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Exhibit F

Case 3:15-cv-00357-HEH-RCY Document 146-6 Filed 02/05/16 of 25 PageID# 2013

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA

BARBARA H. LEE, et al.,

Plaintiffs,

v.

VIRGINIA STATE BOARD OF ELECTIONS, et al.,

Defendants.

))))))))))

NO: 3:15-CV-357

EXPERT REPORT OF KAREN L. OWEN

I. Introduction

My name is Karen L. Owen, I am over the age of 18, and I suffer no disability that would preclude me from giving this declaration.

I am an Assistant Professor in the School of Mathematics and Sciences at Reinhardt University. I also serve as the Director of the Master of Public Administration (MPA) program at Reinhardt University. I received an undergraduate B.A. degree from the University of Georgia in 2001, majoring in Political Science and minoring in History. I received a Master of Public Administration degree from the University of Georgia in 2004. I was awarded a Doctor of Philosophy in Political Science from the University of Georgia in 2012. I specialized in American Politics, Methodology, and Public Administration.

At Reinhardt University, I teach graduate courses including, research methods, public administration and policy, human services administration, and administrative law. Additionally, I teach undergraduate political science courses in Southern politics, Legislative politics, and American Government. I have previously taught courses on Judicial Politics and Women in Politics. I have done extensive research in electoral and legislative politics, state politics and redistricting. Currently, I am writing a book, Stepping into Her Shoes, which examines the influence of political role models on women’s candidacy emergence decisions and electoral outcomes to higher elective offices for Lexington Books, a division of Rowman & Littlefield Publishers. I have also published peer-reviewed journal articles in the areas of state politics and women in electoral and legislative politics.

In the past four years, I have testified as an expert in two cases: Wright v. Sumter County Board of Elections and Registration, No. 1:14-CV-42 (WLS, M.D.Ga.) and Georgia State Conference of the NAACP, et al., v. Fayette County Board of Commissioners, et al., No. 3:11-cv-123-TCB.


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Prior to my academic appointment, I worked in governmental affairs and legislative politics. In 2001 and 2002, I served as a Legislative Analyst for Ford Motor Company’s Southeast Governmental Affairs unit. I created and reviewed legislative initiatives as well as lobbied state legislators on behalf of Ford Motor Company’s interests. From 2004 to 2005, I worked for the U.S. House of Representatives serving as a Legislative Assistant to a Georgia congressional member. Upon returning to Georgia in 2005, I worked as a Public Health Legislative and Policy Analyst at the Centers for Disease Control and Prevention. I have broadtraining in theoretical and practical legislative and administrative politics.

My academic record, publications and work experience are detailed in a copy of my curriculum vita which is attached at the end of this document. I am compensated for this work at the rate of $400 per hour.

II. Scope and Plan

I have been asked by counsel for the Virginia State Board of Elections to evaluate the expert opinion and data analysis offered by plaintiff’s expert, Professor Allan J. Lichtman, regarding the claim of intentional discrimination against African Americans and would-be voters in the adoption of the Commonwealth of Virginia’s voter photo identification law. Specifically, I have been asked to render my opinion on Professor Lichtman’s analysis concerning his data,methodology, and findings.

In the following sections, I review Professor Lichtman’s data and findings, and I question his conclusions that Virginia adopted a voter photo identification law in 2013 to discriminate against African Americans and other would-be voters due to his lack of direct evidence to substantiate this claim. In the conclusion, I opine based upon an examination of Lichtman’s report and other relevant data that there is insufficient support for the claim of an intent to discriminate. Moreover, I offer possible alternative explanations for why the Virginia legislature adopted the voter photo identification (ID) law. However, importantly, I find that Virginia voters overwhelmingly support the adoption and requirement of showing a photo identification when casting a ballot.

III. General Overview

A. Summary Review of Professor Lichtman’s Expert Report - Limitations and Issues of Professor Lichtman’s Evidence, Logic, and Conclusions

Virginia’s legislature enacted a new voter photo ID law in 2013. This law required Virginia’s registered voters to present an acceptable photo identification1 when casting their

1 Virginia’s voter photo ID law (SB 1256) provided for several acceptable forms of photo identification and these acceptable forms of photo ID can be used up to a year after the ID has expired. These photo IDs include: valid Virginia Driver’s License or Identification Card; valid Virginia DMV issued Veteran’s ID card; valid United States Passport; other government-issued photo identification cards (must be issued by the U.S. Government, the Commonwealth of Virginia, or a political subdivision of the Commonwealth); Tribal enrollment or other tribal ID issued by one of 11 tribes recognized by the Commonwealth of Virginia; valid college or university student photo identification card (must be from an institution of higher education located in Virginia); employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer’s


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ballots on Election Day. Professor Allan Lichtman in his expert report concludes that this law was adopted by Republican lawmakers and a Republican governor “with the intent to discriminate against African American voters and would-be voters.”2 Throughout his report, Professor Lichtman provides data to state that Republicans knowingly sought to disadvantage Democrats and since minorities overwhelmingly identify with Democrats, racial discrimination was the underlying motive of passing a new voter photo ID law.

However, there are some serious concerns regarding Professor Lichtman’s analysis and conclusions. First, Professor Lichtman initially discusses the historical disrimination against African Americans in Virginia, and then he proceeds to provide recent (e.g. 2009-2011) data on the lingering effects of this discrimination in the socioeconomic disparities between Virginia’s racial groups.3 Nonetheless, throughout his report, Professor Lichtman never directly connects these racial disparities to voter participation given new voter requirements. Most significantly, Professor Lichtman has little direct evidence of racial intentions to discriminate. He does not have direct testimony or data showing a racial motive by Virginia lawmakers. Therefore, Professor Lichtman relies upon what legislators in Virginia might have known regarding what would be the consequences for minorities and Democrats under a new electoral law; and thus, he draws inferences to claim racial discrimination. Second, there are methodological issues within his report. Professor Lichtman analyzes the share of votes casts by whites in the 2006 and 2012 elections to state that Republicans were losing voter support, and therefore, were seeking ways to hurt Democrats and lessen Black participation. Yet, Lichtman is comparing a mid-term election with a presidential election. These are not comparable elections for examining turnout figures and participation. Voters are much more likely to turn out and cast ballots in a presidential election than a mid-term. Moreover, Professor Lichtman relies on a very small sample of African American registered voters in Virginia (N=23 to 26) to draw conclusions about the the differences in racial groups possessing driver’s licenses and passports in the Commonwealth. These small sample sizes question the reliability of his results and conclusions. Finally, Professor Lichtman seems to intertwine partisan and racial decisionmaking. Lawmakers are motivated by desires for partisan advantage, i.e. maintaining majority control and power, yet those political decisions are not necessarily motivated by an intention to discriminate against minorities.

