THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … · Education Project, Nicole Rodriguez,...

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,

Plaintiff vs. ERIC H. HOLDER, JR., in His Official Capacity as Attorney General of the United States,

Defendant.

Case No. 1:12-CV-00128 (RMC, DST, RLW) Three-Judge Court

REPLY TO THE ATTORNEY GENERAL’S RESPONSE IN OPPOSITON TO

PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

1. The State of Texas did not, by seeking implementation of its duly enacted

laws 16 months after enactment, forfeit its right to complain of unduly burdensome

discovery. The expedited discovery schedule exists for the sole purpose of obtaining

pre-election implementation of S.B. 14—not to inconvenience this Court or the

parties. More importantly, expedited discovery does not suspend the undue burden

standard applicable under the Federal Rules of Civil Procedure. See FED. R. CIV. P.

26(b)(2)(C); see also FED. R. CIV. P. 30(a)(2)(A)(i) (limiting depositions to 10 per

side—a limit that the United States already surpassed long ago.)

2. State’s expert Professor Sager fully explained the State’s database

matching protocol in his report. Dr. Sager’s deposition is currently scheduled for

June 20, 2012. The United States can ask Dr. Sager about the matching protocol at

Case 1:12-cv-00128-RMC-DST-RLW Document 187 Filed 06/14/12 Page 1 of 8

Page 2

that time. If, after Dr. Sager’s deposition, the United States believes that it needs

more discovery, the parties and the Court can revisit the United States’ Notice.

3. The United States’ argument that Keith Ingram lacked knowledge of the

December 2011 database match is unsupported by any evidence because the United

States never asked him in his deposition. See generally Dep. of Keith Ingram (Ex.

A). Mr. Ingram authored the letter that described this match. He has knowledge of

it. The United States simply chose not to develop this line of inquiry. That Mr.

Ingram did not personally write the data-extract code does not leave him without

knowledge of the matching protocols at issue. And the United States overstates

Ann McGeehan’s disclaimer—she did not disclaim knowledge of the database

matching protocols. See Dep. of Ann McGeehan at 269 (Ex. B.).

4. The United States’ actions betray its claims of “critical” discovery. If this

discovery were so critical, the United States would have at least attempted to

develop the record on this line of inquiry in its Ingram deposition. It did not. See

generally Dep. of Keith Ingram (Ex. A). It would likewise have noticed a deposition

on these topics prior to the very last day of discovery. It did not. The United States

prioritized legislator depositions above all else. Having selected this strategy, the

United States cannot now impose unnecessary burdens on the State to produce

information that ranked last on its priority list.

5. The Notice of Deposition plainly seeks testimony beyond the subjects

identified as “critical” in the United States’ briefing. See Response at 2 (“However,

no party to this case has deposed those individuals responsible for the State’s


Page 3

critical match between the driver license database and the voter registration

database.”) (emphasis added). The Court should, at the very least, confine the

United States’ examination to the issue identified as critical in its Response—the

December 2011 match between the driver license database and the voter

registration database.

Conclusion

The State’s Motion for Protective Order should be GRANTED.

Dated: June 14, 2012

Respectfully submitted.

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JONATHAN F. MITCHELL Solicitor General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON Principal Deputy Solicitor General ARTHUR C. D’ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General 209 West 14th Street P.O. Box 12548 Austin, Texas 70711-2548 (512) 936-1695 COUNSEL FOR THE STATE OF TEXAS


Page 4

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document is being served by CM/ECF and/or electronic mail on June 14, 2012 on the following: Elizabeth Stewart Westfall Jennifer Lynn Maranzano Daniel J. Freeman Bruce I. Gear Meredith E.B. Bell-Platts U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: [email protected] J. Gerald Hebert Attorney at Law 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 [email protected] Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon


Page 5

Ezra D. Rosenberg Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: [email protected] Email: [email protected] Jon M. Greenbaum Mark A. Posner Robert A. Kengle LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 662-8325 Email: [email protected] Email: [email protected] Email: [email protected] Myrna Perez Ian Arthur Vandewalker Wendy Robin Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 (646) 292-8329/Fax: (212)463-7308 Email: [email protected] Email: [email protected] Email: [email protected] Robert Stephen Notzon 1507 Nueces Street Austin, TX 78701-1501 (512) 474-7563 Fax: (512) 852-4788 Email: [email protected] Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland 21215-3297 (410) 580-5120 Email: [email protected]


Page 6

Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 98209 (210) 392-2856 (phone) Email: [email protected] Gary L Bledsoe Law Office of Gary L. Bledsoe and Associates 316 West 12th Street, Suite 307 Austin, Texas 78701 (512) 322-9992 Email: [email protected] Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Douglas H. Flaum Michael B. de Leeuw Adam Harris FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York 10004-1980 (212) 859-8000 Email: [email protected] Email: [email protected] Email: [email protected] Ryan Haygood Natasha M. Korgaonkar Leah C. Aden Dale E. Ho Debo P. Adegbile Elise C. Boddie NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 (212) 226-7592 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]


Page 7

Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams John Kent Tanner 3743 Military Road, NW Washington, DC 20015 (202) 503-7696 Email: [email protected] Nancy Abudu Katie O’Connor Laughlin McDonald AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC 230 Peachtree Street NW, Suite 1440 Atlanta, GA 30303 (404) 523-2721 Email: [email protected] Email: [email protected] Email: [email protected] Arthur B. Spitzer American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 (202) 457-0800 Email: [email protected] Lisa Graybill Rebecca Robertson American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas 77004 (713) 942-8146 Email: [email protected] Email: [email protected]


Page 8

Penda Hair Kumiki Gibson Advancement Project 1220 L Street, NW, Suite 850 Washington, DC 20005 (202) 728-9557 Email: [email protected] Email: [email protected] Counsel for Justice Seekers, League of Women Voters of Texas, Texas Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright, Southwest Workers Union and La Union Del Pueblo Entero Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 Email: [email protected] Email: [email protected] Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Patrick K. Sweeten PATRICK K. SWEETEN

Assistant Attorney General



STATE OF TEXAS,


Defendant.




Exhibit A Deposition of Keith Ingram

Case 1:12-cv-00128-RMC-DST-RLW Document 187-1 Filed 06/14/12 Page 1 of 71

BRIAN KEITH INGRAM June 5, 2012

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, ) ) Plaintiff, ) ) VS. ) ) ERIC H. HOLDER, JR. in his ) official capacity as Attorney ) General of the United States, ) ) Defendant, ) ) ERIC KENNIE, et al, ) ) Defendant-Intervenors, ) ) TEXAS STATE CONFERENCE OF ) CASE NO. 1:12-CV-00128 NAACP BRANCHES, ) (RMC-DST-RLW) ) Three-Judge Court Defendant-Intervenors, ) ) TEXAS LEAGUE OF YOUNG VOTERS ) EDUCATION FUND, et al, ) ) Defendant-Intervenors, ) ) TEXAS LEGISLATIVE BLACK ) CAUCUS, et al, ) ) Defendant-Intervenors, ) ) VICTORIA RODRIGUEZ, et al., ) ) Defendant-Intervenors. ) ********************************************** ORAL DEPOSITION OF BRIAN KEITH INGRAM JUNE 5, 2012 **********************************************

2

1 ORAL DEPOSITION OF BRIAN KEITH INGRAM, produced as 2 a witness at the instance of the Defendant, was duly 3 sworn, was taken in the above-styled and numbered cause 4 on the JUNE 5, 2012, from 9:36 a.m. to 5:25 p.m., before 5 Chris Carpenter, CSR, in and for the State of Texas, 6 reported by machine shorthand, at the offices of The 7 United States Attorney's Office, 816 Congress Avenue, 8 Suite 1000, Austin, Texas 78701, pursuant to the Federal 9 Rules of Civil Procedure and the provisions stated on

10 the record or attached hereto.11 12

13

14

15

16

17

18

19

20

21

22

23

24

25

3

1 2 3 A P P E A R A N C E S4 FOR THE PLAINTIFF, STATE OF TEXAS: 5 Patrick K. Sweeten

John McKenzie6 Jay Dyer

OFFICE OF THE ATTORNEY GENERAL OF TEXAS7 P.O. Box 12548

Austin, TX 78711-25488

209 West 14th Street9 8th Floor

Austin, TX 7870110 (512) 936-1307

[email protected] 11 12 FOR THE DEFENDANT, HOLDER, ET AL: 13 Bruce Gear

Jennifer Maranzano14 U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, NW15 NWB - Room 7202

Washington, DC 2053016 (202) 305-7766

[email protected] [email protected] FOR THE DEFENDANT-INTERVENOR TEXAS STATE CONFERENCE OF

NAACP BRANCHES AND THE MEXICAN AMERICAN LEGISLATIVE 19 CAUCUS:20 Ian Vandewalker (by telephone)

Myrna Perez (by telephone)21 THE BRENNAN CENTER FOR JUSTICE

AT NYU LAW SCHOOL22 161 Avenue of the Americas, Floor 12

New York, NY 10013-120523 (646) 292-8362

[email protected] [email protected]

4

1 INDEX2 Appearances.......................................33 BRIAN KEITH INGRAM4 Examination by Mr. Gear...................5

Examination by Mr. Vandewalker..........2315 Further Examination by Mr. Gear.........263

Further Examination by Mr. Vandewalker..2666 Examination by Mr. Sweeten..............2747 Signature and Changes..........................2768 Reporter's Certificate.........................2789 EXHIBITS

10 NO. DESCRIPTION PAGE MARKED11 5 SB No. 14 12612 28 HB No. 218 11113 44 HB No. 1706 16314 101 Texas Legislature Online History, HB 1706 10715 552 Notice of Deposition 3616 553 E-Mail, June 5, 2012 2817 554 E-Mails and Attachments, TX_00148056 thru 94

TX_0014817018

555 Group of Documents Pertaining to Angelina 9619 County Investigation20 556 SB No. 362 16221 557 Election Irregularities Reported During 215

the May 9, 2009 General Election22

558 Affidavit of Keith Ingram 24023

559 Plaintiff's Supplemental Objections and 26324 Responses to Defendant's First Set of

Interrogatories25

Toll Free: 800.211.DEPOFacsimile: 202.296.8652

Suite 3501425 K Street NW

Washington, DC 20005www.esquiresolutions.com



5

1 THE REPORTER: This is the deposition of 2 Keith Ingram, taken in the case of the State of Texas, 3 versus Eric Holder, et al., in the United States 4 District Court for the District of Columbia, Case Number 5 1:12-CV-00128. Today's date is June 5, 2012, and we're 6 on the record at 9:36 a.m.7 Will the counsel please make your 8 announcements and then I will swear in the witness.9 MR. GEAR: My name is Bruce Gear. I'm

10 with the Department of Justice, and I represent Eric 11 Holder, the Attorney General for the United States. 12 MS. MARANZANO: Jennifer Maranzano, also 13 representing Defendant Attorney General Eric Holder.14 MR. SWEETEN: I'm Patrick Sweeten. I'm 15 with the Texas Attorney General's Office, and I 16 represent the State of Texas and the witness, Keith 17 Ingram. 18 MR. MCKENZIE: John McKenzie, also with 19 the Texas Attorney General's Office, and I represent the 20 State of Texas and the witness.21 MR. DYER: And also Jay Dyer. I'm with 22 the Texas Attorney General's Office. I'm here on behalf 23 of the State of Texas and the witness.24 EXAMINATION25 BY MR. GEAR:

6

1 Q. Mr. Ingram, can you state and spell your name 2 for the record?3 A. My name is Brian Keith Ingram. B-R-I-A-N, 4 K-E-I-T-H, I-N-G-R-A-M. 5 Q. And you understand that you've been sworn in 6 under oath and may be subject to penalty of perjury for 7 giving false or misleading testimony?8 A. Yes.9 Q. And that providing testimony is similar to

10 providing testimony in a trial?11 A. Absolutely.12 Q. Do you understand that?13 A. (Witness nods head yes.)14 Q. Okay. I just want to start off with a couple 15 of ground rules. I'm going to be asking you questions, 16 and you're going to be responding. So during the course 17 of the deposition, I just ask that you give me --18 THE REPORTER: I need to swear in the 19 witness.20 (Witness sworn.)21 THE REPORTER: Anybody on the phone want 22 to make announcements? 23 MR. GEAR: Do you want to introduce 24 yourself on the phone? 25 MR. VANDEWALKER: Yes, sir. Thank you.

7

1 This is Ian Vandewalker for Defendant Intervenors, Texas 2 NAACP and Mexican American Legislative Caucus. I also 3 have here in the room with me Myrna Perez for the same 4 party.5 MR. GEAR: Thank you.6 BRIAN KEITH INGRAM,7 having been first duly sworn to testify the truth, the 8 whole truth, and nothing but the truth, testified as 9 follows:

10 EXAMINATION 11 BY MR. GEAR:12 Q. All right. And so let's reverse that just a 13 little bit. And I asked you the question did you 14 understand that you've been sworn in under oath, under 15 penalty of perjury and that this is similar to giving 16 testimony at a trial. Do you understand that?17 A. I do indeed, yes. 18 Q. Okay. And now you have, in fact, been sworn 19 in.20 A. Now I have in fact, yes. 21 Q. So going back to the ground rules, I'm going to 22 be asking you questions. I'd just ask that you give me 23 an opportunity to complete the question that I ask, and 24 I will do the same for you, give you an opportunity to 25 complete your answer as completely and fully as

8

1 possible. Do you understand that?2 A. I do.3 Q. It's also important that when you respond, you 4 respond verbally. You can't shake your head "yes" or 5 "no" because that cannot be recorded. Okay?6 A. I understand.7 Q. It's important that you let me finish the 8 sentence that I'm speaking and then I will allow you to 9 do the same, and that just goes along with listening and

10 answering. Do you understand that?11 A. I do.12 MR. VANDEWALKER: I apologize. I'm sorry 13 to interrupt, but I wonder if maybe the phone could be 14 placed closer to the people that are speaking. We're 15 having a little trouble hearing on the phone.16 MR. GEAR: Okay. Let's see if we can do 17 that.18 Q. (By Mr. Gear) As the gentleman on the phone 19 pointed out, I tend to be very soft-spoken, and so it's 20 important for us to both speak loudly and clearly enough 21 so that it can be recorded by the court reporter. Do 22 you understand?23 A. I do.24 Q. Okay. Is there any reason that you cannot 25 testify today completely and truthfully?






9

1 A. Not as far as I know.2 Q. Are you taking any medications that would 3 interfere with your ability to testify today?4 A. I am not.5 Q. Something that I always think is important, if 6 there's any period during the deposition that you would 7 like to take a break, then all I'd ask is that you 8 complete the question that -- or the answer that you're 9 giving and then just indicate to me that you need a

10 break and I'll be happy to let you to do that.11 A. Sure.12 Q. And also important, if you need to speak to 13 your attorney at any time, again, I'd just ask that you 14 complete the answer that you're giving and then tell me 15 that you'd like to speak to your attorney and I'll give 16 you the opportunity to do that.17 A. All right.18 Q. Do you understand? Okay. At any point, if you 19 provide an answer during this deposition that -- that 20 you either later realize was inaccurate or incomplete or 21 that you'd like to change in any form or fashion, just 22 let me know and I'll give you an opportunity to do 23 that. Okay?24 A. Okay.25 Q. (By Mr. Gear) Now there are a couple of terms

10

1 that I'll be using throughout the day. One is the use 2 of the term "voter ID" or "photo ID," and I'd ask that 3 you use those interchangeably throughout this 4 deposition. And I want you to interpret those terms as 5 broadly as you can to mean a requirement that a voter 6 present a form of identification, whether it has a photo 7 or otherwise, when voting in person, before being 8 permitted to vote with a regular ballot. Do you 9 understand that?

10 A. Okay.11 Q. Do you understand it?12 A. I do.13 Q. Okay. If I refer to "you," I'm asking you a 14 question about you in your capacity as the Director of 15 Elections in the division of the Secretary of State's 16 Office. Do you understand that?17 A. Sure.18 MR. SWEETEN: Bruce, on that one, I've -- 19 and this isn't the first time I've raised it. This is 20 about the fourth time I've raised it, but I have a 21 problem with the instruction of "you" meaning "within 22 his capacity," because throughout the deposition, you'll 23 be asking questions such as "Where did you go college?" 24 I think "you" should be given its ordinary meaning. 25 And so I would -- you know, I think

11

1 that what you're asking him to interpret that as is 2 potentially confusing to him as this deposition 3 progresses. So I would just like you to specify, if 4 "you" doesn't mean -- you know, if you're talking about 5 his official capacity or if you're talking about him 6 individually, I think those should be specified in the 7 question.8 Q. (By Mr. Gear) That's a fair point, and I will 9 do my best to clarify whenever I'm talking about you or

10 anyone else within your office. 11 A. Okay.12 Q. Okay. So do you understand that instruction?13 A. Yes.14 Q. Okay. When I state the term "minority voters," 15 I mean voters who are not White or not Anglo. Do you 16 understand that?17 A. Right.18 Q. If I say "Secretary of State," I mean Secretary 19 of State Andrade. Did I pronounce her last name 20 correctly?21 A. Andrade. 22 Q. Andrade, okay. Do you understand that?23 A. Yes.24 Q. Do you understand everything that I've 25 explained to you so far?

12

1 A. I believe so.2 Q. And are you represented by counsel today?3 A. I am.4 Q. And who is your counsel?5 A. Today I have with me Patrick Sweeten, John 6 McKenzie and Jay Dyer.7 Q. Okay. And are they all representing you for 8 the purposes of this deposition?9 A. Indeed.

10 Q. Now, I want to go into a little bit of your 11 background. Have you ever been deposed before?12 A. I have never been deposed before.13 Q. But you have provided testimony at trial?14 A. I have testified at trial on a few occasions, 15 and I've taken a lot of depositions.16 Q. Can you tell me which trials or what the name 17 of the trials that you've provided testimony?18 A. I don't know if I can remember the names. It 19 was usually with regard to attorneys' fees in whatever 20 litigation we were involved in at the time. I have also 21 given testimony in court at a sanctions hearing several 22 years ago. It was quite entertaining. And then 23 recently at the DC Circuit on the phone.24 Q. And when you're referring to the DC Circuit, 25 you're referring to the Texas v. Holder case?






13

1 A. Yes. Regarding scheduling.2 Q. And that was this year, 2012?3 A. It was. I think it was May 5th, 6th, 3rd. 4 Q. May 5th or 6th. 5 A. 3rd, whenever it was.6 MR. SWEETEN: May 3rd.7 A. It was early May.8 Q. (By Mr. Gear) In capacity of testifying during 9 trials, other than the 2012, was it a civil or a

10 criminal case?11 A. Never a criminal case.12 Q. Always civil cases?13 A. Always civil cases.14 Q. I believe you said attorneys' fees -- 15 A. Right.16 Q. -- is generally the issue?17 Now, you talked about the sanctions 18 hearing. 19 A. Yes.20 Q. Can you tell me a little bit about that?21 A. I don't remember exactly what the deal was. It 22 was a -- it was a case where I believe a six-year-old 23 boy drowned in a dam. And the question was, did the 24 adjacent landowner have control over that dam in the -- 25 sufficient to remedy a defect, right? So we filed a

14

1 summary judgment saying the waterways are the property 2 of the state and we don't have any control over it. 3 And in the face of that summary judgment, 4 the plaintiff's lawyer nonsuited the case, and we were 5 going after him for attorneys' fees, trying to escape 6 the attorneys' fees. And so we had to hurry and get to 7 court while the court still had plenary jurisdiction. 8 So we had a hearing on a Friday afternoon that the 9 opposing counsel was noticed for but didn't show up for,

10 and the judge summoned him from his office in blue 11 jeans, and he cross-examined me for about 30 minutes. 12 It was a lot of fun.13 Q. So was the -- it was the other lawyer that was 14 being sanctioned in that case?15 A. He was -- yes. He didn't end up getting 16 sanctioned. It was just a fun exercise. 17 Q. And what court was that in? Do you know?18 A. It was in court here in Travis County. At the 19 time of that hearing, Judge Hume Cofer was sitting as a 20 visiting judge. He was a very ancient, very proper, 21 very strict judge. He was -- he was good to be in front 22 of.23 Q. And you indicated it was a drowning case. Can 24 you -- do you remember the title of the case?25 A. I do not. I think -- I don't. I think it was

15

1 Gillingwater Water was our client, Barry Gillingwater, 2 who has I believe since passed away. And I was a very 3 young lawyer. I was only just arrived in Austin about 4 five years out of law school. 5 Q. And do you remember the time period of this?6 A. It would have been in '98 or '99, probably.7 Q. And what was the outcome of the drowning case?8 A. Complete victory for the defense.9 Q. What did you do to prepare for this deposition

10 today?11 A. I have met with counsel on several occasions, 12 about an hour and a half yesterday, and about half an 13 hour this morning. I have looked over my letter from 14 January 12th and the attached spreadsheets. I've looked 15 over Ann McGeehan's advisory from September of '06 about 16 first-time voters under HAVA, as well as the Justice 17 Department's preclearance of that in December of 18 '06. I've reviewed the September 7th letter from last 19 fall, the October 4th letter from last fall. I looked 20 at the first couple of pages of the original submission 21 in July. And I talked to my voter registration manager 22 in my office.23 Q. And you indicated that you met with your 24 attorneys a number of times, correct?25 A. That's right.

16

1 Q. Okay. And do you recall the time period, the 2 first time you met with them?3 A. Well, I started this job January the 5th.4 Q. 2012?5 A. 2012. And I think I met with lawyers the first 6 time January 6th or 7th.7 Q. And I'm speaking specifically to prepare for 8 the deposition.9 A. To prepare for this deposition, there was one

10 prep session back in April, late March, and it was very 11 general, very quick, and then yesterday.12 Q. You were preparing for this deposition in April 13 and March of 2012?14 A. Yes. It was originally scheduled for April the 15 9th, I believe, or that's when they were thinking about 16 scheduling it.17 Q. And when you say "deposition," are you 18 referring to the first time that you were preparing to 19 have a discussion with the Department of Justice?20 A. Right.21 Q. Okay. And did that happen?22 A. It did not.23 Q. It did not, okay.24 A. I talked to you on the phone and some others, I 25 don't know who else was on the phone that day, about the






17

1 January 12th letter before there was a lawsuit filed.2 Q. And that was during the submission process?3 A. It was.4 Q. And when you say "you" --5 A. I mean Jennifer. 6 Q. Maranzano?7 A. Right. I wasn't going to try the last name.8 Q. All right. And in the first time you met with 9 your attorneys, I believe you said in April or March of

10 2012, who else was present, if anyone?11 A. In the room that day would have been Patrick, I 12 believe Brooke was there, Paup, and -- 13 Q. I'm sorry. What was the last name?14 A. Paup. P-A-U-P. Matt Frederick, Reynolds 15 Brissenden, and I think that's it. 16 MR. GEAR: I don't want to ask him about 17 any substance of the conversation.18 MR. SWEETEN: Okay. Great. 19 Q. (By Mr. Gear) Who is Brooke Paup?20 A. Lawyer in the Attorney General's Office.21 Q. And Reynolds Brissenden?22 A. Same, lawyer in the Attorney General's Office.23 Q. And did you review any documents at that time?24 A. I did not.25 Q. Moving forward to the next meeting with your

18

1 attorneys in preparation of this deposition, when did 2 that occur?3 A. Yesterday.4 Q. Where did that occur?5 A. 7th floor of the Price Daniel, Sr. Building.6 Q. You said "Price Daniel"? 7 A. (Witness nods head yes.)8 Q. Who, if anyone, was present then?9 A. Yesterday we had John McKenzie, Patrick Sweeten

10 and Jay Dyer were present, and Adam somebody was on the 11 phone.12 Q. You don't know Adam's last name?13 A. I do not.14 Q. Do you know who Adam is?15 A. A lawyer in Chicago, New York. Not Texas.16 Q. And you indicated John?17 A. McKenzie.18 Q. McKenzie. 19 Were there any nonlawyers present?20 A. There were not.21 Q. Any of your staff?22 A. No.23 Q. Did you review any documents during that 24 deposition preparation?25 A. I did not.

19

1 Q. Other than your lawyers, did you speak to 2 anyone else regarding this deposition today?3 A. Just generally telling people where I was going 4 to be and that I would be mostly unavailable.5 Q. Do you -- are you aware that others have been 6 deposed regarding this case?7 A. Yes.8 Q. Are you aware that Ann McGeehan has been 9 deposed regarding this case?

10 A. I am aware of that, yes.11 Q. Did you review Ann McGeehan's deposition 12 testimony?13 A. I did not.14 Q. Did you speak to Ann McGeehan regarding her 15 deposition testimony?16 A. I did not.17 Q. Did you speak to anyone -- did you speak to 18 anyone regarding Ann McGeehan's testimony?19 A. You know, in general terms -- 20 MR. SWEETEN: Hold on a minute. Don't 21 reveal any attorney-client privilege information, any 22 discussions that you or me or any other attorneys with 23 you may have had. Other than that, you can answer.24 Q. (By Mr. Gear) Anyone other than your lawyers?25 A. No.

20

1 Q. Did you speak to any of the other deponents in 2 this case?3 A. I talked to Michael Scofield before his 4 deposition, and he said it was coming Friday when I saw 5 him last week. And I talked to Julie Rathgeber in the 6 Lieutenant Governor's office. She called me on another 7 matter and said she had been deposed. Didn't talk about 8 the substance of it at all. Those are the only two that 9 I know of. If more than that have been deposed that

10 I've talked to, I don't know.11 Q. And you said you spoke to Mr. Scofield. When 12 did you meet with Mr. Scofield?13 A. I had lunch with him a week and a half ago.14 Q. And that was before he provided his deposition 15 testimony?16 A. It was.17 Q. Did you talk about the depositions?18 A. Did not.19 Q. Did you meet with anyone else regarding 20 preparation for this deposition?21 A. No. I did talk to the manager of my voter 22 registration department just to make sure in my head I 23 had the right general figures.24 Q. So the manager of your voter registration 25 department --






21

1 A. That's right.2 Q. -- who is that?3 A. Betsy Schonhoff. S-C-H-O-N-H-O-F-F.4 Q. And is Betsy Schonhoff an attorney within the 5 Secretary of State's Office?6 A. She is not.7 Q. Can you tell me when you met with or spoke with 8 Betsy Schonhoff?9 A. I talked to her about 15 minutes yesterday

10 afternoon.11 Q. And you indicated that you wanted to make sure 12 you had your figures correct. What figures are you 13 referencing?14 A. Well, specifically, I was talking to her about 15 the fact that, you know, in the official list of 16 registered voters for this May 29th primary that we just 17 had, that I had a recollection of having 13,065,000 18 registered voters of which a little better than 1 1/2 19 million were on suspense, and so I just wanted to make 20 sure that my recollection of those numbers was correct.21 Q. So when you say "on suspense," you're talking 22 about suspended voters?23 A. Right.24 Q. Okay. And so what was the figure that you just 25 stated?

22

1 A. That as of April the 30th, whenever they ran 2 the list of -- official list of registered voters for 3 the primary, we had just over 13 million registered in 4 the state, of which about 1 1/2 million, 1.543 or 5 something like that, were on suspense. And that 1 1/2 6 million figure for suspense is fairly consistent over 7 time. 2008 cycle, there was 1.898. In the 2010 cycle, 8 there was a little more, 1,898,300. But anyway, that's 9 --

10 Q. So 1.5 million is the average?11 A. It's consistent. A little down.12 Q. And why were you concerned about those numbers?13 A. Just wanted to make sure that if it came up, I 14 had good information in my head.15 Q. Okay. And you're familiar with SB 14?16 A. I'm generally familiar with SB 14.17 Q. And is it fair to that suspended voters would 18 not be allowed to vote pursuant to SB 14?19 A. That is not correct.20 Q. Okay. What is correct?21 A. If a voter shows up to vote and they show the 22 proper ID, they can vote.23 Q. Okay.24 A. That's the one way to get out of suspense is to 25 vote.

23

1 Q. Are -- do suspended voters, are their licenses 2 seized?3 A. No. 4 Q. And I'm not -- this is --5 A. No, no.6 Q. -- your chance for me to understand. 7 A. No. It doesn't have anything to do with 8 that. That's -- I'm just surprised.9 Q. Okay. And so what does suspended voting have

10 to do with?11 A. A voter goes in suspense whenever there's an 12 indication to the voter registrar of their county that 13 that voter no longer lives at the address they provided 14 when they registered to vote. So the way it works is in 15 the fall of odd-numbered years, there is a date, a 16 cut-off date at the end of November. All voters who are 17 registered by that date get a card that's a voter 18 registration card.19 Q. Uh-huh. 20 A. And that piece of mail, that card, is 21 nonforwardable. So if it bounces back to the voter 22 registrar, the voter registrar then sends a piece of 23 forwardable mail to that address that says, "Have you 24 changed your address?" The voter will have 30 days to 25 update their address information with the voter

24

1 registrar or let them know that they have moved out of 2 county. If they don't do either one, they will stay in 3 suspense for the next two general elections. So roughly 4 36 months. And after the second general election, at 5 which they don't show up and vote, they're cancelled.6 Q. And is there a process that a suspended voter 7 would have to go through in order to vote on an election 8 date?9 A. Show up and vote.

10 Q. Okay.11 A. They can either bring an expired voter 12 registration card, or they can bring any of the other 13 forms of ID that are in 63.0101, pre-Senate Bill 14.14 Q. And that's under the current law?15 A. Right.16 Q. And would that change under SB 14?17 A. The categories of documents that are allowable 18 has ID change. 19 Q. Okay. 20 A. 63.0101 lists changes, yes. 21 MR. SWEETEN: I need to take a quick 22 break. I've got a breaking very small family emergency 23 that I can address with a phone call.24 MR. GEAR: Sure. Go off the record.25 (Recess from 10:03 to 10:05 a.m.)






25

1 MR. GEAR: Okay. So we were talking about 2 suspended voters, and can you read the last question 3 back?4 (Requested portion was read back by the 5 court reporter.)6 Q. (By Mr. Gear) And I believe that was your 7 answer. And what did you mean by that?8 A. I mean that the list of allowable forms of 9 identification changed in SB 14.

10 Q. All right. So when dealing with a suspended 11 voter that comes to the polling place, what must they 12 show in order to vote?13 A. When?14 Q. When they come to the polling place.15 A. I understand --16 Q. When SB 14 -- if SB 14 is implemented?17 A. If SB 14 is implemented, they would have to 18 show one of the forms of ID in Election Code 63.0101.19 Q. And all of those are photo ID?20 A. Yes.21 Q. And they can no longer show their election 22 certificate?23 A. No, they could.24 Q. They could?25 A. Sure.

26

1 Q. Could they only show the certificate?2 A. No.3 Q. And again, this is my opportunity to understand 4 what you know, and so some questions that I ask you may 5 seem obvious, but I just want to know what you know. Do 6 you understand?7 A. I do.8 Q. Okay. And you indicated that you gained the 9 knowledge about suspended voters from Betsy, and I can't

10 remember the last name. 11 A. Schonhoff.12 Q. Schonhoff. Did you discuss anything else with 13 Betty Schonhoff?14 A. I did not.15 Q. All right. And I see that you brought some 16 documents today?17 A. I did. I received an e-mail this morning that 18 I believe to be responsive to the duces tecum.19 Q. Okay. And is that something I can take a look 20 at?21 A. (Handed document to counsel.) 22 MR. GEAR: Have you seen this already? 23 MR. SWEETEN: I have. 24 MR. GEAR: Okay.25 Q. (By Mr. Gear) And this is from the Secretary of

27

1 State?2 A. Forwarded it to me, yes.3 Q. And it's dated June 5th, 2012, correct?4 A. Yes.5 Q. Okay. And as I've skimmed this, I understand 6 that it addresses La Salle County?7 A. Yes, that's my understanding.8 Q. And why did you believe this was responsive to 9 the subpoena?

10 A. I believe that the subpoena has on it anything 11 that relates to complaints of voter fraud, and this is 12 what appears, on its face, to be a complaint about voter 13 fraud in a La Salle County recently. It's not on our 14 official complaint form yet.15 Q. Okay. And it indicates that the complaint that 16 you're referring to may cover 20 -- 20 percent, 25 17 percent of the registered voters?18 A. Whatever Mr. Barrientos says. 19 Q. And who is Barrientos?20 A. I do not know who he is.21 Q. And you're referring to -- and let's do this so 22 it's a little clearer on the record. 23 A. Sure.24 Q. Do you need this document? Do you mind if I 25 mark it as an exhibit?

28

1 A. No, you're welcome to it.2 Q. Okay. 3 MR. GEAR: Why don't we mark this as 4 Exhibit 553.5 (Exhibit 553 marked for identification.)6 MR. SWEETEN: And Bruce, just at a break 7 or at lunch or whatever, we probably want to make copies 8 of that.9 MR. GEAR: Copies. That's fine. And of

10 course I don't have copies right now.11 MR. SWEETEN: Of course, and I don't 12 either, and so, yeah, we'll work it out.13 MR. GEAR: Okay. 14 Q. (By Mr. Gear) So now that this is a little 15 clearer on the record, I'm showing you what's been 16 marked as Exhibit 553, which is a document that you 17 brought with you today; is that correct?18 A. It is.19 Q. Okay. And this is from the Secretary of State 20 to -- to you, correct?21 A. That is right.22 Q. And the date is June 5th, 2012?23 A. It is.24 Q. All right. And this document references La 25 Salle County, and it's from an individual named Rene --






29

1 can you pronounce the last name for me?2 A. Barrientos.3 Q. Barrientos. And I asked you previously, do you 4 know who Rene Barrientos is?5 A. I do not.6 Q. You do not. Did you receive this complaint 7 from Mr. Barrientos directly, or did it come to you in 8 some other form? 9 A. It came to me indirectly. It was made to the

10 Secretary. She forwarded it to me.11 Q. Okay. And do you know -- the date reflected 12 here is June 4th, 2012. Is what when it was made to the 13 Secretary?14 A. I --15 Q. Do not know?16 A. -- assume it's correct.17 Q. Okay. And again, it's dated June 4th, 2012, 18 from Mr. Barrientos. And it starts off, "Dear Secretary 19 of State." And again, it references La Salle County. 20 Do you see that?21 A. Yes.22 Q. And it also indicates that La Salle County has 23 approximately 7,000 residents and approximately 3,900 24 registered voters. Do you see that?25 A. Uh-huh.

30

1 Q. All right. "This county has a fairly young 2 population that would otherwise be ineligible to vote, 3 as they are not of voting age." Do you see that?4 A. Yes.5 Q. "Some county officials have estimated that 900 6 to 1,000 of those registered voters --" "those 7 registered to vote in La Salle do not reside in the 8 county and would not be eligible to vote." Do you see 9 that?

10 A. I see that's what he says.11 Q. Okay. "Confirmation of their residence is 12 unavailable due to the inability to verify their 13 residence as required in obtaining a driver's license." 14 Is that correct?15 A. Again, that's what he says.16 Q. Okay. And when you say that's what he says, 17 that -- that's what's indicated in the complaint by 18 Mr. Barrientos?19 A. That is right.20 Q. All right. And you have not done any 21 independent research of this particular complaint?22 A. I have not.23 Q. Okay. Mr. Barrientos indicates that, "These 24 nonresidents actually have a higher voting percentage 25 than the actual voter resident population." Do you see

31

1 that?2 A. I see it.3 Q. Okay. And that's what Mr. Barrientos says in 4 his complaint? 5 A. Right. 6 Q. And his complaint indicates -- or addresses the 7 issue of non-U.S. citizens registering and voting. Do 8 you see that? And that would be at the bottom of the 9 first page of this document.

10 A. Right. That's listed as the first of several 11 examples, apparently.12 Q. Okay. And again, you have not had an 13 opportunity to independently verify any of the 14 allegations in, in this complaint?15 A. I have not.16 Q. And would this be a formal complaint or an 17 informal complaint for the purposes of the Secretary of 18 State's Office?19 A. This is an informal complaint.20 Q. Is there a particular process that 21 Mr. Barrientos would have to go through to file a formal 22 complaint with the Secretary of State's Office?23 A. We generally ask people who make informal 24 complaints to fill out our formal complaint form and 25 provide any evidence that they've got along with that

32

1 form.2 Q. And I see this is dated -- the e-mail to you is 3 dated June 5th, 2012. Is it fair to say you have not 4 had a chance to communicate with Mr. Barrientos?5 A. That is fair.6 Q. Okay. So what type of voter fraud is being 7 referenced in Exhibit 553?8 A. Well, like you said, noncitizens, multiple 9 registration of individuals and being registered in

10 different counties, convicted felons on probation not 11 eligible to vote that are registered and did vote. 12 Something about a local justice of the peace whose 13 husband was a candidate for sheriff, knowingly 14 registered nonresident oil field workers to support her 15 husband, and that they did, in fact, vote as she 16 requested. Allegations that ballots were shredded 17 during the vote count, and countless examples remaining.18 Q. Do any of those allegations include voter 19 impersonation?20 A. I don't think so, but it's hard to say.21 Q. And based on your review, you don't see --22 A. Well, it's hard to say because I'm not sure 23 exactly what he's getting at with these without more 24 information. Some of these, especially the multiple 25 registration and the non-U.S. citizens, could be voter






33

1 impersonation, but I just don't have enough information 2 on this.3 Q. But in your review of Exhibit 553, there's no 4 direct mention of voter impersonation?5 A. Not voter impersonation, no. 6 Q. There's no direct mention of individuals voting 7 at a polling place who represent -- who are not who they 8 say they are? 9 A. That's true. Not directly, except for he talks

10 about ineligible voters falsely misrepresenting 11 residents or citizenship and requiring voter eligibility 12 and ID as a way to stop that.13 Q. And you can be a nonresident and vote 14 illegally, but you can still be who you say you are; is 15 that correct?16 A. You can.17 Q. And you can be a noncitizen and vote illegally, 18 but still be who you say you are, correct?19 A. You can.20 Q. And those individuals could also be registered 21 or improperly registered, based on clerical error. Is 22 that fair to say, generally?23 A. Yeah, it's the qualifier that I don't like. 24 What do you mean, clerical error?25 Q. Clerical error, an error made by the local

34

1 election official. I mean, I'm not trying to testify 2 for you, so... 3 A. Well, I just don't understand the question. I 4 mean, people can be falsely registered, yes.5 Q. Okay. And again, that false registration can 6 be based on no fault of their own, generally?7 A. It takes an act of volition to apply to 8 register to vote.9 Q. Okay. And so my question is, is: Are you

10 aware of errors made in registration by any local 11 officials?12 A. Yes.13 Q. Okay. So what's -- what's the next step in the 14 process for Exhibit 553? What would you do?15 A. Well, what I did do, I refer it to my legal 16 department for further action.17 Q. All right. And so, we may come back to this, 18 but and the further action would be to request a formal 19 complaint by Mr. Barrientos, and that would be a formal 20 written complaint?21 A. Right.22 Q. And what happens if he does not return a formal 23 written complaint?24 A. Well, I don't know. I mean, we could either 25 refer it to the OAG like this, or we could send

35

1 Mr. Barrientos a letter saying, "Sorry, you didn't give 2 us enough info."3 Q. All right.4 A. That would be for my lawyers decide.5 Q. And so your response suggests that, that you 6 have an option whether to refer or not to refer?7 A. Right.8 Q. And who makes that decision?9 A. Well, ultimately, I do.

10 Q. Have you received complaints in your office 11 that were received informally that you have determined 12 not to refer?13 A. Yes.14 Q. And is there a format or a basis in which you 15 make that determination? Is there a process by which 16 you would make such a determination?17 A. Well, you know, basically, you refer them if 18 you think there's enough there to refer.19 Q. And what, if any, independent research or 20 investigation do you do when you receive informal 21 complaints?22 A. We don't do any investigation in our office.23 Q. Okay.24 A. We look at the face of the complaint and refer 25 it if it, on its face, alleges sufficient facts.

36

1 Q. So you look at the facts of -- of any 2 particular complaint?3 A. Yes.4 Q. Okay.5 (Exhibit 552 marked for identification.)6 Q. (By Mr. Gear) Okay. These go out of order, but 7 I'm going to show you what's been marked as Exhibit 552, 8 and give you a chance to take a look at that.9 A. (Viewing documents.) Yes.

10 Q. You previously referred to your subpoena. Were 11 you referring to your notice of deposition?12 A. I am.13 Q. Okay. And specifically to Attachment A?14 A. Yes.15 Q. And the request for documents, which I believe 16 is on Page 5 of your notice?17 A. Right.18 Q. All right. And did -- what, if anything, did 19 you or anyone in your office do to respond to the 20 attachment, request for documents?21 A. Well, I reviewed the request to determine 22 whether or not these documents have been previously 23 provided or not, and they have been.24 Q. And how did you determine that they have been 25 provided?






37

1 A. Because everything that we have with regard to 2 SB 14 was assembled and turned over.3 Q. And so let's break that down a little bit.4 When you say everything that we have, how 5 were those documents maintained within your office? And 6 we're talking about the Election Division? 7 A. That's right. We had a substantial public 8 information request from a AP reporter, Suzanne Gamboa.9 Q. Okay.

10 A. Earlier this year, late last year, and so we 11 gathered up everything responsive to that public 12 information request, and it was gathered at the time 13 that we received the litigation hold on this case. 14 Q. So other than turning over to the Department of 15 Justice the documents responsive to the public 16 information request, did you go beyond and search for 17 any additional documents that may be responsive?18 A. No. We did submit forms and a couple of 19 manuals for preclearance Friday, so you all should have 20 those. And those are recently-created forms. And then 21 this e-mail that I received this morning was responsive, 22 I thought, to Number 14. We also had a spreadsheet that 23 we gave -- I don't know when it was, a couple of months 24 ago, a month and a half ago -- related to all the voter 25 fraud complaints that we have received over the last

38

1 while.2 MR. GEAR: Can we go off record for one 3 second?4 (Brief discussion off the record.)5 MR. GEAR: All right. Back on the record.6 Q. (By Mr. Gear) Can you tell me when you produced 7 the spreadsheet for voter fraud complaints?8 A. I don't know.9 Q. Can you tell me what the date range of that

10 spreadsheet is?11 A. I don't remember.12 MR. GEAR: And Patrick, do you know if we 13 received that? 14 MR. SWEETEN: I don't. I can talk to him 15 at a break, and we'll figure that out as well. I have 16 talked to John, and I don't think he knows either.17 MR. GEAR: Because I've reviewed our 18 records, and I don't believe that I've seen anything 19 like that. Is there any way that we can get a copy of 20 it before this deposition is over? 21 MR. SWEETEN: Well, let me look into what 22 it is, and if we've asserted a privilege on it, and let 23 me get to the bottom of it at a break. And I'll talk to 24 Keith. That's where I'll start.25 MR. GEAR: Okay.

39

1 Q. (By Mr. Gear) So just so I understand a little 2 bit more about this spreadsheet, you testified here 3 today that it deals with voter fraud, and it's a list of 4 voter fraud complaints that have been generated in the 5 Secretary of State's Office?6 A. No. That is not correct.7 Q. Okay. Well, you tell me.8 A. It is a list of voter fraud, voter 9 impersonation complaints that we've received at the

10 Secretary of State's Office.11 Q. And when you say received, can you give me a 12 little bit more detail? How did you receive these?13 A. All kinds of ways: Over the phone, e-mail, 14 letters. 15 MR. VANDEWALKER: I'm sorry to interrupt 16 again. For the people on the phone, it seemed to have 17 moved away from the mics or something. People's voices 18 are fading out a little bit. If I could just remind 19 everyone to speak into the phone.20 MR. GEAR: We'll do that. Thank you.21 MR. VANDEWALKER: Thank you.22 Q. (By Mr. Gear) So as I understand your 23 testimony, the spreadsheet includes voter fraud 24 complaints that have been received by the Secretary of 25 State's Office by phone, correct?

40

1 A. Right.2 Q. E-mail?3 A. Right.4 Q. Letters?5 A. Yes.6 Q. Any other way that complaints would be received 7 by the Secretary of State's Office?8 A. I can't think of any.9 Q. I asked you earlier how you maintained files

10 within the Secretary of State's Office, or within the 11 Elections Division, and you referenced that files were 12 produced in -- that had been gathered by public 13 information requests. And I want to go back to that 14 question of how you maintained the files in your 15 office. Do you maintain electronic files?16 A. Yes.17 Q. Can you describe that a little bit for the 18 record, how they are maintained?19 A. Well, they're maintained on shared network 20 drives under categories. I'm not sure I understand the 21 question.22 Q. You indicated that they're maintained under 23 shared network drives under categories. How are the 24 categories divided on the shared network drive?25 A. I have no idea. I mean...






41

1 Q. Well, let me narrow that down to voter ID 2 legislation or voter ID issues. Is there a category 3 that would identify voter ID specifically?4 A. One of the things that we did in response to 5 the public information request from Suzanne Gamboa is, 6 segregate all of the electronic documents into an SB 14 7 folder.8 Q. Okay. So as I understand your testimony, in 9 the Election Divisions office, all of the electronic

10 files that deal with SB 14 have been segregated into a 11 particular electronic file?12 A. That's right.13 Q. All right. What about earlier voter ID 14 legislation; has that also been segregated?15 A. When I said SB 14, I mean voter ID generally.16 Q. Okay. And that would include legislation from 17 2005 to 2011?18 A. It includes whatever it includes. Photo ID was 19 the...20 Q. And when you -- when you -- and I'm saying 21 "you" in reference to you or anyone else within your 22 office at this time. When you produced documents 23 responsive to the notice of deposition, did you also 24 produce documents related to any legislation prior to 25 2011 that dealt with voter ID legislation?

42

1 A. Yes.2 Q. Okay. I turn your attention to -- I think it's 3 Exhibit Number 552 -- 4 A. Right.5 Q. -- which is your notice of deposition, and turn 6 your attention to Paragraph 5. "All documents and 7 communications, including but not limited to those among 8 and between the Office of the Secretary of State, the 9 Division of Elections, members of the Texas Legislature,

10 the Texas Legislative Council, and other Texas state 11 executive offices and agencies." Do you see that one?12 A. I do.13 Q. Did you produce documents responsive to 14 Paragraph 5?15 A. I believe so, yes.16 Q. And so it's your testimony here today that you 17 produced documents responsive to all of the paragraphs 18 included within the notice of deposition documents?19 A. Yes.20 Q. Okay. I just want to go back briefly to the -- 21 your testimony about the spreadsheet regarding voter 22 fraud that was -- that was produced. Who -- who do 23 complaints usually come from in terms of voter fraud?24 A. There's not a usual.25 Q. Can you give me a description of generally,

43

1 then, who would make a voter fraud complaint to the 2 Secretary of State's Office?3 A. Generally, anybody that feels like fraud has 4 been committed and cares enough about it, reports it.5 Q. So that would include voters?6 A. It does include voters.7 Q. Candidates?8 A. Yes.9 Q. Would you ever receive a referral for any

10 reason directly from the Attorney General's Office?11 A. No.12 Q. Election officials, local election officials?13 A. Yes. And maybe -- we might have -- sometimes 14 people go the OAG first, and the OAG redirects them to 15 us to do the evidence assembly. So if that's considered 16 getting a complaint from the OAG, that probably has 17 happened a few times.18 Q. Okay. So let's just talk about for a minute.19 If the OAG redirects a complaint to you, 20 what do they generally ask you to do?21 A. They like for us to have complaints sent to 22 them on our form after we've assembled the evidence.23 Q. Okay. When you talk about evidence, what are 24 you referring to?25 A. I'm talking about a list of witnesses, whatever

44

1 documentary evidence there is to support the 2 allegations, they want us to do that bit first and then 3 refer to it them.4 Q. Okay. And is that generally what you do for 5 all complaints when possible?6 A. It is.7 Q. And when you talk about evidence, are you 8 referring an election-related evidence?9 A. Evidence supporting the allegations of fraud as

10 the complainant sees it.11 Q. Okay. And that would deal with voter 12 registration information, documentation that's specific 13 to any particular election? Would that be accurate, 14 generally?15 A. It includes whatever the complainant believes 16 to be necessary for their complaint. So yes, it can be 17 any number of things.18 Q. Okay. And we talked about documents in the 19 Elections Division. Can you tell me: Is there a 20 retention policy in your office?21 A. There is.22 Q. And what is that policy?23 A. It's written. A lot of pages, a lot of words.24 Q. And what is your retention policy?25 A. Well, it's different for different documents.






45

1 Q. Well, specifically --2 A. I don't have the retention policy memorized. 3 That's something I can get when I need it.4 Q. That's fair. Specifically as it relates to 5 voter ID legislation, is there a retention policy that 6 deals with the file, for instance, that's segregated 7 under SB 14?8 A. I don't know.9 Q. Well, again, I have not had an opportunity to

10 read your retention policies, so I'm trying to 11 understand, based on your testimony, what that is. So 12 I'm asking you generally: Is there a policy that allows 13 for documents to be destroyed at any given time? And 14 again, we can focus specifically on election law or 15 election legislation, if that's helpful to you.16 A. I don't know.17 Q. Is there a retention policy for e-mails?18 A. Yes.19 Q. And what is that policy?20 A. I do not know. It depends on the subject of 21 the e-mail.22 Q. And again, I'm limiting this to voter ID or 23 voter ID legislation, or as you testified to, the file 24 that's been segregated to SB 14. Is there a retention 25 policy for e-mails with -- with that particular file?

46

1 A. I don't know. I mean, we're under a litigation 2 hold, so I think that's supercedes any retention policy 3 we might have.4 Q. And that means that no files will be removed or 5 destroyed?6 A. That's right.7 Q. Do you maintain -- we've talked about 8 e-mails. In the file that's segregated, SB 14, do you 9 maintain the e-mails in that file?

10 A. Yes, there are archived e-mails in that file.11 Q. And have those been produced in response to the 12 notice of deposition?13 A. They have been in response to -- in response to 14 discovery requests previously to the deposition notice.15 Q. And you're talking about Ms. Gamboa?16 A. No. I'm talking about production in the 17 discovery.18 Q. All right. And they've been produced to your 19 attorneys. Is that what you're saying?20 A. They have.21 Q. Okay. Does that file maintain correspondence?22 A. Yes.23 Q. And that correspondence has been produced?24 A. It has.25 Q. Does that file maintain speeches?

47

1 A. Yes.2 Q. Okay. And have you given any speeches 3 regarding SB 14?4 A. I have not.5 Q. And of course, have those speeches been 6 produced in response to the notice of deposition?7 A. I'm trying to think if there's a speech. I 8 know there's talking points. I don't know. I assume. 9 I mean, whatever we've got has been produced. And

10 whether the lawyers have asserted privilege or anything, 11 I have no idea what y'all got.12 Q. Okay. And did you draft the talking points?13 A. No.14 Q. Do you know who did draft the talking points?15 A. No idea.16 Q. Do you know what date the talking points were 17 drafted?18 A. I have no idea.19 Q. Did you review the talking points?20 A. Did not.21 Q. But you know that there were talking points 22 within the SB 14 electronic file?23 A. I think so.24 Q. What do the talking point relate to?25 MR. SWEETEN: The general subject matter,

48

1 Bruce?2 MR. GEAR: Yes.3 MR. SWEETEN: Okay. You can give the 4 general subject matter. 5 A. Yeah, it's -- everything that we've got with 6 regard to voter ID. So it would have related to voter 7 ID.8 Q. (By Mr. Gear) Okay. And do you know those 9 talking points were created in preparation for any

10 particular hearing, meeting?11 A. I have no idea. It could have been any number 12 of things.13 Q. And who are talking points -- or who were the 14 talking points for? Thank you.15 A. I don't know.16 Q. Does the SB 14 electronic file contain notes?17 A. What is -- what do you mean, notes?18 Q. Your notes pertaining to SB 14. 19 A. My notes? I don't have any notes related to 20 SB 14.21 Q. And you've never created any notes related to 22 SB 14?23 A. Not that I know of.24 Q. Okay. Does the electronic file contain reports 25 or analyses pertaining to SB 14?






49

1 A. I don't know.2 Q. Who would know what's maintained within the 3 electronic file pertaining to SB 14?4 A. I don't know.5 Q. Is there a particular person that's responsible 6 for maintaining that file?7 A. Well, yes. There's a lady in my office who's 8 got a -- you know, a list of stuff.9 Q. Okay. And so let's flesh that out a little

10 bit. There's a lady in your office. Who is the lady?11 A. Jennifer Templeton.12 Q. And what are -- what are Jennifer Templeton's 13 responsibilities?14 A. Well, applicable to this, it's her 15 responsibility to gather information and keep public 16 information requests in order and on track.17 Q. And you testified to stuff, and I'm just trying 18 to put that into context.19 A. Well, I haven't -- I haven't looked at her 20 list, so I don't know how detailed the description is 21 of, of the items. It's -- she got a list of everything 22 that we've turned over to the OAG in connection with 23 this litigation. But what I think is that's it's a real 24 high-level list.25 Q. And when you say high level, what do you mean?

50

1 A. I mean, you know, three banker boxes of 2 documents.3 Q. Okay.4 A. So, I don't think it's of much help is my 5 point.6 Q. Has the list itself been turned over to the 7 OAG?8 A. No.9 Q. But that list would identify everything that

10 has been turned over and everything that's within the 11 electronic file pertaining to SB 14?12 A. In a very general way.13 Q. Did you review Ann McGeehan's files pertaining 14 to SB 14?15 A. I don't know.16 Q. Would Ann McGeehan's files, notes, speeches, 17 whatever exists be contained within the electronic file 18 that you've been testifying here today?19 A. Yeah. It would be in the electronic and paper 20 files. We gathered everything.21 Q. And so did you review Ann McGeehan's files 22 pertaining to SB 14 when you began in January of 2012? 23 MR. SWEETEN: Objection, asked and 24 answered.25 A. Yeah.

51

1 Q. (By Mr. Gear) I don't believe I asked that one, 2 but you can answer.3 A. I don't know. I mean, it's a hard question to 4 answer, because Ann McGeehan didn't have files. You 5 know, that's -- that's not a category that exists. 6 There are files that contain Ann McGeehan's work in 7 them, and I have looked at some of those, sure.8 Q. Okay.9 A. It is in response to the Suzanne Gamboa PIR, we

10 were trying to go through them and assert objections.11 Q. So you said, if I understand your testimony 12 correctly, she did not have a file that exists on a 13 electronic drive, but she had -- she had work that 14 existed on the electronic drive, correct?15 A. That's the best of my ability to describe it, 16 yes.17 Q. And are you familiar with the work that she 18 produced pertaining to SB 14?19 A. Am I familiar with all of it? I don't know.20 Q. But you've reviewed --21 A. Some.22 Q. -- some of that work?23 A. (Witness nods head yes.)24 Q. In addition to the electronic files, are there 25 paper files maintained within your office pertaining to

52

1 SB 14 or voter ID legislation generally?2 A. Yes.3 Q. And were those searched in response to the 4 notice of deposition?5 A. No.6 Q. Do you know -- do you know or do you have 7 knowledge as to whether the paper files contained any 8 different documentation other than the -- beyond the 9 electronic file?

10 A. I have no idea.11 Q. I'm going to change the focus for a second to 12 your educational background. Can you tell me a little 13 bit about your educational background?14 A. I graduated Permian Basin Christian School with 15 a high school diploma in 1985. I graduated Texas A&M 16 University with a BA in political science in 1989. 17 Graduated UT Law with a JD in 1993.18 Q. All right. And I just need to slow down a 19 little bit. So we can skip past high school. You 20 graduated. Congratulations. Let's go to 1999.21 A. But in high school, I was the top 20 percent of 22 my class. You don't want to just pass right over that.23 Q. And that is important.24 A. I wasn't in the top 20 present. I was the top 25 20 present. It was a small school.






53

1 Q. So in 1999, you said you graduated from 2 undergrad, correct?3 A. 1989.4 Q. 1989 you graduated from undergrad. And did I 5 -- did I hear University of Texas?6 A. That's law school.7 Q. Law school. So the undergrad was --8 A. Texas A&M.9 Q. Texas A&M. Okay. And then UT law school was

10 in?11 A. 1993.12 Q. '93. And do you have an active law license?13 A. I do.14 Q. And which states do you have an active law 15 license in?16 A. Texas and Arkansas.17 Q. Okay. Well, let's just talk about your work 18 history, if we -- if we can. Did you come to practice 19 law at any particular time?20 A. I did.21 Q. And tell me just a little bit about your law 22 practice. 23 A. Sure. September of '93 to February of '96, I 24 was at a firm in McAllen, Texas named Atlas and Hall, 25 LLP. And I was a litigation associate, but did a little

54

1 bit of a lot of stuff.2 Q. Okay. Beyond 1996?3 A. In February 1996, I came to Austin to work in a 4 litigation boutique. At the time, it was Maroney, 5 Crowley, Bankston, Richardson & Hull, LLP, where I was 6 also a litigation associate. But instead of doing as 7 many different things as I was doing in McAllen, now I 8 had focused primarily on product liability litigation, 9 breast implants, medical malpractice and general

10 insurance defense, mainly of Sears and Jefferson 11 Insurance.12 Q. And you did that from '96 to --13 A. The guys that I came to work for in '96, we 14 stayed together until 2006. It was different firms. We 15 merged with Locke, Purnell, Rain & Harrell. Locke, 16 Purnell merged with Liddell, Sapp, Zivley, Hill & 17 LaBoon. And then it merged with Liddell, Sapp, Zivley, 18 Hill & LaBoon, and then we left again to form our own 19 litigation boutique.20 Q. And you left again in 2006 or you left --21 A. No. We left in April of 2000, and then had our 22 own firm until March of 2006, when I went to Arkansas.23 Q. So between 1996 to 2006, you were a lawyer with 24 Maroney or some capacity of Maroney. Is that fair to 25 say?

55

1 A. That's fair.2 Q. Okay. And so in 2006, you indicated you left 3 and went to Arkansas?4 A. I did.5 Q. And where did you go when you went to Arkansas?6 A. I went to a firm called Kutak Rock in Little 7 Rock, Arkansas. They're an Omaha-based national firm.8 Q. And how long did you stay there?9 A. About a year.

10 Q. 2006 to 2007?11 A. Yes.12 Q. And after that?13 A. I had my own firm for a year, January of '07 to 14 January of '08; figured self-employed in Austin was 15 better than Kutak Rock in Little Rock.16 Q. Was that -- was that in Arkansas as well, or 17 was that back here?18 A. No, it was here in Austin.19 Q. Austin. And after 2008?20 A. January of 2008, I went to work for the 21 Governor of Texas.22 Q. And how long did you work for the Governor?23 A. Four years.24 Q. So that would have been what, 2008 to 2012?25 A. '12, yes.

56

1 Q. All right. So let's just go back briefly to 2 1993 to 1996, where you worked for -- I believe you said 3 Atlas and Hall?4 A. Yes.5 Q. And during that time period, did you do 6 anything related to election law?7 A. No.8 Q. And then the next period would have been 1996 9 to 2006. You want make a correction?

10 A. Yeah. I'm not sure is a better answer to that 11 question. I did do some work for a lawyer named Travis 12 Hiester, and he had a whole lot of school districts that 13 he did work for, so it is completely possible that I did 14 some election law question for him on a memo. But I 15 don't remember anything specifically about it.16 And when I was in law school, my first 17 summer, I clerked at Bickerstaff, Heath, Smiley, and 18 there was a huge election law case involving Applewhite 19 Dam, a San Antonio voter initiative. It was a big 20 constitutional mess.21 Q. So let's go back to your internship briefly. 22 Bickerstaff, Heath & Riley I believe you said?23 A. Smiley.24 Q. Smiley. Smiley. And you -- you spoke a little 25 bit about what the issue was that you've referred to a






57

1 constitutional mess. Can you tell me a little bit more 2 about the particular case that you were working on?3 A. Well, I'm not sure exactly what all the 4 parameters were, but the question was whether or not the 5 issue put before the voters on an initiative was 6 constitutionally allowable for voters to decide in an 7 initiative process.8 Q. And do you know what the issue was that was 9 before voters?

