GOP ex­pert ad­mits er­rors in ger­ry­man­der trial tes­ti­mony

The News & Observer - - Front Page - BY WILL DORAN wdo­[email protected]­sob­server.com

The trial chal­leng­ing North Carolina’s leg­isla­tive lines as un­con­sti­tu­tional par­ti­san ger­ry­man­ders took a dra­matic turn Thurs­day when an ex­pert wit­ness for Repub­li­can law­mak­ers ad­mit­ted some of his tes­ti­mony on their be­half was in­cor­rect.

The chal­lengers used that ad­mis­sion to ask that tes­ti­mony by Clare­mont McKenna Col­lege po­lit­i­cal sci­en­tist Douglas John­son be struck from the record.

“His tes­ti­mony in his di­rect (ex­am­i­na­tion) is just in­cor­rect,” said Daniel Ja­cob­son, a lawyer who rep­re­sents the re­dis­trict­ing re­form group Com­mon Cause NC. “The num­bers are wrong.”

The three-judge panel over­see­ing the case agreed to strike parts of John­son’s tes­ti­mony.

Wake County Su­pe­rior Court Judge Paul Ridge­way, who is lead­ing the panel, said North Carolina’s rules for ex­pert wit­nesses say that “his opin­ions must be the prod­uct of re­li­able meth­ods and prin­ci­ples ... and the prin­ci­ples used by Dr. John­son were not re­li­able.”

It’s not clear yet how the de­ci­sion will af­fect the out­come of trial, which is still on­go­ing. But ex­pert wit­ness tes­ti­mony is im­por­tant in cases like ger­ry­man­der­ing chal­lenges, which rely on highly tech­ni­cal ar­gu­ments and data.

A main is­sue has been the per­sonal files of the late Tom Hofeller, a well-known map­maker re­spon­si­ble for re­dis­trict­ing in North Carolina and other Repub­li­can-con­trolled states. Hofeller drew the maps be­ing chal­lenged in this case in 2017, to re­place North Carolina’s maps from 2011 — which Hofeller also drew — that had been over­turned as un­con­sti­tu­tional racial ger­ry­man­ders.

This case is chal­leng­ing the maps used to elect North Carolina’s state leg­is­la­ture. It’s dif­fer­ent from the case that ended last month, which had chal­lenged North Carolina’s maps for the U.S. House of Rep­re­sen­ta­tives. In that case, the U.S. Supreme Court ruled in fa­vor of Repub­li­cans and did not over­turn the con­gres­sional maps. This cur­rent case over the Gen­eral Assem­bly maps is in state court, not fed­eral court.

The plain­tiffs in this case, who in­clude the North Carolina Demo­cratic Party as well as Com­mon Cause, say Hofeller’s files show he didn’t fol­low the rules when draw­ing North Carolina’s maps. He used racial data and com­pleted much of his work be­fore the leg­is­la­ture ever ap­proved the rules he was sup­pos­edly bound by, they say.

But Repub­li­can law­mak­ers have de­fended the maps they ap­proved, say­ing any­thing on Hofeller’s per­sonal com­puter was merely a hobby, and not of­fi­cial work for the leg­is­la­ture. And John­son had tes­ti­fied for them that Hofeller’s per­sonal maps were not ac­tu­ally all that sim­i­lar to the maps the leg­is­la­ture ul­ti­mately ap­proved.

But on Thurs­day, John­son ad­mit­ted to sev­eral er­rors un­der cross-ex­am­i­na­tion.

Those in­cluded, in one ex­am­ple, an ad­mis­sion that his anal­y­sis left out 11 dis­tricts that had the ex­act same shape in both Hofeller’s per­sonal files and in the maps that were ul­ti­mately adopted by the leg­is­la­ture.

Ja­cob­son, the Com­mon Cause at­tor­ney, asked John­son, “You don’t think that in­clud­ing those would have sig­nif­i­cantly changed your calculatio­ns?”

John­son re­sponded he still stands by his find­ings, say­ing, “It would have been a change in de­grees, but not a change in con­clu­sion.”

Ja­cob­son con­tin­ued to press John­son on how he could stand by his find­ings “when you don’t know what the cor­rect num­bers are.”

The judges agreed, rul­ing to strike all of John­son’s tes­ti­mony in which he com­pared Hofeller’s maps to the maps en­acted by the Gen­eral Assem­bly, as well as com­par­ing Hofeller’s

maps to maps Com­mon Cause had sub­mit­ted in a dif­fer­ent court case in 2017.

That re­lated in part to a state­ment that N.C. Senate leader Phil Berger’s spokesman, Pat Ryan, made to The News & Ob­server ear­lier this month about the case.

