in the state and the highest
district has to be just under 10 percent, what they call
top to bottom.
But in Stephenson, no matter where that average
population falls for the county grouping, you’re still
limited by that plus or minus 5 range, which is
mandated.
Q. So under the population guidelines of
Stephenson, all three districts in the Southern
Coalition group have to be within plus or minus 5 of
the — of the ideal?
A. Right. If I could be excused to give an example
here.
Q. Sure.
A. Let’s say that the — he population of your county
grouping divided by the — the number of districts to be
drawn in the group is extremely high. It’s up at, let’s
say, 4.9 percent high above the ideal district
population. It would be much harder to draw a larger
(276) number of districts within that — that particular
group. If the two numbers were closer, it would be
easier.
1630
So you're constrained. If you make one district too
high or too low, you might push the other district up
over the 5 percent mark, and that’s not allowable.
Q. Okay. Now, turning back to your ~ Exhibit 12,
did you make this chart?
A. I did.
Q. And could you explain to the Court what this
chart represents?
A. Again, this is a comparison of — of five different
State Senate plans which are named in column one
with the same figures you’ve seen in — in the other
chart that I drew. It showed the total population, the
deviation — which now is, of course, above 0, because
we're not talking about Congressional districts. The
non Ilispanic/white population, the total black
population, the non Hispanic total black population,
the Hispanic population, and, again, the total black
minus the non Hispanic/white all for the adult voting
age population.
Q. And — and, Dr. Hofeller, does this chart does it
not apply to the different versions of Senate District
32?
[277] A. Yes.
Q. That’s not noted on the chart, is it?
A. No.
Q. But it — but it —
A. Im sorry.
Q. —it was intended to apply to Senate District 32:
is that right?
A. Yes. They’re all the 32nd Senate District.
1631
Q. So if 1 can just go over this for a second. Under
the 2010 Census, the — the 2003 version of Senate
District 3 — 32 had a deviation of minus 8.01 percent?
A. Yes.
Q. And that would make it illegal under the
Stephenson criteria, right?
A. Well, certainly, because it wasn’t within the
allowable deviation.
Q@. Okay. And the enacted plan 32 had a deviation
of minus 0.79; is that right?
A. Right.
Q. And that’s within the Stephenson range?
A. Right in the middle.
Q@. Okay. That’s the SCSJ plan had a deviation of
minus 4.37 percent; is that correct?
A. That’s correct.
@. And that’s — that’s at the lower range?
\278] A. It’s approaching the — the lower limit,
allowable limit.
Q. Okay. And then the — the Fair and Legal and
McKissick possible Senate Districts appear to have the
same deviation of 4.67 percent; is that correct?
A. Yes. Although I notice there, I might have been
dyslexic on that deviation.
Q. Is it your understanding that they’re — they're
the same district?
A. They appear to me to be the exact same district.
Q. Okay. Now, let’s now turn to the instructions
that you received about redrawing Senate District 32.
1632
Could you — could you keep the old version of Senate
District 32?
A. Well, no. There — there — there are two reasons
that we couldn’t have kept it. Possibly one was that it
was under — it was out of range of the ideal district
deviation — allowable district deviation, plus or minus
5 percent.
Also, what would play into it is that because of the
mandates of Stephenson and the county grouping
criteria, which is really a formulaic type of — of draw,
you might be limited by the — the average district size
within each group.
[279] Q. Okay. Did you receive any instructions
about how you should attempt to redraw Senate
District 32?
A. Well, first of all, it was determined by our initial
analysis of the state that there should be a ~— a
minority district drawn within that — that county
grouping similar to the district that was there in the
2003 map and that the placement of that district,
which came out in the original VRA map, was known
and approved by the — the General Assembly. So —
@. Any further instructions?
A. Well, again, after the initial plan was drawn, we
were informed by the plan that was presented by
SCSJ, which had a higher total black population in it
than the original] district we had drawn. We were also
informed by the fact that the 2003 Senate map for
District 32 had a higher percentage.
So | was instructed to bring that percentage into line
with the percentages in the SCSJ map and the original
map even though that district, the — the 2003 district,
had to have added population in order to meet One
1633
Person, One Vote. That was the instruction that was
given.
Q. All right. And do you have an opinion for the
difference in the shape and location of the enacted
District 32 as compared to the Southern Coalition for
{280] Social Justice 32? — Was there anything that
caused the two districts to have a different shape or
location?
A. Well, again, because of the county grouping,
which the SCSJ District 32 was drawn within a three
county, three district group, the — it could be drawn at
a much lower population. You can see, again, almost
at the lowest allowable limit that districts could be
drawn, which made it easier to draw the plan
demographically as they drew it.
However, in the two county, two district group
which was present in the enacted 2011 plan — which,
again, was mandated by Stephenson — the districts
had to be higher. And there was also a limit to the
lowest population at which we could draw the 32nd
District in the enacted map, because if we had drawn
it significantly lower in deviation than the minus 0.79
percent to reach the — the population of the SCSJ plan,
not only would we be gone — have gone out of limit —
well, we wouldn’t have gone out of limit necessarily,
but we would have driven the adjoining district in the
pair way up over plus 5; I would estimate somewhere
around 9 percent.
So we were limited in the population size of the 32nd
by what it would cause population wise in the 31st,
which was the paired district in the cluster.
Q. So-—so-
[281] A. So
1634
Q. Go ahead.
A. Soin order to obtain the population we needed
and to obtain the same demographics as were in the
sc SCSJ plan and the 2003 plan, we had to do — we
had to go out and reach out for the — the populations
that we did in drafting the plan.
Q. All right. And, Dr. Hofeller, do you recall
whether the General Assembly when they first
released maps, did they first release maps that only
included the VRA districts?
A. That’s true.
Q. All right. When you were drawing districts
initially, did you have any knowledge of where the
incumbents were located?
A. When] initially drew the districts both in terms
of making the initial demographic analysis and
drawing the and leaning towards the — _ the
finalization of the VRA planned districts, I did not
know until the very end of the process where the
incumbents actually lived.
Q. Did — did Senator Rucho ever instruct you to
draw Senator Garrou out of her district?
A. No.
@. Prior to the release of the VRA districts, [282]
did — did you determine that Senator Garrou was not
in the district that you had drawn?
A. Yes.
Q. And did you have any discussions with — with
Senator Rucho about that before the VRA districts
were released?
1635
A. Well, part of the discussions that we would have
with leadership — and in this case since it’s the Senate
plan, it would be Senator Rucho. Prior to the release
of any map, we would give a full presentation of the
plan to Senator Rucho. And that would include all of
the data on the plans, including incumbent residencies
and possible pairings of incumbents in the plan. So
there was no way we would not present the plan with
— to him with all the information that was needed for
him to make an informed analysis of the plan and to
approve it.
Q. And after you had that discussion with him and
before the VRA districts were released, did Senator
Rucho tell you either to keep her out of the district or
to draw her back into the district?
A. No.
Q. Okay.
MR. FARR: All right. Your Honors, I would now like
to turn to Dr. Rucho — or excuse me, “Dr. Rucho.” He
is a doctor, by the way.
(283] Q. Dr. Hofeller, could you turn to Tab 3 in
the exhibit notebook, Defendants’ Exhibit 3? Could
you tell the Court what this is?
A. This is a — again, a detailed map much like the
detailed maps produced that we looked at before for
Congressional District 12 which shows the major
highways, the VTD boundaries in — in orange lined
shading and the surrounding districts as they enter
Forsyth County with the 32nd in yellow and the 31st
in green.
MR. FARR: All right. Thank you.
Your Honors, we’re now going to turn to some
testimony on the Chatham County/Lee County plan.
1636
And because of my abysmal ineptitude in handling the
exhibits, ’'ve asked Mr. Peters to hand the exhibits
out.
MR. PETERS: _ If 1 may approach.
JUDGE RIDGEWAY: Yes.
BY MR. FARR:
Okay. Dr. Hofeller, do you have the — wait.
Excuse me. I'll wait until all the maps are handed out.
(Pause.)
Q. All right. Dr. Hofeller, you have Defendants’
Exhibit 19.
A. Ido.
Q. Can you tell the Court what that is?
A. That is a map of the House districts in the [284]
Martin House Fair and Legal plan, which shows the
districts — the House districts colored and which shows
the boundaries of the county groups for the plan in
dark — heavy dark blue lines.
Q. Okay. Anddo you do you notice the county
grouping includes Lee County?
A. There’s a three county group of Chatham, Lee
and Harnett, which is also containing three districts.
Q. Okay. And could you now turn to Exhibit 30 —
20 — excuse me — and tell the Court what this is?
A. This is a — again, a map of the Lewis Dollar
Dockham 4 or enacted House of Representatives plan,
again, showing the districts shaded in colors and the
county group shaded or lined in heavy dark blue,
which also indicates that it created a — a three county
grouping in Harnett, Lee, and Chatham with three
1637
districts. So the county groups in both plans were
identical.
Q. All right. And — and in comparing the — the
three county group in the Martin House Fair and
Legal versus the Lewis Dollar Dockham plan, is it fair
to say in the Martin House plan, there are two whole
counties?
A. Yes.
Q. All right. And is it fair to say that in the Lewis
Dollar Dockham pian, there’s only one whole county,
[285] that being Chatham County?
A. Yes.
Q@. In the Martin House Fair and Legal plan,
Chatham and Lee are maintained as whole counties;
is that correct?
A. Yes.
Q. Now, can you explain to the Court what a
“traversal” is, as far as you understand it?
A. Atraversal is —
MR. SPEAS: Objection, Your Honor. This is not
relevant to the two issues in front of the Court.
JUDGE RIDGEWAY: Overruled.
A. A traversal is the crossing of a county line to
connect to a portion of that county from an adjoining
county.
Q. All right. And can — can —- how many traversals,
as you understand the term “traversal,” are found in
the Lewis Dollar Dockham plan in this three county
group that includes Lee County?
A. Two.
1638
Q. Could you point the Court to what you consider
to be a traversal?
A. The traversal is the extension of District 54 into
Lee County and the extension ofwell, the connection,
actually, of Districts 51 and 53 across the [286]
Harnett/Lee line.
. Okay. So District 51 is — is — is created by a
traversal of the Harnett and Lee County line; is that
right?