10 A. Applewhite Dam, a water project.11 Q. So that had nothing do with voter ID?12 A. No.13 Q. Is that correct?14 A. Definitely not.15 Q. Okay. All right. So going back from moving 16 forward, as it was, to 1993, 1996, I believe I asked if 17 you had any responsibilities dealing with voter ID or 18 election law, and --19 A. Definitely not.20 Q. No. Okay. So in 1996 to 2006, when you were 21 working in some capacity with Maroney, did you deal with 22 election law at all during that time period?23 A. I don't think so. Not that I recall.24 Q. And in 2006 to 2007, when you were at Kutak 25 Rock, I believe, did you deal with anything related to

58

1 election law or voter ID legislation?2 A. Did not. 3 Q. And that was in Arkansas, if I recall 4 correctly.5 A. It was.6 Q. Okay. So then in 2007 to 2008, you came back 7 to your own firm in Austin. Did you deal with anything 8 related to election law or voter ID?9 A. Did not.

10 Q. No. All right. And now we're to 2008 to 2012 11 where you worked for the Governor, correct?12 A. Right.13 Q. And that would have been Governor Rick Perry at 14 the time?15 A. Yes.16 Q. And when you came in to Governor Perry's 17 Office, what was your title or what was your title?18 A. Appointments Manager.19 Q. And did you continue to hold that title as 20 Appointments Manager through -- through the time that 21 you worked for the Governor?22 A. I did.23 Q. Okay. And what were your responsibilities as 24 an Appointments Manager?25 A. To assist the Governor in making gubernatorial

59

1 appointments.2 Q. Did you have any other responsibilities?3 A. Yes. You know, a variety of other things.4 Q. Tell me what those are.5 A. Well, since I was a lawyer and I was in the 6 Appointments Office, I did legal work for the division 7 with the -- you know, in consultation of the general 8 counsel's office. But I was the lawyer on the side of 9 the division.

10 Q. Okay. And I want to make sure I understand 11 that testimony. You did legal work for the division. 12 And you're talking about within Governor Perry's Office?13 A. Right, within the Appointments Division inside 14 of Governor Perry's Office.15 Q. Okay. And what did that legal work involve?16 A. Mainly statutory interpretation.17 Q. Of which provisions or what provisions?18 A. Well, anything that comes up in Appointments, 19 from water law, river authorities to election code.20 Q. Okay. And would your work have involved 21 anything dealing with voter ID legislation?22 A. No. I was on a team that did bill analysis for 23 the Governor, you know, with his Policy Office. And so 24 one of the groups that I was in, was in legal, and that 25 would have dealt with voter ID legislation. But I don't

60

1 have any specific recall of a bill coming up.2 Q. Okay. And just so I understand your testimony 3 there, you were on a team that did bill analysis?4 A. Right.5 Q. Who was -- who else was on that team?6 A. Well, it varied, depending on which category we 7 were in. My role on the team is that if any 8 appointments issue comes up in a bill, to be the 9 Appointments person to talk about whether or not, you

10 know, a good idea, a bad idea, it needs to be tweaked or 11 whatever. So my role as not wholistic. My role was 12 limited.13 Q. And again, so I understand what you're talking 14 about, when you talk about Appointments issues, how 15 would Appointments issues be related to election law, 16 for instance?17 A. Well, it wouldn't necessarily be related to 18 election law, but it would be related to a whole bunch 19 of other kinds of laws. They always -- the Legislature 20 always thinks it's a good idea to appointment more 21 boards and commissions.22 Q. Okay. Was Michael Schofield on the team that 23 you were referencing?24 A. He was in some of the groups that I was in.25 Q. And specifically, do you have any -- any memory






61

1 of analyzing any voter ID legislation?2 A. I do not.3 Q. Were you involved in any communications 4 regarding voter ID legislation while you were in the 5 Governor's Office?6 A. No.7 Q. Are you aware of any existing analysis or 8 reports regarding voter ID legislation that you may have 9 reviewed while you were in the Governor's Office?

10 A. No. I didn't review anything.11 Q. So you said you didn't review anything, but you 12 said -- you also testified that you were involved in a 13 team that conducted bill analysis?14 A. That's right.15 Q. And my understanding is, is you may have been 16 involved in the analysis of voter ID legislation?17 A. Right.18 Q. But you don't recall reviewing anything related 19 to that?20 A. Bill analysis doesn't mean that everybody in 21 the room reviews things.22 Q. Okay.23 A. One person reviews and reports. Everybody else 24 has questions, so I didn't -- I didn't have any of my 25 own bills.

62

1 Q. Okay. 2 A. So I didn't review anything.3 Q. So help me to understand what it is that you 4 would have done, what your responsibilities on the team 5 would have been. 6 MR. SWEETEN: You can answer that as a 7 general matter. 8 A. And generally speaking, my role was to provide 9 input with regard to Appointments issues that come up in

10 the bills.11 Q. (By Mr. Gear) Were you present during any 12 communications while in the Governor's Office where 13 voter ID legislation was the subject matter?14 A. No.15 Q. Have you ever worked as an election judge or an 16 election worker in any elections in the state of Texas?17 A. I have not.18 Q. And so my understanding is, is that you are the 19 Director of Elections within the Secretary of State's 20 Office?21 A. That's correct.22 Q. All right. And you began that January 5th, 23 2012?24 A. I did.25 Q. So prior to January 5th, 2012, other than your

63

1 limited role in the Governor's Office working on a team 2 that may have reviewed voter ID legislation and a memo 3 that you may have prepared some time back during your 4 law practice, did you have any other responsibilities or 5 involvement in voter ID legislation prior to becoming 6 the Director of Elections?7 A. None.8 Q. And I guess I should ask, just to make sure I'm 9 clear: Were you involved in any groups prior to

10 becoming the Director of Elections that -- that 11 supported or promoted voter ID legislation?12 A. No. I don't know what you mean.13 Q. Any groups, any outside groups, groups outside 14 of the government?15 A. Advocacy kind of groups? 16 Q. Yes. 17 A. No.18 Q. Are you a member of any groups outside of the 19 government? Political groups?20 A. I'm a member of my church.21 Q. That's a group. 22 A. Yeah, that's a group. I don't know of any 23 other groups that I would be a member of. I'm a member 24 of the Texas Bar Association, the Arkansas Bar 25 Association. I'm a member of -- I'm no longer a member

64

1 of any other Young Lawyer group. That's by the 2 wayside. But, you know, I don't know. Nothing advocacy 3 oriented.4 Q. Are you a member of any -- any political 5 organizations, other than the organizations that you've 6 mentioned?7 A. No.8 Q. Do you sit on any committees of any kind?9 A. No. In the Governor's Office, one of the

10 things that I did was, I was his designee on the Texas 11 Access to Justice Commission, but I resigned that when I 12 came over to the Secretary of State's Office.13 Q. Texas Access to Justice, can you tell me what 14 that is?15 A. It is a group that was formed by the Supreme 16 Court, where the Supreme Court, in its order, invited 17 the Governor to have a designee present at the 18 meetings. And the purpose of the Texas Access to 19 Justice Commission is to make sure that indigent persons 20 in the state of Texas have access to civil legal 21 services.22 MR. SWEETEN: Bruce, I've got an answer to 23 your question on the SOS information. 24 MR. GEAR: Okay.25 MR. SWEETEN: We can do that at a break,






65

1 or I can just tell you now.2 MR. GEAR: We can go off the record for a 3 second.4 MR. SWEETEN: All right.5 (Brief discussion off the record at 6 11:01 a.m.)7 MR. SWEETEN: I let Bruce, at the break, 8 know that we had produced a spreadsheet from the 9 Secretary of State, and I gave him the Bates numbers.

10 MR. GEAR: And I appreciate that. Thank 11 you.12 My watch says 12:00 o'clock. Do you need 13 a break at all?14 THE REPORTER: Yeah, I would like a break. 15 It's 11:00 o'clock, though.16 MR. GEAR: Why don't we take a ten-minute 17 break. 18 (Recess from 11:02 a.m. to 11:13 a.m.)19 Q. (By Mr. Gear) So we moved through your long 20 and illustrious history, work history, and so now we've 21 gotten to the point where you are employed with the 22 Secretary of State's Office. And so why don't we start 23 off by talking about how you came to be employed by the 24 Secretary of State?25 A. I had an -- obviously, the Deputy Secretary of

66

1 State, Coby Shorter, used to be in the Appointments 2 Office. He was the Deputy Secretary. He was the Deputy 3 Director of Appointments. And whenever I came, he had 4 just left, so I was at his desk in the Appointments 5 Office. And over the years I got to know Coby. I would 6 go to the senior staff meetings sometimes, and he was up 7 there, and you know, you just get to know people. 8 And after this last legislative session, 9 you start the process of thinking about what comes

10 next. You can't do appointments for the Governor 11 forever, and you have to go back to the work at some 12 point. So talked to my director about, you know, 13 keeping our ear to the ground and kind of putting 14 feelers out, you know, for anything that might be coming 15 up. 16 And got a weird phone call from John 17 Sepehri. It was weird. John Sepehri, I had known for a 18 while. He's general counsel in the Secretary of State's 19 Office for the last few years. And so I had known him 20 in that capacity, and we had lunch a few times. And you 21 know, we were friends. And he calls and he says -- just 22 asking random questions, election law experience, not 23 much. A little bit as it pertains to judicial 24 appointments, but not much. And "Ever worked" -- "Ever 25 been to party conventions?" "

67

1 No, never have." You know. Just 2 strange -- "John, what's this about?"3 "Can't tell you right now." 4 Okay. And so then another weird phone 5 call about a week later, "Have you ever met the 6 Secretary?"7 "No."8 "Why don't you come over and meet the 9 Secretary?"

10 "Okay. Love to."11 So we dropped by and met the Secretary, 12 you know, just coming by to see John and he happened to 13 be over there by her, and we just happened to be -- 14 anyway, it was all very strange, cloak and dagger, and I 15 don't know what the deal was. 16 But at some point, I had a conversation 17 with Coby Shorter who says that Ann McGeehan was 18 retiring, and that he had thought of me as a possibility 19 to replace her and wanted to know if I was interested. 20 And I said "yes." He had already talked to Teresa, my 21 boss, so they'd already -- 22 Q. So was there a formal interviewing process?23 A. There was. I had a formal interview with Coby, 24 I don't know sometime after that.25 Q. Okay. So had you ever attended any party

68

1 conventions?2 A. No. No. I did the Williamson County 3 convention for the Republicans in '08, just because I'd 4 never had done any of that stuff before. So at precinct 5 convention level, I became the precinct convention 6 chairman of the three of us that were meeting, one of 7 which was my wife. And we nominated ourselves to be 8 delegates to the Williamson County convention, and we 9 went. That was quite an entertaining process. You

10 would not believe the amount of energy spent in debating 11 whether or not the 17th Amendment should stay on the 12 platform or not. It was interesting. So that was the 13 only time.14 Q. And the 17th Amendment would --15 A. Direct election of senators, yeah. That was a 16 hot issue at the Williamson County Republican 17 convention.18 Q. And so as we've established already, you -- you 19 became employed with the Secretary of State's Office on 20 January 5th, 2012?21 A. Yes.22 Q. And did you come in as the Director of 23 Elections?24 A. I did.25 Q. And because I don't know, can you tell me what






69

1 the -- what the structure of the Secretary of State's 2 Office is, particularly as it pertains to election laws?3 A. Well, we have the Secretary and the Deputy 4 Secretary. And then under the Deputy Secretary, we've 5 got several division directors, one of which is the 6 Elections, so that's me. And then I've got managers, 7 four of them that are in my division that management 8 different teams.9 Q. So let's talk about the managers, and I believe

10 you said there were four of them. Can you tell me who 11 they are and what they manage?12 A. Sure. There's Louri O'Leary, who is the 13 administration manager, so she -- all the administrative 14 stuff in the office. She's not really an office 15 manager. We don't have an office manager, but all of 16 the administrative support staff kind of things, she's 17 in charge of, as well as other duties as assigned, 18 including the ordering of voter registration application 19 cards, which has turned into a pretty complicated 20 process. 21 She has within her group kind of a 22 subgroup of administration. It's called "special 23 projects." And it's managed by Leticia Salazar, and she 24 is in charge of doing the training video for volunteer 25 deputy registrars for election workers. She's in charge

70

1 of organizing the seminar and making sure that all the 2 materials are, you know, that we've got an organized 3 process for putting the seminar together in August. As 4 well as she's the Elections Division interface with the 5 voter education campaigns that the Secretary's engaged 6 in, you know, any kind of graphic design, website stuff, 7 that's all special projects.8 Q. And that's a subgroup under Louri O'Leary?9 A. Under administration, that's right.

10 Q. Okay.11 A. So she's kind of -- she's a manager, but she's 12 a submanager under Louri. 13 And then we've got the Legal Division and 14 the director of it is -- the manager of it is Elizabeth 15 Winn. She has been in the Secretary of State's Office 16 for about 20 years.17 Q. So she's the institutional knowledge in the 18 office. 19 A. She's invaluable. Smart, pleasant, hard 20 worker. Invaluable. And she's got several lawyers 21 working for her as well as two support people. 22 Q. Okay. 23 A. We're about to have two more lawyers start 24 three days from now, two days from now. 25 And then we've got the voter registration

71

1 team, Betsy Schonhoff is the manager of it. And they 2 manage the team database and interface with the counties 3 on any questions the counties have with regard to the 4 team voter registration database. Betsy's job is to 5 make sure that her ladies that she's got in her division 6 are being productive, as well as interfacing with the IT 7 pat of the Secretary of State's Office, which is in a 8 different division. So she's got one of the IT groups 9 is devoted to voter registration so she interfaces with

10 them, and she's the face of the Secretary of State's 11 Office with the counties. 12 Q. And when you mean "the face," or when you say 13 "the face," do you mean the point person?14 A. She's the point person. If the counties have 15 an issue, they get in touch with Betsy, and Betsy 16 distributes it out to whoever needs to work on it. 17 And then we've got the Electronic Funds 18 Management portion of the office. Dan Glotzer is the 19 one in charge of it. And they are in charge of passing 20 out money.21 Q. So if SB 14 was implemented, would -- did you 22 say Dan Glotzer?23 A. Glotzer.24 Q. Glotzer. The funding for SB 14, would it come 25 through the Electronic Funds division?

72

1 A. No. I don't think that there any funding with 2 SB 14 except for the education component, and it would 3 come through Electronic Funds Management. It would come 4 through HAVA.5 Q. HAVA.6 A. Yes. HAVA grant.7 Q. So your testimony is it would not come 8 through --9 A. Just that piece.

10 Q. Okay.11 A. The voter education piece.12 Q. Okay.13 A. Any other costs associated with SB 14 14 implementation would be absorbed by the regular budget.15 Q. Okay. All right. I think I understand 16 that. So as the Director of Elections, were you hired 17 to -- as a lawyer for the Secretary of State? You have 18 a law degree. Do you -- were you hired to practice law?19 A. They feel that it's important. Ann McGeehan 20 was a lawyer. They feel like it's important to have a 21 lawyer in this position, because there's a whole lot of 22 legal interpretation that has to go on necessarily with 23 the election code and the rule making.24 Q. Do your job -- does your job title or does your 25 job responsibilities include providing legal advice?






73

1 A. Yes.2 Q. And generally, what type of legal advice would 3 you provide in your position?4 A. I would give legal advice to our communications 5 manager, if -- if he wants to do a certain thing in the 6 voter education campaign as to whether or not that thing 7 would be covered by the HAVA criteria. You know what I 8 mean? So just advise him about the extent of HAVA 9 funding for voter education campaigns. That -- you

10 know, that's just an example, but there are things like 11 that where the executive part of the Secretary of 12 State's Office needs a legal opinion from the Elections 13 Division and that would be my job.14 Q. So would it be the Legal Division that takes 15 the primary responsibility of giving such legal advice?16 A. Well, me, I'm the decision-maker. I generally 17 get input from my lawyers.18 Q. Do you provide legal advice to the Secretary of 19 State?20 A. Yes. Not often.21 Q. Were you hired for that purpose?22 A. It's one of the reasons, yes.23 Q. So, generally, I understand that testimony. 24 Can you tell me what your other responsibilities would 25 be as the Director of Elections?

74

1 A. Well, you know, you have to manage the 2 division, so that means making sure that everybody is 3 playing well together and being productive, and if 4 there's a problem, address it. I mean, all the things 5 that are related to human resources, you know, stuff, 6 and prioritizing the work that needs to be done and 7 giving assignments to managers and checking in with them 8 on their progress. And you know, finding out if there's 9 any hurdles that need to be overcome and how much work

10 it's going to be overcome those hurdles. And making 11 sure that the executive is appropriately apprised of 12 anything that might come up that they might get asked 13 about, you know. It's just normal stuff.14 Q. Okay. And it's fair to say that you would -- 15 you would coordinate with the managers that are 16 underneath you in the elections division?17 A. That is correct.18 Q. So at -- in your responsibilities, were you 19 involved in any communications with anyone in any state 20 agency regarding the drafting of language for voter ID 21 legislation?22 A. No.23 Q. And let me be more specific on that question. 24 Since you were hired January 5th, 2012, were you 25 involved in any communications with anyone regarding the

75

1 drafting or proposal of language for SB 14?2 A. No.3 Q. Did your -- or does your responsibility or did 4 you ever communicate with any legislature, legislator, 5 their staff or the Lieutenant Governor or his staff 6 regarding voter ID legislation?7 A. No.8 Q. And again, let me be more specific. Did you 9 ever communicate with any of those parties regarding SB

10 14?11 A. No. I talked to the Lieutenant Governor and 12 his staff a lot of about redistricting but not about SB 13 14.14 Q. And generally, what -- even though that is a 15 different matter, generally, what would your discussion 16 regarding redistricting have to do with?17 A. He was -- 18 MR. SWEETEN: Hold on a minute. You can 19 give general subject matter description.20 THE WITNESS: Right.21 A. You know, generally about the timing of the 22 primary election and whether or not we were actually 23 ever going to have a primary election and when that 24 might be.25 Q. Okay.

76

1 A. It was a much discussed topic.2 Q. And when did that meeting take place?3 A. I -- I didn't have a meeting with the 4 Lieutenant Governor. I had conversations with him on 5 the phone and his people, and it would have all been 6 January, whenever we were having court hearings in San 7 Antonio.8 Q. Of 2012?9 A. Right.

10 Q. Can you tell me generally what, if any, 11 involvement of the department of the Secretary of State 12 have in drafting language regarding election laws 13 proposed language?14 A. We are a resource for the legislature to use if 15 they have any questions about proposed bill language and 16 its impact.17 Q. And when you say "a resource," what does that 18 involve?19 A. It means we're ready to answer whatever 20 questions they have about election bills.21 Q. What resources do you use or does your office 22 use to prepare the answers for, generally, for those 23 types of questions?24 A. I don't know. I mean, I haven't been through a 25 session yet.






77

1 Q. So your testimony is, is you have never had to 2 do that in your capacity as elections director?3 A. Not yet. That's right.4 Q. Did you have any substantive input regarding SB 5 14?6 A. No.7 Q. Did you have any substantive input regarding 8 any of the voter -- voter ID legislation prior to SB 14?9 A. I did not.

10 Q. Did you have any input at all with anyone 11 regarding the language of SB 14?12 A. No.13 Q. Were you aware that voter ID legislation was 14 controversial?15 A. Yes.16 Q. And how did you gain that awareness?17 A. Watching the session on the computer.18 Q. And when you talk about the session, you're 19 talking about the public hearings, the -- 20 A. Floor debates.21 Q. In both the House and the Senate?22 A. I don't know. You know, whenever I wasn't 23 doing anything else.24 Q. And what was it that you understood to be 25 controversial about SB 14?

78

1 A. Well, I understood that one side felt it to be 2 a suppression of the vote, and the other side felt it to 3 be necessary to protect the integrity of the vote.4 Q. And do you have an opinion as to that 5 controversy?6 A. I have always believed that voter ID is a very 7 small step. You know, there's a balancing act that you 8 have to take. I talked to the -- one of the directors, 9 the elections for the Philippines, and they do

10 fingerprints, they do photos, they do a whole background 11 check, anybody that registers to vote. They have a 12 public hearing, you know, and anybody can object to that 13 person being admitted to register to vote. So, you 14 know, they're trying real hard to make sure that the 15 integrity of their voter rolls is maintained. Right? 16 And the integrity of the vote. 17 So that on their official list of 18 registered voters, they have a thumbprint and a picture, 19 along with the name and address. And the person who 20 votes has to show a photo ID. And if there's any 21 discrepancy between the photos, and the election judge 22 is worried about it, they have to give a thumbprint, and 23 then they can vote. So it's -- you know, obviously, 24 that's an extreme one way. 25 And then you've got the possibility of

79

1 anybody showing up on election day and voting with no 2 controls whatsoever. With nothing. No list of 3 registered voters. No voter registration. Just vote. 4 So that's the other extreme. 5 I think that voter ID is a necessary step 6 to deal with some portions of possible voter fraud. 7 It's a small thing on the scale of possible things, and 8 it would deal with a great deal of impersonation fraud. 9 That's my opinion.

10 Q. So what is the purpose of SB 14?11 A. I don't know what the legislative purpose of SB 12 14 is. Colloquially, the purpose of SB 14 is to make 13 sure that a person who shows up to vote is who they say 14 they are.15 Q. So voter impersonation as it's defined in 16 elections -- Texas -- 17 A. The other secondary aspect is whenever you have 18 to get a driver's license or a Texas ID, the Real ID Act 19 means that you're a citizen so it would have the 20 indirect benefit, as it were, of making sure that more 21 noncitizens are not voting.22 Q. So it's your understanding that at least in 23 part, the purpose of SB 14 is to prevent noncitizens 24 from voting?25 A. Right.

80

1 Q. And do you -- you indicated that you watched 2 some of the legislative debate. Did you hear that 3 argument being made on the Floor during those debates 4 that SB 14 was, in part, to prevent noncitizens from 5 voting?6 A. I don't remember hearing that specifically, 7 no. I probably did but -- if it was part of the debate.8 Q. So where did you -- where did you gain your 9 knowledge regarding preventing noncitizens from voting?

10 Where did you come to understand that?11 A. That is just, you know, I've always been very 12 interested in politics in the news, and it's just 13 something that I've absorbed from the conversation over 14 the years.15 Q. For instance, were you aware that the 16 Lieutenant Governor has repeatedly stated that SB 14, in 17 part, was to prevent noncitizens from voting?18 A. I did not know that he had said that.19 Q. Are you aware of any legislators making the 20 statement that SB 14 was, in part, to prevent 21 noncitizens from voting?22 A. I don't know. I mean, probably. Senator 23 Fraser probably would, but I don't have any specific 24 recall of him saying that.25 Q. Did you have any communications with Senator






81

1 Fraser regarding the noncitizen aspect of SB 14?2 A. Absolutely not.3 Q. Did you have any communications with anyone -- 4 let me narrow that, with any legislators regarding 5 noncitizens voting and SB 14?6 A. No.7 Q. Did you have any communications with the 8 Secretary of State regarding noncitizen voting?9 A. No.

10 Q. And SB 14?11 A. No.12 Q. What about the Lieutenant Governor?13 A. No.14 Q. Anyone in the Governor's office?15 A. No.16 Q. But you understood that to be at least, in 17 part, part of the debate regarding SB 14?18 A. I believe that's an indirect benefit of the law 19 is it's worded, yes.20 Q. And you said that this was a small necessary 21 step to prevent voter fraud; is that accurate?22 A. That is correct.23 Q. Okay. So let's talk about voter fraud for a 24 second, and when we say "voter fraud," how are you 25 defining that?

82

1 A. Well, specifically, I'm talking about voter 2 impersonation.3 Q. Okay. Anything else?4 A. Well, I mean, there's all kinds of voter fraud 5 that, you know, that can be anything. But, you know, 6 voter ID is going to specifically deal with 7 impersonation.8 Q. And -- 9 A. Voting more than one time.

10 Q. I'm sorry. When you say "impersonation," you 11 mean voter impersonation at the polls?12 A. Correct. 13 Q. Okay. And SB 14 does not deal with any other 14 type of voter fraud?15 A. I don't know if it does or not. I know that 16 primarily, you know, you want to make sure that the 17 people who are registered to vote are eligible to vote 18 and that they are who they say they are when they show 19 up.20 Q. Okay.21 A. And I think that SB 14 will help with both of 22 those things.23 Q. Okay. So we talked a little bit about what 24 the -- what the Secretary of State's Office or the 25 election division does when it receives complaints of

83

1 voter fraud. Remember that testimony?2 A. Uh-huh.3 Q. Okay. And so I just want to make sure that I 4 understand the -- the realm of voter fraud as it's 5 received by the Secretary of State's Office. You 6 testified that that could be received from the voter?7 A. Correct.8 Q. From a candidate?9 A. Yes.

10 Q. From a local election official?11 A. Yes.12 Q. And there are others who can -- who can provide 13 complaints of voter fraud to the Secretary of State's 14 Office, correct?15 A. Correct.16 Q. And as you testified, it's anyone who is 17 concerned about voter fraud can provide a complaint to 18 the Secretary of State's Office?19 A. Right. Anybody that feels like they have 20 witnessed something that shouldn't be happening that 21 cares enough to report it.22 Q. Okay. And is it -- is it accurate to say, 23 based on your testimony, that once a complaint is 24 received, you would ask the complainant to complete a 25 formal complaint?

84

1 A. Correct, if they haven't already. 2 Q. All right. And are those complaints sworn or 3 unsworn? You know what I mean by that?4 A. I do. And I don't know off the top of my 5 head. I would have to look at the form. The form is on 6 our website. I don't think it's sworn, but I don't know 7 for sure.8 Q. And once you receive a complaint, and "you" 9 being you and your office.

10 A. Right.11 Q. Once you receive a complaint, you would refer 12 that to the OAG's Office? 13 A. No.14 Q. Okay. Tell me what you would do.15 A. I would refer it to our Legal Division inside 16 of the Elections Division, and they would evaluate the 17 complaint and determine whether or not it merits 18 referral or not.19 Q. Okay. When you say "evaluate the complaint," 20 we've -- you've provided some testimony already as to 21 the fact that the Secretary of State's Office does not 22 do its own independent investigation? 23 A. That's right.24 Q. So when you say "evaluate," what do you mean by 25 that?






85

1 A. You know, I don't want to -- I haven't ever 2 been a lawyer in the Elections Division -- 3 Q. Okay. 4 A. -- under Elizabeth, so I'm not sure exactly 5 what all they do. All I see is the report from them 6 about whether or not they think it merits referral and 7 why, or doesn't merit referral, and so I can infer some 8 of the process they go through.9 Q. Who makes the decision as to whether or not a

10 complaint merits referral?11 A. I do.12 Q. Okay. And so is there something you're basing 13 that on? You've testified before you look at the facts.14 A. Right. And do the facts, as alleged, 15 constitute a crime? You know, the election worker was 16 rude to me, not a crime.17 Q. Okay. 18 A. Right? So if that's all that's been alleged, 19 we send it back to the voter and say thank you for your 20 concern. We'll try to address that in our training 21 materials, and you know, hopefully, you won't be 22 mistreated next time you go vote. So you understand 23 what I'm saying? 24 But if it's -- if it's a voter 25 impersonation, which is -- what, a state jail felony,

86

1 then if that's what's been alleged, we refer it to the 2 OAG. If it's a Class C misdemeanor or no crime, it 3 doesn't get a referral. The OAG has -- they've got too 4 many cases to work on to do Class Cs.5 Q. Okay. And so we've -- you've testified to 6 this, generally, but the types of voter fraud complaints 7 that would be received by the Secretary of State's 8 Office, can you give me a little bit more detail on 9 that?

10 A. It's -- it runs the gamut.11 Q. And generally, can you identify what "the 12 gamut" is?13 A. Generally is everything.14 Q. Okay. So we're talking about misconduct by 15 election officials. Are we also talking about by mail 16 ballot fraud?17 A. (Witness nods head yes.) Improper assistance 18 at the polling place. I mean, you just -- it's 19 everything.20 Q. Okay. And everything that's referred to the 21 Secretary of State's Office or to the election division 22 does not turn out to be a crime; is that correct?23 A. That is correct.24 Q. Okay. And so you also indicated that you had a 25 spreadsheet that you've produced and which has been

87

1 identified by Patrick. Can you tell me generally how 2 many complaints were indicated on that spreadsheet?3 A. I don't recall.4 Q. All right. Can you give me a general number?5 A. I don't -- I would be speculating. I don't 6 remember.7 Q. Okay. And I think we'll come back to this. 8 I'll see if I can pull that and put it in front of you.9 A. Sure.

10 Q. So there's a spreadsheet, but let me ask a 11 larger question: How are the complaints of voter fraud 12 maintained within the Secretary of State's Office?13 A. I don't know for sure all the ways. I know 14 that if we've got it in hard copy, we've got a file room 15 where the hard copies are kept. I don't know for how 16 long they're kept. We also have soft copies, and I 17 don't know if we've got all of them in soft copy or not, 18 and I don't know how long they're kept.19 Q. And when you say "soft copies," I think 20 electronically, but are you talking about by disk, by --21 A. I'm talking about PDFs on the network drives. 22 Canned PDFs.23 Q. Okay. And can you tell me how long this 24 referral process has been in place with the OAG's 25 Office?

88

1 A. I have no idea.2 Q. Okay. That's generally because you came in 3 2012?4 A. Exactly.5 Q. All right. Do you know how far back the 6 referrals go on either the hard copies or the PDF 7 versions on electronically?8 A. I don't.9 Q. All right.

10 A. I would imagine that they go back as far as our 11 retention policy requires them to go back, but I don't 12 know.13 Q. Okay. And who prepared the spreadsheet that 14 was produced in response to -- or to your attorneys?15 A. Jennifer Templeton.16 Q. And who is Jennifer Templeton?17 A. She's my assistant.18 Q. And why did she create this spreadsheet?19 A. We were asked by them.20 Q. By the OAG's Office?21 A. (Witness nods head yes.)22 Q. Do you recall on that spreadsheet how many 23 cases of voter impersonation you identified?24 A. I don't.25 Q. Did you identify any cases of voter






89

1 impersonation on the spreadsheet?2 A. I believe so.3 Q. More than one, less than five?4 A. I don't know.5 Q. So other than Jennifer Templeton -- or strike 6 that. 7 Is it Jennifer Templeton who maintains 8 the -- the files related to voter fraud? Is there 9 anyone else that would maintain those files?

10 A. No. I mean, it's Louri's group that would -- 11 so I guess, ultimately, Louri O'Leary is in charge of 12 it.13 Q. And Louri O'Leary, again, is in administration?14 A. Correct.15 Q. And would it be Louri O'Leary that ultimately 16 makes the referral, or is that something that you 17 specifically would do the referral to the OAG's Office?18 A. I do it.19 Q. Okay. In the -- within the Elections Division, 20 are the voter fraud files broken down by subject matter?21 A. I don't know. They're categorized in the 22 spreadsheet by subject matter.23 Q. And that would have been something that 24 Jennifer Templeton did?25 A. And whoever did it before her.

90

1 Q. Okay. So I didn't understand your testimony 2 to -- to indicate that there was an existing 3 spreadsheet. Is that what you're testifying to today?4 A. Yes.5 Q. Okay. And so she updated the spreadsheet?6 A. She keeps it updated, yes.7 Q. Okay. And do you know who would have worked on 8 the spreadsheet prior to Jennifer Templeton?9 A. I don't.

10 Q. Do you know if there was -- do you know if the 11 Secretary of State's Office provided testimony during 12 the public legislative debates regarding SB 14?13 A. I assume they did.14 Q. All right. Do you know if the information from 15 the spreadsheet was used during the testimony during the 16 public debates?17 A. I don't know. Probably.18 Q. Do you know who, if anyone, testified out of 19 the Secretary of State's Office during the legislative 20 debates?21 A. I don't.22 Q. Is it fair to say Ann McGeehan testified?23 A. Probably.24 Q. And other than Ann McGeehan, it's your 25 testimony you're not aware of who, if anyone else,

91

1 testified out of the Secretary of State's Office?2 A. I don't.3 Q. Do you know how many -- do you have any 4 knowledge of how many cases of voter fraud have been 5 referred to the Texas AG's Office from the Secretary of 6 State's Office?7 A. I don't know.8 Q. Do you have a general number?9 A. I don't.

10 Q. Would the spreadsheet be reflective of the 11 number of complaints both received by the Secretary of 12 State's Office and referred to the OAG's Office?13 A. I believe so.14 Q. Would they -- would the spreadsheet also be 15 reflective of the number of voter impersonation cases 16 that the Secretary of State's Office has referred to the 17 OAG's Office? 18 A. I believe so.19 Q. Do you have any specific knowledge of voter 20 impersonation cases that have been referred to the OAG's 21 Office?22 A. I don't. I believe the Medrano case that came 23 out of the 2010 election involved voter impersonation, 24 but I'm not at all aware of the specifics. I think 25 there was two complaints that were referred to the

92

1 OAG. One of those has been tried to conviction in 2 Rockwall County earlier this year.3 Q. Okay. So you said -- the Medrano --4 A. Right.5 Q. -- complaint. Tell me what that complaint 6 involved. 7 A. I don't know.8 Q. Did it involve voter impersonation?9 A. I believe so. It's several species of voter

10 fraud, and I'm not sure exactly what the OAG ended up 11 prosecuting. It's -- I would have to go look at that 12 case.13 Q. And that's M-A-D-R-A-N-O?14 A. M-E-D-R-A-N-O. And it involved a justice of 15 the peace race in Dallas County.16 Q. So that was in Dallas County in 2010?17 A. Yes. And I don't know if it was the primary or 18 the general. I think it was the Democratic primary.19 Q. And who is Medrano?20 A. The justice of the peace had several family 21 members who came in that were involved in whatever went 22 on.23 Q. So several family members. You indicated that 24 this -- strike that. 25 So was this a referral from the Secretary






93

1 of State's Office to the OAG?2 A. Yes.3 Q. And it's one that you reviewed yourself?4 A. I did not. It was before my time.5 Q. Okay. But you've reviewed it subsequently? 6 A. I haven't ever reviewed the complaint, no. 7 Read about the case in the newspaper.8 Q. And is that where you gained knowledge of the 9 Medrano case?

10 A. Yes.11 Q. And you indicated that it went to prosecution, 12 correct?13 A. Yes.14 Q. And do you know who was prosecuted as a result 15 of that case?16 A. I do not.17 Q. Do you know what the results of that 18 prosecution were?19 A. We got one conviction and another trial coming.20 Q. And do you have any knowledge of what that 21 person was convicted for?22 A. No.23 Q. So as you sit here today, you cannot say that 24 it was a voter impersonation case, or is that your --25 A. I don't know.

94

1 Q. And was it the justice of the peace that was 2 convicted?3 A. I don't know. I think so. Or somebody that 4 was close to him. It might have been the treasurer or 5 somebody. I don't know.6 (Exhibit 554 marked for identification.)7 Q. (By Mr. Gear) I want to show you what's been 8 marked as Exhibit 554, and I'll give you a chance to 9 look at that.

10 A. (Witness reviewing document.) Yes.11 Q. Have you had a chance to look at it?12 A. I have.13 Q. Okay. And so these may not all be related, and 14 you can certainly tell me if they're not all related to 15 the same subject matter, but can you identify what this 16 is?17 A. Yes.18 Q. What is it?19 A. This is a complaint that we received from a 20 House member, Marva Beck, related to potential voter 21 fraud, voting twice, by an election administrator.22 Q. Do you know the name of the election 23 administrator?24 A. Midget Sherman.25 Q. Actually, let me switch and give you the marked

95

1 copy.2 Was this the voter fraud case that you 3 were referencing previously in your testimony?4 A. I wasn't referencing a specific voter fraud 5 case.6 Q. You were talking about the Medrano?7 A. Right. No, this is definitely not Medrano. 8 Q. In 2010. Okay. And do you recall when this 9 occurred?

10 A. This was this year.11 Q. Okay.12 A. I mean, I don't know the election that's 13 involved was the primary in 2010.14 Q. Okay. And so turning your attention to Page 2 15 of what's been marked as TX_00148057. Do you see that, 16 Page 2?17 A. Yes.18 Q. At the top, it indicates that, "It has come to 19 my attention that Thelma Midget Sherman voted on 20 February 19, 2010." Do you see that?21 A. I do. 22 Q. "In the Republican primary and on February 26, 23 2010, in the Democratic primary during the 2010 24 election." Do you see that?25 A. I do.

96

1 Q. All right. And do you generally, after 2 reviewing what I've handed you is a series of e-mails, 3 do you know what the allegation pertains to?4 A. I do.5 Q. And what does the allegation pertain to?6 A. The allegation was that Ms. Sherman voted in 7 each of the primaries in 2010, and that she subsequently 8 altered the record to cover that up.9 Q. And so the exhibit that I've handed you,

10 Exhibit 554, I believe, that does not address an issue 11 of voter impersonation?12 A. It does not.13 Q. Do you know if this has been investigated, and 14 "this" being the allegations pertaining to Ms. Sherman?15 A. I don't know.16 Q. Do you know if this has resulted in a 17 prosecution?18 A. I don't believe it has yet. I don't know what 19 the status is.20 Q. If SB 14 were implemented, would it actually 21 prevent a case like this from occurring? 22 MR. SWEETEN: Objection, foundation. Go 23 ahead.24 A. No.25 (Exhibit 555 marked for identification.)






97

1 Q. (By Mr. Gear) And I'm going to show you what's 2 been marked as Exhibit 555. Give you an opportunity to 3 look at this.4 A. (Witness reviewing document.) Okay.5 Q. And can you tell me what this is?6 A. This is a notice from the -- 7 Q. It's a series of documents, to be fair, but --8 A. Right. And it purports to be notice from the 9 DA in Angelina County that they are investigating an

10 election code violation.11 Q. All right. And is it fair to say that this 12 deals with the alleged violation of Ms. Sherman?13 A. I don't know. I don't know. Underneath at 14 TX_00057260 is our complaint referral to the OAG. I 15 don't know what this has to do with Angelina County's 16 letter on the front.17 Q. Okay. And let's just turn to your referral. 18 So when you've testified previously that the Secretary 19 of State's Office would like to see the complaint broken 20 down to a written form, correct?21 A. Right.22 Q. And is the document, TX_0005727, and I believe 23 there are some numbers cut off on this, and I apologize 24 for that, is that reflective of the form that you would 25 like to see the complaint reduced to?

98

1 A. I've got 00057271, Election Complaint To The 2 Texas Secretary of State, yes.3 Q. That would be accurate. And the answer to my 4 question is "yes"?5 A. Yes.6 Q. All right. And in the case of Ms. Sherman, 7 that case was referred to the OAG's office?8 A. It was.9 Q. And turning the page to what's marked as

10 TX_0005727- I believe it's -3, do you see that -- that 11 this case involved Angelina County?12 A. Yes.13 Q. Okay. Other than the 2010 voter -- possible 14 voter impersonation case involving Medrano, is that a 15 Mr. or Mrs. Medrano?16 A. Mr.17 Q. Mr. Medrano?18 A. There might have been some Mrs., as well, but 19 there's at least a Mr.20 Q. Okay. Mrs. or Mr. Medrano. 21 A. Yes.22 Q. And the 2010 case that we referred to by 23 Exhibit 555, are you aware of any other voter 24 impersonation cases?25 A. 555 is not a voter impersonation case.

99

1 Q. That's correct. Are you aware of any other 2 voter impersonation cases other than the Medrano case?3 A. Am I aware of any other voter impersonation 4 cases?5 Q. Yes.6 A. That have been referred to the OAG?7 Q. Yes.8 A. Not off the top of my head.9 Q. Are you aware of any voter impersonation cases

10 that have not been referred to the AG's office?11 A. Yes.12 Q. And tell me about that.13 A. We got a call during the May 12th city election 14 from the election administrator in Hidalgo County, 15 Yvonne Ramon. Her staff was concerned about the 16 possibility that a person, a male, was shown up to vote 17 with different voter registration cards.18 Q. And when you say "May 12th," can you tell me is 19 that May 12, 2012, is that May 12th of a different year?20 A. May 12, 2012, city elections.21 Q. And you said Hidalgo County?22 A. Yes.23 Q. And you went through the allegations pretty 24 quickly. Could you give me a little bit more detail 25 what you know about that?

100

1 A. What I know is that there was concern on the 2 part of the election workers that a man had been there 3 to vote more than once with different voter registration 4 cards.5 Q. Have you received a written complaint regarding 6 Hidalgo County?7 A. I have not.8 Q. Have you done any independent investigation 9 regarding Hidalgo County?

10 A. I have not.11 Q. So as you sit here today, you don't know if 12 this is a credible allegation or not?13 A. I don't.14 Q. Are there any other un -- are there any other 15 cases of voter impersonation that you're aware of that 16 have not been sent to the OAG's office?17 A. Well, I don't know. We got a whole lot of 18 complaints during the May 12th election over the phone, 19 and we also got a whole lot of complaints May 29th over 20 the phone. Those have not been worked up yet. So I 21 don't know if there's any voter impersonation complaints 22 in either of those batches.23 Q. And so let's focus first on May 12th. You said 24 you got a whole lot of complaints. What does that mean?25 A. It's the normal gamut, general complaints of






101

1 everything.2 Q. And "everything" meaning?3 A. Everything.4 Q. From voter fraud to -- 5 A. Everything. "The county didn't tell me where 6 my polling place was. I want to lodge a complaint."7 Q. Okay. And so in that gamut of complaints, have 8 you identified any that deal with voter impersonation?9 A. I haven't done any work with regard to that

10 list of complaints at all.11 Q. Okay. Has anyone within your office done any 12 work with regard to that list of complaints?13 A. I don't know. I think they might be waiting 14 for the new lawyers to spring it on them.15 Q. Let's focus on May 29th for a second. Would 16 that be the usual gamut of complaints that are received 17 after an election?18 A. During an election, yes.19 Q. And you made a distinguishing point. Are these 20 complaints generally received prior to, during or after 21 elections?22 A. You know, all three. The preponderance of them 23 come during and after, but you can definitely have 24 complaints beforehand.25 Q. Okay. And are you aware of any complaints that

102

1 are specific to voter impersonation during, before or 2 after the May 29th election?3 A. I'm not. And it could be that the Yvonne Ramon 4 call came in on the May 29th election. I'm pretty sure 5 it was May 12th, but --6 Q. Okay.7 A. -- I want to leave myself some wiggle room 8 there. It could have been May 29th.9 Q. Okay. So you're not sure as you sit here?

10 A. Not totally sure. It's been kind of a blur 11 lately.12 Q. So in your capacity as Director of Elections, 13 can you identify any documented cases of noncitizens 14 voting?15 A. Uhm...16 Q. And just so I'm clear, cases that have been 17 referred to the OAG's Office?18 A. I don't know if we've got any cases referred to 19 the OAG for noncitizens.20 Q. And referring to the spreadsheet which you've 21 testified about, if there were cases that were referred 22 to the OAG's Office regarding noncitizens, would that be 23 reflected in that spreadsheet?24 A. Ought to be.25 Q. Are you aware of any cases involving

103

1 noncitizens that were not referred to the OAG's Office?2 A. Well, we've got this one from Mr. Barrientos 3 this morning that hasn't been referred to the OAG's 4 Office.5 Q. Okay. So other than the Barrientos case which, 6 again, you received on June 5th, 2012, and is marked as 7 Exhibit 553, are you aware of any other cases?8 A. Well, and again, we've got a whole bunch of 9 complaints that have to be worked with regard to the two

10 recent elections that we've had so there could be some 11 in there. I don't know.12 Q. Okay. And you're referring to the May 12th and 13 May 29th elections?14 A. Right.15 Q. So other than Exhibit 553, May 12th and May 16 29th, are you aware of any other cases that have not 17 been referred to the OAG's Office that deal with 18 noncitizen voting?19 A. No.20 Q. The answer was "no"?21 A. No.22 Q. I'm sorry. You were covering up your mouth.23 A. Sorry.24 Q. So I believe I asked you this question. You 25 were hired January 5th of 2012. Were you involved in

104

1 any capacity with reviewing voter ID legislation? 2 MR. SWEETEN: Objection, asked and 3 answered.4 A. Not reviewing voter ID legislation, no.5 Q. (By Mr. Gear) Okay. So let me just understand 6 for the record then. Regarding SB 14, what if any 7 responsibilities have you had as the director of 8 election?9 A. Since I have been at the Secretary of State's

10 Office, I had to submit supplemental information to the 11 Justice Department regarding voter ID submission. I had 12 to have a conference on the phone with DOJ lawyers 13 regarding that submission. I have had to answer 14 numerous press questions regarding SB 14 submission 15 litigation implementation. I have had to deal with 16 legislative calls from senators and representatives 17 regarding SB 14 implementation. 18 I have had to answer discovery in this 19 case, the Holder versus -- or Texas versus Holder case. 20 I've had to testify at a hearing over the phone in the 21 Texas versus Holder case, and I've had to prepare forms 22 for the implementation of SB 14 and submit those to the 23 DOJ for preclearance. I've had to revise our election 24 worker training manual and submit it to the DOJ for 25 preclearance. And I don't know what else.






105

1 Q. Okay. I'm not going to go through and 2 summarize all of that, but is it fair to say that you 3 have been involved in the Section 5 submission process 4 and responding to press questions and assisting with 5 responding to questions related to this lawsuit, Texas 6 V. Holder?7 A. Right.8 Q. And again, so I understand your testimony, is 9 there any aspect of SB 14 that you were involved with

10 prior -- prior to the SB 14 being signed by the 11 Governor?12 A. No.13 MR. SWEETEN: Objection, asked and 14 answered.15 Q. (By Mr. Gear) Were you involved in any aspect 16 in -- strike that. 17 Have you ever reviewed any prior voter ID 18 legislation?19 A. I don't think so. Not that I recall.20 Q. Are you aware that there was prior voter ID 21 legislation prior to SB 14?22 A. I am.23 Q. During any aspect of considering SB 14, did you 24 have an occasion to review any of the prior legislation?25 A. No.

106

1 Q. Do you have any knowledge of what the prior 2 legislation or the language of the prior legislation?3 A. No.4 Q. And so I just want to be clear before we move 5 on. If I was to tell you that there was legislation in 6 2005, is it fair to say that you have not reviewed that 7 legislation?8 A. I have not.9 Q. Okay. Is it fair to say that you didn't engage

10 in communication with any of the legislators regarding 11 the voter ID legislation in 2005?12 A. I did not.13 Q. Okay. And when I say "engaged in 14 communication," I'm referring to communication that may 15 have occurred while you were working for the Secretary 16 of State's Office from 2012 forward. 17 A. I don't understand that at all.18 Q. Okay. Well, let me break that down, and that 19 was a little convoluted. I'm just trying to narrow this 20 down and understand if you've engaged in any 21 communications with anyone regarding prior voter ID 22 legislation since you've been the Director of Elections.23 A. No.24 Q. Do you know what the purpose -- well, strike 25 that.

107

1 If I was to tell you that the voter ID 2 legislation from 2005 was HB 1706, would you know that?3 A. If you say that that's the number, that's the 4 number. I can look it up.5 Q. Well --6 A. I have no -- before you say that number, I 7 didn't know it existed.8 Q. Okay. You have no independent knowledge of 9 that?

10 A. I do not.11 (Exhibit 101 marked for identification)12 Q. I'm just going to show you what's been 13 previously marked as Exhibit 101 in prior 14 depositions. Just have you take a look at that.15 A. (Witness reviewing document.) 16 Q. And let me know when you've had a chance to 17 look at it.18 A. Okay.19 Q. Does this refresh your recollection as to the 20 title of voter ID legislation in 2005?21 A. I didn't have a recollection to be refreshed.22 Q. Okay. And can you tell me what this is, 23 Exhibit 101?24 A. It looks like an Online Legislative History 25 form.

108

1 Q. Okay. And it refers to HB 1706?2 A. That's what it says.3 Q. And you've seen these type of online history 4 before?5 A. I have.6 Q. All right. And so would you have any reason to 7 believe that there was not voter ID legislation 8 introduced in 2005 by looking at Exhibit 101, would you 9 agree with what it says?

10 MR. SWEETEN: Objection, foundation. 11 A. I -- I don't know. I mean, it says 12 "identification cards." That could be voter ID, I 13 guess. I don't know. I didn't -- I'm not disputing 14 it. I just -- 15 Q. (By Mr. Gear) You don't know?16 A. I don't know.17 Q. Does this refresh your recollection as to 18 whether or not you ever reviewed any voter ID 19 legislation from 2005? 20 MR. SWEETEN: Objection, asked and 21 answered. Go ahead. 22 A. I did not.23 Q. (By Mr. Gear) Okay. Do you see that Exhibit 24 101 refers to HB 1706?25 A. I do.






109

1 Q. Okay. And can you tell me who authored HB 1706 2 based on Exhibit 101?3 A. Looks like Representatives Denny, Pitts, 4 Woolley, Nixon and Bohac. 5 Q. Can you tell me what the purpose of HB 1706 6 was?7 A. No.8 Q. And you don't have any particular knowledge of 9 any of the provisions of HB 1706; is that fair to say?

10 A. None whatsoever.11 Q. Do you have any knowledge of what the -- what 12 the general debate was regarding HB 1706 between the 13 supporters and the opponents in -- from 2005?14 A. I do not.15 Q. From your position as the Director of 16 Elections, when you or anyone in your office searched 17 for documents responsive to your notice of deposition, 18 did you produce any documents related to the 2005 19 legislation, HB 1706?20 A. Did not search for documents in response to the 21 notice of deposition.22 Q. Okay. What you've said before is that there 23 was a request for documents made by Ms. Gamboa and you 24 simply produced that in response to the notice of 25 deposition?

110

1 A. I simply produced that in response to request 2 for production. It much predated the request for 3 deposition.4 Q. Okay. So is it -- is it fair to say that you 5 are not aware of any communications regarding the impact 6 of HB 1706 on minority voters? 7 MR. SWEETEN: Objection, foundation.8 A. No.9 Q. (By Mr. Gear) Well, and so since there was a

10 foundational objection, let me go back. 11 Are you aware of any communications 12 regarding -- and when I say "communications," I'm 13 speaking about your position as the Director of 14 Elections. Are you aware of any communications 15 regarding HB 1706?16 A. I'm not.17 Q. And are you aware of any communications 18 regarding HB 1706 and its impact on minority voters?19 A. I am not.20 Q. So moving forward, are you aware or do you have 21 knowledge that there was voter ID legislation in 2007?22 A. (Witness gesturing.) 23 Q. In your capacity as Director of Elections for 24 the Secretary of State's Office, did you have an 25 occasion to review the voter ID legislation from 2007?

111

1 A. I have not.2 Q. And before I asked you the question, you raised 3 your hand, but I don't think you gave a verbal 4 response. 5 A. I --6 Q. Did you -- have you reviewed voter ID 7 legislation from 2007?8 A. I have not.9 Q. Are you aware of any communications, and again,

10 this is in your capacity as the Director of Elections, 11 regarding voter ID legislation for 2007?12 A. I've not. 13 (Exhibit 28 marked for identification.)14 Q. I'm going to show you what's been marked 15 previously in other depositions as Exhibit 28, and give 16 you a chance to look at that.17 A. (Witness reviewing document.) Okay.18 Q. Okay. And so you've had a chance to review 19 what's been marked as Exhibit 28. Can you tell me what 20 this is?21 A. It appears to be House Bill Number 218 from 22 the -- I don't know, I assume 80th regular session since 23 you're calling it 2007, but I don't see anything on the 24 document that says that. 25 Q. Did you say something else? I'm sorry.

112

1 A. The effective date in Section 15 is September 2 1, 2007, so it would have to be the 80th regular 3 session. 4 Q. Okay. And do you understand this to be the 5 voter ID legislation that was introduced in 2007?6 A. Well, it's a bill pertaining to voter ID. I 7 don't know if it was the bill.8 Q. Okay. 9 A. There could have been more than one. Often in

10 something like this, there is, and so I don't know if -- 11 this is definitely a voter ID.12 Q. Okay. And that was generally my question. 13 A. Okay.14 Q. Is this a voter ID -- is this voter ID 15 legislation, and was it introduced in 2007?16 A. It appears to be.17 Q. And can you tell me who authored this 18 legislation in 2007?19 A. It looks like Representative Brown of Kaufman, 20 which would be the not Fred Brown, Representative 21 Berman, Bohac and Riddle.22 Q. And do you also see that this is referencing HB 23 Number 218?24 A. Yes.25 Q. And have you previously reviewed HB 218?






113

1 A. I've not.2 Q. Can you tell me the purpose of HB 218?3 MR. SWEETEN: Objection, foundation.4 A. It looks like the purpose of 218 is to amend 5 the election code in several respects.6 Q. (By Mr. Gear) Regarding voter ID?7 A. As well as some other stuff.8 Q. Can you tell me generally what HB 218 would 9 allow as allowable forms of ID?

10 A. Well --11 MR. SWEETEN: Caution the witness to 12 review the document.13 Q. (By Mr. Gear) Certainly.14 A. I don't know everything that's in here, but 15 63.0101 is the documentation of proof of identification 16 section of the election code.17 Q. Okay.18 A. And this amends that a little bit. 19 Q. And is it fair to say that it allows both photo 20 and nonphoto forms of ID? And take your time, please.21 A. It does have a list of nonphoto ID material 22 that can be used as identification, but I don't know if 23 that means for the same purpose or not. That's 24 interesting.25 Q. And when you say "for the same purpose," I'm

114

1 not clear on that. 2 A. Well, you know, I know that A: "The following 3 documentation is an acceptable form of photo 4 identification under this chapter." And then B says: 5 "The following documentation is acceptable as proof of 6 identification under this chapter." And so I don't know 7 if they've got separate purposes in this bill for photo 8 identification versus identification.9 Q. Okay. And it's fair to say, based on your

10 testimony, that you've never reviewed HB 218 prior to 11 today's deposition?12 A. That's correct.13 Q. All right. And for the record, do you know the 14 purpose of HB 218?15 A. To amend the election code in several respects.16 Q. And were you involved in any communications in 17 your capacity as the Director of Elections regarding HB 18 218?19 A. I was not.20 Q. Are you aware of whether or not HB 218 was 21 considered as part of any analysis during the review of 22 SB 14?23 A. I don't know.24 Q. And that's because you were not in the office 25 at the time?

115

1 A. That's right.2 Q. And when you came into the office in January of 3 2012, is it fair to say, based on your testimony, that 4 HB 218 and HB 1706 were not considered, at least by you, 5 during the -- during any of the process that you've 6 described regarding SB 14?7 A. No.8 Q. No, it's not fair to say, or no, you did review 9 them?

10 A. No. They were not considered as part of the 11 process.12 Q. Okay. All right. 13 MR. GEAR: Maybe this is a good time to 14 take a break. So why don't we go ahead and go off the 15 record.16 (Recess from 12:24 to 1:12 p.m.)17 Q. (By Mr. Gear) Okay. So we're back on the 18 record after lunch, and I wanted to take you back to 19 your testimony about noncitizens -- SB 14, in part, 20 preventing noncitizens from voting.21 Do you have any concerns that allegations 22 of noncitizen voting that surrounded the debate during 23 SB 14 has led to an increase in the number of complaints 24 that -- that are occurring now? 25 MR. SWEETEN: You're asking his personal

116

1 opinion? Okay.2 Q. (By Mr. Gear) Well, as -- as the Director of 3 Elections. 4 A. I don't know.5 Q. And you don't know if there's been increase in 6 complaints? Has there been an increase in complaints?7 A. I don't know. I haven't done an evaluation of 8 pre and post. I don't know.9 Q. Okay. But regardless, based on your testimony,

10 as I understand it, there have been no complaints 11 regarding noncitizens voting that have been referred to 12 the Attorney General's Office?13 A. I don't think that's what I testified to.14 Q. I believe I asked you if you were aware of any 15 complaints that have been referred to the Attorney 16 General's Office regarding noncitizens voting, and your 17 answer was -- do you remember your answer?18 A. That it would be reflected on the 19 spreadsheet --20 Q. Okay.21 A. -- which has been provided.22 Q. Which we now have, and we can talk about that. 23 A. Okay. Good.24 Q. SB 14, how would that prevent noncitizens from 25 voting?






117

1 A. Well, it doesn't. It wouldn't be a perfect 2 solution for all noncitizens, but what it would 3 generally do is, most people who would get an ID would 4 get an ID either as a driver's license or identification 5 card from Texas DPS, and they will not be able to get 6 such a card without proof of citizenship since the Real 7 ID Act.8 Q. Okay. And you -- you mentioned the Real ID Act 9 several times, and I just want to understand. So what

10 is the Real ID Act?11 A. I am not sure what all the provisions of it 12 are, because, you know, obviously, it was in Washington, 13 D.C., and I wasn't involved in this process. But my 14 understanding of one of the effects of that bill is that 15 you cannot get a driver's license without proof of 16 citizenship.17 Q. So is it your understanding that in order to 18 obtain a driver's license in the state of Texas, you 19 have to prove citizenship?20 A. No. You can have a temporary visa, and then 21 you would get a temporary driver's license of some sort 22 that would be marked as temporary, so that -- that would 23 be...24 Q. Okay. So following along that line of 25 reasoning, is it fair to say that everyone that

118

1 possesses a driver's license in the state of Texas is 2 not necessarily a citizen?3 A. I don't know.4 Q. Did you not understand the question?5 A. I don't understand that question. There was a 6 double negative there, that I'm not sure I --7 Q. Okay.8 A. -- full navigated the parameters of. 9 Q. Do you -- fair enough.

10 Do you have to be a citizen in the state 11 of Texas to have a driver's license?12 A. I think that Real ID only came online in 2007 13 or 2008, so it's possible that people could have 14 driver's license from before that time. And I don't 15 know what documentation is required for renewal of the 16 driver's license. But going forward, driver's license, 17 new driver's license and new IDs will require proof of 18 citizenship.19 Q. Okay. So, let me break that out into nuggets.20 Real ID came online, I believe you said, 21 in 2007.22 A. Or '8, somewhere fairly recent past.23 Q. Or '8.24 A. Right.25 Q. Prior to that, a noncitizen could obtain a

119

1 driver's license? Is that a fair --2 A. I don't know how easy it would be for them to 3 do, but presumably they could, since Real ID was 4 supposed to remedy that.5 Q. Okay. And you also talked about the renewal of 6 drivers' licenses, and I believe your testimony was, is 7 that you don't know what the requirement for underlying 8 documentation is. 9 A. That's right.

10 Q. So, if I was a noncitizen, and I had a driver's 11 license in the state of Texas, but it came time that I 12 had to renew that driver's license, do you know what 13 would be required, what I would be required to do prior 14 to renewing that driver's license?15 A. I have no idea.16 Q. So as you sit here today, are you aware of 17 whether or not the Real ID Act would prevent a 18 noncitizen from renewing their driver's license?19 A. I don't know. And it's my understanding, you 20 know, you're going to have to talk to the DPS if you 21 want the details on all this. But it's my understanding 22 that there's two kinds of renewal. There is the renewal 23 that you can do online. But I think every, I don't 24 know, so many years, you have to actually go to the 25 office and renew, and they've got to test your vision

120

1 again. And I don't know what all they do during that 2 process, and I don't know if Real ID will affect that 3 process. I think the online renewal will be fairly 4 simple for anybody to accomplish. But I don't know. 5 You know, you're going to have to ask somebody that 6 deals with those issues.7 Q. So under the Real ID Act, can a legal resident 8 obtain a driver's license?9 A. Yes. A legal resident, a green card resident

10 can have a normal driver's license; no indicator on it 11 at all that they're not a citizen.12 Q. All right. And just -- just to round out your 13 testimony, there's two types of renewal for a driver's 14 license, correct?15 A. Right.16 Q. One is online?17 A. Right. 18 Q. And one is in person?19 A. Right.20 Q. All right. And have you -- do you have a 21 driver's license?22 A. I do.23 Q. And have you renewed that driver's license 24 anytime recently?25 A. Well, I came back from Arkansas in '07, so I






121

1 got one then, and I don't think I've had to renew since 2 then.3 Q. And when you were in Arkansas, did you have an 4 Arkansas driver's license?5 A. I did.6 Q. So what did you have to do to obtain a Texas 7 driver's license, if that's what you actually have at 8 this point?9 A. I don't know what I had to do.