Thus to summarize, problems within Professor Lichtman’s expert report include:

Inferences of racial discrimination drawn without direct evidence.

Comparison of voter turnout by race in mid-term versus presidential elections.

Reliance on survey research with small sample sizes to infer disparities between racial groups

Indistinguishable analysis between partisan and racial decisionmaking.

business. Data from http://elections.virginia.gov/registration/photo-ids-required-to-vote/. Accessed January 4, 2016.2 Professor Allan J. Lichtman. Expert Report, December 14, 2015, page 1.3 Ibid., pages 5-16.


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B. Summary of Opinions

My review of Lichtman’s expert report and analysis draws upon several data sources including the Virginia Department of Elections’ database and website, the Virginia General Assembly’s website and legislative tracking system, social science books, articles, journals, studies, as well as newspaper reports, survey and polling research, court opinions, and government and organizational documents.4 After thoroughly evaluating Professor Lichtman’s report and analyzing other national and statewide data concerning the impact of voter photo ID laws, I conclude that there are alternative explanations for why Virginia legislators adopted a new law. As survey research will detail below, Virginia’s Republican legislators were attentive to and acted upon the desires of their constituents. Passage of this statute may have come about with stronger support from Republian than Democratic legislators, but survey research shows that most Democrats and African Americans favor voter photo ID laws.

My opinions are as follows:

There is insufficient evidence to support a claim of intentional racial discrimination as offered by Plaintiff’s expert, Professor Allan Lichtman.

There are plausible alternative explanations for why Virginia legislators adopted a new photo ID law.

Survey responses from Virginia registered voters in 2013 showed an overwhelming support (75% to 23%) for voters to show a photo ID when casting a ballot on Election Day. Therefore, Virginia lawmakers enacted a public policy supported by over a majority of their constituents.

IV. Analysis

Based upon my research, knowledge, and an understanding of the equal protection clause of the U.S. Constitution’s Fourteenth Amendment, the language and court rulings of the Voting Rights Act of 1965 and relevant political scholarship, I was asked to analyze Professor Lichtman’s report to ascertain whether his data and findings support a claim that Virginia’s voter photo ID law discriminates intentionally against minorities. Professor Lichtman states that he “closely follows the methodological guidelines of the United States Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)” in order “to establish substantive findings about discriminatory intent”.5 He uses data from the Virginia Department of Elections, books, reports, newspaper articles, government and organizational documents, and scientific studies to inform his analysis and draw his opinion.6 Professor Lichtman opines that the Virginia voter photo ID law (SB1256) was passed because of race. He states, “I conclude that Virginia General Assembly has sought political advantage for Republicans by following an intentional strategy of discrimination against minorities in its voter

4 All references and sources of information used in my evaluation and analysis are presented in footnotes or in the appendix of this report. Additionally, these sources are used to inform my analyses and opinions regarding Virginia and its comparison nationally and with other states. 5 Ibid, page 3. 6 Ibid, pages 2-3.


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photo ID law. In other words, although racially neutral on its face, this law was passed ‘because of race, not despite race.’”7 Professor Lichtman shows throughout his report that passage of strict voter photo ID laws is an action taken by Republicans and Republican-controlled states in order to maintain majority control. Plaintiffs and Professor Lichtman argue that Virginia adopted a photo ID requirement because Republicans in Virginia had lost recent elections. To regain a majority, Republicans sought to eliminate Democratic voters, and African Americans are the most loyal Democrats. Therefore the Republicans adopted a requirement that will disproportionately keep minorities from voting.8

Let us assume, arguendo, that Lichtman’s data are reliable and valid. Assuming realistic and reliable data as presented in his expert report, the pertinent question for expert analysis is whether the plaintiffs satisfy the relevant factors and have sufficiently supported the claim of intentional discrimination. Lichtman does not provide direct evidence in the course of his report to support his conclusion of racial discrimination so he must draw inferences. I question his inferences by examining other states that have adopted and implemented voter photo ID laws and asking whether a racial motivation is an appropriate conclusion for these other states.

Below is my analysis of Professor Lichtman’s conclusions and other pertinent data concerning the intent and impact of the Virginia voter photo ID law.

A. Lichtman’s Inference that Virginia Was Motivated by an Intent to Discriminate

Professor Lichtman states in his report, “Critically, it is Republicans in Virginia who are disadvantaged by this decline in the relative voting strength of whites and minorities. Republicans would therefore benefit from limitations on minority voting, especially African Americans who constitute by far the largest minority voting bloc in Virginia and the most steadfast of Democratic voters.”9 He then offers exit poll data to show the decline of white voters in statewide Senate, gubernatorial, and presidential elections in 2006 and 2012 (see, Tables 5 and 6 of Lichtman’s Expert Report).10 Professor Lichtman argues that Republicans passed the voter photo ID law because the share of votes casts by whites dropped from 78% in 2006 to 70% in 2012, and there was an increase in African American voters. However, there are problems in his interpretation. First, Lichtman is comparing a mid-term election (2006) with a presidential election (2012). Political scholars have long noted the mid-term elections dropoff in voter participation especially among minorities. One argument is the turnout distinctions are due to the surge of interest and information in presidential races which motivates key partisans, yet a decline in mid-terms due to a lack of a “wow” factor. 11 Other reasons for why voters stay home more often in mid-term elections than presidential elections are voter ideological shifts and

7 Ibid, page 68.8 Professor Allan Lichtman, Expert Report, December 14, 2015. See also, Markus Schmidt. “Democrats Challenge Va. Photo ID law in court.” Richmond Times-Dispatch. June 11, 2015. Accessed through http://www.richmond.com/news/virginia/government-politics/article_945d86c9-37a2-5dfd-a950-03eb535a525a.html.9 Professor Allan Lichtman, Expert Report, December 14, 2015, page 1610 Ibid, pages 16-19.11 James Campbell. 1987. “The Revised Theory of Surge and Decline.” American Journal of Political Science. 31(4): 965-979.


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presidential punishment from opposing partisans.12 African Americans turn out to vote at their highest rates in a presidential year, and in 2012, the Obama candidacy served, once again, as a catalyst. Second, whites in Virginia casting about 70% of the votes was not new in 2012. Since 2008, whites have accounted for 70-72% of the vote except in 2009 when it was 78%.13 However, 2009 was not a federal election; it was a state election. Turnout figures published by the Commonwealth of Virginia show that state elections held in odd-numbered years usually have lower turnout than in the adjacent presidential or mid-term elections (note, 2013 is an exception).14 Therefore, Lichtman attempts to draw conclusions concerning Republican lawmakers’ motivations from a fear of losing white voter support in elections uncomparable in voter participation levels.

