6:10-cv-01407-MGL

Date Filed 07/02/13

Entry Number 139-6

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION THE GREENVILLE COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE, et al., Plaintiffs, vs. BILLY WAY, Jr., et al., Defendants and, WAYNE GRIFFIN, et al., DefendantsIntervenors. _____________________________________ DEFENDANT-INTERVENORS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO F.R.C.P. RULES 12(c) and 56 AND TO PRECLUDE TESTIMONY BY PLAINTIFFS EXPERT WITNESSES INTRODUCTION This memorandum is submitted by defendants-intervenors in support of their combined motion to dismiss pursuant to F.R.C.P. Rules 12(c) and 56 for lack of standing and to preclude testimony by plaintiffs expert witnesses. Should the expert testimony be precluded, the action must also be dismissed, as without it plaintiffs cannot prove the open primary system is unconstitutional as applied. The facts on which each motion is based are undisputed, consisting entirely of documentary evidence. These documents have been filed with the district court, except for the current State and Greenville County Republican Party rules and plaintiffs' expert reports, which CA No. 6:10-1407-MGL

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are annexed to the declaration of Harry Kresky, submitted herewith, as Exhibits A, B, C-1, C-2 and D respectively. PROCEDURAL HISTORY This action was commenced on or about June 1, 2010 by the Greenville County Republican Party Executive Committee, the South Carolina Republican Party and a number of individuals. (Entry No. 1) The gravamen of the complaint was that South Carolinas open primary under which voters not registered into a political party are permitted to vote in that partys primary violated the associational rights of the Republican Party under the First and Fourteenth Amendments to the United States Constitution. (Entry No. 52, pp. 1-2, 8-9) In its opinion and order of March 30, 2013 (Entry No. 54), the district court rejected a facial challenge to this system on the grounds that, inter alia, because the State permitted the Party to nominate by convention as well as by primary, its associational rights were not violated. (Entry No. 54, p. 12) By Opinion and Order dated July 18, 2012 the district court permitted plaintiffs to go forward with an as applied challenge. (Entry No. 66) With Courts permission, on January 6, 2012 plaintiffs filed an amended complaint (Entry No. 75), adding the Greenville County Election Commission, Greenville County Board of Registration and the City of Greenville Municipal Election Commission as defendants. The core of the action remained the same, although the amended complaint pled additional allegations specific to Greenville County and the conduct of its county and municipal elections. All parties were allowed full discovery, and the case was set down for trial on August 21, 2013. (Entry Number 133) On June 7, 2013 the South Carolina Republican Party, with the consent of the defendants and defendant-intervenors, filed a stipulation pursuant to F.R.C.P. Rule 41 dismissing its claims without prejudice. (Entry No. 137) The remaining plaintiffs are the

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Greenville County Republican Party Executive Committee, the Chair of the Greenville County Republican Party (plaintiff Bette S. Poe), and William Billy Mitchell, a resident and citizen of Greenville County, South Carolina. ARGUMENT I. THE REMAINING PLAINTIFFS LACK STANDING TO PURSUE CLAIMS THAT SOUTH CAROLINAS OPEN PRIMARY VIOLATES THE REPUBLICAN PARTYS RIGHT TO FREEDOM OF ASSOCIATION UNDER THE FIRST AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION The first, third, and fourth causes of action in the amended complaint are based on the position that the conduct of an open primary in which voters who may be Democrats or Independents in their political orientation are permitted to vote in a Republican Party primary violates the Partys freedom of association. 1 With the withdrawal of the State Republican Party, this claim is being asserted by the local Republican organization and individuals in Greenville County. Under the authority set forth below, it is respectfully submitted that these plaintiffs lack standing to assert a claim that the associational rights of the Republican Party, under the First and Fourteenth Amendments to the United States Constitution, have been violated. In Beck v. Ysursa, 2007 U.S. Dist. LEXIS 86928, 2007 WL 4224051 (D. Idaho Nov. 27, 2007) it was held that the right to challenge the Idaho open primary could only be asserted by the State Republican Party, not a group of members purporting to sue on its behalf. The district court took note of the fact that in California Democratic Party v. Jones, 530 U.S. 567, 120 S. Ct. 2402, 147 L. Ed. 2d 502 (2000), where the U.S. Supreme Court overturned a form of open primary in California, the plaintiffs were the state organizations of the major and minor parties
1

The second cause of action asserts a claim for equal protection under the 14th Amdendment. While it deals mainly with the conduct of elections in Greenville County, paragraph 67 of the amended complaint, part of the second cause of action, addresses the requirement of a seventy five (75%) vote to opt of out of a primary and nominate by convention at the state or county level. As noted above, this provision was a cornerstone of the district courts rejection of a facial challenge to the open primary and implicates State Law as well as the State Party. As a result, plaintiffs are devoid of standing to assert this cause of action as well, and the action must be dismissed in its entirety.

