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Plaintiff,
Defendants.
Defendants move this Court to exclude expert testimony and other evidence of Virginia’s
history of racial discrimination, to the extent that such history is non-contemporaneous with the
enactment of the voter ID statute at issue in this litigation. The exclusion of such evidence is
mandated by Supreme Court precedent. See, e.g., Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013);
McCleskey v. Kemp, 481 U.S. 279 (1987). Moreover, recent federal appellate decisions in voter
historical evidence is erroneous. See See Veasey v. Abbott, 796 F.3d 487, 500 (5th Cir. 2015).
(“We recognize that history provides context and that historical discrimination (for example, in
education) can have effects for many years. But, given the case law we describe above and the
specific issue in this case, we conclude that the district court’s heavy reliance on long-ago history
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was error.”) Granting this Motion in Limine will not only avoid the risk of such legal error – it
BACKGROUND
Plaintiffs intend to present Dr. John Douglas Smith, currently teaching at the Colburn
School in Los Angeles, California, who will testify about Virginia’s history of racial
discrimination. The body of Smith’s opening expert report is 62 pages long. See Exhibit 1 (Smith
opening report). As Smith admitted in his January 22. 2015 deposition, of those 62 pages,
approximately 42 pages are devoted to a recitation of pre-1960 Virginia history. See Exhibit 2,
Smith Deposition Transcript, 24:2-15. By contrast, only the final 20 pages address what could
Even less of Smith’s report addresses anything that could be considered “reasonably
contemporaneous” to the 2013 enactment of that Virginia voter identification law which is the
Q: And the first discussion in your report of Senate Bill 1256, which is the
legislation that’s at issue in this litigation, is at page 58 of your report; is that right?
A: Sounds correct.
A: Correct.
Id., 88:17-25. By his own admission, Smith only devoted three pages of his 62 page report to a
Smith wrote a book entitled Managing White Supremacy: Race, Politics and Citizenship
in Jim Crow Virginia, in 2002. As Smith explained in his opening report, this book began as his
doctorate dissertation at the University of Virginia. Exhibit 1, pp. 1-2. As Smith explained, the
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time period covered by his book concluded in approximately 1960. See Exhibit 2, 22:15-18.
Smith also testified that he has not authored any books on contemporary Virginia political
history. Id. 23:16-22. Moreover, the two articles Smith authored also focus on pre-1965
While Smith admitted that “a substantial portion of [his opening]is report is drawn from
Managing White Supremacy.” In fact, a substantial portion of Smith’s opening report is not just
“drawn” from his book, Smith’s report is copied verbatim from his 2002 book. Smith admitted
this point:
Q: In fact, large portions of your report are actually taken verbatim from
your book, are they not, Dr. Smith?
A: Sections of the – yes, the first half of the report, the first two-thirds of
the report have been paraphrased or originally drawn from that, yes.
A: For the most part. I would say that there are sections where I did go
back and look at some of the original sources and, you know, reviewed some of
those things, so it’s – but in general in terms of the spirit of the question, yes.
It is thus clear that at least the first two-thirds of Smith’s opening report consists of material
– and opinions – that were not formulated with the facts of this case in mind. In fact, Smith testified
that in formulating his opinion in the case, he did not speak to either of the individual plaintiffs in
the case; he did not speak to anyone at the Democratic Party of Virginia; and he did not speak to
any individual Virginia voter who has been unable to cast a ballot as a consequence of the
Q: Okay. Have you spoken to either of the individual plaintiffs in this case?
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A: I have not.
Q: Have you spoken to any individual Virginia voter who has not been able
to vote in the last two Virginia elections because they lacked the proper
identification?
Id., 32:9-23. Smith also did not review any of the discovery produced during the course of this
responded to Smith’s report. See Exhibit 3 (Palazzolo report). In contrast to Smith’s report,
Palazzolo focused on Virginia political history after 1965. Palazzolo did not contest Smith’s
recitation of Virginia’s racial and political history prior to 1965, (Id. at 2-3), but Palazzolo
questioned the relevance of Virginia’s pre-1965 history to the enactment of the voter identification
requirements the plaintiffs are challenging in this lawsuit. Id. Smith’s rebuttal report focused on
Palazzolo’s report, and thus primarily addressed post-1965 events. See Exhibit 4 (Smith’s
Rebuttal Report).
ARGUMENT
No one denies Virginia’s troubling history of racial discrimination nor that Virginia was
once part of the Confederacy. However, Virginia’s history as a former Confederate state is simply
Plaintiffs ask this Court to invalidate Virginia’s voter identification requirements enacted
by the Virginia General Assembly in 2013. Plaintiffs apparently intend to argue Virginia’s General
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actions by Virginia politicians between Emancipation (1862) and enactment of the Voting Rights
Act (1965).
