1 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 1 of 200 PAGEID #: IN THE UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF OHIO 3 EASTERN DIVISION 4 ~~~~~~~~~~~~~~~~~~~~ 5 6 FAIR ELECTIONS OHIO, et al., 7 Plaintiffs, 8 vs. Case No. 1:12-CV JON HUSTED, et al., 10 Defendants. 11 ~~~~~~~~~~~~~~~~~~~~ 12 Deposition of 13 MARK J. SALLING, PhD 14 VOLUME 2 15 MARCH 26, :30 a.m. 17 Taken at: Cleveland State University Euclid Avenue, UR Cleveland, Ohio 20 Todd L. Persson, Notary Public Page 280
2 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 2 of 200 PAGEID #: 1806 Page APPEARANCES: 2 3 On behalf of the Plaintiffs: 4 Ohio Justice & Policy Center, by 5 NGOZI NDULUE, ESQ East Ninth Street 7 Suite Cincinnati, OH (513) On Behalf of the Plaintiffs: 13 Brunner Quinn, by 14 PATRICK M. QUINN, ESQ North Fourth Street 16 Suite Columbus, OH (614)
3 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 3 of 200 PAGEID #: 1807 Page APPEARANCES, Continued: 2 3 On behalf of the Defendants: 4 Office of The Ohio Attorney 5 General, by 6 RYAN L. RICHARDSON, ESQ. 7 HOLLY WALLINGER, ESQ. 8 SARAH E. PIERCE, ESQ. 9 Constitutional Offices E. Broad Street 11 16th Floor 12 Columbus, OH (614)
4 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 4 of 200 PAGEID #: 1808 Page APPEARANCES, Continued: 2 3 On Behalf of the Defendants: 4 Ohio Secretary of State, by 5 CHRIS SHEA, ESQ East Broad Street 7 16th Floor 8 Columbus, OH (614) ~ ~ ~ ~ ~
5 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 5 of 200 PAGEID #: 1809 Page TRANSCRIPT INDEX 2 3 APPEARANCES INDEX OF EXHIBITS EXAMINATION OF MARK SALLING, PH.D.: 8 By Ms. Richardson REPORTER'S CERTIFICATE EXHIBIT CUSTODY 13 EXHIBITS RETAINED BY COURT REPORTER
6 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 6 of 200 PAGEID #: 1810 Page INDEX OF EXHIBITS 2 NUMBER DESCRIPTION MARKED 3 Exhibit 9 A Printout of an Electronic Spreadsheet 4 Exhibit 10 Notice of Deposition Exhibit 11 A March 22, and Attachment 7 Exhibit 12 A Report Entitled "The Analysis of the Number of 8 Incarcerated Registered Voters Who Could Not Vote 9 During Their Incarceration on the Weekend and Monday 10 Before the November 2012 General Election" 11 Exhibit 13 A Printout Entitled "Registered Voters 2012 and Population 2010 By County" 13 Exhibit 14 A Document Entitled "Analysis of the Proximity of Jails and Hospitals to 15 County Boards of Elections" 16 Exhibit 15 A Document Entitled "Analysis of the Racial 17 Composition of Incarcerated Registered Voters Who Could 18 Not Vote During Their Incarceration on the Weekend 19 and Monday Before the November 2012 General 20 Election" 21 Exhibit 16 A Spreadsheet Exhibit 17 A Document Entitled "Cuyahoga-FNLNBD"
7 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 7 of 200 PAGEID #: 1811 Page MARK SALLING, PH.D., of lawful age, 2 called for examination, as provided by the 3 Federal Rules of Civil Procedure, being by me 4 first duly sworn, as hereinafter certified, 5 deposed and said as follows: 6 EXAMINATION OF MARK SALLING, PH.D. 7 BY MS. RICHARDSON: 8 Q. Good morning, Dr. Salling. We met 9 just, I guess, a few weeks ago now, so I won't 10 take you through all of the deposition rules 11 again. I will just remind you, as we discussed 12 last time, that I am going to assume if you 13 answer the questions that I ask, that you have 14 understood the question. So if at any point in 15 time you actually do not understand something 16 I've asked you, if you could just let me know 17 and I'll be happy to rephrase it. 18 Just as we did last time, if you 19 need to take a break, just let us know that, 20 too, and we can break at any point in time. I 21 just ask that you answer any pending questions 22 before we take a break. 23 Any questions before we get started 24 today? 25 A. No.