10 Q. Okay. Do you have a Texas driver's license?11 A. I do, and I have renewed it once.12 Q. All right. And did you do it online or did you 13 do in person?14 A. In person?15 Q. All right. And you're a resident of which 16 county?17 A. At the time I got my driver's license renewed 18 and when I got my driver's license, I was a resident of 19 Travis County.20 Q. Of Travis County. And does Travis County have 21 a driver's license office?22 A. Yes.23 Q. All right. And how far was that office from 24 your home at the time?25 A. I don't know.

122

1 Q. All right. But you lived in Travis County when 2 you renewed it?3 A. I did.4 Q. Okay. And what city in Travis County did you 5 live in?6 A. Austin.7 Q. Austin. And you don't know how far from your 8 home to the driver's license office, how far you would 9 have had to travel?

10 A. No.11 Q. Do you remember what underlying documentation 12 you needed to produce?13 A. No.14 Q. Can a temporary driver's license be used to 15 vote if SB 14 was implemented?16 A. I think not, because in order to be eligible to 17 vote, you have to be a citizen, and a temporary driver's 18 license that's marked temporary is proof that someone is 19 not a citizen. And so I think if somebody showed up and 20 they were registered to vote and they had a temporary 21 driver's license, they would probably vote provisionally 22 if they said that they have since been naturalized as a 23 citizen, and then they would have the six-day cure 24 period to go to the voter registrar and present the 25 citizenship papers?

123

1 Q. Can a citizen have a temporary driver's 2 license?3 A. Well, not that's marked temporary. Whenever 4 you get a new picture with a -- you have a paper license 5 for a period of time, but it's not a temporary license, 6 it's a permanent license that just is in a temporary 7 form. Do you know what I mean?8 Q. I think I do. So, at one time another, we were 9 all 18 or 17 and getting our driver's license. When you

10 first obtained your driver's license, is that a 11 temporary? I can't remember that far back. 12 A. I don't know. I mean, I remember having a 13 learner's permit for about a year and then having a 14 driver's license.15 Q. Okay. So, yeah, and I just don't remember that 16 far back. 17 A. Well, my teenagers have all recently gone 18 through this process, and it's basically the same.19 Q. Okay. So let's talk about it in terms of your 20 teenagers going through the process. When they go in 21 to, to obtain a driver's license, what did they have to 22 go through?23 A. They have to -- my daughter just did it. She 24 had to round up -- she had to prove that she had had 25 drivers' education, right, so she had gone through the

124

1 class work, and so we had that paperwork. She had her 2 social security card to prove her citizenship, and she 3 had to come up with money, and she had to pass a test, 4 then she had to pass a driver's test.5 Q. Does having a Social Security card prove 6 citizenship?7 A. Yes.8 Q. Can noncitizens have a social security card?9 A. Not legally.

10 Q. Under SB 14, if it was implemented, why 11 wouldn't a voter be allowed to show a social security 12 card?13 A. It doesn't have a photo on it. It's not part 14 of a list of IDs required. And I would imagine that a 15 resident alien would be able to get a social security 16 card of some sort. I don't know what they have. 17 That's -- because they are here legally, they work and 18 they get taxes out. I don't know.19 Q. So what forms of ID allowed in SB 14 can 20 noncitizens obtain; do you know?21 A. Do you have the list of acceptable IDs?22 Q. Under SB 14?23 A. Under SB 14? 24 Q. I do. I'm going to show you what's been 25 previously marked as Exhibit Number 5 in prior






125

1 depositions. Take some time, and then we can talk about 2 it.3 A. (Reviewing document.) All right. So some 4 noncitizens can have a driver's license. Legal aliens 5 and ones who are here on a temporary visa, they've got a 6 temporary that's named "Temporary." 7 Q. And just -- I'm sorry, I didn't mean to cut you 8 off. But just so the record is clear, you're looking at 9 Exhibit Number 5, and can you identify what Exhibit

10 Number 5 is?11 A. Exhibit Number 5 appears to be a copy of 12 SB 14. I assume it was the enrolled version that was 13 eventually signed by the Governor.14 Q. And if you look at the last page, do you see 15 that it is, if fact, signed by Governor Rick Perry?16 A. Okay.17 Q. So, then this would be the enrolled version as 18 you testified?19 A. Right.20 Q. Okay. And so you were referring to a 21 particular section in Exhibit Number 5. Can you tell me 22 what you're referring to?23 A. I'm referring to Section 14. It's on Page 9 of 24 the bill.25 Q. Okay.

126

1 A. And it amends Section 63.0101 of the Election 2 Code.3 Q. Okay. And so the question that was pending 4 before you was: What forms of allowable ID under SB 14 5 can noncitizens obtain? Did you need something?6 A. The back, Page 10 is not here.7 MR. SWEETEN: I've got a copy. We've got 8 to switch out.9 MR. GEAR: Why don't I do this, just so

10 we're -- we're good on this. I'm going to give you -- 11 I'm going to remark an exhibit as Exhibit 5.12 Mr. Court Reporter, can I do that? 13 THE COURT REPORTER: Sure. 14 (Exhibit 5 marked for identification.)15 MR. GEAR: And take back the one that I 16 gave you, and cross out the exhibit number on there.17 Q. (By Mr. Gear) And so now you're referring to 18 page number 10?19 A. Well, 9 and 10 is where 63.0101's list of IDs 20 is located.21 Q. Okay. So, and the Exhibit Number 5 that you 22 now have in front of you contains Page 9 and 10?23 A. Yes.24 Q. Good. So, do you remember the question?25 A. I do.

127

1 Q. Okay.2 A. Which one of these forms of ID can a noncitizen 3 obtain? 4 Q. Yes. 5 A. That's the question.6 Q. Yes.7 A. So a noncitizen legal alien can get a driver's 8 license; a noncitizen temporary visa person can get a 9 temporary driver's license that's marked "Temporary." I

10 believe that noncitizens can be in the military and thus 11 would be able to have a military identification card.12 Q. Anything else?13 A. I would imagine that noncitizens can get a 14 license to carry a concealed handgun. I don't know for 15 sure, but I don't think there's citizenship requirement 16 there.17 Q. Does a concealed handgun license indicate 18 whether you're a citizen or a noncitizen?19 A. I don't believe it does.20 Q. And if I was a voter and I came to the polls on 21 election day, I could present, under SB 14, my concealed 22 handgun license and vote?23 A. You could.24 Q. And if I was a voter on election day under 25 SB 14, if it was implemented, I would present a military

128

1 ID card and vote?2 A. Yes, if it's got a photograph and it hasn't 3 being expired earlier than 60 days before the date of 4 presentation. 5 Q. And are you aware of whether or not military ID 6 cards indicate citizenship or noncitizenship?7 A. They do not.8 Q. If I was a voter and I showed up at the polls 9 with a temporary driver's license, I could vote?

10 A. No, you could not.11 Q. Okay. And specifically, we're referring to if 12 SB 14 was implemented.13 A. Correct.14 Q. And why would I not be able to vote?15 A. Because the license, if it's got "Temporary" on 16 it, either because it's vertical and it says -- I don't 17 remember what they said, but they don't them that way 18 anymore -- but anyway, if it says "Temporary" at the 19 top, then it's got a term "coterminous" with the visa 20 that's supposed to be used for staying in the country, 21 then that's evidence that you're not a citizen, on its 22 face.23 Q. Okay. How does showing an ID ensure that a 24 person is eligible to vote?25 A. It doesn't.






129

1 Q. Does that ensure that a person is any more 2 eligible to vote if they were to show a student ID?3 A. Well, if you're talking about a driver's 4 license, you know, illegal aliens are not able to get 5 drivers' licenses. So, that is what we talked about 6 before, an indirect effect of SB 14, to eliminate 7 noncitizens, illegal aliens, as well as the temporary 8 residents from voting.9 Q. Let's focus for a second on the temporary

10 driver's license. Do you know what that looks like, a 11 temporary driver's license?12 A. I have not seen a picture of that, no.13 Q. And you talked about your -- your kids going 14 through the process. Did any of them have a temporary 15 driver's license?16 A. Not the kind of temporary license that I'm 17 talking about. You're talking about a paper license 18 that you get while you wait for the picture one. That 19 is a permanent license, it's just a temporary form of 20 it.21 Q. Okay. And I understand that. So as you sit 22 here today, you couldn't testify as to the actual 23 writing on a temporary driver's license?24 A. No. But that part of our process for 25 implementing SB 14 is, we've got a version of the

130

1 handbook for election workers at the DOJ now. That's 2 going to have to be revised with pictures of the 3 temporary licenses so that the election workers are 4 aware of what these are and what they mean. So we've 5 got some more work to do on that handbook.6 Q. So ultimately, it's the election worker or the 7 election judge that would have to decide if an ID that's 8 being shown on election day is valid or not?9 A. That's right, which is exactly the way it is

10 now.11 Q. I think before the break, we ended with 12 Exhibit 28, which is HB 218, which is right here?13 A. Yes.14 Q. And I was asking you your knowledge of HB 218. 15 And forgive me if I asked this question, but what's the 16 purpose of HB 218? 17 MR. SWEETEN: Objection, asked and 18 answered. 19 Q. (By Mr. Gear) Do you remember that?20 A. To amend the election code in some respects.21 Q. And what does it mean to amend the election 22 code in some respects? 23 A. Well, it means that there is 12 pages of bill 24 language, with some strikes-outs and some underlines, 25 indicating that pieces of the election code are being

131

1 added to and struck out. We've got a piece of 2 13.122(a). We've got a piece of 1501.001(a) of the 3 election code. We've got 32.11 of the election code. 4 32.111. 32.114. We've got 62.016 of the election 5 code. 63.001 of the election code. 63.006(a) of the 6 election code has been modified. 63.007(a) of the 7 election code has been modified. Section 63.008(a) of 8 the election code has been modified. 63.0101 of the 9 election code is amended. 63.011(a) of the election

10 code is being amended. Section 521.422 of the 11 Transportation Code is being amended. And I think 12 that's it.13 Q. Do you have any idea why there was a need to 14 amend any of the codes within Exhibit 28, specifically 15 HB 218, in 2007? 16 MR. SWEETEN: Objection, asked and 17 answered. Objection, calls for speculation and lack of 18 foundation. Go ahead.19 Q. (By Mr. Gear) Well, again, I asked if you have 20 any -- do you have any understanding as to why there was 21 a need to amend HB -- or the voter ID legislation? I'm 22 sorry. Strike that.23 Do you have any idea why there was a need 24 to amend election laws in 2007? 25 MR. SWEETEN: Same objection.

132

1 A. Well, I don't know the need to amend election 2 laws in 2007. I imagine that Representative Brown of 3 Kaufman, Representative Burman, Representative Bohac and 4 Representative Riddle felt that these changes need to be 5 made.6 Q. (By Mr. Gear) And do you, as the Elections 7 Director, have any personal knowledge or knowledge as to 8 why there was a need to make changes to the election 9 code in 2007?

10 MR. SWEETEN: Objection, asked and 11 answered. Objection, calls for speculation. Objection, 12 foundation.13 A. I don't know. I mean, I don't know what all 14 happened to election code in 2007. I don't know what 15 was needed and what wasn't.16 Q. (By Mr. Gear) Do you have any knowledge as to 17 whether or not HB 218, in part, was designed to prevent 18 noncitizens from voting?19 A. I do not.20 MR. SWEETEN: Objection, asked and 21 answered.22 Q. (By Mr. Gear) Do you have any knowledge of any 23 voter fraud that occurred in 2007?24 A. If it's on our spreadsheet.25 Q. Other than what may be contained in the






133

1 spreadsheet?2 A. That's all I know about.3 Q. Did you have an occasion to review the Crawford 4 case, Crawford v. Marion?5 A. The Indiana --6 Q. Indiana?7 A. No.8 Q. Do you know the language in Crawford?9 A. I do not.

10 Q. Do you know if Crawford -- the Crawford case 11 was part of the public debate regarding SB 14?12 A. I don't know.13 Q. Do you know if the Crawford case was considered 14 by the Secretary of State, or any of his staff, 15 regarding the public debate for SB 14?16 A. I don't.17 Q. Were you engaged in any communications, while 18 in the position as the Elections Director, regarding the 19 Crawford case and its consideration of SB 14?20 A. No. I was in the Appointments office at the 21 time.22 Q. I want to move you forward to 2009. Were you 23 aware that there was voter ID legislation that was 24 offered in 2009?25 A. No. I mean, yeah, I knew that they had bills.

134

1 How many bills and what they were, I don't... 2 Q. Well, specifically, did you know that there was 3 a voter ID bill that was offered in 2009?4 A. I knew that it was under discussion, yes.5 Q. You knew it was under discussion?6 A. Right.7 Q. And how did you come to know that?8 A. Because I've watched the legislature.9 Q. In 2009?

10 A. Uh-huh, sure.11 Q. Were you present during the public debate or 12 did you watch it on TV? How did you watch it?13 A. On the computer in my office while I'm doing 14 other work. 15 Q. Was that part of responsibilities in 2009? And 16 I believe you would have been in the Governor's Office 17 at that time.18 A. Right. We were generally expected to have some 19 familiarity with what's going on in the legislature, 20 specifically in case an appointment comes to the Floor 21 in the Senate. So mainly, I watched the Senate 22 deliberations.23 Q. And did you understand or do you have a memory 24 of what the debate was by supporters of the 2009 voter 25 ID legislation?

135

1 A. No.2 Q. Do you have any memory of what the opponents' 3 -- concerns the opponents expressed regarding voter ID 4 legislation in 2009?5 A. I think that generally, the voter ID debate has 6 been around the parameters that I talked about earlier 7 in this deposition. So I don't imagine that 2009 was 8 special in that regard, but I do not know.9 Q. So is it your understanding that the debate was

10 similar to -- in 2009, was similar to the debate in 2011 11 or SB 14?12 A. I don't know.13 Q. Well, so let me just understand what -- your 14 testimony on that aspect. I was asking you about the 15 debate that was occurring in 2009, and your response was 16 you watched it on your computer at work and it was work 17 related, correct?18 A. Right.19 Q. Okay. And then I asked you: Do you have an 20 understanding or a memory of what that debate involved?21 A. And I do not have any specific recollection of 22 the terms of the debate in 2009 or the terms of the 23 debate in '07, or the teams of the debate in '05. It 24 was not something in which I had an interest. It was 25 not part of my job to be familiar with the language in

136

1 the bills, to be involved in the discussion regarding 2 the bills. It didn't have anything to do with my world 3 except that I was an interested spectator.4 So, I am generally aware of the parameters 5 of the discussion of voter ID laws, and the pros and the 6 cons as asserted by the proponents and opponents of it. 7 So whether or not there was anything idiosyncratically 8 specific to the debate in 2009, I have no earthly idea.9 Q. Okay. And I -- I think I inartfully asked

10 you: Were the debates in 2005 -- between 2005 and 2011 11 substantially similar?12 A. I don't know.13 Q. I'm going to show you what's been previously 14 marked as Exhibit Number 40 -- I'm sorry, that's the 15 wrong one. Well, let me ask you generally. I believe 16 it was your understanding that you were not involved in 17 any debates regarding -- or communications regarding any 18 of the voter ID legislation in 2005, 2007, or 2009, 19 because you were a disinterested party? Is that -- is 20 that right?21 MR. SWEETEN: Objection, asked and 22 answered, but go ahead.23 A. That's not -- that's not exactly right. It 24 wasn't -- it was not, you know, part of my job 25 description or job duties to keep up with the






137

1 intricacies of those debates or those bills' contents.2 Q. (By Mr. Gear) Okay. And so when you became the 3 Director of Elections in 2012, was consideration of any 4 of the voter ID legislation that we have just now talked 5 about part of your job duties? 6 A. No. I wouldn't -- I wouldn't imagine so. At 7 that point, we've got a bill. We've got a bill that's 8 been passed by the legislature and signed by the 9 Governor. It's been submitted for preclearance to the

10 Department of Justice. That's the bill that we needed 11 to be familiar with and that needed to be prepared to 12 implement.13 Q. Okay. So do you know what the -- do you 14 understand that the legislation that was introduced in 15 2009 was SB 362?16 A. No.17 Q. And if I was to tell you it was SB 362, have 18 you ever reviewed SB 362?19 A. Not that I recall.20 Q. Do you know what the purpose of SB 362 was?21 A. No idea.22 Q. And I believe you testified that you reviewed 23 or you viewed the legislative debates on your computer 24 at work?25 A. That's right.

138

1 Q. Do you recall -- 2 MR. SWEETEN: You're talking about the 3 '11, or are we talking about '09? 4 THE WITNESS: '9 and '11.5 MR. SWEETEN: Okay. Thank you. 6 Q. (By Mr. Gear) Regarding '9, 2009, do you recall 7 -- do you recall any of the debate dealing with 8 preventing noncitizens from voting?9 A. No.

10 Q. Do you recall any concerns expressed regarding 11 the impact of the 2009 voter ID legislation to -- on 12 minority voters?13 A. No, not specifically.14 Q. When you say "not specifically," what do you 15 mean?16 A. I know that generally the concern of the 17 opponents of the legislation, in all of these years, has 18 been that minority voters would be adversely affected.19 Q. So as the Director of Elections -- am I saying 20 that right? Director of Elections or Election Director?21 A. It doesn't matter.22 Q. It doesn't matter. Okay. So as the Director 23 of Elections, are you aware of any analysis regarding 24 any voter ID legislation that, that studies the impact 25 of vote ID on minority voters?

139

1 A. I have not.2 Q. You have not reviewed it?3 A. Not reviewed it. Not aware of it. Don't know 4 about it.5 Q. Are you aware of any study or analysis that 6 considers the burden of voter ID on minority voters?7 A. I'm not aware of any such thing.8 Q. And you haven't reviewed any such analysis?9 A. No.

10 Q. As the Director of Elections, are you aware of 11 whether or not the Secretary of State's Office has 12 conducted an analysis or created a report regarding the 13 impact of SB 14 on minority voters?14 A. I think the only thing that would come close to 15 that was the exercise that I went through from my letter 16 in January of this year.17 Q. And the letter that you're referencing is 18 during the submission process?19 A. Yes.20 Q. And that's the letter to the Department of 21 Justice?22 A. It is. 23 Q. And going back to the 2009 legislation, are you 24 aware of the purpose of the 2009 legislation related to 25 voter ID?

140

1 MR. SWEETEN: Objection, asked and 2 answered, but go ahead. 3 A. No.4 Q. (By Mr. Gear) So other than SB 14, which 5 addresses the issue of voter ID, were you involved in 6 any review of any other voter ID legislation?7 A. No.8 Q. Other than voter ID legislation which we have 9 now talked about, HB 1706, HB 218, SB 362, are you aware

10 of any other voter ID legislation other than SB 14?11 A. No.12 Q. And just so that the record is clear, were you 13 involved in any communication regarding any other voter 14 ID legislation, other than SB 14?15 A. No.16 Q. From your position as the Elections Director 17 for the Secretary of State's Office, have you reviewed 18 any analysis or reports related to SB 14?19 A. Well, I don't know. I have looked at the 20 letter from Ann McGeehan to the Department of Justice 21 September 7th.22 Q. Uh-huh.23 A. That had analysis in it, I guess. I have 24 looked at the October 4th letter from Ann McGeehan to 25 the Department of Justice. That also had some analysis,






141

1 that had the spreadsheets that were mentioned in the 2 September 7th letter that had the actual spreadsheets 3 attached to the October 4th letter. So I don't know, I 4 mean. And then obviously, the exercise that we're going 5 through since I've been in the office.6 Q. And you're referring to your letter to the 7 Department of Justice?8 A. Yes.9 Q. Are you aware of any internal analysis or

10 reports that study the impact of SB 14 on minority 11 voters? 12 MR. SWEETEN: You can answer the question; 13 just make sure you're not revealing matters of attorney- 14 client privilege. 15 A. I don't know what you mean. Any internal 16 analysis that we've done --17 Q. (By Mr. Gear) Nonpublic record. 18 A. Well, there's not anything separate from what's 19 been disclosed to the Department of Justice, no.20 Q. Okay.21 A. That was --22 Q. Okay. So I believe we've already marked SB 14 23 as an exhibit? 24 A. Yes.25 MR. GEAR: Could we go off the record for

142

1 a second? 2 MR. SWEETEN: Sure.3 (Recess at 1:49 p.m. to 1:50 p.m.) 4 Q. (By Mr. Gear) All right. And I believe we 5 previously marked SB 14 as Exhibit 5?6 A. Yes, we did.7 Q. And if you look through the stack of exhibits 8 there, you have that in front of you now?9 A. I do.

10 Q. Can you identify what the allowable forms of ID 11 are under SB 14?12 MR. GEAR: Do you have a copy of that, 13 Patrick? 14 MR. SWEETEN: Oh, I do. Yeah. Thank 15 you. I've got other one. I've been in enough of these, 16 Bruce. I've got the old copies from you guys.17 Q. (By Mr. Gear) And specifically I'm referring to 18 Page 9, I believe, Section 63.0101. And the question 19 is: What are the allowable forms of ID?20 A. Yes. 63.0101 it amended to add an election 21 identification certificate that's issued by the 22 Department of Public Safety, in addition to what was 23 already there, a driver's license or a personal 24 identification card. And the caveat is that instead of, 25 the old law was a driver's license or ID card, whether

143

1 it's expired or not. The new law is a driver's license, 2 election identification certificate, personal ID card 3 that has not expired or expired no earlier than 60 days 4 before the date of presentation. So there's a little 5 bit -- you couldn't show up with any old driver's 6 license, you had to have a fairly current one.7 Q. Is that it?8 A. And they added election identification 9 certificate, which is a new form of ID that's free to

10 the public who asks for it. And then you could -- they 11 added a U.S. military identification card containing a 12 person's photograph, as long as it hadn't expired more 13 within the 60 days before the election, or more than 60 14 days before the election. They added a United States 15 citizenship certificate that contains a photograph. 16 They changed the passport requirement to say that it had 17 to expired -- to have expired no longer than 60 days 18 before the election, and they added a license to carry a 19 concealed handgun, as long as it hadn't expired 60 days 20 before the date of the presentation.21 Q. And before we get into the substance of SB 14, 22 were you aware that SB 14 was designated as an emergency 23 item during the 2011 legislative session?24 A. I don't know if I remember that or not. I 25 guess.

144

1 Q. When you reviewed for -- the notice of 2 deposition for documents, did you produce anything 3 responsive to communications from the Secretary of 4 State's Office regarding the designation of SB 14 -- or 5 voter ID as an emergency legislation?6 A. Anything that we had, we would have turned over 7 to the OAG. I would -- you know, the Secretary of 8 State, as far as I know, is not involved in the 9 declaration of emergency legislation. That's not

10 something we do.11 Q. When you say it's not something that we do 12 referring to the Secretary of State's Office, would they 13 ever be involved in providing advice on the designation 14 of emergency items or legislation?15 A. I don't know.16 Q. Have you ever done that in your capacity as the 17 Director of Elections?18 A. I have not had the benefit of going through a 19 session yet, so no.20 Q. So was anyone in the Secretary of State's 21 Office, including yourself, involved in the development 22 of SB 14?23 A. I don't know.24 Q. Who would know that?25 A. Ann McGeehan.






145

1 Q. Were you or anyone in the Secretary of State's 2 Office involved in any communications between the 3 Secretary of State and Senator Fraser's office during 4 the drafting of SB 14?5 A. I don't know.6 Q. And who would know that?7 A. I don't know. Ann McGeehan, probably. I don't 8 think that we would be involved in the drafting process 9 or the development process. That's not what we do.

10 We're a resource witness when they've got bills filed 11 but Ann would know.12 Q. Were you or anyone in the Secretary of State's 13 Office involved as a resource during the development or 14 drafting of SB 14?15 MR. SWEETEN: Objection, asked and 16 answered. 17 A. I don't know.18 Q. (By Mr. Gear) Well, you know that there was 19 testimony given by the Secretary of State's Office 20 during the legislative debates, correct?21 A. I believe there was, yes.22 Q. And you know that Ann McGeehan provided 23 testimony during SB 14?24 A. I would assume she would be the one. 25 Q. And she provided testimony as a resource

146

1 witness?2 A. Yes.3 Q. So is it fair to say that your testimony that 4 you don't know if the Secretary of State's Office or any 5 of the staff within the office provided guidance as 6 resource witnesses, is it fair to say that that's not 7 entirely true when you say "I don't know"?8 A. No, it's entirely true, because you were asking 9 about the resource during the development and drafting

10 of the bill, and I don't have any idea what happened 11 during the development and drafting of the bill. I 12 don't -- I know what happened after the bill was drafted 13 and developed as it's going through the legislative 14 process, and I only know that in general terms. So no, 15 it was entirely accurate.16 Q. What was the purpose of SB 14?17 A. Well, as I mentioned before --18 MR. SWEETEN: Hold on a second.19 Objection, asked and answered. And are 20 you asking him his personal opinion about SB 14?21 Q. (By Mr. Gear) As the Director of Elections, 22 what's your understanding of the purpose? 23 A. It's my understanding that SB 14 is --24 MR. SWEETEN: Objection, relevance. Go 25 ahead.

147

1 A. Is an attempt to improve the integrity of the 2 election process. In general terms, that's what I think 3 it's designed to do.4 Q. (By Mr. Gear) And in part, was it designed to 5 prevent noncitizens from voting?6 A. That's part of improving the integrity of the 7 voting process, to make sure that -- you know, to the 8 extent we can, that eligible voters are -- the people 9 eligible to vote, vote.

10 Q. And I understand your testimony to this point, 11 but let me be clear. Did you attend any of the 12 legislative debate for 2011?13 A. I did not.14 Q. Did you provide any testimony during the 15 legislative debate for 2011?16 A. No. I have to clarify. 17 Q. Okay.18 A. I did go to a confirmation hearing when Judge 19 Elsa Alcala was up for appointment -- or up for 20 confirmation, so I did attend the legislative hearing. 21 And so if you're referring to any legislative hearing, I 22 did attend. And I did attend a few sessions of the 23 House, specifically when the Governor gave the State of 24 the State and when Wallace Jefferson gave his State of 25 the Judiciary speech. So, if you're talking about

148

1 SB 14, that's what I understood your question to be in 2 regard to, and the answer is no.3 Q. Thank you. And generally, do you have 4 knowledge of the positions taken by the supporters and 5 opponents of SB 14?6 A. In general terms.7 Q. Do you recall any of the debate centering on 8 preventing noncitizens from voting? And I'm referring 9 to SB 14.

10 A. Yeah. You know, I don't have any specific 11 recall of the terms of the debate. You know, I don't 12 know. I know that that was part of the discussion. I 13 don't know who was discussing it or what specifically 14 was said about it. You know, I understand that to have 15 been part of the discussion. I have a recall of, you 16 know, that.17 Q. Who, if anyone, do you know engaged -- that 18 engaged in the debate about noncitizens voting?19 A. I don't know. I don't know.20 Q. You previously testified that Senator Fraser 21 may have engaged in that discussion, correct?22 A. He might have, and I might have heard Trey 23 Martinez Fischer with the opposing viewpoint.24 Q. Okay. And what was the opposing viewpoint?25 A. That whenever you're -- it's whenever you're






149

1 preventing noncitizens from voting, you're having an 2 adverse impact on people who are citizens. 3 Q. Do you agree with that opinion?4 A. I do not. That's my personal opinion.5 Q. Do you have an opinion as to whether or not 6 SB 14 would have an adverse impact on citizens?7 A. It would not.8 Q. And what are you basing that on?9 A. Well, it's like I said before, SB 14 is an

10 incremental step toward increased voter integrity, that 11 appears to me to be a reasonable incremental step. And 12 yes, there is a small amount of marginal cost, but it is 13 worth it in order to further enhance the integrity of 14 the election process.15 Q. Okay. You said two different things there, so 16 I want to break that out. First, you indicated that it 17 was an incremental step. That would suggest, at least, 18 that there are other steps to be considered. Have you 19 been involved in any communications which would indicate 20 that SB 14 was an incremental step?21 A. No. No. You are misunderstanding what I'm 22 saying.23 Q. Okay. 24 A. I'm saying that it is an incremental step 25 toward increasing the integrity of the process. I am

150

1 not in any way suggesting that it is an increment as 2 part of some greater whole. I am saying that I talked 3 to one of the directors of the elections in the 4 Philippines, and I know about a much more stringent 5 voter ID process that they have. And I am not in any 6 way suggesting, advocating, promoting at all that that's 7 where we're headed. I'm saying that that's one extreme, 8 all right? An extreme that I don't think anybody in 9 this country wants to get to, and I don't think we have

10 to, because I think we've got good citizens, right?11 So don't hear me saying that we're on a 12 road, right? No, not even a little bit.13 Q. Okay. And again, this is my opportunity to 14 understand what you know and it's your opportunity to 15 testify to it. So, I wasn't suggesting one way or the 16 other what you were saying. I was trying to understand 17 what you were saying. Do you understand? 18 A. I understand, and I appreciate the opportunity 19 to clarify.20 Q. Okay. You also indicated that this has a 21 marginal cost. What do you mean by that?22 A. Well, there are some people in this state who 23 do not have an ID, and they will have to get one if they 24 want to vote.25 Q. Okay. And in your position as the Elections

151

1 Director for the Secretary of State, do you have an idea 2 of the actual number of people that may not possess an 3 allowable form of identification under SB 14?4 A. I do not know.5 Q. During the admissions process -- submissions 6 process, did you attempt to make that determination?7 A. We attempted to narrow it down.8 Q. And what did you narrow it down to?9 A. Well, we narrowed it down in the fall to

10 605,000 that we couldn't prove had an ID, we narrowed it 11 down to 795,000 that we couldn't prove had an ID in 12 January of this year.13 Q. And that was 795,000-plus voters that may not 14 have an allowable form of ID under SB 14?15 A. It was right around 795,000 that may not have 16 an acceptable form of ID.17 Q. And do you understand that number to be more or 18 less as you sit here today? Higher or lower? 19 MR. SWEETEN: Objection. Don't reveal any 20 communications you've had with your attorneys in this 21 matter, the Attorney General's Office. 22 A. The number is substantially less than 795,000.23 Q. (By Mr. Gear) Okay. And what are you basing 24 that on?25 A. Because that 795,000 doesn't include anybody

152

1 that's got one of the other forms of ID besides a 2 driver's license or ID card. It doesn't include anyone 3 that has a driver's license or ID card that we failed to 4 match. So, in the match criteria, I think I outlined in 5 my letter the problems with matching two different 6 databases that are not meant to go together.7 Q. Okay. And turning your attention back to 8 SB 14, and I believe that was Page 9, Section 9 63.0101. Under that section, one form of allowable ID I

10 is driver's license.11 A. That's right.12 Q. Do you see that? Do you know how many Texans 13 in the -- well, how many voters in the state of Texas do 14 not have a driver's license?15 A. I have no idea.16 Q. Are you aware of any analysis from the 17 Secretary of State's Office that attempts to determine 18 how many voters in the state of Texas did not have a 19 driver's license?20 A. We did two separate matching exercises, and it 21 included driver's license and IDs, so I don't know if 22 we've done a separate determination for a driver's 23 license only. That's the reason I said I don't know.24 Q. And that was the 600,000 or the 795,000 that 25 you're referring to?






153

1 A. Correct.2 Q. Do you know how many voters in the state of 3 Texas have military IDs?4 A. I do not.5 Q. Has the Secretary of State's Office attempted 6 to conduct an analysis or research into the number of 7 registered voters who possess military IDs? 8 A. As far as I know we haven't, but I don't know.9 Q. Who would know that beyond yourself?

10 A. Ann McGeehan.11 Q. And now you've -- you've testified that you 12 were involved in the submissions process, correct?13 A. I was.14 Q. And during the submissions process, did you 15 attempt to determine how many voters in the state of 16 Texas had United States military identification?17 A. I don't know. I was involved at the tail end 18 of it. Not that I was involved in. That's the reason 19 you would you have to ask Ann McGeehan about what 20 happened in the fall. 21 Q. Well, and again, I'm trying to limit this to 22 your time period in the office. 23 A. Right.24 Q. Did you or anyone in your office, at the time 25 you were the Director of Elections, attempt to determine

154

1 how many voters in the state of Texas possessed a 2 military ID card? 3 A. And the answer to that question is no.4 Q. Okay. Turning your attention to Page 10 in 5 SB 14, it indicates United States citizenship 6 certificate issued to the person that contains a 7 person's photograph. Do you see that?8 A. Yes.9 Q. Okay. Do you know how many voters in the state

10 of Texas possess a United States citizenship certificate 11 that's issued to the person that contains a photograph?12 A. No idea.13 Q. Did you or anyone within the Secretary of 14 State's Office during your time period as the Director 15 of Elections attempt to determine how many voters in the 16 state of Texas possess a United States citizenship 17 certificate issued to a person that contains a 18 photograph?19 A. We did not.20 Q. Are you aware of any reports or analyses that 21 were conducted by Ann McGeehan or staff under her that 22 attempted to determine how many voters in the state of 23 Texas possess the United States citizenship certificate 24 issued to a person that contains the person's 25 photograph?

155

1 A. I don't know of any such analysis.2 Q. SB 14 also allows -- and I'm referring page 3 10 -- a license to carry a concealed handgun issued to 4 the person by the Department of Public Safety that has 5 not expired or that expired no earlier than 60 days 6 before the date of presentation. Do you see that? 7 A. I do?8 Q. During your time period as Director of 9 Elections, and that would be from January 2012 forward,

10 have you or anyone in your office attempted to determine 11 how many voters in the state of Texas possess a 12 concealed handgun license?13 A. Have not.14 Q. And are you aware of any report or analyses 15 that, during Ann McGeehan's time period as the Director 16 of Elections, which indicate how many voters in the 17 state of Texas possess a license to carry a concealed 18 handgun?19 A. I'm not aware of any.20 Q. So is it fair to say that you're not aware of 21 any studies or analysis, either during Ann McGeehan's 22 time period or during yours, that would indicate how 23 many voters in the state of Texas actually possess one 24 of the allowable forms of ID under SB 14?25 A. I lost you.

156

1 MR. GEAR: All right. Let me see if I can 2 have you read that back. Let me try that again.3 Q. (By Mr. Gear) Is it fair to say that based on 4 your testimony here today that you're not aware of any 5 reports or analysis that have been conducted by the 6 Secretary of State's Office, either during Ann 7 McGeehan's time period or during your time period as the 8 Director of Elections, that would show or indicate how 9 many voters in the state of Texas possess one of the

10 allowable forms of ID under SB 14?11 A. You know, I think we've tried it twice with the 12 information that we've got available to us, and so we've 13 limited it to less than 795,000, but we don't know how 14 much less, and we can't get it any less than that, as 15 far as I know. 16 Q. Okay. And so the 795,000 is the -- is 17 basically no match list, the list of voters that do not 18 have allowable form of ID under SB 14? Is that your 19 understanding?20 A. That is not -- that is not what that 795,000 21 represents. 22 Q. Tell me what it represents.23 A. It represents the number of people that we 24 can't prove have an ID. Some portion of those have an 25 ID. Is it a hundred or 500,000? Don't know.






157

1 Q. Okay. So we -- we went through a discussion on 2 the record about the Secretary of State's -- the 3 Secretary of State and/or his staff's effort to make a 4 determination as to what voters, if any, in the state of 5 Texas, possess the other forms of allowable forms of ID 6 under SB 14. Do you recall that discussion on the 7 record?8 A. Indeed.9 Q. And my question to you previously was: As you

10 sit here today, can you testify -- strike that.11 Are you -- are you aware of any reports or 12 analysis that were either generated during Ann 13 McGeehan's time period or during yours, that would show 14 how many voters in the state of Texas have any of the 15 other forms of allowable forms of ID under SB 14? And 16 I'm referring to military ID. I'm referring to handgun 17 licenses. I'm referring to citizenship certificates. 18 Are you aware of any reports or analysis that show that?19 A. No.20 Q. Okay. Are you aware of whether or not the 21 Secretary of State took a public position on SB 14?22 A. We don't -- that's not what we do.23 Q. Okay. So based on that testimony, is it fair 24 to say that the Secretary of State did not take a public 25 position on any of the voter ID legislation?

158

1 A. I believe not. If we did, that would be 2 extremely out of the ordinary.3 Q. And did you take a position on -- a public 4 position on SB 14?5 A. Have not.6 MR. GEAR: This might be a good place to 7 just take a very quick break. 8 MR. SWEETEN: Okay.9 MR. GEAR: Five minutes.

10 MR. SWEETEN: Sounds good.11 (Recess from 2:14 p.m. to 2:21 p.m.)12 Q. (By Mr. Gear) So we've been talking about SB 13 14. In your capacity as the Director of Elections, are 14 you aware of any attempt by the Secretary of State's 15 Office to determine the impact of SB 14 on minority 16 voters? 17 MR. SWEETEN: Objection, asked and 18 answered. Go ahead.19 A. Other than the exercise that we went through 20 earlier this year in connection with the submission 21 process, I don't know of any.22 Q. (By Mr. Gear) Okay. Are you aware of any 23 reports or analysis that were generated by the Secretary 24 of State's Office during Ann McGeehan's time period that 25 would have studied the impact of SB 14 on minority

159

1 voters?2 A. I don't believe that there was any such 3 analysis.4 Q. So what is a military ID?5 A. A military ID is a laminated plastic card with 6 a picture on it that says you're a member of the 7 military.8 Q. Okay. And do you know how many forms of 9 military ID there are?

10 A. I have no idea. I know my son's got one for 11 the Army reserve, and other than that, I don't know 12 anything about them.13 Q. And do you know if civilians have military IDs?14 A. I do not.15 Q. Contractors?16 A. I don't know.17 Q. Do you know if all military ID is -- are the 18 same in the formatting?19 A. I don't know.20 Q. Do you know why it was determined that military 21 ID would be acceptable under SB 14?22 A. No.23 Q. And I think you've seen a military ID because 24 your son has one, correct?25 A. I have.

160

1 Q. What is a citizenship certificate?2 A. I don't know.3 Q. Have you ever seen one?4 A. Not that I know of. I have a friend that I 5 used to practice law with who became a naturalized 6 citizen several years ago, and I might have seen his 7 certificate. I don't know.8 Q. Do you know how much it cost to obtain a 9 citizenship certificate?

10 A. I do not.11 Q. So you wouldn't know how much it would cost to 12 replace a citizenship certificate?13 A. I do not.14 Q. Do you know what you have to provide, the 15 underlying documentation that you would have to provide 16 to obtain citizenship certificate?17 A. No.18 Q. Do you know how long it would take or it might 19 take to obtain a citizenship certificate?20 A. No.21 Q. Do you know how much it costs to obtain a US 22 passport?23 A. I -- yes. I -- but I don't remember. My 24 daughter got one a couple of years ago, and we paid for 25 it to be expedited, and I just don't remember.






161

1 Q. How long did the expedited process take?2 A. It took about a week.3 Q. And if you didn't -- and I assume that that 4 cost more money to have it expedited?5 A. It did. 6 Q. And you don't remember the amount?7 A. (Witness shakes head no.)8 Q. If you were not expediting your passport, do 9 you know the cost for that?

10 A. I do not.11 Q. If you did not expedite it, do you how long it 12 would generally take?13 A. I do not. I think they said two weeks to three 14 weeks, but I don't really remember for sure.15 Q. Do you have a passport?16 A. I did when I was younger. I don't have an 17 active one anymore.18 Q. Do you know what would it take to obtain a 19 passion if you wanted to get one?20 A. I don't remember all the documents that we had 21 to assemble for my daughter's, but it was a fairly long 22 list of stuff.23 Q. Do you know what the purpose under SB 14 was 24 for removing nonphoto ID as -- well, strike that.25 We talked about SB 362, which was I

162

1 believe the 2009 legislation. And you've testified, as 2 I pointed out, that SB 362 allowed for nonphoto forms of 3 ID, correct?4 A. I don't remember that. We talked about that in 5 connection with House Bill 218.6 Q. Okay. Well, why don't we look at 362, because 7 I don't believe we've actually marked it as an exhibit.8 (Exhibit 556 marked for identification.) 9 Q. (By Mr. Gear) I'm going to show you what I've

10 marked as 556. Ask you to take a look at that. Let me 11 know when you've had a chance.12 A. (Witness reviewing document.) Okay.13 Q. All right. So can you identify this 14 Exhibit 556 for the record, please?15 A. It looks like a Senate Bill Number 362 from the 16 2009 session, at some point in the process.17 Q. And that deals with voter ID legislation; is 18 that correct?19 A. Yes.20 Q. Okay. And so my previous question was you -- 21 or to you was: Does SB Number 362 allow for nonphoto 22 IDs?23 A. It's got the same thing that House Bill 218 24 had. It's got an A that's talks about acceptable forms 25 of photo identification. It's got a B that's acceptable

163

1 as proof of identification that do not appear to be 2 photos.3 Q. And that would also be true for HB 1706?4 A. I don't know.5 Q. And it's marked as an exhibit if you'd like to 6 take a look at that.7 A. You didn't actually have the bill. That was 8 just a bill history form.9 Q. Okay. Well, let me mark that for you.

10 I'm going to show you what's been 11 previously marked as Exhibit Number 44 in prior 12 depositions. 13 And again, the question would be: Does HB 14 Number 1706 allow for both forms of photo ID and 15 nonphoto ID? And take your time.16 A. Yes. It has a -- when it's amending 63.0101 or 17 attempting to amend 63.0101, it's got an A, which talks 18 about acceptable forms of photo identification, and B, 19 acceptable as proof of identification. I don't know 20 what that means, and I don't know -- but yes.21 Q. What is it that you don't know?22 A. I don't understand, you know, I haven't had a 23 chance to read the whole bill to find out what they're 24 doing here, so I don't know if there's a time when a 25 photo ID is required and a time when those proof of

164

1 identification only is required. That's the running 2 thing that I don't know about these laws.3 Q. Okay. Well, take some time and look at 362, 4 because I would like to know, based on your deposition 5 testimony, whether or not 362 allows for both forms of 6 photo ID and nonphoto ID.7 MR. SWEETEN: Caution the witness to 8 review the document in answering the question.9 MR. GEAR: Certainly.

10 A. Okay. Well, that's interesting. All right.11 Q. (By Mr. Gear) Okay. So you've had a chance to 12 review SB 362?13 A. Yes.14 Q. And can you now answer whether or not SB 362 in 15 the version that is before you allows for both forms of 16 photo ID and nonphoto ID?17 A. Yes. It appears that at least this version of 18 the bill was modifying 63.001 of the election code to 19 say that on offering the vote, that a voter must present 20 to an election official -- officer at the polling place 21 either one form of photo ID, 63.0101-A, or two different 22 forms of non -- of identification, simple identification 23 from 63.0101-B.24 Q. Okay. And that's also true if you look at HB 25 218 or HB 1706, their language is similar?






165

1 A. I don't know.2 Q. Take your time. So the question before you is 3 the language similar in the other photo ID legislation?4 A. House Bill 1706, Exhibit 44, has Section 2, 5 which also modifies 63.001 in a similar fashion to 6 Senate Bill 362. And one form of 63.0101-A 7 identification and two different forms of 63.010-B 8 identification.9 Q. And which exhibit are you looking at now?

10 A. Exhibit 44. So it seems to have the same two 11 of the nonphoto and one of the photo or one of the 12 photo.13 Q. And Exhibit 44, is that 218 or 1706?14 A. Exhibit 44 is House Bill 1706.15 Q. Okay. And so is that also true for HB 218?16 A. Yes. House Bill Number 218, Exhibit Number 28, 17 has a Section 7 amending 63.001 of the election code 18 that says that a voter must present to an election 19 officer at the polling place one form of identification 20 listed in 63.0101-A or two different forms of 21 identification listed in 63.0101-B.22 Q. So is it fair to say that HB 1706, HB 218 and 23 SB 362 all allowed for both photo ID and nonphoto ID?24 A. Yeah.25 Q. The answer is "yes"?

166

1 A. That's what they appear to allow, at least the 2 versions of the bills that I'm looking at.3 Q. Okay. And so the question then would be: What 4 was the purpose of removing from SB 14 the option for a 5 voter to show nonphoto ID as it was permitted in the 6 prior voter ID legislation? 7 MR. SWEETEN: Objection, calls for 8 speculation. Objection, foundation. Objection, 9 relevance.

10 Q. (By Mr. Gear) You can answer.11 A. I don't know.12 Q. Do you know who made this decision?13 A. I do not.14 Q. Do you know what if anything changed between 15 2009 when SB 362 was proposed and the legislation for SB 16 14? 17 MR. SWEETEN: Objection, speculation. 18 Objection, foundation. Objection, relevance. You can 19 answer.20 Q. (By Mr. Gear) And again, do you know what if 21 anything changed?22 A. I do not.23 Q. And when I say "what if anything changed," I 24 mean what if anything changed in the state of Texas that 25 would call for a modification of the allowable ID?

167

1 MR. SWEETEN: Objection, speculation. 2 Objection, foundation. Objection, relevance. You can 3 answer. 4 A. I don't know.5 Q. (By Mr. Gear) Are you aware of any study or 6 analysis from the Secretary of State's Office that would 7 support that two forms of ID was no longer enough as it 8 relates to SB 14? 9 MR. SWEETEN: Objection to the extent it's

10 asked and answered. Go ahead.11 A. I don't -- I don't know. I don't know that the 12 Secretary of State had anything to do with that.13 Q. (By Mr. Gear) Were you aware of any study or 14 analyses in the Secretary of State's Office that 15 addresses the issues of allowable forms of ID? 16 MR. SWEETEN: Same objection.17 A. No, that's not what we do.18 Q. (By Mr. Gear) And you say "that's not what we 19 do," you've said that a number of times.20 A. Right.21 Q. I just want to make sure I'm clear and that the 22 record is clear. When it came to SB 14, I've asked you 23 questions about the studies or analysis that might have 24 been done. Did the Secretary of State's Office or any 25 of his staff, her staff, conduct any analysis regarding

168

1 SB 14?2 A. I don't know. And when I say it's not what we 3 do, the Secretary of State is not a policy-making 4 entity. It's an implementing entity.5 Q. Okay. 6 A. So when the legislature is in session and 7 they're evaluation policy, sometimes they ask the 8 Secretary of State for input, and when that input is 9 requested, we give it as a resource. And so I don't

10 know what was done in these prior legislative sessions 11 or in 2011 with the SB 14, because I wasn't here as part 12 of that process. 13 Everything that the Secretary of State did 14 that's documented with regard to those legislative 15 processes has been turned over to the Office of Attorney 16 General for production in this lawsuit. I have not 17 reviewed those documents. I don't know anything about 18 them. Anything about them. That's kind of broad. I 19 reviewed them a little bit. I've seen some. I 20 generally know what they are.21 Q. And when you were talking about the documents 22 that you reviewed, can you -- can you be a little bit 23 more clear for me as to what you're referring to?24 A. Well, you know, Suzanne Gamboa with the AP had 25 this pending public information request when I arrived






169

1 at the job that was extremely broad, and so we were 2 working through the process of hold the material, 3 collecting the material, finding how much it would cost 4 to gather up all the material and check it for 5 duplicates, all the stuff you do when you're evaluating 6 a public information request. That work was going on 7 when I arrived. 8 Since I have worked in the Governor's 9 office and was familiar with public information requests

10 in that role and had familiarity with gathering 11 information, evaluating information, asserting 12 objections to the Attorney General's Office, I was 13 immediately tagged to assist our general counsel in that 14 process. So in that role, I looked in quite a bit of 15 these documents to generally categorize them.16 Q. And the documents were ultimately produced to 17 Ms. Gamboa?18 A. No. They were not.19 Q. Do you know why not?20 A. She never paid the cost deposit, and she never 21 renewed her request.22 Q. Are you aware of any analysis that was 23 conducted by the Secretary of State's Office or the 24 Secretary of State and/or any of her staff that was the 25 request of a senator or House member?

170

1 MR. SWEETEN: Objection, asked and 2 answered.3 Q. (By Mr. Gear) As it relates to SB 14? 4 A. Right. I don't have anything specific in 5 mind. I don't know of anything that they did or didn't 6 do in response to a House member's request. I know that 7 generally when we get requests, we do our best to 8 fulfill those requests.9 MR. SWEETEN: Just answer his question,

10 the question that's he's posing. 11 A. Sure, sure. 12 Q. (By Mr. Gear) How would allowing a -- how 13 would allowing a nonphoto ID prevent the goal of SB 14?14 A. Well, if we're talking about enhancing the 15 integrity of the voting process, photo IDs are more 16 reliable to determine the identity of the voter.17 Q. Okay. So how would allowing a student ID 18 prevent the goal of SB 14?19 A. I don't know for sure, but I would imagine that 20 student IDs come in many shapes, forms and sizes and 21 would be easy to fabricate.22 Q. And it's fair to say that military IDs come in 23 many different forms?24 A. Probably. I don't know if they come in as many 25 forms as student IDs.

171

1 Q. But as you sit here today, you don't know how 2 many different forms of military ID there may be?3 A. No, I do not.4 Q. How would it allowing an employer -- employee 5 ID or employer's ID prevent the goals of SB 14?6 A. Same thing.7 Q. Which is?8 A. That it would be susceptible to fabrication.9 Q. Even if it had a photo of the individual --

10 A. Sure.11 Q. -- who was presenting it?12 A. Absolutely.13 Q. Are driver's licenses susceptible to 14 fabrication?15 A. Yes, they are. But when you fabricate a 16 driver's license, you would have to really, really, 17 really work at it.18 Q. Couldn't that be true for some of the student 19 IDs or --20 A. No.21 Q. -- or employee IDs?22 A. That would be easy. That would be easy. I 23 could have made my own employee ID for my law firm, and 24 it could look like whatever I wanted it to look like. 25 It could say whatever I wanted it to say.

172

1 Q. Well, for instance, SB 362 allowed for IDs that 2 were issued by federal agencies. Do you believe that 3 those would be easy to fabricate?4 A. I do not know.5 Q. Do you know what the circumstances were by 6 which the license to carry a concealed handgun were 7 included into SB 14?8 A. I do not.9 Q. Do you know the racial composition or the

10 racial breakdown of individuals who carry a concealed 11 handgun license is in the state of Texas?12 A. I do not.13 Q. What, if any, tools would a poll worker have to 14 determine if a driver's license that was presented on 15 election day was valid or not?16 A. Well, I don't know for sure what any random 17 election worker would have, but part of the training 18 would be general familiarity with what a driver's 19 license looks like. And specifically, what we're doing 20 to add to the training materials with regard to SB 14 is 21 the distinction between a temporary driver's license and 22 a regular driver's license, so they'll have pictures of 23 all three. 24 Q. And I'm sorry, temporary driver's license, 25 regular driver's license, and what was the third






173

1 driver's license?2 A. Well, there's two kinds of temporary licenses.3 Q. Okay.4 A. There's the kind that they used to have that 5 apparently there was a lawsuit to disallow that was 6 vertical that had temporary resident on it, and now it 7 says something else on a horizontal license like 8 everybody else has.9 Q. But is it fair to say that if someone went

10 through the process of fabricating, and this is a 11 general question, fabricating a driver's license, that 12 the poll workers at the polling place would not have any 13 specific tools other than the training guide to 14 determine if it was valid or invalid?15 A. Right. I mean, I don't know what other 16 knowledge a poll worker brings to the table whenever 17 they come up, but they would have their general 18 awareness of the world and what driver's licenses look 19 like.20 Q. So, ultimately, it would be up to the poll 21 worker to determine if a license was valid or invalid?22 A. Just like it is today.23 Q. Do you know why student IDs were not allowed 24 under SB 14?25 A. I do not.

174

1 MR. SWEETEN: Objection, calls for 2 speculation. Go ahead. 3 A. I do not.4 Q. (By Mr. Gear) Do you have any concerns as the 5 Director of Elections that the failure to include the 6 IDs that we've talked about, student IDs, employee IDs, 7 would have a disproportionate impact on minority voters?8 A. No.9 Q. And why not?

10 A. Well, why would they?11 Q. You tell me.12 A. I'm not aware of any information to indicate 13 that that would have a disproportionate impact on 14 minorities. No.15 Q. Well, is it true that as the law is today, 16 election laws are today, that a poll worker does not 17 have to verify a voter's identity by looking at a photo 18 ID?19 A. They don't have to but they can.20 Q. Sure. But a voter can present a nonphoto ID at 21 the polls today.22 A. When a voter presents to vote, they can do one 23 of several things.24 Q. Okay.25 A. They show their voter registration card. It's

175

1 yellow this time. They can present it. If the names 2 match, the election clerk will ask them, "Are you still 3 at this address?"4 They say "Yes."5 Perfect voter. You can go vote. Right?6 Q. Uh-huh.7 A. You could you show up and you don't have your 8 voter registration certificate. So you've got to come 9 up with one of the other forms of acceptable

10 identification under 63.0101. Right? So it could be a 11 birth certificate. It could be a student ID. It could 12 be a utility bill. It could be a bank statement. It 13 could be a pay stub. It could be other government 14 document. It could be a letter from a government 15 agency. Right?16 Q. And those would have to have a specific set of 17 identifying information on it?18 A. Exactly. So that's my point. So when somebody 19 comes in with one of these other forms of 20 identification, whether it's a driver's license or 21 whether it's anything else besides the yellow card, the 22 election worker has to make a judgment in that moment. 23 They've got discretion. Is this the same? Right? 24 Q. Okay. 25 A. I -- My name is Brian Keith Ingram. I go by

176

1 Keith. Right? 2 Q. Correct.3 A. So some of my stuff has Keith Ingram on it.4 Q. Okay.5 A. Right? Some of my stuff has Keith Ingram from 6 my address in Austin. Some of my stuff has Keith Ingram 7 from my address in Williamson County. Right? 8 Q. Uh-huh.9 A. So I show up and I present them a document that

10 says "Keith Ingram" from my address in Austin, and I'm 11 in Williamson County, they have to determine whether or 12 not that's me. They've got the discretion to do so.13 Q. Right.14 A. And they've got complete discretion to say that 15 Keith Ingram from Austin is not the same as Brian Keith 16 Ingram that's registered to vote in Williamson County.17 Q. Okay.18 A. And if I say I am, then I get to vote 19 provisionally. And they will take my provisional 20 ballot, and the ballot board will determine whether or 21 not that's a valid vote or not.22 Q. Okay.23 A. I think my chances are not good at that point.24 Q. Okay.25 A. Right? So that's the way it works now. Under






177

1 this new law, the same amount of discretion, you're 2 going have to show them something, and the same 3 discretionary process is going to work. Right? 4 We have a rule, 81.71, that we've adopted 5 to talk about similar names so that under my specific 6 example, Keith Ingram and Brian Keith Ingram would 7 probably be considered substantially similar names. 8 Right? Even though they're different, all I would have 9 to do is fill out an affidavit that says Keith Ingram

10 and Brian Keith Ingram are the same person; they're me. 11 And then I go vote. And my vote counts. It's good. 12 If they determine that my name is not 13 substantially similar, right, then I will have to vote 14 provisionally. The beauty of SB 14 is that I then have 15 six days to come talk to the voter registrar and prove 16 that I really am the same person. So now then I get an 17 opportunity to fix the problem. 18 Under current law, I do not get that 19 opportunity. So you have the same amount of discretion 20 on the part of the poll workers without any opportunity 21 to backstop it. You see the difference? 22 Q. I do. You said something that was interesting, 23 and I just wanted to understand it. Once a voter votes 24 provisionally and it goes to the board -- 25 A. Right.

178

1 Q. -- what was the name of the board again?2 A. Ballot board.3 Q. The ballot board. You indicated that my 4 chances are not good at that time. 5 A. That's right.6 Q. Does that mean my chances that the provisional 7 ballot be counted is not good at that time?8 A. Right. Under my example with a different 9 address and a different name, my odds are not good at

10 going to the ballot board of having my vote count. So I 11 will probably get a rejection notice. 12 Q. Is it fair to say that in the state of Texas, 13 provisional ballots are more likely not to be counted 14 than counted?15 A. I don't know.16 Q. Have you ever looked at any studies or analysis 17 which would show the percentages of provisional ballots 18 that have counted in the state of Texas?19 A. I have not.20 Q. And you also talked about the six days that -- 21 that an individual would have time sensitive -- that an 22 individual would have once they've cast a provisional 23 ballot to bring an allowable form of identification back 24 to the election board -- 25 A. Right.

179

1 Q. -- to have their vote counted, right?2 A. Right.3 Q. But as you sit here today, if a voter came to 4 the polls and they did not have an allowable form of 5 identification, can you say how long it would actually 6 take for a voter to, for instance, get a birth 7 certificate?8 A. I don't know, but a birth certificate I don't 9 think would be acceptable under Senate Bill 14.

10 Q. Okay. And do you -- could you say how long it 11 would take for an individual to get a driver's license 12 under the scenario that you just talked about?13 A. I don't know.14 Q. Okay. And when I talked about the birth 15 certificate, that's in fact one of the underlying 16 documentation that an individual could present -- 17 A. Right.18 Q. -- to obtain a driver's license?19 A. You know, I don't know how long it takes. 20 Right? I know how long it has taken me, and I go right 21 down to the health department and get a birth 22 certificate in a matter of a couple of hours. Right? 23 And then you would have to go to the DPS and wait 24 another couple of hours and get a temporary with your 25 picture that you could go to the voter registrar with.

180

1 Q. Okay. So just so I understand your testimony, 2 you said you could get a birth certificate within a 3 couple of hours? 4 A. Sure. I have recently for my daughter.5 Q. Okay. And do you recall what the cost for a 6 birth certificate was?7 A. I don't remember. $10, $5, not much. 8 Q. But it was not free.9 A. Not free.

10 Q. And so would you agree that the underlying 11 documents required to get an allowable form of 12 identification under SB 14 are not free?13 A. If they had to be bought, they're not free.14 Q. Okay. And if the person didn't have any of the 15 underlying documentation, they would have to go about 16 whatever process was necessary to get the underlying 17 documentation before they could even get a driver's 18 license in the state of Texas? 19 A. Sure.20 Q. Under the current law, as it is today, what can 21 a voter -- a poll worker look at to determine if the 22 voter that's before them is actually who they say they 23 are? And that's a very broad question, I know. I'm 24 just trying to understand, under the current law, what 25 can a poll worker consider when Mr. Voter comes into the






181

1 door to determine if they're really who they say they 2 are?3 A. Well, they can look at any of the acceptable 4 forms of identification under 63.0101.5 Q. And that includes both photo and nonphoto? 6 A. Yes.7 Q. And we talked a little bit about what the 8 identifying factors are for the nonphoto, and that 9 includes an address, correct?

10 A. Right.11 Q. What if anything else does it include?12 A. The name.13 Q. The name. All right. And so if the name and 14 the address match the voter registration rolls, then 15 that person would be allowed to vote a regular ballot.16 A. If they're on the list of registered voters, 17 yes.18 Q. Okay. And if -- if I was married and I changed 19 my last name so my maiden name was different but my 20 address was correct, that person most likely would be 21 allowed to vote a provisional ballot?22 A. I don't know.23 Q. That's based on the discretion of the poll 24 worker?25 A. It is.

182

1 Q. Okay. So under SB 14, the consideration of the 2 poll worker would be different if it was implemented, 3 correct?4 A. Different? It would be different if someone 5 came with a voter registration card. Right? If someone 6 comes with a voter registration card now, there is no 7 other thing the election worker has to think about.8 Q. What would happen then?9 A. They vote. So if SB 14 is implemented and you

10 show up with a voter registration card, now then you're 11 going to have to have something else.12 Q. Okay.13 A. Right? So your something else could take the 14 place of the voter registration card. It doesn't -- you 15 don't have to have a voter registration card. I'm just 16 saying that persons who show up with that now get to 17 vote. If persons who show up with one, if SB 14 is in 18 place, have to have another form of ID.19 Q. So my other form of ID is a utility bill.20 A. Not going to work under SB 14.21 Q. You have to have a photo ID? 22 A. That's right. It's on the list.23 Q. So both a -- the voter registration card and a 24 photo ID, and that is one of the allowable forms of 25 voter ID under SB 14, correct?