A. Yes.
Q. Okay. Can— when you look at the Martin House
Fair and Legal plan, how many traversals are there in
this county grouping?
A. Two.
Q. Could you explain to the Court what you believe
to be the traversals in this?
A. Again, there’s the traversal of District 56, I
believe; am I seeing that clearly?
Q@. That’s— that’s correct.
A. Okay. Sorry — across the Chatham/Harnett line
and the traversal of District 53 across the Lee/Harnett
line.
Q. Sois it fair to say that there’s a same number of
traversals in both of these county groups?
A. Yes.
Q. All right. Now, could you tell the Court the
instructions that you received in terms of drawing the
districts in the — the three county group including Lee
County in the Lewis Dollar Dockham plan?
1639
A. Well, first of all, we’re going to draw a [287]
district wholly within Harnett County. And next —
Q@. Excuse me. You're going to do what? I didn’t
hear you.
A. An entire district within —
Q. Okay.
A. — Harnett County.
Q@. Okay.
A. And — and, secondly, Chatham County was to
remain whole. We — we surmised that District 54 was
going to be a Democratic district. And, also, we were
mindful of — of the fact that the then Speaker of the
House had a residence in Chatham County and was
also doubled up — or the term they use in North
Carolina is “double bunked” — in — in Orange County,
and we felt that that should be made into a — a
stronger Democratic district, so we reached down into
Lee County to find Democrats for the Chatham County
district.
Q. All right. Now, could you please turn to
Defendants’ Tab 4, Defendants’ Trial Exhibit 4? Can
you tell the Court what that is?
A. That is a map of the Lee County portion of — of
District 54 and also a part of the — of District 51 in Lee
County — County. Excuse me. It shows the 54th in
yellow, the 51st in pink. It shows also the VTD
boundaries of Lee County. It actually could have
shown [288] the boundaries of the portion in Chatham,
too, but it probably is all in one VTD.
Q. All right. Dr. Hofeller, do you see that big white
notebook that’s up there, up next to you? Could you
turn to Plaintiffs Exhibit 7?
1640
A. Yes.
Q. Now, do you know what that exhibit represents?
MR. FARR: May I approach, Your Honor, to make
gure —
JUDGE RIDGEWAY: Yes, sir.
MR. FARR: he’s got the right one?
Q. That’s it.
A. Yeah, I have it.
Q. Okay.
A. Im sorry.
Q. Does that — does that exhibit show the precinct
—the VTD lines in Lee County?
A. It shows a portion of Lee County, a little less
detailed than the map we just looked at. It shows the
VTD lines shaded in heavy blue, the district
boundary in red, and looks at, I believe, the
percentages of — of black VAP I don’t know whether
that’s 18 year old or just total population — in each of
the VTDs.
Q. Well, and my question is: Does it show the VTD
lines?
[289] A. It does show the VTD lines. I’m sorry.
Q. And do you know how many VTDs there are in
Lee County?
A. I believe there are five.
Q. And how would you describe them?
A. And they’re — they’re extremely large VTDs,
even by North Carolina standards which has
unusually large precincts as compared to a lot of them
1641
across the nation. I believe one of the — the VTDs is
over 18,000 population, which is very, very high, which
would give anybody drawing any type of district
within that county a difficult time following VTD
boundaries.
Q. Ail right. Now, how many — how many VTDs
include the City of Sanford in Lee County?
A. I actually believe that all of them touch a
portion of Sanford, although one of them is just a very,
very, very small piece. So certainly four of them go
through the City of Sanford.
Q. Okay. And so that if —if you included the entire
City of Sanford in a district, that would split four or
five VTDs by doing that, correct?
A. Yes.
Q. All right. Now, I want you to turn back to our
Exhibit 5 — it’s 4. So let me know when you have that,
Dr. Hofeller.
{[290) A. I have it.
Q. All right. I want you — I want you to focus on
part of this exhibit that shows how District 54 was
drawn into Lee County, and I wanted to ask you: How
did you come to make this draw for House District 54?
A. Well, once again, as I said before, the idea was
to find highly Democratic portions of Lee County to
include in District 54 because District 4 was intended
to be drawn as a Democratic district. So trying to find
that out, I — as in many cases in these maps — was
instructed by local knowledge of these areas and was
essentially told that the strong Democratic
MR. SPEAS: Objection. Clearly hearsay.
1642
JUDGE RIDGEWAY: Im going to allow it as the
basis of this expert’s opinion on this matter.
Go ahead, Mr. Farr.
MR. FARR: Thank you, sir.
A. Im sorry. I
Q. What — what — what —
A. That the Democratic — the highly Democratic
areas of Sanford were found in the central portion of
the city.
Q. Okay. Now, what the Court has allowed you to
testify on, Dr. Hofeller, is: Explain why you drew these
lines and why you thought these were the Democratic
areas [291] of Sanford.
A. Because the — the people who were sitting by me
when I drew the map told me that those were the
highly Democratic areas.
Q@. Okay. And did the large size of the VTDs render
it impossible to determine where the Democratic
voters resided simply by relying on VTDs?
A. Yes.
Q. Okay. When you drew this map, did you have
any racial data up on your screen?
A. No.
Q. Did you get any instructions from any of the —
or from Representative Lewis or anyone else that you
should consider racial data in drawing this district?
A. No.
MR. FARR: All right. I have one more question,
Your Honors, that I overlooked.
MR. PETERS: We have a couple more.
1643
@. Could you turn to in our black exhibit notebook
Tab 5? Can you tell the Court what this is, Exhibit 5?
A. Exhibit 5 is a detailed — more detailed map of
Rucho Lewis Congress 3 District 4, the Congressional
~ 4th Congressional District in the enacted plan
showing the 4th District and the surrounding district
in colored shading ~— which would actually be a
thematic — and [292] county lines and VTD lines in a
rather thin red line and major, major roads with VTD
numbers on the VTDs.
Q. All right. Now, could you turn to Tab 7?
A. Yes.
Q. And did you did you prepare this exhibit, Dr.
Hofeller?
A. I did.
@. And could you tell the Court what this is?
A. This is a — a — a — a map of the Stein 13"
Congressional! District shaded in red.
@. And did you have a ~ a diagonal line drawn on
this particular map?
A. Yes.
@. And what’s the purpose of — of that line?
A. It shows the boundary — the boundary line that
— the farthest reach of the district.
Q. And, Dr. Hofeller, is it your understanding
when you say the “Stein 13th Congressional! District,”
is that also known as the 2011 Fair and Legal
Congressional plan?
A. Yes.
Q. All right.
1644
JUDGE RIDGEWAY: Mr. Farr, if you’re going to
begin with a new district, we're going to take a break
before you do that. Are you finishing up with a district
(293] already talked about or are you about to change?
MR. FARR: I just have one more exhibit to talk
about.
JUDGE RIDGEWAY: Okay. Go ahead.
MR. FARR: It should take five minutes or less, then
ll be finished.
BY MR. FARR:
Q. Okay. Could you turn to the Plaintiffs’ white
exhibit notebook and turn to Tab 9? Now, have you —
have you seen this exhibit before, Dr. Hofeller?
A. Yes.
Q. And do you understand this is an exhibit that
has been prepared by a witness for the Plaintiffs
named Chris Ketchie?
A. Yes.
Q. Can -—can you again tell us what the goals were
for the Legislature in creating the enacted District 4?
There were two goals.
A. Well, again, the goal was to draw the — the most
Democratic district that could be drawn for District 4
to make the surrounding districts better for Republi-
can candidates.
Q. All right. And — and in looking at Exhibit
Plaintiffs’ Exhibit 9, can you offer an opinion as to
whether if the Legislature had enacted this district
they [294] would have accomplished both of the goals
that they gave you for drawing the enacted District 4?
A. No.
1645
Q. And why — why can’t you render an opinion on
that?
A. Well, I mean, there — there are two reasons.
One, I — I know that — that the District 4 as enacted
was the — the best configuration that we could find.
And, number two, this map is just one district in both
cases. So you have to place a district in context in the
whole plan and the goals of the whole plan when you
look at it. This — this often happens in redistricting
when people — members, public — many people submit
a map and say “This is what I want this single district
to look like” without either showing or having taken
into consideration the way that district would fit into
the rest of the state.
@. So in looking at Exhibit 9, can you form an
opinion on whether this variation in District 4 would
have the same impact as the enacted District 4 of
making adjoining districts more competitive for
Republican candidates?
A. Well, it would change — it would have changed
the entire complexion of much of the map, and it
certainly wouldn’t have been a configuration that
would [295) have been approved by the General
Assembly.
Q. And, also, do you see that Durham is included
in this configuration?
A. Yes.
Q@. And what district was Durham included in in
the enacted plan?
A. Much of it was included — I don’t know whether
it was all or much of it. I would have to look in — in
District 1.
1646
MR. FARR: All right. That’s all I have for now, Your
Honor.
JUDGE RIDGEWAY: All right. We'll go ahead and
take a recess until 11 o’clock. That’s about
18 minutes from now.
(Court was in recess from 10:44 a.m. to 11:02 a.m.)
JUDGE RIDGEWAY: All right. Welcome back. It’s
my understanding Defendant has no further questions
for this witness for the Defense.
All right. For the Plaintiff, cross examination?
MR. SPEAS: Thank you, Your Honors.
CROSS-EXAMINATION
BY MR. SPEAS:
Q. Good morning, Dr. Hofeller. ’m Eddie Speas.
We've met many times over the years, and I look
forward [296] to talking to you a little bit this morning
about your testimony.
I want to clear up a few things to begin with. You
were not actually retained by the Legislature in this
case. You were retained by Mr. Fart’s law firm. Is that
correct?
A. Yes. I believe I said that, actually.
Q. And you have testified that you received
instructions from the General Assembly with regard
to drawing plans. I want to follow up on that. Actually,
with regard to drawing the Senate plans, you received
instructions only from Senator Rucho; is that correct?
A. 1 don’t rightly recall if — if Il received any other
comments that I would consider instructional, but he
1647
was the Chairman of the Senate Committee and hisit
was his job to have the final word.
Q@. And you — he is the person to whom you looked
to gain your instructions with regard to the Senate
plan.
A. Yes.
Q. And to the best of your memory, he’s the sole
source of instructions to you in drawing the Senate
plan.