8 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 8 of 200 PAGEID #: 1812 Page Q. Well, thank you for being here 2 again today. As you know, the purpose today is 3 largely going to be to focus on the 4 supplemental reports that you submitted to us 5 on February 20th, as well as an additional 6 report that we received two days ago on, I 7 think, March 24th. Does that sound correct to 8 you? 9 A. Yes. 10 Q. And so we'll be talking about that 11 a little bit later. 12 To start, I'm going to hand you 13 what we'll mark, and I have probably thrown off 14 the order here, so I apologize for that; but 15 I'm going to hand you a notice of deposition (Thereupon, Deposition Exhibit 10, 18 Notice of Deposition, was marked for 19 purposes of identification.) Q. I've marked this as Exhibit Have you seen this document before right now? 23 A. I don't think so. 24 Q. And this is a notice of deposition. 25 It's very similar to what we talked about last
9 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 9 of 200 PAGEID #: 1813 Page time before your prior deposition. Is that a 2 fair characterization? 3 A. I -- I assume so. 4 Q. But it's your testimony you have 5 not actually seen this prior to this moment? 6 A. That's correct. Right. 7 Q. I'll give you a moment just to take 8 a quick look at it, and then we'll walk through 9 some of the items listed here. 10 MS. NDULUE: As Dr. Salling is 11 reviewing, I'll just put our objections to the 12 notice on the record, and note that we will be 13 treating the items requested in the notice of 14 deposition that we received last night at 15 as requests for productions, and we'll respond. 16 MS. RICHARDSON: And just to 17 respond to the objection for the record, the 18 timing was necessitated in part because some of 19 these items that were requested related to the 20 report that we received on March 24th, so those 21 obviously could not have been submitted any 22 sooner, and it's our position that all of the 23 items set forth here are items that there's an 24 obligation under Rule 26 to provide at the 25 outset anyway. So there's really no new
10 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 10 of 200 PAGEID #: 1814 Page obligation imposed here. But we appreciate 2 your position. 3 A. I get the idea. 4 Q. And so as you can see here, what 5 I'd like to talk about are the items that are 6 specifically listed as documents that we would 7 like to review. If we just look at the first 8 item here, paragraph number 1, it asks for the 9 list of 120 black inmates who are eligible to 10 vote but did not vote in the November election as referenced in Table 1 of the report 12 titled "Analysis of Racial Composition of 13 Incarcerated Registered Voters." And we will 14 talk about that report later, which will 15 provide some context for these terms. But can 16 you just from our purposes now let me know 17 whether you have brought with you any list of 18 the 120 individuals that you have identified as 19 black inmates in your report? 20 A. I think those are in this thing 21 that I printed this morning. 22 Q. Okay. And this would be a good 23 time then for you to hand me -- this is 24 something that you've brought with you -- for 25 the record, we'll just point out this is -- I
11 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 11 of 200 PAGEID #: 1815 Page have in front of me here an from Ngozi 2 Ndulue to Mark Salling, dated Saturday, March 3 22, It says here an attachment, Election 4 Weekend Inmates Combined, And this says; "Hello, Mark. 6 Here's the spreadsheet with the automatic 7 matches included, except for the last five 8 Cuyahoga matches. Ngozi." Did I read that 9 correctly? 10 A. Yes. 11 Q. And can you tell me what this 12 document is? 13 A. Well, the is an from 14 Ngozi with an attached spreadsheet. 15 Q. And what does this spreadsheet 16 represent? 17 A. The spreadsheet represents the data 18 that was used to analyze the inmate population 19 and their racial characteristics, and whether 20 or not they had registered to vote and had or had already voted by absentee ballot. 22 Q. Okay. And we'll return to this and 23 what it means a little bit later. 24 MS. RICHARDSON: Let me just ask 25 counsel for the record, is this a copy of the
12 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 12 of 200 PAGEID #: 1816 Page document that you sent to us yesterday, or is 2 this something new? 3 MS. NDULUE: This is a copy of the 4 document we sent to you yesterday. 5 MS. RICHARDSON: Okay. And if we 6 could go ahead and mark this for the record, 7 actually as Exhibit 11, and we will come back 8 to this (Thereupon, Deposition Exhibit 11, A 11 March 22, and 12 Attachment, was marked for purposes 13 of identification.) Q. Is there anything else that you 16 have brought with you today, Dr. Salling? 17 A. A cup of coffee. 18 Q. We won't mark that for the record. 19 Anything -- so it's your testimony 20 that the list that you have just given to me, 21 which we will take a look at and talk about 22 later, includes the 120 black inmates that you 23 refer to in your new racial composition 24 analysis; is that correct? 25 A. I assume it is. The file was
13 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 13 of 200 PAGEID #: 1817 Page actually sent to me, you know, back on 2 Saturday, and that is on my computer somewhere, 3 and then this one was brought up by Ngozi to 4 help print. 5 Q. Okay. So you say you assume it is. 6 Are you -- why aren't you sure what is 7 represented in there? 8 A. I just assume it's the same file, 9 but -- the same data in that file. But I 10 haven't examined it to make sure that it's 11 exactly the same file that I downloaded and is 12 on my computer from last Saturday. 13 Q. So the paper copy that we have 14 marked as Exhibit 11, is it your testimony that 15 this is not a copy that you have reviewed prior 16 to sitting here today; this is a copy that 17 counsel brought with her today? 18 A. Correct. 19 Q. Okay. And so you have not had an 20 opportunity to take a look at this document and 21 verify the contents; is that correct? 22 A. That's correct. 23 Q. You mentioned that you have what 24 you believe to be the same document in 25 electronic form on your computer; is that
14 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 14 of 200 PAGEID #: 1818 Page correct? 2 A. Correct. 3 Q. Does that electronic copy contain 4 the 120 individuals that you've identified as 5 being black inmates in your racial composition 6 report? 7 A. It does, except for the addition 8 that I added to this data for the Shaker and 9 Euclid jails, which I had previously, and so I 10 added those to my file. And that was the file 11 I used to come up with the Q. And, again, we're going to come 13 back later, because I'd like for you to walk me 14 through how I actually identify these 15 individuals. 16 But for now I want to move to 17 number 2 on the notice of deposition, Exhibit 18 Number 10, and this asks for the list of white inmates what were eligible to vote but 20 did not vote in the November 2012 general 21 election, as referenced in the third 22 incarceration report. 23 Did you bring anything with you 24 that includes this list of 81 individuals that 25 you've identified?
