2 CROSS-EXAMINATION - Moritz College of Lawmoritzlaw.osu.edu/electionlaw/litigation/documents/TRIALTRANSCRIPT... · CROSS-EXAMINATION BY MR. ... And would you agree that the State

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DARLA J. COULTER, RMR, CRR

WEDNESDAY, MARCH 30, 2016

CROSS-EXAMINATION

BY MR. CHANDRA:

Q. Good afternoon, Mr. Damschroder.

A. Good afternoon, sir.

Q. My name is Subodh Chandra, and I'm counsel for the

Northeast Ohio Coalition for the Homeless and the Columbus

Coalition for the Homeless.

I don't believe you and I have met before, have we?

A. I don't believe that we have.

Q. Okay. Sir, most of the questions I will ask you today

will be yes or no questions. May I have your commitment that

if I ask a question susceptible to a yes or no answer, that

you'll give me a yes or no answer?

MS. RICHARDSON: Objection.

THE COURT: Sustained.

MS. RICHARDSON: Thank you, Your Honor.

BY MR. CHANDRA:

Q. All right. Mr. Damschroder, under the Ohio Revised Code,

the Secretary of State is the chief elections officer of the

State of Ohio, correct?

A. Yes, sir.

Q. And the Secretary in that capacity is responsible for

administering a fair election in Ohio, correct?

A. Yes, sir.

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Q. And a fair election would include ensuring that all

ballots from registered eligible voters are counted, would you

agree?

A. Not necessarily.

Q. Would you agree that the right to franchise is important?

A. Yes, sir.

Q. Would you agree that if someone is a registered and

eligible voter, that everything within reason that is possible

ought to be done to count their ballot?

A. Yes.

Q. So that the voices of those voters in our democracy can be

heard; would you agree?

A. Yes.

Q. And would you agree that the State of Ohio should not

erect unnecessary barriers that would disenfranchise people or

cost them their votes?

A. Yes.

Q. Or their voices in this democracy?

A. Correct.

Q. Now, Secretary of State John Husted is a Republican,

correct?

A. He is.

Q. And you are, too?

A. Yes.

Q. And despite those party affiliations, you would agree that

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you are supposed to be nonpartisan in your approach to your

duties. Would you agree with that?

A. I would.

Q. Let's go over some of the changes that came about as a

result it have Senate Bills 205 and 216.

Let's start with Senate Bill 205. You testified on direct

about some of those changes, but I just want to confirm a few

of them with you.

First, there would be a change with regard to the absentee

ballot form that accompanies the return ballot, correct?

A. I don't recall that the form itself changed, but the

requirements for counting the ballot changed.

Q. Okay. Fair enough. And so the five field requirement

came into effect.

A. That's correct.

Q. And, in addition, the cure period was cut; is that

correct?


THE COURT: Basis?

THE COURT: Mischaracterizes his testimony.

THE COURT: Overruled. You may answer,

Mr. Damschroder.

THE WITNESS: Like I testified earlier, the previous

cure period of 10 days was set by directive now it's in the

statute, but yes, it was changed from 10 to 7.

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BY MR. CHANDRA:

Q. And when one refers to the five fields as being mandatory,

would it be fair to say that, generally speaking, voters are

then expected under Senate Bill 205 to be disenfranchised if

they don't fill out those five fields completely and correctly?



Mr. Damschroder.

THE WITNESS: If the five fields are not completed

accurately, the ballot would not be counted.

BY MR. CHANDRA:

Q. Or completely, for that matter.

A. Yes, sir.

Q. And so the voter's vote, even if the voter were otherwise

eligible, would be lost, correct?

A. Correct.

Q. That voter would be disenfranchised, correct?

A. That voter's ballot would not count.

Q. Is there a distinction to you between a ballot not being

counted and the voter being disenfranchised?

A. There is. And, if I may, so I view it as if there are

laws in place that apply to everyone, then if the ballot can't

be counted because the voter doesn't provide that information,

I don't consider that disenfranchisement in the same way that I

would consider it disenfranchisement if we were to say that

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women can no longer vote. So that's the way I view it.

Q. Okay. So let's break this down.

You would agree with me that the right to franchise is the

right to vote.

A. Yes.

Q. And so does it not make since then that losing one's right

to vote if one were an otherwise eligible voter would

constitute disenfranchisement?

A. Like I said, I think I view it differently, but I think

we're saying the same thing.

Q. Okay. Now, going again over the changes related to Senate

Bill 205 and absentee voters, was one of those changes also

that poll workers can no longer assist a voter in filling out

the form unless they are asked?

A. That's correct.

Q. Based upon literacy, blindness or disability, correct?

A. Any voter can ask for assistance, but specifically voters

with disability, illiteracy are specifically allowed to request

assistance.

Q. So you don't read the statute as limiting the ability to

ask for and receive assistance to the voter based upon

literacy, blindness or disability.

A. Correct.

Q. Now, in addition to that change, are poll workers in a

situation where someone is voting early in-person as their form

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of absentee voting, are poll workers permitted to check the box

regarding the form of I.D. and fill in the form of I.D.?

A. If the voter asks for assistance, yes, the poll worker can

do that. In that case it's a part-time employee of the Board,

but yes.

Q. But except in circumstances where the voter is

specifically asked, is the poll worker supposed to do that?

A. No.

Q. And before Senate Bill 216, was that something that poll

workers would do?

A. I'm sorry, you switched to 216 for provisional?

Q. I apologize, you're absolutely right.

A. Okay.

Q. Under 205.

A. So under 205?

Q. Correct.

A. I don't recall specifically whether there was specific

instructions in the statutes that -- in the statute that the

election official had to fill in the information. I can't

remember whether that was a requirement.

Q. And I apologize. That wasn't my question.

My question was really whether or not poll workers as a

matter of practice in Ohio, to your knowledge, would perform

that task for the voter?

A. I can speak to my experience in Franklin County --

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Q. Please do.