A. Once again, it’s been two years, so I can’t say
that with abso]ute accuracy.
Q. But you do not recall any other instruction any
instructions from any other member of the Senate as
[297] we speak sitting here this morning.
A. If by “instructions” you mean any comments
Q. No.
A. 1-~- 1 would say that — once again, I would say
my testimony is that — that Senator Rucho was the
final word.
@. Okay. And he’s the person who gave you
instructions.
A. The policy instructions, yes.
Q@. And he’s the only person who gave you
instructions.
A. Well, again, I — it’s been two years, so I don’t —
Q. Well, let’s distinguish between “comments” and
“instructions.” I’m sure there were a lot of comments.
I’m talking about who told you how to draw districts.
That was Senator Rucho and Senator Rucho alone,
correct?
1648
A. That’s my memory, yes.
Q. Okay. Now, let’s talk about the House plan a
minute. You said you received instructions from the
General Assembly. In fact, the only instructions you
received were from Representative David Lewis with
respect to the House; is that correct?
A. He was certainly the primary giver of
instructions. At some point, I had input from other
[298] members; but he had the last word.
Q. And as you sit here this morning, you do not
recall any other member of the House giving you any
instructions with regard to the House plan.
A. Certainly in terms of the policy, the general
policy of how it was to be drawn.
Q@. Okay. And with regard to the Congressional
plan, your instructions were from Senator Rucho and
Representative Lewis jointly with regard to the
drawing of that plan, correct?
A. To the best of my recollection, yes.
Q@. And no other members of the House or Senate
gave you instructions with regarding the — the
instruction of the Congressional plan other than
Senator Rucho and Representative Lewis, to the best
of your memory.
A. Again, I'd have to characterize it by saying
Senator Rucho and Representative Lewis had the final
word on what was going to go forward or not go
forward.
Q. And as between Senator Rucho and Representa-
tive Lewis, Senator Lucho — Rucho was the lead source
of instructions for you with regard to the Congres-
sional plan.
1649
A. I don’t really know that I can make that
judgment one way or the other.
[299] Q. You had more contact with Senator
Rucho regarding the Congressional plan than
Representative Lewis.
A. If 1 did, it was more; but it was certainly not
overarching.
@. Now, you were — you, in fact, have said in earlier
testimony in this case that it’s fair to describe you as
the chief architect of all three plans, correct?
A. That’s one way you could put it, yes.
Q. You don’t disagree with that today.
A. Well, as I would define “architect,” yes.
Q. Now, let me talk just a minute about the order
in which you drew the plans. Your first focus was the
House plan, your next focus was the Senate plan, and
your final focus was the Congressional plan — is that
correct — of your map drawing efforts?
A. Yes. Could I make a comment on the last
question?
@. Please. Please.
A. Okay.I think | described “architect” in the
context of an architect building a house. And the client
tells them how they want the house built; the architect
engineers the House.
But now to answer your question, 1 think I’m going
to have to ask you to repeat it again. I’m sorry.
[300] @. Okay. If I can remember it. That’s the
problem. But with regard to the order in which you
drew the plans, you drew that — your focus — first focus
was the House plan, your next focus was the Senate
1650
plan, and then you focused on the Congressional plan.
i. that — is that accurate?
A. I-—Idon’t think that’s really precisely accurate.
Q. Okay. Help me understand why it’s not
accurate.
A. Well, the — the three plans were not drawn
consecutively.
Q. Okay.
A. We did not finish the House plan and then say,
“Oh, ah ha, let’s draw a Senate map now”; and, “Oh,
that’s done, so let’s focus on the Congressional! plan.”
If you have redistricting experience in this setting
where the state Legislature is drawing three maps,
because there are 120 districts in the House plan —
always a larger number of House districts than Senate
districts in any state — and then the next number of
districts in the Senate and then finally the fewest
number in Congress — of course, unless you’re in
California where they have less State Senate districts
than House districts, if you can believe that — the [301]
complexities are actually much more difficult with the
larger number of districts.
Q. Sure.
A. There are more moving parts, so to speak.
Q. Absolutely.
A. So Im not wanting to give the Court the idea
that they were being drawn one after the other. All
three were going on together. But I had to put the
greatest emphasis on the House map.
1651
Q. And that’s because it’s the most complicated
because it’s got the most districts and it has the most
moving parts.
A. That’s correct.
Q. Okay. Now, and it would take the most effort.
So, logically, it makes sense to start with the project
that’s going to take the most effort first; is that
correct?
A. Well, that makes sense to me. It might not make
sense to others because, of course, each — each group
of people think their plan is more important than the
other plan.
Q. I-I-I-
A. You have to deal with that, too.
Q. I-JI understand that completely.
A. You’ve been there, I’m sure.
{302} Q. Now, your prior testimony in this case
was the first thing you did was to get the data
organized. And then you started your map drawing,
and you started that right after receipt of the census
data. Do — is my memory correct? Is it
A. I think it is, yes.
Q. Okay.
A. Ido that in a lot of states because I’m wanting
to know what’s possible.
Q. And the census data was received, I believe, on
March 22nd, 2011. Is that consistent with your
memory?
A. That seems right to me.
Q. Okay.
1652
A. It’s one of the — nearly the end of the —
Q. Okay.
A. — the period which the PL94 tapes were being
distributed by the Census Bureau.
Q@. Okay. And let me ask this: I know you've done
a lot of map drawing and you've done a lot of map
drawing for a lot of years. Have you ever had the
assignment of — to draw the House and the Senate and
the Congressional plans for any state?
A. No. I don’t think so, actually.
Q. Soin some sense
A. Not that I can remember, again.
(303) Q. I understand.
A. I’ve drawn a lot of states in a lot of plans in a lot
of decades.
Q. But as you're sitting here today, you would have
to say this North Carolina project that you undertook
was the biggest project you ever had.
A. You could characterize it that way, yes.
Q. Okay.
A. Ihad a lot more experience under my belt when
I started it than I had maybe in other states.
Q. I understand.
Now, Dr. Hofeller, you did not draw these plans at
the Legislative Building, did you?
A. No.
Q. None of the plans at the Legislative Building.
A. That’s correct.
1653
Q. You drew them, you testified at your deposition,
in three places. One was just over here on
Hillsborough Street at the Republican Headquarters.
The other was at the Republican National Committee
Headquarters in Washington, DC. And then you said
you drew some of them while you were traveling on the
plane and the train. Is that an accurate description of
where you drew these plans?
A. Yes. Id add that there were outside locations
[304] where I might have drawn the plans because
thev were on my computer, so...
Q@. Now, on direct examination, you indicated at
one point that there were people sitting with you as
you were drawing the districts. I want to talk about
that just a minute.
is it accurate that your two principal assistants in
drawing these plans were Mr. Dale Oldham and Mr.
John Morgan?
A. No. 1 would be in trouble immediately if I got
down off the witness stand and characterized Mr.
Oldham as my “assistant.” He’s my counsel.
Q. Okay.
A. Okay. Please.
Q. Okay. But Mr. Oldham — Mr. Oldham was your
counsel in drawing these districts.
A. He was extremely interested in what was going
on in the district. Mr. Morgan, I believe — although ’'m
not privy to it — was retained by the General Assembly,
again, I believe, to assist in the Senate map.
@. And Mr. Morgan is — I’m sorry — Mr. Oldham is
a lawyer.
A. Yes.
1654
Q. He’s not licensed in North Carolina, is he?
A. You know, I don’t rightly know. I — it’s not [305]
my business.
Q. And he’s your business partner, right?
A. Helis.
Q. And yall have got a business that’s located
down in South Carolina, I believe.
A. That’s his — his home address, yes.
Q. Okay. And Mr. Morgan is a demographer; is
that right?
A. Well, I don’t know how he characterizes himself.
I think he does a lot of — of campaign work and he’s
also a — a experienced redistricting plan drafter.
Q. That — and I don’t mean this in a pejorative
sense, but he was one of your assistants when you
were drawing these maps. He was one of the people
sitting with you when you drew these maps.
A. Well, I think for the most part he was more
drawing himself independently.
Q. Okay. Now, you testified at your deposition that
you were the consultant for the Republican National
Committee and for redistricting for the 1990s, the
2000 and the 2010 series of redistricting cycles; is that
correct?
A. Im thinking back here. I believe in the ‘90s, I
was the consultant to the — let’s see here — the [306]
National Republican Congressional Committee, not
the Republican National Committee. They are
different.
Q. But it’s fair to say that since the 19 — since 1990
or so, you have been retained in one capacity or
1655
another to draw districts or advise with regard to
redistricting for the Republican National Committee.
A. Yes.
@. And Mr. Oldham and Mr. Morgan also have an
association with the Republican National Committee,
correct?
A. They do, but 1—1 don’t really remember in 2010
whether or not Mr. Morgan actually had any contracts
with the Republican National Committee in this cycle,
so I'm not really privy to who retained him to do what.
He does a lot of independent redistricting work on his
own. Mr. Oldham also has a lot of other legal interests
and does a lot more work for various clients
throughout the country.
Q. And was
A. You’d really have to ask him.
Q. Yeah. Was Mr. Oldham advising you about legal
matters?
A. Mr. Oldham and | have discussed many times
redistricting in many different instances. Of course,
part of his job and my job is to follow the redistricting
{307} process across the whole nation, which is very
interesting, I might add.
Q. I’m-—TIm sure it is. I have no doubt.
Did — let ~ well, let me — let me withdraw that
question.
When you were qualified to testify today, Mr. Farr
asked you the question whether you know a lot about
North Carolina demographics. Did — did — do I
remember that correctly?
1656
A. Idon’t remember precisely what he asked me. I
_ you — I think the record would speak for itself.
Q. And let me just explore that for a minute.
You've been to North Carolina before with
redistricting and you know a lot about election data
and you know a lot about lines on charts, but you don’t
know much about North Carolina people and places,
do you, Dr. Hofeller?
A. I-—I think you would have to put that in a little
more context for me.
Q. Have you ever been to Yadkin County where I
grew up?
A. No.
Q. Have you ever been to New Hanover County?
A. No.
Q. Do you know where it is?
[308] A. Yes.
Q. Where?
A. It’s Wilmington.
Q@. Okay. Have you ever been to Ashe County?