In addition, Professor Lichtman writes summarily his major opinions on pages 3 and 4. He notes,

Virginia politics has also become highly competitive between Republicans and Democrats in recent years, with declining white support for Republicans and declining support for Republicans among young voters.

These patterns of turnout and voting demonstrate that Republicans in Virginia stand to gain politically from any disparate burdens placed on African Americans relative to white voting opportunities.15

If Republicans seek to reduce Democratic strength in the state, then requiring voters to present photo IDs at the polls will not achieve that goal. In 2014, 2,194,346 people voted in Virginia and fewer than 800 had to cast a provisional ballot because they did not present an acceptable ID. That is less than 0.036% of those who went to the polls. In 2015, 1,509,864 people cast ballots in Virginia and fewer than 450 had to vote provisionally because they did not present an acceptable ID. That is less than 0.029% of those who went to the polls. The actual number without an acceptable ID is probably smaller since some of those casting provisional ballots probably have an ID but forgot to bring it. Yet, even if a person did not forget to bring his/her photo identification, a significant point in the Virginia voter photo ID law is that voters who cast a provisional ballot and do not have an acceptable voter ID can go to their county or city’s Voter Registration Office (e.g. Election Registrar) and apply for a free voter ID that day. All the voter must do is complete a free photo ID application, sign the form before an election official, and take his/her photograph. This voter is then given a temporary voter photo ID card, and s/he can present this to the election official within three days in order to have the provisional ballot counted.

12 Brian Knight. July 2014. “An Econometric Evaluation of Competing Explanations for the Midterm Gap.” Working Paper No. 20311. The National Bureau of Economic Research. Accessed at: http://www.nber.org/papers/w2031113 Virginia Department of Elections. http://elections.virginia.gov/resultsreports/registration-statistics/registrationturnout-statistics/index.html.14 Virginia Department of Elections. http://elections.virginia.gov/resultsreports/registration-statistics/registrationturnout-statistics/index.html.15 Professor Allan Lichtman, Expert Report, December 14, 2015, p. 3.


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Arguably, some voters might not go to the polls since they do not have an acceptable ID. Therefore, the enactment of a strict voter photo ID law might deter would-be voters. Research by Stephen Ansolabehere using data collected by YouGov/Polimetrix from 36,500 individuals in 2006 and a sample of 4,000 in 2008 sheds light on this proposition. After reporting evidence that the need for a photo ID keeps very few from casting ballots, Ansolabehere elaborates.

One rejoinder to these findings is that the very presence of ID laws may discourage some voters from even attempting to vote. . . . Of the 1,113 non-voters in the survey, four cited this as a reason, and these individuals cited other reasons as well – “bad weather” and “forgot to vote.” All told, then, only 7 out of 4,000 people (less than two-tenths of 1% of the electorate) could be considered non-voters at least in part because of voter identification. Voter ID does not appear to present a significant barrier to voting. . . . Although the debate over this issue is often draped in the language of the civil and voting rights movements, voter ID appears to present no real barrier to access.16

The Pew Research Center’s national survey research indicates that the overwhelming share of adults believe that they have necessary documentation to vote where photo IDs are required, as show in Table 1 below. These data also rebut Lichtman’s concern on pages 39 – 40 of his report that voters will be confused as to what constitutes an acceptable ID. Furthermore, Professor Lichtman presents no evidence that if such confusion does exist that it is more pervasive among African Americans.

16 Stephen Ansolabehere, “Effects of Identification Requirements on Voting: Evidence from the Experiences of Voters on Election Day,” PS: Political Science and Politics (January 2009): 129.


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Table 1: Voters Support of Photo ID Requirements

Moreover, Professor Lichtman stresses how it is Republicans who adopt voter photo ID laws. He writes, “Consistent with the fall in relative white turnout and the dependence of Republicans on white votes, not only Virginia but many other Republican controlled states have adopted new voter photo ID laws since 2008.”17 He states that Virginia Republicans adopted the photo ID law to keep African Americans from voting. He made similar claims in testimony he presented in a case challenging the Texas photo ID law. Is it a general proposition that when majority-Republican legislatures adopt photo ID requirements they do so with the intent to limit African-American voting? This inference can be tested by looking at the African American population percentages in states demanding voters present photo IDs to cast a ballot. (See Table 2 presented below). Support for Professor Lichtman’s logic requires that states in which Republicans passed photo ID laws have Black populations roughly equal to or greater than that of Virginia. Lichtman’s Table 14 (page 38 of his report) lists states adopting photo ID laws after the 2008 presidential election. In addition, it should be noted that Indiana and Georgia already had voter photo ID laws in place at the time of the 2008 elections.

17 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 37.


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Table 2: Photo ID States with Black Populations Less Than Virginia.18

% Black % White

Idaho 0.5 92.5New Hampshire 1.1 94.1Kansas 5.8 85.1Rhode Island 6.0 81.7Wisconsin 6.2 87.2Indiana 9.0 85.6Pennsylvania 10.8 82.3Texas 11.7 74.6Arkansas 15.8 78.2Tennessee 16.7 77.9

Virginia 19.5 69.4

Photo ID States with Black Populations Greater Than Virginia.

North Carolina 21.7 70.1Alabama 26.7 69.1South Carolina 27.9 67.0Georgia 30.8 60.7Mississippi 37.4 59.4

Of the sixteen (16) states with voter photo ID laws, ten (10) have smaller Black populations than Virginia, and in six (6) the Black population is less than half that of Virginia making it highly unlikely that keeping Blacks from voting was a motivation.

Another part of Professor Lichtman’s logic argues that Virginia Republicans sought to eliminate some African American voters because they feared that Democrats were on the verge or had already reclaimed majority status in the state. We can also test this argument by asking how other states with voter photo ID requirements compare with Virginia in terms of Democratic strength. Professor Lichtman’s claim suggest that the strict photo ID states should have the political parties evenly balanced. Party strength can be measured on multiple dimensions, and several are explored.

First, I examine voters’ support for the presidential candidates in 2008 and 2012. Table 3 shows voter support for Obama and McCain in 2008 and Obama and Romney in 2012 in those states with a voter photo ID law. According to Professor Lichtman’s judgment, states that are very competitive would be the ones in which Republicans would adopt voter photo ID laws in order to dissuade some Democratic voters. By defining very competitive states as those having a margin of victory of less than 5 percentage points, in the 2012 presidential election, Virginia would qualify. However, Virginia is but one of three states in the sixteen (16) state array that is

18 The figures used here are from The Almanac of American Politics 2014 which provides recent estimates, i.e.estimates for the time at which Virginia acted.


