False testimony in NC gerrymandering trial? Judges exclude GOP expert witness claims

Will Doran

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.”

Judges Alma Hinton, left, Paul Ridgeway and Joseph Crosswhite confer during the first day of the gerrymandering trial challenging the North Carolina legislature district lines Monday, July 15, 2019. The trial is being held at Campbell University’s Law School in Raleigh, N.C.

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 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.”