Ravalli County Republican Central Committee v. McCulloch et al
Filing
111
ORDER denying 85 Motion to Strike. Signed by Judge Brian Morris on 11/24/2015. (SLL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
RAVALLI COUNTY REPUBLICAN
CENTRAL COMITEE, GALLATIN
COUNTY REPUBLICAN CENTRAL
COMMITTEE, SANDERS COUNTY
REPUBLICAN CENTRAL
COMMITTEE, DAWSON COUNTY
REPUBLICAN CENTRAL
COMMITTEE, STILLWATER
COUNTY REPUBLICAN CENTRAL
COMMITTEE,
CV-14-58-H-BMM
ORDER
Plaintiffs,
v.
LINDA McCULLOCH, in her official
capacity as Montana’s Secretary of
State, et al.,
Defendants.
Plaintiffs have challenged Montana’s open primary requirement as
unconstitutional. (Doc. 1.) Plaintiffs argue that Montana’s open primary inflicts
First Amendment injuries upon them by forcing them to associate with nonRepublican voters. Plaintiffs assert that Montana’s system as applied to the
Republican Party inflicts First Amendment injuries by preventing the Plaintiffs
1
from identifying their members, effecting election outcomes, and changing
candidates campaign messaging.
Plaintiffs have submitted an expert report from Kyle Saunders, Ph.D and
Steven Green, Ph.D (collectively the “Party Experts”). The reports evaluate “both
empirical and anecdotal [evidence]” regarding Montana’s open primary elections.
Plaintiffs rely on this report to support their claim that crossover voting occurs in
Montana, that the threat of crossover voting forces Republican candidates to
change their campaign messaging, and that in some instances crossover voting has
the potential to effect electoral outcomes. The Party Experts report that the
Montana Education Association-Montana Federation of Teachers (“MEA-MFT”)
engages in a “concerted effort” to encourage “non-Republican identifying voters”
to vote in state legislative Republican primaries. (Doc. 71-2 at 19-21.)
The State argues that the opinions of the Party Experts fail to meet the
standard for admissibility set forth by Federal Rule of Evidence 702 and Daubert
v. Merrel Dow Pharm., Inc., 509 U.S. 589, 589 (1993). The State argues that Party
Experts have failed to tie their theories to the facts of this case. The State’s
argument focuses on the reliability and the relevance of the Party Experts’
opinions. The State has submitted its own expert report from Christopher P. Muste,
an Associate Professor of Political Science at the University of Montana. Muste’s
report critiques the Party Expert’s report. (Doc. 93-3.)
2
A. Reliability
A qualified expert may provide opinion testimony if the expert’s scientific,
technical, or otherwise specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue. Fed. R. Evid. 702. The
testimony also must be based on sufficient facts or data, be the product of reliable
principles and methods, and the expert must have applied reliably the principles
and methods to the facts of the case. Fed. R. Evid. 702. The State argues that the
Party Experts have failed to use reliable principles and methods to produce reliable
data. The State contends that the Party Experts’ unreliable methods have produced
conclusions on Montana crossover voting that amount to mere “guesswork.” (Doc.
86 at 6.)
The United State Supreme Court has set forth several factors for
consideration to determine the reliability and admissibility of expert opinions.
Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993). The factors do
not constitute a “definitive checklist or test.” Id. at 593. Courts should use the
factors to determine whether an expert’s analysis “falls within the range of
accepted standards governing how scientists conduct their research and reach their
conclusions.” Daubert II, 43 F.3d 1311, 1317 (9th Cir. 1995). The factors include
whether the theory can be tested, whether the theory has been subject to peer
review and publication, an assessment of the known or potential rate of error, the
3
existence of standards controlling the technique’s operation, and the “general
acceptance” of the technique or theory within the scientific community. Daubert,
509 U.S. at 593-94. Courts possess broad discretion to decide what expert
testimony should be admissible. Hangarter v. Provident Life and Acc. Ins. Co., 373
F.3d 998, 1017 (9th Cir. 2004).
The State argues that the Party Experts’ opinions “are only inferences drawn
from literature” rather than “collected data” or “independent statistical analysis”
related to Montana elections. (Doc. 86 at 10.) The State argues that the Party
Experts have failed to test the application of their theories to Montana voters. The
Party Experts also appear to have relied on peer-reviewed studies based on other
states data to calculate the percentage of crossover voters in open primary systems.