183

1 A. Yeah. I don't believe you have to have a voter 2 registration card. You only have to have a photo ID and 3 -- 4 Q. If I only have a voter registration card under 5 SB 14, I would have to have some other form of ID, and 6 that would have to be a photo ID; is that right?7 A. That's right, on the list, and that would 8 include a free election identity certificate.9 Q. Under SB 14, does a poll worker also look at

10 the address on the ID?11 A. Sure.12 Q. And if the address didn't match the voter 13 registration roll, and we're talking about if SB 14 was 14 implemented, what would happen?15 A. They would ask, "Do you still live at the 16 address on the voter registration roll?" 17 Q. Okay. And so, hypothetically, if I was a 18 voter, I came in, I showed you my voter ID -- 19 A. The names match.20 Q. -- the names match, but I had moved recently 21 within the same county or within the same precinct, what 22 would happen?23 A. Well -- 24 Q. What should happen, I guess?25 A. What should happen is that you should be

184

1 allowed to vote probably. If you've moved into a 2 different precinct, it depends on when you moved. You 3 know, if you moved within the recent time period before, 4 you know, you didn't have time to reregister in your new 5 address, then you could vote a limited ballot that's 6 common to both precincts.7 Q. And that hypothetical, moving, not changing 8 your address, that's something that commonly happens in 9 the state of Texas?

10 A. People move a lot. Yes.11 Q. How did the exception for individuals with 12 disabilities come to be included in SB 14?13 A. I don't know.14 Q. Do you know who made that decision?15 A. I do not.16 Q. Do you know what the purpose of that provision 17 was?18 A. No.19 Q. Do you know if it was in response to any 20 particular concerns expressed by either supporters or 21 opponents of SB 14?22 A. I don't know.23 Q. Do you know how the exception for individuals 24 with religious objections came to be included in SB 14?25 A. I do not.






185

1 Q. Do you know what the purpose of that provision 2 was?3 A. Other than what it is.4 Q. All right. And I -- I think I know what you 5 mean, but I just want to make sure that your testimony 6 is clear. What do you mean by that?7 A. A provision for religious conscience, I mean, 8 is what it seems to be. 9 Q. Do you know if that was included to address any

10 specific concerns?11 A. I do not.12 Q. Are you aware of any communications about that?13 A. I am not.14 Q. Are you aware that the legislature made 15 modifications to SB 14 for persons with disabilities?16 A. I know what the bill looks like today.17 Q. And that includes allowances for persons with 18 disabilities?19 A. That's right.20 Q. It includes allowances for persons with 21 religious objections?22 A. It does.23 Q. Did the legislature make modifications to SB 14 24 based on concerns pertaining to racial and ethnic 25 minorities?

186

1 MR. SWEETEN: Objection, calls for 2 speculation. Go ahead.3 A. I don't know.4 Q. (By Mr. Gear) Is it included anywhere within 5 the bill?6 A. I don't know.7 Q. Are you aware of amendments that were offered 8 during the legislative debate on SB 14 that would have 9 addressed concerns pertaining to racial and ethnic

10 minorities?11 A. Not specifically, no.12 Q. When you say "not specifically, what do you 13 mean?14 A. I mean, I know there was a lot of amendments 15 offered. I don't know what they were or what effect 16 they were supposed to have.17 Q. Well, do you know that there was an amendment 18 offered to allow tribal identification, for instance? 19 A. No. I did know that.20 Q. Do you know that there was an amendment offered 21 which would have -- that would have required the 22 Secretary of State to track voting based on race?23 A. No.24 Q. Do you know any of the specific amendments that 25 were offered during the legislative debates on SB 14?

187

1 A. No.2 Q. And just to round that off, do you know of any 3 specific debates that were offered during the 4 legislative debates on SB 14 that addressed the concerns 5 of minorities?6 A. I do not.7 Q. Can you describe the provisions in the bill 8 that pertain to administration of ID at the polling 9 place?

10 A. What do you mean?11 Q. Is there anything in SB 14 that pertains 12 specifically to the administration of the ID requirement 13 at the polling places, at the polls on election day?14 A. Yes.15 Q. Can you describe that for me?16 A. Well, I don't know exactly what your question 17 is.18 Q. Well, let's start with a yes. What are you 19 referring to in SB 14?20 A. Well, there's several things that relate to 21 polling places and presentation of ID in the polling 22 place. There's the whole idea that you have to have a 23 notice posted about what IDs are required. Then -- so 24 that's 15.05. You got to prescribe the wording of the 25 section that before voting, you have to provide to

188

1 applicants who register to vote whether they wish to 2 receive an exemption on the basis of disability, you've 3 got to provide them the forms so that they could with 4 their voter registration application ask for an 5 exemption based on disability. So then there would have 6 to be a certificate issued to that voter if they did get 7 their disability exemption. 8 The Secretary of State and voter registrar 9 of each county is required to maintain a website

10 providing notice of the identification requirements for 11 voting prescribed by Section 63 -- or Chapter 63. So we 12 have prescribed that notice, that notice has been 13 disseminated, and as far as I know, it's on the county 14 websites now. We're supposed to, when this bill is 15 implemented, conduct a state-wide effort to educate 16 voters regarding the identification requirements. 17 There was an RFP put out. That RFP was 18 eventually let to Burson Marsteller, that campaign is 19 ongoing. 20 Q. And the other part of that was, did I hear you 21 say "let"?22 A. Let.23 Q. Let. Okay.24 A. You know, there was request for proposal. 25 There were bids. There was evaluation of those bids.






189

1 Q. Okay.2 A. The winning bidder.3 And that was a voter education campaign 4 regarding photo ID. Now, that campaign is ongoing right 5 now, and it is not about voter ID, because we don't have 6 preclearance on this bill. But the money is in place. 7 The spots are bought for both the primary and the 8 general election. And it's easy to change the content 9 back to what was proposed.

10 We're going to have to train the election 11 workers about the photo ID. We've started that 12 process. I mean, we haven't started training them. We 13 started the process of the manual. Y'all have got a 14 draft in your office now. We're working on the 15 Powerpoint video combo.16 Q. That's the training video?17 A. Training video.18 Q. Okay.19 A. We're not going to reshoot the video. We're 20 just going to add some Powerpoint slides between what 21 already exists. We got to post the notice of acceptable 22 identification outside the polling places. And the 23 voter must present to an election officer at the polling 24 place one form of ID described in Section 63.0101. 25 The document required -- on presentation

190

1 of the document, the election officer is going to 2 determine whether the voter's name is on the list of 3 registered voters. And when they're making that 4 determination, they're supposed to use the standards 5 adopted by the Secretary of State. And we've got that 6 rule adopted, 81.71, about whether or not the voter's 7 name on the documentation they provide is substantially 8 similar to but does not match exactly with the name on 9 the voter registration list.

10 Q. Uh-huh.11 A. So they've got to match the names. If they 12 don't match exactly, you know, but they're close, we've 13 got four criteria in our rule. I don't remember them 14 all off the top of my head. But, you know, if it's a 15 last name middle name combo that you only have one or 16 the other, that's one of the similar names. If it's a 17 commonly accepted abbreviation of one of the names, so 18 Beto for Alberto. If there's a middle initial that's 19 there or not there -- I mean, we've got several 20 descriptions of what they should consider to be 21 substantially similar names -- they'll provide them an 22 affidavit. They'll provide the voter an affidavit 23 stating that the voter is the same person and that voter 24 will be allowed to vote.25 Q. Would you agree that the success of SB 14

191

1 depends on the administration of this bill at the 2 polling places?3 A. This success of any election law depends upon 4 the administration of the election law at the polling 5 place and at the voter registrar's office before the 6 polling place.7 Q. And that's also true for SB 14? 8 A. That is true for every single election law ever 9 adopted.

10 Q. Could you describe the election identification 11 certificate provision of SB 14?12 A. I don't know much about it. That's a DPS 13 question. I just know that they have had to come up 14 with an election identification certificate that is good 15 for voting but not good for anything else, and I don't 16 know any of the particulars on it.17 Q. Do you know how that particular part of SB 14 18 was developed?19 A. I don't.20 Q. Do you know what if any role the Secretary of 21 State's Office or the Secretary of State and/or her 22 staff would have played in the development of the 23 election identification certificate?24 A. I do not.25 Q. Do you know if there's any studies, reports or

192

1 analysis within the Secretary of State's Office which 2 address the issue of election identification 3 certificates?4 A. I don't know of any.5 Q. When producing documents in response to the 6 document request for the notice of deposition, are you 7 aware of any documents that were produced that address 8 the issue of election identification certificates?9 A. I'm not specifically aware of such things. If

10 we had them, they were produced. 11 Q. Do you know what, if anything, the election 12 identification certificate modeled on or upon?13 A. I do not.14 Q. Do you know what, if any, concerns were 15 expressed regarding -- do you know why this 16 particular -- how this provision arose or what concerns 17 were expressed, if any, about election identification 18 certificates? 19 MR. SWEETEN: Objection, speculation. 20 A. I do not.21 Q. (By Mr. Gear) Are you aware of any concerns 22 that the election identification certificates would be 23 difficult for Texans to obtain? And Texans, I mean 24 voters in the State of Texas. 25 MR. SWEETEN: Can you read that back,






193

1 please?2 (Requested portion read back by the court 3 reporter.)4 A. I know what Mr. Perez wrote in his letter to 5 me.6 Q. (By Mr. Gear) Okay. So -- and that was Perez?7 A. Right.8 Q. And Mr. Perez wrote you a letter when?9 A. Whenever SB 14 was being presented for

10 preclearance. 11 MR. SWEETEN: Hold on a second. Who is 12 Mr. Perez? 13 MR. GEAR: Mr. Perez -- well 14 Q. (By Mr. Gear) Who is Mr. Perez? Let's start 15 off with that. 16 MR. SWEETEN: Is he with DOJ?17 THE WITNESS: I'm not sure -- yeah, he's 18 with DOJ. I think he's one of the big bosses.19 MR. SWEETEN: Okay. That's fine. I just 20 wanted to make sure.21 Q. (By Mr. Gear) And just so we're being clear, 22 you received a letter from the Department of Justice 23 that was signed by Mr. Perez?24 A. Right.25 Q. Okay. And so go on. Were you done with your

194

1 answer?2 A. And in that letter he expressed concern about 3 the ability of voters to get an election identification 4 certificate. That's the extent of my knowledge.5 Q. Okay. So as you sit here today, is it your 6 testimony that you weren't aware of any concerns 7 expressed along those lines during the legislative 8 debate for SB 14? 9 MR. SWEETEN: Objection, asked and

10 answered. Go ahead.11 A. No, sir.12 Q. (By Mr. Gear) Do you have an opinion as to the 13 concern that was expressed by Mr. Perez? 14 A. I do not.15 Q. Do you know if every county has a driver's 16 license office?17 A. I know what Mr. Perez said.18 Q. And what did Mr. Perez say?19 A. He said that, what was it, 81 counties didn't. 20 Q. Have you attempted to independently confirm 21 that statement?22 A. I have not.23 Q. Do you know if, in fact, there are counties 24 that do not have driver's license offices?25 A. I don't.

195

1 Q. Is that a concern of yours?2 A. Texas is a very large state.3 MR. SWEETEN: Objection, relevance. Go 4 ahead.5 A. Texas is a very large state, wide-open empty 6 spaces in it.7 Q. (By Mr. Gear) Are you aware of any concerns 8 expressed during the legislative debate regarding the 9 distance that may need to be traveled by persons who

10 would be required to obtain one of the allowable forms 11 of ID under SB 14?12 A. I know Mr. Perez's letter.13 Q. Okay. And independent of Mr. Perez's letter, 14 are you aware of any legislative debate that addressed 15 that matter?16 A. I am not.17 Q. Would it be fair to say that there are voters 18 in the state of Texas who may not have allowable form of 19 ID that may need to travel a distance of more than 50 20 miles to obtain it?21 A. I don't know.22 Q. Have you attempted to make a determination as 23 to the distance voters who do not have a form of 24 allowable ID under SB 14 would have to travel to obtain 25 an allowable form of ID?

196

1 A. I don't.2 Q. You did not make an effort to determine that?3 A. No.4 Q. Do you know if public transportation is 5 available to all offices, driver's license offices in 6 the State of Texas?7 A. I don't know one way or the other.8 Q. Have you made any determination, you or anyone 9 within your office made a determination as to whether or

10 not public transportation was available to all driver's 11 license offices?12 A. No, we have not.13 Q. Have you attempted to make any determination, 14 and "you" meaning you or anyone within your office 15 attempted to make a determination as to the burden SB 14 16 would place upon minority voters in obtaining an 17 allowable form of ID under SB 14?18 A. No.19 Q. Are you aware of any study or analysis that 20 would address that issue, the issue of burden to 21 minority voters, and I'm speaking specifically of the 22 Secretary of State's Office or anyone, any staff within 23 the office, are you aware of an existing analysis or 24 study?25 A. I am not.






197

1 Q. Are you aware of any analysis, report, study 2 within the Secretary of State's Office which attempted 3 to determine the underlying cost of documents necessary 4 to obtain allowable forms of ID under SB 14?5 A. No, sir.6 Q. Are you aware of what underlying documents are 7 needed to obtain an election identification certificate 8 under SB 14?9 A. I'm not. I assume it's the Real ID

10 requirements, whatever those are.11 Q. But as you sit here today, you don't know what 12 the Real ID requirements are?13 A. I don't have a list in my head, no, sir.14 Q. If documents needed for allowable ID under SB 15 14 themselves are not free, would you agree that the IDs 16 required for SB 14 are also -- would also not be free?17 A. No, sir.18 Q. And why not?19 A. Because chances are, people have those 20 documents already and they don't need to buy them.21 Q. Well, let's do a hypothetical. And this is in 22 general terms. If I was a long-time voter in the state 23 of Texas, and SB 14 was implemented, and I made a 24 determination that I did not have any of the allowable 25 forms of ID under SB 14, and I also did not have any of

198

1 the underlying documentation, would you agree that for 2 me to obtain the underlying documentation, it would -- 3 there would be a cost? 4 MR. SWEETEN: Objection, assumes facts not 5 in evidence. You can answer the question. 6 A. I would imagine that it would cost something. 7 Sure.8 Q. (By Mr. Gear) And not only just in terms of 9 money, but in terms of time to obtain the underlying

10 documentation?11 A. Probably.12 Q. Would you agree with that?13 A. If there's a voter that doesn't have either a 14 form of identification or the underlying documents 15 required to get such identification.16 Q. And so moving forward with that hypothetical, 17 you agree that there would be a cost to obtaining the 18 underlying documentation, so would you also agree that 19 by the time I got to the point where I could afford an 20 allowable form of identification under SB 14, I have 21 expended both time and money to do that?22 A. No.23 MR. SWEETEN: Same instruction.24 Q. (By Mr. Gear) And again, this is a 25 hypothetical.

199

1 A. No. I -- I disagree with that.2 Q. Well, what part of it do you disagree with?3 A. Well, I disagree with the conclusion. If 4 someone wants to vote, they realize that voter ID is in 5 place, that they do not have an acceptable form of ID 6 under 63.0101, then they will have to go to their 7 important papers drawer, see if they've got a birth 8 certificate or whatever else is required to obtain such 9 an ID. And if they don't have one, then they'll have to

10 order one. That will entail a cost, and it will entail 11 a little bit of time. 12 Once they've got their underlying 13 information -- 14 Q. Uh-huh. 15 A. -- they can go down to the DPS and get their 16 free election identification certificate. So how much 17 time is expended, how much money is expended, I don't 18 have any idea. It probably will not be very much. And 19 if someone is interested in voting, and presumably, in 20 your hypothetical, you've got a long-time voter who is 21 probably interested in voting, then they're probably 22 willing to bear that cost, and that's the cost that I 23 was talking about when I said that voter ID does have a 24 little bit of cost associated with it. 25 But you know, probably, when you're

200

1 talking about trade-offs, it's worth it for the benefit 2 that it gets in enhancing the integrity of the electoral 3 process. See, there's a cost, there's no doubt there's 4 a cost, but there's also a benefit.5 Q. And the benefit as we're describing it in the 6 hypothetical would be voting?7 A. Voting, and knowing who the voters are and that 8 they're eligible to vote.9 Q. Is there any study or analysis that you have

10 reviewed from the Secretary of State's Office that would 11 show that the cost to poor voters was considered during 12 the implementation of SB 14? 13 MR. SWEETEN: Objection, asked and 14 answered. Go ahead.15 A. I don't -- I don't know of any such study.16 Q. Okay. And you have not reviewed any such 17 study?18 A. I have not.19 Q. Do you know where you would obtain an election 20 identification certificate?21 A. I don't know. It's my understanding that you 22 get them at the DPS office, but I don't know.23 Q. Do you know the hours of office for the various 24 DPS offices in the state of Texas?25 A. I have no idea.






201

1 Q. Excuse me. Would you agree that there are 2 different office hours, that there are different days of 3 the week that are actually open in various DPS offices?4 A. I do not know.5 Q. Okay. Would you agree that there are full DPS 6 offices and DPS offices that only provide partial 7 services?8 A. I don't know.9 Q. Have you ever attempted to determine that?

10 A. I have not.11 Q. Any concern that for someone who has a very 12 little income, the little bit of cost might mean that he 13 or she cannot participate in the election -- 14 MR. SWEETEN: Objection.15 Q. (By Mr. Gear) -- and I'm talking about voting 16 in the state of Texas? 17 MR. SWEETEN: Just the question is vague, 18 and objection, relevance, but go ahead, you can answer. 19 A. It has been my experience that people come up 20 with money for what they want to come up with money 21 for. Period.22 Q. (By Mr. Gear) Okay. Would you agree that 23 voting is a right?24 A. Yes.25 Q. Would you agree that that right may be affected

202

1 if a -- for instance, a poor voter didn't have the 2 little bit of cost that you referenced in your testimony 3 if SB 14 was implemented? 4 MR. SWEETEN: Objection, assumes facts not 5 in evidence. 6 A. Yeah. I don't know.7 Q. (By Mr. Gear) Are you aware of whether or not 8 any purpose of SB 14 was for partisan purposes? 9 MR. SWEETEN: Objection, asked and

10 answered.11 A. I have no idea what -- I don't know.12 Q. (By Mr. Gear) Was SB 14 designed to address 13 any particular problem? 14 MR. SWEETEN: Objection, asked and 15 answered. Objection, calls for speculation. 16 A. I don't know if it was intended to address any 17 particular problem. In my experience at the Secretary 18 of State's office, there are several problems that could 19 be addressed by SB 14, yes.20 Q. And what are those problems?21 A. Well, voter impersonation. 22 Q. Anything else?23 A. Noncitizens voting.24 Q. Anything else?25 A. I can't think of anything else, but those are

203

1 the enhancements to the election process's integrity 2 that I think are important.3 Q. So other than your testimony today, and I 4 certainly understand that, are you aware of any other 5 evidence that -- that may exist that shows that either 6 voter impersonation or noncitizens voting at the polling 7 place actually exists? 8 MR. SWEETEN: Objection, asked and 9 answered. Go ahead.

10 A. The thing is that voter impersonation under our 11 current system would be almost impossible to detect 12 outside of serendipity. So saying that we're not aware 13 of cases of voter impersonation is not particularly 14 useful. How would we know? We would know if a precinct 15 worker is checking in a voter with a certificate with 16 the name of a person that they know and they know that 17 ain't them. Right? Serendipity is the only way we 18 would know about voter impersonation right now. 19 And the opportunity for voter 20 impersonation is quite large, both active fraud cases as 21 well as opportunity cases. There was a case not too 22 long ago where -- was it earlier this year, where a 23 woman had an interest in elections. She was either the 24 candidate for city council or advocated strongly for the 25 candidate, and she had her son, who was a junior, take

204

1 her dad -- his dad's voter card and go vote his dad's 2 card. So when dad showed up to vote, it had already 3 been voted. 4 So voter impersonation happens. We don't 5 know how often it happens, because we can't know how 6 often it happens, because we don't check.7 Q. (By Mr. Gear) Now, you referenced a case that 8 you believe happened this year. Can you give me some 9 detail about it?

10 A. I just gave you all the details I know. It was 11 in the newspaper. 12 Q. Are you sure that it was this year?13 A. I'm pretty sure it was this year.14 Q. And do you know the name of that voter --15 A. I do not.16 Q. -- that you referenced? Do you know the name 17 of the son that you referenced?18 A. (Witness shakes head no.) 19 Q. Do you know the name of the person that they 20 supposedly impersonated?21 A. It was daddy, her husband.22 Q. And do you know when that newspaper article 23 came out?24 A. Within the last month.25 Q. Was that -- was that incidence of voter






205

1 impersonation referred to the Secretary of State's 2 Office?3 A. I don't know. It could have been. It could 4 have been in that list of complaints that we haven't 5 worked yet.6 Q. So is it fair to say there's been no formal 7 investigation by the Attorney General's Office?8 A. Not as far as I know. I think the local law 9 enforcement, local DA was looking into it according to

10 the newspaper.11 Q. And other than newspaper articles, are you 12 aware of any other allegations related to that -- to 13 that allegation or that complaint?14 A. I don't think so, no.15 Q. You testified that the only way that there 16 would be any evidence of voter impersonation was if the 17 poll worker knew the person that was presenting the card 18 as not being the person who they say they are, is that 19 -- 20 A. Right. They either know the name on the card 21 or they know the person and they know they are not the 22 same person.23 Q. Wouldn't you agree that there are other ways to 24 determine if voter impersonation was occurring? 25 A. You tell me what they are.

206

1 Q. Well, I'm not actually here to testimony.2 A. Because I can't think of any. How else would 3 anybody know? If you show up with the yellow card to 4 vote -- if I show up with the yellow card to vote and it 5 says "Mary Jane Smith," probably, the election worker 6 would be suspicious because I don't look like Mary Jane, 7 right? 8 Q. Uh-huh. Hypothetically. 9 A. If I get my wife to take "Mary Jane Smith,"

10 then we got something: This fellow who might have been 11 voting several cards down there in Hidalgo County.12 Q. You don't know who identified him, if anyone, 13 to -- that he was committing voter impersonation -- 14 A. That's right.15 Q. -- if that's, in fact, what he was committing?16 A. And the reason that he was even suspicious is 17 because poll workers thought they had seen him before.18 Q. A voter, for instance, could identify someone, 19 and according to your testimony, that that happens, that 20 voters can identify individuals who they believe are 21 committing voter fraud. Is that fair to say?22 A. Right. But how would you know? How would the 23 voter know? The voter wouldn't know what name they were 24 presenting when they -- I could show up to vote at the 25 polling place, and I could see my friend Bob, and I

207

1 could say, "Hey, Bob, what's up?" Right? And Bob could 2 be giving his name to the registrar as "John." Right? 3 And he could be voting John's card. I wouldn't know 4 that. I know Bob, but I don't know what name he's 5 voting under.6 Q. But it still doesn't eliminate the possibility 7 that -- 8 A. Serendipity could happen.9 Q. -- that during that scenario that you have just

10 testified to, that that voter would realize something 11 was not right and say something about it.12 A. They could. That's what I'm talking about: 13 serendipity.14 Q. Okay.15 A. A few isolated instances where something 16 happened to catch somebody who was committing voter 17 fraud.18 Q. And there are poll watchers in the polling 19 place, correct, at times?20 A. That's true. That's right.21 Q. There are federal observers in the polling 22 place at times? 23 A. Yes, there are.24 Q. There are candidates who, as you've testified 25 before, have introduced at least allegations of voter

208

1 fraud in the past; is that accurate? And I'm talking 2 about voter fraud in general. 3 A. Uh-huh. Candidates have made allegations of 4 voter fraud on the part of their opponents, yes.5 Q. Sure. So there's any number of individuals who 6 can identify alleged cases of voter fraud, if I 7 understand your testimony.8 A. Voter fraud, yes. Voter impersonation, very 9 difficult to detect.

10 Q. But each and every one of the individuals that 11 we've just talked about here today would have the 12 ability to identify voter impersonation if -- if they 13 believed it occurred; is that correct?14 A. They would not. That is my point. They would 15 not. If I'm a poll watcher for a candidate, and I'm 16 standing there observing, and I see somebody come in and 17 present a yellow card, there is no way for me to know 18 what name is on that card, what name they have in their 19 back pocket in the driver's license, and whether they're 20 the same or not.21 Q. Well, having done election coverages for a 22 long, long time, is it accurate to say that poll 23 watchers at times, not always, but at times have copies 24 of the voter registration rolls?25 A. I don't know.






209

1 Q. Have you ever observed an election -- have you 2 ever been inside the polling place to actually observe 3 an election as it goes on?4 A. No. I mean, I've been to vote.5 Q. Okay. So other than voting and leaving --6 A. But if they had an official list of registered 7 voters, that wouldn't help them.8 Q. Well -- 9 A. Do you understand that it wouldn't help them?

10 Q. Is it also true, and I may know the answer or 11 your response to this, but is it also true that during 12 elections, poll workers often call out who is the name 13 of that voter and compare it to the voter registration 14 roll that they have?15 A. Sure.16 Q. You know that to be true?17 A. Absolutely.18 Q. Okay. And is it also true that poll watchers 19 have the ability to challenge voters within the polling 20 place?21 A. I don't know.22 Q. One of election laws in the state of Texas, if 23 I, Mr. Poll Watcher, don't believe that a person is who 24 they say they are, do I have the authority under 25 election law to challenge that voter?

210

1 A. I don't think so. I mean, I'd have to look at 2 the election code and to make sure, but -- 3 Q. Is it fair to say as you sit here today, you're 4 not aware of what the election law provides regarding 5 the ability of poll workers to challenge -- I'm sorry, 6 poll watchers to challenge voters in the polling place?7 A. No. I know they can challenge the assistants. 8 I don't know if they can challenge a voter. That's a 9 good question. I'd have to look. But they would have

10 to have some idea that that voter is not who they are 11 presenting themselves to be. That's the piece that is 12 missing. That is the piece that voter ID supplements.13 Q. And as the law is today, what are the penalties 14 for voter impersonation?15 A. Voter impersonation right now I think is a 16 state jail felony. Under SB 14, it goes up to a second-17 degree felony.18 Q. So is it two to ten years? 19 A. I don't know what the penalty is for state jail 20 felonies.21 Q. But that would include jail time and the 22 possibility of a fine, correct?23 A. Absolutely.24 Q. All right. Any reason to believe that criminal 25 penalties aren't sufficient to deter voter

211

1 impersonation?2 A. I don't know. Anytime a potential criminal is 3 evaluating conduct like that, they have to do a risk-4 benefit analysis, don't they?5 Q. Well, that's an interesting statement. When 6 you say "risk-benefit analysis," what do you mean?7 A. I mean the risk of getting caught and suffering 8 the punishment versus the benefit of getting to cast an 9 extra vote.

10 Q. Would you agree that voter impersonation in the 11 state of Texas, if it occurs, is rare?12 A. I don't know.13 Q. Have you ever heard about voters who did not 14 vote because they were concerned that voter fraud would 15 cancel out their vote?16 A. Well, Mr. Barrientos makes allusion to that in 17 his e-mail this morning.18 Q. And you're referring to Exhibit Number 553?19 A. Yes.20 Q. And so where does he make that reference?21 A. "Someone complained that requiring voter 22 eligibility or identification is voter intimidation, but 23 the underlying rationale remains that voter fraud or 24 abuse taints the democratic election process, dilutes 25 the true vote, and should not be ignored due to

212

1 political correctness." 2 Q. Okay. And so my question was: Ever hear about 3 a voter who did not vote because they were concerned 4 that voter fraud would cancel out their vote?5 A. No. 6 MR. SWEETEN: Objection, asked and 7 answered.8 Q. (By Mr. Gear) And your answer was "no"?9 A. The answer is I haven't heard of any specific

10 voter that hasn't voted. I have heard from a general 11 lot of voters who think their vote doesn't count.12 Q. Do you have any knowledge as to whether SB 14, 13 if implemented, would increase voter turnout?14 A. I do not know.15 Q. Has the Secretary of State's Office or more 16 correctly, has the Secretary of State or any of his 17 staff conducted any analysis which would support that 18 voter turnout could increase if SB 14 was implemented?19 A. I don't believe we've done any such analysis.20 Q. I want to change your focus briefly on -- on 21 the absentee ballots, and I just want to know, what must 22 a voter do to vote an absentee ballot in the state of 23 Texas?24 A. Currently?25 Q. Currently.






213

1 A. They have to apply for the ballot by mail, have 2 to receive it, fill it out and return it in time.3 Q. And in Texas, as I remember it, absentee ballot 4 voting is called "early voting by mail"?5 A. Absentee ballot by mail.6 Q. Is there such a thing as an emergency absentee 7 ballot?8 A. I don't know. I haven't heard of such a 9 creature.

10 Q. Let me put it in a different way. If I did not 11 know that I was going to be out of town, and it was 15 12 days before the election, is there any way that I could 13 obtain an absentee ballot?14 A. I don't know what the deadline is. I think 15 that the deadline is later than that, so yes.16 Q. So when you say "later than that," is there --17 A. Closer to the election than 15 days.18 Q. So there's a deadline for when I can actually 19 request an absentee ballot?20 A. Yes.21 Q. And do you know what that deadline is?22 A. I don't off the top of my head. It was 23 different for this year's election because of the 24 redistricting.25 Q. Is it 60 days before an election?

214

1 A. No. It has to be within 60 days that you apply 2 for a ballot by mail.3 Q. And we're talking about the absentee ballot 4 application? 5 A. That's right.6 Q. And if I fail to apply for an absentee ballot 7 by using the application within that 60-day period, can 8 I obtain an absentee ballot?9 A. No.

10 Q. So going back to my original question, if I 11 missed that application deadline --12 A. Right. 13 Q. -- the 60-day deadline, is there any way for me 14 to obtain an absentee ballot?15 A. There's not a 60-day deadline.16 Q. Okay.17 A. The application for ballot by mail, you can't 18 apply for it earlier than 60 days before the election.19 Q. Earlier than 60 days.20 A. Right.21 Q. So any time within that 60 --22 A. 60 to the election, but I think it's a few days 23 before the election is when the deadline is. I just 24 don't remember off the top of my head.25 Q. Okay. That was my misunderstanding. I thank

215

1 you for that testimony. 2 Is there such a thing as a permanent 3 absentee ballot?4 A. No.5 Q. So would a voter be required to apply for an 6 absentee ballot prior to each election?7 A. Yes.8 Q. Okay. And when I say "apply," they would have 9 to fill out the absentee ballot application and submit

10 it within whatever the deadline is?11 A. Right.12 MR. GEAR: Let's take a break. 13 (Recess from 3:38 p.m to 3:50 p.m.)14 MR. GEAR: So we're back on the record.15 (Exhibit 557 marked for identification.)16 Q. (By Mr. Gear) I wanted to hand you what's 17 marked as Exhibit 557, and give you an opportunity to 18 look at that, and then we can talk about it.19 A. (Reviewing documents.) Okay.20 Q. All right. And so you've testified a number 21 times about a spreadsheet that was generated from the 22 Secretary of State's Office that addressed referrals to 23 the Attorney General's Office. Can you identify what 24 Exhibit 557 is?25 A. Exhibit 557 is what appears to be a list of

216

1 complaints that were received, some of which were 2 referred to the OAG.3 Q. Received by the Secretary of State's Office?4 A. I'm assuming. What this is, is, there was -- 5 say we have war room taking calls on election day?6 Q. Uh-huh. 7 A. This was the May election in 2009, so I don't 8 know what was on the ballot, but that's generally a 9 local election day.

10 Q. And is this the spreadsheet that you were 11 referring to?12 A. It is not.13 MR. GEAR: So Patrick, just for the 14 record, I'd like to see if -- he's testified that he's 15 produced the spreadsheet. I'd like to see if we can get 16 that spreadsheet produced to us.17 MR. SWEETEN: Okay. 18 MR. GEAR: And I'll follow up with a 19 letter, if that's what you would like me to do.20 MR. SWEETEN: Okay. Well, just for the 21 record, I'll say that this was the spreadsheet that I -- 22 I asked my folks in the office if there was a 23 spreadsheet produced. I mean, these are the Bates 24 labels that we said we had. Is that right, Bruce? 25 MR. GEAR: You did say that.






217

1 MR. SWEETEN: I don't see Bates labels on 2 this copy. 3 MR. GEAR: There's one at the top. It 4 looks like it's cut off. 5 MR. SWEETEN: Okay. 6 MR. GEAR: TX 000 -- I don't know the 7 rest. I think it's 18125.8 MR. SWEETEN: Okay. But we'll look to see 9 if there's another spreadsheet. Yeah, if you'll just

10 send me a letter on that specifically about that, and 11 we'll run it --12 MR. GEAR: Okay. I'll do that -- I'll do 13 that this week.14 Q. (By Mr. Gear) And so, just so I'm clear, the 15 exhibit that I've handed you, 557, does that -- is 16 something that would have been produced by the Secretary 17 of State's Office?18 A. Yes. This is -- this is what we take the 19 complaints on during the day, during election day, you 20 know, and so I would imagine. I wasn't there in 2009. 21 But we do something similar now. So I think that it's 22 the same thing.23 Q. And do you do this type of exhibit for each 24 election? I note that this has "May 9th, 2009 General 25 Election" on it.

218

1 A. I don't know what happens to these after 2 election day. I don't know if they're kept. I don't 3 know where this one came from. I don't know. I don't 4 know.5 Q. Do you know if you have produced any additional 6 exhibits or documents that are similar to Exhibit 557 7 regarding other elections?8 A. I don't know.9 Q. Okay.

10 MR. GEAR: I'll put within my request a 11 request for production regarding any other -- for lack 12 of better word -- spreadsheets that deal with specific 13 elections that are similar to Exhibit 557.14 Q. (By Mr. Gear) Does Exhibit 557 refresh your 15 recollection as to whether or not there were any 16 allegations or complaints referred to the Secretary -- 17 to the Attorney General's Office regarding noncitizens 18 voting?19 A. No. This -- this doesn't have anything to do 20 with that.21 Q. Does this Exhibit 557, which is the May 9, 22 2009, general election, have any indication that any 23 voter impersonation cases were referred to the Attorney 24 General's Office?25 A. No.

219

1 Q. Okay. So before the break, we left off, we 2 were talking about absentee ballots. Can you tell me 3 every reason under the Texas Election Code that a voter 4 would be allowed to request an absentee ballot?5 A. I don't know if I know every reason. I know 6 that over 65 can request an absentee ballot. Over the 7 age of 65, persons can request one. The disabled 8 persons can. And you can if you are going to be out of 9 the county during the entire voter -- early voting

10 period and election day. I don't know if that's the 11 universe of options, but I know those three.12 Q. Okay. Those would be the main reasons, as you 13 understand them?14 A. Very much so.15 Q. Okay. So, you can vote -- you can request and 16 then vote an absentee ballot if you are sick or 17 disabled; is that right?18 A. That's right.19 Q. What additional steps, if any, must a disabled 20 voter take to qualify for an absentee ballot?21 A. I don't think there's any additional steps that 22 they have to take.23 Q. They can simply complete the application and 24 request an absentee ballot?25 A. Fill it out and send it back.

220

1 Q. Is there any proof required to show that 2 they're actually disabled or sick at the time the 3 absentee ballot has been requested?4 A. I don't believe so.5 Q. If a disabled voter requires an absentee 6 ballot -- or I'm sorry. Strike that.7 If a disabled voter requires assistance 8 while voting an absentee ballot, what must they do to 9 comply with election law in the State of Texas?

10 A. There is instructions with their absentee 11 ballot about the assistance that can be provided and who 12 can provide it and what assistance can be provided, and 13 all of that's in the form, so I don't want to quote from 14 -- by memory.15 Q. Do you know what the person providing 16 assistance must do to comply with election law?17 A. It depends on what they do, but generally, 18 they're going to have to identify themselves and sign a 19 statement that they didn't vote for the person.20 Q. Is that a sworn statement?21 A. I think so, yeah.22 Q. What happens if the voter, the disabled voter 23 fails to follow these procedures?24 A. Well, if they don't follow the correct 25 procedure, generally, the result is that the vote is not






221

1 counted. Usually what happens is, the county clerk will 2 receive the absentee ballot, notice a defect of some 3 sort, contact the voter, and get the defect remedied.4 So, while it's still in that receipt 5 process, there's an opportunity to remedy defects. It 6 depends on what the defect is, of course. But once it 7 has gone to the ballot board, then, you know, you can't 8 change anything.9 Q. The defect cannot be remedied.

10 A. Right. 11 Q. Would be a disabled voter or the person 12 providing assistance be subject to criminal penalties if 13 they fail to follow the procedures? And that's 14 generally.15 A. I don't know. It depend on what happens. It 16 depends on the defect. I don't think for most defects, 17 most mistakes, there's criminal penalties. There's 18 criminal penalties for fraud.19 Q. Also, based on your testimony, you can 20 provide -- you can vote an absentee ballot if you're 65 21 years or older on election day; is that right?22 A. That's right.23 Q. What must a voter who is of 65 years or older 24 do to obtain an absentee ballot?25 A. Apply for it.

222

1 Q. Is there any additional requirement to show 2 that the voter is actually 65 years old?3 A. I don't believe so.4 Q. So as you sit here today, you're not aware of 5 any additional steps that a 65 year or older voter must 6 take to apply for and vote an absentee ballot? 7 A. No. Their date of birth is in the voter 8 registration database. There's a few voters that 9 don't. I think we got about 25,000 in Dallas that

10 don't, so it's out of 1.9 million voters. So we know.11 Q. Okay. So do you know why -- or do you know the 12 reason why SB 14 only exempts voters 70 years or older?13 A. I do not.14 Q. Are you aware of any communication from the 15 Secretary of State's Office to any entity within the 16 state of Texas that -- that analyzes the reason why 70 17 old or older voters are exempted under SB 14?18 A. I'm not aware of any such.19 Q. Is it fair to say that under SB 14, the 20 exemption for 70 year or older voters is only for the 21 election certificate?22 A. I don't know.23 Q. Would a 70 year old or older voter be required 24 to show photo ID pursuant to SB 14? And I just note for 25 the record that you are reviewing SB 14.

223

1 A. Right. The bill is what it is. So I don't 2 know. It says what it says.3 Q. And what does the bill say?4 A. I'm looking.5 Q. Take your time.6 A. (Reviewing document.) Okay. It says that 7 Transportation Code 521(a) regarding election 8 identification certificate, that it doesn't expire once 9 it's issued to a person 70 years of age or older.

10 Q. So an individual who is 70 years of age or 11 older would be exempt from SB 14; is that fair to say?12 A. Well, I don't know. That's not what this 13 says. It says that the election identification 14 certificate doesn't expire for that person.15 Q. What would the 70 year or older voter be 16 required to show if they went to the polls and voted on 17 election day and SB 14 was implemented and in place?18 A. I don't see anything in this bill that exempts 19 them from showing ID, so presumably, the difference is 20 that they're -- they would never be with election 21 identification certificate that had expired more than 60 22 days before the election.23 Q. So your understanding is, is that -- and 24 correct me if I'm wrong -- that, that they would have to 25 show both an election certificate and a photo ID?

224

1 A. No. That's not what I said.2 Q. Okay. And I said correct me if I was wrong. 3 A. Right. And so what it is, is they would just 4 have a form of ID that wouldn't be subject to the 5 expiration provisions of 63.101.6 Q. Does an election certificate have a photo?7 A. Yes.8 Q. Do you know what the purpose of the 70 years or 9 older exemption was?

10 MR. SWEETEN: Objection, calls for 11 speculation. 12 A. I do not.13 Q. (By Mr. Gear) Do you know why 65 years or older 14 was not considered under SB 14?15 A. I do not.16 Q. I don't know if you testified to this, but is 17 it also true that a person who is confined in jail and 18 not convicted of a felony could vote an absentee 19 ballot? For instance, hypothetically, someone went to 20 the jail for driving without a valid driver's license, 21 which I believe would be a misdemeanor in most cases. 22 They are waiting their pending court date. Would that 23 individual be allowed to vote an absentee ballot?24 A. I don't know.25 Q. Is it fair to say that the majority of the






225

1 types of allegations or complaints that you both receive 2 and refer to the Texas Attorney General's Office would 3 be based on absentee ballot fraud?4 A. Are you asking if the majority of the 5 complaints that we receive and refer have to do with 6 absentee ballots? 7 Q. Yes.8 A. I don't think that's a fair characterization, 9 no.

10 Q. Okay. Would it be fair to say that the 11 majority of the complaints that you receive and refer 12 deal with anything -- issues other than voter 13 impersonation?14 A. Yes.15 Q. Okay. And would you say that there is a -- or 16 what percentage of those would you say would deal with 17 absentee ballot fraud?18 A. I don't know.19 Q. Would you -- does the Election Division track 20 absentee ballot voting by race of voters?21 A. We don't track any voting by race of voters.22 Q. Are you aware if the majority of convictions 23 relating to voter fraud have to deal with absentee 24 ballots?25 A. I don't know.

226

1 Q. Would the types of referrals or complaints that 2 you've made to the Attorney General's Office be 3 reflected in the spreadsheet that you've you testified 4 here today?5 A. Yes.6 Q. And to be fair, we don't have that spreadsheet 7 in front of us. 8 A. Right.9 Q. Do you have any knowledge as to whether or not

10 whites or Anglos, as it's referred to in the state of 11 Texas, tend to use the absentee ballot process more than 12 minorities?13 A. I do not know.14 Q. Do you have any knowledge as to the percentage, 15 in any given election, of Blacks or Hispanics who use 16 the absentee ballot process?17 A. We don't track voters by race.18 Q. Have you seen an increase in vote by mail in 19 Texas over the -- I'm trying to put that in a time frame 20 for you.21 A. Right.22 Q. Strike that question.23 Does absentee ballot voting or voting by 24 mail differ from early voting?25 A. Yes, I assume by early voting you mean early

227

1 voting in person.2 Q. And how does it differ?3 A. One is by mail and one is in person.4 Q. What does the voter need to do to early vote?5 A. Show up at polling place and present either a 6 voter registration card or another acceptable form of ID 7 on a 63.0101 list.8 Q. And we talked about the basis for voting 9 absentee ballot. There is any reason that a voter has

10 to provide to vote early vote, or in other words, show 11 up at the polls and vote early? Is there reason that's 12 required?13 A. Not even, any -- any reason or no reason.14 Q. Are you aware of any analysis or studies that 15 would indicate which process, either early voting or 16 absentee ballot voting, Texans tend to use more during 17 elections? 18 MR. SWEETEN: Can you read that back to 19 me, please?20 (Requested portion was read back by the 21 court reporter.)22 A. We do not have any analysis of that. This 23 election that we just had May 29th, will be the first 24 election under a new law, 18.068. The second 18.068. 25 There's two of them. And it will require counties to

228

1 provide to the Secretary of State voting history for 2 everybody. In the past, voting history has been 3 submitted voluntarily. Some counties did, some counties 4 didn't. So this is the first election that we will have 5 where within 30 days, we'll have voting history for all 6 counties, assuming that they comply. And the voting 7 history will delineate early vote, early vote absentee 8 ballot by mail, UOCAVA, or election day voting. 9 Q. Okay. And so you said there have been two

10 versions of 18.068, correct?11 A. There is, in the election code right now, two 12 18.068s.13 Q. And this past election is the first time that 14 local election officials would have to track the voting 15 history?16 A. No. That's the first time they have to report 17 voting history to us. 18 Q. And you said that that would delineate what?19 A. It will delineate who voted and the means by 20 which they voted.21 Q. In other words, it will identify early voting 22 by mail voting, in-person voting on election day?23 A. In-person early voting. And I think they'll 24 break out the overseas military voters separately.25 Q. Okay.






229

1 A. But I don't know. That could be lumped with 2 the ABBM's Office. I have to check on that.3 Q. Do you know what the reason for passage of -- 4 and I understand that there are two, so you can clarify 5 that with your testimony -- 18.068?6 A. The reason, as I understand it, for passing 7 this one is that we asked for it, and it was in our 8 bill.9 Q. When you say "we" asked for it, the --

10 A. Secretary of State.11 Q. -- Secretary of State? And why did the 12 Secretary of State ask for the passage of 18.068?13 A. I don't know exactly why. But the fact that 14 some counties provided voting history and other counties 15 did not provide voting history was creating a patchwork 16 quilt, and we just thought it needed to be uniform. 17 That's my understanding, but I could be wrong.18 Q. So we've gone through a lot of discussion and 19 testimony, questions, and answers. Do you want to 20 change any of the answers that you have given today?21 A. I do not. You know, I want to make sure 22 there's a clear distinction between my opinions and my 23 role as Elections Director for the Secretary of State, 24 you know. 25 Q. And during the course of this deposition

230

1 testimony, I've attempted to do that, to help you 2 identify when I'm asking you about your opinion and when 3 I'm asking you about your responsibilities as an 4 election director. 5 A. Right.6 Q. And do you feel that --7 A. I have endeavored to talk about the difference 8 between our role as an office and my role as a person.9 Q. Sure.

10 A. I don't know if I've always made that clear, 11 but I've tried.12 Q. Is there any information that you recall that 13 you did not recall earlier during the day?14 A. No.15 Q. Is there anything additional that you would 16 like to share, in your case, regarding SB 14, during 17 your deposition today?18 A. No.19 Q. Okay. 20 MR. GEAR: Then for our purposes, I'm 21 going to -- I'm going to wrap up, and I'm going to hold 22 this deposition open. I understand that there's an 23 order given by the court. I have not read that order 24 yet. So similar to other depositions, I am going to 25 request that we hold this open.

231

1 MR. SWEETEN: Are you saying hold it open 2 based on any privilege ruling? 3 MR. GEAR: Based on the privilege ruling.4 MR. SWEETEN: Okay. And as you said, 5 there has been a ruling today. And like you, I've been 6 sitting in here today, so I haven't had the chance to 7 fully digest it. But I think -- I don't -- at any rate, 8 obviously, you can reserve the right to hold it open. I 9 would object to that request based upon the privilege

10 ruling, but we'll hash that out later.11 MR. GEAR: We'll hash that out later.12 And I will turn it over to the defendant 13 intervenors.14 MR. VANDEWALKER: Thank you.15 EXAMINATION16 BY MR. VANDEWALKER:17 Q. Good afternoon, Mr. Ingram. My name is Ian 18 Vandewalker. I represent one of the defendant 19 intervenors, and I'm going to ask you a few questions 20 that afternoon. Can you hear me all right on this 21 phone? 22 A. I can indeed, yes.23 Q. Okay. Great. Thanks.24 As the Director of Elections, how do you 25 keep yourself informed of the activities of the

232

1 administrative team that you identified earlier today?2 A. What do you mean? The team inside my office?3 Q. Yes.4 A. Well, I live with them.5 Q. So do you -- do you meet with them regularly?6 A. Yes.7 Q. Do they provide reports to you on what they're 8 doing regularly?9 A. Yes.

10 Q. Is it fair to say that -- well, would the 11 administrative team ever be performing activities that 12 you're not aware of? 13 MR. SWEETEN: Objection, calls for 14 speculation. 15 A. Well, there's the problem of not knowing what I 16 don't know, but I would say that certainly that's 17 possible, yes.18 Q. (By Mr. Vandewalker) You think it's possible 19 that a team that you supervise might be doing things 20 that you have no idea about? 21 MR. SWEETEN: Objection, vague. 22 Objection, relevance. Objection, calls for speculation.23 A. I hear what you're asking, but, you know, I 24 don't know everything that they do.25 Q. (By Mr. Vandewalker) So when you said just now






233

1 that you live with them, they report to you regularly in 2 meetings that you regularly have written reports, it's 3 still possible, given all of those things, they might be 4 doing things and you don't know about those things? 5 MR. SWEETEN: Objection, vague. 6 Objection, argumentative. Go ahead, you can answer. 7 A. Yes. They could certainly be picking their 8 nose in their office, and I wouldn't know about it.9 Q. (By Mr. Vandewalker) Could they be doing things

10 that are part of the work of the Division of Elections 11 that you wouldn't know about?12 MR. SWEETEN: Same objection. 13 A. I don't know. I don't know. I think in a 14 general sense, I am aware of their activities.15 Q. (By Mr. Vandewalker) Okay. You talked earlier 16 today about a request for a proposal with respect to the 17 voter education plan that's required by SB 14. Do you 18 know how many proposals the Secretary of State's Office 19 received in response to that request for proposal?20 A. I do not, and I wasn't part of that process.21 Q. Is that because the vendor was selected before 22 you started?23 A. Yes.24 Q. What is Make Your Mark on Texas?25 A. That is this year's voter education campaign.

234

1 Q. And is that the plan that the vendor that was 2 selected as part of the request for proposal came up 3 with?4 A. Yes.5 Q. You seem unsure. Do you want to follow-up with 6 your answer at all?7 A. No. I don't -- I don't understand -- it's 8 obviously what they came up with. It's what they are 9 doing. I was not part of that process. It's not -- the

10 Special Projects Team that dealt with that issue, dealt 11 directly our communications director in the Executive 12 Branch, and so it wasn't -- it wasn't a thing over which 13 I exercise direct oversight.14 Now, as we got into it and we were 15 finalizing things, I was involved in the process, but by 16 then, Make Your Mark on Texas was already in place. So 17 my hesitation was based on that.18 Q. Okay. So is the Special Projects Team not part 19 of the Division of Elections?20 A. No, they are.21 Q. Which of the teams, the four teams that you 22 identified earlier are they a part of?23 A. They're a part of the Administration team.24 Q. Okay. And does the Division of Elections have 25 its own communications office? Or when you said

235

1 communications -- does the Division of Elections have 2 its own communications office?3 A. No. We've got one that we share with the rest 4 of the agency.5 Q. So the vendor, Burson-Marsteller, was selected 6 by the Special Projects Team, which is part of Division 7 of Elections, and Communications, which is not; is that 8 correct?9 A. Right. And I mean, I don't know who decided

10 it. I wasn't here. I don't know. I don't know if 11 that's a deputy call. I don't know anything -- I don't 12 know.13 Q. Okay. Is there anything other than the Make 14 Your Mark on Texas plan that the Division of Elections 15 is using to satisfy SB 14's requirement to educate 16 voters about photo ID requirements?17 A. I do not agree with the premise of your 18 question.19 Q. Okay. Which premise do you not agree with?20 A. The premise that Make Your Mark on Texas, as 21 it's currently in place, has anything to do with SB 14.22 Q. Oh, okay. I'm sorry. I understood you to say 23 earlier that the request for proposals and the plan that 24 was selected as part of it was part of the response to 25 -- the Secretary of State's response to the requirement

236

1 in SB 14 that voters be educated about photo ID 2 requirements. Is that not correct?3 A. No, that's absolutely correct.4 Q. And I also understood you to say that Make Your 5 Mark on Texas was the plan that was selected in response 6 to that request for proposal?7 A. No, that is not what I said. What I said is, 8 that's the plan that is in place now.9 Q. Ah. I see. Thank you for clarifying that.

10 So the plan -- let's focus in on the plan 11 to satisfy the voter education requirement of SB 14. Do 12 you know how much that plan will cost to implement?13 A. No.14 Q. Do you know if any amount has been budgeted for 15 that plan?16 A. I don't know specifically the amount. I know 17 generally that we're talking about a 3 million dollar 18 campaign, but that's for the primary and the general 19 election, and the primary has already gone by, so I 20 don't know how much is budgeted for the general 21 election, a piece of the campaign. Obviously, Senate 22 Bill 14 has not been precleared, so we have not begun an 23 education plan with regard to Senate Bill 14.24 Q. So 3 million was budgeted for the general and 25 the primary, but am I correct in assuming that no money






237

1 was spent on voter education relevant to SB 14 for the 2 primary since it was not precleared?3 A. Right. But money was spent on a voter 4 education campaign minus SB 14.5 Q. So the 3 million dollar figure that you just 6 mentioned, is that specific to voter education regarding 7 SB 14?8 A. That was what it was originally intended for, 9 but SB 14 has not been precleared, and we cannot educate

10 the public with regard to its requirements yet.11 Q. So that money is being spent on things that 12 have nothing to do with SB 14?13 A. It's being spent on what it was designed to be 14 spent for, which is a voter education campaign.15 Q. Do you have a figure that is how much money is 16 going be spent on the voter education requirements 17 specific to photo ID that are required by SB 14?18 A. I do not.19 Q. Is it true you that it will be a number less 20 than 3 million?21 A. Well, there is less than 3 million left in the 22 budget for the voter education campaign. As soon as 23 voter ID is precleared, the entire emphasis of the 24 remaining campaign is going to be on photo ID.25 Q. Okay. So you don't know at this point how much

238

1 that's going to be, because it's -- if I understand what 2 you just said correctly, it's just going to be how much 3 is left over after you've spent things on other voter 4 education activities?5 A. It depends upon when voter ID is precleared, 6 that's correct.7 Q. How do you know you'll have enough money left 8 over after you're doing whatever you're doing right now?9 A. I don't know what you mean by enough.

10 Q. Well, it sounds like you don't know how much 11 you're going to have when SB 14 is precleared, if it is 12 precleared, and there are certain -- I mean, SB 14 13 requires that Secretary of State educate voters about 14 the photo ID requirements. What if there is too small 15 an amount? Is that possible? Is there's too small an 16 amount to adequately educate voters about the photo ID 17 requirement?18 A. I don't know. I'm not a communications expert.19 Q. Is Communications solely responsible for 20 implementing the plan to educate voters about photo ID?21 A. I don't know. But when you're talking about 22 communication strategy for communicating with the public 23 and whether or not it's effective, I think you would 24 require somebody besides a lawyer in the Elections 25 Division.

239

1 Q. Of the funds that are going to be used to 2 educate voters about the photo requirement under SB 14, 3 what proportion of those funds will be federal funds?4 A. I don't know. I believe all of them.5 Q. And will those funds be HAVA funds?6 A. Yes, indeed.7 Q. Okay. Has the Secretary of State's Office 8 confirmed with the Election Assistance Commission that 9 HAVA funds can be used to pay for SB 14's voter

10 education plans?11 A. We believe it falls within the grant, yes.12 Q. Does the Election Assistance Commission believe 13 that?14 A. I don't know.15 Q. Have you made any efforts to find out?16 A. I haven't, no.17 Q. Are you aware of anyone in the Secretary of 18 State's Office trying to find that out?19 A. Probably Dan Glotzer.20 Q. Have you ever asked Dan Glotzer if he found 21 that out?22 A. I have not.23 Q. Does the plan to educate voters about the photo 24 ID requirement under SB 14 include efforts that will 25 continue after the 2012 election?

240

1 A. I don't know.2 Q. Have you seen the plan to educate voters about 3 the photo requirement under SB 14?4 A. I don't know. I don't think so.5 Q. Is there a plan to educate voters about the 6 photo ID requirement under SB 14?7 A. Well, I don't know what you mean by a plan. 8 There's a communication strategy that's in place, that 9 time has been purchased. I mean, everything's been

10 reserved, and the plan for communication is in place. 11 The content is subject to change.12 Q. So a communication strategy is in place, and 13 that means that ad time has been bought?14 A. Well, it's been reserved. I said all this in 15 my affidavit to the court about the August 15th date.16 Q. Okay. Let's take a look at that. If I could 17 ask Mr. Gear to -- I believe you've got copies of 18 Mr. Ingram's affidavit there from March 23rd. Well, 19 filed on March 23rd.20 MR. GEAR: I do. I'm going to mark that 21 as Exhibit Number -- I'll mark it as MALC 22 Exhibit 558. Are you doing your separate numbering? 23 MR. SWEETEN: No, that's fine. Thank you.24 (Exhibit 558 marked for identification.)25 Q. (By Mr. Vandewalker) Mr. Ingram, when you get a






241

1 chance to look at it, could you just identify that 2 document for me?3 A. Certainly. I'm looking at MALC Exhibit 558, 4 Affidavit of Keith Ingram, three substantive pages and a 5 signature page.6 Q. And is it the affidavit that you were referred 7 to just now?8 A. It is, and specifically with regard to voter 9 education, it's Paragraph 6 and 7.

10 Q. Right. So Paragraphs 6 and 7 talk about voter 11 education. They mention Burson-Marsteller, whom you 12 have told me has nothing to do with the photo ID voter 13 education under SB 14; is that correct?14 A. That is not what I said, no.15 Q. Okay. What does Burson-Marsteller have to do 16 with the photo ID voter education requirement?17 A. They are the vendor for this campaign, and if 18 voter ID is precleared, they are the ones who will 19 supply the content for the preexisting strategy.20 Q. So their plan is to wait until a preclearance 21 decision has been made, and then at that point, start 22 drafting content; is that correct?23 A. No. I'm sure they've got content, you know, in 24 draft form already. They had to, in order to clear the 25 request for proposal, which required it.

242

1 Q. But you haven't seen that draft content?2 A. I have not.3 Q. So you don't know what it says or even if it 4 exists?5 A. No, I don't. It's Rich Parsons in our office 6 that's in charge of this project.7 Q. So do you know how much ad time has been 8 reserved?9 A. I do not.

10 Q. Does the plan to educate voters about the photo 11 requirement under SB 14 involve any use of the Internet?12 A. Certainly.13 Q. And do you know if any of the specific Internet 14 content has been designed yet?15 A. I don't.16 Q. Do you know if there is a timeline for when it 17 will be designed?18 A. I don't.19 Q. Do you know how that content will be placed and 20 which websites it will go on?21 A. I do not.22 Q. Do you know if any of that content is going to 23 be in Spanish?24 A. I do not. I assume it will be. The first 25 phase has been in Spanish.

243

1 Q. Do you know if any of that content will be 2 designed so that it be understandable to someone who has 3 a lower literacy rate?4 A. I don't know. I assume so.5 Q. Do you know how long it takes to design a web 6 ad and get it put where people's eyeballs can see it?7 A. Not very long. 8 Q. Not very long meaning -- do you have any more 9 specific estimate?

10 A. A day or two.11 Q. A day or two from not having anything to 12 designing web content and putting it up on live 13 websites?14 A. I think that there's a misapprehension that 15 they don't have anything. I think what we've got is 16 ready to go, and all we're going to do is change the 17 words on them.18 Q. Have you seen -- you just said what we've got 19 is ready to go. Have you seen what you've got?20 A. It's been in play. It's been on the web. You 21 might have seen it. It was beautiful.22 Q. I'm asking specifically about voter education 23 with regard to the photo ID requirement in SB 14 which 24 has not been precleared.25 A. Right. That hasn't been on the web, but we've

244

1 got web ads in place that have been in place for the 2 primary. My point is that we're going to just change 3 the content on those ads. It's a question of changing 4 the words, uploading the new content. It's a quick 5 process.6 Q. So when you change the words, will you have -- 7 will you do any testing on whether it's understandable 8 to all voters?9 A. I don't know what they do.

10 Q. So you don't know if the vendor or anybody in 11 the Secretary of State's Office has done a study to 12 determine whether the ad contents that they are coming 13 up with is going to reach all voters?14 A. My point is that you're asking the wrong 15 person. I know that they've done market research. What 16 all the parameters of the market research were, I have 17 no idea. What the results were, I have no idea. It has 18 not been a part of my responsibilities as the Elections 19 Director. It is Communications Director's 20 responsibility. So I am sure that if you wanted details 21 on this, you could talk to Rich Parsons about it, and he 22 would be glad to give them to you. I don't know.23 Q. Okay. And Rich Parsons is the director of 24 Communications for the Secretary of State; is that 25 correct?






245

1 A. He is.2 Q. Okay. And so he's going to come up with the 3 plan that he comes up with, and you're not going to 4 review it at all? Is that what I understand you to 5 stay.6 A. No.7 MR. SWEETEN: Objection, misstates his 8 testimony.9 A. That's not what I said at all.