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very competitive. In five states, Romney beat Obama by at least 20 percentage points suggesting that Republicans have little to fear from Democrats. At the other extreme in Rhode Island, Obama won by 28 points. Even expanding the definition of competitiveness to mean a victory margin of 10 points or more, ten of the sixteen (63%) would not qualify as competitive in 2012.

There are similar patterns using 2008 presidential data although in that election Virginia would not meet the 5 point definition of competitiveness. In only three states was the 2008 presidential outcome within five (5) points. One of these is Indiana, but that state had already implemented voter photo ID so this requirement could not have come as a result of a Democrat surge threatening Republicans. In ten states, the 2008 winner had at least a 10 point margin.

Table 3: Support for Presidential Candidates in 2012 and 2008 in States with Voter Photo ID Requirements19

Obama % Romney % Obama% McCain%

Rhode Island 63 35 63 35Wisconsin 53 46 56 42New Hampshire 52 46 54 45Pennsylvania 52 47 54 44

Virginia 51 47 53 46

North Carolina 48 50 50 49Georgia 46 53 47 52Indiana 44 54 50 49Mississippi 44 55 43 56South Carolina 44 55 45 54Texas 41 57 44 55Tennessee 39 59 42 57Kansas 38 60 42 57Alabama 38 61 39 60Arkansas 37 61 39 59Idaho 33 65 36 62

States enacted the voter photo ID requirement at different times. Professor Lichtman indicates that the Republicans’ concern about recent Democratic success is the triggering event for this change.20 Table 4 below shows the presidential results in the state in the election immediately before the passage of the voter photo ID law. In what Professor Lichtman apparently considers the precipitating presidential election, the margin of victory was less than five points only in Virginia and North Carolina. In two other states, New Hampshire and South Carolina, the presidential winner had a 9-point advantage in the precipitating election. These four states are the only ones in which the precipitating presidential election would be considered

19 The figures used here are from The Almanac of American Politics 2014.20 See Professor Allan J. Lichtman’s Expert Report, December 14, 2015, pages 37-38.


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close. In three-fourths of the states requiring photo IDs a close presidential election did not precede the change in the law. In only two states was the margin close enough that even accepting Professor Lichtman’s assumptions would it be likely that enough Democrats might be discouraged from voting to affect the outcome.

Table 4: Presidential Support in Elections Preceding a State’s Enactment of a Voter Photo ID Law21

PrecipitatingElection Democratic % GOP %

Indiana 2004 39 60Georgia 2004 41 58

Alabama 2008 39 59Idaho 2008 36 62Kansas 2008 42 57Mississippi 2008 43 56New Hampshire 2008 54 45Pennsylvania 2008 54 44Rhode Island 2008 63 35South Carolina 2008 45 54Tennessee 2008 42 57Wisconsin 2008 56 42

Arkansas 2012 37 61North Carolina 2012 48 50Virginia 2012 51 47

Moreover, Professor Lichtman’s reasoning assumes that Republican legislators and governors perceived a growing Democratic threat and took steps to ameliorate that threat. He points to the timing of the statute passed in 2013 as indicative of Republicans panicked by recent Democratic success. He states, “The most plausible explanation for this extraordinary rapid transformation of Virginia’s voter identification laws is found in Republican setbacks in the elections of 2012.”22 Yet, Democratic gains in Virginia have a longer history than he acknowledges. The Republicans have not won a Virginia Senate contest since John Warner’s 2002 reelection. The state has had a pattern of the parties swapping control of the governorship. For instance, in 1989 Virginians elected Douglas Wilder, a Democrat and the first African American governor of the state, but then in 1993, voters elected George Allen, a Republican. Again, in 1997, Virginia elected the Republican candidate, James Gilmore, to then only four years later elect the Democrat Mark Warner for governor. This partisan swap has continued with the 2009 and 2013 governor elections.

Certainly there are examples of officeholders acting to disadvantage the other party. Legislative procedural changes affecting leadership positions or committees as well as

21 The figures used here are from The Almanac of American Politics 2014.22 Professor Allan J. Lichtman’s Expert Report, December 14, 2015, p. 28.


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redistricting offer many examples where a party seeks advantage over another party. If, however, rising Democratic strength as measured in a close election did not motivate Republicans to enact a photo ID law, then what is a possible alternative explanation? Elected officials respond to popular demands when enacting public policy.

“Government officials may make some rather general judgments about the state of public opinion that affect their policy agendas…there might be instances in which they feel the public at large virtually directs them to pursue a course of action.”23 Results from a survey conducted by the Pew Foundation show that requiring a photo ID to vote has broad support being approved by 77% of registered voters. The requirement gets near universal support among Republicans, 95% of whom approve. Even a majority of Democrats (61%) want voters to present a photo ID. Additional Pew Research survey data show that all ethnic groups strongly support photo ID laws, including 62% of African American registered voters. See Table 5 below.

Table 5: Pew Research Center’s Survey of Support for Photo ID Laws24

Interestingly, according to a Quinnipiac University poll taken in February 2013 when the Virginia General Assembly was debating and passing the voter photo ID law and before the Governor had signed the law, “Virginia voters say 75 – 23 percent that voters should be required to bring photo ID to cast their ballot on Election Day.”25 Table 6 reports some of the survey findings. When broken down by party, 95% of Republican registered voters in Virginia, 57% of Democrats, and 78% of Independents agreed that voters should show a photo ID at the polls. The survey also shows that 66% of African American registered voters support a voter photo ID

23 John W. Kingdon. 2011. Agenda, Alternatives and Public Policies, 2nd Edition. Longman Publishers: Boston, MA, page 65.24 Mark Hugo Lopez and Ana Gonzalez-Barrera. “Latino Voter Interest and Engagement.” Pew Research Center. October, 11, 2012. http://www.pewhispanic.org/2012/10/11/latino-voter-interest-and-engagement/25 Quinnipiac University Polling Center. February 21, 2013. “Virginia Voters Back Photo Id for Voting 3-1, Quinnipiac University Poll Finds; Let Home-School Kids Play on School Teams, Voters Say.” Accessed at http://www.quinnipiac.edu/news-and-events/quinnipiac-university-poll/virginia/release-detail?ReleaseID=1854.


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requirement. Moreover, younger voters, another group that Professor Lichtman claims Republicans sought to discourage from voting support the photo ID requirement by more than three to one.

Table 6: Virginia Voters Support of Photo Identification at Polls26

Virginia Registered Voters Support for Photo ID Requirements

Should or should not voters be required to show a photo identification before they are allowed to vote on Election Day in Virginia?

Total Republicans Democrats IndependentsShould 75% 95% 57% 78%Should not 23 4 41 20Don't Know 1 _ 2 1

White Black Should 79% 66%Should not 19 34Don't Know 2 1

Age 18-34 35-54 55+

Should 76% 79% 72%Should not 23 21 26Don't Know 1 1 2

N= 1,112 registered voters with a margin of error of +/- 2.9 percentage points.