The Party Experts opine that these figures can be applied to Montana’s open
primary system. The State points out that the Party Experts used no Montana
specific statistical information in their calculations. The State argues that, without
Montana specific data, Plaintiffs fail to tie the Party Experts’ opinions to their
claim.
Courts do not require experts to perform independent testing. “Trained
experts commonly extrapolate from existing data.” Gen. Elec. Co. v. Joinder, 522
U.S. 136, 146 (1997). The Party Experts have relied on published, peer reviewed
studies, and the record developed in this case to perform analysis and to help form
4
their conclusions. The Party Experts have concluded that Republican candidates
shift their messaging in open primary states to attract more centrist voters. The
State has raised no challenge to the reliability of the studies of which the Party
Experts based their conclusions.
Furthermore, no rule of admissibility requires an expert to verify all facts on
which he relies. The factual basis of an expert opinion goes to the weight of the
evidence rather than admissibility. Hangarter v. Provident Life and Acc. Ins. Co.,
373 F.3d 998, 1017 fn. 14 (9th Cir. 2004) (citing Chdilren’s Broad. Corp. v. Walt
Disney Co., 357 F.3d 860, 865 (8th Cir. 2004). The Party Experts have explained
the methodology that they employed to apply crossover rates from other open
primary states to Montana. The Court focuses on the Party Experts’ methodology
rather than any conclusions that the Party Experts allege that the methods may
generate when determining admissibility. Daubert, 509 U.S. at 595. The Court
will consider the State’s arguments when it evaluates the weight to assign to the
evidence presented in Plaintiff’s motions for preliminary injunction and summary
judgment. The lack of Montana specific data goes toward the weight of the
Plaintiffs’ constitutional challenge, rather than the admissibility of Plaintiffs’
experts.
The State also attacks Saunders’s report. The State alleges Dr. Saunder’s
report conflicts with a previous report prepared by Saunders for Idaho authorities
5
in Idaho Republican Party v. Ysursa, 765 F. Supp. 2d 1266 (D. Idaho 2011). For
example, the State points to Saunders report in Ysursa which states that “crossover
voting is rarely a hostile act; instead it is a sincere expression of democratic
preferences.” (Doc. 87-2 at 49.) The State alleges that Saunders fails to include
these points in his report prepared for this case. The State also points to the portion
of Saunders’s Ysursa report that criticizes the Idaho Republican Party’s method
used to collect survey data. (Doc. 87-2 at 54.) Saunders used no survey of any kind
when he prepared his report for this case. The State reasons that the inconsistencies
between the two reports submitted by Professor Saunders invalidate his current
report.
The Court will not “exclude [the Party Experts’] opinions merely because
they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 737
F.3d 960, 969 (9th Cir. 2013), cert denied, 134 S. Ct. 644 (2013). The State has
had the opportunity to attack the credibility of Party Expert’s opinions through
review of the Party Experts’ written disclosures and the depositions taken of the
Party Experts. The State has submitted its own expert report which attacks the
credibility of the Party Expert’s report. The State will have another opportunity if
this action proceeds to trial to cross-examine the Party Experts’ in an effort to
undermine the validity of their methodology and conclusions.
6
B. Relevance
The proponent of evidence must show, in addition to reliability, that the
proposed evidence “logically advances a material aspect of the proposing party’s
case.” Daubert II, 43 F.3d at 1315. Saunders opines that MEA-MFT’s speech
potentially could influence a Republican candidate’s messaging. The State
challenges the relevancy of the political speech by MEA-MFT. The State alleges
that the MEA-MFT speech merely proves that MEA-MFT encourages people in
their union to vote. The State argues that Plaintiffs have failed to show that the
speech has actually affected a primary election.
The Federal Rules of Evidence do not intend the trial court’s role as
gatekeeper to serve as a replacement for the adversary system. Fed. R. Evd. 702
Advisory Committee’s Note, 2000 Amend. (quoting United States v. 14.38 Acres
of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir.
1996)). A party may attack “shaky but admissible evidence” through “vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993).
The State has had the opportunity to attack the credibility of Plaintiffs’ evidence
through depositions, briefing, and expert reports of its own. If this action proceeds
to trial, the State will have the opportunity through cross-examination to challenge
the validity of the Party Experts’ reliance on the effect of MEA-MFT political
7
speech on Republican candidates. This evidence satisfies the low threshold posed
by relevancy at this point in the case.
IT IS ORDERED that the Defendant’s Motion to Strike Opinions of
Plaintiff’s Expert Witnesses (Doc. 85) is DENIED.
DATED this 24th day of November, 2015.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?