10 Q. (By Mr. Vandewalker) So what info will you, 11 representing the Division of Elections, have on the 12 public education plan specific to photo ID requirements 13 under SB 14?14 A. Well, at some point, I will review the material 15 and make sure that -- Dan Glotzer and I will review the 16 material and make sure that it falls within the 17 parameters of HAVA.18 Q. And what do you mean by falls within the 19 parameters of HAVA?20 A. That it's allowable to be spent for this 21 purpose.22 Q. For the purpose of educating voters; is that 23 right?24 A. Yes, the education component of HAVA.25 Q. Will you make sure that it will effectively

246

1 reach a wide number of voters in Texas?2 A. No.3 Q. Will you make sure that it will effectively 4 reach Spanish-speaking voters in Texas?5 A. No, sir. That is not my role.6 Q. Will you make sure that it will effectively 7 reach African American voters in Texas?8 A. No, sir. That's not my role.9 Q. You talked earlier about the Administrative

10 Team and some of its responsibilities, and one of the 11 things you mentioned was voter education, so I'm just 12 wondering how it's the case that the Communications 13 Division can have so much control over the voter 14 education plan that the statute gives the Secretary of 15 State the obligation to create. What role exactly does 16 the voter education staff within the Administrative Team 17 have with respect to creating this voter education plan?18 MR. SWEETEN: Objection, 19 argumentative. Objection, assumes facts not in 20 evidence. Go ahead, you can answer.21 A. Well, the Special Projects Staff, which is 22 Lettie and Monica, are involved in interfacing with 23 Burson-Marsteller and Rich Parsons, and I don't know, 24 being part of the process, helping them with graphic 25 design. I mean, Rich is the communications expert for

247

1 the Secretary of State. If you will, if you've got a 2 wiring problem in your house, you don't call a plumber.3 Q. Do those people in the Special Projects Team 4 help with creating the contents for the ads?5 A. I am not sure. They go to a lot of meetings 6 about it, so I don't know. I'm sure there's dialogue 7 and give and take in those meetings. I've never been to 8 one.9 Q. Have you ever directed the Special Projects

10 Team to ensure that the content of the ad reaches 11 Spanish-speaking voters in Texas?12 A. I have not specifically directed them in that 13 regard, no, but they are well aware of that 14 responsibility.15 Q. Have you ever directed them to ensure that the 16 content of the ads reaches African American voters in 17 Texas?18 A. I have not specifically directed them in that 19 regard, but they are well aware of that responsibility.20 Q. How do you know that they're aware of that 21 responsibility?22 A. Because in their presentations to me about the 23 content, those issues have been addressed.24 Q. So they have said that they are trying to reach 25 minority voters with the education plan in their reports

248

1 to you?2 A. That's right, and the specific components of 3 the reports, and that has been -- yes, that's right.4 Q. I'm sorry. I'm not sure if the phone cut off, 5 but it sounded like you were in the middle of a 6 sentence.7 MR. SWEETEN: No, he was finished. I'll 8 let the court reporter read his answer back.9 MR. VANDEWALKER: Thank you.

10 (Requested portion was read back by the 11 court reporter.)12 Q. (By Mr. Vandewalker) Okay. And what are the 13 mechanisms that the Special Projects Team is using to 14 ensure that the voter education plan reaches minority 15 voters?16 A. Well, I don't know all the specifics. I do 17 know that there is a fairly heavy reliance on social 18 media and the market research that's been done indicates 19 that social media is used disproportionately by young 20 Hispanic females, and that that is the attempt to target 21 that demographic with apps and mobile web applications. 22 I don't know what all they are, but that's one that I 23 can recall off the top my head.24 Q. Do you know if the Secretary of State is 25 creating an app to educate voters about the photo ID






249

1 requirement under SB 14?2 A. We have created an app, both for Android and 3 for iPhones, and the content on that app can change to 4 voter ID whenever we get precleared.5 Q. What other ways have the Special Projects Team 6 made efforts to reach minority voters with the voter 7 education plan about photo ID requirements?8 A. I don't know of anything specific that I can 9 recall as we sit here today. There's a strong social

10 media component, and it's multi-layered. I don't know 11 what they all are.12 Q. Would you know if they were doing things other 13 than relying on social media? I mean, you said they 14 give you reports about what they are doing. Are those 15 the kinds of things that are in those reports?16 A. No, they don't give me specific reports about 17 what radio spots they're running where and what TVs 18 they're running where. I mean, I don't know those kind 19 of details. That's not -- would be a Rich question.20 Do you understand what I'm saying? The 21 question about Spanish markets and African American 22 markets and how those are being targeted with specific 23 ads, I would never get in the middle of that level of 24 detail. That would not be productive.25 Q. And have you directed your staff to engage

250

1 those things, even though you're not keeping track of 2 the what they are doing?3 A. As I told you before, I don't have to direct 4 them than that; they are well aware of their obligations 5 in that regard.6 Q. Does the -- or will the education plan to 7 educate voters about photo ID requirements make use of 8 newspapers?9 A. I don't know. Probably, but it would be a

10 small component, I bet.11 Q. Do you know if any newspaper ads have been 12 designed yet?13 A. I do not.14 Q. Does the education plan to educate voters about 15 photo ID under SB 14 make use of television advertising?16 A. Yes.17 Q. Do you know if TV advertisements have been 18 designed or produced yet?19 A. I do not know the status of those. I 20 anticipate that they are in some level of production, 21 because the goal is to have a plan in place ready to go 22 by August the 15th or August 31st, in case this gets 23 precleared, so I don't know how long the front end is on 24 that, but they'll be ready.25 Q. So you expect that those will be ready by

251

1 August 15th, but you don't actually know what their 2 progress is?3 A. That's right.4 Q. And do you know if any of those TV ads are 5 going to be in Spanish?6 A. I don't know. I know in the first round, they 7 were.8 Q. Do you know if the plan will make use of radio 9 ads?

10 A. I assume that it will. The first phase did.11 Q. And do you know if any of those will be in 12 Spanish?13 A. I imagine they will be, yes.14 Q. Okay. If we could go back your affidavit, 15 which has been marked as MALC Exhibit 558.16 A. Yes, I have it.17 Q. If I could just direct you to Paragraph 7. You 18 say there that, "In order to have a basic education 19 program, the Secretary of State's Office would need a 20 final decision by August 15th," and then you contrast 21 that with a complete program, which would need a 22 decision by no later than July 6th. I wonder if you 23 could tell me: What's the difference between a basic 24 program and a complete program?25 A. I cannot. That would be a Rich Parsons

252

1 question.2 Q. Could you turn to the next page and tell me: 3 Did you sign this affidavit?4 A. I did.5 Q. And so when you signed this affidavit, did you 6 understand what Paragraph 7 meant?7 A. I understand that it's what Rich told me.8 Q. Now, you also state here that -- I'm sorry. As 9 I said before, you say that you would need a final

10 decision by August 15th in order to have even the basic 11 education program. If I were to represent to you that 12 the court has predicted that it won't make a decision 13 until August 31st, does that mean the Secretary of State 14 will not be able to have even a basic education program?15 A. It means that we're going to get it done.16 Q. Will the program be less well developed than 17 whatever this basic education program that's 18 contemplated in your affidavit is?19 A. I'm sure it will be the same as the August 20 15th, just with less time to have an impact.21 Q. So what is does it mean that it will have less 22 time to have an impact?23 A. It will be 16 more days down the road toward 24 election.25 Q. Will it reach fewer voters?






253

1 A. I don't know. I assume so. But that's, again, 2 a Rich question.3 Q. Who bears the primary responsibility for 4 informing election workers or poll workers about changes 5 to state election law, like the new photo ID 6 requirements in SB 14?7 A. The Secretary of State's Elections Division. 8 Q. And what's the Election Division's plan for 9 training poll workers on the voter ID requirements of

10 SB 14?11 A. Well, we've got several things that we're 12 planning to do. We've got forms that we've prepared 13 that we submitted for preclearance. We've got a manual 14 that we have begun to draft, that we've also submitted 15 for preclearance, that's going require a little 16 modification, and we've got a video that we have used in 17 the past for educating poll workers, and we're going to 18 add PowerPoint content to that video in time for an 19 August 15th roll-out.20 Q. And how do poll workers see that content? Do 21 you send it to the county supervisors and they give it 22 to the actual workers, or how does that work?23 A. That's generally the way it works. The 24 election administrators or county clerks, whoever is in 25 charge of the elections at the local level, is

254

1 responsible for making sure their poll workers go 2 through training before they work.3 Q. Now, you said an August 15th roll-out. If 4 there isn't a decision on preclearance of SB 14, how 5 will that change your plan?6 A. It will not. It will just mean that it rolls 7 out August 31st.8 Q. And is it -- so that's the kind of thing that 9 you are able to change to conform to SB 14 and roll out

10 with a day's notice?11 A. Certainly not. These are changes that are 12 being worked on right now.13 Q. So the training materials, if I understand you 14 correctly, are not completed now but are in the process 15 of being completed?16 A. That is correct.17 Q. Have you seen those training materials?18 A. I have seen the manual, the draft that's in 19 front of the DOJ right now. I had input into the 20 drafting. I have not seen any of the PowerPoint 21 presentations' splices into the video yet. I've talked 22 to Lettie about some of the content that we're going to 23 need to put in that. She's got a copy of the manual so 24 she can transfer content from the manual to those 25 slides. But she has been otherwise engaged with the

255

1 election night returns process for these two last 2 elections, or this last election that we've had. So she 3 now has breathing space within which to do this work.4 Q. And how do you think getting those training 5 materials out, you know, the difference between August 6 15th and August 31st, two weeks or a little more, how 7 will that two weeks make a difference in election worker 8 training?9 A. It won't make a difference directly in election

10 worker training. It will make a difference in educating 11 the county employees.12 We've got a seminar where county employees 13 are going -- election workers, tax assessors, collectors 14 voter registrars, are going to be in town August the 15 20th and the few days thereafter, and it would be ideal 16 to roll this out with them at that time, while we've got 17 7- or 800 of them present, that would be great if we 18 could do that, and that way, they would have personal 19 interaction with us before they start training their 20 poll workers. Unfortunately, if it's August 31st, we're 21 not going to have the opportunity to demonstrate this to 22 those county officials.23 Q. So then how will you inform county officials 24 about the photo ID requirement?25 A. Well, the way we generally communicate with

256

1 county officials is by e-mail.2 Q. So you'll just send out an e-mail sometime 3 after the preclearance decision saying what to do about 4 photo ID; is that correct?5 A. That's right, and where the training materials 6 are located on our website, and, you know, that we have 7 copies available, if they need them, in CD form or DVD 8 form. I mean, we'll run the full gamut of communication 9 at that point, but it will start with an e-mail that

10 says, we've been precleared and we got training 11 materials, here they are.12 Q. Will the training materials include samples of 13 the acceptable forms of ID under SB 14?14 A. That's the modification that I want to make, so 15 it will have representative samples. I'm intending for 16 it to have that, yes.17 Q. Will it include a sample of a voter 18 registration certification showing that the voter is 19 disabled?20 A. I don't know if we'll have a mock-up of that at 21 the time. I don't know that form exists yet. That's -- 22 I don't know.23 Q. And how do you plan to determine whether 24 election workers understand the requirements of SB 14 to 25 show photo ID?






257

1 A. There's very little I can do to make sure that 2 somebody understands it. I learned a long time ago that 3 I only have control over what I say. I don't have 4 control over what people hear.5 Q. And you mentioned a statewide training for -- 6 well, a training for the county officials that will be 7 held when they're in town on August 20th. How much of 8 that training will be devoted to ensuring equal 9 application of the election laws?

10 A. I don't know. We're formulating the outlines 11 for that seminar right now.12 Q. Do you know how much of the training will be 13 devoted to the provisional ballot procedure for voters 14 who don't have an acceptable form of ID under SB 14?15 A. Well, at this point, none.16 Q. If SB 14 is precleared before that training, 17 and it's a big if, I recognize, do you have a plan for 18 how much of the training would be devoted to provisional 19 ballot procedure?20 A. If voter ID was precleared, we would modify the 21 entire program on the fly to exclusively concentrate on 22 SB 14. Do you understand? It's the most important 23 thing to do at that point.24 Q. How will election workers be trained to 25 determine when a voter's name on a ID document is

258

1 substantially similar to the name on the list of 2 registered voters? 3 MR. SWEETEN: Are you assuming SB 14 is 4 cleared, or are we assuming, are we in the nonprecleared 5 world? If you could just let us know.6 MR. VANDEWALKER: Thank you.7 Q. (By Mr. Vandewalker) I'm saying if SB 14 is 8 precleared, how will poll workers be trained to 9 determine whether a voter's name on the ID document is

10 substantially similar to the voter registration rolls? 11 A. We've got that in our book that is currently in 12 draft form, and we also are going to put it in slide 13 presentation.14 Q. And could you indulge me for moment and pretend 15 that I'm election worker and explain it to me?16 A. What do you mean? 17 MR. SWEETEN: Objection to the form of the 18 question. 19 Q. (By Mr. Vandewalker) If you were to say what 20 you were going to say to an election worker that you 21 were training on what "substantially similar" means, 22 what would you say?23 A. Well, I show them a copy of our rule, 81.71, 24 and I believe that Subsection B of that rule has four 25 categories of substantially similar names. I don't know

259

1 if I know all of them as we sit here this afternoon, but 2 I know that one of them has to do with, you know, a 3 middle name, last name versus a first name, middle name, 4 last name. Those are going to be substantially 5 similar. I know that if one of the forms of ID or the 6 voter registration roll has a commonly-accepted 7 abbreviation of a name, like Bob for Robert, Jim for 8 James, you know, then that will be a substantially 9 similar name. If one of them has a middle initial and

10 the other one doesn't have an middle initial, that will 11 be a substantially similar name. But it's all in Rule 12 81.71, and it's posted on our website.13 Q. And just focusing on the --14 A. And you understand -- you understand that if 15 someone is determined to have a substantially similar 16 name, they don't vote provisionally. Do you understand 17 that?18 Q. Yes.19 A. Okay.20 Q. Focusing on the variation of names, Bob for 21 Robert, is there any way -- is there any provision in 22 this plan to train election workers to know the common 23 variation of names?24 A. I don't know, other than by giving a few 25 examples and trusting common sense.

260

1 Q. How many of the examples are Hispanic names?2 A. I know in our rule we've got Beto and Alberto.3 Q. One of the -- and I'm sorry I don't have a 4 document to put in front of you, but if I could just 5 represent to you that one of the provisions in your rule 6 asks election workers to determine whether the name on 7 the presented ID document is slightly different from one 8 of the names on the registered voter lists, how do you 9 tell people what slightly different means?

10 A. That's up to their judgment. It's the same 11 judgment they make now.12 Q. So you don't have any way of ensuring that 13 different election workers interpret that uniformly?14 A. I don't think there is any way to interpret 15 that uniformly. Slightly different is going be in the 16 eye of the beholder. The beautiful thing with SB 14 is, 17 that if the election worker believes that it is not 18 slightly different, that it is not substantially 19 similar, and they make the voter vote provisionally, the 20 voter will have six days to come talk to the elections 21 administrator's staff and present either another form of 22 ID or have a second crack at the slightly different 23 question.24 Q. Had your office ever received complaints about 25 election workers that have harassed or intimidated






261

1 voters?2 A. Yes.3 Q. When?4 A. I don't know for sure, but I would imagine just 5 about every election.6 Q. Do you know of any examples?7 A. Well, this exhibit that we just had from the 8 May 9th general election, the very first one, "Worker 9 was rude and blamed the voter."

10 Q. And can you think of any other examples?11 A. You know, you get some of that, you know, the 12 two elections that I've sat in the room listening to 13 them answer the phone calls, as far as I can tell, both 14 elections had some amount of that.15 Q. Okay. But I'm just asking if you happen to 16 remember the specific facts of any cases that you can 17 tell me now. 18 A. The second one on the list on Exhibit 557, 19 "Police chief's brother was driving down a," quote, 20 "Hispanic," close quote, "part of town in a police car 21 with a large dog in back of car on election day. 22 Council members alleges that this activity prevented 23 Hispanic turnout, with only five Hispanic voters 24 voting."25 I got a complaint -- I got a complaint --

262

1 oh, stink, I don't remember when -- that it was -- it 2 was -- let me think. The complaint was that somebody's 3 dog assistant -- assistant -- you know, they were 4 disabled visually and they had a dog helping them, that 5 that, the presence of that dog scared a voter off.6 Q. Okay. But that's not an example of an election 7 worker intimidating or harassing.8 A. Right. But the allegation was that the 9 election worker should have kept the dog outside the

10 polling place so that other voters could vote.11 Q. I see. What does your office do when you get 12 allegations of poll workers intimidating voters? 13 MR. SWEETEN: Objection, compound. Go 14 ahead. You can give a general. 15 A. So we call the county elections administrator 16 and let him know about the complaint and what precinct 17 it was and the nature of the complaint, and then we -- 18 if we can, if we've got a number, follow up with the 19 voter and say that we have told the person who is in 20 charge of that worker.21 MR. GEAR: Would you mind if we take a 22 very quick break? 23 MR. VANDEWALKER: Yes. That's fine with 24 me.25 MR. GEAR: Okay. And actually, I have a

263

1 question that we can do on or off the record.2 I've found an additional document, and I 3 just want to follow up. I believe he's been testifying 4 to it all day. 5 MR. SWEETEN: Are we talking about the 6 spreadsheet? 7 MR. GEAR: We're talking about the 8 spreadsheet. I believe this is the spreadsheet. Would 9 you mind if I put it on the record?

10 MR. SWEETEN: That's fine. How much time 11 do we have? And I'll work with you on that.12 MR. GEAR: Okay.13 (Recess from 5:06 p.m. to 5:08 p.m.)14 (Exhibit 559 marked for identification.)15 FURTHER EXAMINATION16 BY MR. GEAR:17 Q. We've discussed off the record, and Patrick has 18 indulged me to allow to introduce an additional exhibit, 19 and so I've showed you what's been marked as Exhibit 559 20 and I'd just ask you to identify that for the record. 21 A. This appears to be the data from the 22 spreadsheet that I've been talking about today.23 Q. Okay. And the data that you've been talking 24 about, the spreadsheet pertained to voter fraud, 25 correct?

264

1 A. Yes, complaints of voter fraud.2 Q. Okay. And I asked you two questions as a 3 follow-up, one was: Did the spreadsheet that you 4 produced identify noncitizens' voting?5 A. Well, I don't think that that's one of the 6 allegations on here.7 Q. So the answer would be no?8 A. No. You know, I don't know what illegal voting 9 is in the first one. Votes being cast illegally in the

10 second one, I don't know. And, obviously, we don't 11 investigate these ourselves, so we don't -- you know, 12 what we have is an allegation.13 Q. And so you don't know the -- whether or not 14 these were investigated or the outcome of these?15 A. Do not. I know that this one is illegal voting 16 and voter impersonation. This one is illegal voting and 17 voter impersonation. So illegal voting, to me, could 18 mean any number of things.19 Q. Okay.20 A. Including -- including noncitizen voting.21 Q. But you don't know as you sit here today?22 A. Do not.23 Q. And I note that in 2009 -- or 2008, there's an 24 allegation of voter impersonation; is that accurate?25 A. That is correct.






265

1 Q. And that's the -- you were referring to Moreno?2 A. No, I was referring to Medrano.3 Q. Medrano, okay. So this -- this would be a 4 different allegation?5 A. Yes.6 Q. And you don't know the outcome of it -- of it 7 as you sit here today?8 A. I do not.9 Q. And I also note in 2009, there is an allegation

10 of voter impersonation. Do you see that?11 A. I do.12 Q. And as you sit here today, do you know the 13 outcome of that allegation?14 A. I do not.15 Q. And from my brief review of Exhibit 559, I 16 don't see that there are any other allegations, specific 17 allegations of voter impersonation?18 A. The other one, the Medrano case, is the bottom 19 one on Page 2, and it doesn't specifically say voter 20 impersonation in that summary.21 Q. And as we sit here today, do you know the 22 outcome of that specific allegation?23 A. That we've got one conviction and another trial 24 pending is, I think, the current status.25 Q. And it's a conviction of -- do you know what

266

1 the conviction is of? And I believe you testified to 2 that before. 3 A. I don't know the specifics of the conviction, 4 but I don't think it was voter impersonation.5 Q. Okay.6 MR. GEAR: I have no further questions, 7 and thank you, Patrick.8 MR. SWEETEN: Sure.9 Mr. Vandewalker, you can proceed.

10 MR. VANDEWALKER: Thank you.11 FURTHER EXAMINATION12 BY MR. VANDEWALKER:13 Q. I just want to -- we were talking about cases 14 where election workers have harassed or intimidated 15 voters. What does the Division of Elections do to 16 prevent that from occurring in the future?17 A. Well, I don't know. We talk to the election 18 administrators and the county officials to make sure 19 that if they've had a problem with an election worker, 20 that that election worker doesn't get hired again.21 Q. I see. And you've mentioned a few times the 22 ability to cast a provisional ballot under SB 14. If 23 SB 14 is implemented, will poll workers be given a 24 script showing them how to inform voters of the right to 25 cast a provisional ballot where they don't have

267

1 acceptable ID?2 A. We've got a form, that will go with the 3 provisional ballot, that talks about what they can do to 4 correct their problem, and the counties are supposed to 5 attach a map to that form. That form was submitted to 6 DOJ Friday.7 Q. And how do you ensure that the election workers 8 comply with that procedure?9 A. Well, you know, the Secretary of State's Office

10 don't have any enforcement power.11 Q. Does the Secretary of State's Office have a 12 plan to ensure adequate staffing in the six days 13 following election day to allow voters who voted 14 provisional ballots to return with ID?15 A. That would be up to the counties to make sure 16 that their staffing patterns are in place for that.17 Q. So the Secretary of State won't engage in any 18 oversight of the counties on that issue?19 A. We can educate and we can suggest. That's what 20 we do.21 Q. Will the Secretary of State have a procedure 22 for answering questions from election workers during 23 early voting?24 A. Yes.25 Q. And what is that procedure?

268

1 A. We answer the phones.2 Q. So do you have to hire extra workers to have 3 enough people there to answer the phones?4 A. So far, in the two elections that I've been a 5 part of, we have not. I anticipate that prior to this 6 general election, there will be increased volume, and we 7 have pulled in workers temporarily from other divisions 8 in the Secretary of State's Office. And so, you know, 9 that's a plan that's been used in the past, and I think

10 it would be easy to do again if necessary.11 Q. And the same is true for election day voting, 12 or is there a different plan?13 A. No, that would be the same.14 Q. One of the forms of ID that you've mentioned as 15 being acceptable under SB 14 is the Election 16 Identification Certificate, or EIC. Do you know why DPS 17 requires an application for an EIC to include the 18 applicant's fingerprints?19 A. I do not.20 Q. Have voters previously been required to submit 21 their fingerprints in order to identify themselves?22 A. I don't know.23 Q. Do all of the other forms of ID that are 24 acceptable under SB 14 require applicants to submit 25 their fingerprints?






269

1 A. I don't know.2 Q. Do you see any problems with demanding that 3 voters submit their fingerprints in order to vote?4 A. I don't have an opinion on that one way or the 5 other. It's not the Secretary of State.6 Q. Are you aware of anybody at the Secretary of 7 State or DPS conducting a study regarding whether 8 requiring fingerprints would discourage certain 9 populations from getting an EIC?

10 A. I'm not aware of any such study.11 Q. Has your office ever conducted one?12 A. I don't believe we have conducted such a study, 13 no.14 Q. What proportion of elderly voters -- and by 15 that I mean voters over 65 years old -- typically vote 16 by mail in Texas?17 A. I do not know.18 Q. Do you think it's more than half?19 A. I do not know. We have never had complete 20 voter history statistics until this primary election.21 Q. And do you have records of the ages of absentee 22 voters from this last election?23 A. I don't know if we'll have that data or not. 24 That's a good question. It probably --25 Q. Okay.

270

1 A. I don't know.2 Q. And when a voter does vote by mail and they 3 send in their ballot, how does the state verify the 4 identify of that voter?5 A. There's a signature board that compares the 6 signatures and rules.7 Q. All right. So if I understand you correctly, 8 essentially the way that the ballot is identified is by 9 looking at the signature on the ballot and the signature

10 on the voter registration roll and seeing if they are 11 the same signature?12 A. No, the signature on the cover envelope.13 Q. Oh, the signature on the cover envelope.14 A. Carrier envelope.15 Q. Which is sent in by the voter with their 16 ballot?17 A. That's right.18 Q. Right. And the two signatures are matched. 19 That's what I'm getting at. That's the essential 20 verification of the identity. 21 A. Right. And if an absentee ballot application 22 person, a person that applies for an absentee ballot by 23 mail, if they are flagged in our system as a first time 24 ID voter, they will also have to submit with their 25 ballot a copy of one of the acceptable forms of

271

1 identification.2 Q. Okay. Has your office ever received any 3 complaints or reports about voter registration cards 4 being stolen?5 A. I got a call like that primary election day.6 Q. So one that you can think of? Can you think of 7 any others?8 A. One that I know of.9 Q. One that you know of, right. Are you aware of

10 any others?11 A. I'm not.12 Q. Has your office ever received any complaints or 13 reports about voter registration cards being forged?14 A. Not that I'm aware of. You're talking about 15 somebody forging an actual yellow card to dummy it up to 16 look like a voter registration card? 17 Q. Right, either, you know, making one homemade or 18 altering one so that it shows a different name or 19 anything like that?20 A. I'm not aware of anything like that. It 21 conceivably could have happened, but I don't know.22 Q. Okay. Okay. If I could just return for a 23 minute to the public education plan that we were talking 24 about earlier. You have mentioned several times that 25 there are, sort of, is a plan in place, and then if

272

1 SB 14 is precleared, you could change the content of 2 that plan to cover photo ID requirements. Is that 3 accurate?4 A. Right.5 Q. So if SB 14 is precleared, those messages about 6 photo ID requirements will just go to the same audience 7 that the voter education plan is currently going to; is 8 that right?9 A. Right.

10 Q. So there won't any effort to reach out 11 specifically to populations that might be less likely to 12 have IDs; is that correct?13 A. The plan that we have in place is designed to 14 reach people who are less involved the process, period. 15 And so I think theres significant overlap between them 16 and the ones who don't have ID.17 Q. Has the Secretary of State done an analysis to 18 determine what populations are less likely to have ID?19 A. No. I mean, other than what we've submitted to 20 the DOJ. I don't know what market Burson-Marsteller has 21 done, but it is.22 Q. And if SB 14 is precleared, will the voter 23 education plan include efforts to inform voters who 24 might not have ID about how to get ID?25 A. I believe so, yes.






273

1 Q. So in addition to saying you need ID before you 2 come vote, it will also say, here's the steps of how to 3 get an acceptable form of ID?4 A. I don't know how detailed that will be. I 5 think generally informing voters of the forms of ID that 6 are acceptable is the main thing. Secondarily would be, 7 I guess, the agency through which they can go to get 8 one.9 Q. Okay. So you mentioned that the currently-

10 existing plan is -- attempts to reach out to communities 11 less likely to participate in the process. How does it 12 do that?13 A. I don't know. I don't know the specifics of 14 that. 15 Q. Well, what communities would you say are less 16 likely to participate in the process? 17 MR. SWEETEN: Objection, calls for 18 speculation. Go ahead. 19 A. I don't know. I'm not market researcher.20 Q. (By MR. VANDEWALKER) Well, you used the term, 21 so I'm just -- what do you mean by communities less 22 likely to participate in the process?23 A. I mean what I said. The goal of the voter 24 education campaign that we have in place now is to make 25 voters comfortable with the process of registering to

274

1 vote and voting. That's the whole point of Make Your 2 Mark on Texas. And to the extent that there are people 3 out there who are not comfortable with the process of 4 registering to vote and voting, this campaign is 5 designed to educate them, to give them a level of 6 comfort that they do not currently possess.7 Q. But you're not aware of how those people are 8 being identified?9 A. That is not my role.

10 Q. Does the Elections Division examine the voter 11 education plans in other states with photo ID laws?12 A. I don't know.13 Q. Are you aware of what voter education plans 14 look like in other states where they have photo ID laws?15 A. I do not.16 MR. VANDEWALKER: All right. Defendant 17 intervenors have no further questions.18 MR. SWEETEN: Okay. I got a few questions 19 for Mr. Ingram. Very few. Three or four.20 EXAMINATION21 BY MR. SWEETEN:22 Q. Mr. Ingram, did you at any time vote in any way 23 on Senate Bill 14?24 A. I did not.25 Q. Did you have any role whatsoever in the passage

275

1 of Senate Bill 14?2 A. I did not. 3 Q. Did you craft the language of Senate Bill 14?4 A. No.5 MR. SWEETEN: No further questions. 6 Signature, just send it to me.7 MR. GEAR: Oh, I made a promise, and I'm 8 going to keep it.9 MR. SWEETEN: Okay.

10 MR. GEAR: I withdraw my request for the 11 spreadsheet, because it's been produced and it's now an 12 exhibit.13 MR. SWEETEN: Thank you very much, 14 Mr. Gear.15 (Signature reserved.)16 (Deposition concluded at 5:25 p.m.)17 18

19

20

21

22

23

24

25

276

1 CHANGES AND SIGNATURE

2 RE: TEXAS VS. HOLDER, ET AL

3 PAGE LINE CHANGE REASON

4 ________________________________________________________

5 ________________________________________________________

6 ________________________________________________________

7 ________________________________________________________

8 ________________________________________________________

9 ________________________________________________________

10 ________________________________________________________

11 ________________________________________________________

12 ________________________________________________________

13 ________________________________________________________

14 ________________________________________________________

15 ________________________________________________________

16 ________________________________________________________

17 ________________________________________________________

18 ________________________________________________________

19 ________________________________________________________

20 I, BRIAN KEITH INGRAM, have read the foregoing

21 deposition and hereby affix my signature that same is

22 true and correct, except as noted above.

23

24 __________________

25 BRIAN KEITH INGRAM






277

1 THE STATE OF _________________)2 COUNTY OF_____________________)3 4 Before me,_______________________, on this day 5 personally appeared BRIAN KEITH INGRAM, known to me (or 6 proved to me under oath or through____________________ 7 (description of identity card or other document) to be 8 the person whose name is subscribed to the foregoing 9 instrument and acknowledged to me that they executed the

10 same for the purposes and consideration therein 11 expressed.12 Given under my hand and seal of office 13 this_________day of ______________, 2012.14 15 16 ________________________

NOTARY PUBLIC IN AND FOR17 THE STATE OF __________18 19 20 21

22

23

24

25

2781 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA2

STATE OF TEXAS, )3 )

Plaintiff, )4 )

VS. ) 5 )

ERIC H. HOLDER, JR. in his )6 official capacity as Attorney )

General of the United States, )7 )

Defendant, )8 )

ERIC KENNIE, et al, )9 )

Defendant-Intervenors, )10 )

TEXAS STATE CONFERENCE OF ) CASE NO. 1:12-CV-0012811 NAACP BRANCHES, ) (RMC-DST-RLW)

) Three-Judge Court12 Defendant-Intervenors, )

)13 TEXAS LEAGUE OF YOUNG VOTERS )

EDUCATION FUND, et al, )14 )

Defendant-Intervenors, )15 )

TEXAS LEGISLATIVE BLACK )16 CAUCUS, et al, )

)17 Defendant-Intervenors, )

)18 VICTORIA RODRIGUEZ, et al., )

)19 Defendant-Intervenors. )20 REPORTER'S CERTIFICATION

DEPOSITION OF BRIAN KEITH INGRAM21 JUNE 5, 201222 I, Chris Carpenter, Certified Shorthand Reporter in 23 and for the State of Texas, hereby certify to the 24 following:25 That the witness, BRIAN KEITH INGRAM, was duly sworn

279

1 by the officer and that the transcript of the oral 2 deposition is a true record of the testimony given by 3 the witness; 4 That the deposition transcript was submitted on the 5 _______day of _________, 2012, to the witness or to the 6 attorney for the witness for examination, signature and 7 return to__________________________________________, by 8 ___________________, 2012; and if returned, the original 9 transcript will forwarded to Bruce Gear, the custodial

10 attorney;11 That the amount of time used by each party at the 12 deposition is as follows:13 Mr. Gear: 5 hours, 29 minutes

Mr. Vandewalker: 1 hour, 6 minutes 14 Mr. Sweeten: 1 minute15 I further certify that I am neither counsel for, 16 related to, nor employed by any of the parties or 17 attorneys in the action in which this proceeding was 18 taken, and further that I am not financially or 19 otherwise interested in the outcome of the action.20 Certified to by me this 6th day of June, 2012.21 22 _______________________________

Chris Carpenter, Texas CSR 115123 Expiration Date: 12/31/2012

100 Congress Avenue, Suite 200024 Austin, TX 78701

(512)328-555725 Firm Registration No. 283






STATE OF TEXAS,


Defendant.




Exhibit B Deposition of Ann McGeehan


Ann McGeehan May 31, 2012

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, ) ) Plaintiff, ) ) VS. ) ) ERIC H. HOLDER, JR. in his ) official capacity as Attorney ) General of the United States, ) ) Defendant, ) ) ERIC KENNIE, et al, ) ) Defendant-Intervenors, ) ) TEXAS STATE CONFERENCE OF ) CASE NO. 1:12-CV-00128 NAACP BRANCHES, ) (RMC-DST-RLW) ) Three-Judge Court Defendant-Intervenors, ) ) TEXAS LEAGUE OF YOUNG VOTERS ) EDUCATION FUND, et al, ) ) Defendant-Intervenors, ) ) TEXAS LEGISLATIVE BLACK ) CAUCUS, et al, ) ) Defendant-Intervenors, ) ) VICTORIA RODRIGUEZ, et al., ) ) Defendant-Intervenors. ) ********************************************** ORAL DEPOSITION OF ANN McGEEHAN MAY 31, 2012 **********************************************

2

1 ORAL DEPOSITION OF ANN McGEEHAN, produced as a 2 witness at the instance of the Defendant, was duly 3 sworn, was taken in the above-styled and numbered cause 4 on the MAY 31, 2012, from 9:45 a.m. to 6:50 p.m., before 5 Chris Carpenter, CSR, in and for the State of Texas, 6 reported by machine shorthand, at the offices of 7 DECHERT, LLP, 300 W. 6th Street, Suite 2010, Austin, 8 Texas 78701, pursuant to the Federal Rules of Civil 9 Procedure and the provisions stated on the record or

10 attached hereto.11 12

13

14

15

16

17

18

19

20

21

22

23

24

25

3

1 2 3 A P P E A R A N C E S4 FOR THE PLAINTIFF, STATE OF TEXAS: 5 Adam Mortara

BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP6 Courthouse Place

54 West Hubbard Street, Suite 3007 Chicago, IL 60654

(312) 494-44698 [email protected] Jay Dyre

ATTORNEY GENERAL OF THE STATE OF TEXAS 10 209 West 14th Street

8th Floor11 Austin, TX 78701

(512) 936-130712 anne.wilsontexasattorneygeneral.gov 13

FOR THE DEFENDANT, HOLDER, ET AL: 14

Elizabeth S. Westfall15 Daniel Freeman

Maria Rios16 U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, NW17 NWB - Room 7202

Washington, DC 2053018 (202) 305-7766

[email protected]

FOR THE DEFENDANT-INTERVENOR TEXAS STATE CONFERENCE OF 20 NAACP BRANCHES AND THE MEXICAN AMERICAN LEGISLATIVE

CAUCUS:21

Ezra D. Rosenberg22 DECHERT, LLP

Suite 50023 902 Carnegie Center

Princeton, NJ 08540-653124 (609) 955-3200

[email protected] 25

4

1 FOR THE MALDEF INTERVENORS:2 Nina Perales

Janine Lopez3 Luis Figueroa

MALDEF4 110 Broadway Street, Suite 300

San Antonio, TX 782055 (210) 224-5476

[email protected]

FOR THE TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND 7 INTERVENORS:8 Adam M. Harris

Brian Chen (law clerk)9 FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP

One New York Plaza10 New York, New York 10004

(212) 859-895311 [email protected] Also present:13 Juan Carlos Ibarra, The Advancment Project141516171819202122232425


Suite 2203101 Bee Caves Road

Austin, TX 78746www.esquiresolutions.com



5

1 Appearances........................................32 ANN McGEEHAN3 Examination by Ms. Westfall.................7

Examination by Ms. Perales................2114

Signature and Changes............................2975

Reporter's Certificate...........................2996

U.S. EXHIBITS7

NO. DESCRIPTION PAGE MARKED8

280 Revised Privilege Log, May 11, 2012 349

281 Supplemented Privilege Log, May 21, 2012 3810

282 Amended Notice of Deposition 6211

283 House Committee on Elections Subcommittee 8812 on Verification Voters, March 17, 200513 284 Excerpt of Transcript of Senate Committee 116

on State Affairs, April 30, 2007 (House14 Bill 218 Public Hearing)15 285 Texas Legislature Online History, SB 362 13416 286 Houston Chronicle Article: Voter ID Fight 145

Appears Certain In Texas17

287 Transcript Excerpt of Senate Committee of 16418 the Whole, Jan. 25, 201119 288 Excerpt of Transcript of Select Committee 184

on Voter Identification, March 1, 201120

INTERVENOR RODRIGUEZ EXHIBITS21

R-1 Election Line Weekly Article, Dec 15, 2011 21222

R-2 Transcript Excerpt of Committee on 22823 Elections Meeting, 6/14/1024 R-3 SOS Andrade Memo, March 6, 2009 24725 R-4 SOS Andrade Letter, July 25, 2011 252

6

1 R-5 Senator Ellis Letter, Oct. 27, 2011 2592 R-6 Senate Journal, March 18, 2009 2643 R-7 E-Mail Chain, Sept. 15, 2011 2664 R-8 McGeehan Letter, Sept. 7, 2011 2685 R-9 McGeehan Letter, Oct. 4, 2011 2726 R-10 McGeehan Letter, Oct. 27, 2011 2747 R-11 SOS Letter, Jan. 6, 2012 2798 R-12 SOS Letter, Jan. 12, 2012 2799 R-13 HAVA Request For Proposal Number 12111 288

10 R-14 Eligibility for Election Identification 291 Certificate

11 12

13

14

15

16

17

18

19

20

21

22

23

24

25

7

1 ANN McGEEHAN, 2 having been first duly sworn to testify the truth, the 3 whole truth, and nothing but the truth, testified as 4 follows:5 EXAMINATION6 BY MS. WESTFALL:7 Q. Good morning, Ms. McGeehan. How are you?8 A. Good.9 Q. Could you state and spell your name for the

10 record, please? 11 A. Ann McGeehan, A-n-n, M-c-G-e-e-h-a-n.12 Q. Thank you. My name is Elizabeth Westfall. I 13 represent the Attorney General in this action.14 I'm going to allow others around the table 15 to introduce themselves. 16 MR. FREEMAN: Dan Freeman on behalf of the 17 Attorney General.18 MS. RIOS: Maria H. Rios on behalf of the 19 Attorney General. 20 MS. PERALES: Nina Perales with MALDEF. 21 MS. LOPEZ: Janine Lopez with MALDEF.22 MR. FIGUEROA: Luis Figueroa with MALDEF.23 MR. HARRIS: I'm Adam Harris with Fried, 24 Frank, Harris, Shiver & Jacobson, LLP, on behalf of 25 Defendant Intervenor Texas League of Young Voter

8

1 Education Fund, and with me is law clerk Brian Chen.2 MR. IBARRA: Juan Carlos Ibarra with the 3 Advancement Project. 4 MR. DYER: I'm Jay Dyer with the State of 5 Texas. 6 MR. MORTARA: Adam Mortara for the State 7 of Texas and the witness.8 Q. (By Ms. Westfall) Ms. McGeehan, have you had 9 your deposition taken before?

10 A. Yes.11 Q. So I'm going to go through some ground rules 12 just in case you have forgotten the grounds rules for 13 having your deposition taken. 14 A. Okay.15 Q. You're here to testify today truthfully, 16 accurately, and completely. The court reporter will 17 prepare a transcript of everything that is said today, 18 so you must listen for me to ask my question and wait 19 for me to ask my question before you give your answer. 20 Okay?21 A. Uh-huh.22 Q. And because there is a transcription of this 23 deposition, please don't say "uh-huh," "nuh-uh" or shake 24 your head. 25 A. Yes.






9

1 Q. Otherwise, it will be difficult to read it on 2 the transcript. Okay?3 A. Yes.4 Q. I will try to ask you clear questions, but if 5 you don't understand a question that I ask, please ask 6 me for an explanation. Okay?7 A. Uh-huh, yes.8 Q. If you wish to stop and take a break, that's 9 fine, but if I have a question pending, I'd ask that you

10 go ahead and answer it first before you take a break. 11 All right?12 A. Okay.13 Q. You understand that you're oath, and you may be 14 subject to penalty of perjury for giving false or 15 misleading testimony today?16 A. Yes.17 Q. And do you understand these instructions? 18 A. Yes.19 Q. Are you on any medication today that would 20 affect your ability to testify truthfully?21 A. No.22 Q. Is there any reason why you can't testify 23 truthfully and accurately today?24 A. No.25 Q. During this deposition, I may use the terms

10

1 voter ID and photo ID interchangeably. I want you to 2 interpret them broadly to mean a requirement that a 3 voter present a form of identification, whether it has a 4 photo on them or otherwise, when voting in person before 5 being able to vote by regular ballot. Is that okay?6 A. Well, that may be confusing, as far as current 7 law, as far as what identification. When you use that 8 term, are you talking about what's required under the SB 9 14 or what was required before?

10 Q. I will try to be as precise as possible, but I 11 may say photo ID when, in fact, it's a voter ID that is 12 not necessarily requiring photo form of identification. 13 I will try to be precise, and if you're confused about 14 my question, please ask me, and I'll clarify.15 A. Okay.16 Q. But I may use the terms interchangeably, and I 17 just want you to interpret them broadly, okay?18 A. Okay.19 Q. Great. When I refer to the Division, I will be 20 referring to the Election Division of the Secretary of 21 State for Texas, okay? 22 A. Okay.23 Q. And if I refer to the Secretary of State, I 24 mean the Secretary of State for the state of Texas, 25 okay?

11

1 A. Right.2 Q. When I also refer to the term minority voters, 3 I'm going to be referring to voters who are not White or 4 not Anglo. Do you understand?5 A. Okay.6 Q. Great. Are you represented by counsel today?7 A. Yes.8 Q. Who is that?9 A. Adam Motara.

10 Q. How many times have you been deposed before?11 A. Multiple times.12 Q. Okay. 13 A. Yeah. I can't remember exactly.14 Q. Were any of them in your professional capacity?15 A. All of them were in my professional, when I was 16 at the Secretary of State's Office.17 Q. Very good. Have you testified in court before?18 A. Yes.19 Q. How many times?20 A. Multiple times.21 Q. And were these all election cases you were 22 involved in?23 A. Yes.24 Q. When were you most recently deposed?25 A. Let me see. I need to think about that for a

12

1 second. I don't -- probably in 2008, in May of 2008, on 2 a lawsuit against the Secretary of State and the State 3 of Texas, Ray versus the State of Texas.4 Q. Great. And was that a state court matter?5 A. It was federal.6 Q. Okay. Very good.7 What did you do to prepare for your 8 deposition today?9 A. I had two meetings with Adam Mortara and Jay

10 Dyer to generally discuss the deposition.11 Q. Who was present in that meeting besides those 12 two gentlemen and yourself? 13 A. Just those two people.14 Q. Did you review any documents in advance of this 15 deposition?16 MR. MORTARA: You can answer that question 17 yes or no.18 A. Yes.19 Q. (By Ms. Westfall) Could you tell me the general 20 nature of the documents.21 MR. MORTARA: Don't answer that question.22 MS. WESTFALL: Are you instructing the 23 witness not to answer based on privilege? 24 MR. MORTARA: Yes.25 MS. WESTFALL: Because I'm trying to ask






13

1 questions about a privilege log, Mr. Mortara. 2 MR. MORTARA: Yes. I am instructing the 3 witness not to answer the question.4 Q. (By Ms. Westfall) Other than your attorneys, 5 did you speak with anyone about your deposition today?6 A. Only to inform my current employers that I'd be 7 out.8 Q. Did you bring any notes or documents with you 9 today?

10 A. No.11 Q. Can you tell me where you went to college?12 A. University of Texas at Austin.13 Q. What year did you graduate?14 A. '86.15 Q. And did you get any education after that time?16 A. I went to law school and graduated in August of 17 '88, U.T. law School.18 Q. Thank you. Are you licensed to practice law?19 A. Yes.20 Q. Where are you licensed?21 A. Texas. Only Texas.22 Q. Could you tell me your first job out of law 23 school?24 A. I worked for a solo practitioner attorney in 25 Houston, Ernest Ortiz, for about a year.

14

1 Q. Did you find employment after that time?2 A. Yes. I went from there to the Secretary of 3 State's Office in September of '89.4 Q. When you were working for that practitioner, 5 did you do any election law?6 A. No.7 Q. And what was your first position with the 8 Elections Division?9 A. I was a staff attorney.

10 Q. What year did you have that -- did you start 11 that position?12 A. September of 1989.13 Q. What were your responsibilities in that 14 position?15 A. We provided legal advice to election officials 16 across the state. There's a toll free number. We 17 provided advice via phone, letter. We prepared 18 submissions to the Justice Department, presented at 19 conferences to educate Election officials.20 Q. What was your role in preparing submissions to 21 the Justice Department?22 A. As a staff attorney, I would do the initial 23 draft, and then it would go up for review. I didn't 24 sign those.25 Q. When is the last time you voted?

15

1 A. The May 12th city election.2 Q. Did you vote in person?3 A. Yes.4 Q. How far is your polling place from your house?5 A. Maybe a mile.6 Q. Do you usually vote in person?7 A. Yes.8 Q. Have you ever witnessed anyone try to 9 impersonate another voter while you have been voting?

10 A. No.11 Q. Have you ever witnessed a noncitizen voting 12 while you've been voting?13 A. Not that I'm aware of.14 Q. Have you ever challenged a voter's eligibility 15 to vote?16 A. No.17 Q. Is there a time when you were promoted in the 18 Elections Division after you had the staff attorney 19 position?20 A. Yes.21 Q. When was that?22 A. In July of 1991, I was promoted to director of 23 the Legal section.24 Q. Could you describe your responsibilities in 25 that capacity?

16

1 A. I managed the attorneys, which there were 2 between, you know, five and seven attorneys there. And 3 was, you know, in charge of the submissions, most of the 4 written correspondence that came out of the Legal 5 Division or the Elections Division itself. I was 6 responsible for testifying at legislative committees, 7 assisting with any litigation, things of that nature.8 Q. Were you ultimately responsible for all 9 submissions that were submitted pursuant to Section 5 of

10 the Voting Rights Act?11 A. Not as the legal director, because those were 12 signed by the director of the Elections Division. But 13 we prepared them to -- you know, for his signature.14 Q. But you didn't -- you weren't responsible for 15 certain types of submissions; is that right? You were 16 responsible for all submissions?17 A. Right.18 Q. Could you describe your particular specific 19 role as legal director as it pertained to submissions 20 under Section 5?21 A. Well, it was my responsibility to ensure that 22 we had a process set up to identify all the bills that 23 would require submission, to assign them, and then make 24 sure they were done timely.25 Q. Did you have any other responsibilities in






17

1 addition to testifying in Section 5 submissions in your 2 role as legal director?3 A. Yeah. I mean, the Legal section provided legal 4 advice to all divisions, so, you know, distributing 5 election funds. The division distributed state funds. 6 Then later on, we distributed federal funds. Voter 7 registration issues. Primary finance issues. Basically 8 providing legal advice for all the different divisions 9 within the sections within the Elections Division.

10 Q. And what are the other sections within the 11 Elections Division?12 A. They were voter registration, special projects, 13 which I guess would include voter education, election 14 night returns, canvassing, election administration, 15 designing forms, election inspectors, sending out 16 election inspectors to the field, and then the election 17 funds management section, which is sending out state 18 funds to local election officials.19 Q. And what percentage of your time as legal 20 director, while you were legal director, was spent on 21 Section 5 submissions?22 A. Well, you know, it totally followed the pattern 23 of legislation, so in an odd-numbered year, the summer 24 months, would be heavy, and it usually would, you know, 25 dribble into the fall as well.

18

1 Q. Did you assist, as legal director, in 2 developing election bills in state legislature?3 A. I wouldn't say we assisted, you know, because 4 we are not a legislative body. But we would serve as a 5 resource, so if questions came up. Generally, someone 6 from our office would attend every House Elections 7 Committee meeting as a resource, and then also for any 8 election-related bills that would come up in Senate 9 State Affairs, we would usually have a witness there to

10 be available as a resource.11 Q. What was your role with regard to those 12 activities?13 A. My role would be to make sure that we had 14 somebody, either myself or somebody else, at one of 15 those hearings.16 Q. Was it often you --17 A. Yes.18 Q. -- who attended? How often would you attend as 19 opposed to a staff person?20 A. Well, now, I was only legal director for -- I 21 was legal director from 1991 to 1995, so -- and it was 22 1991 after the legislative session, so it was just two 23 legislative sessions, '93 and '95. And so in that time, 24 it was maybe me half of the time, our director of 25 elections maybe another quarter of the time, and then

19

1 our director of election administration another quarter 2 of the time. Something like that.3 Q. Who was the election director at that time?4 A. Tom Harrison.5 Q. Did you, in that capacity as legal director, 6 also development legislative priorities for the 7 Division?8 A. No. Now, depending on the Secretary of State 9 in office, sometimes certain Secretaries would ask for

10 ideas, more from a policy point of view, and then the 11 Secretary would vet that. That would be sort of one 12 approach. Then also, the chair of the House Elections 13 Committee would also contact us sometimes and say do you 14 all have any clean-up legislation that you recommend? 15 Anything we can do to make things work better. And so 16 we would also develop the list of clean-up legislation. 17 But as the legal director, that was channeled more 18 through Tom Harrison, the director then. 19 Q. Thank you.20 Was there a time that you were promoted 21 from legal director to another position in the Division?22 A. Yes. In September of 1995, I was promoted to 23 director of the Elections Division.24 Q. Could you describe, generally, those 25 responsibilities?

20

1 A. Those responsibilities were, you know, 2 basically being in charge of the entire division and 3 making sure that all of the sections that I mentioned 4 before were, you know, operating as they should.5 The big change, I guess, is that I had 6 more direct contact with our executive staff, with the 7 Secretary directly and Assistant Secretary general 8 counsel.9 Q. Who did you report to directly in that

10 position?11 A. There would be changes through different 12 administrations. Every administration has a different 13 style. Generally, I would report to the Secretary and 14 the Assistant Secretary.15 Q. How many staff people did you have under you?16 A. Between, you know, through the years, probably 17 between 30 and 38.18 Q. And did your role include preparing submissions 19 under Section 5 of the Voting Rights Act?20 A. Yes. I mean, I oversaw that process. Again, 21 they originated through the Legal Division, but 22 ultimately, they came through me, and I would read them 23 and sign them.24 Q. Did you review every single one that was 25 submitted to the Justice Department?






21

1 A. If I signed it, I did. I was out on maternity 2 leave a couple of times, things like that. But overall, 3 most of them, I did.4 Q. Could you describe your other responsibilities, 5 besides advising the Division, supervising staff, 6 reviewing Section 5 submissions, as Election Division 7 director. 8 A. I monitored legislation closely. You know, I 9 had various folks tracking bills and writing up bill

10 analyses. I would read those. Again, I was sort of the 11 point of contact for legislative matters, as far as 12 being a witness at committee hearings.13 I would be the point of contact on any 14 election-related litigation. I work closely with our 15 Legal Division to prepare memoranda to counties 16 instructing on new laws, and then also was responsible 17 for coordinating any -- for instance, if a law passed 18 that gave the Secretary of State new duties or we had to 19 adopt a rule, I would be in charge of kind of 20 coordinating that effort.21 Q. Thank you. So you develop legislative 22 priorities for the Election Division?23 A. No. I mean -- you know, as I said before, we 24 didn't -- we're not a legislative body, so if we were 25 asked, we would provide a list of clean-up legislation.

22

1 If the Secretary of State asked for advice on possible 2 policy, which didn't happen very much, but then we could 3 give the Secretary of State ideas on policy changes.4 Q. Was the Secretary of State the entity that 5 promoted an affirmative legislative agenda regarding 6 election bills with the Legislature?7 A. Yes, but that depended on the Secretary and 8 whether they wanted to or not.9 Q. Would you support the Secretary of State in

10 creating that legislative agenda if did it occur?11 A. If they asked for our advice.12 Q. But otherwise, is it your testimony today that 13 the Election Division did not have an affirmative 14 legislative agenda?15 A. Correct. We don't.16 Q. And by clean-up legislation, you mean sort of 17 technical corrections --18 A. Yes.19 Q. -- to the election code are the types of things 20 you would provide --21 A. Right.22 Q. -- to the Legislature; is that correct?23 A. Correct. Correct.24 Q. Thank you. When it did occur that the 25 Secretary of State asked the Elections Division for

23

1 guidance or thoughts on policy, did you consult with any 2 other offices or branches of the Executive Branch in 3 developing policy thoughts on election law?4 A. The Legislature didn't usually the contact us 5 directly on policy issues.6 Q. But if the Secretary of State was developing a 7 legislative agenda and sought your input, would you, in 8 turn, for example, seek suggestion or guidance from the 9 Governor's Office?

10 A. No.11 Q. Or would you seek any suggestion or guidance 12 from the Lieutenant Governor's office?13 A. No.14 Q. Were there times when any of the technical 15 corrections that the Elections Division wanted to 16 advance with the Legislature would conflict with 17 legislation that the Secretary of State wanted to 18 advance?19 A. No.20 Q. Were the interests usually aligned?21 A. It was very -- and it hasn't happened 22 recently. It was fairly rare for a Secretary of State 23 to be, sort of, proactive on the policy side.24 Q. When did that last happen?25 A. I think it was Tony Garza in -- which was -- he

24

1 left in '97.2 Q. And in your role as a director of the Elections 3 Division, were you ever called to testify before the 4 State Legislature?5 A. Yes.6 Q. Were you called as a resource witness?7 A. Yes.8 Q. Were you always called as a resource witness?9 A. Yes.

10 Q. Did you ever come to the testify for or against 11 any legislation while you served?12 A. No. I always checked the "Resource Only" box.13 Q. What committees did you testify before in the 14 State Legislature?15 A. The House Elections Committee, Senate State 16 Affairs, and then occasionally another committee, like 17 the House Committee on Veterans Affairs. There may have 18 been another Senate committee, but that would be the 19 exception to the rule.20 Q. Was it ordinary, in your experience, for either 21 the House Elections Committee or the Senate State 22 Affairs Committee to, to not seek the Division's advice 23 or thoughts or input on election bills, or would they 24 ordinarily seek the advice of the Elections Division on 25 bills?






25

1 A. Before they were filed?2 Q. Either before or during. Let's start with 3 before.4 MR. MORTARA: I want to caution the 5 witness not to disclose communications with any 6 particular legislators. You can answer the question 7 generally.8 MS. WESTFALL: Are you asserting a 9 privilege in that regard, Mr. Mortara?

10 MR. MORTARA: Legislative privilege.11 MS. WESTFALL: I believe the court ruled, 12 on May 28th, that any communications that an agency has 13 or information that is provided to a legislator is not 14 privileged. Are we in disagreement with that? 15 MR. MORTARA: The information is not 16 privileged. Who it was provided to, when it was 17 provided, and what information was provided to what 18 legislator is.19 MS. WESTFALL: I strongly -- I take strong 20 issue with that and disagree. And there are many 21 rulings, which I have before me, in which the court has 22 indicated and ordered Texas to allow the United States 23 to examine witnesses to create -- on foundational 24 questions and to create a privilege log, so...25 MR. MORTARA: I'm not changing my

26

1 instruction. You can answer the question generally. Do 2 not answer it with respect to specific legislators.3 And with me, a list of legislators of 4 Texas we believe have waived legislative privilege, and 5 if you want, we can mark it, and she can answer the 6 question with respect to those that have waived.7 MS. WESTFALL: We may have to -- I will 8 consider whether we're going to have -- we're going to 9 keep going for now on the record and do an examination.

10 We may need to suspend this and call the 11 court, because I have in front of me a bunch of orders 12 allowing me to ask foundational questions. And I think 13 -- I would ask that you reconsider your instruction to 14 your witness. Is there a response, Mr. Mortara?15 MR. MORTARA: No.16 THE WITNESS: Can you restate the 17 question, please?18 MS. WESTFALL: Why don't we have the court 19 reporter read back, please, since we had an extensive 20 colloquy.21 (Requested portion read back by the court 22 reporter.)23 A. Generally, not before. Generally, bills were 24 filed and nobody would, you know, run them through our 25 office. There are probably a few exceptions to that,

27

1 but generally not.2 Q. (By Ms. Westfall) Do you remember any of the 3 exceptions in which they contacted the Division before 4 filing an election bill? 5 MR. MORTARA: You can answer this question 6 with the subject matter of the bill or the specific 7 bill, if you recollect a specific bill, but no more.8 A. I'm trying to remember. They were usually 9 small, technical bills, and I'm trying to think. One

10 that I can recall related to when the early voting 11 ballot board could convene, and there was a desire to 12 let them start earlier so that they could get their work 13 done before election day.14 Q. (By Ms. Westfall) Why did they contact you in 15 that instance before they filed?16 A. I think that the sponsor was trying to make 17 sure that it didn't conflict with any other laws in the 18 election code and the timings.19 Q. When did that occur?20 A. That was probably maybe five or seven years 21 ago. Generally, not.22 Q. And was it your experience that when an 23 election bill was filed, that the sponsor of the 24 committee usually contacted the Division to seek 25 guidance or input on the bill?

28

1 MR. MORTARA: You can answer that question 2 yes or no. 3 A. No. Generally, no.4 MS. WESTFALL: Mr. Mortara, are you going 5 to be instructing the witness on how to answer my 6 questions moving forward, because that is not a 7 privilege issue. You're directing her -- 8 MR. MORTARA: It is a privilege issue. 9 MS. WESTFALL: You're directing her to

10 answer yes or no, and I'm asking: Are you interfering 11 with my examination today, because I'm going to make my 12 record on this issue.13 MR. MORTARA: It's a privilege issue, 14 Ms. Westfall.15 MS. WESTFALL: Then assert the privilege. 16 Then assert the privilege. Go ahead and make a speech.17 MR. MORTARA: You can answer that question 18 yes or no because of legislative privilege.19 MS. WESTFALL: It's answered, so let me go 20 on to my next question.21 Q. (By Ms. Westfall) Do you have an attorney-22 client relationship with anyone in the government, while 23 you were employed with the Division?24 A. Yes. When I was at the Elections Division, I 25 was -- well, while I was director of the Legal Section,






29

1 I think I had the attorney-client privilege. As 2 director of the Elections Division, my legal advice to 3 the Secretary and the Executive Division would be 4 considered privileged.5 Q. And who exactly were your clients? You said 6 the Secretary of State, and anyone else?7 A. Secretary of State, Deputy Secretary of State 8 or assistant. That title has changed through the years, 9 but the number two person. General counsel. That's

10 sort of the general folks in our Executive Division.11 Q. And did this relationship cover all --12 A. Communications director, I guess, too. Sorry.13 Q. The communications director was also a client?14 A. I would -- I would think that -- sometimes they 15 would all be together in a meeting, so I would think 16 they would -- my conversations would be privileged as 17 well.18 Q. Were you an attorney -- or did you have that 19 relationship in all aspects of your employment and 20 interactions with the Secretary of State, Deputy 21 Secretary of State, general counsel, or were there 22 certain aspects of your relationship and 23 responsibilities for those individuals that were not 24 attorney-client protected communications, in your view?25 A. Sometimes, it's to hard to draw that line, but

30

1 obviously, a lot of what I did was administrative as 2 well, so...3 Q. And how did you differentiate between the times 4 when you were providing attorney-client advice to those 5 individuals and when you were not, in your mind?6 A. I don't know that I actually made a conscious 7 decision at the time, you know.8 Q. Did you have an attorney-client relationship 9 with state legislators?