Republicans enact voter photo ID laws in response to extensive public support for the initiative, especially in that component of the electorate that constitutes what Richard Fenno (1978) calls their reelection constituency.27 Virginia lawmakers responded to the overwhelming public support for voter photo ID requirements and not with an intention to disadvantage voters or a political party.

In keeping with the title Lichtman puts on his report, “Intentional Discrimination against African Americans in the Adoption of Virginia’s Voter Photo Identification Law (SB1256),” he perceives racial discrimination in the state’s failure to act to shorten waiting time at the polls and to extend the poll hours. The average wait time in 2008 in Virginia tied with that for the District

26 Ibid.27 Richard Fenno. 1978. HomeStyle. Pearson, Boston, MA. Also, it should be noted that in addition to Virginia’s registered voters’ support as referenced in the 2013 Quinnipiac University poll, SurveyUSA conducted a poll with the League of Women Voters of NC and Democracy North Carolina in April 2013 to gauge North Carolinians response to a new voter photo ID law. Results show that 75% of North Carolina registered voters support the requirement for voters to show a photo ID at the polls. (N=803, with margin of error +/- 3.5%. Survey results available at: http://www.surveyusa.com/client/PollPrint.aspx?g=8c5c6269-5692-483a-a5f0-9662c4e5567e&d=0. Thus, in a neighboring state to Virginia with similar black population percentages and partisan competitiveness, legislators are hearing of voter support for a voter photo ID law.


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of Columbia (D.C.), the most heavily Democratic jurisdiction in the U.S. Yet, by the same token, the D.C. government sought to discriminate against African Americans who are the largest share of the D.C. electorate? As of 2012, all three states with longer wait times than Virginia voted for Obama, and Maryland and D.C. had Democratic-controlled governments (see Lichtman’s report, page 42). Also, the wait times in Maryland and D.C. averaged more than 40% longer (11 to 12 minutes) than in Virginia. From 2008 to 2012 average wait time increased in D.C. from 28 to 37 minutes, and in Maryland wait time increased from 24 – 36 minutes. In Virginia at this same time, wait time decreased from 28 to 25 minutes. Is the failure of D.C. and Maryland to act to shorten waiting time a result of a desire to discriminate against blacks? This undermines the claim that Republicans allow longer wait times to prompt Democrats to leave the polls before voting. In the aftermath of the 2008 election, Democrats controlled the Virginia Senate. Lichtman condemns Republicans for not dealing with the long wait times,28 yet what steps did the Democrats take to address these issues?

Professor Lichtman argues that Virginia’s Republican legislative majority failed to pass a measure to extend the polling hours from 7 pm to 8 pm, indicating again intent to discriminate against minority voters. However, in 2014 and 2015, Virginia’s polls are open for 13 hours, from 6 am to 7 pm. Only five states: Connecticut, Iowa, Louisiana, New Jersey and New York open polls for more than 13 hours. Hence by implication, Lichtman would consider all other states (except for Colorado, Oregon, and Washington which vote by mail) guilty of an intent to discriminate since they do not keep polls open longer.

Yet again lacking direct evidence, Professor Lichtman relies on what Virginia legislators, in particular the Republicans, knew or might have known regarding the consequences for minority voters with the enactment of new photo ID requirements. Lichtman claims that Republicans knew or should have known that African Americans are less likely than whites to have photo IDs. He writes, “There was also substantial Virginia-specific information available at the time of the adoption of the 2013 strict voter photo ID law regarding both the lack of the most commonly available forms of photo ID – driver’s licenses and U.S. passports – and racial disparities in the possession of such IDs.”29 Along these same lines of what Republican legislators might have known, they might have also been aware that election results from Georgia and Indiana, the first two states to implement photo ID laws, do not indicate that minorities suffered. Black voter turnout increased.

Lichtman acknowledges that some Virginia legislators were knowledgeable about the Georgia law since they claim to have based the Virginia law on what Georgia had adopted several years earlier. Lichtman challenges a delegate’s claim that the Virginia law was modeled on the Georgia statute. Lichtman, first, misperceives the concept of “model” to interpret it as requiring an exact replica. Second, the Georgia statute is a reasonable model to use since the Georgia voter photo ID law was precleared by the Department of Justice and approved by both federal and state courts. Third, one deviation in Virginia’s law, i.e. expired documents can be used for a year in Virginia while in Georgia there is no time limit on their usage, does not mean that the Georgia law was not a model. Finally, while Lichtman points out a minor instance in which few individuals would be affected, he does not recognize that the Virginia law accepts a

28 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 47-48.29 Ibid, page 30.


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wider range of documents. Virginia’s photo ID law is more inclusive; and therefore, Virginia legislators learned from the experience of other states and expanded the range of acceptable IDs and provided for free voter photo IDs. Virginia lawmakers also responded to the public’s support for such an electoral measure.

B. Photo Identification Needed to Preserve Confidence and Integrity in Elections

In 2005 the Carter-Baker Commission issued a report recommending bold new approaches to reforming the American electoral system. The Commission noted that “building confidence in U.S. elections is central to our nation’s democracy” and encouraged measures to “improve ballot integrity.”30 One principal recommendation involved requirements that ensured that a person arriving at the polls to vote is the same one who is on the voter registration list. “The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.”31

Virginia lawmakers emphasized the importance of preserving the integrity of elections and ensuring that standards were in place to prevent voter fraud.32 Professor Lichtman acknowledges that Virginia legislators stressed the significance of this when adopting and passing the new voter photo ID law. Yet, Lichtman points to a lack of evidence of election fraud in the form of voter impersonation.33 Even if there is actually little voter fraud, belief that fraud, including impersonation, is widespread in the public and across racial lines. Symbolism is important in politics as any politician knows. Therefore, even if there is not an actual problem to be addressed by the Virginia law, it may still serve a purpose.

Social science research by Ansolabehere and Persily provides estimates of the extent to which population subgroups believe voter fraud exists.34 A survey of 1000 people done during the week of the 2008 Super Tuesday presidential primary in early February found little racial difference in the distribution of beliefs about fraud. Results are presented in Table 7.

Table 7: Beliefs about the Extensiveness of Vote Fraud35

VeryOften

SomewhatOften

SomewhatRare

VeryRare

NotSure

White 13% 35% 25% 15% 12%Black 13% 36% 18% 16% 16%Hispanic 14% 32% 21% 18% 15%

30 Carter-Baker Commission Report. September 2005. Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform. Pages iv-v. See the Appendix for the full Commission Report.31 Ibid., page 18. 32 Trip Gabriel. “Virginia Lawmakers Pass Photo-ID Requirement for Voters.” The New York Times. (February 20, 2013). www.nytimes.com/2013/02/21/us/virginia-lawmakers-pass-photo-ID-voting-requirement.html.33 Professor Allan J. Lichtman, Expert Report, December 14, 2015, pages 28-29.34 Stephen Ansolabehere and Nathaniel Persily, “Voter Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,” Harvard Law Review 121 (2008), 1737 - 1774.35 Ibid., page 1763.