15 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 15 of 200 PAGEID #: 1819 Page A. No, except this list that we have 2 before us is the same -- has the same 3 information about race, so it would include the 4 white inmates, not including any that were from 5 the other two jails that I added. 6 Q. And the document that you're 7 referring to, for the record, is Exhibit 11 8 that we've been discussing, that you brought 9 with you today? 10 A. Yes. 11 Q. Aside from the document that we 12 have been talking about, Exhibit 11, are there 13 any other documents in existence that contain 14 the list of what you have referred to as black 15 inmates and white inmates as described in 1 and 16 2 of this report -- I'm sorry -- 1 and 2 of 17 this notice of deposition? 18 A. It would be the file that I 19 assembled using the spreadsheet that I received 20 from Ngozi last weekend, plus the additional 21 ones that I added from Shaker and Euclid jails. 22 Q. And have you brought that file with 23 you? 24 A. It's on my computer. 25 Q. And is that file limited to the 120
16 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 16 of 200 PAGEID #: 1820 Page white individuals and the -- I'm sorry -- the black individuals and 81 white individuals 3 that you have referenced in your reports, or 4 does it include other individuals as well? 5 A. It includes other individuals. 6 Q. Who else would be included in that 7 file that's on your computer? 8 A. Those that didn't indicate any 9 race, or indicated another race besides white 10 or black. And those that were not registered, 11 or had registered and had voted absentee. And 12 those that had been incarcerated during a 13 period that doesn't correspond to the period of 14 analysis that we're using. 15 Q. So maybe you could help me, if we 16 could come up with sort of a shorthand for that 17 file; what does that file represent to you? 18 A. It's the inmates file. 19 Q. And this is a file that you 20 prepared, or that counsel prepared? 21 A. I assembled it from data that was 22 provided by defense -- or plaintiff counsel. 23 It's basically -- it's the same data that I 24 received last weekend, which I assume is also 25 this same data, plus the same information for
17 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 17 of 200 PAGEID #: 1821 Page those inmates who were in the Shaker and Euclid 2 jails. 3 Q. So is it fair to say that that file 4 would include data on all of the inmates that 5 were included in the materials that were 6 provided in response to the subpoenas in this 7 case and provided to you from counsel? 8 A. I believe so. 9 Q. So that report would similarly not 10 be listed -- sorry -- that report would 11 similarly not be limited to the 120 black 12 inmates and 81 white inmates that are referred 13 to in numbers 1 and 2 of this notice of 14 deposition; is that fair? 15 A. Correct. 16 Q. Is there any document that would be 17 limited to the 120 black inmates and 81 white 18 inmates that we've been discussing? 19 A. No. 20 Q. So such a list has not been 21 created? 22 A. No. 23 Q. Number 3 is sort of along the same 24 lines, there were three inmates that you 25 identified as "other" who were eligible to vote
18 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 18 of 200 PAGEID #: 1822 Page but did not vote in the November 2012 election, 2 and those were referenced in your third 3 incarceration report. Any list that would 4 include those three other names, aside from 5 Exhibit 11 that we've just discussed and the 6 additional file that's on your computer? 7 A. No. I mean, there were other 8 earlier versions of those, of that file, and 9 those are probably still there on my computer 10 somewhere, with some incomplete information 11 that we hadn't yet included on whether or not 12 they were registered for some of the counties, 13 some of the jails. So there were some 14 intermediate steps in compiling the final file, 15 and those probably exist somewhere on my 16 computer. 17 Q. Okay. We'll talk a little bit 18 later about some of the -- are these -- is it 19 fair to call them drafts of the final reports 20 that you've described here today, Exhibit 11, 21 and the file that's on your report? 22 A. The earlier versions of the inmates 23 file that I -- that is the final file, if you 24 will. 25 Q. Thank you. That's helpful.
19 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 19 of 200 PAGEID #: 1823 Page Numbers 4 and 5 refer to 2 correspondence that you may have received. 3 Number 4 asks for correspondence, including 4 s, letters, texts, instant messages, 5 meetings notes and telephone logs between or 6 among you and plaintiffs or plaintiffs' counsel 7 between February 21, 2014 and March 24, related to the third incarceration report. 9 Have you brought with you today any 10 such correspondence? 11 A. They're on my computer. 12 Q. So can you tell me -- so it sounds 13 like such correspondence does exist? 14 A. Yes. 15 Q. Can you describe for me what 16 correspondence took place that we have not yet 17 received? 18 A. s, well, there's the one that 19 is Exhibit 11. There were -- the February 24th 20 report was drafted, sent to plaintiffs' counsel 21 and reviewed, and a typo or two or slight 22 wording change was suggested, which I made. So 23 there was an earlier draft, if you will, of the 24 February 24th report that was part of an 25 or two. So going back further than this recent
20 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 20 of 200 PAGEID #: 1824 Page one, I don't recall -- I'm sure there was an 2 or two. I just don't recall what they 3 were. 4 Q. And so you have saved that 5 correspondence, but have not provided it here 6 today; is that -- 7 A. Correct. 8 Q. And you mentioned the February 24th 9 report. We have A. I'm sorry, the wrong month. March 11 24th report. 12 Q. Okay. Thank you for clarifying. 13 MS. RICHARDSON: And we will just 14 note for the record that we would ask for all 15 of the correspondence that exists that would be 16 responsive to number 4 and 5 on the notice of 17 deposition. 18 MR. QUINN: To the extent not 19 privileged. 20 MS. RICHARDSON: Thank you. 21 Q. Number 6 asks for all data that was 22 provided to you by the Ohio Justice and Policy 23 Center as noted in footnote one of the third 24 incarceration report. So let me just ask you; 25 obviously, we have not gone through the report
21 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 21 of 200 PAGEID #: 1825 Page yet, but do you understand what is referenced 2 here by the footnote that is discussed in 3 number 6? 4 A. As noted in the footnote, one of 5 the third -- the third incarceration report is 6 the one of March 24th; is that the one that 7 we're referring to? 8 Q. Yes. 9 A. All data -- well, all the data are 10 on my computer. I've not gotten rid of 11 anything. 12 Q. Okay. And aside from Exhibit that we have talked about today that counsel 14 provided you, what other data did you receive 15 in connection with the March 24th report? 16 A. I don't recall any other data, 17 other than the spreadsheet that we've been 18 talking about. 19 Q. Number 7 asks for any drafts 20 related to the March 24th report. I think 21 you've mentioned that a little bit today. Can 22 you tell me how many drafts exist? 23 A. Two, I think. 24 Q. And you said you have copies of 25 those drafts, but those have not been provided?