10 A. I don't think so.11 Q. Did you --12 A. I'm not a litigation attorney, so...13 Q. Did you have an attorney-client relationship 14 with county election officials?15 A. No. 16 Q. Did you have an attorney-client relationship 17 with the Department of Public Safety?18 A. No.19 Q. Did you have an attorney-client relationship 20 with the Governor's office?21 A. I don't think so.22 Q. You have an attorney-client relationship with 23 the Lieutenant Governor's Office?24 A. No.25 Q. Is there a time when you stopped working for

31

1 the Elections Division?2 A. Yes.3 Q. When was that?4 A. That was in November of 2011, last November.5 Q. What prompted that decision?6 A. I was offered another job at the Texas County 7 District Retirement System.8 Q. Did you play any role in selecting your 9 successor as the head of the Division?

10 A. No.11 Q. And what is your title now at the retirement 12 system?13 A. I'm Assistant General Counsel.14 Q. Is that a state agency?15 A. They're not a state agency. They're a 16 governmental body created by the State Legislature. I'm 17 still figuring out what rules they fall under.18 Q. What are your responsibilities as assistant 19 general counsel?20 A. I'm responsible for providing general legal 21 advice on, really, all matters affecting the system, 22 including administration of the benefits, open records 23 issues, open meetings issues, personnel issues, getting 24 into federal tax issues, because we're very much 25 regulated by the Internal Revenue Code.

32

1 Q. How many staff do you have?2 A. I don't oversee any staff.3 Q. Who do you report to?4 A. I report to Tom Harrison, who is the general 5 counsel there.6 Q. And why did you take this position?7 A. It was -- it was a good opportunity. Tom 8 Harrison contacted me. He is looking to retire, and he 9 contacted me and it would be -- it was a real good fit,

10 so it was a good opportunity.11 Q. Do you remain in contact with the Elections 12 Division?13 A. Occasionally. I sent them a note, to a few 14 folks to wish them well on Tuesday, but nothing major.15 Q. Are you -- who in touch -- who are you in touch 16 with at the Division still?17 A. I occasionally talk to Elizabeth Winn, who's 18 the legal director, not very much. Melanie Best, who's 19 a staff attorney. Melanie Best, B-e-s-t. Dan Glotzer. 20 I speak with the secretary from time to time, Hope 21 Andrade, and then several folks -- that -- that's 22 probably about it.23 Q. Are you asserting any privileges today?24 A. I am asserting privileges on any legal advice I 25 may have given the Secretary or the Secretary executive






33

1 staff, and then any legislative privileges that members 2 of the Legislature have asserted, I follow those.3 Q. When did you first start -- strike that.4 When did you first discuss asserting 5 privileges in this litigation? 6 MR. MORTARA: Don't answer that question. 7 Attorney-client privilege.8 MS. WESTFALL: When? 9 MR. MORTARA: Yeah, because it presumes

10 that she discussed it.11 Q. (By Ms. Westfall) Did you discuss asserting 12 privileges in this litigation? 13 MR. MORTARA: Don't answer that question. 14 Attorney-client privilege.15 Q. (By Ms. Westfall) Are you asserting attorney-16 client privilege with anyone other than the Secretary of 17 State, the Assistant Secretary of State, the general 18 counsel? Is that the full list?19 A. I believe so.20 MR. MORTARA: For the witness's benefit, 21 the Office the Attorney General is representing you for 22 purposes of this case, and you have an attorney-client 23 relationship with the Office of Attorney General.24 MS. WESTFALL: Could you please mark this 25 as U.S. 280.

34

1 (Exhibit 280 marked for identification)2 Q. (By Ms. Westfall) You have been handed what's 3 been marked U.S. 280.4 We, unfortunately, only have one copy for 5 the Defendant Intervenors, or two? Great. Thank you.6 Do you recognize this?7 A. No.8 Q. I will assert to you -- and I'm sure your 9 counsel will not disagree -- that this is the privilege

10 log that has been produced in this litigation, and it is 11 an excerpt of several copies -- several pages pertaining 12 to the Secretary of State's privilege log that was 13 produced on May 11th, by the State of Texas.14 MR. MORTARA: Elizabeth, just for the 15 record, is this the most recent one? I know they've 16 been --17 MS. WESTFALL: No, it's not. No, it's 18 not. It's --19 MR. MORTARA: Do you know if the most 20 recent one has changed the entries you're about to 21 discuss with Ms. McGeehan? 22 MS. WESTFALL: No, it has not. There have 23 been -- they've been produced the seriatim.24 Q. (By Ms. Westfall) So this is selected pages, 25 and I'm going to direct your attention to some of the

35

1 pages, and just ask you a few questions about it.2 Turning your attention to Page 298, which 3 is three pages in of Exhibit 280, do you see at the top 4 of the page, the second entry down, it indicates a 5 communication when Ms. Elizabeth Winn and Skipper 6 Wallace?7 A. Uh-huh, yes.8 Q. And do you see that it indicates basis for 9 withholding attorney-client privilege?

10 A. Yes.11 Q. Who is Skipper Wallace?12 A. Skipper Wallace is the -- at one time, he was 13 the legislative coordinator for the state Republican 14 Party, and he's also a county chair.15 Q. And to your knowledge, does he have an 16 attorney-client relationship with Ms. Winn?17 A. Not to my knowledge.18 Q. And turning to your attention to the bottom of 19 the page, the last entry, Texas 00019424. Do you see 20 that entry?21 A. Yes.22 Q. And do you see that you are listed as the 23 author of that document?24 A. Yes.25 Q. Do you remember this document?

36

1 A. No, not -- I don't know which it would be.2 Q. Could you tell me who Matt Creel is?3 A. Matt Creel, he's a legislative staffer for 4 Representative Van Taylor.5 Q. And who was John Sepehri?6 A. John Sepehri was our general counsel -- was the 7 Secretary of State general counsel for several years.8 Q. Turning your attention to the next page, 299, 9 in Exhibit 290, do you see the first entry, Texas

10 00019425?11 A. Yes.12 Q. And do you see it lists you as the author?13 A. Yes.14 Q. And Secretary of State Wilson; is that correct?15 A. Yes.16 Q. Was this also sent to anyone in the Department 17 of Public Safety?18 A. I'll not recollecting what this is. Internal 19 DPS memo to Secretary of State, from SOS attorney 20 regarding voter registration file maintenance. I'm 21 sorry. What was your question?22 Q. Do you recall whether this was sent to the 23 Department of Public Safety? They're a recipient, or 24 were they copied or --25 A. I don't think so, but I'm not entirely sure






37

1 what it is. But if it's what I think it is, it was not 2 sent to DPS.3 Q. Thank you. And two entries down at Texas 4 00019433, do you see that entry?5 A. Yes.6 Q. And do you see it's a communication from you to 7 the voter registrars, elections administrators and 8 county clerks?9 A. Yes.

10 Q. And I believe it was your testimony earlier 11 that you do not have an attorney-client relationship 12 with any of those individuals; is that correct?13 A. That's my understanding.14 Q. Turning your attention to Page 419 of 15 Exhibit 280, which a few pages in. Do you see the top 16 entry at Texas 00030611?17 A. Yes.18 Q. And do you see you are the author of a document 19 that went to Kathleen Murphy and others?20 A. Yes.21 Q. Who is Kathleen Murphy?22 A. She's an attorney at DPS.23 Q. Who is Phillip Adkins?24 A. He's the general counsel at DPS.25 Q. And who is Duncan Fox?

38

1 A. He's an attorney at DPS.2 Q. And likewise, is it your understanding that you 3 do not have an attorney-client relationship with these 4 individuals at DPS?5 A. I don't think so.6 Q. Turning your attention to Page 465 of this 7 document, do you see two entries down at Texas 00039547?8 A. Yes.9 Q. There is another document in which you were

10 listed as the author to the same individuals at DPS?11 A. Yes.12 Q. And likewise, is it your understanding that you 13 do not have an attorney-client relationship with 14 individuals at DPS as to this document?15 A. That's my understanding.16 Q. Thank you.17 A. But to be honest, I don't know if they can 18 assert that as -- but anyway, that's my understanding.19 Q. Thank you for your testimony.20 MS. WESTFALL: Could you mark this as 21 Exhibit U.S. 281.22 (Exhibit 281 marked for identification.)23 Q. (By Mr. Sells) You have been handed what's been 24 marked U.S. 281. Do you recognize this document?25 A. No.

39

1 Q. I will assert to you that it is a supplemented 2 privilege log submitted that was produced in this 3 litigation the State of Texas on May 21st, pertaining to 4 e-mail.5 Could I direct your attention to -- and 6 it's excerpted a number of pages. But could I turn your 7 attention to the second page of Exhibit 281, which is 8 page 25 of the log. And if you look at the last entry 9 at Texas 00078190, do you see that?

10 A. Yes.11 Q. Do you see that it lists you as the author of a 12 document?13 A. Yes.14 Q. Do you remember this document?15 A. No. 16 Q. Who was Steve Schar?17 A. He was the clerk of the House Elections 18 Committee.19 Q. Did he work for Mr. Bonnen?20 A. In 2009, he did not. He was -- he worked for 21 Chairman Smith.22 Q. And is it your understanding that you do not 23 have an attorney-client relationship with Mr. Schar?24 A. Right. But I would with John Sepehri. Yeah.25 Q. Turning your attention to Page 387 of this

40

1 document, the second entry down, do you see Texas 2 00092554?3 A. Yes.4 Q. Who is Amber Hausenfluck?5 A. She is a legislative staffer for Senator Van de 6 Putte. 7 Q. And Senator Van de Putte was an opponent of 8 Senate Bill 14; is that correct?9 A. I think so.

10 Q. Turning your attention to Page 419 of Exhibit 11 281, two up from the bottom, do you see Texas 00097288?12 A. Yes.13 Q. And do you see it does not list an author?14 A. Yes.15 Q. Do you recall seeing this document? Are you 16 familiar with this document based on the description 17 here in this log?18 A. Correspondence from Secretary of State Andrade 19 and Deputy Shorter to legislators regarding voter ID 20 questions. I am not sure. I mean, I am not sure, 21 because I don't know what date -- I'm not sure what that 22 would be.23 Q. Thank you. Turning your attention to Page 540 24 of this document, do you see Texas 00107677?25 A. Yes.






41

1 Q. Could you take a look at this entry and let me 2 know when you've read the description.3 A. (Reading documents.) Okay. I've looked at it.4 Q. Do you recall which legislators made this 5 request?6 MR. MORTARA: Just one second. You may 7 answer that question if the legislator's name appears on 8 this list that I am handing you of legislators that have 9 waived legislative privilege. And you may not answer

10 that question if the legislator's name does not appear 11 on that list. And the basis is legislative privilege.12 A. And your question was who --13 MR. MORTARA: Actually, withdrawn. You 14 may answer that question. You may answer that question. 15 You may answer that question irrespective of the 16 legislator. And I withdraw the objection. I'm sorry, 17 Ms. McGeehan. 18 THE WITNESS: Okay.19 A. My recollection is that -- and your question is 20 what? I'm sorry.21 Q. (By Mr. Sells) Which legislator requested 22 advice referenced in this entry?23 A. Okay. My recollection was that this came out 24 of a question that was asked during the Senate hearing 25 on Senate Bill 14, and I think it was Senator Williams.

42

1 It might have been Senator Fraser. But one of the two 2 of them asked the question.3 Q. Thank you. 4 MS. WESTFALL: Mr. Mortara, what is that 5 document that you handed the witness? 6 MR. MORTARA: If you want to mark it, we 7 can. It is our best efforts to assemble a list of 8 legislators that have waived privilege.9 MS. WESTFALL: Okay. No, I don't want to

10 mark it.11 MR. MORTARA: For the purposes of giving 12 Ms. McGeehan a guide, when you ask questions did a -- 13 for instance, if you ask a question, did a legislator 14 ask you how many voters lacked identification, she can 15 answer that question with respect to some and not 16 others, and this is our best effort to get that 17 information into an easy way, versus me repeating a long 18 objection. So for purposes of the record, I'll just 19 read the list into the record and take one minute.20 Alvarado, Anchia, Chisum, Davis, Dukes, 21 Dutton, Eiland, Ellis, Gallego, Harper-Brown, Hartnett, 22 Hinojosa, Hochberg, Lucio, Martinez, Martinez-Fischer, 23 Naishtat, Strama, Turner, Van de Putte, Veasey, Vo, 24 Walle, West, Zaffirini.25 MS. WESTFALL: Is it your understanding

43

1 that these individuals have waived? Have they invoked 2 privilege? What are you asserting this list is? 3 MR. MORTARA: Waived. These are the 4 individuals that have waived privilege.5 MS. WESTFALL: And is it your position 6 that you need not affirmatively invoke privilege with 7 regard to legislative privilege? 8 MR. MORTARA: It is the legislator's 9 privilege to waive; and therefore, if the State of Texas

10 is not aware that the legislator has waived privilege, 11 then Ms. McGeehan cannot waive it for the legislator, 12 and I will instruct her not to answer.13 If counsel, anybody, has information that 14 another legislator has waived privilege and can produce 15 that in writing, we can add that legislator's name to 16 the list. We, by no means, necessarily think the list 17 is exhaustive with respect to all legislators' intent. 18 This is what we could confirm in writing.19 MS. WESTFALL: All right. We'll discuss 20 that at a break, Mr. Mortara.21 Q. (By Ms. Westfall) Ms. McGeehan, are you 22 familiar with Section 5 of the Voting Rights Act?23 A. Yes.24 Q. What is your understanding of Section 5's 25 requirements?

44

1 A. That any change impacting voting needs to be 2 precleared by the Justice Department or precleared by 3 the District Court in Columbia before it can be 4 implemented in Texas.5 Q. What is your understanding of the legal 6 requirement involved in preclearance? What's the 7 standard?8 A. That the state has to show that it's not going 9 to have a disparate impact on minority voters.

10 Q. Is there any other requirement under Section 5?11 A. I believe also that there was no intent to 12 discriminate against minority voters.13 Q. Could you tell me what type of voting changes 14 Section 5 applies to?15 A. Just everything.16 Q. It certainly applies to more voting changes 17 than just redistricting; isn't that right?18 A. Yes.19 Q. And does the analysis of legislative purpose or 20 intent differ based on the type of voting change, or is 21 it the same legal standard that applies to all voting 22 changes?23 A. I think it's the same legal standard for all 24 changes.25 Q. And you testified earlier, when we were talking






45

1 about your job history, that you prepared submissions 2 and reviewed submissions that were sent to the U.S. 3 Department of Justice; is that right?4 A. Yes.5 Q. How many were you involved in, approximately, 6 during the course of your employment with the Division?7 A. Hundreds and hundreds, you know. There's -- 8 usually, we would submit at least a hundred bills a 9 session, so... You know, so how many sessions, you

10 know. So probably about a thousand.11 Q. What types of information, as a general matter, 12 did you submit with preclearance submissions?13 A. What general subjects? 14 Q. What types of information did you submit in 15 support of your submission, as a general matter?16 A. As a general matter, we would write up a 17 description of the bill. We followed the Code of 18 Federal Regulations, pretty well tried to track, you 19 know, the required elements of the submission, tried to 20 be responsive to those, and would generally supply, try 21 a supply at least two minority contacts that could be 22 contacted on the change.23 Q. Anything else as a general matter?24 A. As a general matter, no.25 Q. Were you ever involved with a Section 5

46

1 submission that drew a request from the Attorney General 2 for more information?3 A. Yes.4 Q. How many times did that happen?5 A. Maybe ten.6 Q. What types of voting changes were involved?7 A. There were some questions regarding to creation 8 of district courts in the '90s. When we implemented the 9 National Voter Registration Act, we got, I think, an

10 additional information request on certain issues. 11 Redistricting would usually generate that. And then 12 recently, there was a water -- or I think it was a water 13 district bill that generated an additional information 14 request. 15 Q. And could you speak generally as to what 16 actions you would take upon receipt of a request for 17 more information from the Justice Department? 18 MR. MORTARA: Ms. McGeehan, you can answer 19 the question generally, but remember, in some instances, 20 you may have been acting within the scope of your role 21 as an attorney. And so I admonish you to observe that 22 there's an attorney-client privilege where you believe 23 one to exist.24 Q. (By Ms. Westfall) Okay. And certainly, I'm not 25 seeking any information that would touch upon attorney-

47

1 client communications.2 A. Well, my role would be to coordinate the 3 response, review it, and generally we would need to 4 contact the sponsor to get some of the additional 5 detail.6 Q. Were you ever involved in a Section 5 7 submission that drew an objection from the Justice 8 Department?9 A. Yes.

10 Q. Which ones were those?11 A. In the '90s, there was an objection on the 12 national -- our implementation of the National Voter 13 Registration Act. It was later withdrawn. But there 14 was an objection regarding having agency staff check the 15 citizenship status of applicants before they could 16 register. There was a -- I believe it was a water 17 district bill that got an objection maybe in 2007. 18 There may have been a couple of others.19 Q. With regard to the NVRA registration issue you 20 just described, when that submission drew an objection, 21 what actions did you take following that objection, or 22 what additional information did you supply to the 23 Justice Department, if any?24 A. After the objection?25 Q. Yes.

48

1 A. I believe that the Secretary wrote a letter at 2 that point. And I honestly don't recall the details of 3 that. I may have been involved in that. That may be 4 privileged, I don't know, but...5 Q. Are you familiar with the term Spanish surname 6 analysis?7 A. Yes.8 Q. Could you define that for us. 9 A. The Elections Division, I think, since the mid

10 '80s, had used a list of Spanish surnames that we've 11 obtained from the Census Department, and we run that 12 against the list of -- statewide list of registered 13 voters to identify Hispanic voters or voters with 14 Hispanic surnames.15 Q. And are you familiar the omission comission 16 corrective aspect of that analysis?17 A. I don't understand what you mean by that.18 Q. Is there any corrective analysis goes along 19 with the Spanish surname analysis that you could testify 20 about today?21 A. I still don't understand what you're asking.22 Q. Is there anything that accounts for someone who 23 would -- false positives -- someone, for example, who 24 would -- who would not be of Hispanic origin who married 25 -- a woman who married someone who had a Hispanic last






49

1 name, and actually that individual, that woman, for 2 example, is not herself Hispanic? Would there be 3 anything that would correct for falsely counting her as 4 someone of Hispanic origin, notwithstanding that she 5 wasn't Hispanic, that is involved in Spanish surname 6 analysis?7 A. That the Secretary of State's Office uses --8 Q. Yes. 9 A. -- in addition to the Spanish surname? No. I

10 mean, we use -- my recollection is, that we used the 11 Spanish surname list due to an agreement with the 12 Justice Department, that was entered into the mid '80s, 13 regarding sending out notice of Constitutional 14 amendment. So we are following the practice that's 15 precleared.16 Q. I see. How many times have you used a Spanish 17 surname analysis in conjunction with -- or how many 18 times did you in conjunction with submitting a voting 19 change for preclearance?20 A. We routinely used it to -- in describing the 21 geographic area that was impacted, we would usually send 22 voter registration data, including a breakdown of 23 Hispanic surname as well.24 Q. So if you had a hundred bills a session, how 25 many would involve Spanish surname analysis?

50

1 A. Generally, only those bills that affected 2 discreet portions of the state, we would provide that 3 analysis on. But if it was a bill of statewide 4 applicability, just a change in a law that affects 5 everybody, we generally didn't supply any specific data 6 on voter registration statistics.7 Q. So you can never remember, sitting here today, 8 a time, with a statewide change, where you did a Spanish 9 surname analysis?

10 A. Redistricting is kind of a whole different 11 animal, so not talking about redistricting, but just 12 sort of a -- you know, like the bill I mentioned earlier 13 to change the time period when the early ballot board 14 could meet, we would submit that, and we would not 15 provide any detailed analysis about the number of 16 registered voters in the state or the number of Spanish 17 surname voters.18 Q. I see. But you just testified that it was 19 routine that you use this analysis, correct?20 A. Yeah, but depending on the submission. So if 21 it's a -- I mean, probably half the bills that go up are 22 a creation of a special district that comprise only a 23 portion of the state. That would be the kind of bill 24 that we would include voter registration detail.25 Q. I see. But there's nothing that would prevent

51

1 you from doing it for statewide changes, is there?2 A. No.3 Q. Because you do it all the time, right?4 A. Right. It's public information.5 Q. And did you use it to comply with -- with state 6 law for the staffing of precincts, for example? Did you 7 do Spanish surname with regard to staffing of precincts 8 with --9 A. We did.

10 Q. -- Spanish-speaking poll workers?11 A. Yes. We started to do that in maybe 2003, '4, 12 something around -- around that time, whereas basically, 13 just to help the county election officials identify 14 those precincts that would need Spanish-speaking poll 15 workers. We went ahead and shared the results of our 16 Spanish surname list to help them identify precincts.17 Q. Outside of Section 5, does the state also use 18 Spanish surname analysis for other purposes?19 A. You know, the primary purpose was for purposes 20 of sending out the written notice for the constitutional 21 amendment election. We did start to using it to help 22 the counties identify Spanish surnames. It's available 23 as a request, when someone requests information. So if 24 somebody wants a copy of the voter registration 25 database, they can request it with the Spanish surname

52

1 flag. I don't recall, at this point, any other time 2 that the Secretary of State used that data for Spanish 3 surname.4 Q. Was it at all used for redistricting to advise 5 a Hispanic legislator that they would be able to be 6 elected in a new district? 7 MR. MORTARA: Ms. McGeehan, you can answer 8 that question with respect to the --9 Ms. Westfall, the problem I have with this

10 question is, it incorporates within the question the 11 positive advice that he would get elected or she would 12 get elected. And then the additional problem is, we 13 have waivers here for voter ID purposes, and I'm not 14 sure we have waivers for other purposes.15 And so I think the general question, did 16 you ever give advice to a legislator about the 17 likelihood of a Hispanic legislator getting elected is a 18 yes or a no, because that's subject matter privilege 19 log. Beyond that, I think I'd have to assert 20 legislative privilege for everyone, because I'm not 21 aware of waivers that go beyond voter ID. Do you --22 MS. WESTFALL: Okay. You have a different 23 conception of how legislative privilege works, because 24 you're saying it has to be waived rather than invoked, 25 so we are looking at privilege differently.






53

1 MR. MORTARA: Okay.2 MS. WESTFALL: Secondly, you're 3 anticipating a question I haven't asked, because I 4 haven't asked the identity of any particular Hispanic 5 legislator. I'm asking her as a general matter. So I'm 6 not understanding your objection.7 MR. MORTARA: Because your question 8 incorporates the positive, which is, did you tell a 9 Hispanic legislator he or she would could get elected,

10 which is the positive, which would never appear on a 11 privilege log. What would appear on a privilege log is 12 the subject of communication about election prospects.13 MS. WESTFALL: I'm not invading any 14 privilege. I'm not following why, since there's no 15 identity or no -- there's no individual. This is a 16 general question that I'm posing, and I object to your 17 instructing the witness to answer yes or no.18 MR. MORTARA: I'm not instructing her. 19 I'm saying you cannot answer the question the way it's 20 been posed.21 Q. (By Ms. Westfall) Is the Spanish surname 22 analysis conducted within the Division, or is it 23 conducted by a central data office?24 A. It is conducted within -- not in the Elections 25 Division, but in the IT department, information

54

1 technology department, of the Secretary of State's 2 Office.3 Q. What was your experience with the accuracy of 4 surname analysis?5 A. It was pretty mixed. We would get a lot of 6 complaints from people who felt that -- again, the main 7 purpose of it was sending out the notices for 8 constitutional amendment elections. So sometimes folks 9 would receive one of those and they didn't speak Spanish

10 and they got mad, or sometimes they did speak Spanish 11 and they got mad, because they didn't want to be 12 profiled. So yes, we had some concerns that it may not 13 be a hundred percent reliable. But that was our -- 14 those were basically the rules that we played by, as 15 were precleared by the Justice Department.16 Q. And was that -- concerns by constituents who 17 erroneously received materials in Spanish or vice versa, 18 was that the sum total of your concerns about the 19 accuracy of the analysis?20 A. Well, in that it represented that some people 21 may be identified that don't speak Spanish or people who 22 do speak Spanish are not included in that list, so it's 23 not a perfect list of identifying Spanish-speaking 24 voters.25 Q. How many complaints, sitting here today, are

55

1 you aware of with regard to what you just testified to?2 A. We would get many complaints. Maybe 50 or more 3 after a mail-out.4 Q. What --5 A. Some of them were people complaining because 6 they didn't think the state should be sending out mail-7 outs in Spanish. So just lots of different complaints.8 Q. Okay. But just focusing on issues pertaining 9 to the accuracy of the Spanish surname analysis, what --

10 could you give a kind of a percentage of how many 11 complaints you would get when you sent out one of these 12 mailings that related to accuracy of the analysis?13 A. You know, it's hard to answer that, because 14 most of the complaints we got were sort of emotional 15 reactions, so I don't know that they were -- really, 16 those complaints weren't centered so much on the 17 accuracy of the data.18 Q. So it's your testimony that there were not 19 complaints about the accuracy of the data, and that 20 there were -- these were emotional responses related to 21 a different issue?22 A. I think the only complaints we ever got, and I 23 don't know that we got them in writing, but sometimes we 24 could would get feedback from county election officials 25 that felt that the lists were not necessarily reflective

56

1 of Spanish-speaking communities, so that if they had to 2 appoint a number of polling place officials, that they 3 would express that didn't necessarily represent the 4 community, and that that might not be the best way of 5 identifying where to appoint Spanish-speaking clerks.6 Q. So other than what you've just testified to, is 7 there -- is there any other facts that you can testify 8 to about concerns with the accuracy of the analysis, or 9 was it kind of anecdotal complaints?

10 A. Yeah. I mean, we -- those were the complaints 11 we got. Let's put it that way.12 Q. And based on your experience in the Division, 13 you don't have any fundamental concerns about the 14 accuracy of the analysis; is that right?15 A. Well, we're not data specialists. I mean, we 16 are implementers, and we follow the law. So that's what 17 we did. It really...18 Q. Based on your administration experience, did 19 you believe it was, on the whole, accurate?20 A. It was my thought that it was probably the best 21 way we had of identifying Spanish-speaking folks, but I 22 knew it wasn't perfect.23 Q. Thank you. And I believe you testified earlier 24 that as part of your responsibilities when you were at 25 the Division, you worked with legislators and staff to






57

1 provide them with advice pertaining to election laws, 2 right? 3 A. Uh-huh, yes.4 Q. Did you serve as a resource to the Legislature 5 in the development of election bills, other than what 6 you have testified to earlier?7 A. Not so much in the development of the bill, but 8 after the bill was filed and if it was going to be heard 9 in a committee, that's where we would generally step in

10 and offer advice.11 Q. When it was heard in committee, what types of 12 information did the Division provide to either the 13 committee or individual legislators?14 A. Usually, it was just an explanation of how it 15 worked within the framework of existing election law.16 Q. Would you describe that as technical advice?17 A. For the most part, technical advice.18 Q. Was there any other advice you provided besides 19 technical advice?20 A. No. I mean, generally we did not provide 21 policy advice. That was not what we would do.22 Q. But besides technical advice as to how a bill 23 would work relative to the election law, did you talk 24 about -- or did you provide advice on how it could be -- 25 how it would actually be implemented if enacted?

58

1 A. Yes. They would ask us questions like that.2 Q. Are there any other categories of advice, 3 besides how a bill would be, how a law -- a bill, if 4 enacted, would be implemented and how it sort of fit in 5 the election code that you would provide to committees 6 or legislators?7 A. Sometimes they might ask for data, and we would 8 supply data, you know, Hispanic surname voters or other 9 information that we might collect at the Secretary of

10 State's Office. You know, kinds of voting systems used, 11 things like that. So we also would provide just raw 12 data that we had. 13 Q. Anything else you can think of sitting here 14 today?15 A. I think that -- that covers it.16 Q. And with regard to bills subject to Section 5, 17 does the Legislature, in your experience, take any 18 special steps, as a general matter, to ensure that an 19 election bill will be precleared by the Justice 20 Department or by a court?21 MR. MORTARA: You can answer if you know, 22 and if the -- you can answer if you know and if 23 answering would not disclose the content of any 24 communications with any legislator that is not on that 25 list. Do you understand?

59

1 THE WITNESS: Uh-huh.2 MS. WESTFALL: I'm asking her as a general 3 matter, not as pertaining to any particular legislator, 4 Mr. Mortara. 5 A. My experience that is most legislators 6 understand the mandate of Section 5 and keep that in 7 mind when they propose legislation, and know that's part 8 the process.9 Q. (By Ms. Westfall) How do you know that?

10 A. Well, for -- I mean, for the time I worked 11 there, the Secretary of State's Office routinely 12 contacted sponsors, after a bill passed, seeking 13 assistance in locating minority contacts. So for one 14 thing, for 20-plus years, our office has always 15 solicited that information, so...16 Q. Outside of the minority contact issue, would 17 legislators generally do anything in crafting their 18 legislation to ensure that it would meet the two legal 19 prongs that you just testified about earlier pertaining 20 to Section 5? 21 MR. MORTARA: Objection, foundation.22 THE WITNESS: Sorry, you're objecting? 23 MR. MORTARA: You may answer the 24 question. 25 THE WITNESS: Oh, okay.

60

1 A. I mean, I don't -- I don't really know what the 2 legislative process is. I mean, I presume they're aware 3 of the law. I don't know what the detailed -- we didn't 4 work on drafting bills.5 Q. (By Ms. Westfall) Do you know whether, as a 6 general matter, legislators would conduct any factual 7 analysis to ensure that there would not be retrogressive 8 effect on minority voters when they were drafting bills?9 A. I don't know.

10 Q. Do you know whether legislators would take any 11 steps to ensure that there was no discriminatory purpose 12 in crafting election laws?13 A. I don't know.14 Q. And with regard to voting changes subject to 15 Section 5 that are administrative in nature, did the 16 Division take any steps, as a general matter, to ensure 17 that rules, regulations, other procedures that the 18 Division created would comply with Section 5?19 A. Yes. I mean, yeah.20 Q. Can you describe what procedures you would take 21 to accomplish that?22 A. I don't know that we had any procedures per se, 23 but I think it -- you know, we worked intimately with 24 Section 5, and so that would be part of our analysis, 25 and anything we did -- anything relating to voting, that






61

1 would be in our minds. But I don't know -- we didn't 2 have a checklist per se.3 Q. But would you make sure that if you were 4 putting out a rule, would you think "I want to make sure 5 this is not going to have a retrogressive effect because 6 I'm going to have problems"? Would you foresee the 7 Section 5 process, in other words?8 A. Yes, and how it would impact all voters. I 9 mean, that was always a part of what the Elections

10 Division is charged to do per statute. So yes, we would 11 keep that in mind if we were -- anything we did, 12 creating a form or issuing a directive or adopting a 13 rule.14 Q. Can you think of a time when you did any 15 factual analysis of any rule or regulation or anything 16 administratively you did to ensure that it would not run 17 into problems with Section 5?18 A. Factual analysis meaning doing some sort of 19 investigation?20 Q. Yes.21 A. No, we didn't -- we didn't have resources for 22 that sort of thing. 23 Q. And did you take any steps to ensure within the 24 Division that your rules and regulations were not 25 adopted or promulgated with a discriminatory purpose?

62

1 A. I mean, we were -- I have to think how to 2 answer that question, because it's kind of like obeying 3 the law. And so it was -- I think it -- it was inherent 4 as part of our responsibilities to make sure that 5 anything we did was fair to all voters, including 6 complying with Section 5 of the Voting Rights Act.7 MR. MORTARA: Ms. Westfall, we've been 8 going for over an hour. I don't need a break. But if 9 Chris or Ms. McGeehan need a break, I just wanted to

10 advise Ms. McGeehan that she doesn't have to wait for 11 you to call a break if she wants one.12 MS. WESTFALL: Certainly. No. I advised 13 Ms. McGeehan if she needs a break. Do you need a break, 14 Ms. McGeehan? 15 THE WITNESS: Actually, I would like a 16 break.17 MS. WESTFALL: Go ahead and take a break. 18 We're at a good point. 19 THE WITNESS: Thank you.20 (Recess from 10:54 a.m. to 11:18 a.m.)21 (Exhibit 282 marked for identification.) 22 Q. (By Ms. Westfall) You've been handed what's 23 marked as U.S. 282. Have you seen this document before?24 A. I don't think I've seen this one. I think I 25 saw the original notice of deposition.

63

1 Q. Great. And this is the notice of your 2 deposition for today; is that right?3 A. Yes.4 Q. Turning your attention to the list of documents 5 on -- at Attachment A, three pages in, do you see that?6 A. Yes.7 Q. Did you undertake a search for documents 8 responsive to these list of documents today?9 A. I did, but all of these documents would be at

10 the Secretary of State's Office. So -- 11 Q. Did you take any documents with you related to 12 the voter ID or photo ID when you left --13 A. No.14 Q. -- the employment of the Election Division?15 A. I did not.16 Q. I'm sorry. I just want to make sure that we're 17 not talking over each other.18 A. Sorry.19 Q. You anticipated my long question. Thank you.20 So did you have any work-related 21 communications on your home computer?22 A. No.23 Q. Or in your home office files?24 A. No.25 Q. And you did not take any files when you left

64

1 the Division; is that right?2 A. I did not.3 Q. Did you do any -- conduct any work on your 4 personal e-mail?5 A. No.6 Q. So you have not searched for these documents; 7 is that correct, because this -- 8 A. I don't have custody of them.9 Q. They belong to your former employer; is that

10 right?11 A. Yes. That's right.12 Q. Okay. All right. 13 MS. WESTFALL: Mr. Mortara, are you aware 14 of whether the documents listed in the schedule have you 15 been produced? 16 MR. MORTARA: No. I am not personally 17 aware. I have no reason to believe that they have not, 18 and if you need at a break, I can confer with 19 Mr. Sweeten or send an e-mail to the team and get you 20 that confirmation e-mail.21 MS. WESTFALL: Thank you.22 MR. MORTARA: I have no reason to believe 23 that they have not.24 MS. WESTFALL: Thank you.25 Q. (By Ms. Westfall) Ms. McGeehan, have you






65

1 attended professional conferences at which photo ID was 2 discussed?3 A. Yes.4 Q. Which ones?5 A. Well, the -- the Secretary of State conference 6 for election officials, we routinely discuss new 7 legislation, so Senate Bill 14 was discussed at that 8 2011 conference. It may have been discussed in past 9 conferences when we do a recap of legislation just to

10 simply say that it did not pass. But in 2011, it was on 11 the agenda.12 Q. Where was that conference held?13 A. It was held in Austin at the Renaissance Hotel 14 by the Arboretum.15 Q. Did you speak at that conference?16 A. Yes.17 Q. What month in 2011?18 A. It was either July or August. I don't remember 19 right now. It was a summer conference.20 Q. And was this a statewide meeting or a 21 nationwide meeting of secretaries of state?22 A. This was a statewide meeting of county election 23 officials in Texas.24 Q. Did you prepare written remarks for that 25 meeting?

66

1 A. I usually would do an outline of my comments.2 Q. Did you retain a copy of those remarks?3 A. I do not have it. It might be on the computer 4 at SOS.5 Q. Thank you. Have you ever presented remarks at 6 a conference, at any other conference at which you spoke 7 about photo ID or voter ID?8 A. Again, just to get back, this was one of the 9 initial points is, you know, photo ID -- I mean, photo

10 ID clearly relates to Senate Bill 14, because photo ID 11 is not required under current law. But current law 12 requires some form of ID. Some people use the term 13 "voter ID," which may not mean photo ID. So, routinely, 14 at our Secretary of State's seminars, we would discuss 15 the law which requires some form of voter identification 16 in order to vote.17 Q. I see. Between the period of 2005 and when you 18 left the Division, did you speak about photo ID laws, 19 either proposed or enacted, at any conferences, other 20 than the one you just testified to?21 A. We probably discussed it in 2009 as part of the 22 recap. At a seminar that occurs after a legislative 23 session, we do a legislative summary. So I'm sure we 24 probably mentioned it and the fact that it did not 25 pass. But it wouldn't have been a lengthy discussion.

67

1 Q. Did you prepare written remarks for that?2 A. Probably had an outline for '07.3 MS. WESTFALL: And, Mr. Mortara, I would 4 ask that to the extent those documents are responsive to 5 our document request, which I believe they are, we would 6 request that they be produced if they have not already 7 been produced.8 MR. MORTARA: I think that they have, but 9 if you want to follow up with correspondence to confirm,

10 we will.11 MS. WESTFALL: Thank you.12 Q. (By Ms. Westfall) Have you ever had any 13 conversations with any county election official in Texas 14 in which that individual indicated a need for photo ID?15 A. Yes.16 Q. Which official?17 A. Joy Streeter in Comal County. There may have 18 been other ones, but that's one that comes to mind. 19 There may have been -- there may have been other county 20 officials as well, but -- 21 Q. And when did Ms. Streeter talk to you?22 A. It was probably -- well, it was at the 23 legislature before a hearing or during a hearing, 24 something like that, a conversation when we were both 25 getting ready to testify at a hearing.

68

1 Q. Do you recall what year that was?2 A. I don't remember if it was '09 or 2011. I 3 don't really remember which one, but it was one of 4 those.5 Q. Can you describe the substance of the 6 conversation?7 A. No. It was a passing remark, and I usually 8 don't engage in policy discussions with folks, so...9 Q. Did she indicate any basis for her support for

10 photo ID?11 A. No. Like I said, I didn't really engage in the 12 conversation, and it was really a comment she made.13 Q. How long was the conversation?14 A. It was very short.15 Q. Did she simply express support for photo ID?16 A. Yes.17 Q. Did she give you any indication of why she 18 supported photo ID?19 A. I don't really remember, to be honest with 20 you. I don't remember the details of the conversation.21 Q. And sitting here today, do you remember any 22 other similar conversations with county election 23 officials about a need for photo ID other than 24 Ms. Streeter?25 A. There may have been similar kind of comments






69

1 made by officials, but again, we would tend to steer 2 away from any sort of perceived partisan-type issues.3 Q. But I'm not asking about whether you responded 4 or agreed or disagreed. I'm asking about the existence 5 of your knowledge of support from county officials?6 A. And what I'm saying is there may have been 7 other officials that made similar comments. I don't 8 really remember them, because we would generally try not 9 to have those kind of conversations.

10 Q. Thank you for your testimony.11 What is the system under state law for 12 determining how to verify the identity of a voter?13 A. And I'm going to ask to clarify. Verify the 14 identity of a voter presenting themselves at the polling 15 place and not talking about as registering to vote?16 Q. Let's start with at the polling place.17 A. The current law is that a voter is required to 18 show their certificate, their voter registration 19 certificate, or if they don't have a voter registration 20 certificate, then they can present another form of ID. 21 And there's a fairly long list. And because I don't do 22 this every day anymore, I don't really have it off the 23 top of my head anymore, so...24 Q. What happens if a voter doesn't have either the 25 voter registration card or one of those forms of ID at

70

1 the polls on election day?2 A. Then they -- they're given the opportunity to 3 vote a provisional ballot.4 Q. Does the voter need -- 5 A. I believe. I'm pretty sure that's right. And 6 that's -- you see, that's the problem; I haven't been 7 doing this for six months, but I'm fairly certain -- 8 yes, that's case. If a voter does not have any form of 9 ID, then they're given the opportunity to vote a

10 provisional ballot.11 Q. Does the voter need to take any additional 12 steps to ensure the provisional ballot will be counted?13 A. There's really not much the voter can do, 14 actually, because if they don't have ID, even though 15 they're given the opportunity to vote a provisional 16 ballot, it will not be counted, because they didn't 17 provide any identification at the polls.18 Q. Are you certain that it's not the case under 19 state law that election officials will consult the 20 records to determine whether to count the provisional 21 ballot, and if the signature on the provisional ballot 22 envelope matches the registration record, that that 23 provisional ballot will be counted?24 A. That's not what the law says.25 Q. Tell me what --

71

1 A. They can do a search like that to find evidence 2 if a voter is registered to vote. But if they have not 3 presented a form of ID, then they're allowed to count 4 that ballot. There's no way to cure that under current 5 law.6 Q. I see. And of the forms of ID that are 7 acceptable at the polls today, do many of them include 8 nonphoto IDs?9 A. Yes.

10 Q. And are they kind of similar to the forms of 11 photo ID that are acceptable and listed under the Help 12 America Vote Act, i.e., utility bills, government 13 correspondence, et cetera? Is it a large wide range? 14 A. Yeah. I think it's about 11 or 12 items.15 Q. And when you register to vote, the county 16 election official will mail you a copy of your voter 17 registration card under current law; is that correct?18 A. Yes.19 Q. And if the voter doesn't have a voter 20 registration card at the polls on election day and 21 presents one of these forms of ID from a wide range of 22 forms of ID, that voter may vote a regular ballot; is 23 that right?24 A. That's right.25 Q. Are you aware of any reports of a voter

72

1 registration card being stolen in the mail from a voter?2 A. Reports or information reported to the 3 Secretary of State's office?4 Q. Let's -- I would say reports, generally, have 5 you ever heard about that?6 A. There may -- I mean, I may have heard something 7 like that said at a hearing. I don't believe we have 8 it -- that when I was at the Secretary of State's 9 office, we had anybody file anything with our office

10 indicating that.11 Q. So you've never investigated any of those 12 claims, to your knowledge, while employed with the 13 Division?14 A. Well, actually, I take that back. I think we 15 did have a -- I think we did have an allegation, a 16 written complaint that voter registration certificates 17 were stolen.18 Q. Who made that complaint?19 A. I don't remember, but I believe we referred it 20 to the Attorney General for investigation.21 Q. When was that complaint made?22 A. In the last four years. I don't remember 23 exactly.24 Q. Did it pertain to one card or more than one 25 card?






73

1 A. It was several cards.2 Q. A handful of cards?3 A. It was a bunch of cards. It was a bunch of 4 voter registration certificates. I don't remember all 5 the details, but -- 6 Q. Do you know whether any prosecutions arose from 7 that?8 A. I don't know.9 Q. And where were those cards alleged to have been

10 stolen?11 A. I think they were stolen out of someone's car 12 or -- I don't remember all the details. I think it was 13 in relation to a primary. It may have been the -- 14 either the 2008 primary or the 2010 primary. And to be 15 honest, my memory is fuzzy on that.16 Q. Is it possible that you're referring to voter 17 registration applications and not cards?18 A. No, these were certificates. These were voter 19 registration certificates.20 Q. That were -- had been in the custody of a 21 county election official; is that right? 22 A. I don't remember the line of custody, but yeah, 23 I -- initially, they came out of a county office, and I 24 don't really remember -- I don't remember the details.25 Q. Did you yourself have any involvement in the

74

1 development of the current system for identifying a 2 voter at the polls on election day under the Texas 3 election code?4 A. The -- I think the only role that I may have 5 played is in, when the Help America Vote Act passed, 6 was -- you know, advising the legislature on how to 7 integrate that federal law into the Texas state law, 8 including what a voter has to present at the polls, if 9 it is a voter that the state has not been able to

10 confirm their voter -- their driver's license number or 11 Social Security number under HAVA.12 Q. I see. And how long has the current system for 13 identifying voters at the poll been in place in Texas?14 A. My recollection is that in either 1997 or 1999, 15 one of those sessions, the legislature passed the 16 requirement to affirmatively require some form of ID, 17 this list that we talked about. Prior to that time, a 18 voter didn't have to show anything. That was in either 19 '97 or '99. In 2003, the legislature passed -- I 20 believe it was 2003, the legislature passed a bill to 21 implement HAVA, which I don't think really changed that 22 list. 23 It may be more in Secretary of State rules 24 and procedures where the interaction between confirming 25 a voter's identity on the voter registration process and

75

1 how that impacts the voter registration list, that may 2 not be in the law, per se, that may be more through 3 directives issued by the Secretary of State.4 Q. I see. And to your knowledge, was the Help 5 America Vote Act and its set of IDs contained therein, 6 was that in part based on the list under -- that existed 7 under Texas law at the time?8 A. Did Congress base their list?9 Q. (Nodding head yes.)

10 A. I don't know.11 Q. Is the current system for identifying a voter 12 at the polls effective in identifying voters in your 13 opinion?14 A. Effective in terms of? 15 Q. Does it do the job? Does it, in fact, ensure 16 identification of voters at the polls?17 A. That's a difficult question for me to 18 answer. I mean, we -- we advise county officials on the 19 rules to follow. We don't do any investigation, or 20 Secretary of State's Office doesn't do any investigation 21 to double-check that.22 Q. To your knowledge, is it -- is the current 23 system not effective, and does it fail to identify 24 voters at the polls?25 A. You know, as -- when I was a state employee,

76

1 it's my duty to implement the law. It's not my duty to 2 make policy judgments on what's good and what's not 3 good.4 Q. But you worked for the Election Division, did 5 you not? 6 A. Yes.7 Q. And you received complaints or information 8 about the effectiveness of systems --9 A. We would routinely --

10 Q. -- because you administered the law, correct?11 A. Right. I guess the deal is, we routinely 12 received complaints from both sides. It's always a 13 balance between access to the ballot and making sure the 14 election process is secure and maintaining integrity. 15 So it's always that battle. And so we hear from folks 16 on both edges of those issues. And so, generally, we 17 don't get into those. Generally, what we look at is are 18 the laws being followed as the legislature has passed 19 them as they have been precleared by the Justice 20 Department. 21 Q. I understand.22 A. It's not our role to judge.23 Q. I understand. I'm not asking you to take a 24 policy position based on your past position with the 25 Election Division.






77

1 Let me ask you another question: Do you 2 have any facts or information that you could testify 3 today that would indicate that the current system has 4 failed in any instance to identify a voter at the polls?5 A. We've been asked that question in legislative 6 committee meetings and we've provided data. You know, I 7 don't have the numbers at my fingertips on that.8 Q. Okay. And we will talk about your testimony a 9 little bit later today. I understand your testimony

10 before the hearings in the Senate and the House, and 11 otherwise. But outside of that testimony, is there any 12 other set of facts or information that you can provide 13 to us today about how the current system has failed to 14 identify voter at the polls on election day?15 A. No. I don't think so.16 Q. Do you recall that in 2000, you were quoted in 17 the Dallas morning news?18 A. In 2000?19 Q. In 2000. To the effect -- and we can use an 20 exhibit if that would help to refresh your 21 recollection -- that in the polling place you have a lot 22 of measures in place to protect the integrity of the 23 ballot but voting at home has none of those safeguards. 24 Do you remember that?25 A. Yes, I do.

78

1 Q. What did you mean when you said there are a lot 2 of measures in place in a polling place to protect the 3 integrity of a ballot? What measures?4 A. Well, it's a public setting, and you've got, 5 you know, representatives of the government essentially 6 administering the voting process. And you may have poll 7 watchers present and other voters present, and state law 8 controls, as opposed to a voter voting by mail in the 9 privacy of his or her home, and you don't have those

10 safeguards.11 Q. And how do those safeguards you've just 12 described and testified to protect the integrity of the 13 ballot in the polling place?14 A. Well, I mean, the intent of those laws is to 15 make sure that only, you know, eligible voters vote, 16 that they vote one ballot, and that, also, that their 17 rights are protected. So I guess that's how.18 Q. Thank you.19 How are those safeguards absent when 20 you're voting from home?21 A. There's nobody from the -- the entity holding 22 the election is not present. You don't have any 23 representatives of that entity. And so there have been 24 occasions where voters can be targeted, especially 25 elderly voters, where, you know, there are attempts to

79

1 manipulate their vote.2 Q. Are you aware of any issues or concerns about 3 fraud that have arisen from mail-in ballot procedures in 4 the state of Texas?5 A. Yes. And in 2003, the legislature passed a 6 fairly significant bill to try to address some of those 7 issues where, you know, more signatures are required for 8 anybody who assists the voter, requests a ballot, and 9 you have to put their name and address and sign it. And

10 I believe the AG has prosecuted some of those that where 11 those signatures were not provided. 12 And I don't know that any legislation was 13 enacted in 2011. I think there was a report issued 14 after the 2009 session on the issue of mail -- mail-in 15 voting and concerns about mail-in voting.16 Q. Since the legislature enacted that law in 2003, 17 are you aware of convictions for voter fraud based on 18 the mail-in votes?19 A. Yes. I believe there have been several through 20 the Attorney General's Office.21 Q. Do you know the number?22 A. I don't know the number.23 Q. And who would know that?24 A. I think the -- someone in the Attorney 25 General's Office would have that data.

80

1 Q. When did you first hear any support for 2 enacting a photo ID law in the state of Texas? 3 MR. MORTARA: Ms. McGeehan, although the 4 question doesn't call for it, it's broad enough to cover 5 communications you may have had with legislators that 6 are not on this list, and I just admonish you in that 7 regard. 8 And, Ms. Westfall, totally happy at 9 this point for that to be a standing instruction,

10 because your question is really not in that area anyway, 11 if you're okay with that? 12 MS. WESTFALL: A standing objection? 13 MR. MORTARA: My point is: Your question, 14 as broad as it is, would include a communication between 15 Ms. McGeehan and, for instance, Senator Tommy Williams, 16 where Tommy Williams -- 17 MS. WESTFALL: My question was when. It's 18 a date question.19 MR. MORTARA: Oh, I'm sorry. I thought 20 you said something else. 21 MS. WESTFALL: When, when -- no. Listen 22 to my question. 23 MR. MORTARA: Okay. Well, let's go 24 ahead with when.25 MS. WESTFALL: Let's read back the






81

1 question.2 MR. MORTARA: When is fine. 3 MS. WESTFALL: When is fine.4 Q. (By Ms. Westfall) When did you first hear 5 about any support for enacting photo ID with voter 6 identification requirement in Texas?7 A. I think -- I mean, I don't know that I can give 8 you a date certain. I am thinking it began to be 9 discussed in kind of around the same type as HAVA.

10 There was a Carter Baker report that talked about it, 11 and I don't know if that was maybe 2003, 2004, around 12 that time frame.13 Q. How did you learn about it?14 A. I really don't remember. It may have been 15 through that Carter Barker report. 16 Q. Do you know who was supporting photo ID in the 17 State of Texas?18 A. Lots of people supported it. So -- 19 Q. Where was it stemming from? 20 MR. MORTARA: Objection to foundation.21 Q. (By Ms. Westfall) You may answer.22 A. I mean, just generally, it was more of a 23 Republican issue, I guess, Republican party issue.24 Q. Do you think that photo ID is motivated in part 25 by partisan concerns?

82

1 MR. MORTARA: Objection, form of the 2 question.3 Q. (By Ms. Westfall) You may answer.4 A. That may be part of it. It seems to enter into 5 just about everything else. So -- 6 Q. Was there a time when you were employed in the 7 Election Division that the Division first became 8 involved in the issue of photo ID legislation?9 A. I'm sure when the bill -- when a bill was

10 introduced, we would have been involved as far as having 11 to analyze the bill and possibly testify.12 Q. Do you recall what year that was?13 A. No.14 Q. And how were you -- what -- strike that.15 Are you familiar with House Bill 1706 from 16 2005, introduced by Representative Denny?17 A. I don't remember it right now. I mean, I might 18 be able to refresh my memory.19 Q. Why don't we do that. 20 MS. WESTFALL: Could you mark this -- 21 actually, this has been previously marked, Chris, as -- 22 Court Reporter, as Exhibit 44. Could you mark that for 23 the witness. 24 Q. (By Ms. Westfall) You've been handed what's 25 been previously been marked as U.S. 44. Could you take

83

1 a look at this document and let me know if you recognize 2 it? 3 A. You know, I don't really remember it too well, 4 but I'm sure at one point I -- you know. This is 2005?5 Q. Turning your attention to the last page of this 6 exhibit on Page 10.7 A. Uh-huh.8 Q. If you look at Section 13, that might refresh 9 your recollection.

10 A. Yeah. Okay. Okay.11 Q. Do you remember having any involvement with 12 this legislation at all?13 A. Not really.14 Q. Do you recall whether the Secretary of State or 15 Election Division took any public position on HB 1706?16 A. The Secretary of State -- well, I'm trying to 17 remember if -- who was Secretary of State in 2005. The 18 Secretary of State may have taken a position on this 19 issue. The Elections Division did not.20 Q. Do you know what the Secretary of State's 21 position on 1706 was?22 A. Let me just think. Who was Secretary of State 23 in 2005? Actually, I don't think anybody did, not in 24 2005. Sorry. I don't think there was any public 25 position.

84

1 Q. Are you aware of whether the Division was 2 involved in the development of drafting of HB 1706?3 A. I don't think we were.4 Q. Are you aware of the source of the legislative 5 language for 1706?6 A. No.7 Q. Are you aware of whether the Division provided 8 any facts or information to any House or Senate 9 committee related to the HB 1706?

10 A. I don't have any memory of that.11 Q. Turn your attention to the section of the 12 legislation of HB 1706 at Page 4. Do you see where it 13 lists Section 63.0101, Documentation of Proof of 14 Identification?15 A. Yes.16 Q. Could you take a look at the forms of ID and 17 let me know when you've had a chance to review them? 18 A. (Witness complies.) Yes. I've reviewed it 19 now.20 Q. Thank you. And HB 1706 includes both photo ID 21 and nonphoto ID; is that correct?22 A. Yes.23 Q. And also includes photo ID cards issued by 24 county elections administrators or clerks; is that 25 correct?






85

1 A. Yes.2 Q. Do you know how inclusion of that ID arose in 3 this bill?4 A. I do not.5 Q. Did you have any communications with any county 6 clerks about that provision?7 A. I don't recall any conversation about that with 8 this bill.9 Q. Did you provide any technical guidance to the

10 legislature about how photo ID cards involving county 11 clerks would be administered?12 A. Not with this bill.13 Q. And do you see that one of the forms of ID is 14 military identification cards?15 A. Yes.16 Q. Do you know what forms of cards or types of 17 cards that category of ID would encompass?18 A. Yes.19 Q. Could you describe that list?20 A. List of military identification cards?21 Q. Yes.22 A. I don't think it's a list. I -- you know, and 23 to be honest, I probably can't completely answer that 24 question because we were -- because that's one of the 25 permitted forms of ID under Senate Bill 14, and because

86

1 the Secretary of State's Office was in the process of 2 preparing to implement that bill. That was something we 3 were looking into as to what all would be included under 4 military identification card.5 Q. Do you recall whether your office or you were 6 involved in any discussion in 2005 about what forms of 7 military ID would be encompassed in this definition?8 A. No. I don't even remember this being heard in 9 committee. It may have been, but I don't think it got

10 very far.11 Q. Did you hear any concerns from bill opponents 12 of HB 1706 from the standpoint of the Division?13 A. I don't really recall and -- you know, because 14 several of these sessions are kind of merging together, 15 so I don't remember this one specifically.16 Q. And do you recall the Division having received 17 any requests for information from the legislature 18 regarding HB 1706?19 A. I don't recall any.20 Q. Are you aware of any attempt to determine the 21 impact of HB 1706 on minority voters?22 A. No.23 Q. In advance of the 2005 legislative session, did 24 either the Division or the Secretary of State develop 25 legislative priorities for that session?

87

1 A. In advance of the 2005 session? 2 Q. Yes. 3 A. I'm -- I'm fairly certain we developed a list 4 of cleanup legislation, but that would be technical type 5 things, not policy issues.6 Q. Were you involved in development of that 7 agenda?8 A. Yes.9 Q. Did it include support for a photo ID law?

10 A. No.11 Q. Why not?12 A. That's a policy issue. That wouldn't be 13 something we would include in a cleanup list.14 Q. Why do you describe it as a policy issue? 15 A. Because it's a matter for the legislature to 16 the address. What we saw our role is on technical 17 cleanup legislation is to make the existing laws work 18 better within the existing framework, not make what I 19 term "policy changes" on how and what the law provides.20 Q. In other words, if you saw something that was 21 not working or if county clerks complained to you about 22 something that was not working, you would not advocate 23 for that as the Division, is that your testimony today?24 A. It would depend what the issue was. You know, 25 if it was -- again, and our general counsel would be

88

1 involved in that decision, as well, as to what was 2 policy and what was cleanup.3 Q. But was there -- were there times when county 4 officials said we need this to be changed, and it wasn't 5 a technical change, and you advocated for that change in 6 the Division?7 A. No. I don't think so. I think if a county 8 official brought something to our attention that was a 9 policy issue, we would say, "Hey, you know, this is

10 something you all need to go out on your own, and you 11 need to lobby for on your own. We can't do that." If 12 it was something we saw as a technical correction type 13 thing, we would often include it in our list of cleanup 14 legislation.15 Q. Did -- to your knowledge, did the legislature 16 hold hearings on HB 1706?17 A. You know, I really just can't remember. They 18 may have. She was -- I believe that Mary Denny was the 19 chair of the committee so probably there was a hearing. 20 I just don't have a clear memory of it.21 MS. WESTFALL: Could you mark this as 283?22 (Exhibit 283 marked for identification.)23 Q. (By Ms. Westfall) You've been handed what's 24 been marked U.S. 283. Do you recognize this document?25 A. No. Well, I mean, I'm reading it. I haven't






89

1 seen it before if that's what you're asking.2 Q. Do you see that it refers to a House Committee 3 on Elections Subcommittee hearing in March 2005?4 A. Yes.5 Q. And I will represent to you, and I'm sure your 6 counsel will not disagree, that this is an excerpt of a 7 hearing at which you were available and made some 8 remarks, which I can turn your attention to page -- 9 Bates Stamp Number TX_00212131, or within the document,

10 Page 102, where you were introduced by Chairman Bohac. 11 Do you see that?12 A. No, I'm sorry.13 Q. Perhaps your counsel can assist you.14 A. Oh, I'm sorry. Okay. I'm sorry. I'm there 15 now.16 Q. Certainly. Can you take a look at your remarks 17 and let me know when you've had a chance to look at 18 them?19 A. (Witness complies.) Okay.20 Q. Can you describe your role at the House hearing 21 in March 2005?22 A. It looks like I was explaining the HAVA 23 requirement to -- that would -- that was really just in 24 existence for a couple of years, that if a voter 25 registered to vote for the first time in Texas, and I'm

90

1 -- I have to refresh my memory on what the rules was 2 again. Sorry. Like I said, I'm getting rusty on this 3 stuff. So -- 4 Q. Take your time.5 A. Yes. I'm sorry. Because it related to the 6 HAVA requirement, that before the state had the 7 statewide database in place and had set up a system to 8 verify the driver's license number or Social Security 9 number, first time -- a voter who registered to vote for

10 the first time had to present ID at the polls, or they 11 could enclose it when they registered to vote. They 12 could enclose the copy of their ID when they registered 13 to vote. 14 Q. And is it your view, based on your experience 15 in the Elections Division, that that is an effective way 16 of confirming a voter's identity?17 A. We only did it for a couple of years, because 18 that HAVA -- the state can't get away with that 19 forever. So it was a sort of an interim solution until 20 the state could implement the state-wide voter 21 registration system.22 Q. To your knowledge, was that effective during 23 that interim period you've just testified to in 24 identifying voters at the polls and for registration?25 A. I don't really have any -- any data to really

91

1 make a judgment on that.2 Q. Do you have any information that it wasn't 3 effective?4 A. No. It wasn't -- it wasn't in effect very 5 long, so I don't have much experience with it to really 6 make a judgment as to how effective it was.7 Q. But based on that brief duration when it was in 8 effect, do you have any facts or information indicating 9 that it wasn't effective?