A. -- specifically as it related to 2008.

We had a station set up where voters would come in and

fill out their absentee application, and then we had personnel

there who were available to help if a voter asked for help.

And then when the poll -- when the election officials are

keying the application into the voter registration system, if

the -- if the election official said, hey, you know, you missed

this field, they would hand the application back to the voter

in that in-person scenario, and the voter would fill that

information out.

Q. Okay. But did you have experience in Franklin County in

which -- or were you aware of poll workers who would take the

identification information while assisting a voter filling out

an application -- or, excuse me -- the form related to an

absentee ballot and would then assist the voter by filling in

the identification information and checking the box?

A. I'm not aware of that happening.

Q. Is it your contention that it never happened?

A. I don't know that it never happened. I don't -- I

don't -- I don't remember that we instructed our election

officials to do that. It -- but I don't have specific

recollection that it did happen.

Q. My question is whether you would contend that it did not

happen?

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A. I wouldn't say that it did not ever happen, no.

Q. Okay. And for the voter's vote to be counted even before

Senate Bill 205, the identification information would have to

be provided, correct?

A. That's correct.

Q. Was the poll worker before Senate Bill 205 when someone

was voting early in-person responsible for signing the form in

any way?

A. Was the poll worker responsible for signing?

Q. Yes.

A. I don't -- no, I don't believe so.

Q. That would have been true with respect to provisional

ballots?

A. In the former version I think there was a line for the

election official -- for the precinct election official in

in-person absentee for the Board staff to sign in addition to

the voter.

Q. Okay. So we'll come back to provisional ballots in a

moment. But just sticking with Senate Bill 205 and absentee

ballots -- and I believe you've already answered this, but in

case you haven't -- never mind. You did answer it. Let's move

forward.

Okay. So as a person with significant responsibility for

administering elections in Ohio, what was your understanding of

the problem that existed to be solved by Senate Bill 205?

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A. As it relates to Senate Bill 205, I think the -- the

problem was a level of confusion between the statutorily

prescribed form that had a line for date of birth and then the

question of whether date of birth is or isn't required. And so

now it's clear to all the election officials in the State, the

same five fields for registration, the same five fields for

absentee as for provisional.

Q. Is that the only problem that was to be solved?

A. As it relates to -- as it relates to absentee?

Q. Yes.

A. I believe so, yes.

Q. Okay. So where did you gain that understanding of what

the problem was to be solved by Senate Bill 205 and its

provisions?

A. So I think, like I testified earlier, there was a

situation in Franklin County in 2008 where the application

itself said date of birth is required on the identification

envelope --

Q. Tell you what.

A. I'm sorry.

Q. Let me withdraw the question and give you a narrower

question.

A. Okay.

Q. So I believe you testified earlier that Senate Bill 205

was -- correct me if I'm wrong -- not something that the

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Secretary of State's office initiated; is that true?

A. That's correct.

Q. And so would it be fair to infer from that that it's

something that -- the draft of the bill originated in the

General Assembly, not from the Secretary of State's office.

A. That's correct.

Q. Okay. And so my question really was centered more toward

where did you gain your understanding of what the General

Assembly's intention was with respect to the provisions we've

discussed in Senate Bill 205?

A. Thank you.

I don't -- I don't know what the General Assembly's intent

was in enacting these laws.

Q. So is it fair to say then that you're making inferences

about what you think the General Assembly was trying to do with

Senate Bill 205?

A. So I think my testimony has been based on my personal

experience at the county or at the Secretary of State's office,

and I'm -- I don't know what the General Assembly intended to

do.

Q. Okay. You're just guessing based on your experiences?




BY MR. CHANDRA:

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Q. Okay. Turning now to Senate Bill 216 regarding

provisional ballots, you've already testified about the

material provisions in that; I won't repeat that.

But going back to this question, what was your

understanding of what the Ohio General Assembly was trying to

solve with Senate Bill 216?

A. Because we weren't involved with the drafting or that

legislative process, I don't know what the General Assembly was

intending to solve.

Q. Okay. Did you read any news releases by the Senate

sponsors of either Senate Bill 205 or 216 explaining their

rationales?

A. Not that I recall.

Q. Did you go over to the Senate or the House and watch any

of the committee hearings?

A. No.

Q. Related to either bill?

A. No.

Q. Did you go and watch any of the floor debates related to

those bills?

A. No.

Q. Were you aware in your capacity as senior elections

administrator in Ohio that those bills were controversial,

Senate Bills 205 and 216?


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THE COURT: Basis?

MS. RICHARDSON: Assumes facts not in evidence, calls

for speculation.

THE COURT: Overruled.

THE WITNESS: I recall that there were news reports,

and I recall that there were specifically -- I can't remember

which Chamber it was, whether the Senate or the House, that one

of the Democratic members of the committee wanted the Secretary

of State's office to come testify, and I think -- and I think,

as I recall from maybe a Gongwer report, you know, had gone so

far as maybe even saying, you know, that the General Assembly

should subpoena the Secretary to come over because they wanted

the Secretary's office's input on these bills, and we didn't

because that was not our legislative priority.

BY MR. CHANDRA:

Q. So it would be fair to say that Senate Bill 205 was not a

legislative priority for the Secretary of State.

A. That's correct.

Q. And Senate Bill 216 was not a legislative priority for the

Secretary of State.

A. That's correct.

Q. So all of the ideas you offered to Ms. Richardson about

the benefits of either piece of legislation, would it be fair

to say, are simply your own ideas and not connected in any way

to what the intentions of the Ohio General Assembly might have

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been?

A. That's correct. They're my views based on my experience

in Franklin County and at the Secretary of State's office.

Q. Okay. And so would it be fair to say that if information

came to your attention that brought into serious question some

of the benefits that you believe exist from Senate Bills 205

and 216, that that would cause you to rethink whether those

pieces of legislation are beneficial?


THE COURT: Basis?

THE COURT: Vague, compound.

THE COURT: It's long, but not compound.