22 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 22 of 200 PAGEID #: 1826 Page A. I do. 2 Q. Number 8 asks for the list of registered voters who you have indicated did 4 not vote absentee and were eligible to vote and 5 are referenced in your supplemental February 6 20th report. Did you bring with you today any 7 list of the 207 individuals you have identified 8 as being registered to vote during the relevant 9 period and who had not already voted? 10 A. They're in a file somewhere on my 11 computer. 12 Q. And how would you describe that 13 file? 14 A. It's probably in a couple different 15 formats. One is probably an Excel file, 16 another would be a SAS data set. 17 Q. And do those files limit -- are 18 those files limited to the 207 individuals, or 19 do they include other individuals as well? 20 A. They includes all the inmates. 21 Q. Is this inmate file different than 22 the inmate file you were discussing earlier 23 that we have been referring to, I think, 24 shorthand as the "inmates file"? 25 A. Well, there are earlier versions of
23 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 23 of 200 PAGEID #: 1827 Page it. 2 Q. And do those versions differ from 3 what you have been describing as the inmates 4 file here today? 5 A. Simply different versions of it. 6 Q. And what changed between those 7 versions? 8 A. Maybe the completeness of some of 9 the columns of information on whether a certain 10 jail had registered voters, or something like 11 that. 12 Q. Obviously, we don't have copies of 13 those in front of us because they're on your 14 computer, so it makes it a little difficult for 15 us to discuss specifics. But you say that they 16 differed in terms of completeness. What do you 17 mean? What information would have been missing 18 specifically? 19 A. Oh, an earlier file, for example, 20 did not have the Euclid and the Shaker jails on 21 them, inmates from those jails. 22 Q. Do you have anywhere a list that 23 would be limited to the 207 registered voters 24 who are referred to in your February 20th 25 incarcerated report?
24 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 24 of 200 PAGEID #: 1828 Page A. No. 2 Q. And number 7 asks you for drafts -- 3 I'm sorry -- number 9 asks for drafts of the 4 second incarcerated report, which again, we're 5 discussing the report that was provided to us 6 on February 20th. Were there additional drafts 7 of that report created? 8 A. I think there were, yes. 9 Q. Do you recall sitting here today 10 how many drafts were created? 11 A. Again, going back to what I've said 12 before, it depends on what you -- how you 13 define "draft." So when I compose a document, 14 I may save it and leave it for a while. Is 15 that a draft? Come back, work on it some more, 16 save it, etc. And so if those are drafts, 17 there were probably, I don't know, five, drafts of that kind. 19 But in terms of drafts that have 20 been provided to anybody, that would be fewer. 21 There probably either might have been one or 22 two drafts that I recall. 23 Q. So one or two drafts of the 24 February 20th incarcerated individuals report 25 that was actually provided to counsel in this
25 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 25 of 200 PAGEID #: 1829 Page case; is that correct? 2 A. I think so. 3 Q. And can you -- and you have 4 indicated that you have those saved, but they 5 have not been provided to us; is that fair? 6 A. I think so. 7 Q. Can you tell us how those drafts 8 differed from what was ultimately produced as 9 your final report on February 20th? 10 A. Insignificant changes of typos. 11 I'm not a great typist, so there are typos, one 12 or two. Maybe a wording change here and there 13 that is just to clarify something, not to 14 change the substance of what I was saying. 15 Those are the kinds of things that I recall 16 were changed for the final report. 17 Q. Any other changes that you recall 18 sitting here today? 19 A. No. 20 Q. And number we can maybe 21 shortcut some of these that relate to 22 correspondence. Numbers 10 and 12 relate to 23 certain correspondence related to your 24 incarceration report and your proximity report, 25 both of which were produced on February 20th.