Recent Supreme Court decisions warn against reliance upon non-contemporaneous history,
on the grounds that such history is not probative in a challenge to a more recent legislative action.
In McCleskey v. Kemp, the Supreme Court held that “unless historical evidence is reasonably
contemporaneous with the challenged decision, it has little probative value.” 481 U.S. 279, 298
n.20 (1987) (holding that laws in force during and just after the Civil War were not probative of
the legislature’s intent in 1972). More recently, in Shelby County, the Court counseled against
relying on non-contemporary evidence of discrimination in the voting rights context. 133 S. Ct.
2612, 2618–19, 2631 (holding Section 4 pre-clearance formula of the Voting Rights Act
unconstitutional because “the conditions that originally justified these measures no longer
Applying this settled Supreme Court precedent in a very recent voter ID challenge, the
Fifth Circuit reversed a Texas district court’s finding of discriminatory legislative purpose on the
grounds that it was error to rely on non-contemporaneous history in support of that finding. In
Veasey, the Fifth Circuit held that while the district court was correct to apply the framework set
forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
(1977), the evidence it relied upon to conduct that analysis was “infirm.” 796 F.3d 499-500. The
Fifth Circuit held that the district court’s attempt to discern the intent of the legislature when it
passed the challenged voter identification law was flawed because it “relied extensively on Texas’
history of enacting racially discriminatory voting measures.” Id. at 500. As the court noted, “[a]ll
of the most pernicious discriminatory measures predate 1965.” Id. (quoting Shelby County, 133
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S. Ct. at 2628 (noting that “history did not end in 1965”)). Citing McClesky and Shelby County,
In light of these cases, the relevant “historical” evidence is relatively recent history,
not long-past history. We recognize that history provides context and that historical
discrimination…can have effects for many years. But, given the case law we
describe above and the specific issue in this case, we conclude that the district
court’s heavy reliance on long-ago history was error.
Id. at 500.
Virginia’s General Assembly almost exclusively upon “long-ago” and “long-past” history. Forty-
two of the 62 pages of Smith’s opening report are exclusively devoted to reciting events occurring
prior to 1965. See Exhibit 1. And, by Smith’s own admission, only three pages of the opening
report even address the voter identification requirements which are the subject of this litigation.
See p. 2, supra.
In the absence of credible evidence of discriminatory intent on the part of those legislators
actually involved in the adoption of the challenged provisions of Virginia law, plaintiffs want this
Court to focus on long-past history in support of their claims. However, as Veasey and the
Supreme Court cases it relied upon teach, reliance on that sort of evidence is clear error. 796 F.3d
at 500.
Finally, this Court recognized earlier this year that the type of evidence plaintiffs intend to
rely upon here is not probative and should be excluded. In a recent voting rights case, Judge Lauck
noted that “sweeping allegations about historical discrimination African Americans have
experienced when voting in Virginia” do not provide “an evidentiary basis as to any current
discriminatory practices.” Parson v. Alcorn, 3:16CV13, 2016 WL 206466, at *5 (E.D. Va. Jan. 15,
2016). “[E]ven given Virginia’s inexcusable history of race-based voting restrictions,” plaintiffs
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CONCLUSION
Smith’s opening report makes clear that lacking any “specific evidence” of discriminatory
purpose or intent by Virginia’s General Assembly in the adoption of Virginia’s voter identification
law, plaintiffs intent to rely upon the same “sweeping allegations about historical discrimination
African Americans have experienced when voting in Virginia” that Judge Lauck recently held do
not provide “an evidentiary basis as to any current discriminatory practices.” Id., at *5. Not only
is such evidence irrelevant and of no probative value, the presentation of the historical evidence
