They say the best defense is a good offense, and GOP legislative leaders appear to be attempting to heed that old adage.
The legislative defendants in North Carolina’s partisan gerrymandering trial, Common Cause v. Lewis, started presenting their case this week and, simultaneously, started sending out daily press releases attacking the plaintiffs’ case.
It started after Eddie Speas, a Raleigh attorney representing the plaintiffs, objected to the legislative defendants’ first witness testifying as a North Carolina politics expert.
“News release: After plaintiffs’ experts mansplained for a week, plaintiffs object to defendants’ female expert,” stated a subject line in an email from GOP legislative leaders.
Instead of highlighting the testimony of the witness in question, defendants attacked Speas for an objection based on her background that was ultimately overruled by the three-judge panel.
Karen Owen is an assistant professor of political science and the director of the Thomas B. Murphy Center for Public Service at the University of West Georgia. She was asked by the legislative defendants to review political representation in the North Carolina General Assembly and to look at the state House and Senate elections in 2018 to determine which ones were competitive.
“In regards to political representation, I wrote and I find that members of the General Assembly in North Carolina are representing constituents and voters,” she said Monday.
She talked about how legislative staff helped lawmakers by taking calls and emails and serving in an ombudsman role, which is an important part of political representation. She also said lawmakers did not ask constituents about their political preferences before responding to or helping them.
Owen continued testifying Tuesday morning about how members of any legislative body want their work to matter and to count because they’re banking on reelection and getting the votes of constituents.
“Just because you identify to a party doesn’t mean your ideology necessarily is in one place in that party,” she said, expounding on how Republican representatives can still represent Democratic voters. “We as voters have a choice when we go to the polls….We don’t always get the person that we want elected.”
Her findings on competitive 2018 elections were that either candidate could have won, but incumbency advantage ultimately worked against the Democratic candidates.
She admitted during her cross examination that she didn’t talk to any North Carolina voters, legislators, former legislators or winning or losing election candidates from 2018 in performing her research. She relied instead on her experiences, expertise, newspaper and blog reports and a couple of interviews with North Carolina legislative staff members to write her expert report.
Owen ended her testimony by responding to a question from Speas: she said she believed political representatives should not discriminate against voters based on partisan affiliation in any situation.
‘Garbage in, garbage out’
The legislative defendants’ second expert witness, Janet R. Thornton, spent the bulk of her testimony criticizing three of the plaintiffs’ four expert witnesses. She said that the computer codes those witnesses created achieved their desired results by overlooking what could have been a broader number of compliant maps to focus in on maps that showed smaller partisan biases.
“I think of it as garbage in, garbage out,” she said.
Thornton analogized it for the court to someone losing their keys in a garage but only searching for them in a bedroom.
“With these approaches, you can get stuck in certain areas of the map, just as you’re stuck in the bedroom looking for the keys,” she said.
During cross examination, she said she did not have sufficient time to re-run the plaintiffs’ experts codes with better information, so she didn’t have suggestions for how to improve the research.
During her testimony, GOP legislators sent out another press release, similarly criticizing the plaintiffs’ experts testimony and research methods.
“For most of the last week of North Carolina’s redistricting lawsuit, lawyers for the Democratic Party and Common Cause have bored the court with ‘expert’ testimony comprised of what U.S. Supreme Court Chief Justice John Roberts has called ‘sociological gobbledygook,'” states the email from Sen. Ralph Hise (R-Montgomery).
They accused the experts of cherry-picking election data to rig their results for the court and of building their maps on incorrect redistricting criteria.
The plaintiffs’ expert witnesses were Jowei Chen, an associate professor of political science at the University of Michigan; Christopher Cooper, a political science professor at Western Carolina University; Jonathan Mattingly, a professor of mathematics at Duke University; and Wesley Pegden, a mathematics professor at Carnegie Mellon University.
Chen, Mattingly and Pegden all testified about separate methods of research they used to compare the enacted 2017 legislative maps to other possible maps had the GOP mapmaker, the late Thomas Hofeller, used less partisan bias. They also said his files – which were turned over to the plaintiffs by his daughter after he died – showed his partisan bias was intentional.
Cooper analyzed Hofeller’s enacted maps. His testimony constituted the first time those maps and Hofeller’s files were revealed to the public.
‘Partisanship was front and center’
Cooper showed the court the partisan color coding Hofeller used. In the Senate map, Hofeller used what Cooper compared to a traffic light system – red and pink represented Democratic areas for Hofeller to know to stop and green represented Republican areas for him to push. The partisan color coding for the House maps was different, but still highlighted which areas voted Republican and which voted Democratic.
“It shows that partisanship was front and center,” he told the court.
Hofeller’s lines, he added, were drawn with “remarkable precision.” In particular, Cooper pointed out a district encompassing High Point and said it was “kind of like a work of art.”
Cooper summarized the whole of his findings by telling the court that Hofeller used his discretion to draw lines that benefited one political party at the expense of the other.
During cross examination, an attorney for the legislative defendants appeared to be critical of Cooper for not including a gerrymandering standard in his research or defining what exactly constituted a gerrymander.
“I do not have a single number, a single line in the sand,” he said, adding that defining a gerrymander was not the point of his expert report. “I think the way gerrymandering works are small decisions made to benefit one party at the expense of another party. Does the tug-of-war game start with us in the same position, or does the game of tug-of-war start with you in the front or me in the front?”
Mattingly went over his mathematical research with the court in great detail and showed in animations he made how the enacted 2017 legislative maps amounted to partisan gerrymandering over the course of several years.
He said the 2017 plans were designed to create a firewall to protect Republicans.
Pegden’s findings were not dissimilar, though he used a different method for analyzing the maps. He started from the enacted maps and made small random changes to see if it would have a consistent effect over a period of time.
He showed the court his approach in a colorful animation and said his findings, as with the other experts, revealed the maps to have been partisan outliers. He also described how Hofeller clearly used intent to accomplish that end.
“These maps are so gerrymandered that no matter how you do the analysis, no matter who does the analysis, no matter which side is doing the analysis, you reach the same answer with any analysis that you do,” he said.
He likened the situation to someone who traveled to an entirely new city wanting to try a typical restaurant and relying on a taxi driver to make the recommendation. If that person went to the restaurant and it was terrible, then did some research and found out it was amongst a sea of amazing, five-star restaurants, that information would provide a good enough reason to be mad at the taxi driver.
Pegden then told the court they could do some homework: go home, design a city and decide whether to put one bad restaurant – is it in a sea of good restaurants or in a sea of bad restaurants? His point was that Hofeller had all the information and made his decisions with intent.
“That was enough to know that this map was done on purpose,” he said.
The trial will continue at 9 a.m. today with testimony from more of the legislative defendants’ witnesses. It’s expected to conclude Friday. Documents filed in the case, including the Hofeller maps, can be accessed here.
For live updates during the trial, follow reporter Melissa Boughton on Twitter.