A. Yes
Q. Have you ever been to Wilson County?
A. Yes, I have.
Q. Ah. Well, when did you go?
A. Well, actually, I have driven through there and
I’ve gone through there on — on the train.
Q. You went — you were on 95?
A. OrIwas on Amtrak.
1657
And you didn’t get off the train, I guess.
No, I didn’t.
Okay. Might have stopped at the rest stop?
I don’t believe there — well, there wasn’t time for
a rest stop.
Pr Ope
Q. Is that about all you know about Wilson County,
Dr. Hofeller?
A. Yes. Inthe context that you asked me.
Q. Okay. Now, let’s —let’s go back for just a minute
to your source of instructions. Those instructions
about the policy decisions, we'll call them, to use your
term, came from Senator Rucho and Representative
Lewis for all three plans.
[309] Now, my question is this: Those instructions
were oral, correct?
A. Yes.
Q. While you were drawing the maps, the
instructions were oral, correct?
A. Well, there were also some documents, policy
documents that had been produced which I was
familiar with.
@. And — and do those
A. Let me
Q. Im sorry for interrupting.
A. Let me continue, okay?
As the maps were unfolded, the — the — the chairmen
were very interested in monitoring the process and
they would look frequently at what was being drawn
and the state of the completion and the plan at various
times. And they would comment on the plans, which it
1658
was my job to be very aware of and to take special
notice of.
Q. I — I have no doubt that they gave you
instructions.
But my question is: Those instructions were oral,
weren't they?
A. Yes.
Q. They were — you did not receive any written
instructions with regard to how to draw these districts
[310] in any of the three plans from either Senator
Rucho or Representative Lewis, correct?
A. There — there were not specific written
instructions given directly to me, but there were policy
statements that were publicly issued by the
committees which I read and took note of.
Q. Okay.
A. And I certainly would have been cognizant of
that as being part of the mandate.
Q. There is no memo or other document in written
form anywhere that is addressed to Dr. Thomas
Hofeller and signed either by Senator Rucho or
Representative Lewis that says, Dr. Hofeller, we want
you to draw these maps this way. There’s no such
document.
A. Not to my knowledge or recollection.
Q. And you, in fact, had an agreement with
Senator Rucho and Representative Lewis you wouldn't
e mail each other, didn’t you?
A. My general advice to anybody in life, including
redistricting, is the less you say on the Internet, the
better off you are.
1659
Q. Okay.
A. So it would not be my practice to send those in
e mail fashion.
Q. I—I1-—TIm not questioning the soundness. [311]
I’m just questioning the fact.
A. Yes.
Q. There were no e mail communications.
A. Well, I gave you all the e mail communications
that there were.
Q. Okay. Okay. Now, at one point after the plans
were made public for the first time, Senator Rucho and
Representative Lewis did release public statements,
correct?
A. Yes.
Q@. And — and you are aware that
A. And I believe they — they issued public
statements at the time several plans were released.
Q. Okay. And you're aware that they described
those as the criteria that they wanted you to apply in
drawing these districts, correct?
A. Yes. You know, it’s been two years, again. I
don’t — don’t remember exactly specifically what was
are in those statements.
Q. But — but and — and it — it’s your memory this
morning that there were public statements in those.
A. Absolutely.
Q@. Okay. And those were intended to describe the
reasoning, the rationale, the policy decisions that
Senator Rucho —
[312] A. I believe there was —
1660
Q. Let me finish my question, Dr. Hofeller.
A. Im sorry.
Q. that doctor - that Senator Rucho and
Representative Lewis were following or directing you
when they were drawing the plans, correct?
A. Well, it would be my understanding that when
they released those statements, they were trying to
explain to the public what was the policy and rationale
behind the plans. They weren’t written for me. They
were written for the public.
Q. lunderstand.
A. Okay.
Q. You — you reviewed those public statements
before they were released, though, I believe.
A. I don’t recall that I did, no.
Q. Okay. Now, you talked a little bit about what
information you had as you were drawing your
districts.
I want to follow up on that just a little bit.
Now, you never conferred with anybody living in any
of these districts as you were drawing the districts, did
you?
A. Im sorry. J don’t understand what you mean by
“these districts.”
Q. Okay. Did you — do you remember going to
Wake [313] County and asking anybody in Wake
County about the House or Senate districts you were
drawing in Wake County?
A. Okay.1—Ibelieve again, I — I don’t quite
understand the context of your first question.
1661
Q. Okay. Well, I'm sorry. ’m —
A. Im trying to be accurate here.
Q. I-
A. Okay.
Q. And I appreciate that and let — my obligation is
to be clear, so let me try.
I would think that if you were drawing a district
that you would want to hear from the people in the
area where the district is located before you draw the
district. And — and my question is: Did you go out and
talk with people in the — any of these districts before
you started drawing them?
A. Well, first of all, I think it’s inaccurate to infer
what my — my desire would be by that question.
That question assumes a predicate that isn’t true.
There were public hearings that were held by the
committees across the state, and that was part of the
division of labor involved in bringing a plan to
completion.
The political leaders would go out and consult —
excuse me — with the general public. They would get
the comments. They would be informed by the [314]
comments and they would come back and they would
then comment on it. That was not my job, nor was it
proper for me to go out on my own. And, oh, by the
way, I wouldn’t have had time to do it anyway.
Q@. Okay.
A. This is a very long and complex process, and
just getting done what I got done was a big challenge.
Q. I-—Idon’t doubt that. But what I —I simply want
to know is this: No matter how big this was, no matter
1662
how little time you had, you didn’t go out and talk to
anybody in any of these districts when you were
drawing them, correct?
A. I didn’t go out to the general public, that’s
correct.
Q. Now, you referenced the public hearings and
there were public hearings. Did you attend any public
hearings?
A. No.
Q. Did you — they did transcripts of all those public
hearings, every one of them. Did you read any of those
transcripts?
A. If I did, it would have only been a small portion
of them. Again, I don’t
Q. So all of your information as you were drawing
these maps about what people were saying in North
[315] Carolina about these districts you were drawing
was filtered through Senator Rucho and Representa-
tive Lewis. You didn’t hear directly from anybody
about these maps, did you?
A. Atleast for the most part, yes.
Q. Now, you didn’t go to any legislative committee
meetings either, did you?
A. No. Except I walked through one once, as I —
I believe I said in my deposition.
But didn’t you
But | didn’t stop.
Sort of like the train down in Wilson County.
POP &
I mean, not that massive.
1663
Q. Okay. But you didn’t read the transcripts of
those legislative committee meetings.
A. No.
@. Okay. Now, I want to talk to you a little bit more
about your — how you and — and Senator Rucho and
Representative Lewis did your work.
So would they draw sample districts and come to you
and say, Dr. Hofeller, what do you think about this?
Or would you draw districts — sample districts and go
to them?
MR. FARR: Your Honor, may I just state an
objection for the Court to consider as we’re going [316]
forward? This trial was supposed to be on specific
topics, and we seem to be going far afield from the
areas of inquiry that the Court asked the — the parties
to put evidence on. And I would just ask that there be
some limit to this general inquiry, which is an — and
the reason, Your Honor, is why we have great concerns
about the limited scope of this trial.
JUDGE RIDGEWAY: | believe the objection will be
overruled. I — I am trusting Mr. Speas will tie it
together in — into — into the relevancy related to the
specific issues of this bifurcated procedure.
MR. SPEAS: Yes, Your Honor. | think it’s
important to understand the context in which these
maps were drawn. The question here is whether they
were narrowly tailored. And we have the mapmaker
here, and it just seemed I — I — my — my intent is
simply to find out what it was he had in front of him
when he was doing it.
JUDGE RIDGEWAY: Yes. The _ objection is
overruled.
BY MR. SPEAS:
1664
Q. Let -- let me pursue what you — what you had in
front of you.
MR. SPEAS: You made reference — and if I may
approach, Your Honors, I’m going to ask the witness
(317] about a document previously — my goodness.
MR. FARR: Your Honor, I would like to state an
objection. This is not the entire exhibit.
There are quite a few pages that are not included in
this exhibit.
MR. SPEAS: That is accurate, Your Honor. There
are some appendices that I did not include because of
the — I mean, I can postpone asking him about this
exhibit, if you would prefer, until I get the entire
document. They are appendices that are not related
to the questions.
JUDGE RIDGEWAY: Well, let’s do this. Under
Rule 106 of the Rules of Evidence, if there are
provisions of this document that ought — in fairness
ought to be provided to the Court at this time, then at
the conclusion of your discussion about this exhibit, if
the Defense wishes to have additional portions either
added to the record, we'll certainly hear about that.
MR. FARR: My only concern, Your Honor, what if
there is something in this exhibit that would relate to
the witness’s ability to respond to the question?
JUDGE RIDGEWAY: Again, Rule 106, in the
event that there are portions of this document that
ought in fairness ought to be provided, then we'll [318)
allow the Defense to — to supplement the record.
BY MR. SPEAS:
@. Dr. Hofeller, I just want to ask you a couple of
general questions about that document.
1665
You mentioned in your testimony a few minutes ago
that you were aware of policy statements that had
been made by the Legislature as you began your task
of drawing districts. Am J correct?
A. Yes.
q. And is the document in front of you, the
Legislators’ Guide, the document to which you have
reference?
A. One of them, yes.
Q. Okay.
A. This was a — this was a — a document which |
believe was also published in previous redistrictings
by the General Assembly when the Democrats were in
control of the redistricting process and | believe was
updated by the — the General Assembly staff for the
current redistricting cycle.
Q@. But that is one of the documents that did reflect
the guidance that you received from the Legislature as
you were — from the Legislature as you were doing
your work, correct?
A. Yes. Iread the document.
[319] Q@. And would you for the record simply state
the number of that exhibit. I don’t think that’s been
done.
A. I believe it says, “46E Churchill.”
Okay.
3 20 12.
That’s correct.
Okay. Wow.
Pr OP f&
1666
Q. Now, if you would look just briefly at the
document, Dr. Hofeller, is it true that that document
does describe, among other things, the legal parame-
ters of Gingles claims under the Voting Rights Act?
MR. FARR: Your Honor, objection.
A. You know, I haven’t read this document for two
years.
JUDGE RIDGEWAY: Hold on. Hold on. Let me
rule on the objection.
THE WITNESS: I’m sorry. Your Honor, I apologize.