Ryan had said “the Hofeller play maps are more sim­i­lar to what Com­mon Cause sub­mit­ted to the fed­eral court in 2017 than the maps en­acted by the leg­is­la­ture.”

Ja­cob­son asked John­son on Thurs­day if Berger’s of­fice got that in­for­ma­tion from him, and if it was based on the anal­y­sis he now ad­mits was flawed.

“Cor­rect,” John­son said. “I prob­a­bly owe Pat Ryan an apol­ogy.”

TRIAL NEAR­ING THE END

This trial is ex­pected to wrap up Fri­day.

Ear­lier this week, John­son was one of sev­eral wit­nesses that Repub­li­can law­mak­ers called on.

On Wed­nes­day, Repub­li­cans called on Bill Gilke­son, a Raleigh at­tor­ney and for­mer Gen­eral Assem­bly staffer. After North Carolina’s 2011 maps were ruled un­con­sti­tu­tional, Gilke­son helped Democrats draw up pro­posed re­place­ments.

Gilke­son tes­ti­fied that he dis­cussed both racial and par­ti­san data of the dis­tricts with some Demo­cratic law­mak­ers. Many of those dis­cus­sions hap­pened at the Raleigh of­fices of Nexus Strate­gies, the po­lit­i­cal con­sult­ing firm that ran Demo­cratic Gov. Roy Cooper’s 2016 cam­paign.

Gilke­son’s maps were not ap­proved by the Repub­li­can-led leg­is­la­ture, which went with Hofeller’s maps in­stead. But since a large part of this trial fo­cuses on Hofeller’s use of racial and par­ti­san data, and the Demo­cratic Party is one of the plain­tiffs, Repub­li­cans high­lighted Gilke­son’s tes­ti­mony with strong crit­i­cism.

“While Gov­er­nor Cooper was calling Repub­li­cans ‘tech­no­log­i­cally di­a­bol­i­cal,’ his own cam­paign man­ager was help­ing Democrats draft maps to max­i­mize their ad­van­tage us­ing racial and po­lit­i­cal data,” said Repub­li­can Sen. Ralph Hise of Mitchell County in a press re­lease Thurs­day morn­ing. “The hypocrisy is astounding.”

Hise is the NC Senate’s lead law­maker for re­dis­trict­ing. His coun­ter­part in the House, Repub­li­can Rep. David Lewis of Har­nett County, also tweeted: “After hav­ing gone through years of per­sonal at­tacks from the Dems, I find this hypocrisy re­pel­lent.”

The Repub­li­can law­mak­ers de­fend­ing the maps have also called on the party’s two ma­jor­ity lead­ers in the House and Senate, Repub­li­can Sen. Harry Brown of Onslow County and Repub­li­can Rep. John Bell of Wayne County.

The chal­lengers in the case have claimed that since Demo­cratic can­di­dates statewide re­ceived a ma­jor­ity of the votes in 2018, but did not win a ma­jor­ity in ei­ther the House or the Senate, the maps un­fairly de­prive Demo­cratic vot­ers of their right to voice their opin­ions in state pol­i­tics.

But Bell shot back against those claims, say­ing that North Carolina is mostly a ru­ral state, and ru­ral ar­eas tend to be more con­ser­va­tive. And he said that just be­cause he’s a Repub­li­can doesn’t mean his Demo­cratic con­stituents get ig­nored.

“We have a num­ber of small-town may­ors who are Demo­cratic, so we have to work to­gether,” Bell said, list­ing off a litany of Demo­crat-led towns in his district, which cov­ers parts of Johnston, Wayne and Greene coun­ties. “We work to­gether to bet­ter our district.”

Bell also pointed out that while he rep­re­sents this heav­ily agri­cul­tural area in the N.C. House, a Demo­crat rep­re­sents much of the same area in the N.C. Senate. Bell said that he and that Demo­crat, Sen. Don Davis, fre­quently work to­gether on is­sues like hur­ri­cane re­lief for their con­stituents.

“I rep­re­sent a lot of Democrats,” Bell said. “Per­son­ally, I’m a Repub­li­can. ... I’m well aware that with­out Demo­cratic sup­port and un­af­fil­i­ated sup­port, I would not get elected.”

ETHAN HY­MAN ehy­[email protected]­sob­server.com

From left, Judges Alma Hin­ton, Paul Ridge­way and Joseph Cross­white con­fer dur­ing the first day of the ger­ry­man­der­ing trial chal­leng­ing the North Carolina leg­is­la­ture district lines on July 15. The judges agreed Thurs­day to strike part of an ex­pert wit­ness’s tes­ti­mony.

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