10 A. No. I don't think either way. I don't have 11 much of an opinion on that.12 Q. I was asking for facts. Do you have any facts?13 A. I don't have any facts on it.14 Q. Thank you for your testimony. 15 Could you describe every rule, law or 16 procedure currently in place to verify the identity, 17 citizenship and eligibility of a voter applicant, in a 18 general sense, but -- 19 A. The question relates to someone applying to 20 register to vote?21 Q. Correct.22 A. And could you restate your question again 23 for -- 24 Q. Certainly. Could you describe every rule, law 25 or procedure currently in place for verifying the

92

1 identity, citizenship and eligibility of a voter 2 applicant? 3 MR. MORTARA: And you will be graded on 4 your response.5 MS. WESTFALL: Pardon? 6 MR. MORTARA: And you will be graded on 7 your response.8 A. I mean, that is a very big question, and 9 there's a lot of components to it. And specifically,

10 you're asking for U.S. citizenship? I'm sorry to 11 make -- 12 Q. (By Ms. Westfall) Identity --13 A. Identity.14 Q. -- and eligibility under Texas law to register 15 to vote, how does Texas confirm those things when an 16 individual attempts to register to vote?17 A. Basically, the only thing that -- you know, and 18 it kind of depends on at what point in time, but when a 19 person applies to register to vote -- 20 Q. Currently?21 A. -- currently, the only element that's actually 22 verified or attempted to be verified by the state is the 23 identity based on the driver's license number they 24 provide or the last four digits of their Social Security 25 number. The state does not verify citizenship upfront






93

1 or overall eligibility. 2 There are processes in place once a voter 3 is registered so, you know, to keep the rolls clean, so 4 where there are checks against felons and, you know, 5 mental incapacity, you know, abstracts. And then 6 there's our routine, you know, mass mail renewal voter 7 registration certificate that helps finding issues if 8 someone has moved and are no longer eligible. 9 But the upfront process of registering to

10 vote, you know, the process is the county reviews the 11 application, makes sure all the boxes are filled in.12 Q. And the applicant -- not to interrupt you.13 A. Yeah.14 Q. My apologies. But the applicant signs under 15 penalty of law -- 16 A. Right. That's correct.17 Q. -- that they're affirming certain 18 information --19 A. The information.20 Q. -- about their eligibility; is that correct? 21 A. Yes, that's correct.22 Q. So that's one rule in place; is that right? 23 And that's codified under Texas law?24 A. Yes.25 Q. Thank you. I'm sorry for interrupting. Go

94

1 ahead.2 A. The application doesn't come to the state 3 first. It goes to the county voter registrar. The 4 county voter registrar reviews it first, makes sure the 5 address they're providing is in the county. So in that 6 sense, they look at the address, but they don't confirm 7 whether somebody actually lives there or not.8 Q. They make sure that it's an address that 9 exists?

10 A. That exists in their county. If it's in 11 another county, they send it to another county. 12 And then it goes to the state for the 13 state to verify the identification number that's been 14 provided. So, you know, anyway, so that's the process 15 of becoming registered.16 And then after the fact, there are some 17 routine checks to make sure that the rolls remain clean, 18 so they're checked against, you know, database of 19 deceased persons, felons. 20 And on the U.S. citizenship issue, if a 21 person claims they're not eligible for jury service 22 because they're not citizens, then that should trigger a 23 process where they are sent a letter requesting them to 24 confirm that they are, in fact -- actually, they have to 25 show proof of citizenship at that point, and that's one

95

1 way to keep -- to have a check on citizenship.2 Q. Great. Thank you.3 Could you describe the rules in place to 4 determine whether a voter who requests an absentee 5 ballot or mail-in ballot is a registered eligible voter?6 A. The basic rules are that they -- the voter has 7 to submit a written request. They have to state a valid 8 reason for voting by mail. And there are only 9 four. The early voting clerk reviews that, and the only

10 thing they can really verify is if they state they're 11 over 65, they can check the voter registration rolls, 12 but they can't verify if they're disabled or if they're 13 out of the county. You know, the other eligibility 14 criteria is if you're in jail but otherwise eligible to 15 vote.16 Q. So, in other words, a voter submits a form 17 swearing that he or she is registered and that there is 18 a reason -- 19 A. Right.20 Q. -- to submit the mail-in ballot?21 A. (Witness nods head yes.)22 Q. Are there any other checks in place for 23 verifying that voter who is seeking an absentee ballot?24 A. Not at that point.25 Q. Are there any other checks at any other points?

96

1 A. When -- when the ballot comes back in and when 2 the early voting ballot board reviews the ballot, they 3 basically review it again, making sure it's a valid 4 reason. They might check the date of birth. They 5 compare signatures on the application to the actual 6 voted ballot. And that's about it. If they were 7 required to sign a statement of residence, that would 8 have to be included, and they would have to check for 9 that.

10 Q. Thank you. Do you recall whether a photo ID 11 bill was introduced in the 2007 session?12 A. I think it probably was.13 Q. Do you know the number?14 A. No.15 Q. And by the way, before we get to 2007, do you 16 know what happened -- did any photo ID bill pass in the 17 legislature in 2005?18 A. No.19 Q. Do you know why?20 A. I don't remember. I don't really have a very 21 good memory of that 2005 session on that issue.22 Q. I'm going to hand you what's been previously 23 marked as Exhibit 28. 24 You've been handed what's been marked, 25 previously marked as Exhibit 28. Do you recognize this






97

1 exhibit?2 A. Yes.3 Q. What is it?4 A. It is House Bill 218 from the 2007 session.5 Q. Do you know who in particular drafted 218?6 A. I think the primary sponsor was Representative 7 Brown, but I could be wrong on that. So I don't really 8 know.9 Q. Do you know the source of the legislative

10 language -- 11 A. No.12 Q. -- for HB 218?13 A. Well, other than Texas Legislative Council.14 Q. Do you know who at the council drafted it?15 A. No.16 Q. Do you have a guess?17 A. They generally have certain attorneys that, you 18 know, have certain subject matter expertise.19 Q. Do you think it would have been Jennifer 20 Jackson?21 A. It could have been, but I don't know.22 Q. Are you familiar with the provisions of HB 218?23 A. I would have to refresh my memory.24 Q. Would you like a chance to do so? 25 A. Yes.

98

1 Q. Particularly drawing your attention to the 2 forms of ID listed at Page 9 of this document.3 A. Okay. (Witness reading.) Okay.4 Q. Have you had a chance to review the forms of 5 ID?6 A. Yes.7 Q. Could you describe them for me?8 A. A driver's license that hasn't expired, issued 9 by the Texas Department of Public Safety. A U.S.

10 military identification card that contains the person's 11 photograph. A valid employee identification card that 12 contains -- you know what, I'm missing some pages. 13 Here. That's why. Yeah, that's why, because there's -- 14 yeah.15 Q. May I have that exhibit?16 A. Yeah.17 MS. WESTFALL: Mr. Mortara, could I see 18 your copy of the exhibit to see if there are errors all 19 around? If it is acceptable to you, could I examine 20 with your copy, Mr. Mortara? 21 MR. MORTARA: Yes. It is completely 22 acceptable.23 MS. WESTFALL: Thank you. I'm delighted 24 to hear that.25 MR. MORTARA: I'm delighted to tell you.

99

1 MS. WESTFALL: Off the record for one 2 minute. 3 (Brief discussion off the record.)4 Q. (By Ms. Westfall) Ms. McGeehan, do you now 5 have an exhibit that is complete?6 A. Yes.7 Q. Could you describe the forms of ID that are 8 listed in Exhibit 28, House Bill 218?9 A. I guess there's two lists. There's a list of

10 acceptable photo identification, and then there's a list 11 of nonphoto identification.12 Q. Does it appear, based on your review, that this 13 list is similar to HB 1706, to which you just testified, 14 the previous exhibit that you looked at from 2005?15 A. Yeah. I think it's similar. I think there's 16 -- well, I'd have to compare it, but -- can I compare 17 it?18 Q. Certainly.19 A. Because I think it might have had the same 20 problem.21 Q. What is the problem?22 A. Well, I just want to make sure that they both 23 have the same issue that you present one form of photo 24 ID or two forms of nonphoto.25 Q. Why do you describe that as a problem? Is it

100

1 difficult to administer?2 A. No. I meant I was afraid that 1706 was a 3 partial copy like the other one was.4 Q. I see. I see.5 A. I'm sorry. I guess they look similar.6 Q. Are they essentially the same?7 A. Yes. Yes.8 Q. Do you know whether any of this language came 9 from the Lieutenant Governor's office?

10 A. I don't know.11 Q. Do you know whether any of it came from outside 12 the Texas legislature?13 A. I don't know.14 Q. And do you know whether any of it came from the 15 Governor's office?16 A. I don't know.17 Q. Did the Secretary of State or the Election 18 Division take a public position on HB 218?19 A. I think the Secretary of State at that time was 20 Roger Williams. He may have. I -- but the Elections 21 Division did not.22 Q. Do you recall that secretary -- Secretary of 23 State Williams made a public comment about photo ID not 24 likely increasing the level of voter turnout? Do you 25 recall that statement?






101

1 A. No.2 Q. Do you know whether he held that belief?3 A. I -- I don't know if he held that belief. I 4 don't remember that, him saying that.5 Q. Do you agree with that sentiment?6 A. Whether requiring voter ID would increase voter 7 turnout?8 Q. Will not increase voter turnout?9 A. The statement is requiring voter ID will not

10 increase voter turnout?11 Q. Correct.12 A. I don't know that I would agree with that.13 Q. Do you think it will increase voter turnout?14 A. I don't know that anyone knows what increases 15 voter turnout. And a lot of bills that were designed to 16 increase voter turnout have not. So I don't know that 17 it's -- I don't know that I agree with that statement.18 Q. Is it your testimony that you can't predict 19 whether it will increase voter turnout?20 A. That's true. I couldn't predict whether it 21 would increase voter turnout.22 Q. Did you or the Division play any role in the 23 development of drafting of HB 218?24 A. No. I don't believe we did.25 Q. Did anyone in the legislature or legislative

102

1 counsel contact the Elections Division concerning HB 2 218?3 A. Did anybody in the legislation or where else? 4 Q. Legislative counsel, the TLC.5 A. Probably.6 Q. Do you remember that happening?7 A. I don't know if it was for this year or another 8 year, but they would contact us on a bill like -- like 9 this, that's making a lot of changes to the election

10 code.11 Q. I guess I'm trying to figure out with just -- 12 just with regard -- turning your attention just with 13 regard to HB 218, do you recall such communications?14 A. I don't specifically recall them, but that 15 doesn't mean they didn't happen.16 Q. Do you think it would have, based on your 17 experience at the Division, it would have been likely 18 that either the legislature, a member of committee staff 19 and/or the Legislative Counsel would have contacted the 20 Elections Division about -- 21 A. Yes. I think that would be likely.22 Q. And I believe you just testified that they 23 ordinarily would when there were changes to the code as 24 significant, expansive, substantial, as the ones 25 contained in this HB 218; is that correct?

103

1 A. Yes.2 Q. Do you recall whether the -- whether the 3 Division provided any information to the legislature 4 concerning HB 218?5 A. Information as in data or? 6 Q. Data, factual analysis, any information broadly 7 defined.8 A. We -- we probably testified as a resource on 9 the bill. I don't recall any other data being exchanged

10 in 2007.11 Q. Do you recall any requests for information?12 A. Well, I take that back. The House Elections 13 Committee may have asked for data in 2007 related to 14 some of these -- some of the issues related to voter 15 registration.16 Q. And by that you mean specifically?17 A. Well, and I'm -- again, I am confusing the 18 sessions. I don't really remember if it was 2007 or 19 2009, but the House Elections -- House Elections 20 Committee, at least one or both of those sessions, asked 21 questions regarding the number of registered voters, who 22 registers with driver's license, who registers with 23 Social Security number, and I believe these were 24 questions that were asked at organizational meeting of 25 the House Elections Committee.

104

1 Q. Was that in the public record in the hearing?2 A. Yes.3 Q. Did any staff ask you separately for that 4 information, or was it simply confined to the public 5 record?6 MR. MORTARA: Ms. McGeehan, if the 7 specific information is part of the question, which I'm 8 not clear it is.9 Is the question any information or the

10 specific set of information that Ms. McGeehan just 11 discussed? Ms. Westfall, I need you to clarify the 12 question.13 MS. WESTFALL: Could you repeat back the 14 question?15 MR. MORTARA: The question just said any 16 information. 17 MS. WESTFALL: Could you repeat back the 18 question? 19 (Requested portion read back by the court 20 reporter.)21 Q. (By Ms. Westfall) I was referring back to 22 information about the number of registered voters who 23 registered with a driver's license or Social Security 24 number.25 MR. MORTARA: You may not answer that






105

1 question with respect to any legislator not on this list 2 or their staff. You may answer it with respect to these 3 legislators.4 A. Right. What I'm remembering are questions that 5 Representative Anchia asked at the hearing, but again, I 6 am a little bit fuzzy on whether that was '07 or '09. 7 And it's possible one of his staff members called back 8 to clarify. I don't think so. I think the requests 9 were coming directly from Representative Anchia.

10 Q. Do you recall any -- was Representative Anchia 11 opposed to HB 218?12 A. Yes.13 Q. Aware you aware of any other requests from any 14 other members who were opposed to HB 218 for requests 15 for information? 16 MR. MORTARA: Again, you may answer with 17 respect to the legislators on this list and not others.18 MS. WESTFALL: Are you taking the position 19 that the Attorney General is representing bill opponents 20 who are not on that list? 21 MR. MORTARA: No.22 MS. WESTFALL: Because that seems to be 23 contrary to the position that's been taken in this 24 litigation previously.25 MR. MORTARA: The position the State is

106

1 taking is that Ms. McGeehan may not inadvertently or 2 intentionally breach a legislator's privilege, unless 3 that legislator has affirmatively waived the privilege. 4 And since Ms. McGeehan does not hold the privilege, she 5 cannot act to break the privilege. And therefore, she 6 may only answer, not with respect to whether something 7 opposed the bill or supported the bill, but with respect 8 to whether that legislator has affirmatively waived 9 privilege with respect to voter ID issues. That list is

10 in front of her, and she answer with respect to 11 representatives on that list.12 MS. WESTFALL: I just want to represent on 13 the record that your cocounsel early in this litigation 14 indicated that the office of the Texas Attorney General 15 does not represent bill opponents and that we could 16 freely contact bill opponents. So, therefore, which is 17 -- which is related to this very issue, and I take 18 strong issue with your assertion that only individuals 19 on this list are folks that she can testify to. There 20 are other legislators who are bill opponents.21 MR. MORTARA: I don't think there's any 22 inconsistency here, Elizabeth. You may freely contact 23 any legislator you want, who oppose the bill, and ask 24 them if they're willing to waive their privilege. 25 Absolutely, go right ahead. Ms. McGeehan is not one of

107

1 those people. She is instead someone who may have had 2 conversations with legislators, and she cannot waive a 3 legislator's privilege for that legislator. That's why 4 she may only answer with respect to the list of names I 5 put in front of her.6 MS. WESTFALL: Okay. We can discuss this 7 further in a break.8 Q. (By Ms. Westfall) Other than 9 Representative Anchia -- first of all, are you following

10 the advice of counsel on this privilege issue?11 A. I'm trying to. Yes.12 Q. Are there any other representatives besides 13 Representative Anchia who contacted the Division about 14 or had any communications with the Division about HB 15 218? 16 MR. MORTARA: You may answer that question 17 completely without any limitation whatsoever.18 A. In 2007?19 Q. (By Ms. Westfall) Yes. 20 A. 2007 session. I really don't recall anyone 21 other than representative Anchia requesting specific 22 data on House Bill 218.23 Q. Did you have any other communications, or are 24 you aware of any communications between the Division and 25 anyone else in the government outside of the legislature

108

1 concerning HB 218?2 A. In state government but not in the state 3 legislature -- 4 Q. Correct.5 A. -- about 218? I don't recall any.6 Q. Do you recall any communications with the 7 Governor's office?8 A. No.9 Q. Do you recall any conversations with the

10 Lieutenant Governor's office?11 A. No.12 Q. Did the Division receive any request to conduct 13 any analysis of HB 218?14 A. We didn't receive any requests to analyze. 15 Q. Did you nevertheless conduct any analysis?16 A. Yes. It's our standard procedure to analyze 17 any election-related bill, and we -- well, attorneys 18 will do a bill analysis so that we can be prepared if 19 that bill is heard in committee.20 Q. Can you describe that bill analysis procedure?21 A. It's usually assigned to an attorney to do a 22 bill analysis, you know, kind of summarize the bill. It 23 goes to the legal director to review. Then it goes to 24 me. Or it would go to me. And then sometimes, you 25 know, depending on our general counsel, sometimes they






109

1 would want to see those. Sometimes not.2 Q. Can you tell me, generally, what factors the 3 analysis considers?4 A. Fiscal impact is a standard, because every 5 state agency has to analyze the bill as a fiscal 6 impact. We would analyze it whether it required 7 submission preclearance, effective date -- those are the 8 some of the standard things. But, you know, the heart 9 of it was really just a summary of what the bill did.

10 Q. With regard to preclearance, does the analysis 11 generally include any indication of steps that should be 12 taken to ensure that the increase of likelihood that the 13 bill would be precleared if enacted?14 A. No. It's really intended to identify, 15 basically, that's the beginning of our list to determine 16 what needs to get precleared.17 Q. Did the Division receive any requests to 18 determine who among registered voters did not possess 19 the required forms of ID?20 A. Did the bill possess?21 Q. Did the Division receive any requests to 22 determine who among registered voters did not have the 23 form of ID? 24 MR. MORTARA: Ms. McGeehan, you may not -- 25 you may -- you may not answer that question with respect

110

1 to legislators that do not appear on this list or their 2 staff. You may answer the question with respect to the 3 legislators that do appear on this list or their staff 4 or anyone else that is not the Lieutenant Governor or 5 Governor or legislators that appear not on this list. 6 And Ms. Westfall, for clarification, 7 my problem is that you've included more in there than 8 just what would be on the privilege log.9 MS. WESTFALL: I understand. I'm making

10 my record. You are too.11 Q. (By Ms. Westfall) You may answer. Are you 12 following the advice of counsel? 13 A. Oh, no. I'm trying to think of what the answer 14 is. I think that in -- as best as I can remember, I 15 believe it was only Representative Anchia that requested 16 that kind of information.17 Q. Does any -- any of your answer, in part, are 18 you asserting privilege over any information and not 19 providing it to us in this deposition? 20 MR. MORTARA: I'm instructing you not to 21 answer with respect to legislators that do not appear on 22 this list or Lieutenant Governor or the Governor.23 A. Okay.24 Q. (By Ms. Westfall) Mr. Anchia is on that list, 25 is he not?

111

1 A. Yeah. So he's waived.2 Q. I want to know whether you are asserting 3 privilege over any part of your answer pursuant to your 4 counsel's advice? 5 MR. MORTARA: Ms. Westfall, the problem I 6 have is Ms. McGeehan does not assert privilege. I'm 7 giving her instructions to maintain legislative 8 privilege. So she doesn't assert privilege, because 9 she's not the holder.

10 MS. WESTFALL: I understand.11 MR. MORTARA: So I have a problem with 12 your question in that it implies that Ms. McGeehan gets 13 to decide, which she does not.14 MS. WESTFALL: I certainly -- I understand 15 your position on that. You've made it clear for the 16 record. What I want to know is -- what I'm trying to 17 elicit from her is whether there's any reason for us to 18 consider to moving to compel a response further if there 19 is any privileged material to which we are not entitled 20 to examine the witness during this deposition.21 MR. MORTARA: Yes. And I have instructed 22 her not to answer your question, this particular 23 question, with respect to legislators that do not appear 24 on the list in front of her, the Lieutenant Governor or 25 the Governor. And along as she follows my

112

1 instruction -- 2 MS. WESTFALL: Including the Lieutenant 3 Governor and Governor?4 MR. MORTARA: Yes.5 MS. WESTFALL: Is that what you just 6 said? 7 MR. MORTARA: Yes. As far as I know --8 MS. WESTFALL: I don't think the Governor 9 is a legislator.

10 MR. MORTARA: -- he's maintained a 11 privilege with the Governor that would be deliberative 12 process if he communicates with the Secretary of State. 13 That's the Governor's deliberative process .14 MS. WESTFALL: So this a new privilege 15 that's being asserted in this litigation -- I mean in 16 this deposition? 17 MR. MORTARA: Isn't this the one that we 18 just filed briefs on like last night? 19 MS. WESTFALL: We just -- I examined the 20 witness this morning about privileges that she's 21 asserting. Are you now asserting deliberative process? 22 MR. MORTARA: Yeah, this is the Governor's 23 privilege, deliberative process, not hers. I'm not 24 asserting her deliberative process privilege. The 25 Governor has a deliberative process privilege. If,






113

1 hypothetically, the Governor were to ask somebody at the 2 Secretary of State's Office, "Tell me how to do A, B and 3 C," that is within the Governor's deliberative process 4 privilege, as I understand it's being litigated right 5 now. If Mr. Freeman wants to correct me, he can, but I 6 believe that is within that -- and again, I agree with 7 what Mr. Freeman just whispered: The actual facts, the 8 actual information is not privileged. As the example I 9 used when we were off the record earlier, lawyer sends

10 the client e-mail, "We have a problem." Attached to the 11 e-mail is a document. The document is not privileged; 12 it is factual. It must be produced. But the underlying 13 communication is privileged. That's the position the 14 State's taking and will continue to take it unless, off 15 the record, Mr. Freeman wants to tell me that's not the 16 current subject of motions that are subjudiciary on the 17 Governor's deliberative process privilege.18 MS. WESTFALL: No, you can direct the 19 questions to me. I'm aware of the briefing on this 20 case.21 MR. MORTARA: Okay.22 MS. WESTFALL: I'm the lead counsel so -- 23 we're briefing it.24 Q. (By Ms. Westfall) Are you aware, Ms. McGeehan, 25 of any attempt to determine the impact of HB 218 on

114

1 minority voters?2 A. I'm not aware.3 Q. Are you aware of any communication about the 4 impact of HB 218 on minority voters?5 A. I'm sorry? 6 Q. Are you aware of any communications? My first 7 question was about attempts, and you said no. My second 8 question is about communications, about the impact of HB 9 218 on minority voters.

10 A. There was probably testimony at the hearing on 11 that point.12 Q. Outside of that testimony, are you aware of any 13 other communications concerning the impact of HB 218 on 14 minority voters?15 A. Not that I recall.16 Q. In advance of the 2007 legislative session, did 17 the Division or the Secretary of State develop 18 legislative priorities for the session?19 A. I'm certain we developed a list of cleanup 20 legislation like, you know, we usually do.21 Q. Were you involved in the development of that 22 agenda?23 A. Yes.24 Q. Did the priorities include photo ID?25 A. No.

115

1 Q. And why did it not?2 A. We consider that a policy issue that we would 3 not be making recommendations on.4 Q. And I believe you testified earlier that HB 5 1706 allowed a form of photo ID by county election 6 officials and HB 218 does not; is that correct?7 A. I'm sure that's right. I just -- I don't see 8 that in here. So I agree that it does not appear to 9 authorize that.

10 Q. Do you know why it wasn't included as a form of 11 ID in HB 218?12 A. No.13 Q. Are you aware of any communications regarding 14 the exclusion of this form of photo ID from HB 218?15 A. No.16 Q. Are you aware of any communications between the 17 legislature and county election officials regarding HB 18 218?19 A. No.20 Q. Did the legislature hold hearings on HB 218?21 A. I'm pretty sure they did.22 Q. And were you invited to testify?23 A. I'm sure I was.24 Q. Did you accept this invitation?25 A. I'm you sure I did, yeah.

116

1 Q. In what capacity did you testify?2 A. As a resource witness.3 MR. MORTARA: Ms. Westfall, we've hit 4 another over-an-hour period. I don't know if you want 5 to do lunch, or Ms. McGeehan wants to do lunch, but I 6 know Chris probably needs a break. 7 MS. WESTFALL: Certainly. We will do 8 lunch. Well, you know what, why don't we get through a 9 little bit more. Can you wait ten more minutes more?

10 Get through the hearing so we can finish up this line. 11 Could you mark this as 284?12 (Exhibit 284 marked for identification.)13 Q. (By Ms. Westfall) You've been handed what's 14 been marked 284. Do you recognize this document?15 A. Yes.16 Q. What is it?17 A. It is a transcript of the Senate State Affairs 18 Committee hearing on April 30th.19 Q. Directing your attention -- and this, for the 20 record, is an excerpt of the hearing transcript focusing 21 on your remarks at that hearing. I'm sure your counsel 22 won't disagree with that representation. 23 If I could turn your attention to Page 99 24 of this transcript, and it is Bates stamped 25 TX_00213364. Do you see that?






117

1 A. Yes.2 Q. That's where the exchange begins between you 3 and Senator Van de Putte. Do you see that?4 A. Yes.5 Q. And I believe you testified in response to 6 questions from Senator Van de Putte that in the past 7 four years, the Division had not received any complaints 8 about voter impersonation; is that correct?9 A. Let me take a second to read it here.

10 Q. Certainly. Certainly.11 A. (Witness reading.) Okay. Yes. That's -- I 12 reviewed my testimony with Senator Van de Putte.13 Q. And you did -- and you testified that the 14 Division had not received any complaints about voter 15 impersonation in the previous four years -- 16 A. Yes.17 Q. -- prior to your testimony; is that right?18 A. That's correct.19 Q. Apart from this testimony at the hearing, did 20 you or the Division provide anyone with additional 21 information about complaints of voter impersonation?22 A. I don't think so.23 Q. And do you see that on the next page, Page 101 24 of this exhibit, that you had an exchange with Senator 25 Lucio?

118

1 A. Yes.2 Q. Do you see that in response to a question from 3 Senator Lucio, that there's no law that holds election 4 judges accountable for failing -- that there is no law 5 holding election judges accountable for failing to 6 report voter impersonation? Do you see that?7 A. Let me just take a second to read that.8 Q. On Page 101.9 A. (Witness reading.) Yes, I see that.

10 Q. Do you have any facts or information for 11 believing that the fact that there is no such law 12 accounts for the absence of complaints of voter 13 impersonation that the Election Division has received?14 A. Complaints from election judges, you mean? 15 Q. The fact that there's no law holding election 16 judges accountable for not reporting voter 17 impersonation?18 A. And whether that -- the lack of that -- not 19 having that law, whether that impacts on? 20 Q. The number of reported allegations of in-person 21 voter impersonation that the Division has received?22 A. I -- I don't think that would have much of an 23 impact.24 Q. Turning your attention to Page 104 of Exhibit 25 284, do you see that you had an exchange with Senator

119

1 Ellis?2 A. Yes. I'm going to just read that here real 3 quickly.4 Q. Certainly. Let me know when you've had a 5 chance to take a look at it.6 A. (Witness reading.) Okay. I've read that.7 Q. Do you see that Senator Ellis asked you whether 8 the Division had any discussions about policy 9 initiatives to find voter fraud? Right?

10 A. Yes.11 Q. And in response you indicated that your office 12 for the past couple of years had been focusing on 13 implementation of HAVA; is that correct?14 A. That's correct.15 Q. Is it fair to say that voter impersonation was 16 not the focus of the Division in 2007?17 A. Yes.18 Q. And the Division had not made research on voter 19 impersonation a priority that year?20 A. Right.21 Q. And the Division, as a general matter, has 22 limited resources, correct?23 A. Yes.24 Q. And why had the Division decided not to devote 25 resources towards the issue of voter impersonation in

120

1 2007?2 A. We hadn't been directed to. It was no law 3 requiring us to study it, or we were trying to comply 4 with the laws on the books.5 Q. Was it also because it wasn't much of a 6 problem?7 A. I couldn't say that.8 Q. Do you have any facts to indicate anything to 9 the contrary?

10 MR. MORTARA: Objection, form.11 Q. (By Ms. Westfall) You may answer. 12 A. I don't have any facts on that.13 MS. WESTFALL: Thank you. Okay. Let's 14 take a break now. I think it's a good breaking point.15 (Lunch recess from 12:36 to 1:36 p.m.)16 Q. (By Mr. Westfall) Before the break, we were 17 discussing HB 218. Were you aware of whether any of the 18 supporters of HB 218 argued that the bill would prevent 19 noncitizens from voting?20 A. I don't recall that.21 Q. Do you recall hearing that Representative 22 Brown, Betty Brown stated on the House Floor that the 23 bill was designed to keep illegal aliens, noncitizens, 24 and other people otherwise not qualified from voting?25 A. I don't recall that.






121

1 Q. Are you aware that Lieutenant Governor Dewhurst 2 argued in 2007 that photo ID laws would prevent 3 noncitizens from voting?4 A. No.5 Q. And based on your knowledge of the election 6 code, would to HB 218, if enacted, prevent noncitizens 7 from voting?8 A. You know, only if they couldn't present the 9 forms of ID that are required.

10 Q. In other words, it wouldn't -- to your 11 knowledge, it would not prevent noncitizens from voting?12 A. Well, unless a noncitizen was unable to obtain 13 one of these forms of ID.14 Q. But that would not be particularized to having 15 the status of being a noncitizen; is that correct? That 16 would be related to whether they had ID, allowable ID in 17 HB 218?18 A. Right. That was my point. If, as being a 19 noncitizen, they were unable to obtain one of kinds 20 forms of ID.21 Q. Thank you.22 Are you aware of whether a noncitizen can 23 obtain a Texas driver's license?24 A. My understanding is that a person has to have 25 legal residence in the state, so a noncitizen who is

122

1 here legally could get a driver's license is my 2 understanding.3 Q. And is it your understanding that a noncitizen 4 could obtain a concealed handgun license?5 A. I don't know.6 Q. Could a noncitizen obtain a military ID?7 A. I don't think so, but I don't know the answer 8 to that.9 Q. If a noncitizen became registered to vote, a

10 photo ID requirement for voting would not prevent that 11 person from voting; is that right?12 A. Well, again, I think it would relate to what ID 13 was required, and if a noncitizen was unable to obtain 14 one of the forms of ID, then that, I guess, would 15 prevent them from voting.16 Q. And assuming they were able to obtain one of 17 those forms of ID, a photo ID would not prevent that 18 individual from voting; is that right?19 A. That's right, if they had one of the permitted 20 forms of ID.21 Q. There has been deposition testimony in this 22 case that enacting photo ID law requiring voters to 23 present photo ID at the polls would deter ineligible 24 voters from attempting to register to vote. Do you have 25 any facts or information that would support that

123

1 statement?2 A. No.3 Q. Would you agree that if the prevention of 4 noncitizen voting was a purpose of HB 218, that, in 5 fact, HB 218 would not be serving that purpose? 6 MR. MORTARA: Objection, calls for 7 speculation.8 Q. (By Ms. Westfall) You may answer.9 A. The question is, if the purpose of 218 was to

10 prevent noncitizens from voting? 11 Q. Would HB 218, in fact, serve that purpose?12 A. To the extent that a noncitizen was unable to 13 obtain one of the forms of ID, then it would help 14 accomplish that purpose.15 Q. And not to any other extent; is that right?16 A. To my understanding, uh-huh.17 Q. Would you say that there is not a nexus between 18 photo ID requirements imposed at the polls on election 19 day and preventing noncitizens from voting on the basis 20 of their citizenship status?21 A. I don't recall there being -- at least the 22 hearings that I was present at, I don't recall there 23 being a lot of testimony on that. Whether, you know, 24 the overall concept of having tighter requirements at 25 the polls, whether that would discourage voter fraud

124

1 overall, you know, that's possible. I don't know.2 Q. Do you have any facts to support that 3 supposition?4 A. Which supposition?5 Q. The one that you just testified to, that 6 stricter --7 A. Having more stricter? No.8 Q. Are you familiar with the Crawford decision 9 issued by the U.S. Supreme Court in 2008?

10 A. Yes.11 Q. Did you review that decision when it was 12 issued?13 A. I did. It was a while ago, but I did read it.14 Q. Was it in 2008 when it was issued?15 A. Yes.16 Q. Do you believe it impacted the ability of 17 states to craft photo ID laws?18 A. Impacted how? As far as constricted or --19 Q. Do you think it had any ability or any effect 20 on the ability of states to craft and enact photo ID 21 laws?22 A. I would say yes.23 Q. How?24 A. I think that it -- by ruling that there were no 25 federal constitutional issues, that sort of freed up






125

1 that as an argument at the state level.2 Q. Do you believe it impacted the ability of 3 states covered by Section 5 of the Voting Rights Acts to 4 obtain preclearance of a photo ID law?5 A. I think it probably has some bearing, but the 6 state, you know, still has to obtain Section 5 7 preclearance. It's not -- you still need to go through 8 the process, even though the Crawford case was decided.9 Q. What is your understanding of the bearing that

10 it has on Section 5?11 A. Well, I don't know that it has a direct impact 12 on the Section 5 process.13 Q. When you were at the Elections Division in 14 2008, when the opinion was issued, did your change your 15 procedures at all, with regard to Section 5 submissions, 16 as a result of the Crawford decision?17 A. No.18 Q. After Crawford, do you believe that states 19 covered by Section 5 of the Voting Rights Act need not 20 conduct any analysis of the impact of photo ID laws on 21 minority voters?22 A. No.23 Q. And why do you say that?24 A. I don't think the Crawford case spoke to 25 Section 5 issues.

126

1 Q. Did you ever communicate that view to the State 2 Legislature?3 A. No.4 MR. MORTARA: Again, you may answer the 5 question with respect to public hearings. 6 A. Publicly, yes, I have not.7 MR. MORTARA: And with respect to the 8 legislators on this list, but not with respect to 9 legislators not on this list.

10 MS. WESTFALL: I was examining the witness 11 about facts and information she provided in the Election 12 Division. Are you still objecting --13 MR. MORTARA: Yes.14 MS. WESTFALL: -- to that question? 15 MR. MORTARA: Yes.16 Q. (By Ms. Westfall) Was there a photo ID bill 17 introduced in the Senate in 2009?18 A. Yes.19 Q. Do you remember the bill number?20 A. No.21 Q. I'm going to hand you what's been previously 22 marked as U.S. Exhibit 29.23 You have been handed what's been 24 previously marked U.S. Exhibit 29. Do you recognize 25 this exhibit?

127

1 A. Yes.2 Q. What is it?3 A. Senate Bill 362 from 2009.4 Q. Do you know who it was introduced by?5 A. Senator Fraser, I believe.6 Q. Could you describe the -- could you describe 7 the forms of ID that are allowable under Senate Bill 8 362? And I would direct your attention to Page 5 of 9 Exhibit 29.

10 A. Okay. Okay. It permitted one form of 11 identification, as listed in 63.0101A, and 0101A was 12 photo identification including driver's license, 13 military identification card, U.S. citizenship 14 certificate, passport, license to carry a concealed 15 handgun, and also a valid identification card that 16 contains a person's photograph and is issued by an 17 agency of the federal government or of the state 18 government.19 And then also permitted, as proof of 20 identity, two forms of nonphoto ID, I think, and that 21 would include the voter registration certificate, 22 official mail from a governmental entity with the 23 person's address, a certified copy of birth 24 certificate, U.S. citizenship papers, a certified copy 25 of a person's marriage or divorce decree, court records

128

1 of a person's adoption, name change or sex change, 2 identification card issued to a person by the state or 3 the United States for obtaining public benefits, 4 including veterans' benefits, Medicaid or Medicare, a 5 temporary driving permit, pilot's license, library card, 6 or a hunting or fishing license.7 Q. Thank you. And to your knowledge, does this 8 include student IDs in the list of acceptable photo IDs? 9 Drawing your attention to cards issued by agencies or

10 institutions or political subdivisions of the state. 11 A. Is that under the second list?12 Q. It's under the first.13 A. The first list? 14 Q. Uh-huh.15 A. Yeah, I think that would probably include it, 16 from a public university.17 Q. And in comparing Exhibit 28, HB 218, with 18 Senate Bill 362, does it appear that for the most part, 19 the two bills are relatively similar in terms of 20 allowable ID?21 A. Yes.22 Q. Did the Secretary of State or Elections 23 Division take a public position on Senate Bill 362?24 A. No.25 Q. Were you or the Division involved in the






129

1 development or drafting of Senate Bill 362?2 A. Not as it was filed.3 Q. After it was filed, were you involved?4 A. Yes.5 Q. So why did you say not as it was filed? What 6 did you mean?7 A. Nobody -- this was not -- before it was filed, 8 nobody asked us to review it or comment on it on 9 anything.

10 Q. Thank you for your testimony.11 Was there a time after it was filed that 12 the Division was asked to provide any assistance or 13 guidance with Senate Bill 362?14 A. This may be covered by the legislative 15 privilege. 16 MR. MORTARA: You can answer with respect 17 to legislators on the list and not with respect to 18 others. That's a standing instruction. If you can 19 state that, when you're answering the question, that 20 will make things move faster and allow Ms. Westfall to 21 get through her questions, but otherwise, I can --22 A. I guess the communication that I had -- well, 23 there were some communications that were at public 24 committee meetings, and any other communications that I 25 might have had, I probably can't testify to.

130

1 Q. So you're asserting privilege over those other 2 communications; is that correct?3 A. Yes.4 Q. Could you tell me what information you provided 5 in response to those inquiries, what factual information 6 you provided? 7 MR. MORTARA: Ms. McGeehan, what 8 Ms. Westfall is getting at is, without disclosing 9 anything else about the communication, you can testify

10 about what information the Secretary of State had about 11 Senate Bill 362. You cannot testify as to whom you 12 communicated that information, and if that person's name 13 is not on this list. Do you understand?14 THE WITNESS: Uh-huh, right.15 MR. MORTARA: So you can testify as to 16 what information the Secretary of State or you or the 17 Elections Division had on Senate Bill 362.18 A. During the session, our office provided 19 information concerning, again, sort of, technical 20 information on how to make certain processes work within 21 the election code and how if other sections needed to be 22 amended in order to make this law work.23 Q. (By Ms. Westfall) Was that kind of conforming 24 technical amendments?25 A. Yes.

131

1 Q. Is that how you would describe them? And could 2 you tell me what particular sections of the code you 3 provided information on, from a subject matter-wise, not 4 the particulars. 5 A. I think it was generally provisions in 6 Chapter 64 concerning what a voter presents and 7 technical changes on, you know, a voter who doesn't have 8 a certificate and what they have to present and issues 9 like that. I'm thinking it was mostly Chapter 64-type

10 issues.11 Q. That related to the forms of ID or provisional 12 ballots or --13 A. To how ID relates to qualifying a voter. So 14 Chapter 64 talks about accepting a voter for voting and 15 we provided some information on how to, you know, 16 integrate this new requirement into those existing 17 requirements.18 Q. Is there any other information that you 19 supplied concerning Senate Bill 362?20 MR. MORTARA: And again, with my prior 21 instruction. 22 THE WITNESS: Uh-huh.23 A. There were again, you know, public hearings. 24 Representative Anchia may have asked for additional -- 25 for data in 2009. I think he did. And I think that's

132

1 about it.2 Q. (By Ms. Westfall) When did you provide this 3 information to the Senate? At what point in the 4 legislative process?5 A. Which -- which information?6 Q. The technical information that you just 7 testified about. 8 A. That was later in the session, like maybe 9 April.

10 Q. Was that after --11 A. After it had passed the Senate and it was in 12 the House.13 Q. Were there any exchanges of documents between 14 you and the -- between the Division and the Senate 15 pertaining to those technical corrections or technical 16 advice or information?17 A. No, I don't think so.18 Q. How did you communicate that information you 19 just testified about?20 A. We met.21 Q. How many people were at that meeting?22 A. I think four. 23 Q. Was Legislative Council at that meeting, the 24 Texas Legislative Council?25 A. No, I don't -- I don't think so. I don't






133

1 remember, to be honest with you.2 Q. Was it only staff and legislators?3 A. They may have been brought in on the phone, the 4 Legislative Council.5 Q. Was that the sole meeting that you had with 6 anyone in the Legislature or any -- strike that.7 Was that the sole communication that you 8 had with the Legislature about SB 362?9 A. No.

10 Q. When was the next communication you had with 11 the Senate about 362?12 A. There was probably an earlier privileged 13 conversation, actually, that I --14 Q. Was that before the bill was filed?15 A. No, but it was before the bill was heard in the 16 Senate.17 Q. And was that meeting with staff and members of 18 the Senate? 19 MR. MORTARA: You could say who the 20 meeting was with. You can identify the participants of 21 the meeting. 22 THE WITNESS: The category, not the names, 23 or the names? 24 MR. MORTARA: You can identify the people 25 by their names, who were present at the privileged

134

1 meeting that you're referring to. You can identify 2 their names and you can identify when it happened, and 3 you've already identified the subject matter as being 4 Senate Bill 362. So you answer Ms. Westfall's question, 5 which is broadly getting to who was there.6 Q. (By Ms. Westfall) Who was at the meeting?7 A. Me, Elizabeth Winn, Senator Fraser, Janice 8 McCoy, and John Sepehri.9 Q. Was that the first meeting you had about 362

10 with anyone in the Senate?11 A. Yes, I think so.12 Q. And that was before the Senate heard --13 A. Heard the bill.14 Q. -- the bill?15 A. (Witness nods head yes.) 16 MS. WESTFALL: Would you mark this as 285? 17 Thank you.18 (Exhibit 285 marked for identification.)19 Q. (By Ms. Westfall) You have been handed what's 20 been marked U.S. 285. Do you recognize this document?21 A. Yes. I guess it's just showing the bill 22 history of Senate Bill 362.23 Q. And turning your attention to the second page, 24 can you see that the bill was filed in December 2008?25 A. Yes.

135

1 Q. Ann when was it considered by the Senate?2 A. Considered for public hearing on March 10th, 3 2009.4 Q. Was it your testimony that you met with Senator 5 Fraser, Ms. McCoy, and Ms. Winn before March 10th?6 A. Yes.7 Q. Could you tell me the general nature of that 8 communication? 9 MR. MORTARA: Ms. McGeehan, you have

10 already told her the general nature of the 11 communication, and you're not to say anything beyond it 12 was about Senate Bill 362.13 Q. (By Ms. Westfall) Did you provide any 14 information to Senate Fraser or Ms. McCoy after that 15 meeting? 16 MR. MORTARA: You may answer that question 17 yes or no, and to clarify it for the record the reason 18 is privileged. And if you want to keep --19 Generally, the reason that I'm saying 20 these things is privilege. Do you want to keep me 21 saying that on the record? It's up to you, 22 Ms. Westfall. 23 MS. WESTFALL: You can have a standing 24 objection, as long as your witness understands it. But 25 I'm asking her about factual information, so I think I

136

1 should be able to examine her on that. 2 MR. MORTARA: I think it's a yes or no, 3 and I'm just trying to make sure that you just answer 4 the question yes or no.5 A. Did we provide any other information to --6 Q. (By Ms. Westfall) Following that meeting before 7 March 10th, 2009, with Senator Fraser and Ms. McCoy and 8 Ms. Winn. 9 A. No.

10 Q. Did you provide them with any documentation or 11 analysis after that meeting?12 A. I did not.13 Q. Did Ms. Winn?14 A. She did not either.15 Q. Did you have any communications with anyone on 16 the Governor --17 A. At least I don't think -- I honestly don't 18 remember if we did. I don't think we did.19 Q. Did you have any communications with anyone in 20 the Governor's Office about Senate Bill 362?21 A. No.22 Q. Did you have any communications with anyone in 23 the Lieutenant Governor's Office about Senate Bill 362?24 A. No.25 Q. Did any of the bill's opponents contact you,






137

1 outside of the hearing process, about Senate Bill 362?2 A. I don't think so.3 Q. And besides the meeting that you had with 4 Ms. McCoy, Senator Fraser, Ms. Winn, before March 10th, 5 2009, and this subsequent meeting that you had, was it 6 with the same people?7 A. No.8 Q. Who was it with? I'm talking about the meeting 9 in April.

10 A. That was with -- on the -- that was after it 11 passed the Senate, and it was with Chairman Smith's 12 staff that was in charge of this bill. His first name 13 is -- Travis Richmond is his name. It's Travis 14 Richmond, me, John Sepehri. Steven Schar may have been 15 there. I don't remember that well. And Elizabeth Winn 16 might have been there. I don't remember if she was 17 there or not. And that was the conversation where we 18 may have brought in Leg Council.19 Q. Were there any other meetings that you had with 20 any other legislators or their staff about Senate Bill 21 362?22 A. I don't think so.23 Q. And getting back to my previous question: Did 24 any of --25 A. Well, let me think. No, there weren't.

138

1 Q. Did any of the bill's opponents contact you or 2 anyone in the Division about Senate Bill 362?3 A. I don't remember it, if they did.4 Q. Did the Division receive any request to conduct 5 any analysis of Senate Bill 362, other than what you 6 have already testified to?7 MR. MORTARA: You may answer that question 8 with respect to the legislators on this list, not with 9 respect to other legislators.

10 A. Representative Anchia, I believe, asked similar 11 questions in 2009 that he asked in 2007, and so we 12 provided that data to him and to the whole House 13 Elections Committee.14 Q. (By Ms. Westfall) What did Representative 15 Anchia ask for?16 A. He asked for, you know, voter registration 17 numbers. He asked for the number of voters that 18 registered with driver's license as opposed to social 19 security number. He asked for information about the 20 number of referrals we had made to the Attorney 21 General's Office for election code for criminal 22 violations. He may have asked -- well, there may have 23 been one or two other questions on there, but that was 24 the big part of it, I think.25 Q. Did he make that request in writing?

139

1 A. No.2 Q. Did you respond in writing?3 A. Yes, I think we did.4 Q. And in response to my question about whether 5 any of the bill's opponents have contacted the Division 6 about Senate Bill 362, you have just testified, did you 7 not, that Representative Anchia made a request, and your 8 counsel advised you not to testify to the extent any of 9 the information was privileged, were you asserting

10 privilege in that response in part? 11 MR. MORTARA: Ms. Westfall, I think my 12 instruction speaks for itself.13 Again, Ms. McGeehan, it's not your 14 privilege to assert. My instruction to you is: Don't 15 answer the question with respect to legislators that do 16 not appear on this list.17 A. I think I answered the question.18 Q. (By Ms. Westfall) Okay. Did the Division -- 19 other than what you have just testified to in terms of 20 Representative Anchia, did the Division receive any 21 request to determine who among registers voters did not 22 possess the forms of allowable ID under Senate Bill 362?23 MR. MORTARA: The same instruction: Only 24 with respect to these legislators and not others.25 Q. (By Ms. Westfall) Can you answer?

140

1 A. Well, none of these legislators, other than 2 Representative Anchia, asked for that information.3 Q. Are you aware of any attempt to determine the 4 impact of Senate Bill 362 on minority voters?5 MR. MORTARA: You may answer that 6 question, if you can, with respect to communications you 7 had with these legislators, public hearings, but not 8 with respect to nonpublic communications you had with 9 legislators that are not on this list, the Governor's

10 Office or the Lieutenant Governor's Office.11 MS. WESTFALL: I would request that you 12 withdraw that objection. My question was: Are you 13 aware of any attempt to determine the impact of Senate 14 Bill 362 on minority voters. I did not ask about 15 communications.16 MR. MORTARA: You can answer the question 17 yes or no. I think the witness has already testified 18 that she --19 A. I mean, at the hearing, there were witnesses on 20 both sides on that point. So, I mean, that's what I'm 21 aware of. When it was heard on the Senate Floor, I 22 believe there were witnesses that testified to that.23 Q. (By Ms. Westfall) Are you aware of -- when you 24 say there were witnesses on both sides, you're saying 25 there were bill supporters who attempted to determine






141

1 the impact of Senate Bill 362 on minority voters, or is 2 it limited to bill opponents?3 A. I don't know if all the witnesses stated that 4 they were opposed to it, but in particular, I'm trying 5 to remember the name of the -- generally, I think they 6 were affiliated with the bill's opponents.7 Q. Thank you. In advance of the 2009 legislative 8 session, did the Division or the Secretary of State 9 develop legislative priorities for the session.

10 A. For 2009? 11 Q. Yes.12 A. Yes.13 Q. Were you involved in the development of that 14 agenda?15 A. Yes.16 Q. Did the priorities include photo ID?17 A. No.18 Q. And why didn't they?19 A. Because we only prepare recommendations on 20 technical issues, not policy issues.21 Q. Do you know which committee Senate Bill 362 was 22 referred to when it was filed in the Senate?23 A. I think it was heard by Committee of the Whole.24 Q. And what is your understanding of why that 25 referral occurred?

142

1 A. To be honest, I forget. I know there was a 2 reason. I don't really remember exactly what it was.3 Q. Would Senate Bill 362 ordinarily have been 4 handled by State Affairs?5 A. Yes, probably.6 Q. And who is in charge in the Senate of referring 7 bills to particular committees?8 A. Well, I believe the Lieutenant Governor.9 Q. Do you know whether Senate Bill 362 was

10 referred to the Committee of the Whole in order to 11 ensure that it would receive expedited consideration by 12 the Senate? 13 MR. MORTARA: Objection, foundation.14 Q. (By Ms. Westfall) You may answer.15 A. I really don't remember what the precise reason 16 was in '09.17 Q. Did it strike you as unusual that it had been 18 referred to the Committee of the Whole at the time?19 A. It was unusual.20 Q. Do you know whether the Lieutenant Governor has 21 any additional powers in the Committee of the Whole that 22 he doesn't have when the bill is in another -- being 23 heard before another committee?24 A. I'm really not an expert on the legislative 25 process, so I don't want -- I would be guessing.

143

1 Q. Do you know whether the Lieutenant Governor 2 referred Senate Bill 36 to the Committee of the Whole so 3 that he could play an more active role in managing the 4 bill in committee?5 A. I don't know. 6 MS. WESTFALL: Bear with me for one 7 minute. Can we take a short break? 8 MR. MORTARA: Sure.9 MS. WESTFALL: Thank you. Let's go off

10 the record for one sec. 11 (Recess in place from 2:08 to 2:09 p.m.)12 Q. (By Ms. Westfall) Do you know whether the 13 Committee of the Whole held a hearing on Senate Bill 14 362?15 A. When? 16 Q. Whether it did hold a hearing?17 A. Yes, they did.18 Q. Did you give testimony at that hearing? 19 A. No.20 Q. Do you know whether the hearing occurred around 21 March 10th, 2009?22 A. That sounds right.23 Q. Are you aware -- did you read the transcript or 24 hear any reports about that hearing, from any of your 25 colleagues or otherwise?

144

1 A. I watched portions of it.2 Q. Are you aware that during the hearing, the 3 bill's sponsor, Senator Fraser, was asked whether an 4 analysis of the racial -- analysis of voters without a 5 driver's license had been conducted?6 A. I don't remember that.7 Q. Following the hearing in March 2009, did the 8 Division submit any analysis of the racial composition 9 of voters who don't have a Texas driver's license to any

10 members of the Legislature or the Lieutenant Governor's 11 Office?12 A. No.13 Q. Did it surprise you that -- strike that.14 At any time after the hearing, did the 15 Division conduct or attempt to conduct an analysis of 16 the racial composition of voters who do not have a Texas 17 driver's license?18 A. No.19 Q. Was Senate Bill 362 enacted by the Legislature?20 A. No.21 Q. What happened to it?22 A. It passed the Senate. It did not get out of 23 the House, as I recall.24 Q. In 2010, did the House Elections Committee hold 25 a hearing about voter ID in the interim session?






145

1 A. I know they held -- in 2010? They probably 2 did. I don't remember exactly, to be honest with you.3 Q. Did Representative Smith chair that hearing?4 A. I believe so. Yeah, I'm starting to remember 5 it a little bit.6 Q. Did you testify at that panel?7 A. I probably did, yeah.8 Q. Did you testify that the Division had referred 9 24 election code cases for possible prosecution in the

10 past two years? Does that sound familiar?11 A. That sounds familiar.12 Q. And that was as of 2010; is that correct?13 A. If they had asked for that information, I would 14 have pulled what we had, and that sounds about right.15 Q. And of those 24, did you testify that two had 16 involved voter impersonation allegations?17 A. You know, I don't have a super clear memory of 18 it, but that sounds about right.19 MS. WESTFALL: Could you mark this? 20 (Exhibit 286 marked for identification.)21 Q. (By Ms. Westfall) You've been handed what's 22 been marked U.S. 286. Do you recognize this document?23 A. Yes. It appears to be an article from the 24 Houston Chronicle.25 Q. And if you see at the bottom of Exhibit 286, it

146

1 refers to your testimony before that panel. Do you see 2 that?3 A. Yes.4 Q. Could you take a look at that and let me know 5 when you've read the sentences?6 A. Yes, I have finished reading it.7 Q. And does it indicate that you had referred 24 8 election code cases for possible prosecution in the past 9 two years as of the date of this testimony; is that

10 right?11 A. Yes.12 Q. And that two had involved voter impersonation 13 allegations; is that correct?14 A. Right.15 Q. And that more than 20 million votes had been 16 cast in Texas general elections since 2002; is that 17 right?18 A. That's what it says.19 Q. Is this article accurate about what you 20 testified to before the panel?21 A. It probably is. I just -- I don't remember, 22 you know, everything I testified to on that. But I have 23 no reason to think it's not -- not an accurate summary.24 Q. In 2010, did you have any other information 25 about voter impersonation allegations that you conveyed

147

1 to law makers outside of this hearing?2 A. No.3 Q. Were these two allegations the sum total of 4 voter impersonation you were aware of in 2010?5 A. I believe so.6 Q. Are you aware of whether either of those two 7 voters you testified about in 2010 were ultimately 8 convicted of voter impersonation?9 A. I don't know.

10 Q. Who would know?11 A. The Attorney General's Office.12 Q. Before the 2011 session, were there any other 13 photo ID bills, in addition to the ones to which you 14 have testified about today, that you're familiar with?15 A. No, I don't think so.16 Q. Did you have any involvement in any other 17 drafting, development, or analysis of any other photo ID 18 bills that were introduced in either the House or Senate 19 before 2011 that you haven't already testified about?20 A. I don't think so.21 Q. Was a voter ID bill introduced in the Senate in 22 2011?23 A. Yes.24 Q. Was it Senate Bill 14?25 A. Yes.

148

1 Q. Did Senator Fraser introduce it?2 A. Yes.3 Q. He testified in deposition in this case that he 4 started to work on Senate Bill 14 on May 31st, 2009. 5 Was there a time that you learned about Senate Bill 14 6 being developed?7 A. No. I mean, not -- I learned of it when it was 8 filed.9 Q. So you did not see a draft of Senate Bill 14

10 before it was filed?11 A. No.12 Q. Are you aware of whether the Division provided 13 any comments on Senate Bill 14 on drafts before it was 14 filed? 15 MR. MORTARA: Ms. McGeehan, you may answer 16 that question with respect to public comments, with 17 respect to communications with legislators on this list, 18 but not with respect to Senator Fraser or any legislator 19 that is not on this list, the Governor Lieutenant or 20 Governor.21 THE WITNESS: Whether there were or were 22 not? 23 MR. MORTARA: You can answer that question 24 whether there or not with respect to these people. 25 THE WITNESS: These folks, yeah.






149

1 A. Then I guess I can only say that there were no 2 conversations with these folks.3 Q. (By Ms. Westfall) Thank you.4 As to legislators not on that list, how 5 many conversations about Senate Bill 14, before it was 6 filed, are you aware of? 7 MR. MORTARA: You can answer that 8 question.9 A. Before Senate Bill 14 was filed? I'm not aware

10 of any.11 Q. (By Ms. Westfall) Are you aware of any written 12 communications about Senate Bill 14 between the Division 13 and anyone in the Legislature before it was filed?14 A. No.15 Q. Did the Division receive any requests for any 16 information related to photo ID before Senate Bill 14 17 was filed?18 A. I don't think so.19 Q. Did the Division independently conduct any 20 research related to photo ID before Senate Bill 14 was 21 filed?22 A. No.23 Q. You have been handed what's been previously 24 marked as United States 81. Do you recognize this 25 document?

150

1 A. Yes.2 Q. What is it?3 A. It's Senate Bill 14.4 Q. Are you familiar with the provisions of Senate 5 Bill 14 as -- and is this -- strike that.6 Is this the version that was filed, do you 7 know, as opposed to engrossed?8 A. Right. It looks like the one that was filed.9 Q. Could you review the forms of identification

10 provided in the bill, Senate Bill 14 as filed, and let 11 me know when you've had chances to do so? I will direct 12 your attention to Page 8.13 MR. MORTARA: Ms. Westfall, I wrote the 14 number down wrong. What is it? 15 MS. WESTFALL: It's 81, previously marked.16 MR. MORTARA: Thank you.17 A. Okay. It requires photo identification 18 including -- which includes a driver's license or a 19 personal ID card issued by DPS, that has not expired; a 20 U.S. military identification card that contains the 21 person's photograph and has not expired; a United States 22 citizenship certificate that contains the person's 23 photograph, or a United States passport that has not 24 expired.25 Q. (By Ms. Westfall) And could you compare how

151

1 this compares to Senate Bill 14 as filed with the forms 2 of allowable ID under Senate Bill 32?3 A. Senate Bill 14 requires photo ID, whereas the 4 prior versions permitted photo ID or two forms of 5 nonphoto ID.6 Q. And would you describe that as a significant 7 change in the legislation between 362 and 14?8 A. Yes.9 Q. Do you know why Senate Bill 14 didn't allow for

10 use of nonphoto IDs?11 A. No.12 Q. Do you know why Senate Bill 14 only allows for 13 the use of unexpired IDs?14 A. No.15 Q. Do you know why the forms of ID have been 16 significantly reduced between Senate Bill 362 and Senate 17 Bill 14 as filed?18 A. No.19 Q. Are you aware of any forms of ID that the 20 Legislature or the bill's sponsor considered including 21 in Senate Bill 14 that were not included? 22 MR. MORTARA: Ms. McGeehan, you can answer 23 that question yes or no. It's fine.24 I'm sorry for interrupting, Ms. Westfall. 25 A. No.

152

1 Q. (By Ms. Westfall) Are you aware of whether the 2 Legislature considered allowing expired forms of ID?3 A. I'm not aware.4 Q. Are you aware of whether the Legislature 5 considered allowing forms of ID that had been expired 6 two years prior to the election?7 A. I'm not aware.8 Q. Are you aware of any communications with anyone 9 in the Legislature about the use of expired forms of

10 photo ID?11 A. No.12 Q. If a photo ID is expired but was validly 13 issued, why doesn't that prove or doesn't that prove 14 that the person is the same person on the ID, in your 15 view?16 A. Could you restate that question? 17 Q. Certainly. That was -- it's after lunch.18 If a photo ID is expired but was validly 19 issued, does that prove the person is the same person 20 who appears on the ID?21 A. Yes.22 Q. How often do you have to go to get your 23 pictures taken in Texas for your driver's license?24 A. It could be as little as every six years -- 25 well, the driver's licenses expire in six years. I






153

1 think if you have good record, it can be extended 2 another six years.3 Q. Is it possible also to renew your driver's 4 license by mail in Texas?5 A. You can do that once, I think, and then you 6 have to go in person the next time.7 Q. And so how long would that be?8 A. I think the maximum would be 12 years.9 Q. Under Senate Bill 14 as filed, how many forms

10 of military ID would be acceptable?11 A. Just a military identification card. 12 Q. What does that consist of?13 A. It needs to be a current identification card 14 issued by the U.S. military to somebody who is in -- 15 who's in the military.16 Q. Would that include active duty? Inactive 17 duty? Family members of military?18 A. I don't think it includes --19 Q. Retirees, et cetera?20 A. You know, it's been a little while since I 21 looked at this, and, you know, we were in process -- the 22 Secretary of State's Office was in the process of trying 23 to educate, you know, and develop training. I don't 24 think it included family members, and I think it had to 25 include somebody who was a current member of the

154

1 military.2 Q. How do you have that? What's the basis of your 3 understanding?4 A. Well, you know, there were a lot of questions 5 that came up regarding veterans, veteran ID cards, and 6 I'm not sure what decision ultimately the Secretary of 7 State's Office came down with on that, as far as whether 8 that would be included or not.9 Q. Does this bill provide the Secretary of State

10 with rule making authority?11 A. I know we had to develop the training 12 materials. Yeah, it does have -- there is some rule 13 making authority in here.14 Q. And does that rule making authority enable you 15 to define the term military ID, or is it with regard to 16 other portions of the bill?17 A. I believe it was in regard the other portions 18 of the bill.19 Q. So how would military ID be defined?20 A. Well, I mean, that's -- that's the point. When 21 we would -- when the Secretary of State would be 22 developing the training instructions, we would have to 23 figure out a way how to explain that. But that occurred 24 after -- or, you know, that was occurring as I was 25 leaving.

155

1 Q. I see. In November 2011; is that correct?2 A. Right.3 Q. Did you have any communications with anyone in 4 the Legislature about which forms of military ID this 5 provision would encompass?6 A. I guess to the extent that they're not on this 7 list, it would be privileged.8 MR. MORTARA: I think the way Ms. Westfall 9 has framed the question, you can answer. It's privilege

10 log-type material, so you can answer, with respect to 11 all legislators, yes or no.12 THE WITNESS: Okay.13 A. Yes.14 Q. (By Ms. Westfall) When did that communication 15 occur?16 A. It occurred after I made a statement at a 17 seminar when asked about what constitutes U.S. military 18 identification cards.19 Q. Was that after the signing of the bill in May 20 of 2011?21 A. Yes.22 Q. You didn't have any communications about what 23 would constitute a military ID before the bill was 24 signed; is that right?25 A. Correct.