26 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 26 of 200 PAGEID #: 1830 Page But, generally, is there any correspondence 2 other than what we've already talked about 3 today in existence between you and counsel that 4 has not been provided to us? 5 MS. NDULUE: At this moment I'll 6 just object. As we said, we'll be responding 7 to your request for production. But as far as 8 drafts and correspondence that are not subject 9 to discovery under the Federal Rules, that I 10 would object to any requests for anything of 11 that nature. I'll put that on the record. 12 Q. You can answer. 13 A. I can't remember the question. 14 Q. Sure. So the question relates 15 to -- earlier we asked you specifically about 16 certain correspondence related to your most 17 recent analysis, the March 24th analysis that 18 was provided. Numbers 10 and 12 ask about 19 correspondence related to the two reports that 20 were provided to us on February 20th. And my 21 question more generally is; is there 22 correspondence existing between or among you 23 and plaintiffs' counsel that has not been 24 provided to us? 25 A. I think there is , and I have
27 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 27 of 200 PAGEID #: 1831 Page no idea whether that was provided to you. I 2 assume it wasn't. But there was -- I'm sure 3 there were a few correspondence. 4 Q. Sitting here today, do you recall 5 the content of any of those s? 6 A. No. Again, because -- well, I 7 think the only draft that I provided on the 8 February 20th report was on paper here in this 9 room. So I don't think there was even -- I 10 don't remember any correspondence on 11 that one. Although, there could have been 12 something earlier about what I was doing and but nothing detailed. So, sorry, I'm wandering 14 around. But I don't think there was anything 15 of substance that was -- about those -- about 16 that report. 17 Q. Was there any correspondence that 18 you received related to any report in this case 19 that you relied on in any of your analyses 20 conducted to date? 21 A. I don't think so. I don't recall 22 any. 23 Q. What about s relaying data, 24 like the one that we looked at today that is 25 now marked as Exhibit 11?
28 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 28 of 200 PAGEID #: 1832 Page A. No. There might have been a phone 2 conversation or two about what I was going to 3 do with writing a report and doing an analysis, 4 but I don't think there was any 5 correspondence. I don't think so. 6 Q. In general -- you've discussed and 7 you have referenced in your reports certain 8 other data that counsel provided you that you 9 used in your analysis. In general, how was 10 that data transferred back and forth? Was it 11 generally through or through other 12 methods of communication? 13 A. I'm sorry, what other data are you 14 referring to? 15 Q. I'm -- you have indicated, and we 16 can pull out the reports, and we will in a few 17 minutes, but you have indicated that certain 18 data included in your analysis was provided to 19 you from plaintiffs' counsel in this case; is 20 that correct? 21 A. They provided the registered voter 22 databases from the Boards of Elections. They 23 provided what I refer to as the inventory data 24 on the jail population over various years. 25 They provided me the inmates data. They sent
29 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 29 of 200 PAGEID #: 1833 Page me some documents from the earlier case that 2 the judge referred back to, or whatever. I 3 don't know the terms. So there were some 4 documents of that kind. But as far as I can 5 remember, that encompasses all the data that 6 has been provided to me by the plaintiff 7 counsel. 8 Q. Okay. And we'll come back to some 9 specific examples. A couple of follow-ups. 10 You just referred to the inmates data that 11 plaintiffs' counsel provided, and you've used 12 that a couple of ways today. What are you 13 referring to? 14 A. I'm referring to the kind of data 15 and, in fact, the exact data, although maybe 16 some additional data, that are in Exhibit that we've been talking about. That's the 18 inmates data. 19 Q. And you said documents from an 20 earlier case. What earlier case are you 21 referring to? 22 A. Well, it was the same -- it was the 23 same issue that the -- as I recall, the federal 24 judge said that there wasn't enough 25 documentation or proof that there was a
30 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 30 of 200 PAGEID #: 1834 Page substantial number of persons affected by the 2 prohibition against letting people in jail 3 vote. 4 Q. So are these documents related to 5 this case that were earlier, or a separate 6 case? 7 A. I don't know how you distinguish 8 cases, but it's a similar issue. So it may be 9 the same case that has been brought back into 10 play, or it might have been an earlier case 11 which was dismissed or lost or something, and 12 then another case on the same issue brought 13 forward. I don't know the legal parlance for 14 that. 15 Q. So you referred to one that was a 16 decision by a court; is that a fair 17 characterization? 18 A. I think so. 19 Q. What other documents related to the 20 case that you're referring to have you 21 reviewed? 22 A. I don't recall any. There were a 23 couple documents on that earlier case, or the 24 earlier situation with this issue, and one was 25 the judge's decision, I believe. But there was
31 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 31 of 200 PAGEID #: 1835 Page some other document, and I can't -- I can't 2 remember what it was. 3 Q. Any other case documents that 4 you've referred to? 5 A. I don't think so. 6 Q. I'm going to skip ahead here a 7 little bit, and I think we can answer some of 8 these with the testimony you've already 9 provided today. Number 13 asks for the lists 10 of 202 individuals -- I'm sorry registered voters who had not voted absentee 12 who are referenced on page 4 of your original 13 problem titled "Analysis and Number of 14 Incarcerated Registered Voters," and that was 15 the report dated October Do you have any documents aside 17 from what we've already discussed that would 18 list the 202 registered voters identified in 19 that report? 20 A. We've already discussed them. 21 Q. So there's no list limited to the registered voters referred to in your 23 report? 24 A. I don't think so. 25 Q. Same thing in terms of drafts, and
32 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 32 of 200 PAGEID #: 1836 Page I think we talked about this a little bit last 2 time; but it's is it fair to say that you have 3 certain drafts that were created but have not 4 been produced? 5 A. Again, depending on how you define 6 "drafts." But I don't recall what drafts might 7 have been provided to plaintiff counsel before 8 the final report. But there might have been 9 one or two. I don't recall. 10 Q. And sitting here today, do you 11 recall any differences in the drafts that were 12 provided to counsel? 13 A. No significant differences in 14 content, no. 15 Q. Do you recall what types of changes 16 were made between the first draft, as you're 17 defining it that was provided to counsel, and 18 the final report provided on October 30th? 19 A. Yeah. I'm sure there would have 20 been typos or a wording change to make 21 something a little clearer, or something along 22 those lines. 23 Q. And you say that you're sure that 24 there would have been. Do you recall 25 specifically what changes were made?