Do you understand the question, Mr. Damschroder?

THE WITNESS: I don't think so. If I could get a

clarification, that would be helpful.

THE COURT: Yes. Rephrase your question.

MR. CHANDRA: I will.


BY MR. CHANDRA:

Q. So during your discussion with Ms. Richardson, you posited

several potential benefits of Senate Bill 205, correct?

A. Yes.

Q. And of 216, correct?

A. Correct.

Q. And those were based upon your experience but not any

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knowledge from the General Assembly, correct?

A. Correct.

Q. And my question simply is if information were brought to

your attention that would bring into serious question whether

the benefits that you believe exist with respect to Senate Bill

205 -- let's take that first -- would that then cause you to

question whether or not Senate Bill 205 is truly beneficial to

the public in Ohio?


THE COURT: I'm sorry, what's the basis of your

objection, Ms. Richardson?

MS. RICHARDSON: Vague.

THE COURT: Again, it's long, but I don't know that

it's vague.

Mr. Damschroder, do you understand the question?

THE WITNESS: I think that I do.

THE COURT: You may answer it.

Overruled.


THE WITNESS: I think it -- I don't think that my

view from my election -- from my experience administering

elections at the county and state level, I don't view -- I

don't think that that would change. I -- my experience says

that I think these are benefits to the election administration

process in Ohio.

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BY MR. CHANDRA:

Q. And the same would be true with respect to Senate Bill

216?

A. Yes, sir.

Q. And that would really be true no matter what information

you were presented about the actual effects of that legislation

on elections administration in Ohio.


THE COURT: Basis?

MS. RICHARDSON: Mischaracterizes his testimony.



THE COURT: You may answer, Mr. Damschroder.

THE WITNESS: My view is that these are beneficial

laws, and so I -- I can't -- I'm not aware of anything that

would -- that would change what I view as the significant

benefits of -- of these -- of these laws.

BY MR. CHANDRA:

Q. And my question was that would be true no matter what

information you were presented with, correct?

MS. RICHARDSON: Objection. Asked and answered.



THE WITNESS: Yes.

BY MR. CHANDRA:

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Q. Okay. So I'd like to ask you based on your considerable

experience some questions about the history of the kind of

information required under Ohio law for voters to prove their

identity.

Is it true that at some point in this century that all a

voter had to do to show identity or to prove identity and be

able to obtain their ballot and cast it was provide their name

and their signature?

A. Certainly, as it related to in-person Election Day voting,

they would have to state their name and address and then sign

the poll book.

Q. Then starting in about 2006, the voters had to show name,

signature and some forms of specified identification, correct?

A. That's correct.

Q. And then after that it was name, signature, identification

and address, correct?

A. What mode of voting are we talking about? I'm sorry.

Q. Feel free to distinguish among them if you need to, but

let's talk about in-person on Election Day if that's easiest to

start.

A. So for in-person on Election Day, it used to be that the

voter would just announce the voter's name and address. The

poll worker would find it in the poll book, and then they would

sign the poll book.

In 2006 Ohio enacted a voter identification law. So in

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addition to announcing the voter's name and address, signing

the poll book, the voter would also have to show a form of

identification in order to cast a regular ballot.

THE COURT: Just a second. Could I see counsel?

- - -

Thereupon, the following proceeding was held at

sidebar out of the hearing of the jury:

THE COURT: Read back the last question and answer,

Ms. Coulter.

(Question and answer read back.)

THE COURT: Now, here's is what I'm asking. Those

very same questions were asked by Ms. Richardson on direct.

Now, you've been jumping at the bit all trial to get

to the main witness. This is not a deposition. You know, I

don't want -- what I'm trying to avoid is repetitive testimony

because it's five past 4:00, and we aren't even close. Now,

because Mr. Damschroder is one of the State's main witnesses,

I'm going to give you any time that you need but, you know, I

think that one of the problems that we've had in terms of

cumulative testimony on both sides -- and I understand why it

happened because everybody was cautious and wanted to -- this

is an important case. You want to make sure you cover all your

bases. But, you know, the examinations have been eerily close

to deposition-type questions where you get a lot of background,

and then somewhere in there is the question.

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I want -- since you have this witness on

cross-examination, I don't need you to repeat the direct.

Trial Ed. 101, I need you to go to the points that you want to

make. And you are skilled enough to know that you get up there

and you have five, ten, fifteen points, but among those five,

ten or fifteen points is not the same direct that

Ms. Richardson did, it's your cross. So I want to hear your

cross, Mr. Chandra. I don't want to hear Ms. Richardson's

direct again. I heard it and I have -- I read it, I hear it,

and she's going to give me at the end of today a transcript of

it. So I want to know what you want to know. You got the guy,

you wanted the guy. You got it, now tell me what you want the

plaintiffs' case to reflect from this witness.

MR. CHANDRA: Okay. Thank you.

(Back in open court.)

THE COURT: Mr. Chandra, please continue.

MR. CHANDRA: Thank you, Your Honor.

BY MR. CHANDRA:

Q. I'm going to move toward to another topic, sir.

Would you agree -- you testified on direct about one of

the benefits of Senate Bill 216 being that the provisional

ballot affirmation form could double as a voter registration

form. Do you recall that testimony?

A. Yes, sir.

Q. All right. Would you agree, however, that that voter

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registration form doesn't help a voter who has been

disenfranchised for failure to complete the form?

A. Yes.

Q. And would you agree that that voter registration form

doesn't help the voter that has made some sort of an error on

that form while filling it out?

A. Yes.

Q. Would you agree that disenfranchisement of voters who are

already registered based upon errors and omissions on the form

is not necessary to obtain the beneficial effect of that form

doubling as a voter registration form?