JUDGE RIDGEWAY: Overruled. Go ahead. You
may answer.
THE WITNESS: I’m sorry.
JUDGE RIDGEWAY: That’s fine.
A. Ihaven’t read this document for two years, so —
MR. SPEAS: Well, may I approach the [320] witness
A. Id have to
MR. PETERS: — Your Honor?
JUDGE RIDGEWAY: Well, let him finish. And,
yes, sir.
Q. All right. All right.
A. And I — I would have to review it both
specifically as to what you’re going to ask and in its
entirety to make a complete evaluation of it.
Q@. Okay. My question my first question is whether
or not there is a section of that document that talks
about the elements of a Gingles claim. ’'m not asking
you to say whether it’s accurate or not. I’m just asking
you whether it’s there.
1667
A. Well, I see that on page 5, it —it mentions Thorn
v. Thornberg v. Gingles, so it is in the document.
@. And this is one of the documents that you read
in doing your work.
A. Yes.
MR. SPEAS: Now, Your Honors, if I may distribute
another set of documents, hopefully, this will be more
efficient.
@. Dr. Hofeller, ['ve put in front of you a set of
documents that have previously been identified as
[321] exhibits in this case. And for — let me just say
initially it is Exhibits 81, 82, 83, 93, and 94 from the
deposition of Erica Churchhouse ~ Churchill on March
20, 2012.
Dr. Hofeller, if you would — 1 want to ask you the
same question about each of those documents. Is that
a document that you had available to you as you were
deciding how to draw districts?
MR. FARR: Objection.
A. Again, I haven’t seen these documents —
JUDGE RIDGEWAY: Hold on. Hold on.
JUDGE HINTON: Hold on a second.
MR. FARR: And, Your Honor, my objection is how
he was deciding to draw the districts.
JUDGE RIDGEWAY: So sustained as to form.
MR. SPEAS: Okay. All right. I apologize for that.
BY MR. SPEAS:
Q. Dr. Hofeller, are — my question to you with
regard to these exhibits is whether these exhibits are
1668
documents you had before you as you were drawing
districts.
A. I guess my answer would have to be to you: I
have to look at the documents before I can tell you
that.
Q. Would you take a minute to do that.
[322] (Pause.)
A. Im sorry. I just —
Q. No. No. Take your time, please.
A. The data that are contained in these documents
in some cases would be contained in the dataset that
was compiled by the legislative staff for use in the
redistricting process, specifically to be a part of the
GIS system that was incorporated into Maptitude to
be available on multiple levels of geography for
redistricting line drawing processes. So to that extent,
there’s a relationship.
Also, one might in the case of two of the documents
Exhibit 83, I believe, and 82 — would be the basis for
making a determination on more extensive data
collection, which would need to be made primarily in
order to do racial polarization studies.
@. So these documents would be relevant to
questions of determinations of Section 2 obligations of
the General Assembly.
A. That’s your statement.
Is — yes, it is.
Okay.
Is that correct?
ee
1669
A. I-Ithink that the largest determination would
be as mandated in Stephenson as a first step to the
1323] redistricting process would be to make a
demographic analysis of the state to determine where
the demographics should lead you for legal
conformance with Stephenson and the Voting Rights
Act.
Q. And that’s a nice transition to my next question.
I ~I want to ask Dr. Hofeller about another document
previously introduced.
Dr. Hofeller, Exhibit 436 to your deposition on June
28th, 2012, is called a “Carolina Proportionality
Chart.” Do you recognize that as a document you
prepared?
A. Yes. Although I haven’t seen it, again, for quite
some time.
@. And you testified earlier that you put together
this document in March of 2002.Is that your memory
today?
A. That makes sense, yes. That — this document
could not have been done before the redistricting data
file had been released by the United States Census
Bureau.
@. Okay. And is it correct that this district this
chart shows the number of African Americans who
would need to be elected to State House and State
Senate districts in order for African Americans to be
said to have exact proportionality in those legislative
bodies?
[324] A. I don’t think I would characterize it that
way at all.
Q. Well, could you — could you tell me what it
shows then?
1670
A. This shows nothing more than if you multiplied
the number of districts in each chamber of the General
Assembly by the percentage of, first, 18 plus any part
black which we now call “Total Black” in the charts
and — and in the last four columns, “Single Race”
which is also a category that is in the Census Bureau
times their percentage of the State’s population, it
would yield a proportional number of seats. And then
it said — which kind of goes without staying — if you
truncated the result up or down, the result of the seats.
Q. Okay.
A. That’s all it says at this point.
Q. Okay. And — and did you prepare this chart at
the request of Senator Rucho or Representative Lewis?
A. I don’t really remember. I have to be honest.
Q. And do you remember that one of the policy
decisions they made was that you should make an
effort to achieve proportionality for African American
citizens as you were drawing districts?
MR. FARR: Objection to the form.
A. I-
[325] JUDGE RIDGEWAY: Hold on just a second.
(Judge Ridgeway, Judge Hinton and Judge Crosswhite
confer.
JUDGE RIDGEWAY: All right. We're going to
sustain the objection on the grounds of relevancy. The
~ the issue — there are two issues, and those relating
to Voting Rights Act districts are whether they were
drawn in a place where a remedy or potential remedy
of racial polarized voting was reasonable for the
purposes of preclearance or protection.
1671
The questions that I’m hearing now relate to the
number, which is not — which is a different issue than
the place. And we are specifically interested in the
geographic placement of Voting Rights Act districts.
With respect to the — I believe there are six non
Voting Rights Act districts, that there may be broader
inquiries; but — but proportion — a proportionality
issue is not relevant to those six districts either.
MR. SPEAS: I —I —-I appreciate that, Your Honor. It
simply seemed to me that the number has a major
impact on the location, and so I thought that was the
reason for the questions.
JUDGE RIDGEWAY: We - we -— we specifically
are being very narrow in our inquiry in this [326]
bifurcated proceeding specifically for the reason stated
by Mr. Farr, that it would be unfair to the Defense to
allow a broader inquiry when the purpose of this
hearing is related to two fairly narrow issues.
MR. SPEAS: Thank you, Your Honors.
BY MR. SPEAS:
Q@. Dr. Hofeller, directing you to the racial
proportionality analysis or issue, you yourself, |
believe, testified you did not do any racially polarized
voting analysis; am | correct?
A. I did.
@. You did do one or did not?
A. Youasked I believe you asked me if | testified
to that.
Q. Yeah. I’m sorry. Maybe my question — my — I
heard I heard you say you did not perform any racially
polarized voting analysis yourself. Did I mishear you?
1672
A. No, you did not mishear me.
Q. So you yourself and Dr. Thomas
A. Could you ask that incidentally again, because
1 think that was like a double negative?
Q. Okay. Did you do any racially proportional
proportionalized voting analysis yourself?
A. No.
Q. Thank you.
[327] One of your obligations you — that you said was
to ensure that the plans were legal. Is that one of your
obligations to your clients?
A. I think my more important role was to inform
the General Assembly of what was possible and what.
was not possible, and the determination as to whether
or not you would — | would proceed or the plans would
proceed under any certain policy was a decision made
by them.
Again, the — the — the demographics and and the
county groupings and the populations and al] the
political elements of making a plan are extremely
complex and difficult. And the — the chairmen
obviously could not sit through that whole process; so
1 think it was our job to, in essence, ensure that they
were completely able to make informed policy choices.
Q. Is one of the policy choices that Senator Rucho
and Representative Lewis made to insulate the state
from Section 2 liability?
A. I believe it was — I believe — again, I’m not the
lawyer — that they were trying to insulate themselves
from any liability.
1673
Q. Did you inform the General Assembly with
regard to their potential liability for Section 2
violations in each of the places where a Voting Rights
district was drawn?
[328] A. That was not — again, it was my — my job
to queue up the facts. They would make informed
decisions based on that and other information that
they received.
Q. Okay. In queuing up the facts, you did not do a
racially polarized voting analysis yourself, correct?
A. I already said I didn’t.
Q. All right. They and — and the only racial
that you are aware of how many racially polarized
voting analyses here?
A. I believe before the plan was enacted, there
were two.
Q. And what were they?
A. Ithink one was done by Dr. Brunell and one was
done by the expert for, I believe, the SCSJ or AFRAM.
Q. All right. And do you know on what date Dr.
Brunell completed his racially polarized voting
analysis?
A. No, 1 don’t believe, at this point.
Q. Could it be June 14, 2011?
A. Again, I don’t recall that.
Q. Okay. Do you recall whether you had Dr.
Brunell’s racially polarized voting analysis before you
completed the draft of the VRA House and Senate
districts that were released publicly?
7
1674
A. Again, I — I’m —I’m not completely sure of [329]
the timeline. This has been two years. I just can’t say,
and...
Q. But there’s —
A. I —Iwill—I would say this is what I said before,
is that all my past experience in North Carolina was
that there was racially polarized voting. Indeed, I
believe SCSJ made that statement in a public meeting.
And I know of no other study that ever said
differently, so I was following — the policy decision was
to proceed based on that basis. If something else came
up that was — that made a policy change different, it
could be reacted to. It couldn’t go the other way
around.
Q. Now, your — part of your duty was to queue up
the information, to use your term, for the Legislature
with respect to what it needed to know about Section
2 liability; is that correct?
MR. FARR: Objection.
JUDGE RIDGEWAY: Overruled. You may answer.
A. Again, I think you’re making that more wide
ranging than it was. There are — when you are drawing
redistricting plans, especially when you're redrawing
the whole state in the complexity we are, there are
many different things you have to look at as you go
along through the process.
[330] My job primarily was to guide through the —
the thicket of information and try and present the
information in a manner that the chairmen could
understand it and could visualize it, and it would be
user friendly for them, I might say. And I think that’s
not as wide ranging a — a job as you inferred in your
question.
1675
Q. Well, you were reading more into my question
than I intended.
I would like for you to describe for the Court the
information that you presented to Representative
Lewis and Senator Rucho relevant to this Section 2
liability question. What did you give them?
A. Again, I gave them the information they needed
on all the minority districts what was possible, where
they could be drawn so that they could make an
informed judgment as to how they wished to proceed.
Q. Okay. And what information did they need to
make that decision?