33 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 33 of 200 PAGEID #: 1837 Page A. No. 2 Q. And was there correspondence from 3 counsel directing you to make certain changes 4 to those reports? 5 A. Perhaps when I sent a draft, 6 counsel wrote back and said, you know, there's 7 a typo here, or I suggest that for clarity, you 8 know, you change this word to that one, or a 9 phrase slightly different, or something along 10 those lines. 11 Q. And you've saved all of that 12 correspondence? 13 A. I think so. 14 Q. In general, some of these that 15 remain MS. RICHARDSON: And, again, we'll 17 sort of skip through for our purposes now, 18 understanding that he doesn't have these 19 documents with him. And it's my understanding 20 from what plaintiffs' counsel has indicated, 21 that you will be providing responses to these 22 but in the form of a follow-up, not here today; 23 is that correct? 24 MS. NDULUE: That is correct. 25 MS. RICHARDSON: Okay.
34 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 34 of 200 PAGEID #: 1838 Page Q. So with that, I will just ask you, 2 Dr. Salling; sitting here today, aside from 3 what we've already discussed, are there other 4 materials that you have reviewed or relied on 5 in preparing any of the analyses that you've 6 submitted so far in this case? 7 A. Well, there was some census data, a 8 or census report, so there was population by 9 county, for example, that I downloaded from the 10 census website that was used. There's also a 11 report, which is referenced from the Census 12 Bureau, on registered voter -- sorry -- voter 13 participation rates nationally and by state, 14 and I cited that in one of the reports. But 15 that, as far as I can remember, are the only 16 additional sources of information I've used. 17 Q. Okay. Thank you. 18 Sitting here today, have you 19 received any compensation for your work in this 20 case? 21 A. No. 22 Q. Can we capture tone on the record? 23 Can we put a little emphasis there? 24 MR. QUINN: We'll stipulate that 25 it's bitter.
35 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 35 of 200 PAGEID #: 1839 Page Q. And by compensation, that includes 2 not only monetary payments, but any form of 3 non-monetary payments, is your answer still no? 4 A. Yes. 5 Q. And have you received any promises 6 of future payment for your work in this case? 7 A. No. 8 Q. Approximately how many hours have 9 you spent in connection with your work in this 10 case to date? 11 A. I don't keep track, so it's really 12 difficult for me to say. Certainly more than Q. More than 100 hours. 15 And you indicated you do not track 16 the hours that you have spent on this case? 17 A. No. Right. 18 Q. Who else aside from you has spent 19 time working on the analyses that you've 20 provided in this case? 21 A. As I mentioned in the last 22 deposition, Charlie Post, who's a researcher 23 here, helped me with one program. He helped me 24 write a program that I needed. 25 Q. And can you just remind me exactly
36 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 36 of 200 PAGEID #: 1840 Page what Mr. Post did to assist you? 2 A. Yeah. It was the issue of trying 3 to, from the inventory file or files, identify 4 the last year that a jail provided the 5 inventory data for. 6 Q. And so he helped create a program 7 to do that; is that your testimony? 8 A. Yes. 9 Q. Did he receive any compensation for 10 his work? 11 A. No. 12 Q. Has he spent any additional time on 13 this case since we last discussed this at our 14 previous deposition about a month ago? 15 A. No. 16 Q. Has anyone else spent any time 17 working on this case other than you or 18 plaintiffs' counsel? 19 A. No. 20 Q. I want to turn now to the actual 21 reports that you've submitted, and we'll start 22 with your February 20th report, "The Analysis 23 of the Number of Incarcerated Registered Voters 24 Who Could Not Vote During Their Incarceration 25 on the Weekend and Monday Before the November
37 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 37 of 200 PAGEID #: 1841 Page General Election." Did I read that title 2 correctly? 3 A. I think so. 4 Q. Let me give you a copy so that -- 5 and we'll mark this as Exhibit (Thereupon, Deposition Exhibit 12, A 8 Report Entitled "The Analysis of the 9 Number of Incarcerated Registered 10 Voters Who Could Not Vote During 11 Their Incarceration on the Weekend 12 and Monday Before the November General Election", was marked for 14 purposes of identification.) Q. And, Dr. Salling, did I -- okay. 17 Perfect. Thank you. 18 Okay. So if we could turn to this 19 report, and if we can agree, first of all, just 20 on a shorthand way to refer to this; is 21 supplemental incarcerated voters report, is 22 that a fair shorthand, or is there something 23 else you would prefer to use? 24 A. That's fine. 25 Q. Okay. We talked a little bit about
38 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 38 of 200 PAGEID #: 1842 Page this report at the end of your deposition last 2 month, but I'd like to go through it in a 3 little more detail and understand what 4 precisely you did for purposes of this report. 5 To begin, can you just describe to 6 me what you understand to be the purpose of 7 this supplemental incarcerated voters report? 8 A. Yes. We -- when I say "we," I mean 9 I -- rethought the issue of how we can move 10 from our counted number of incarcerated persons 11 who couldn't vote that weekend to use a 12 different method of coming up with that 13 estimate. 14 Q. And why did you find it necessary 15 to come up with a new way of estimating the 16 state-wide number? 17 A. The earlier report used the 18 population of the counties to come up with an 19 estimate for the State. And while that is a 20 somewhat reasonable approach, there are -- we 21 thought that this approach would offer an 22 alternative method of coming up with an 23 estimate, and that by looking at the two 24 estimates, one could get a sense of the order 25 of magnitude of the number of persons