A. So I look at it this way:

I think there are -- there are going to be instances where

an individual voter may not have that voter's ballot cast --

counted because of an error or omission on the envelope. But

as I look at it, I think that the -- from all of the voters,

the benefit of having more data points to find more voters

is -- is also a very important benefit. And I think in my view

as just an elections administrator, that -- that benefit may be

greater than the impact to just that one person. While I

feel -- while I feel bad and don't like that it happens to that

one voter, I think the benefit to the larger electorate is

worthwhile.

Q. Sir, I'll come back to that issue, by my question was a

little different.

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My question was you don't have to have voters

disenfranchised who are already registered to obtain the

benefit of the provisional ballot affirmation form doubling as

a voter registration form for those who are not registered,

correct?

A. Correct, unless they can't be found.

Q. Generally speaking, correct?

A. Yes, generally speaking.

Q. And you testified previously in a deposition taken in this

case on February 25, 2016, that every vote matters, right?

A. Yes.

Q. And the voter registration benefit to a provisional ballot

affirmation form has nothing to do with absentee voters who may

be disenfranchised for minor errors or omissions on the form,

right?

A. That's correct.

Q. So it's really no excuse or explanation for that under

Senate Bill 205.

A. Well, I think, as I've testified earlier, I think there is

a benefit to having clearly established -- in the absentee

context to having clearly established understanding for voters

and election officials alike of what are the required fields.

Q. But respectfully, sir, that wasn't my question.

A. I'm sorry.

MR. CHANDRA: I'll ask the court reporter to please

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read back my question, please.

(Question read back.)

THE WITNESS: Correct.

BY MR. CHANDRA:

Q. Thank you.

I would like to turn your attention to the subject of

voter fraud. And I'll show you what's been previously marked

as -- well, before I even show you the exhibit, are you aware

of studies regarding voter fraud being done by the Secretary of

State's office in recent years?

A. Yes.

Q. And were you involved in those studies?

A. I was involved in the issuing of the directive, yes.

Q. Okay. Would you agree with me -- with this

characterization, that those voter fraud studies showed that

the instances of even potential voter fraud are infinitesimal

relative to the overall population of legitimate votes cast?

A. Yes.

Q. And would you agree in addition that voter fraud or the

possibility of voter fraud, given those study results by the

Secretary of State's office, is not an appropriate

justification for the five fields requirements under Senate

Bill 205 and Senate Bill 216?

A. I believe that's correct.

Q. That the studies do not justify the five fields

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requirements. Are not a justification for the five fields

requirements might be a better way of asking it.

A. I think that's correct.

Q. All right. And so if a representative of Cuyahoga County

testified in this case that before Senate Bills 205 and 216

that Cuyahoga County, one of the biggest counties in the state,

could previously identify voters without all five fields on

those return envelopes, you would have no information to

dispute that testimony, correct?

A. That's correct.

Q. And you'd agree also that there is no reason for Boards of

Election to compare addresses provided by voters on the five

fields either under absentees or provisionals with the State of

Ohio auditor's website to determine whether it's a valid or

good address?


THE COURT: Basis?

MS. RICHARDSON: Vague, calls for speculation,

compound.



THE WITNESS: That's correct.

BY MR. CHANDRA:

Q. And while you don't know the exact error rate for the SVR

database of the state, you would acknowledge that there are

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errors in it.

A. I guess I don't -- because I don't know what the error

rate is, I don't know for sure that there is -- that there are

errors, but there are probably errors but I don't know what

that error rate is.

Q. But you'd acknowledge that there are probably errors in

there?

A. There are probably errors, yes.

Q. Please correct me if I'm wrong, but my recollection is

that you also suggested in response to questions on direct that

administrative convenience of Boards of Election may be one

benefit of Senate Bills 205 and 216.

Do you recall that testimony?

A. I don't remember necessarily using the phrase

administrative convenience. But under that umbrella having a

clear understanding of what the rules are, being able to

identify more voters in the voter file to be able to count

those ballots, I would kind of put that under that umbrella.

Q. So you've testified that you were an official at Franklin

County administering their elections. How many tens of

thousands of provisional voters are there in a county like

Franklin County, let's say, in the last two presidential

elections, 2008 and 2012?

A. I don't remember for certain, but I think, if I remember

round numbers for '08, there were -- I think there were about

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forty to maybe fifty thousand provisional voters in Franklin

County, but I can't remember for sure.

Q. Okay. And in Cuyahoga County?

A. Probably a similar number. Maybe just slightly larger

because it's a larger county.

Q. Okay. So somewhere around 50,000 voters?

A. I think so.

Q. Would you agree that if Cuyahoga County and their Board of

Elections representatives testify that they were already able

to establish voters' identities before the five fields

requirement, that requiring them to analyze all five fields on

provisional ballot affirmation forms is an added burden?

Yes?

A. I'm sorry, I didn't know that that was -- I'm sorry, I

thought you were making a statement.

Q. I was, but I should have said true?

A. I guess I would answer it this way: I don't think that

the date of birth component of the provisional is necessarily

an added burden to the Board based on what I believe is the

benefit of potentially finding more voters. And the address, I

believe, is important for identifying -- you know, for counting

voters who are wrong precinct who are eligible to have their

ballot counted and for making sure that you count the correct

portion. So I don't think that it's necessarily a significant

or out of -- or irrelevant burden.

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Q. Okay. Well, that wasn't my question. My question was

simply is it an added burden?

A. I think it is added steps, and so that would probably be

an added burden.

Q. Well, and that's talk about what those added steps would

be then.

Senate Bills -- Senate Bill 216 with regard to provisional

ballots would now require a Cuyahoga County Board of Elections

which has already satisfied itself regarding identity to review

all five fields on each provisional ballot form to the tune of

50,000 voters, correct?

A. Correct.

Q. And it didn't have to do that at that level of detail

previous to Senate Bill 216, correct?

A. Not at the same level of detail, correct.

Q. And as someone who has administered a large county like

Franklin County, you understand the burden involved in having a

requirement to review tens of thousands of forms, correct?

A. I do.

Q. And that is a big burden, correct? I'm not asking about

benefits. It's a big burden, correct?