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themselves, and the governing body of each party had adopted a rule barring non-party members from voting in its primary. Beck, supra, at 20. Plaintiffs do not allege that such a rule has been

adopted by the South Carolina Republican Party. The district court in Beck, supra, also relied on Osburn v. Cox, 369 F.3d 1283, 2004 U.S. App. LEXIS 9563, 17 Fla. L. Weekly Fed. C 553 (11th Cir. Ga. 2004). cert. denied, 543 U.S. 943, (2004). There, it was held that voters for a candidate that lost in an open primary could not challenge the nature of the primary on the grounds that such a primary violated First and Fourteenth Amendment rights, as that right belonged only to a political party , not to individuals. Marshall v. Meadows, 921 F. Supp. 1490, 1996 U.S. Dist. LEXIS 5072 (E.D. Va. 1996) was another case in which a challenge to an open primary was attempted without the state party's participation. The district court held: On the separate question of capacity to sue as a representative of the Party, as in Connell plaintiffs have raised a separate and more troubling issue. The plaintiffs have not clearly demonstrated that they are the proper party to invoke judicial review. The Party itself has not joined this suit and in fact refused to initiate it. The proffered reasons for this refusal - cost, shortness of time, political appearances or support for the statute - are ultimately irrelevant. The Party's actions must speak louder than the conflicting motivations attributed to it by opposing litigants, and those actions are clear: the Party chose an open primary and chose not to challenge the primary law or even add protesting language to its Party Plan. That two of the most prominent members of the Party, a United States Senator and its Chairman, disagree in this litigation is the final proof that plaintiffs cannot demonstrate a proper representative capacity. Plaintiffs have demonstrated no standing as a proper party and therefore no jurisdiction exists. Id., at 1493. The Court of Appeals affirmed. Marshall v. Meadows, 105 F.3d 904, 1997 U.S. App. LEXIS 1038 (4th Cir. Va. 1997) While none of these cases involved specifically the issue of a county committee of a state party, it is clear that the right to sue is a right belonging to the State Party, a right not even its chairman can arrogate to himself. This is supported by the rules of the State Republican Party

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and the Greenville County organization, which make clear that the county organization is subordinate to the state organization. 2 Rule 2(h) of the State Party prohibits a county organization from adopting any rule inconsistent with the State rules. Rule 10(b) of the State Party gives the State Executive Committee the power to resolve any dispute within a county organization. Rule 2A of the County Party requires it to Promote the Republican philosophy, principles, and creed throughout the County. And County Rule 2C states: The South Carolina Code as it applies to political parties and the Rules of the South Carolina State Republican Party are included herein by reference and shall take precedence over these Rules in the event of any conflict between them. The subordination of the County organization to the State Party and its principles deprives the remaining plaintiffs, the Greenville County Republican Party Executive Committee, the Chair of the Greenville County Republican Party (plaintiff Bette S. Poe), and William Billy Mitchell, a resident and citizen of Greenville County, South Carolina of standing to maintain this action. In this regard, it must be noted that, by withdrawing, the State Republican Party is taking the position that it does not seek to overturn South Carolinas open primary. In sum, since the associational right being asserted here is that of the Republican Party, no one but the party can claim the necessary concrete and particularized injury to confer standing and create an actual case or controversy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. ad 351 (1992). A plaintiff cannot assert a claim that is based on the legal rights or interests of third parties. Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). See also Dunmore v. United States, 358 F.3d 1107, 1112 (9th Cir. 2004). Indeed, who can say that even one of the other 45 county Republican Party organizations in South Carolina supports the position of the remaining plaintiffs herein, Republicans in Greenville County and their county organization?
2

The rules are annexed as Exhibits A and B to the declaration of Harry Kresky submitted herewith.

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II.

PLAINTIFFS EXPERT WITNESSES SHOULD BE PRECLUDED FROM TESTIFYING AT TRIAL 1. The reports of these experts do not meet the requirements of F.R.C.P. Rule

26(a)(2). The Rule states: (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. The report and supplemental report of Dr. Nathan Drake (Exhibit C-1 and C-2 respectively to the declaration of Harry Kresky) consist of a series of calculations of primary participation by South Carolina voters, a short instruction explaining how the calculations were made, and Dr. Drakes curriculum vitae. Missing are: any statement of the opinions the witness will express and the basis and reasons for them; exhibits to support the calculations; other cases in which Dr. Drake testified; and the compensation he will be paid for his report and testimony. The report of Reginald Ecarma Ph. D. (Exhibit D to the declaration of Harry Kresky) consists of a one-page statement, followed by his compensation, an admission that he has never testified as an expert before, and his curriculum vitae. The one-page statement recites several articles and documents he reviewed and the following opinion: 6