39 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 39 of 200 PAGEID #: 1843 Page state-wide. 2 Q. So you mentioned that the goal was 3 to come up with an order of magnitude of the 4 numbers. So is it fair to say then that your 5 state-wide estimate is not intended to be a 6 precise estimate of the exact number of people 7 who were potentially impacted? 8 A. Correct. 9 Q. And you mentioned that the method 10 of estimating the state-wide number in the 11 original October 30th report was -- I think 12 your word was somewhat reasonable. What were 13 the limitations of that method of estimating 14 the state-wide number? 15 A. The counties we used, the nine 16 counties we used, may or may not be 17 representative of the entire state, and we 18 don't know how representative they are. 19 Although, they do represent something like or close to 50 percent of the entire state's 21 population. But the issue of representation is 22 a valid one, and so we decided that we would 23 try to find an independent source of 24 information that would allow us to come up with 25 another estimate, an independent estimate, if
40 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 40 of 200 PAGEID #: 1844 Page you will, that would give us some sense of, 2 again, the order of magnitude of the State's 3 total number of persons incarcerated and who 4 could not vote on that weekend. And by 5 comparing the two separate, independent 6 estimates, we could assess the extent to which 7 the order of magnitude in either of them was in 8 the right ballpark. 9 Q. So focusing again for another 10 moment on the method of estimation that was 11 used in your October 30th report, it's fair to 12 say then that you did not conduct any type of 13 analysis to determine whether the nine counties 14 selected were, in fact, representative of the 15 State as a whole; is that fair? 16 A. Not entirely. I mean, we did 17 include urban counties and rural counties, with 18 the idea being that we should make sure that we 19 cover counties that -- where the, for example, 20 the voter participation rates might vary, 21 state-wide voter participation rates. 22 Q. So you mentioned urbanness and 23 rural. Fair to say then that in your view the 24 urbanness of a particular county is a relevant 25 factor for determining representativeness in
41 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 41 of 200 PAGEID #: 1845 Page this case? 2 A. I don't know if it is relevant. 3 Although, in the subsequent analysis, we did 4 look at the registered voter participation rate 5 of the nine counties, and it comes out to be 6 very similar, almost exactly the same as the 7 voter participation rate in the other counties 8 that we did not sample, which reassures me that 9 those nine counties aren't significantly 10 different from the state-wide picture in terms 11 of voter participation rates. So I don't know 12 what other factor might be important in 13 distinguishing the nine counties from the rest 14 of the State that would affect the outcome of 15 our estimate. 16 Q. Okay. And I want to just step 17 back, because I think my specific question 18 initially was whether you had done any type of 19 analysis to determine as of the October 30th 20 report that the nine counties chosen are 21 representative. And I believe your answer was 22 that you did at least look to some degree at 23 the urbanness or ruralness of those counties. 24 Is that a fair characterization of what you had 25 testified to just a moment ago?
42 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 42 of 200 PAGEID #: 1846 Page A. I wouldn't say we looked at. We 2 understood which counties were more rural and 3 which ones were more urban. 4 Q. And so I want to understand, first, 5 why you focused on urbanness and rural in 6 response to that question. 7 A. Initially, the thought was there 8 might be differences between urban and rural 9 counties in regard to voter participation 10 rates, which would be potentially a significant 11 issue. Subsequently, we have addressed that 12 issue and found that there is no difference 13 between the voter participation rates, the 14 registration rates in those -- in the nine 15 counties versus the rest of the State. 16 Q. So let met just then, I guess, ask 17 a broader question of; what empirically did you 18 do as of the October 30th report to determine 19 whether the nine counties selected are 20 representative of the State as a whole? 21 A. We simply selected the counties 22 that would include some urban and some rural 23 counties. And let me say that, I now recall 24 based on this latest line of questioning and 25 discussion that there was an additional data
43 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 43 of 200 PAGEID #: 1847 Page set that was provided to me by the plaintiff 2 counsel, and that was a file from the Secretary 3 of State's office on the number of registered 4 voters in each of the 88 counties of the State. 5 And the -- I'm sorry -- and the number of 6 persons voting in the 2012 election, I believe. 7 Q. And that was provided to you by 8 plaintiffs' counsel in this case? 9 A. Yes. But it was also a link to the 10 website where -- the Secretary of State's 11 Office website, where that data was found, and 12 I went to that link to verify that that was the 13 data that I was being provided. 14 Q. What did you do specifically to 15 verify that the data was the same? 16 A. Went to the link and looked at the 17 data. I didn't download it. 18 Q. So you just sort of generally 19 looked to see if it seemed to be the same 20 universe of data that had been provided to you; 21 is that fair? 22 A. Yes. 23 Q. You didn't do a line-by-line 24 comparison to determine whether it was the same 25 data, correct?