A. They needed to know where the minority
population was located ~— in — in what places, in - in
what areas of the state — what the possibilities were of
districts that could be drawn, and what the possible
levels of — of the demographics of all the segments of
the population were.
[331] Q@. And would they need, also, to know about
the degree to which African American candidates had
been elected from districts?
A. It — that’s really not my job to make that
determination.
Q. Okay. So that was not information you gave
Senator Rucho and Representative Lewis?
A. No.
Q. Now, you testified, I believe, that you thought
there was racially polarized voting in North Carolina.
A. All my prior experience in this state and
everything that I had heard would have led me to that
conclusion.
1676
Q. You testified in the Shaw case, | believe.
A. I did.
Q. And were you asked in the Shaw case about the
presence of racially polarized voting in North
Carolina?
A. Shaw was a long time ago, so...
Q. So you don’t remember.
A. I don’t remember my testimony. | do — yes.
Okay.
Q@. Let me show you — whoops.
Dr. Hofeller, in your dep — in your testimony from
the Shaw case — I have the full transcript here if you
want to look at it. But I put in front of you — I’m [332]
sorry. It was your deposition in the Shaw versus
James Hunt on Wednesday, December 8, 1993, at the
Law Offices of Maupin, Taylor & Ellis in Raleigh,
North Carolina. I have included the pages that show
the counsel who were present.
And I would ask you, if you would, please, to turn to
the bottom of page 231 and ask you to read beginning
at line 23 on 231 — no, no. I’m sorry. T have — I have
directed you to the wrong place.
If you would read — if you would go to page 233, Dr.
Hofeller, and look at line 3. And were you then asked
the question: Did you begin today with an opinion
about whether or not there exists racially polarized
voting in North Carolina? Your answer was: Yes.
Do you see that?
A. Yes, my answer was “Yes.”
Q. Okay. And then you were asked:What is your
opinion? And you say your opinion is that racially
1677
polarized does — voting does exist. And then you were
asked: And is it your opinion that it exists at the level!
as required to be shown under the Gingiles standard?
And you said — what? I think it would vary -— probably
vary from area to area in the state.
Is that correct?
A. Yes.
[333} Q. And was it your opinion in 1993 that
racial racially polarized voting in North Carolina
varied from place to place?
A. Yes.
Q@. Was that — was that your opinion in 2011?
A. I think that it would be mathematically
impossible and unexpected to believe that the level of
polarized voting would be absolutely homogeneous
throughout the whole state.
Q. And
A. That would be a foolish statement.
@. Okay. And did you go on to testify at this
deposition in 1993 that you thought racially polarized
voting probably didn’t exist in the Raleigh Durham
area?
MR. FARR: Objection. That’s a misstatement of
what the testimony is.
JUDGE RIDGEWAY: Sustained as to the best
evidence. If you want to read into the record that
portion you're referring to or direct him to that, that
would be fine.
BY MR. SPEAS:
1678
Q. Yeah. Let me just read the question you were
asked at the bottom of page 233. You were asked: Do
you have an opinion as to whether you would find
racially polarized voting in other portions of the state?
Your [334] answer: I’m sure you would find it in other
portions. I am not in a position to go through the state
area by area and say that it is 90, 80, 10. Again, I’ve
read a lot of materials that have been submitted by
people with regard to these districts, and I have been
for instance, I read in several papers the opinion that
in the
Raleigh Durham area, there is evidently a very low
degree of racially polarized voting and some people are
even contending that the present district in that area
would elect a black. I didn’t actually see anything to
back that up. It would be interesting to see how
anybody else feels about that.
Was that your opinion in 1993?
A. I think you have to conclude the sentence.
Q. “But I haven’t done any specific studies.”
A. Thank you.
Again, I think that dovetails with the answer I gave
you previously that there could be racially polarized
voting throughout the entire state, but it would be an
unwarranted assumption to say it was homogeneous
in its level throughout the whole state.
Q. So racially polarized voting to the extent it
exists varies from place to place in the state?
A. It varies, yes.
Q. And you would need to look at each part of [335]
the state to decide whether it exists or not.
1679
A. You would have to doa racially polarized voting
study, yes.
Q. Allright. You didn’t do that study yourself?
A. I did not.
@. And did you ever follow up on whether with
your own study of whether racially polarized voting
existed in the Wake County area?
A. No. Once again, it wasn't part of the — of the
testimony — after the trial, there was really no need to
pursue that.
Q@. Dr. Hofeller, do you recall testifying in the case
of Boone versus Nassau County Legislature?
A. I didn’t testify.
@. Do you recall providing an expert report in the
case of Boone — Boone versus Nassau County
Legislature?
A. I-—Icompiled an expert study, yes. And I’m not
really absolutely certain — again, that was two years
ago — whether or not that was actually presented to
the court. I think that lawsuit might have been
truncated by a higher court decision.
MR. SPEAS: If 1 may approach the witness,
Your Honor, and hand him his report from that case.
Q. Dr. Hofeller, ’ve put in front of you a document
marked as Exhibit 518 to your deposition on [336]
August 10, 2012. Itis the expert report of Thomas B.
Hofeller — B. Hofeller in the case of — Boone versus
Nassau County Legislature. Do you recognize that as
a report you prepared?
A. Yes.
1680
Q. And would you turn to the last page of that
report and tell me the date of the report?
A. July 11th of 2011.
Q@. Okay. And would you turn with me to page 31
of that report — [m sorry — page 9 of that report,
paragraph 31. Are you there?
A. Yes.
Q. I’m going to read you a sentence from your
report on July 11, 2011 and ask you whether you agree
with it today: Some minority districts perform for the
minority when the minority voting strength is
considerably under 50 percent. Although this may
raise questions as to whether the racial polarization is
still legally significant, other percentages — others
require percentages well over 50 percent. The
determining factor is the degree of racial or ethnic bloc
voting and the partisan loyalty of the voters registered
in the party of the candidate.
Did I read that correctly?
A. Yes.
[337] Q. And does that reflect your opinion today?
A. That reflects my opinion in this — in the context
of Nassau County, yes.
Q. And in advising Senator Rucho and Representa-
tive Lewis in North Carolina, did you undertake to
make any determination whether some minority
districts in North Carolina performed for the minority
when voting minority strength is considerably under
50 percent?
A. No.
1681
Q. Did you yourself undertake to make any
determination whether districts in North Carolina
performed — some districts in North Carolina
performed for minority districts at levels under 50
percent?
A. Again, that wasn’t part of my task for which I
was retained. I was retained to guide the plans to
completion in a timely manner.
@. So you did not provide them any information in
that regard?
A. Well, I believe that information would have
been available for other — other sources within — from
other sources within the state. Again, as I said before,
I had enough work to do getting the districts drawn
with all the moving parts of that process.
Q. So you didn’t — you simply didn’t give them that
information. It was available someplace else, in [338]
your view.
A. It was not my job to do that.
Q. Okay. Do you know whether Senator Rucho and
Representative Lewis undertook that analysis?
A. I think you would have to ask them that
question.
Q. You do not of your own opinion — of your own
knowledge know whether they cid or not.
A. No.
@. Dr. Hofeller, let me turn to a slightly different
subject. You testifted about Senate District 32 on
direct examination. I would like to ask you some
questions about that.
1682
MR. SPEAS: And, Your Honors, I want to hand the
witness a package of maps of District 32. It actually
doesn't have an exhibit number on it yet. I think I need
to put that exhibit number on it.
Do you know what number that will be?
MS. EARLS:
MR. SPEAS:
MS. EARLS:
MR. SPEAS:
MS. EARLS:
Can you make it 34?
30 what?
Can you make it 34?
34.
I know I’m skipping.
BY MR. SPEAS:
Q. Senator — Doctor, I put in front of you a set [339]
of maps of District 32. The first page of this document
is the District 32 as first proposed in the VRA plan. Do
you recognize that map?
A. Yes.
Q. And the second page is a more detailed map of
that district as originally proposed. Do you recognize
that?
A. It is the same map.
Okay.
POP
Yes.
The same boundary.
And the third page is District 32 as enacted.
Q. And from that page of Exhibit 32, can you
identify the — can you tell whether the precincts have
been split or not?
A. Certainly.
1683
Q@. And if you would look at the next page, is this a
— the boundaries of Rucho Senate 2 as enacted with
some highways also included?
A. Yes.
@. And the last pages of this document, Dr.
Hofeller, are the split VTD report for the Senate
District 32 as enacted. Do you recognize that as a VTD
split report from the Legislature?
A. I think I would have to take your word on [340)
whether or not it came from the Legislature or not, but
I recognize it as a split VTD.
Q. Is—is one of the reports the — you can generate
from the Legislature’s database a split precinct report?
A. I believe so, although I never generated such a
report. The legislative system is extremely slow.
@. Now, looking at — back at the first page of
Exhibit 32, Dr. Hofeller, you drew that district for
Senator Rucho, correct?
A. I-—Ithink I would characterize it as I drew it
for the General Assembly.
Q@. You drew it under the directions of Dr. Rucho.
A. Again, I — I would like to characterize that —
@. All right.
A. — accurately.
Q.
Okay. All right. That — that
As you drew this district, did it contain any split
precincts?
A. I believe it did.
Q. Could you identify those for me?
1684
A. I’m not absolutely certain, because I believe — I
believe that Precinct 32 was split.
Q. Okay. I think
[341] A. Butasthe map is colored and shaded and
such, I would have to — you would have to give me a
minute here to trace around that group.
Q. Okay.
A. Maybe also 34, but I’m not sure.
Q. Okay.
A. It’s not the best copy I’ve ever seen.
Q. No, it’s not; and | apologize for that.
If you will look now at Rucho Senate District 32 as
enacted, which is the third page, would it — would it be
fair to say comparing the plan, Senate District 32 as
first presented and Senate District 32 as enacted, that
the final plan splits a large number of precincts?
A. Ibelieve if you'll look on page 7, it says 43 splits.
So...
Q. Now, did you revise Senate District 32 from its
original form to its enacted form? Are you the one who
drew the enacted district?
A. I think to be precise, yes, that — 1 drew the
enacted district.
Q. Okay. And did you the large — did you split
these precincts on your own or at the direction of the
General Assembly?