plaintiffs intend to rely upon will be inordinately time consuming and wasteful of this Court’s and
the parties’ resources. Accordingly, we ask this Court to grant this motion in limine and to exclude
plaintiffs’ expert testimony and other evidence regarding Virginia’s history to the extent that such
events occurred in generations past and are unrelated to the enactment of the voter identification
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served via the Court’s CM/ECF system
Marc E. Elias
Bruce V. Spiva
Elisabeth C. Frost
Aria C. Branch
Perkins Coie LLP
700 13th Street, NW, Suite 600
Washington, DC 20005-3690
Joshua L. Kaul
Perkins Coie LLP
1 East Main Street, Suite 201
Madison, WI 53703
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Page 1
Page 2
1 APPEARANCES:
2
3 For Plaintiff:
4 Perkins Coie LLP
5 BY: Aria C. Branch
6 Attorney at Law
7 700 Thirteenth Street, N.W. Suite 600
8 Washington D.C. 20005-3960
9 202.654.6200
10 abranch@perkinscoie.com
11
12 For Defendant:
13 Arent Fox LLP
14 BY: Dana J. Finberg
15 Attorney at Law
16 55 2nd Street, 21st Floor
17 san Francisco, California 94105-3470
18 415.757.5500
19 dana.finberg@arentfox.com
20
21
22
23 Videographer:
24 Wesley Mack
25
Page 3
1 INDEX
2 WITNESS EXAMINATION
3 JOHN DOUGLAS SMITH
4 Volume I
5
6 BY MR. FINBERG 7
7
8
9 EXHIBITS
10 NUMBER DESCRIPTION PAGE
11 Exhibit 1 Deposition Notice 8
12
13 Exhibit 2 Curriculum Vitae 17
14
15 Exhibit 3 Opening Expert Report 22
16
17 Exhibit 4 Short Article/Opinion Piece by 48
18 Dr. Smith
19
20 Exhibit 5 Article published in Time 52
21 Magazine by Dr. Smith
22
23
24
25
Page 4
1 INDEX (Continued):
2 Exhibit 6 Plaintiff's Supplemental 101
3 Responses to Defendant's First
4 Interrogatories to Plaintiff
5
6 Exhibit 7 Plaintiff's Responses and 101
7 Objections to Defendant's First
8 Request for Admission to the
9 Plaintiffs
10
11 Exhibit 8 Smith Reply Report Served on 103
12 January 15, 2016
13
14 Exhibit 9 Government Accountability Office 111
15 Report
16
17 Exhibit 10 Study by the Brennan Center for 117
18 Justice
19
20 Exhibit 11 New York Times Article by 138
21 Carl Hulse
22
23
24
25
Page 5
2 9:59 a.m.
3 09:58:13
19 interference. 09:59:52
Page 6
3 with Arent Fox in their San Francisco office, and I'm 10:00:16
8 office. 10:00:28
12
15 testified as follows:
16
17 EXAMINATION
18 BY MR. FINBERG:
20 A. Hi. 10:00:42
Page 7
1 answered this before but have you ever been retained 10:14:26
13 question. 10:14:51
17 question. 10:14:58
Page 21
2 A. Correct. 10:15:23
9 A. Correct. 10:15:36
12 A. Yes. 10:15:42
14 A. Correct. 10:15:46
16 covered in that book ends in about 1960 with the end 10:15:52
18 A. Correct. 10:16:00
21 you.
Page 22
7 A. I do. 10:16:52
11 A. Yes. 10:17:08
14 A. Yes. 10:17:17
Page 23
3 actually taken verbatim from your book, are they not, 10:18:00
20 Ms. Branch and Mr. Curtis, and then yesterday after 10:18:50
21 she arrived Ms. Branch and I met for a little while, 10:18:54
Page 24
7 90 minutes? 10:19:15
23 reports. 10:19:58
Page 25
4 meeting? 10:25:18
14 issues that you were, you know, likely to bring up, 10:25:44
18 90-minute meeting with Ms. Branch, did you review any 10:25:57
19 documents? 10:26:00
Page 31
16 voter who has not been able to cast a ballot because 10:27:10
22 identification? 10:27:27
Page 32
2 case? 10:27:50
7 other experts have done and could possibly do, no. 10:28:00
Page 33
2 discovery"? 10:29:07
4 Q. Okay. 10:29:08
19 I've had e-mail exchanges with the attorneys for the 10:29:51
24 be vague, I -- 10:30:07
Page 34
3 Q. Okay. 10:30:17
9 A. Okay. 10:30:28
12 A. Okay. 10:30:32
15 A. Sure. 10:30:35
19 A. Right. 10:30:43
Page 35
4 report which I just saw the other day which may have 10:31:21
11 then -- 10:31:41
12 A. Right. 10:31:41
Page 36
2 don't know what the right word is, not necessarily 10:32:29
7 think. 10:32:44
11 subpoena. 10:33:02
18 A. Correct. 10:33:21
Page 37
5 know. 11:47:04
7 are the five issues that are most important to you, 11:47:07
9 opinion... 11:47:13
11 south and the nation's racial past, you know, there's 11:47:15
17 predominates? 11:47:36
21 Crow continues when you look at, you know, whatever 11:47:52
Page 87
8 right? 11:49:02
12 A. Correct. 11:49:07
15 right? 11:49:17
16 A. Correct. 11:49:17
25 A. Correct. 11:49:50
Page 88
6 and -- 11:50:23
15 know. 11:50:46
24 A. Correct. 11:51:15
Page 89
13
18 14:38:27
23
25
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