44 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 44 of 200 PAGEID #: 1848 Page A. No. 2 Q. So sitting here today -- and, 3 again, I'm just trying to understand what your 4 testimony is. You've mentioned urbanness and 5 rural. Maybe if you'd just let me know sitting 6 here today what are the characteristics that 7 you believe to be important in assessing 8 representativeness of the counties selected 9 here? 10 A. The only one I can think of that 11 would be important would be the voter 12 participation rates. 13 Q. And so what specifically have you 14 done to determine whether voter participation 15 rates for the nine counties selected in your 16 reports are representative in this regard of 17 the State? 18 A. I compared the percentage of the 19 population that voted in the 2012 election in 20 the nine-county sample area to that rate for 21 the other counties, and found virtually the 22 identical participation rate. 23 Q. And how are you using the term 24 "voter participation rate" in this context? 25 A. Number of -- actually, I need to
45 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 45 of 200 PAGEID #: 1849 Page recall something. Let me remember something, 2 if you don't mind. I'm having difficulty 3 remembering something. Do you mind if I go to 4 my office to look? 5 Q. What are you intending to review? 6 A. Exactly what data I used. 7 Q. Let's talk about that on a break. 8 We'll come back to it, and you'll certainly 9 have any opportunity to review anything you 10 need to to provide your testimony today. 11 A. Sure. 12 Q. I want to ask a few more sort of 13 general questions. Your testimony was that 14 after the October 30th report you could not say 15 one way or another whether the nine counties 16 were representative of the State as a whole; is 17 that fair? 18 A. Yes. 19 Q. And so what exactly did you do 20 differently for purposes of the analysis in 21 your February 20th report that we're looking at 22 now to determine whether the nine counties 23 selected here are representative of the State? 24 A. I used an official and independent 25 set of information about the number of -- that
46 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 46 of 200 PAGEID #: 1850 Page indicates the number of incarcerated persons in 2 the State's jails. 3 Q. And are you referring to what we've 4 been calling shorthand as the jail inventories? 5 A. Yes. 6 Q. And I believe you testified at your 7 deposition last month that those jail 8 inventories were provided to you sometime 9 probably in the summer of 2013; is that 10 correct? 11 A. I think so. 12 Q. So why did you not as an initial 13 matter look at those numbers to determine 14 representativeness for your October 30th 15 report? 16 A. I ran out of time. I -- I went off 17 to a conference, and then had some vacation, 18 and had been planning on working on that, and, 19 in fact, started to do some of that while I was 20 at my conference, but then ran out of time. 21 Q. So why in your view do these jail 22 inventories present a better indicator of 23 representativeness for the nine counties? 24 A. I don't know that they're better. 25 They're an independent source of information
47 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 47 of 200 PAGEID #: 1851 Page that allows us to compare the jails in our 2 sample with the state-wide set of jails in 3 order to come up with a way of scaling the 4 number that we found in our sample to the State 5 total. 6 Q. So is it fair to say that your 7 testimony is that these just provide a 8 separate, independent number to use to compare 9 to the estimate that you provide in your 10 October 30th report? 11 A. Yes. As to whether or not one is 12 better than the other, it's a matter of 13 opinion. But I think the fact that they are in 14 the same general ballpark is what we were 15 intending to do in developing the second 16 method, to see whether or not an independent 17 set of data would result -- use of an 18 independent set of data would result in 19 something very much different. 20 Q. So there's nothing about the 21 inventory data that itself corrects any problem 22 with respect to representativeness; is that 23 correct? 24 A. Well, if you believe that the 25 independent -- that the inventory data is a
48 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 48 of 200 PAGEID #: 1852 Page more -- is a better method than the population, 2 then it would provide a better estimate. 3 Q. And you just testified that you 4 couldn't sit here today and say that it is a 5 better method, correct? 6 A. Well, it's a better method in the 7 sense that it uses an independent set of 8 information that the State has produced that 9 allows us to correct for any potential biases 10 that might occur in our sample. 11 Q. How so? 12 A. Because we are scaling our estimate 13 using a proportion of the sample count that we 14 came up with with the State number of 15 incarcerated persons. So if the number of 16 incarcerated persons is higher in our sample 17 than it is -- as -- than it is in the rest of 18 the State, by using the ratio of those -- that 19 proportion, to scale our 207, or whatever that 20 we actually counted in our sample, then we are 21 coming up with an estimate which is -- takes 22 into account the differences between our jails 23 and the rest of the State's jails, in that 24 regard. 25 Q. In what regard?
49 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 49 of 200 PAGEID #: 1853 Page A. In regard to the number of 2 incarcerated persons in our nine counties 3 versus the number of incarcerated persons in 4 other counties. 5 Q. Okay. And so the number of 6 incarcerated persons reflected in the 7 inventories relates to a period of time over 8 the course of a year, for example; is that 9 fair? 10 A. It's an average daily count that 11 the jails report. 12 Q. Those inventories don't relate 13 specifically to the weekend prior to an 14 election, correct? 15 A. Correct. 16 Q. So if there were any differences in 17 incarceration rates on the weekend prior to the 18 election, it wouldn't enable you to factor that 19 into your analysis, correct? 20 A. Yes. The assumption, I believe, is 21 fairly reasonable, is that there's no reason to 22 believe that there would be a significant 23 difference between incarceration rates that 24 weekend versus the rest of the year. 25 Q. And have you done anything to test
50 Case: 1:12-cv SJD Doc #: 91-1 Filed: 06/04/14 Page: 50 of 200 PAGEID #: 1854 Page the assumption that there would not be a 2 significant difference in incarceration rates? 3 A. Unfortunately, there's not a way of 4 doing that. 5 Q. So the answer is no, you have not 6 done any -- 7 A. No. 8 Q. Okay. And I think you also 9 testified last time, and it's reflected in your 10 report as well, that the inventory data that 11 you used relates to different periods of times, 12 correct? 13 A. Correct. 14 Q. Some of the inventories relate to , some, I think, were 2009, and I think the 16 most recent was 2012; is that a fair 17 characterization? 18 A. I think one was 2013, if I recall. 19 But I'm not sure. 20 Q. And as of your last deposition, you 21 had not done anything to attempt to standardize 22 the data. Is that still true sitting here 23 today? 24 A. Yes. 25 Q. Have you undertaken any type of