A. It is.

Q. All right. How many years of your career, including your

time at the Board of Elections in Franklin County, including

your time at the Secretary of State and anything beyond that,

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have you had administrative experience?

A. It would just be at the Board of Elections and the

Secretary of State's office so '03 to the present. So 13.

Q. So about 13 years?

A. Yeah.

Q. And then before you were at the Board of Elections, what

did you do?

A. Before I was at the Board -- immediately before I was at

the Board of Elections, I was at the state treasurer's office.

Q. So you were working in a large complex organization.

A. Yes.

Q. And how many years were you doing that?

A. I did two different -- I was at the state treasurer's

office for two different time periods probably about 18 months

to two years at the most between the two stints.

Q. And before that did you work in any large organizations?

A. Before that I worked for the -- in between that I work for

the Franklin County Republican Party. Before that I managed a

campaign for a Columbus City Council candidate. Before that I

was a licensed insurance agent right out of college.

Q. Okay. From all your time working in large complex

organizations or administering them, like election systems,

would you agree based on all that experience that when one

introduces a new complexity into a system, it can have

downstream consequences?

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THE WITNESS: Yes.

BY MR. CHANDRA:

Q. And some of those consequences, certainly from your

experience in government, you know, can be bad consequences.

A. Yes.

Q. And some of them can be unintended consequences.

A. Yes.

Q. Or they could be intended bad consequences but hidden from

view at the outset when the changes are made.

A. I think that's possible, yes.

Q. Are you familiar with a scientific principle called Chaos

Theory?

A. No.

Q. All right. So following up on this issue of complexity,

with five fields would you agree that there are at least five

ways a voter responsible for filling out those fields could go

wrong?

A. And, again, this is provisional?

Q. Either one.

A. Either one. I guess, yes, that's correct.

Q. Absentee or provisional.

A. That's correct.

Q. And then when you look at each individual field, there are

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multiple ways that a voter could go wrong on each field; fair?

A. Correct.

Q. So let's use the example of -- and I'm not going to go

over each example, but lets go over the example of checking the

box for I.D. and saying one's driver's license number. Okay?

A. Okay.

Q. So I'm going to show you as a demonstrative exhibit here

my own driver's license, if I can get it out of my wallet. I

had more hair in the picture when it was taken. There's some

glare on there -- well, I don't know how visible it will be,

but are you familiar, sir, with the fact that there is a

driver's license number to the right of the main photo on the

left of the I.D., correct?

A. I think that's right.

Q. And then yet above the photo, there is another number

imprinted into the photo, correct?

A. It's unclear on the screen, but my recollection is that

there is an additional number printed on the card.

Q. And that additional number is totally unrelated to the

driver's license number, correct?

A. That's correct.

Q. And so one of the many ways that a voter could go wrong

who is tasked with filling out the form him or herself would be

to write the wrong number down altogether, correct?

A. I would say yes, except that the form -- all driver's

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licenses are two letters followed by six numbers. And so one

of the things that we've -- that we've done to try to limit it

to the correct number is to have 8 boxes -- 8 distinct boxes

with the instructions, I think it says, you know, two letters

of the alphabet followed by six numbers to identify for the

voter that that's the driver's license number.

Q. But you'd agree with me that the voter would have to be

able to read the form to know that, right?

A. Or ask for assistance, correct.

Q. And, similarly, if -- let's take the example of date of

birth. There are multiple ways that a voter could go wrong in

filling out that field, correct?

A. Correct.

Q. They might write the wrong year?

A. Correct.

Q. They could write the wrong month?

A. Correct.

Q. They could write the wrong date?

A. Correct.

Q. If they are -- if they originate even as U.S. citizens

from a country other than the United States, where in every

other country they write the day of the month first and then

the month and then the year as their format, the voter could

err there as well, correct?

A. That's correct.

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Q. Have you undertaken any study to find out whether or not

voters have made that kind of error?

A. No.

Q. So would it be fair to say, without doing the mathematical

calculations by every one of those five fields, that there

would be numerous permutations of things that could go wrong

when a voter is trying to fill out that form?

A. Yes, that's possible.

Q. And what is your position on behalf of the Secretary of

State as to whether it is appropriate or not to fill in one's

name in cursive for the name, even if it's legible?

A. Sure.

Our -- I think our position is that the voter has to print

their name and then sign the affirmation.

Q. All right. Do you recall -- were you paying attention to

election issues when Secretary of State Ken Blackwell was the

Secretary of State of Ohio?

A. I started in '03 so there was some overlap between his

administration and --

Q. And do you recall when there was a public controversy over

the fact that Secretary Blackwell insisted that voters submit

their voter registration forms on the right weight of card

stock, or those voter registration forms would not be

processed?

A. I do recall that.

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Q. And do you recall that one of the reasons he was mocked,

including by editorial boards around the state, was that seemed

to elevate form over substance, literally --


THE COURT: Basis?

MS. RICHARDSON: Assumes facts not in evidence,

argumentative.


BY MR. CHANDRA:

Q. Okay. So turning your attention now to the issue of

cursive, if a voter is -- if their name is legible but written

in cursive, hasn't the function of the field which is to

provide the voter's name been fulfilled?

A. There's -- because there's not a standard of, you know,

what is cursive, what isn't, are the letters connected, you

know, the instructions are to print the full name. If the

voter was to, you know, do their signature there, even legibly,

then the ballot would not count.

MR. CHANDRA: I'd ask the court reporter to please

read back my question and request that you answer that

question.

THE COURT: Ms. Coulter?


THE WITNESS: Yes.

BY MR. CHANDRA:

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Q. And yet the Secretary of State of Ohio's position is that

that voter should, nevertheless, be disenfranchised for having

written their name in cursive, even legibly, rather than

printing it on the provisional ballot affirmation form or the

absentee ballot form?

MS. RICHARDSON: Objection; mischaracterizes his

testimony.