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The survey instrument also asked about perceptions of voter impersonation. Whites were actually only about half as likely as Blacks or Hispanics to believe that voter impersonation occurs very often. However if the first two categories are combined, racial differences disappear. The share of respondents who believed that impersonation happened at least somewhat often is quite similar across racial categories. Table 8 below shows results.

Table 8: Beliefs about the Extensiveness of Voter Impersonation36

VeryOften

SomewhatOften Rarely

VeryRarely

NotSure


The same paper reports data from a larger survey conducted in 2007 that gave respondents a different set of options for their answers. The 2007 survey found greater differences across ethnic groups although most Whites and Blacks along with a plurality of Hispanics believed that voter fraud occurred either occasionally or is very common. Table 9 presents these results.

Table 9: Beliefs about the Extensiveness of Vote Fraud37

VeryCommon Occasionally Infrequently

NeverHappens

NotSure


These figures help account for the extensiveness of support for laws requiring photo IDs of prospective voters as detailed in materials from Pew Research Center’s surveys reproduced above. In addition, in 2008, Professor Robert Pastor and the American University Center for Democracy and Election Management produced a study based upon a survey of registered voters to assess the impact of voter identification systems in three states: Mississippi, Maryland, and Indiana.38 They found that 17 percent of respondents said they saw or heard of fraud at their own precincts, and 60 percent saw or heard it at other polling places. Moreover, this study highlights:

At the aggregate level, more than 25 percent of registered voters do not have confidence that their votes will be counted accurately, and

36 Ibid., page 1764.37 Ibid., page 176138 Dr. Robert Pastor, Robert Santos, Alison Prevost, and Vassia Gueorguieva. American University Center for Democracy & Election Management, “Voter IDs Are Not the Problem: A Survey of Three States,” American University, Washington, D.C. (January 9, 2008) http://www.brennancenter.org/sites/default/files/legacy/Democracy/Pastor%20study.pdf.


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17 percent are unsure. That is far too high for an advanced democracy. By state, we see…that one-third of the voters in Mississippi and 28 percent in Maryland lack confidence in accurate vote counting. Indiana, with the most stringent voter ID requirements, has the highest confidence and fewest doubts of the three states.39

These authors also found that “more than two-thirds of respondents believe the U.S. electoral system would be trusted more if voters were required to show a photo ID. This is significant because the perception of fraud among the voters is high and the confidence in the electoral system is low.”40 Having a strict photo ID requirement in place has not necessarily been associated with more confidence in the electoral system. Majorities of voters show their support for the voter photo ID laws to combat perhaps some known instances of voter fraud and their perceptions of electoral fraud, but these laws and other requirements do not automatically give them confidence in the system or that their votes are counted. “People may think voter fraud occurs often, but that belief appears disconnected from the likelihood that someone engages with politics and votes.”41 Nonetheless, some evidence indicates that voter photo identification requirements can enhance public confidence in states’ voting systems and elections and that a properly administered voter identification requirement does not impair the right or ability of any legitimate voter from casting a ballot.

C. Photo Identification Laws Keep People from Voting?

Scholarly research is mixed on what impact more demanding standards have on voter turnout. One analysis of CPS data from 2000 through 2006 found no relationship between identification requirements and turnout at the aggregate level.42 Using individual-level data the authors find an inverse relationship between stricter identification requirements and turnout in general. This effect is magnified for those of lower socioeconomic status (income and education) but is not related to the race or ethnicity of the voter. A study of the impact of heightened ID requirements on 2004 turnout using Census Bureau estimates found no relationship between identification requirements and turnout for the entire electorate.43 However states that adopted new standards had lower turnout among Hispanics, but not among African American or Asians. An examination of the 2004 Census Bureau estimates found no relationship between voter identification requirements and turnout in general or racial/ethnic minorities in particular.44

Research relying on Census Bureau estimates from the 2002 and 2006 concluded that when a state moves from lenient to strict identification requirements it appears to dampen turnout by a

39 Ibid. page 29.40 Ibid., page 10.41 Stephen Ansolabehere, “Effects of Identification Requirements on Voting: Evidence from the Experiences of Voters on Election Day,” PS: Political Science and Politics (January 2009): 13042 R. Michael Alvarez, Delia Bailey and Jonathan Katz, "The Effect of Voter Identification Laws on Turnout." (Pasadena, CA: CalTech/MIT Voting Technology Project, 2008).43 Timothy Vercellotti and David Anderson, "Voter-Identification Requirements and the Learning Curve." PS:Political Science and Politics 42 (January 2009): 117-120. 44 David B. Muhlhusen and Keri Weber Sikich “New Analysis Shows Voter Identification Laws Do Not Reduce Turnout.” A Report of the Heritage Center for Data Analysis. www.heritage.org/Research/LegalIssues/cda07-04.cfm


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few percentage points; however, this relationship is statistically inconclusive.45 Research using the Cooperative Congressional Election Surveys for the elections of 2000 – 2006 finds no statistically significant relationship between voter identification statutes and turnout.46

Professor Lichtman acknowledges that only a tiny fraction of Virginia voters lacked adequate identification under the old law. “According to a State Board of Elections memo dated 31 October 2012 – before adoption of the 2013 law – ‘On average for the past several Virginia elections, ¼ of 1% of total voters did not present acceptable identification and completed an affirmation of identity at the polling place.’”47 A detailed study of the impact of the photo ID law that Georgia implemented in 2008 concluded that it may have excluded 16,642 voters thus reducing turnout by 0.32%.48 Whites, and not minorities, were the groups most likely to lack an acceptable, government-issued photo ID. The elderly were also disproportionately likely to lack a requisite ID.

Implementation of the Virginia photo ID law has not been a problem as evidenced by turnout. Official statistics collected by the state show that turnout in the 2015 general election (1,509,864 = 29.1% of registrants) exceeded that in 2011 (1,463,761 = 28.61% of registrants). Turnout in 2014 (2,194,346 = 41.6% of registrants) almost equals that for 2010 (2,214,503 = 44.01% of registrants).49 In Virginia’s 2014 general election, 235 votes of the 494 votes (0.01% of total votes) cast provisionally were not counted for the reason that the voter did not present an acceptable form of identification under the voter photo ID law. In Virginia’s 2015 general election, the most recent election, only 408 votes (0.027% of total votes cast) were cast provisionally because the voter did not present an acceptable form of ID. Even these numbers probably exceed the number of voters who lacked an acceptable ID. Some of those who forgot to bring a photo ID and cast a provisional ballot almost certainly forgot to return with the acceptable document because they became busy doing other things, simply forgot, or saw no need to return since the election had been settled. We find that in the most recent elections very few voters, i.e. fewer than 500 and that is less than 0.03% of all votes cast, are voting provisionally due to lack of an acceptable ID.

