Today our focus shifts from the expert witnesses to the fact witnesses – the people actually involved in the redistricting process. They are an eclectic group that includes Texas Legislative Council employees, lobbyists, political consultants, and others. Incidentally, Moritz College of Law has put the parties trial briefs (from Phase I of the redistricting hearing) online; the briefs were filed on July 25th, and are available at http://moritzlaw.osu.edu/electionlaw/litigation/PerezVTexas.php
But first, a short technical digression:
I. Why Do All These Witnesses Keep Talking About Red Apples?
A long time ago (i.e., in the early 90s), back when the State still employed people to do this sort of thing, a group of very talented programmers, geographers, and demographers used a suite of tools (ArcInfo, a proprietary mapping software suite created and sold by a company called Esri) in a UNIX environment to create an intuitive software platform to automate much of the redistricting process. In the course of doing so, the programmers revised and substantially upgraded existing software tools that had been created in an even more distant age (i.e., the 80s). One of those tools was and is called RedAppl, (from redistricting application), which, when combined with the Boundary Definition System (BDS) and the Spacial Integrated Cartographic Environment (SPICE), can be used to draw voting district boundary lines.
Taken together, the system is incredibly powerful, and was developed in part to ease the difficulties faced by employees of the Texas Legislative Council (the legislative agency charged with the responsibility for assisting legislators with the technical aspects of redistricting) when dealing with two problems. Problem number one is that Texas is big. Problem number two is that Texas has a much higher number of political subdivisions than any other state.
In 1996, TLC employees produced a formal paper describing their accomplishments, which can be found here: http://proceedings.esri.com/library/userconf/proc96/to250/pap219/p219.htm. In passing, the paper notes how much information a person sees when trying out changes in voting precinct boundary lines, including information about minority populations. In fact, a person sitting at a workstation in the bowels of the Texas Legislative Council gets immediate feedback on racial demographics of an enclosed area, as the information is displayed onscreen while the boundaries are being drawn. Keep this in mind, because it will turn out to be important.
II. The Witnesses (and deposition transcripts) to Watch For
1. Gerardo Interiano – former staff aide, Texas GOP
Mr. Interiano, who now works for Google, was the person responsible for inputting the GOP’s desired redistricting plans into the TLC software suite. All the plaintiffs are going to want a piece of Mr. Interiano, while the attorneys for the State of Texas will work very, very hard to ensure that Mr. Interiano gives more polished, thoughtful testimony than he did the last time he was before a panel of Federal judges.
That’s because back in 2012, Mr. Interiano said two things that were frankly not believable. For one thing, he said that his work drawing and redrawing boundary lines was done without any supervision or input from the Speaker of the Texas House (Joe Strauss) or any of the senior officers or staff of the Republican Party leadership in the Legislature.
But more disastrously, Mr. Interiano asserted (and reasserted under cross-examination) that he didn’t know the redistricting software could display any racial demographic information at the census block level, even though everyone (including the judges) knew that it did, and even though everyone knew that displays of racial demographics are part of the fundamental utility of RedAppl, front and center. In fact, it would be impossible to use RedAppl and not see the racial demographic information.
Mr. Interiano’s statement, and the lack of credibility that he brought to the witness stand prompted the D.C. district court to write:
“As unequivocally demonstrated at trial, this information was readily apparent to even a casual user, let alone one as experienced as Interiano, The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines. The data about which Interiano claimed ignorance could have allowed him to split voting precincts along racial (but not political) lines in precisely the manner the United States and the Intervenors allege occurred.”
Texas v. United States, 2012 WL 3671924 (D.D.C.. Aug. 28, 2012).
2. Dr. James Alford
Dr. Alford, whom I mentioned in my last post, is the only expert testifying on behalf of the State of Texas. Dr. Alford asserted that the 2011 redistricting plan was not retrogressive with respect to minority voting strength because some districts in Texas had managed to elect minority representation in recent elections. When asked if individual precincts had been redrawn in such a way as to be retrogressive, Dr. Alford could not say, and did not know.
This inability to assess minority voting strength in individual precincts before and after redistricting was fatal to the State’s case in 2012. Judging from the State’s exhibit lists, the State’s expert will again review exogenous proof of minority voting strength (i.e., the fact that some Congressional districts in Texas did elect minorities), presumably to argue that even if the State plan was retrogressive, it wasn’t the State’s intention to discriminate against minorities.
3. Clare Dyer
Clare Dyer (if you actually read that 1996 technical paper on RedAppl, you might have seen Clare Dyer’s name in the credits) will likely talk about how redistricting plans are processed in the Texas Legislature, and how the Texas Legislative Council urges legislators to keep Voting Rights Act requirements in mind when creating districts. More importantly, Dyer will describe how one could shift boundaries by small amounts to get a much more fine-grained distribution of nonvoting minorities in a Congressional district.
4. Ryan Downton
Ryan Downton is a conservative Republican politician and lobbyist who in 2011 assisted Mr. Interiano with the task of drawing districts to the liking of the Republican leadership in the Texas legislature.
5. Eric Opiela
Eric Opiela (who might or might not be called to testify at Phase II of the hearings) is a Republican politician and lobbyist who, while working for Speaker of the House Joe Strauss, devised the plan to shift blocs of nonvoting minorities (such as prison inmates) to create the illusion of minority-opportunity districts. Mr. Opiela discussed this strategy via email with Mr. Interiano.
4. Thomas Arrington
Dr. Arrington is the lead expert for the plaintiffs, and in addition to testifying that the 2011 redistricting plan was retrogressive with respect to minority voting rights, will also describe how the specific shifts in boundary lines reflect intentional discrimination against minority voters.
These are the witnesses to watch for. That’s not to say that there weren’t many other people who testified or were deposed in 2012, or who will testify at Phase II. Often, the role of the additional witnesses and other experts was to highlight and emphasize the specific boundary line shifts for particular regions of the State (while Dr. Arrington was looking more at the State as a whole).
III. What About the State’s Witnesses?
Most of the State’s evidence will be read from selections of depositions that were done in 2012, and from cross-examination of the plaintiffs’ witnesses.
The State’s defense, more or less, will be that (1) Eric Opiela’s email proposal was a bad idea that never got implemented in practice, because the statistical data that would have been required to implement such a plan simply didn’t exist, and (2) the State can and does split voting precincts for legitimate reasons that have nothing to do with race, and can rationalize many of the precinct splits on non-racial grounds.