BY MR. CHANDRA:

Q. Am I correct?

A. I'm going back. I'm sorry.

Yes, that's correct.

Q. All right. Do you believe that that's a fundamentally

fair position?




THE WITNESS: I do.

BY MR. CHANDRA:

Q. Okay. So in Franklin County you're aware that Franklin

County uses bar codes that are unique identifiers for each

voter?

A. Yes. Yes.

Q. And they also have -- well, let me stick with the bar

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codes. So if the bar codes in Franklin County uniquely

identify each voter and the Franklin County Board of Elections

has satisfied itself through the application process, let's say

for absentees that a voter has established their eligibility

for that ballot and sent it to them, that barcode would be a

part of the packet that is to be returned by the voter,

correct?

A. That's correct.

Q. And so that barcode would uniquely identify that same

voter, correct?

A. That's correct.

Q. So under those circumstances, there really is no need for

imposing the five fields on those absentee voters, correct, in

terms of establishing the identity of the voter?

A. That's correct.

Q. Now, when you testified on direct that you had been

involved in the redesign of the provisional ballot affirmation

form to see how voters with limited or no -- excuse me, I'm

sorry. Let me withdraw that and start over.

You testified on direct that you had been involved in the

redesign of the provisional ballot affirmation form, correct?

A. Correct.

Q. And you did not conduct a review to see how voters with

limited or no literacy could handle that form, correct?

A. That's correct.

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Q. And, in fact, you were advised to do that, weren't you?

A. My recollection is that that was one of the suggestions

that came back from, I think it was Peg Rosenfield from the

League of Women Voters.

Q. Right. And the League of Women Voters, in your experience

as an election administrator, is deeply engaged in issues

concerning fairness and efficiency of elections, correct?

A. Yes.

Q. So much so that you thought it important to reach out to

them to ask for their input on the form, correct?

A. Among others, yes.

Q. And you're aware that the League of Women Voters actually

took an official position in opposition to both Senate Bills

205 and 216, correct?

A. I don't remember that for certain, but it wouldn't

surprise me.

Q. Okay. Why wouldn't you surprise you?

A. Because I know from conversations with Peg Rosenfield

going back to even the photo identification bills from, you

know, 2006, that the league's position was, you know, what we

had was sufficient.

Q. And she's a co-president of the League of Women Voters.

A. I don't -- I don't remember what her official role is.

Q. But it's a very senior position in the organization of

Ohio, correct?

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A. Yes.

Q. All right. So Ms. Rosenfield actually sent you an e-mail

that advised you to check and test the form concerning the

issue of literacy, correct?

A. I recall that she sent me an e-mail, yes, and I think she

suggested that we test it.

Q. Okay. So I'm going to show you what's been marked as

Plaintiffs' Exhibit 11, and this appears to be an e-mail chain.

It starts off at the top dated May 6, 2014 from Dana

Chisnell, correct?

A. Yes.

Q. That was the kind of form design expert you were

consulting with, right?

A. Yes.

Q. And then it appears within this series of e-mails that's

Plaintiffs' Exhibit 11 that the discussion of literacy is

contained somewhere within it, and here is the question,

correct me if I'm wrong apparently coming from Ms. Rosenfield

saying -- could you please read what is asterisked there?

A. Yes.

Has this form been analyzed by a literacy expert and by an

expert on designing forms? It needs to be readable by someone

with a sixth grade reading level, and it needs to be

intuitively clear how to fill it out.

Q. Okay. So there's more information on literacy in the

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exhibit, but we'll move on.

But you didn't do it, correct?

A. Correct.

Q. All right. And, actually, since the form was implemented

in connection with the 2014 election, the 2015 elections and

the 2016 primary, you have yet to do any sort of testing of

that form to see how people who are functionally illiterate

perform on the form, correct?

A. Correct. We have not done that.

Q. And that's true despite the fact that by late

October/early November 2014, the Secretary of State's office

was on notice that it was a potential defendant via the very

second supplemental complaint at issue in this case in a

literacy test issue under the Voting Rights Act, a literacy

test claim; correct?

A. Correct.

Q. Okay. So I want to go back to an issue you talked about

on direct regarding poll books and consolidated poll books.

If I understood the testimony correctly, you told

Ms. Richardson and the Court that the Secretary of State's

office by directive had required that poll books be

consolidated on a statewide basis, correct?

A. That's correct.

Q. And before that were Boards of Election doing different

things with regard to consolidating poll books?

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A. They were.

Q. And one of the reasons that you ordered that the poll

books be consolidated on a statewide basis was to achieve

uniformity, correct?

A. That is one of the benefits, but I wouldn't say that was

the primary reason. I think the primary reason was that it's

an efficient management tool at the precinct level and

virtually eliminates the right church/wrong pew issue.

Q. Okay. But, in general, uniformity is a very important

concept across Ohio's counties to this Secretary of State's

office, correct?

A. That's correct.

Q. And it's something that this Secretary of State's office

across a wide range of issues has taken a very strong position

in favor of, correct?

A. That's correct.

Q. And that includes the issue of hours on which voters can

vote early and in-person across Ohio's 88 Boards of Elections,

correct?

A. That's correct.

Q. Regardless of the size of the county, correct?

A. That's correct.

Q. Regardless of whether that county might have had a history

of long lines at the polls, correct?

A. That's correct.

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Q. So having consolidated poll books on a statewide basis,

the Secretary of State's office has not weighed in to create

uniformity across Ohio with respect to whether Ohio's 88

election boards vote in a number of three on dates of birth and

whether to accept the ballots of voters who have made an error

or omission on the date of birth field on the five fields both

with respect to absentee ballots and provisional ballots,

correct?

A. That's correct.




BY MR. CHANDRA:

Q. And the Secretary of State by statute is supposed to be a

tie breaker when there is a two to two vote with -- in a Board

of Elections, correct?

A. That's correct.

Q. And yet the Secretary of State has chosen not to be a tie

breaker one way or the other to ensure that voters are either

consistently disenfranchised or enfranchised based on an error

in the date of birth field, correct?