A. I think, as I stated before in my testimony
today, that the policy decision was made to bring the
[342] racial demographics up to the level of the SCSJ
district and the — the previous district, the — the
1685
original district. And that also was complicated by the
fact that the district had to be drawn at a much higher
population than the SCSJ plan mainly because the
SCSJ plan did not follow the dictates of the Stephenson
county grouping criteria and also because it couldn’t
be drawn ata—a negative ideal population because it
would drive the — the — the partner district in the — in
the cluster over the allowable positive limit. In order
to do that and achieve that level, those precincts had
to be split.
Q. And is it true — I’m not sure that 1 understood
your testimony — but is it true that these precincts, 43
of them, were split in order to increase the African
American population in District 32?
A. To bring it up to the level that was present in
the former district and in the district that was
presented to us by AFRAM or SCSJ, yes, it was true.
Q. Okay. So the African American population in
District 32 increased from the time it was first
introduced until it was enacted; and in order to
preduce that increase, precincts were split.
A. It would not have been — would not have been
possible without splitting those precincts.
MR. SPEAS: That — that would conclude my [343]
questions of this witness, Your Honor.
JUDGE RIDGEWAY: All right. Are there other
questions on behalf of the Plaintiffs?
MS. EARLS: Yes, Your Honor.
JUDGE RIDGEWAY: All right. We intend to break
around 12:30 for lunch, but if you — if you need a few
minutes to —
1686
MS. EARLS: No, Your Honor. In fact, Pll try
to finish by then.
JUDGE RIDGEWAY: Okay. That’s fine. There’s
no — no rush, but I’m just —
MS. EARLS: Thank you.
JUDGE RIDGEWAY: telling you just sort of our
schedule.
MS. EARLS: Thank you.
JUDGE RIDGEWAY: Go ahead, Ms. Earls.
CROSS-EXAMINATION
BY MS. EARLS:
Q. Dr. Hofeller, good afternoon. My name is Anita
Earls, and I just have a few questions for you.
I want to start with the testimony you gave about
Exhibit — Defendants’ Exhibit 14. And this is — if you
have that in front of you. I can hand up a copy if you
don’t.
A. Would you turn around and show that to me?
[344] Q. Yes. Defendant’s Exhibit 14 is the chart
you prepared with —
A. Okay. 1 think I have that in my stack.
Q. Thank you.
You testified that all of the yellow shaded boxes on
the right hand side of the chart indicate places where
precincts were split for political reasons. Is that
correct?
A. Yes.
Q. And | — I just want to make sure we're clear
about what kind of data you had when you split a
1687
precinct — And so on this chart, you have, for example,
in the fourth column over, the population in each split.
And that’s the total population inthe so when you
split we can, just say, look at Wake County 01 33.
When you split that between Districts 4 -
Congressional Districts 4 and 13, you can say there
was a total of 1,842 people in the part in District 4 and
335 in the part in District 13. Is that correct?
A. Yes.
Q. But you couldn't say with you could estimate,
but you couldn’t say with certainty how many
registered voters or how many people who voted for
Obama were in that part of District 4 that you put into
~— or, I mean, that part of the split that you put mto
1345] Congressional District 4, correct? Because the
data for Obama’s election or for registered voters is
only kept at the — at the precinct level. It doesn’t go
down to the census block level. Is that correct?
A. In part. The —
Q. Youcan make an estimate based —- you can ~ you
can make assumptions about where the voters might
live within the precinct and you can make estimates,
but you don’t have — you don’t know the exact number.
A. Again, in part. The — the GIS system,
Maptitude,: quires that the data be present in some
form at all kh els of geography, census geography.
Q. But when you go below the
A. Could I
MR. FARR: Let him finish his answer, please, Your
Honor.
A. Okay. We've discussed before in my deposition
how political data is allotted within VTDs, so — and —
1688
and when you split a precinct, that is the acceptable
method of handling political data throughout a
redistricting field
Q. Right.
A. throughout the country. We would have a good
idea of how many voters are in each side of the split by
the proportion of the population that is in each [346]
side of the split.
Q. But you wouldn’t know whether they were
registered Democrats or registered Republicans?
A. Specifically, no.
Q. Thank you.
Turning to Defendants’ Exhibits these should be in
the notebook — Exhibit 7 through 10, these are the
series of maps that you testified you prepared.
A. Yes.
Q. Ill give you a moment to look at those.
(Pause. )
Q@. You're familiar with the measure — the
mathematical measures of geographic compactness
that are contained in the Maptitude software, correct?
A. Yes.
Q. And how — do you — how many measures do they
include in that software package?
A. I believe there’s seven.
Q. And do you —
A. Once again, it’s been a little while since I’ve had
it before me, so...
Q. Seven or eight possibly and —
1689
A. Yeah. Some of them take much longer to
compute than others, as we learned.
Q. Thank you.
[347] My question to you is: I’m correct, am I not,
that this — that merely measuring the distance from
one corner of the district to the other is actually none
of the — that’s only a — a rudimentary measure of
compactness and, in fact, is not any of the seven or
eight measures that are contained in the software.
A. I was not presenting that information in the
context
Q. I understand.
A. of acompactness report. I merely wished to —
to inform the Court that the distance traversed by the
district to reach the population centers that was
incorporated into it was that amount of mileage, if not
more, if you stayed within the district.
Now, the — the — the farthest distance between two
points in a district would allow you to compute the
circumscribing circle, which would be the beginning of
one of the compactness measures.
Q@. Okay. But if — if — to the extent that
compactness is relevant to whether or not a district is
a racial gerrymander or — which is part of the question
for some of the districts in this case, there are seven or
eight measures in — in the software that — that
computes geographic compactness and none of them
are this measure.
[348] A. Again, l have torepeat: This was not
presented as a compactness factor at all, so I — I don’t
know how that’s relevant.
@. Well, I didn’t ask you the relevance.
1690
A. Okay.
Q. Ijust wanted to ask the question. Thank you.
Let me turn to Congressional District 12, and you
talked about thematics and you talked about the layer
of data that you were using when you were drawing
various districts.
But isn’t it true, Dr. Hofeller, that also contained in
the Maptitude software program and on your screen
when you’re drawing districts is a box with district
statistics in it, and it - when you — anytime you make
a change to the district, it shows you the new
composition of the district using those statistics and
that those statistics would include total population,
voting age population, and — and racial data?
A. It would depend upon what you put on that
screen.
Q. But that is — that is —
A. Well -
Q. —available in the software.
A. —lJet me explain. Could I explain?
Okay. The — the district change pop up [349] which
you have to ask the system to pop up. I put it on the
lower — lower right. Other people put it other places,
mainly to get it out of the map — gives you a listing of
the summary fields that you direct Maptitude to keep
when you set up the plan.So if you don’t have those in
the summary field selection when you are using the
plan, they would not appear in that box.
So I don’t want — want to imply that every piece of
data that is in the — the database would be in that box;
otherwise, you would spend all day going up and down
1691
that box trying to find out what you wanted. So it’s —
it’s a variable just as a — a thematic would be.
@. But my question to you is: Even though the
thematic that you’re looking at might have political
data or partisan data, it is — it is at least available to
you to also have on the screen a box that shows racial
data.
A. Well, just as it is available to you to change the
thematic, you can change what displays within that
box.
Q. All right. So you testified about the - the
criteria that you were looking at in drawing
Congressional District 12, and I just want to ask you
about Section 5 of the Voting Rights Act. Guilford
County is covered by Section 5 of the Voting Rights Act
{350} and is also a county that’s included in the
Congressional District 12, correct?
A. Itis.
Q. So I assume that you were — when — when you
were drawing Congressional District 12, you were
making an assessment about whether or not that
district — as you were drawing it — that district would
comply with Section 5 of the Voting Rights Act.
A. Section 12 is not a — a — or I'm sorry.
Congressional District 12 is not a voting rights
district. So the important factor there was not the
compliance with Guilford County. It was the Obama
percentage in the precincts.
There had been no Section 5 objection raised that I
can recall] to the composition of the old District 12; and
the new District 12 was modeled after the old District
12, except more of Guilford County was in it. And that
was a political decision, not a racial decision.
1692
So when — in the in the — the baseline planI guess
you could call it a baseline plan when you're talking
about Guilford County — in the — in the preceding
redistricting, Guilford County was in three different
districts, if I recall it correctly — I’m not sure, though —
and no objections were raised to the Section 5 in — in
the Section 5 context of any of [351] those districts, so
there was no reason to really believe that it would be
raised now.
Q. So is it your testimony, then, that when
A. Idon’t think it has been raised, obviously.
Q@. I’m sorry. Are you
A. I’m sorry.
Q. Is it your testimony, then, that when you were
considering compliance with Section 5 of the Voting
Rights Act around the state — around the 40 counties
that are covered in the state, you were only
considering that where there had previously been a
Section 5 objection?
MR. FARR: Objection.
JUDGE RIDGEWAY: Overruled.
A. Im sorry. Could you ask that again?
Q. Right. When you were considering how your the
district you were drawing would comply with Section
5 of the Voting Rights Act, which covers 40 counties in
North Carolina, were you only considering the places
where prior Section 5 objections had been raised?
A. In the context of what set of districts?
Q@. The Congressional districts, the House districts
and the Senate districts.
1693
A. I-— well, we were talking about the Congres-
sional districts and now you’re asking to go to [352] the
— the whole map. And the answer was absolutely in —
particularly in the Senate and the — the House
of Representatives map — the State House of
Representatives map, we were intensely concerned
with makingensuring that African Americans had all
the representation they were legally entitled to have,
and that would include Section 5 considerations. You
were asking me about Section 5 in the context of the
12th District, I believe, of the Congressional map.
Q. Well, and your answer to me was that:We did
not consider Section 5 or Congressional District 12
because there had been no Section 5 objection to that
district. And so my question was: Does that mean that
when you were considering Section 5 compliance, you
were only looking at areas of the state where there had
been objections?
A. That doesn’t follow. Where — I — I that — that
was — my testimony, I believe, was that in the context
of the 12th District and the former 12th District to
which no Section 5 objection had been raised, that I
can recollect, that wasn’t a factor in the drawing of the
district. Certainly, when the plans were submitted to
DOJ, which incidentally was not my — my job, those
considerations would have been made by the
submitters.
[353] MS. EARLS: It’s 12:00 — it’s 12:30 and this
might be a —
JUDGE RIDGEWAY: All right. We'll go ahead and
break. And if you need to, we’ll resume after the lunch
recess. That’s fine.