45 Robert Erikson and Lorraine Minnite, “Modeling Problems in the Voter Identification—Voter Turnout Debate.” Election Law Journal 8(2009); 85-101. 46 Jason D. Mycoff, Michael W. Wagner and David C. Wilson, "The Empirical Effects of Voter-ID Laws: Present or Absent?" PS: Political Science and Politics 42 (January 2009): 121-126. 47 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 26.48 M. V. Hood, III, and Charles S. Bullock, III, “Much Ado about Nothing: An Empirical Assessment of the Georgia Voter Identification Statute.” State Politics and Policy Quarterly 12 (2012): 394 - 414. 49 Note that nationally turnout was down in 2012 compared with 2008. According to the U.S. Elections Project, 130,292,355 ballots were cast in 2012, down from 132,609,063 cast in 2008.


19

Virginia’s 2013 voter photo ID law has more acceptable IDs than other states with similar strict voter requirements. For instance, acceptable Virginia IDs are more inclusive than in Georgia and far more inclusive than Texas. Georgia limits college IDs to students attending public institutions; Virginia accepts those from any college in the state. Georgia does not accept private employer IDs; Virginia does. Table 10 shows a comparison of selected states and their acceptable photo IDs for voting. The Virginia voter photo ID law is much more accepting of the forms of ID than those in any of the four states in which a photo ID law has survived a court challenge, i.e. Indiana, Georgia, North Carolina and South Carolina. The fate of the Texas law remains to be determined having been remanded by the Fifth Circuit back to the trial court.

In addition, the 2013 voter photo ID law provided funding for voter outreach and to make available free voter ID cards. Professor Lichtman points to “4,622 free voter IDs printed or pending” over two years as indicative that the state has done a poor job of outreach.50 An alternative interpretation is that very few Virginians need a free ID. As noted above, one-tenth of a percent of total votes cast in 2014 were provisional and then not counted because the voter failed to provide adequate identification. That is given, the various forms acceptable, the vast majority of Virginians have one or more types.

50 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 35.

Table 10: Acceptable Forms of Photo IDs for Voting

Virginia Georgia Indiana Texas South Carolina North Carolina

Drivers License X X X X X X

Free State ID X X X X X X

U.S. Passport X X X X X X

State Document X X X

Federal Document X X X

Military X X X X X X

Veterans ID X * X X

Government Employee X X *

Private Employee X

Public College X X X

Private College X

Tribal ID X X X

Gun-Carry Permit X X

U.S. Citizen Certification X

Expired ID 1 year X 60 days >70 years old

X= Specifically mentioned

* Not specifically mentioned but seemingly covered by the acceptance of any document containing a photo issued by a governmental unit.


20

Lichtman’s Chart 10 on page 34 shows the percentage of Black and White adultspossessing each of five types of acceptable photo IDs.51 Whites are more likely than Blacks to have driver’s licenses and passports. Blacks are more likely than whites to have a government employee or student ID and the two races have veteran IDs at essentially the same rate.

There are several points to consider regarding these figures of who has access to certain identifications. First, Professor Lichtman presents these figures in Chart 10 and they are for all adults of voting age; they are not for registered voters so they bear only indirectly on the issue at hand, i.e. that a disproportionate share of Democrats and especially African Americans are being kept from voting.

Tables 10, 11, and 12 in Lichtman’s expert report rely on tiny samples of Blacks with an N=23 to 26. Professor Lichtman reports the percentage and tests for the statistical significance in these differences of the percentages. These are small samples, and therefore, some methodological issues may be present. For instance, what would be shown if we placed a confidence interval around these point estimates? Would the confidence interval for blacks overlap the confidence intervals for whites? Using the standard .05 probability, the confidence intervals for black and white holders of driver’s licenses in Tables 10 and 11 overlap indicating no significant difference. This overlap is what is meant when commentators reviewing results of a survey of voter preferences state that there is a statistical dead heat. See Table 11 for Lichtman’s estimates and the corresponding confidence intervals. The confidence intervals for Virginia younger adult (18 to 29) and older adult (30 years plus) holders of driver’ licenses in Lichtman’s Table 12 also overlap indicating no significant difference.52 The reason that Lichtman shows a statistically significant difference between black and white holders of driver’s licenses in Tables 10 and 11 is that he does not consider sample size. Furthermore, given the small numbers of blacks and with all but four of the blacks in the SPAE survey having a driver’s license and five having a passport. It is possible that if all of the acceptable photo IDs were considered, all blacks in the survey might have a photo ID. The SPAE survey did not explore whether respondents had a student, veterans, or employee photo ID.

51 Ibid, page 34.52 Lichtman’s Table 12 reports that there is no statistically significant difference between the age groups in their possession of U.S. passports.


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Source: Confidence Intervals and graph compiled by Dr. Karen Owen based on Professor Allan Lichtman’s estimates of driver’s license possession by registered voters in Virginia. His data are derived from the Survey of the Performance of American Elections, 2008, Virginia.

“The data does (sic) not establish that persons actually possess such IDs (e.g. not all government workers have an employee photo ID.”53 By the same token, Lichtman does not know what share of the electorate lacks all of the various forms of acceptable ID. Thus, he does not know what share of the Black electorate has none of the types of photo ID. Undoubtedly, some Blacks who do not have a driver’s license have student or veteran IDs. Also, Lichtman asserts that young adults are disadvantaged by photo ID requirements54 but most college students are young adults. He reports from the American Community Survey that “the percentage of voting age African Americans attending institutions of higher education in Virginia is slightly higher than whites, at 12.5 percent versus 9.6 percent.”55 Thus, if more African American young adults in Virginia are in college, then they would possess an acceptable ID and not be disadvantaged in voting. Some older adults may have given up driving, but these older adults are the ones who may have fought in World War II or the Korean War and therefore have veteran IDs. The bottom line is that no one knows what if any disparity exists between Whites and Blacks, but it is less than the differences shown for drivers’ licenses and passports.

Lastly, Lichtman writes on page 39 of his report “There was no indication from the Board that it took into account the potential discriminatory impact on African Americans and other minorities of prohibiting use of IDs that had been expired for more than 12 months.” He does not provide any evidence that a Black is more likely than a White to have an ID that expired 53 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 34. 54 Ibid, page 4. 55 Ibid, page 34. However, the data from the American Community Survey that show the greater share of African American than white college students seem highly unlikely given high school dropout and incarceration rates.