A. Correct.

Q. All right. So I would like to show you a group of

demonstrative exhibits now, some charts we've created just to

try to expedite matters. To set the stage for this, let me try

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to get a sense of what you may know with respect to the

different practices of Ohio's 88 counties on the five fields.

So as you've just testified, you've been on notice not

only with respect to the Voting Rights Act literacy test claim

since late October/early November 2014, but you've also been on

notice that the Plaintiffs in this case brought an equal

protection claim under Bush v. Gore concerning whether or not

Ohio's 88 counties are behaving consistently with respect to

the five fields, correct?

A. That's my recollection of part of the complaint.

Q. Okay. And since the Ohio Secretary of State's office was

put on notice about that, you would acknowledge that the Ohio

Secretary of State's office has undertaken no investigation or

inquiry as to whether or not the various Boards of Elections in

Ohio are consistently enfranchising or disenfranchising voters

using the five fields on both forms, correct?

A. That's correct.

Q. And that's true even as depositions have been taken in

this case establishing that certain Boards of Elections are

doing certain things with respect to the five fields while

other Boards of Elections are doing others, correct?

A. Well, I haven't read the transcripts of any of their

depositions other than my own so I don't know what all was said

in the context of those. But we have not as a result of

anything yet in this -- in these proceedings undertaken a

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study -- I think that was your question -- undertaken a study

as a result of those things.

Q. And I'm not asking you about conversations you've had with

your distinguished counsel here, but you have been aware that

depositions of county Boards of Elections have been taken

throughout of the course of this case, correct?

A. Yes.

Q. And you have been aware that those Boards of Elections

have been asked questions regarding their practices on the five

fields, correct?

A. Generally speaking, yes.

Q. And you have expressed no desire or expended no effort to

try to obtain those depositions and find out for yourself what

they're doing, correct?


THE COURT: Basis?

MS. RICHARDSON: Mischaracterizes his testimony and

argumentative.


Mr. Damschroder.

THE WITNESS: I have not, that's correct.

BY MR. CHANDRA:

Q. All right. So I'm going to show you one demonstrative

exhibit, and this is -- let's start with the first issue, which

is: Will a provisional ballot be counted if the name field is

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in cursive not printed?

Now you just testified that your position on behalf of the

Secretary of State is that voters who write their names in

cursive in the name field should be disenfranchised for that

error under your interpretation of the law, Senate Bill 205 and

216, correct?

A. That's correct.

Q. All right. Now, testimony from Lucas County and Warren

County, however, suggests that those counties will count a

provisional ballot under circumstances where the name field is

filled in cursive and not printed. Were you aware of that?

A. No.

Q. Where as Franklin County and Lorain County testified that

they, in fact, follow your position and would disenfranchise

the voter under those circumstances.

MS. RICHARDSON: Objection, Your Honor.



BY MR. CHANDRA:

Q. Do you -- when you look at this -- and just assume what

I'm telling you is correct.

THE COURT: Mr. Chandra, you didn't give

Mr. Damschroder an opportunity to answer the question.

MR. CHANDRA: I am sorry about that, Your Honor.

THE COURT: I just want the record to be clear. The

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question was whereas Franklin County and Lorain County Boards

testified that they, in fact, follow your position and would

disenfranchise a voter under those circumstances.

THE WITNESS: And the answer would be for Lorain I

didn't -- I don't -- I didn't know that that's what they do or

testified to.

For Franklin, that's the way it was when I was there

so that wouldn't surprise me.

BY MR. CHANDRA:

Q. Okay. So given the concern of Ohio's Secretary of State

John Husted with uniformity, would you agree that it is a

serious problem problem if voters in different counties in the

state will have their ballot counted or not counted based on

the issue of whether they fill their names in cursive or not?

A. Yes.

Q. Does it trouble you?

A. It does.

Q. But your preference would be that the voters in Lucas

County and Warren County be disenfranchised if they fill their

name field in cursive?


BY MR. CHANDRA:

Q. Correct?


THE WITNESS: I'm sorry, could you -- could I hear

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the question again? I apologize.

MR. CHANDRA: I'll respectfully request the court

reporter to read it back to me.


THE WITNESS: I don't think it's my preference, but I

think that's what the law says.

BY MR. CHANDRA:

Q. So your belief is that the law requires disenfranchisement

of those voters, correct?




MR. CHANDRA: May I have a sidebar, Your Honor?

THE COURT: Sure.

- - -



THE COURT: Go ahead, Mr. Chandra.

MR. CHANDRA: Forgive me if I missed something,

Your Honor, I wasn't sure what was wrong with the question as

phrased.

THE COURT: Well, he -- you had just asked --

Read the question back, Ms. Coulter.


THE COURT: And then he had just said that. It was

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asked and answered.

MR. CHANDRA: I'm sorry about that. I didn't realize

that was the basis.

(Back in open court.)

THE COURT: Please continue, Mr. Chandra.


BY MR. CHANDRA:

Q. So just a couple more follow-up questions on this cursive

issue, sir.

Does your concern about uniformity across the State of

Ohio with respect to issues like cursive stem from a concern

about equal protection under law of voters across the state?




THE WITNESS: I'm not an attorney and so --

BY MR. CHANDRA:

Q. I understand that.

A. I think I don't know the -- I guess I look at it from the

standpoint of the -- our -- the Secretary's and my view on

uniformity is that voters, you know, should be treated the

same, have the same opportunities to vote, have the same

expectation that the vote will be counted in the same way from

county to county.

Q. And have the same burdens that might risk

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disenfranchisement?




THE WITNESS: Yes. That those requirements be the

same across all counties.

BY MR. CHANDRA:

Q. Okay. So moving to the next example -- and I hope to go

through these much quicker now.

The next issue is are early in-person voters allowed to

use DREs -- that is, the voting machines -- and so avoid the

requirement to fill out an I.D. envelope?