MS. EARLS: Thank you.
1694
JUDGE RIDGEWAY: We will recess, again, for an
hour and 15 minutes. So that will take us until a
quarter til 2:00. We’ll resume at that time.
(Court was in recess from 12:30 p.m. to 1:49 p.m. )
JUDGE RIDGEWAY: Welcome back, ladies and
gentlemen.
I believe, Ms. Earls, do you have further questions
for this witness?
MS. EARLS: No, I do not, Your Honor.
JUDGE RIDGEWAY: All right. Anything else for
the Plaintiffs?
MR. SPEAS: (Counsel moves head from side to side.
JUDGE RIDGEWAY: All right. Redirect?
MR. PETERS: No, Your Honor.
JUDGE RIDGEWAY: Thank you, sir. You may
step down.
THE WITNESS: Thank you, Your Honor.
MR. FARR: Your Honor
[354] JUDGE RIDGEWAY: Yes.
MR. FARR: we would like, with the Court’s
permission, to cal] two more witnesses. Yesterday we
heard testimony from Congressman Watt about a
conversation with Senator Rucho and the Court. I
don’t know if the Court reads the newspaper or not,
but the headlines in the newspaper yesterday were
reporting Congressman Watt’s testimony and “Rucho
doesn’t take the stand.” We would like to give Senator
Rucho a chance to respond to Congressman Watt’s
testimony. And we also have a witness to that
1695
conversation, Representative Ruth Samuelson, whom
we would like to put up.
We do not think this would be lengthy, and we
request in the interest of the deadlines that we have
that the cross examination be limited to what the
Senator Rucho and Representative Samuelson will
testify about.
JUDGE RIDGEWAY: All right. Let me hear the
Plaintiffs’ view on that proposal.
MR. SPEAS: Just one second. Your Honor.
(Pause.)
JUDGE RIDGEWAY: Hold on just a second. Let
me just confer with my colleagues.
(Judge Ridgeway, Judge Hinton and Judge
Crosswhite confer.)
[355] JUDGE RIDGEWAY: Yes, Mr. Speas.
MR. SPEAS: Your Honors, I'm assuming that these
two witnesses’ testimony would be limited to that very,
very narrow issue and these witnesses at this late date
would not be permitted to expand that testimony into
the areas generally relevant to the two issues y'all
have designated for trial.
With one caveat we would have no objection. We
have about an hour and 12 minutes left. We would
request that any cross examination of these two
witnesses not be counted against that hour and 12
minutes.
JUDGE RIDGEWAY: All right. Well, let’s — let’s
do this —
Yes, sir. Mr. Farr, do you —
1696
MR. FARR: Your Honor, we have no objection to
that proposal.
JUDGE RIDGEWAY: All right. Good. We'll allow
the testimony. [t should be limited in scope, and I
think the best way to limit it is to just simply say the
cross examination will be limited to the scope of the
direct. So if the Defendants expand beyond that
conversation, then in all fairness, the Plaintiffs will
have an opportunity to cross examine on any orders
that have importance.
[356] MR. FARR: Your Honor, if — if I attempt to
expand it, would you please object to my question?
JUDGE RIDGEWAY: Yes. We will.
MR. FARR: We'd like to call Ruth Samuelson to the
stand, please.
JUDGE RIDGEWAY: And just for clarification,
we're not going to keep time for either parties on this
— on this line of questioning. I — I anticipate it will be
short for both, and I think that we’re doing well on our
time, so we're just not going to keep time for either
party. All right.
WHEREUPON, RUTH SAMUELSON, was called
as a witness, having been first duly sworn, and
testified as follows:
JUDGE RIDGEWAY: Mr. Farr.
DIRECT EXAMINATION
BY MR. FARR:
Q@. Could you please state your name for the
record?
A. Ruth Samuelson.
1697
Q. And, Ms. Samuelson, do you happen to be a
member of the North Carolina General Assembly?
A. Iam in House District 104.
@. And where is that district located?
A. Part of South Charlotte.
Q. And do you happen to know Senator Bob Rucho?
1357] A. Ido.
Q@. Do you happen to know Congressman Mel
Watt?
A. Ido.
@. During the redistricting process and before
plans were enacted, did you attend a meeting at
Senator Rucho’s House which included Congressman
Watt?
A. Idid.
@. Could you tell the Court what you recall
Senator Rucho and — and Congressman Watt
discussing at that meeting?
A. We looked over a map of the proposed district,
talked a little bit about where the lines were.
Congressman Watt asked a few more questions for
additional details. Senator Rucho said he would get
the details; asked if he was okay with the plans.
Congressman Watt demurred; but indicated, you
know, there was no notice
MR. SPEAS: Objection to what he indicated.
A. Okay. Said he would like more information.
JUDGE RIDGEWAY: Well, let me let me rule on
that. I'm going to — | think it would be allowed for
corroborative or impeachment purposes of a witness
1698
who has already testified. It’s not being allowed for the
truth of the matter of what was said, but [358] for that
limited purpose, so it would be allowed.
So go ahead, ma’am.
A. Indicated that he wanted some more infor-
mation before he could completely commit; but in my
opinion, I didn’t see any problems.
MR. SPEAS: Objection.
A. Okay.
MR. SPEAS: I’m sorry. [ll withdraw that.
BY MR. FARR:
Q. All right. Representative Samuelson, did
Senator Rucho make a statement during that meeting
that he had been told by leadership that he needed to
ramp up Congressman Watt’s district so the black
population would go over 50 percent?
A. No.
Q. Did Senator Rucho tell Congressman Watt that
he was going to have to go out and sell this 50 percent
plus district to the black community?
A. No.
Q. Did Senator Rucho make any comments during
this meeting about the potential racial composition of
Congressman Watt’s district?
A. Not that I recall. They mostly talked about lines
and precincts and that sort of thing.
[359] MR. FARR: Al! right, sir. That’s all I have.
JUDGE RIDGEWAY: Cross examination?
MR. SPEAS: Just a couple questions.
1699
CROSS-EXAMINATION
BY MR. SPEAS:
Q@. Representative Samuelson, do you recall the
date of that meeting in Charlotte?
A. No. But it was either a Friday or a Saturday.
@. Okay. And you testified you were there,
Representative Rucho Senator Rucho was there and
Congressman Watt. Was anybody else there?
A. His wife — Rucho’s wife may have been in the
House, but I don’t recall.
Q. Was anybody there with Congressman Watt?
A. No.
Q. Okay. And do you recall the time of this
conversation in Senator Rucho’s House in relationship
to the status of the Congressional plans in the
Legislature itself?
A. [Tm not sure I understand what you mean by
“status.” I'll say process wise, I knew that this was
part of the process that we had to go through on
releasing the maps and that — and, as I recall, that
map had been released, but we were supposed to show
it to [360] him. My understanding is I was there to
witness that we had followed the process to show him
the map that was supposed to be shown.
Q. Now, there was more than one Congressional
map. Do you remember which of the maps was on the
table for discussion at this occasion?
A. What I would have called the new map. Now,
there might have been the other one there, but I don’t
recall that it was.
1700
Q. Do you — by “new map,” do you mean “first
map”?
A. Since I was not in the process of drawing all the
maps, it would be whichever one needed the approval.
Q@. So at the point you had the conversation,
whatever the exact date, a Congressional map was —
had been publicly released.
A. That’s what I recall. I could be incorrect, but
that’s what I recall.
Q. Did you meet with Congressman Watt and
Senator Rucho on any other occasion?
A. Not about redistricting. We've known each
other for a long time.
Q. I-—I understand.
A. Um hum.
MR. SPEAS: Thank you.
(361] JUDGE RIDGEWAY: Okay. Ms. Earls, any
further questions?
MS. EARLS: No, Your Honor.
JUDGE RIDGEWAY: All right. Anything further?
MR. ®ARR: No, Your Honor.
JUDGE RIDGEWAY: Thank you, ma’am. You
may step down.
THE WITNESS: Thank you.
JUDGE RIDGEWAY: Further evidence?
MR. FARR: Yes, Your Honor. We would like to call
Senator Bob Rucho.
1701
WHEREUPON, ROBERT RUCHO, was called as a
witness, having been first duly sworn, and testified as
follows:
JUDGE RIDGEWAY: Mr. Farr.
MR. FARR: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. FARR:
Q. Could you please state your name.
A. Robert Rucho.
Q. And are — Mr. Rucho, are you a member of the
North Carolina General Assembly?
A. Yes, sir. — Iam a member of the North Carolina
Senate.
Q. Okay. And what district are you representing?
{362] A. 39.
@. And what county is that in?
A. Mecklenburg County.
Q@. And were you the chairman of the Senate
Redistricting Committee during the redistricting
process?
A. Yes.
Q. Do you recall a meeting at your home between
you, Congressman Watt and _ Representative
Samuelson?
A. Yes.
Q. Can you tell the Court when that took place?
A. It was a Friday or Saturday, but it was the we
released the first map of the Congressional plans on
1702
the Ist of July, which was a Friday. So it was the
Friday, the 1st of July. And then we had a meeting —a
public hearing on the 7th. So what we were doing was
sharing with Congressman Watt a map of his district,
the 12th District.
Q. Okay. And who was present for this meeting?
A. Representative Samuelson, Congressman Watt,
myself, and my wife was in the house.
Q. All right. And can you tell the Court what you
recall about what you said during this meeting and
what Congressman Watt said?
A. Tmsorry. Repeat that, please, sir.
Q. Can you tell the Court what you recall today
[363] about what you said at this meeting and what
Congressman Watt said at the meeting?
A. Well, this was a follow up meeting from one that
I had earlier in Raleigh with Congressman Watt, and
what we were showing him is the — the map of the
district that we were presenting as part of — of that
Friday release of the Congressional map, specifically
on the 12th District only. That was what we had
there. There was very limited information on StatPac.
Some of the questions that he asked were about that.
And I said, We'll be able to provide you some more in
depth information, and he was comfortable with that.
Q. Okay. Do you recall any comments made by
Congressman Watt?
A. Just the fact that he was interested in what we
were presenting. It did achieve what he talked about
from the previous meeting, and that was to pretty
much keep the 12th District in the same counties as
our — as what was in the 2003 plan, and t
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