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It is my opinion, to a reasonable degree of political communication certainty, that it is more probable than not that South Carolinas open primary system strongly influences or causes Republican candidates and officials to moderate or change political speech in contradiction to the principles found in the South Carolina Republican Party and Greenville County Republican Party platforms. The moderation or change is predicated by the Republican candidates and officials prior knowledge that Democrats and Independents can and do vote in the Republican Party primary. Missing are the basis and reasons for this opinion, the facts and data considered by the witness in forming it, and any exhibits to be relied on. The blatant failure to meet the requirements of Rule 26(a)(2) is grounds for precluding either witness from testifying at trial. Romero v. Drummond Co., 552 F.3d 1303, 2008 U.S. App. LEXIS 25861, 21 Fla. L. Weekly Fed. C 1341 (11th Cir. Ala. 2008) 2. The experts and their opinions are not admissible under Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993). F.R.Ev., Rule 702 states: A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: a) the experts scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b) the testimony is based on sufficient facts or data; c) the testimony is the product of reliable principles and methods; and d) the expert has reliably applied the principles and methods to the facts of the case. Daubert construed Rule 702 as replacing the requirement that expert testimony be admissible only if the opinions given are generally acceptable, with a less stringent test, namely, that they be both reliable and relevant. The following factors are to be considered in determining whether this standard has been met: (1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to publication and peer review; (3) whether there is a high known or potential rate of error associated with a particular technique; (4) whether there are standards controlling the operation of the technique; and (5) whether the technique enjoys general 7

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acceptance within a relevant scientific community. Daubert, at 592-594. The Daubert criteria have been held to apply to testimony based not just on the hard sciences. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Such testimony includes that of social scientists. Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996). The district courts role with regard to expert testimony is that of a gatekeeper. It must determine whether or not to admit the experts testimony. See, Daubert v. Merrell Dow Pharmaceuticals Inc., 43 F.3d 1311 (9th Cir. 1995). In the case at bar, such a determination must be made on the basis of the expert reports served by plaintiffs and annexed as exhibits C-1, C-2 and D to the moving papers. There is nothing else in the record. An analysis of the two reports under the above criteria reveals them to be woefully inadequate. Dr. Nathan Drake is an Assistant Professor of Mathematics at North Greenville University. His resume, at the end of Exhibit C-1, demonstrates no expertise in the area of political science and no experience analyzing voting patterns. In 2010 he co-authored an article entitled, Parameter choices and a better bound on the list size in the Guruswami-Sudan algorithm for algebraic geometry codes. He is currently working on an article entitled, Modifying probability distributions in the Monty Hall problem. 3
3

Wikipedia describes the Monty Hall problem as follows: The Monty Hall problem is a probability puzzle, loosely based on the American television game show Let's Make a Deal and named after the show's original host, Monty Hall. The problem was originally posed in a letter by Steve Selvin to the American Statistician in 1975 (Selvin 1975a), (Selvin 1975b). It became famous in the following form, as a question from a reader's letter quoted in Marilyn vos Savant's "Ask Marilyn" column in Parade magazine in 1990 (vos Savant 1990a): Suppose you're on a game show, and you're given the choice of three doors: Behind one door is a car; behind the others, goats. You pick a door, say No. 1, and the host, who knows what's behind the doors, opens another door, say No. 3, which has a goat. He then says to you, "Do you want to pick door No. 2?" Is it to your advantage to switch your choice?

http://en.wikipedia.org/wiki/Monty_Hall_problem (6/27/13) 8

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Dr. Drakes report, as noted above, consists entirely of a series of calculations of which primary South Carolina voters chose to participate in. In the absence of an opinion by Dr. Drake, it is impossible to evaluate the relevance of the data, the usefulness of Dr. Drakes expertise in abstract mathematical calculation, and what method he has employed or would employ in analyzing the data he provides and its application to the case at hand. There has, of course, been no showing that Dr. Drake has used a theory or technique that has been or can be tested, or that it has been subjected to peer review and whether there are standards for its use and application. In fact we do not even know the theory on which his compilation of data is based, what it has to do with the case at hand, much less that it is reliable as a tool for understanding the issues in this case. Under the circumstances, the testimony cannot be permitted. Dr. Encarmas report suffers from almost the opposite problem. He gives a two sentence opinion, quoted in full above, that the South Carolina opens primary causes candidates and elected officials to moderate or change their political speech so that it contradicts the Republican Party platform. The expert provides no data even of an anecdotal nature to support this position. There has been no showing whatever of the methods employed to arrive at the opinion, much less its validity, reliability and level of acceptance. Dr. Ecarma specializes in political communication. However, his resume (at the end of Exhibit D to the declaration of Harry Kresky) contains nothing indicating experience in the area of primary elections and cross-over voting. It appears that Dr. Encarmas opinion is based on several articles he read. The party presenting the expert must show that the experts findings are based on sound science, and this will require some objective, independent validation of the experts methodology. Daubert (Court of Appeals), 43 F.3d at 1316. Plaintiffs have not me this burden; the testimony must be excluded.

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CONCLUSION For the reasons set forth above, this action should be dismissed. Even if plaintiffs have standing, they cannot proceed without expert testimony, because without it they have no way to prove that the South Carolina open primary is unconstitutional as applied. Dated: July 2, 2013 Harry Kresky Law Office of Harry Kresky 505 West 54th Street (Suite 419) New York, NY 10019 Telephone: 212-581-1516 Facsimile: 212-581-1352 Email: hkresky@harrykreskylaw.com s/ Fletcher N. Smith Fletcher N. Smith Fletcher N. Smith & Assoc. PO Box 10496 Greenville, SC 29603 Telephone: 864-232-6541 Facsimile: 864-232-6756 Email: fnsmith@bellsouth.net
Attorneys for Defendants-Intervenors

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