And you'll see here on the left we have indicated in the

demonstrative exhibit that the answer for Butler, Franklin,

Lorain, Lucas Miami counties would be yes. The answer in

Cuyahoga and Meigs County would be no.

MS. RICHARDSON: Your Honor, objection. This

characterization misrepresents the testimony that was

presented.

THE COURT: Sidebar.


- - -



THE COURT: Go ahead, Ms. Richardson.

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MS. RICHARDSON: Your Honor, as I read this

demonstrative, it's suggesting that there was a prohibition on

these counties in using DRE machines, and that was not the

testimony that was provided.

THE COURT: Mr. Chandra?

MR. CHANDRA: I certainly didn't intend to suggest

that with the question. I was simply speaking to the fact of

the availability of DRE machines for in-person voting. And so

if there was something about my question that would be

misleading to an official who would have knowledge of how these

things work, then I apologize and I can try to rephrase.

MS. RICHARDSON: Your Honor, the demonstrative I

believe makes that point very clearly.

THE COURT: Get the demonstrative off the Elmo for a

moment.

MR. CHANDRA: Sure.

Your Honor, I see the use of the word allowed rather

than able, and I could simply change it and I hope that would

resolve the issue.

THE COURT: Rephrase.


THE COURT: Mr. Chandra, while we're here it's 10

minutes to 5:00. How much more do you have for

Mr. Damschroder?

MR. CHANDRA: I think about an hour-and-a-half,

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Your Honor.

THE COURT: You have about an hour-and-a-half? Well,

to this point, how much redirect would you have?

MS. RICHARDSON: Very little at this point,

Your Honor.

THE COURT: Okay. We're going to go until

5:00 o'clock. We're going to have Mr. Damschroder back at

8:30. You're going to have tomorrow an hour and 15 minutes.

I'm going to reserve 15 minutes for you to do redirect. And

then what we're going to do is I have a final -- I have a

change of plea and a final pretrial conference in my Short

North Posse case, and then in the afternoon you're going to put

on your rebuttal case and you're going to be done with it by

5:00. Your rebuttal case can last from --

MR. CHANDRA: I have some good news in that regard.

I don't think we're going to have one. Unless something earth

shattering happens between now and then, we've canceled our

rebuttal case.

THE COURT: Okay. Good enough.

THE COURT: Please continue, Mr. Chandra.


BY MR. CHANDRA:

Q. So going back to the issue of the use of DREs, I've

corrected the demonstrative exhibit so that it now reads the

issue is whether early in-person voters are able to use DREs

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and so avoid the requirement to fill out an I.D. envelope.

And by that, of course, I'm simply referring whether the

particular county uses DRE machines for that purpose.

Do you understand that?

A. I do.

Q. All right. So, as I said before we went to sidebar,

testimony from Butler, Franklin County, Lorain, Lucas and Miami

Counties suggest that the answer to that is yes because they

use DRE machines, and then in Cuyahoga and Meigs County, that's

M-E-I-G-S, they do not use such machines.

Now, would you agree that from your understanding of

voting administration that voters who are using DRE machines

and are in the counties that use DRE machines are able to

bypass the envelope requirement?

A. That's correct.

Q. Okay. And would you agree with me, however, that as to

the risk to individual voters, that would mean that there is

less risk of a ballot not being counted for those voters who

are in counties with DRE machines than for those who are not,

generally speaking?

A. Yes.

Q. And given the Secretary of State and your concern with

uniformity, does that trouble you?

A. It does. But I would say that in this instance, State law

is very specific and leaves only to the county Board of

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Elections or the county commissioners the authority to pick the

voting system for the county.

Q. Okay. Fair enough. But it then leaves voters in a

position of non-uniformity with respect to the risk of

disenfranchisement via the absentee ballot form, correct?

A. That's correct.

Q. All right. The next item here: Are Board staff permitted

to fill out the I.D. envelope for the voter?

Meigs County said yes. Franklin County said no.

Does that kind of difference concern you given your

concerns about uniformity on behalf of the Secretary of State?

A. Yes.

Q. And let's move on. From your understanding of the State

of Ohio, would you agree that Franklin County has a larger

percentage of African-American voters than Meigs County?

A. I believe that's right.

Q. Okay. And so -- well, let's move forward. Let's look at

the next bubble.

The issue is: Are precinct election officials trained to

check the box showing that I.D. was provided?

This is after the implementation of Senate Bills 205 and

216.

Lucas County says yes. Franklin County says no.

Would that kind of different approach by different

counties impacting voters differently concern you and the

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Secretary of State's office given your concerns about

uniformity across the State?

A. Yes.

MR. CHANDRA: May I have a moment to confer,

Your Honor?

THE COURT: Yes.

MR. CHANDRA: Okay. So let's look at the next

demonstrative exhibit --

THE COURT: This might be a good place to stop

because it is 1 minute to 5:00.

MR. CHANDRA: Okay.

THE COURT: Mr. Damschroder, we're going to adjourn

for the evening and reconvene at 8:30 in the morning.

Mr. Chandra has assured me that he has about an hour

and 15 minutes left, and Ms. Richardson said thus far she has

no redirect.

Our goal is to be done with you by 10:00 o'clock

tomorrow because I have another proceeding that begins then and

so I don't have a choice, and lucky for all of us.

So thank you very much, sir.

THE WITNESS: Thank you.

THE COURT: You may be excused.

Are there any other matters we need to take up,

Ms. Richardson from the Defense?

MS. RICHARDSON: No, thank you, Your Honor.

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THE COURT: Ms. Gentry, Mr. Chandra?

MR. CHANDRA: No, Your Honor.

THE COURT: All right. Good enough. I will see

everyone then at 8:30.

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2 CROSS-EXAMINATION - Moritz College of Lawmoritzlaw.osu.edu/electionlaw/litigation/documents/TRIALTRANSCRIPT... · CROSS-EXAMINATION BY MR. ... And would you agree that the State

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