This is a vote dilution case where Plaintiffs challenge the configuration of Mississippi’s State Supreme Court districts, which, despite population changes and the passage of four Censuses, have gone unchanged since 1987. The result of this districting scheme is an unequal playing field for Black voters, such that Mississippi’s nine-member Supreme Court has never had more than a single Black Justice at a time, despite the State’s voting-age population being approximately 36% Black.
The Plaintiffs filed a motion to partially exclude, wherein they requested that the Court exclude certain portions of the proposed testimony of David Swanson, one of the Defendants’ experts. More particularly, the Plaintiffs requested that Swanson be precluded from testifying regarding electoral map drawing and ecological inference analysis.
Demography Expert Witness
David A. Swanson is: (1) Edward A. Dickson Emeritus Professor of Sociology, University of California Riverside; (2) Research Associate, Population Research Center, Portland State University; (3) Faculty Affiliate, Center for Studies in Demography and Ecology, University of Washington; and (4) Research Fellow, Social Science Research Center, Mississippi State University. Swanson served as a member of the U. S. Census Bureau’s Scientific Advisory Committee for six years (2004-10) and chaired the committee for two (2009-2010).
His B.Sc. is from Western Washington State College (now Western Washington University), and his Ph.D. and M.A. are from the University of Hawai’i. He also holds a Graduate Diploma in Social Sciences from the University of Stockholm.
Discussion by the Court
Swanson Is An Expert In Understanding Maps
The Plaintiffs have retained William Cooper as an expert. Cooper has prepared a report that contains four proposed new redistricting plans (two illustrative plans and two “least change” plans). According to Cooper, the proposed plans would create a majority-BVAP District. Swanson, who the Defendants retained as an expert in demography, prepared two reports—the first of which expends considerable effort and time addressing the illustrative plans contained in Cooper’s report.
The Plaintiffs argued that Swanson has no experience drawing electoral
maps, and no specialized knowledge with respect to electoral maps. The Court agreed with the Defendants’ position that Swanson “has never claimed to be an expert in drawing maps. He is, however, an expert in understanding maps. His demographic analysis of the various maps potentially at issue in this case is accurate.”
The Court held that Swanson’s testimony should be limited to his opinions as to the maps that Cooper has drawn and his opinions pertaining to them.
In reaching this conclusion, the Court is cognizant that the Plaintiffs have pointed to certain qualifications that Swanson lacks. Those issues appear to be ripe questions for cross-examination.
Swanson attacked Burch’s analysis regarding the State of Mississippi as a whole
The Plaintiffs’ second point of contention pertains to ecological inference analysis. The Plaintiffs have designated Dr. Traci Burch as an expert. Although her report and rebuttal report address multiple issues related to political behavior, barriers to voting, and political participation, of particular importance here is her utilization of a method referred to as King’s Ecological Inference analysis (“King’s EI”) in estimating voter turnout by race.
Swanson’s surrebuttal report addressed Burch’s analysis and pointed to what he believed were flaws in that analysis. For instance, he stated that “[i]n constructing her Ecological Inference (EI) model of existing District 1, Burch erroneously included Adams County (a county in existing District 2) and erroneously excluded Bolivar County (a county in existing District 1).” Swanson’s surrebuttal report also stated that Burch’s findings in regard to King’s EI did not change his “opinion that Black Mississippians are able to participate effectively in the political process. As I showed in my initial report, Blacks voted at higher rates than Whites in District 1.” Swanson also attacked Burch’s analysis regarding the State of Mississippi as a whole because she “express[ed] an opinion about White voters relative to non-white voters not an opinion about White voters relative to Black voters.”
The Plaintiffs contended that Swanson had no experience using the King’s EI Technique relied on by Burch and added that he is admittedly not an expert in voting behavior to which Defendants replied that Swanson has not attacked the mechanics of Burch’s King’s EI analysis but, instead, his testimony will be that Burch’s “answers are not helpful because she is asking the wrong questions.”
The Court noted that the distinction between the proposed testimony and the underlying mechanics of King’s EI is critical but refrained from altogether precluding Swanson from testifying on this topic.
Held
The Court denied the Plaintiffs’ motion to partially exclude the proposed testimony of Defendants’ expert, David Swanson.
Key Takeaway:
- Although Swanson lacked the required expertise in electoral mapdrawing and voting behavior, the Court did not exclude his demographic analysis of the various maps potentially at issue in this case.
- The Court did not fully preclude Swanson from identifying what he believed were flaws in Burch’s analysis.
Case Details:
| Case Caption: | White Et Al V. State Board Of Election Commissioners Et Al |
| Docket Number: | 4:22cv62 |
| Court: | United States District Court, Mississippi Northern |
| Order Date: | July 23, 2024 |
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