60

65

70

75

80

85

90

95

100

105

Black RegVoters

White RegVoters

Black ObamaVoters

WhiteObamaVoters

Age18-29

Age30+Per

cen

tage

of

Vo

ters

wit

h D

rive

r's

Lice

ncs

e

Table 11: Estimates and Confidence Intervals for Driver's License Possession, By Race and Age of Registered Voters

Dr. Allan Lichtman's Estimate


22

more than 12 months prior to the effort to vote? Therefore, how can we know if there are racial differences and a racial impact of the Board’s expiration requirement?

D. Examining the Applicability of the Senate Factors

In his review of the Senate Factors, Professor Lichtman treats Virginia’s failure to permit early voting as a violation under Factor 3 that is a “voting procedure that enhances opportunities for discrimination.”56 To sustain this claim, states with histories of discrimination should be among those without early voting while those that were never subject to Section 5 of the Voting Rights Act should allow early voting. Most states once subject in their entirety to Section 5 permit early voting. These states include: Alaska, Arizona, Georgia, Louisiana, and Texas.57 Each of these is a securely Republican state although projections suggest that Georgia and Texas will become competitive at some future date. Both Florida and North Carolina which were partially subject to Section 5 have early voting as does California in which a few counties were covered by preclearance. New York in which parts of New York City were subject to preclearance does not permit early voting. New York is a securely Democratic state while Republicans currently control state government and the congressional delegations in Florida and North Carolina even though they are toss ups in presidential elections and may become competitive in statewide non-presidential contests soon. States in which no significant share of the population was subject to Section 5 that do not allow early voting are: Connecticut, Delaware, Kentucky, Maryland, Michigan, New Hampshire, Pennsylvania, and Rhode Island.58

Note that Connecticut, Delaware, Maryland, Michigan, Pennsylvania, and Rhode Island are all solidly Democratic states. Here we see that Virginia’s neighbor, Maryland, a staunch Democratic state joins Virginia in not permitting early voting. If failure to permit early voting is a stratagem used by Republicans to hurt Democrats by reducing Black voting, then Democratic-controlled states would have early voting and Republican states (especially Georgia and Texas, one of the first states to implement early voting) would not.

Lichtman’s Table 18 (page 50 of his report) documents the Center for American Progress’s rankings of states’ access to voting. According to Lichtman, “Virginia received a grade of F for access to the ballot”59 and the worst states should be those that are competitive and controlled by the Republicans. However, we do not find this. The states ranked lowest in access to the ballot include Tennessee, Michigan, North Carolina, Pennsylvania, Missouri, Arizona, Georgia, and Ohio. Therefore, availability of early voting and poor access to the ballot do not fit the pattern for Senate Factor 3.

In his assessment of Senate Factor 7 which is “the extent to which blacks have achieved public office at rates proportional to their share of the population,” Professor Lichtman holds that minorities are unable to participate fully in the electoral system and elect representatives of their choice.60 The 1982 Voting Rights law specifically denies an obligation to have proportional representation. Section 2 ends with: “Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the

56 Ibid, page 6157 States subjected to Section 5 without early voting are Alabama, Mississippi, South Carolina, and Virginia. 58 Tiny shares of the populations of Michigan and New Hampshire lived in precincts subject to preclearance.59 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 50. 60 Ibid, page 63.


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population.”61 Lichtman notes that 13% of the state senators and representatives are black which he compares to what he reports to be a black citizen voting age population (BCVAP) of 19.6%. Thus there is a 6.6 percentage point difference. The neighboring state of Maryland offers a basis for comparison with Virginia since Maryland is a Democratic state in which Democrats have commanding majorities in both legislative chambers. Although a Republican took office earlier this year, Larry Hogan is only the second Republican governor of the state in almost 50 years. Democrats drew the current legislative maps and used their advantage to reduce the number of Republicans in the congressional delegation from two to one. If, as per Lichtman, racist Republicans are responsible for Blacks not having a proportional share of Virginia’s legislative seats, Blacks should come closer to proportional representation in Maryland. In Maryland Blacks hold 19.1% of the Senate and House seats compared to constituting 29.8% of the state’s population. The disparity is 10.7 points. Lichtman reports that the black presence in the Virginia Senate “amounts to just 64 percent of the African American citizen voting age population of 19.6 percent” and in the House 66 percent of the BCVAP.62 In Maryland the black share of the legislative seats amounts to 64 percent of the BCVAP.

That Democratic Maryland and Republican Virginia legislatures have identical levels of difference between black legislators and BCVAP suggests that there may be an explanation rather than racism that Lichtman points to. It is universally accepted that in an unbiased electoral system that uses single-member districts, the minority party will achieve a share of seats smaller than its share of the votes. Some have referred to as the Matthew principle while others call it the Sheriff of Nottingham effect. Similarly, a racial or ethnic minority will often have a share of seats in a collegial body smaller than its share of the population or CVAP. Important to note that Virginia is one of only two states to elect a black governor.63

V. Conclusion

In evaluating Professor Lichtman’s report on the intentional discrimination against African Americans and would-be voters due to the adoption and implementation of Virginia’s voter photo identification law, it is my expert opinion that his arguments and conclusions are inferences drawn from incomplete analysis of an entire array of pertinent data related to voters and other states with voter photo ID laws. Therefore, his conclusions do not sufficiently support the claim. Lichtman argues that Virginia’s adoption of a photo ID requirement was based on racial motives with efforts to eliminate Democratic voters. However, of the sixteen states with photo IDs, ten have smaller black populations than Virginia and in six the black population is less than half that of Virginia’s. In addition, if Republicans were seeking to reduce Democratic strength then requiring voters to present photo IDs did not achieve that goal. Virginia did not experience a decrease in voter turnout in the most recent statewide electoral contests of 2015 compared to the similar elections held in 2011. In addition, in 2015, less than 500 votes were cast provisionally because the voter did not have an acceptable ID for the new voter ID requirement. That is less than 0.029% of all votes cast during the 2015 election. Moreover, in 2013 when the new voter photo ID law was being debated, a significant majority of registered voters in Virginia (75% to 23%) supported a voter showing his/her photo ID before casting a 61 Thornburg v. Gingles, 478 U.S. 30 (1986) quoting S. Rep. No.97-417 (1982).62 Professor Allan J. Lichtman, Expert Report, December 14, 2015, page 63.63 Virginia elected Douglas Wilder in 1989; Massachusetts elected Deval Patrick in 2006. Two other African Americans served as governors: PBS Pinchback in Louisiana and David Paterson in New York.


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