156

1 Q. What is a citizenship certificate?2 A. My understanding, that's something a court 3 would issue to someone who had obtained citizenship 4 status. But again, you know, when I left, it was sort 5 of still early days in developing how these items would 6 be described and explained.7 Q. Did you have any communications with anyone in 8 the Legislature about defining that term or 9 understanding what that meant before the bill was signed

10 in May of 2011?11 A. No.12 Q. Do you know how much it costs to obtain a 13 citizenship certificate?14 A. No.15 Q. Do you know how much it costs to get a 16 replacement certificate?17 A. No.18 Q. Do you know how long it takes to get a 19 replacement certificate?20 A. A replacement U.S. citizenship certificate? 21 Q. Correct. I'm using the shorthand. Thank you.22 A. Yeah. Yeah. No, I don't.23 Q. Do you know how much it costs to obtain a U.S. 24 passport?25 A. I got one a couple of years ago, and I think it






157

1 was about 80 dollars.2 Q. Do you know what documents you have to provide 3 to get one?4 A. Generally.5 Q. Could you tell me what they are?6 A. Proof of your birth, I think. I'm not an 7 expert on it. I got one myself a couple of years ago.8 Q. Are you familiar with the Georgia and Indiana 9 photo ID laws?

10 A. Not really.11 Q. Have you ever reviewed those statutes?12 A. No.13 Q. Did you see any, read any, or hear any summary 14 of those laws?15 A. I have probably read about those laws.16 Q. Are you aware of whether Senate Bill 14 and the 17 Georgia photo ID law are similar or dissimilar?18 A. I'm not aware.19 Q. Did you have any communications with anyone in 20 the Legislature or the Lieutenant Governor's Office 21 about the Georgia photo ID law?22 A. No.23 MR. MORTARA: You can answer that question 24 with respect to everyone. 25 THE WITNESS: Okay.

158

1 Q. (By Ms. Westfall) Are you aware of any 2 communications or discussions within the Legislature 3 about advancing a photo ID bill that adhered more 4 closely to the Georgia law than Senate Bill 14 as filed?5 MR. MORTARA: You can answer that with 6 respect to public communications with the legislators on 7 this list.8 A. I did not have a conversation with any of these 9 legislators on that issue.

10 Q. (By Ms. Westfall) Are you aware that the 11 Georgia photo ID law allows for the use of expired IDs?12 A. No.13 Q. Are you aware that the Georgia photo ID law 14 allows the use of valid employee cards --15 A. No.16 Q. -- issued by a state or federal agency?17 A. No.18 Q. Are you aware that the Georgia photo ID law 19 allows for the use of photo ID issued by any entity of 20 the United States or Georgia or another state entity?21 A. No.22 Q. And are you familiar with the Indiana photo ID 23 law?24 A. No.25 Q. Are you aware of any discussion within the

159

1 legislator about advancing a photo ID law that was 2 modeled on Indiana's law? 3 MR. MORTARA: You may answer the question 4 with respect to the legislators on the list and not 5 others.6 A. I'm not aware of any conversation with these 7 legislators.8 Q. (By Ms. Westfall) Do you know what the term 9 "legislative emergency" means within the Texas

10 Legislature?11 A. I don't know the definition.12 Q. Could you tell me generally what it means?13 A. I think it is -- again, I'm sort of guessing, 14 but I believe it's when the Governor declares that an 15 emergency exists that requires prompt legislative 16 action.17 Q. Was photo voter ID declared to be an 18 legislative emergency?19 A. I believe it was.20 Q. And when did you first learn about this?21 A. When it was reported in the media.22 Q. Did the Secretary of State or Election Division 23 request this designation?24 A. No.25 Q. And did the legislative emergency -- was it

160

1 declared sometime in January 2011?2 A. That sounds right.3 Q. Did your office receive any notice of this 4 declaration before it occurred?5 A. No.6 Q. Do you know why Governor Perry designated voter 7 ID as a legislative emergency?8 A. No.9 Q. Are you aware of any election law having been

10 designated as an emergency prior to photo ID in January 11 of 2011?12 A. No.13 Q. Do you know what the consequences are 14 legislatively when a bill is declared an emergency --15 A. No, I don't.16 Q. Must the Legislature consider the issue within 17 the first 60 days of session?18 A. I don't know. That might be the case, but I 19 don't know the rules.20 Q. Do you know why Senate Bill 14 needed to be 21 considered in the first 60 days of the Legislature?22 A. No. I mean, I can assume it's because it was 23 declared an emergency, but I'm not familiar with those 24 rules.25 Q. But do you know why there was urgency in






161

1 considering photo ID --2 A. No.3 Q. -- in 2011? Can you identify, as you're 4 sitting here -- well, actually, can you identify 5 anything related to the administration of elections in 6 the state of Texas that would have necessitated the 7 Legislature to consider voter ID within the first 60 8 days of the session in 2011? 9 A. I don't know of any.

10 Q. And you were, at the time, the director of the 11 Elections Division, correct?12 A. Uh-huh, yes.13 Q. So you would probably be the best person to 14 know if there was any emergency related to the 15 administration of elections that would have prompted 16 that; is that right?17 A. Well, you know, that's the Governor's role. 18 That's not the Elections Division's role. So I can't 19 speak for what was in the Governor's mind.20 Q. Certainly. But you would know what would be 21 happening, in terms of voting and elections in the state 22 of Texas in 2011 in January; would you not?23 A. To the extent that I ever would be, but I'm 24 just saying that as far as the role of declaring or 25 determining what's an emergency for legislative

162

1 purposes, that's not a role the Elections Division has 2 any -- we don't have a role that.3 Q. Certainly. And maybe I'm not being clear in my 4 question. I'm asking whether you would be the best 5 person to know, as of January 2011, whether there was 6 any situation related to the administration of elections 7 that would have required emergency action on photo ID?8 A. No, I wouldn't say that. I mean, I think the 9 state law puts that authority with the Governor to make

10 those determinations.11 Q. And you think the Governor is the person who 12 knows the most about election administration in the 13 state?14 A. State law says he's the person with the power 15 to make those determinations.16 Q. As to emergency designations? 17 A. Correct.18 Q. Is that your testimony?19 A. Yes.20 Q. But I'm asking whether -- who is the person 21 with knowledge, the most knowledge of the administration 22 of elections in the state of Texas in the government? 23 Would that be the Elections Division?24 A. As far as what the rules are, that would be -- 25 yes, that would be probably the Elections Division in

163

1 the Secretary of State's Office. As to what's happening 2 outside, not necessarily.3 Q. Thank you.4 Do you know how Governor Perry made this 5 decision to declare it an legislative emergency?6 A. No.7 Q. Was Senate Bill 14 referred to the Committee of 8 the Whole Senate?9 A. Yes.

10 Q. Do you know why it was referred to the 11 Committee of the Whole?12 A. I think it was for similar reasons as '07, but 13 I don't know for sure. 14 Q. Did you mean '09?15 A. I'm sorry. '09. Yes. '09.16 Q. And do you know what those reasons were?17 A. No.18 Q. In other words, your testimony is that it 19 followed the same procedural course that it did in 2009?20 A. That's my understanding, that it followed the 21 same course as '09, and was heard by Committee of the 22 Whole. I don't know why.23 Q. Did you testify before the Committee of the 24 Whole Senate on January 25th, 2011?25 A. Yes. That sounds right.

164

1 Q. Did you appear as a resource witness?2 A. Yes.3 MS. WESTFALL: Could you mark this as 287.4 (Exhibit 287 marked for identification.)5 Q. (By Ms. Westfall) You have been handed what's 6 been marked as U.S. Exhibit 287. Do you recognize this?7 A. Yes.8 Q. What is it?9 A. It appears to be a transcript of at least some

10 of my testimony during the Senate hearing for Senate 11 Bill 14. 12 Q. And I will represent to you that this is an 13 excerpt of the transcript from the Committee of the 14 Whole Senate on January 25th, 2011, that contains your 15 remarks. And if you could take a look at the exhibit 16 and let me know when you've had a chance to review the 17 questions and answers to which you were responding, and 18 I'll direct you to a page in one moment.19 A. Okay. (Reading documents.) Okay.20 Q. Turning your attention to Page 444 of the 21 transcript, which is Texas 00000800, do you see that 22 questions were posed from Senator Wendy Davis?23 A. Yes.24 Q. And she was asking you, was she not, questions 25 related to persons who filled out a voter registration






165

1 application who indicated neither a driver's license 2 number nor a social security number; is that correct?3 A. Right.4 Q. Do you recall the analysis that you conducted 5 in that regard?6 A. I think she was asking for a percentage of 7 people, I don't think I had that, a percent figure with 8 me at the time, so I gave her the raw numbers.9 Q. Do you recall that you had analyzed the numbers

10 after enactment of the Help America Vote Act, and 11 applicants were required to supply either a driver's 12 license number or a social security number, and 13 analysis of persons who supplied neither. Is that the 14 analysis that you conducted?15 A. Yes. It looks -- yes. I answered that, since 16 January 1st, 2006 through December 31st, 2010, 2.3 17 million -- oh, no. 2.3 million provided driver's 18 license number. As far as the number that didn't fill 19 out either one -- well, you know, there's a couple of 20 questions in here because we had -- you know, we, 21 obviously, had data before 2006 as well. And so even 22 before it was required, people voluntarily provided 23 driver's license numbers.24 Q. Right. And the analysis that you just 25 described concerning persons between January 1st, 2006

166

1 and 2011 who had not supplied either a driver's license 2 or a social security number when they registered?3 A. Uh-huh.4 Q. Who asked you to conduct that analysis?5 A. I think that was information that we had 6 previously supplied to Representative Anchia, and so I 7 think we were updating it for the 2011 session.8 Q. Could you indicate your testimony as to what 9 your analysis found in terms of the numbers of people

10 who had registered without either of those numbers? And 11 I would direct your attention to Page 445 of the 12 excerpt, Texas 00000801, the top of the page.13 A. Oh, okay. Sorry, I almost missed it.14 So, it looks like I responded that since 15 2006, the number of people that provided neither one was 16 34,506.17 Q. And had Representative Anchia asked you to 18 update this analysis after Senate Bill 14 was filed, or 19 did you do it on your own?20 A. I think we did that on our own. 21 Q. And why did you do it?22 A. We expected we would get asked.23 Q. When did you conduct that analysis?24 A. Shortly before the Senate hearing.25 Q. So you simply updated the numbers after the

167

1 bill was filed in January and before the hearing; is 2 that correct?3 A. Yeah. I think, sort of, to be prepared for 4 this hearing, we updated those numbers.5 Q. Did you have any conversations with anyone in 6 the Legislature, other than Representative Anchia, about 7 this analysis?8 A. No.9 Q. And can you explain why you focused on the date

10 range of January 1st, 2006 and December 31st, 2010. 11 A. Because prior to that time, they weren't -- it 12 was not required, so that was sort of a useful 13 statistic. Since it had been required, this was the 14 number of folks that weren't able to provide IT.15 Q. Did you also, as part of that analysis, review 16 the entire state voter file to determine which voters 17 had a social security number and which -- or who had 18 voluntarily provided a social security number? 19 A. Right. Yes.20 Q. And which voters had voluntarily provided a 21 driver's license number?22 A. We did.23 Q. When did you conduct that analysis?24 A. I believe we did it in 2009 pursuant -- or 25 2007, or maybe both, pursuant to Representative Anchia's

168

1 request, and then we updated that in preparation of this 2 2011 hearing.3 Q. Did you likewise conduct that analysis in 4 January 2011?5 A. Yes.6 Q. And what number did you find, based on that 7 analysis, of persons who had not supplied either a 8 social security number or a driver's license number?9 A. The number was 690,887.

10 Q. And I believe you just testified that, that 11 before January 1st, 2006, voter applicants could 12 voluntarily supply that information. 13 A. Right.14 Q. So what is the implication of the fact that 15 voters were only supplying that information voluntarily, 16 in terms of the numbers of people who are indicated not 17 to have those forms of ID in the voter file?18 A. It would mean that there could be people who 19 were registered to vote before 2006 that didn't provide 20 a driver's license number or a social security number, 21 but might, in fact, have them.22 Q. And as of the date of this hearing, January 23 25th, 2011, is the sum total of all the analyses that 24 the Division had undertaken to determine which voters in 25 the state's voter registration database did not have a






169

1 form of photo ID allowable under Senate Bill 14 or its 2 predecessors, is that what you testified to? 3 A. Yes.4 Q. You hadn't conducted any other analysis? 5 A. Correct.6 Q. Is that correct?7 A. Yes.8 Q. Is there any analysis that you did not publicly 9 disclose that you had conducted?

10 A. No.11 Q. On the day of the Senate hearing on Senate Bill 12 14, did Senator Williams ask you to conduct additional 13 analysis of which registered voters did not have 14 driver's license? And I would refer you to your 15 testimony at Page 446.16 A. Yes.17 Q. What did he ask you to investigate or analyze?18 A. I thought he publicly asked us a question, but 19 here on Page 446, I am sort of repeating what he asked. 20 And I believe he asked us to see if we could do any 21 analysis to get -- to look at these numbers a little 22 more closely and compare them against the driver's 23 license database to see if we could get a better handle 24 on the number of voters that didn't have driver's 25 licenses or personal ID numbers.

170

1 Q. Was that the first time that Senator Williams 2 had asked you to do that? 3 A. Yes.4 Q. Had anyone asked you to do that type of match 5 before January 25th, 2011? 6 MR. MORTARA: You may not answer that 7 question with respect to nonpublic requests made by 8 legislators not on the list.9 Q. (By Ms. Westfall) Do you have any testimony?

10 A. Nobody on this list asked us to do that before 11 this hearing.12 Q. Turning your attention to Page 489, of your 13 remarks before the Senate. Tell me when you're there.14 A. Okay. I'm there.15 Q. Do you see Senator Williams asks you some 16 questions, halfway through the page?17 A. Okay.18 Q. And is he asking you, or making reference to 19 having talked earlier with you about cross-referencing 20 driver's license and voter registration? Do you see 21 that on to the next page?22 A. Yeah. He asked how it was coming along.23 Q. And he had just asked you earlier in the day?24 A. Yes.25 Q. Is that right?

171

1 A. Right.2 Q. And so he wanted a status report hours later?3 A. Right.4 Q. Is that correct?5 A. Yes.6 Q. And he indicates there he only asked you today; 7 is that right?8 A. Right.9 Q. So he's referring to conversations he had with

10 you that day?11 A. Correct.12 Q. And in response, you indicated that you were 13 having difficulty with matching, is that correct, and 14 there were some IT issues?15 A. Yes.16 Q. What were the difficulties you were having in 17 conducting that match?18 A. Well, I think we needed to develop what the 19 matching criteria was going to be and just comparing the 20 data. I mean, we had go through our IT department to, 21 you know, set that up. So at this point in time, I 22 really had no idea how long that was going to take.23 Q. I see. So in terms of matching criteria, what 24 do you mean?25 A. To -- you know, to determine what data fields

172

1 to match on between the voter database and the driver 2 database. And, you know, would it be on first name, 3 last name, middle name, date of birth, county, address, 4 you know, what would be the exact criteria.5 Q. And prior to January 25th, 2011, had you given 6 any thought to how you would do that matching criteria?7 A. No.8 Q. Other than the matching criteria, you said 9 there were other IT issues involved; is that right?

10 A. Right.11 Q. Could you describe those?12 A. Well, and I'm not a technical person, but, you 13 know, the format -- the data is in different formats, so 14 comparing the SOS data with the DPS data, sometimes 15 there are issues on making sure we can match up the 16 data. Again, that's not my area of expertise.17 Q. And were you foreseeing that being a problem?18 A. It usually is a problem, so...19 Q. And had you had any communications or meetings 20 with the Department of Public Safety, prior to January 21 2011, about conducting that type of match?22 A. No.23 Q. Had you had any meetings with DPS about 24 matching criteria?25 A. Not on -- the only time we had -- we have met






173

1 with DPS on matching criteria for purposes of HAVA and 2 verifying driver's license numbers for HAVA purposes.3 Q. But for purposes of determining who in your 4 voter registration database has driver's licenses, you 5 had not?6 A. We had not done that.7 Q. And had you not as of January 25th, 2011 --8 A. Correct. 9 Q. -- because you just had received that request

10 from Senator Williams that day; is that right?11 A. That's right.12 Q. Was there a time, after January 25th, 2011, 13 that you provided Senator Williams, or any other 14 legislator or the Lieutenant Governor, with information, 15 factual analysis related to matching of the voter 16 registration and driver's license database?17 MR. MORTARA: You may answer that 18 question.19 A. No.20 Q. (By Ms. Westfall) Do you recall that during 21 this hearing, the Senate hearing, you also had a 22 colloquy with Senator Davis about whether the Secretary 23 of State gathers demographic information about voters by 24 race, gender, disability, and age? 25 A. I vaguely remember that.

174

1 Q. And I'll direct your attention to Page 460, if 2 you could take a look at your testimony and let me know 3 when you've had an opportunity to review it.4 A. (Reading documents.) Okay.5 Q. How did you respond to Senator Davis's inquiry 6 about whether the Secretary of State gathers demographic 7 information about voters by race, gender, disability, 8 and age?9 A. I explained what data we had, which is gender.

10 That used to be a required field on the voter 11 registration application. So we have some information 12 on gender, but I guess I said since 1995, it was 13 optional, so it's not complete. And on age, obviously, 14 we have that data, because that's required, birth date 15 is required. And then on ethnicity, I explained that we 16 didn't collect any information regarding race, and that 17 the only tool we had was the Hispanic surname list to 18 identify voters with Hispanic surnames.19 Q. And did Senator Davis further ask you how the 20 Secretary of State would be able to respond to questions 21 about whether Senate Bill 14 disproportionately impacts 22 minority voters? Directing your attention to Page 461. 23 Do you see that?24 A. Yes.25 Q. And what was your response?

175

1 A. I explained what current process was and what 2 information we had access to, and that if the 3 Legislature wanted to establish a process, that we could 4 collect it, we'd have to change the voter registration 5 application to collect that data.6 Q. And your testimony, in short, was that you were 7 able to do Spanish surname analysis; is that correct?8 A. Correct.9 Q. And that that was the sum total of what you

10 were currently able to do?11 A. Right.12 Q. Was there any other method of identifying the 13 race of a voter in the Texas voter database that you did 14 not testify about in the Senate hearing on January 25th, 15 2011?16 A. No.17 Q. And do you recall that at the conclusion of 18 Senator Davis's colloquy with you, she opined that 19 information about the impact of Senate Bill 14 on 20 minority voters was important for review under Section 21 5, correct?22 A. Yes.23 Q. Subsequent to this hearing, did the Division 24 undertake any analysis of the impact of Senate Bill 14 25 on minority voters?

176

1 A. Pursuant to a request from the Justice 2 Department, we did.3 Q. Prior to that time?4 A. Prior to that time, we did not.5 Q. And why was -- when was that response to the 6 Justice Department?7 A. I think we submitted the bill in maybe the 8 middle of June or the end of June.9 Q. Was it July?

10 A. That sounds right.11 Q. And when did you submit information about the 12 impact on minority voters to the Justice Department, to 13 the best of your recollection?14 A. Probably August or September.15 Q. And when was the bill signed into law? Was it 16 May 2011?17 A. I don't really remember. It probably was. I 18 don't remember exactly. Oh, it might be on that list 19 of --20 Q. I'm going to hand you what's been previously 21 marked as Exhibit 8. You've been handed what's been 22 previously marked as U.S. Exhibit 8. Do you recognize 23 this document?24 A. Yes.25 Q. What is it?






177

1 A. It looks like the bill history on Senate 2 Bill 14.3 Q. Does this refresh your recollection -- or could 4 you refer to U.S. Exhibit 8 to refresh your recollection 5 as to when Senate Bill 14 was --6 A. I think I can, if I can read it right. Yes. 7 Okay. It was signed by the Governor on May 27th.8 Q. Why did the Division not undertake an analysis 9 of the racial impact of Senate Bill 14 prior to

10 receiving a request from the Justice Department, when 11 Ms. Davis had requested this information of you in 12 January 2011?13 A. She requested how could we -- I mean, her 14 question, I thought, was looking into the future, how 15 would we be able to analyze the impact on voters if we 16 didn't collect data on race at the time of voter 17 registration, and I explained that that would require a 18 legislative change, and nobody changed the law to 19 accomplish that.20 Q. So was it your feeling that you could not 21 conduct that analysis absent a change in state law?22 A. We generally don't conduct -- the Secretary 23 State's Office does not usually conduct investigations 24 or, sort of, analyses of that sort, as a general rule.25 Q. But state legislators had requested that

178

1 information of your office, had they not, Representative 2 Anchia and Senator Davis; is that correct?3 A. We responded to every request they made. 4 Nobody asked for that particular data of racial 5 breakdowns of voters who didn't have driver's licenses 6 or personal identification cards.7 Q. Is it your testimony Ms. Davis was not seeking 8 that information?9 A. That's not how I understood her question and

10 that's not how I answered her question.11 Q. Okay. 12 A. She never followed up.13 Q. I see. But you testified earlier that you had 14 involvement in hundreds and hundreds of Section 5 15 submissions, correct?16 A. Yes.17 Q. So did you that believe you would ultimately, 18 if the law was enacted and signed by the Governor, need 19 as part of the Section 5 process to provide that 20 information to the Justice Department?21 A. We didn't include in it our initial submission, 22 so I guess we didn't feel like it was required.23 Q. And why not?24 A. I think we provided, sort of, the standard 25 information in our initial submission regarding number

179

1 of registered voters, and I don't think we felt like we 2 possessed the information as to how -- how many voters 3 really didn't have the forms of ID and how to break them 4 down by race.5 Q. Are you familiar with the amendments offered in 6 the Senate during consideration of Senate Bill 14?7 A. Somewhat.8 MS. WESTFALL: Could you mark this as 47.9 Q. (By Ms. Westfall) You have been handed what's

10 been previously marked as Exhibit 47. Do you recognize 11 this document?12 A. Yes. Senate Journal from January 26th.13 Q. Turning your attention to Page 130 of this 14 document, do you see it references an amendment offered 15 by Senator Ellis?16 A. Yes.17 Q. Did Senator Ellis introduce an amendment that 18 would have required the Secretary of State to conduct a 19 study that would have included information about the 20 number of eligible voters who were from prevented from 21 voting or had to vote provisionally because of lack of 22 ID and an analysis of those voters based on race?23 A. Okay. That's what this says.24 Q. Did the Division -- are you aware of this 25 amendment?

180

1 A. I don't remember this amendment. It was 2 probably offered during deliberation. I don't think it 3 got approved. Maybe it did.4 Q. Turning your attention to the bottom of 5 Page 130, do you see that it indicates --6 A. It was tabled.7 Q. -- it was tabled?8 A. Okay.9 Q. And does that mean it was not approved; is that

10 right?11 A. That's my understanding.12 Q. Did the Division take a position on this 13 amendment?14 A. No.15 Q. Were you involved in any communications 16 regarding this amendment?17 A. No.18 Q. Do you know why this amendment was tabled?19 A. No.20 Q. Are you aware of any concerns or communications 21 that such a study, as required by the Floor Amendment 22 Number 30, would show that minorities are 23 disproportionately impacted by Senate Bill 14?24 A. We never saw this. I think this was just 25 offered during the Floor debate, so it never --






181

1 Q. Uh-huh. Okay.2 A. So I'm not familiar with it. 3 Q. Fair enough. Thank you for your testimony.4 I believe you testified earlier that you 5 conducted Spanish surname analysis as a matter of 6 course; is that right?7 A. Right.8 Q. Is there a reason why the Division did not 9 conduct such an analysis, Spanish surname analysis of

10 the voters without driver's licenses between January 11 2011 and the time you provided it to the Justice 12 Department in the fall of '11?13 A. Well, I mean, one reason is nobody asked us to.14 Q. Are there any other reasons?15 A. We don't -- you know, as a general policy, 16 Elections Division does not generally use that list for 17 any purpose other than sending out that notice. It's 18 not something we use to qualify voters or -- and then as 19 we discussed earlier this morning, we send it out to 20 county officials for purposes of helping them place 21 Spanish-speaking poll workers, but...22 Q. Is it your testimony that in 2011, not a single 23 bill opponent ever asked you for that information?24 A. I don't recall any of these people --25 MR. MORTARA: Yeah, just this list.

182

1 A. Yeah. I don't recall any of these legislators 2 asking for that information.3 Q. (By Ms. Westfall) Are you aware of any 4 communications regarding Senate Bill 14 and Spanish 5 surname analysis? 6 MR. MORTARA: You can answer that question 7 with respect to everyone in the world.8 A. During session or --9 Q. (By Ms. Westfall) In 2011. Before the bill --

10 strike that.11 Do you recall any such communications 12 involving Senate Bill 14 and Spanish surname analysis 13 between January 1st, 2011 and when the bill was signed 14 in May 2011?15 A. No.16 MS. WESTFALL: Sure. Let's take a break. 17 (Recess from 3:02 to 3:27 p.m.)18 Q. (By Ms. Westfall) When did the Senate pass 19 Senate Bill 14?20 A. I don't remember. It's probably on this list.21 Q. You can refer back to Exhibit 8.22 A. It looks like was January 26th; is that right?23 Q. Was it passed within about two weeks of having 24 been filed in the Senate?25 A. Yeah. And it was filed on January 12th, and it

183

1 passed on January 26th.2 Q. Is it fairly unusual to pass a bill in two 3 weeks in January at the beginning of a session?4 A. I don't really know, to be honest.5 Q. Do you recall other bills that were passed that 6 early in the Senate in January?7 A. I don't recall any, but I don't track them all 8 either.9 Q. Can you recall any other election bill other

10 than Senate Bill 14 that was part of a Governor's 11 emergency call?12 A. I believe there were several issues in that 13 emergency call.14 Q. But I'm referring you to -- do you recall any 15 emergency call that included another election bill in 16 previous sessions?17 A. No.18 Q. Did you testify before the House select 19 committee on voter identification and voter fraud on 20 Senate Bill 14?21 A. Yes.22 Q. Did you testify on March 2, 2011?23 A. I don't remember the date. I don't see it on 24 here. I guess it was probably a different bill. It was 25 probably maybe the House -- well, I don't remember.

184

1 Q. After the Senate passed Senate Bill 14, did it 2 go to the house?3 A. Yes.4 MS. WESTFALL: Could you please mark this 5 as 288?6 (Exhibit 288 marked for identification.) 7 Q. (By Ms. Westfall) Do you recognize this 8 document?9 A. Yes. It appears to be a transcript of

10 testimony before the Select Committee on Voter 11 Identification and Voter ID fraud on March 1st.12 Q. And I'll represent to you that this is an 13 excerpt of the transcript pertaining to your remarks -- 14 A. Okay.15 Q. -- at that hearing. 16 A. Okay.17 Q. Did you appear as a resource witness?18 A. Yes.19 Q. And turning your attention to Page 290 of the 20 testimony. Are you there?21 A. Yes.22 Q. Do you see that there's a question from an 23 unidentified representative as to whether you've done a 24 match to determine whether folks in the drivers -- in 25 the voter registration database have driver's licenses?






185

1 A. Let me take just a quick second to read.2 Q. Certainly.3 A. (Witness reading.) Okay. Sorry.4 Q. Sure. No, that's okay. 5 Did you testify in response to the 6 question about whether a match had been done with the 7 voter registration database and the DPS driver's license 8 database to determine who did not have driver's 9 licenses?

10 A. Yes.11 Q. And what was your response to that question?12 A. My response was that we were looking into that 13 at the time, so on March 1st, we were still working on 14 trying to make that comparison.15 Q. And you had -- you testified earlier that you 16 had been asked by Senator Williams on January 25th, 17 2001, to engage in that match and comparison; is that 18 correct?19 A. That's correct.20 Q. And can you describe the process that you 21 undertook in January to attempt to conduct that match?22 A. We -- we were looking at what would be the 23 matching criteria, you know, how tight of a match would 24 it be, and those sorts of issues.25 Q. And as of March 1st, that process was still

186

1 pending, and you haven't been able to determine the 2 universe of voters without driver's licenses; is that 3 correct?4 A. Correct.5 Q. And why the delay in conducting the match?6 A. I think we were looking for sort of, you know, 7 guidance on what matching criteria to use.8 Q. Who were you seeking that guidance from?9 A. Probably from our executive -- from executive

10 management within Secretary of State's Office.11 Q. And who would that be specifically?12 A. That would be our deputy secretary and our 13 general counsel.14 Q. Is it your testimony that they weren't 15 providing you with the guidance that you needed to 16 conduct the match?17 A. I think we were sort of, you know, looking for 18 the -- for them to say yes, okay, this is fine, let's 19 release it.20 Q. I see. So you had conducted the analysis, but 21 you hadn't released it; is that correct?22 A. We hadn't sort of had it approved or, you know, 23 okayed to release outside the office.24 Q. Who in particular did not let you release that 25 information?

187

1 A. Well, I don't know that we were prohibited, it 2 was -- but it would be up to -- it would be up to the 3 executive management to be the ones to release something 4 like that.5 Q. And who by name is that person or persons?6 A. That would be Coby Shorter, who was -- who is 7 the deputy, and John Sepehri, who's the general counsel.8 Q. When did you, from your perspective, complete 9 this matching analysis, what date?

10 A. I don't really remember exactly when.11 Q. Was in it the month of February?12 A. It could have been February or March, but I 13 don't remember exactly.14 Q. Was it before or after this hearing on March 15 1st?16 A. I don't remember.17 Q. Were you -- does your testimony here on March 18 1st on Page 290 refresh your recollection as to when you 19 completed the match?20 A. I can't really tell if we had completed it here 21 or not.22 Q. It's conceivable that you had done the match in 23 February, but it was not authorized to be released at 24 that time; is that right?25 A. Right. And when I say "authorized to be

188

1 released," you know, I don't know if our executive 2 management had a chance to review it, if they felt 3 confident about it.4 Q. Was there concerns about the accuracy of the 5 match?6 A. I think so. I think they wanted to make sure 7 that anything we released was accurate.8 Q. Was there any concern about the number of 9 voters who were unmatched and releasing that information

10 to the public?11 A. Not that I'm aware of.12 Q. Was the number that was in that analysis about 13 800,000 people that were unmatched?14 A. I don't really remember. I was thinking it was 15 around 700,000, but I don't have a clear memory of that.16 Q. Was there any concern you're aware of that 17 releasing that number in February of 2007 could 18 potentially jeopardize enactment of the bill?19 A. Not that I'm aware of.20 Q. Do you know whether anyone directed executive 21 management not to release that information?22 A. Not that I'm aware of.23 Q. Do you know whether that match and those 24 numbers changed significantly from February 2011 to the 25 time that you released that information to the Justice






189

1 Department in the fall of 2011?2 A. I don't think they did.3 Q. And to your knowledge, did you learn after the 4 match was conducted in February or March, 2011, of any 5 errors that caused there to be a change in the analysis?6 A. Between March -- 7 Q. And whenever -- you testified -- I believe you 8 testified that this match was probably conducted in 9 February or March 2011; is that right?

10 A. Right.11 Q. And did you become aware, subsequent to that 12 time, of any errors in the analysis or the matching 13 process, or was it basically final as of that date, 14 although not released?15 A. I don't think we changed it much from what we 16 did. I mean, I think there were some judgments as to 17 which criteria to use, and I don't think we changed that 18 much from when we did pull it to send to the Justice 19 Department.20 Q. Did you at any time between the time that you 21 did that match -- and you believe it was February or 22 March of 2011?23 A. That sounds about right.24 Q. Did you conduct a Spanish surname analysis on 25 that information, those unmatched voters?

190

1 A. Not during the session. We did that after we 2 provided it to the Justice Department.3 Q. Did you have any reason to believe based on the 4 universe of voters you had identified, the 700,000 5 voters, that they would be disproportionately minority 6 voters?7 A. No.8 Q. Who was aware of the fact that that analysis 9 had occurred in February or March 2011 besides you in

10 your office?11 A. In my office within the Secretary of State's 12 Office?13 Q. Yes.14 A. It would have been me and our voter 15 registration director, who is in the Elections Division, 16 and then in our IT department, one of the programmers, 17 and his supervisor, and our IT director, and then the 18 Deputy Secretary of State and the general counsel.19 Q. Did you at any time provide that analysis from 20 February or March of 2011 to anyone in the legislature?21 MR. MORTARA: You may answer that question 22 only with respect to the legislators listed on the 23 sheet.24 MS. WESTFALL: Wait a minute. It's 25 providing factual information to the legislature --

191

1 MR. MORTARA: Specifically about the 2 Court's order, Elizabeth. The Court's order says the 3 information is not privileged. The analysis exists. 4 What I understand the Court's order to mean is that we 5 must produce it to you if it exists, not that we have to 6 tell you with whom it was shared. That is exactly what 7 the last two sentences of that order means. We disagree 8 about that.9 Don't answer the question except with

10 respect to these legislators.11 A. We didn't release it to any of those 12 legislators.13 Q. (By Ms. Westfall) Would it have been 14 relatively easy to do a Spanish surname analysis on that 15 list of 700,000 voters in February and March of 2011?16 A. Yes. I mean, I say that. Our IT department 17 might not agree with that.18 Q. Fair point. Did you or the Division play any 19 role in the consideration by the Conference Committee of 20 Senate Bill 14? 21 A. No, not in the Conference Committee.22 Q. Are you aware of any changes made to provisions 23 of Senate Bill 14 in Conference Committee that involved 24 voter education?25 A. I don't recall that. It may be the case, but I

192

1 didn't remember that changing in Conference Committee.2 Q. Was there a provision removed in conference 3 that would have targeted voter ed -- voter education, 4 pardon me, to low-income and minority voters?5 A. I don't remember that. That may have been -- I 6 mean, I don't dispute it. I don't have a clear memory 7 of that.8 Q. Do you have any reason to believe that voters 9 without allowable forms of ID under Senate Bill 14 are

10 disproportionately low-income or minor voters?11 A. I do not.12 Q. Did the -- strike that. 13 Did the Division provide any data or 14 information to any member of the Conference Committee 15 about voter education to low-income voters?16 A. No.17 Q. Was the Conference Committee report adopted by 18 both chambers?19 A. Yes.20 Q. I'm going to hand you what has been -- whoops, 21 sorry. You've been handed what's been previously marked 22 as U.S. 5. Do you recognize this?23 A. Yes.24 Q. What is it?25 A. This is the signed enrolled version of Senate






193

1 Bill 14.2 Q. Turning your attention to the list of allowable 3 IDs, do you see that at Page 9?4 A. Yes.5 Q. Could you take a look at the allowable forms of 6 ID and let me know when you've had a chance to do so?7 A. Yes.8 Q. Can you describe for me the forms of ID that 9 are different in the engrossed version of the bill,

10 Exhibit 5, than in the filed bill?11 A. I believe that the difference is that a new 12 form of ID was authorized and it created an election 13 identification certificate that would be issued by the 14 Department of Public Safety. I think that's the only 15 change. And maybe the expiration date. I don't know if 16 that's the same as in the original bill as to when -- I 17 don't remember. I think that's the main change.18 Q. Do you know whether the license to carry a 19 concealed handgun was added as an allowable form of ID?20 A. Yeah. But I thought that got added in the 21 Senate, but maybe not.22 Q. Do you know the circumstances by which the 23 license to carry a concealed handgun were included in 24 Senate Bill 14?25 A. No.

194

1 Q. Do you know the racial composition of persons 2 who hold those licenses?3 A. No.4 Q. Have you had any conversations or 5 communications about holders of those licenses might be 6 disproportionately White? 7 MR. MORTARA: Ms. McGeehan, you may answer 8 that question with respect to everybody in the entire 9 world except legislators, Lieutenant Governor and his

10 staff, Governor and his staff, legislative staff not 11 appearing on this list.12 A. I have not heard any conversations on that with 13 any of these legislators or any other people other than 14 the legislators not on the list or the Governor's office 15 or Lieutenant Governor.16 Q. (By Ms. Westfall) Do you know why Senate Bill 17 14, as engrossed, did not allow the use of student IDs?18 A. No.19 Q. Were student IDs allowed as an allowable form 20 of ID in previous iterations of photo ID in Texas?21 A. I believe that we saw it in the 2009 bill.22 Q. Do you know what had changed between 2009 and 23 2011 that caused the legislature to remove that 24 provision?25 A. I don't know.

195

1 Q. Have you -- were you aware of any concern that 2 failure to include these forms of ID, notwithstanding 3 their inclusion in previous bills, could 4 disproportionately impact minority voters?5 A. Not including student IDs? No.6 Q. Any concern that it might create an appearance 7 that the law was enacted with a discriminatory purpose 8 to remove that form of ID from the bill?9 A. No.

10 Q. Are you aware of any analysis to determine the 11 effect of excluding student IDs as a form of allowable 12 ID under Senate Bill 14? 13 MR. MORTARA: Again, Ms. McGeehan, for all 14 these questions, are you aware, but please keep in mind 15 not to give testimony about legislators, Governor's 16 office, Lieutenant Governor's office, not appearing on 17 the list.18 A. I'm not aware of any communications with these 19 legislators, general public, not making any comments as 20 to the other legislators that haven't waived their 21 privilege, and the Governor's office and Lieutenant 22 Governor's office on student IDs in any studies.23 Q. (By Ms. Westfall) Do you know why tribal ID 24 was not included as an allowable form of ID in Senate 25 Bill 14?

196

1 A. No.2 Q. Was it in the -- is it in the Georgia photo ID 3 of law that tribal ID --4 A. I don't know. I don't know.5 Q. How did the exception for persons with 6 disabilities come to be included in Senate Bill 14? 7 MR. MORTARA: Objection, foundation.8 Q. (By Ms. Westfall) You may answer. 9 A. I'm not sure if I remember all the -- you know,

10 all the iterations of that.11 Q. I'll turn your attention --12 A. Okay.13 Q. -- to the first page of the Act, if you want to 14 review it, and let me know when you've had a chance to 15 take a look at it.16 A. (Witness reading.) Right. Yeah. This is how 17 it ended up, but I couldn't really explain how this got 18 here.19 Q. What was the purpose of this provision?20 A. I believe it was to exempt persons with 21 disabilities from the requirement of presenting a photo 22 ID, and they would have to make application with the 23 voter registrar to prove that up and obtain the 24 exemption.25 Q. Was this provision in the filed bill?






197

1 A. I don't think so.2 Q. And at whose request was this provision added?3 A. I don't know -- or I don't remember.4 Q. Can you describe the provisions of Senate Bill 5 14 as engrossed pertaining to administration of the ID 6 requirement at the polls?7 A. Explain how it would be administered at the 8 polls?9 Q. As required by the bill.

10 A. The new requirement bill? 11 Q. Yes.12 A. It would -- I believe, as best I can remember, 13 and of course, this is somewhat qualified, because the 14 Secretary of State is probably still in the process of, 15 you know, fully developing some of these processes, but 16 essentially, all voters who voted in person who had not 17 received the disability exemption and who were not over 18 the age of 70, I think as of the date of this bill, 19 would be required to present one of these forms of photo 20 identification. 21 If they didn't, then they could vote a 22 provisional ballot, and they would have a certain amount 23 of time to go back to the voter registrar's office and 24 present after -- after they voted, they could go to the 25 voter registrar's office and present one of these forms

198

1 of ID later, within five days or something like that. 2 There were -- I believe there was also two 3 sort of exemptions for voters that had a religious 4 objection. I may have to refresh my memory on this. 5 Q. Certainly.6 A. (Witness reading) Okay. Yeah. They could -- 7 they -- they -- they would vote a provisional ballot and 8 then if they came in I believe after the election and 9 executed an affidavit stating that they had either a

10 religious objection to being photographed or that they 11 had, you know, been a victim of a natural disaster, and 12 because of that natural disaster, they didn't have any 13 identification.14 Q. So when you talk about administration of the ID 15 requirement at the polls, are you talking about the -- 16 what the Secretary of State and Election Division 17 promulgated in terms of rules and procedures, or are you 18 talking about the bill itself?19 A. Just then I was, I guess, talking about the 20 basic requirement. The bill also requires the Secretary 21 of State to do training of poll workers, training of 22 voters. I think we had to develop rules on -- to give 23 guidance to poll workers on how to accept voters 24 regarding how similar the name on the photo ID has to be 25 to the name on the list of registered voters.

199

1 Q. Do you know why Senate Bill 14 did not provide 2 more specificity about how poll workers should determine 3 whether a voter had presented an ID that proved their 4 identity?5 A. No.6 Q. Do you think the bill should have provided more 7 specificity in that regard?8 A. Well, I guess from the Secretary of State's 9 point of view, it would have been nice if they had done

10 that. It would have been one less thing that the 11 Secretary of State's Office had to do.12 Q. And do you believe that it's a very important 13 part of the bill to determine -- to instruct poll 14 workers as to how to administer this ID requirement at 15 the polls?16 A. Yes.17 Q. Because if they don't understand how to 18 determine someone's identity, it could be misapplied and 19 disenfranchise a voter; isn't that right?20 A. Yes.21 Q. I believe you testified about the provisional 22 ballot requirements. In essence, the provisional ballot 23 requirements do not provide much in the way of 24 mitigation of the photo ID requirements; isn't that 25 right?

200

1 A. Well, you know, I think that's kind of an 2 opinion question. Some folks would argue there's more 3 protection, because you can come back in and fix it. 4 Whereas under current law, you can't do that.5 Q. Can you point me to a particular part of the 6 election code that require -- that says that provisional 7 ballots under current law will not be counted if you 8 don't have any of those wide range of forms of ID?9 A. I believe it's in an administrative rule that

10 the Secretary of State's Office adopted and precleared, 11 where it sets out the rules for processing provisional 12 ballots according to the various voting systems.13 Q. Under -- but nonetheless, under the current 14 law, you can present a very broad range of IDs compared 15 to the IDs that are allowable under Senate Bill 14; 16 isn't that right?17 A. Yes. Senate Bill 14 only permits photo IDs.18 Q. Right.19 A. And current law does not.20 Q. Right. And in terms of the provisional ballot 21 provision of Senate Bill 14, unless you can cast a 22 provisional ballot, but if you don't have that 23 appropriate form of photo ID and return within six days 24 to present it to the office, your provisional ballot 25 will not be counted, except unless very limited






201

1 circumstances; is that right?2 A. That's right.3 Q. And is it your understanding under the bill 4 that you must return in person within six days to prove 5 your identity in order to ensure that your provisional 6 ballot will be counted?7 A. That's my understanding.8 Q. Is that within the bill, or is that pursuant to 9 an administrative regulation or rule?

10 A. That was my understanding as of the time I left 11 the Secretary of State's Office. They may have further 12 provided guidance on that. I'm not aware if they have.13 Q. Does Senate Bill 14 include a provision for 14 voter education?15 A. Yes.16 Q. Could you describe the voter education 17 provisions, generally speaking, in the bill?18 A. I think it's in Section 5 of the bill that says 19 the Secretary of State -- anyway, it sets up several 20 mandates for Secretary of State and county officials 21 that specifically requires the Secretary of State to 22 conduct a statewide effort to educate voters regarding 23 the identification requirements.24 Q. And so the education requirements advise voters 25 of the need or will advise if this law is precleared of

202

1 the need to get ID, but it doesn't in any way reduce any 2 burden that a voter might need to undergo to get an 3 election identification certificate or a form of 4 allowable ID; isn't that right?5 A. Right. This is purely an educational effort.6 Q. Did you have any concerns that without 7 guidance, poll workers might inconsistently administer 8 the photo ID law?9 A. Sure. I mean, that's a danger with all

10 election laws. So -- 11 Q. And were you concerned that inconsistent 12 administration of photo ID requirements might fall 13 disproportionately on minority voters?14 A. I had no -- I did not have that as a specific 15 concern.16 Q. In deposition testimony in this case, there 17 have been a number of purposes that witnesses have 18 talked about in terms of the purpose of SB-14, and I'm 19 going to ask you a few questions about purposes of the 20 bill. Some witnesses have testified, and I believe that 21 this was in the submission letter along with the 22 preclearance submission for SB-14, which you signed, 23 that it would promote election integrity. Do you 24 remember that -- 25 A. Uh-huh.

203

1 Q. -- purpose?2 A. Yes.3 Q. Are you aware of any voters in the state of 4 Texas who did not vote because they were concerned that 5 voter fraud would cancel out or dilute their vote?6 A. I don't know that for a fact.7 Q. Would a registered voter who had voted in 8 previous elections but did not have a form of photo ID 9 and who could not vote by regular ballot experience a

10 loss of confidence in the election system under SB-14?11 A. Can you repeat that? 12 Q. Certainly. It was a confusing questioning. 13 It's late in the day. I will withdraw that question. 14 Is it possible that if a registered voter 15 did not have a form of photo ID, and he appeared at the 16 polls to vote and had to vote by provisional ballot, 17 that he might lose confidence in the election system?18 A. It's possible.19 Q. Are you familiar with any academic studies 20 concerning who has the necessary or allowable forms of 21 photo ID under this law?22 A. Under Senate Bill 14?23 Q. Yes.24 A. No.25 Q. Are you aware of any academic studies

204

1 concerning who has allowable forms of ID, photo ID, 2 under the Georgia photo ID law or the Indiana photo ID 3 law?4 A. No.5 Q. Is one of the purposes of Senate Bill 14 6 deterring ineligible voters from registering to vote?7 A. I think it could be, because I know that one of 8 the -- you know, one of the stated goals was to overall 9 bring confidence in the system and perceptions of

10 integrity in the system so, to that extent, it could 11 prevent that from occurring.12 Q. Do you agree that that purpose would be served 13 by SB-14?14 A. For regarding registering to vote or just 15 overall confidence? 16 Q. Overall confidence.17 A. Yes. I think that --18 Q. What is the basis of your belief?19 A. As I started to say earlier, I think all 20 election laws is kind of a balance between access to the 21 polls and keeping the election secure and maintaining 22 integrity. And so to the extent that people feel like 23 there are not enough safeguards, if you tighten it up a 24 little bit, as long as you're not impacting access, and 25 that's the legislative process, they're always sort of






205

1 adjusting those rules.2 Q. And are you aware of groups or people who do 3 not -- who feel that there are not enough safeguards in 4 proving one's identity at the polls on election day 5 besides the sponsors of the bill?6 A. You mean under current law, meaning before 7 Senate Bill 14?8 Q. Correct. 9 A. Yes.

10 Q. Who are those people?11 A. I think they're many members of the 12 legislature.13 Q. Outside of the legislature, who believes that 14 we do not have enough safeguards in proving voter's 15 identity at the polls on election day in the state of 16 Texas?17 A. I think there are fair numbers of folks who 18 believe that, and we get -- we would receive e-mails and 19 letters from people that, you know, felt the rules 20 should be tighter.21 Q. Are you aware of any academic studies, 22 generally, about who has access to photo ID?23 A. Not really. We may have cited to one or two in 24 that original submission letter, but I'm not personally 25 aware of those studies.

206

1 Q. Do you know whether you need to be a U.S. 2 citizen to obtain a license to carry a concealed weapon 3 in Texas?4 A. I don't know.5 Q. Can you describe the election identification 6 certificate provision of Senate Bill 14?7 A. It requires DPS to develop a new form of -- to 8 develop an election identification certificate that 9 could be issued to persons that didn't have -- that were

10 registered voters or who -- either they were registered 11 or they were eligible to be registered, and they 12 submitted registration right there at the DPS office. 13 And it has to be free. And it can only be 14 used for purposes of voting. Can't be used like a 15 regular personal identification certificate issued by 16 DPS.17 Q. Was the Division involved in developing this 18 provision at all?19 A. No.20 Q. Did you do any analysis of this provision?21 A. No.22 Q. Did you do any drafting of this provision?23 A. No.24 Q. Are you aware of any communications between the 25 Division and anyone related to this provision?

207

1 MR. MORTARA: Ms. McGeehan, my earlier 2 instruction remains. You can answer.3 A. You mean before it was put in the bill -- 4 Q. (By Ms. Westfall) I mean at all -- 5 A. -- or after the bill? 6 Q. -- at any time?7 A. We were not aware of it until it -- until after 8 the Conference Committee. After the Conference 9 Committee, we began to work with DPS to figure out a way

10 to start to implement it.11 Q. Can you describe that?12 A. We had several meetings to kind of work through 13 the requirements. DPS, I think they sent us a prototype 14 of what it would look like, what they were preparing. 15 Again, that was kind of ongoing as I left, so I didn't 16 see the end of that.17 Q. As you sit here today, can you list for me 18 every single purpose that you can think of for the 19 enactment of Senate Bill 14?20 A. Every single purpose?21 Q. Yes.22 A. I think it was the stated purposes were to 23 increase confidence in the election process, curb 24 election fraud. Those are the main ones I can think of.25 Q. As to curbing fraud, the only fraud it could

208

1 conceivably address is in-person voter impersonation; is 2 that correct?3 A. I think that's the main fraud. You know, the 4 legislature may have had other reasons, but I don't 5 know, but those are the ones I recall being discussed.6 Q. But as to fraud, in-person voter impersonation 7 is the only fraud that this bill could conceivably 8 address. Is that your testimony?9 A. I would need to think through that. I mean,

10 maybe there are other frauds that showing a photo ID may 11 mitigate against.12 Q. Sitting here today, can you identify any other 13 fraud besides in-person voter impersonation?14 A. I can't think of anything else right now.15 Q. All right. Can you think of any other facts or 16 information about how -- that you haven't already 17 testified about today, as to how Senate Bill 14 would 18 increase voter confidence?19 A. I think if people trust the system, they're 20 more likely to participate in it. And if they sense 21 that ineligible people are voting, they may be less 22 likely to participate. So --23 Q. Are there any facts to support that thesis that 24 you can tell us about today or testify about today?25 A. I guess that's just my perception.






209

1 Q. And you -- I believe you testified that those 2 are the two stated reasons for Senate Bill 14?3 A. That I recall. That I recall.4 Q. Are there any unstated purpose of Senate Bill 5 14 that you can identify today?6 A. No.7 MR. MORTARA: And remember my earlier 8 instructions.9 A. No. Not to the extent that anybody on this

10 list has mentioned any.11 Q. Are you aware of any unstated purposes, the 12 existence of unstated purposes -- 13 A. No.14 Q. -- for Senate Bill 14?15 A. No.16 Q. Was any part of the purpose of Senate Bill 14 17 to decrease the number of Hispanic voters participating 18 in elections in Texas?19 A. I don't think so.20 Q. Was any part of the purpose of Senate Bill 14 21 to decrease the number of any other groups of minority 22 voters participating in elections?23 A. I don't think so.24 Q. Was any part of the purpose of Senate Bill 14 25 for partisan purposes?

210

1 A. There may have been partisan purposes, because 2 there usually is in everything.3 Q. Do you have any -- 4 A. I don't know any facts.5 Q. Do you have any facts to support that?6 A. No.7 Q. Did the purpose of photo ID in Texas, the 8 legislative purpose, evolve over time and between 9 sessions?

10 A. Not that I'm aware of.11 Q. Was the -- was photo ID advanced to turn on 12 citizen voting during one session and then that was less 13 emphasized during subsequent sessions of the 14 legislature?15 A. Not that I recall.16 Q. At any time since the passage -- since the 17 enactment of SB-14, have you come to believe it was 18 passed with a discriminatory purpose?19 A. No.20 Q. At any time since the passage of Senate Bill 21 14, have you come to believe that Senate Bill 14 will 22 have a retrogressive effect on minority voters?23 A. No.24 Q. If called to trial, will you testify that 25 Senate Bill 14 has no discriminatory purpose?

211

1 A. Yes.2 Q. And if called to trial, will you testify that 3 Senate Bill 14 has no discriminatory effect?4 A. Yes, based on the information I know.5 MS. WESTFALL: I will take a quick break 6 and then I'll pass you over to my cocounsel.7 THE WITNESS: Okay.8 (Recess from 4:09 to 4:25 p.m.) 9 Q. (By Ms. Westfall) Ms. McGeehan, do you agree

10 that Hispanic surnamed voters are less likely to have 11 the forms of allowable photo ID under SB 14?12 A. No. I mean, I don't have any reason to say 13 that.14 MS. WESTFALL: Okay. Thank you. I have 15 no other questions at this time. We're going to keep 16 the deposition open pending resolution of some of our 17 disputes about privilege.18 Thank you for your time.19 THE WITNESS: Thank you.20 EXAMINATION21 BY MS. PERALES:22 Q. Good afternoon, Ms. McGeehan. 23 A. Hello.24 Q. My name is Nina Perales, and I represent the 25 Rodriguez Defendant Intervenors in this case. All of

212

1 the instructions and advice that Ms. Westfall gave you 2 will continue between you and I; is that all right?3 A. Yes.4 Q. Is it also okay if I use the term "Latino" and 5 "Hispanic" interchangeably?6 A. Yes.7 Q. Thank you. 8 MS. PERALES: I'd like to start by marking 9 the news article. Now, does anybody know how we're

10 doing the marking? Is it just whichever party is 11 marking it, so I can mark this as 1? 12 MR. MORTARA: That's fine.13 MS. PERALES: I'd like to mark this 14 Rodriguez 1.15 (Rodriguez 1 marked for identification.)16 (Discussion off the record.)17 Q. Ms. McGeehan, I'm handing you what has been 18 marked Rodriguez 1, and I will represent to you it's an 19 article from Election Line Weekly from December 15. And 20 I believe this in the time period shortly after you 21 announced that you would be moving on from the Secretary 22 of State's Office?23 A. Yes.24 Q. Did you ever see this article?25 A. I did, yeah.






213

1 Q. It's a wonderful article. 2 A. It is.3 Q. I wanted to put it in the record because I 4 think everything in it is true. 5 A. Thank you.6 Q. And I wanted the record to reflect your 7 outstanding service to Secretary of State's Office for 8 many, many years. 9 A. Well, thank you. Appreciate that.

10 Q. Ms. Westfall went over your background, which 11 this article does an excellent job of summarizing your 12 background and your education, and so I don't think we 13 need to go over any more because you've covered that 14 very well. 15 MR. MORTARA: I'd like to put in the 16 record that the State of Texas whole-heartedly agrees 17 with everything that Ms. Perales just said.18 THE WITNESS: Well, thank you. Can we end 19 right now?20 MS. PERALES: Would be a great way to end, 21 but I do have a few more questions.22 THE WITNESS: Okay.23 Q. (By Ms. Perales) You testified earlier you are 24 the Assistant General Counsel at the Texas county and 25 District Retirement System. And you described this as

214

1 sort of a quasi-governmental entity; is that right?2 A. Well, it is a governmental body per 3 statute. But it -- we receive no state funds, so we're 4 not a state agency. We don't get an appropriation.5 Q. So would it be correct to say, then, that you 6 no longer are employed by the State of Texas?7 A. That's correct.8 Q. I wanted to talk with you a little bit about 9 the benchmark system that we have right now for voter

10 ID. I think you went over most of this with 11 Ms. Westfall with respect to the current requirement to 12 show either the voter certificate or photo ID or 13 nonphoto ID, correct?14 A. I think we did.15 Q. Can you just walk me carefully through what 16 happens if a voter presents themselves for voting at the 17 polls on election day and has none of the described 18 forms of identification? Is it correct to say that that 19 voter could vote a provisional ballot on that day?20 A. Yes.21 Q. And then what would the voter have to do 22 subsequent in order to have that ballot counted? Would 23 the voter come back and cure, or is there a signature 24 verification that goes on back at the county to make 25 sure that ballot could be counted?

215

1 A. Under current law?2 Q. Under current law?3 A. Under current law, if a voter provided no ID 4 when they voted provisionally, there is no way to cure 5 that. The ballot may not be counted.6 Q. And under what circumstances would it be 7 counted?8 A. If a voter voted a provisional ballot for 9 another reason, for instance, they might not be on the

10 list of registered voters or they vote in the wrong 11 precinct, something like that, then there may be ways 12 where, you know, there may have been some sort of 13 administrative mistake and their name just never made it 14 to the list of registered voters. In that, the voter 15 registrar may be able to find that out by looking at DPS 16 records or other records. And in that event, then the 17 ballot could be counted if the county voter registrar 18 can confirm that they were registered in the right 19 precinct.20 Q. Would under those circumstances, would the 21 voter have shown ID then?22 A. Yes.23 Q. So is it your testimony that if the voter shows 24 no form of acceptable ID under current law, and votes a 25 provisional ballot, there is not a mechanism to allow

216

1 that ballot to be counted either through a signature 2 verification at the county or later presentation of ID?3 A. That's right.4 Q. Thank you.5 I wanted to ask you some questions about 6 U.S. citizens and some of the types of voter ID that are 7 described in SB 14. Our conversation is going to be a 8 little bit disjointed because I'm bouncing around and 9 going in-between some of the questions I have for you

10 now. 11 A. Okay.12 Q. You mentioned that you are aware that non-U.S. 13 citizen legal residents can receive a Texas driver's 14 license, correct?15 A. Yes.16 Q. All right. And that would also be true for a 17 Texas identification card from DPS?18 A. Yes.19 Q. All right. And you would agree with me that 20 legal permanent resident immigrants can serve in the 21 U.S. military, don't you? 22 A. I believe that's correct.23 Q. And thus, they would have a military ID, 24 correct?25 A. Correct.






217

1 Q. All right. Did the Secretary of State's Office 2 generate any information or conduct any analysis during 3 the pendency of SB 14 on whether non-U.S. citizens could 4 obtain the forms of ID set out in SB 14?5 A. No.6 Q. You know a lot about the driver's license, how 7 long it's valid for, and many other things. So I'm 8 curious why the Secretary of State's Office would not 9 have made even an inquiry into whether or not

10 non-citizens could obtain the types of ID in SB 14. Can 11 you help me understand that?12 A. I mean, we didn't -- we didn't have a reason to 13 necessarily. I mean, it was still pending legislation. 14 I don't know that we would have had the information to 15 make that kind of an analysis anyway.16 Q. Couldn't you have looked up the --17 A. Oh, I'm sorry. As far as who's -- if 18 non-citizens, yeah.19 Q. So, for example, Texas law sets out the 20 requirements for obtaining a concealed handgun license. 21 Did your office make any inquiry into whether 22 non-citizens could obtain a concealed handgun license?23 A. We did not.24 Q. I'm going to ask you a question now about a 25 citizenship certificate. Do you know what that document

218

1 is?2 A. I think I have seen one. I'm not very familiar 3 with them. No.4 Q. Are you aware that they can be issued by the 5 citizenship and immigration service as opposed to a 6 federal court?7 A. I probably knew that at one point, but I'm not 8 very familiar with that process.9 Q. Did your office undertake any examination of

10 the nature of a citizenship certificate or how you get 11 it or what it looks like during the pendency of SB 14?12 A. Not during Senate Bill 14.13 Q. Did your office make any inquiry with respect 14 to citizenship certificates during the pendency of prior 15 bills?16 A. I believe we did look into that, and it was 17 either 2007 or 2009, I think, based on a legislator's 18 questions to us.19 Q. Now, with respect to SB 14, which requires a 20 photo, did your office make any examination whether a 21 citizenship certificate has a photo on it?22 A. For SB 14?23 Q. Yeah.24 A. No.25 Q. Are you aware that a U.S. certificate of

219

1 citizenship does not have a photo on it?2 A. No.3 Q. Do you know whether a U.S. certificate of 4 citizenship is different from a naturalization 5 certificate?6 A. I think they're -- I believe there are 7 differences, but I -- I think we looked -- like I said, 8 we looked into it a little bit in either '07 or '09 on 9 some of those issues. I don't think we did any analysis

10 on that in 2011 for purposes of the Senate Bill 14.11 Q. So when you -- when your office was preparing 12 the bill analysis for SB 14, then would it be correct to 13 say that in the preparation of that bill analysis, your 14 office did not, for example, look into whether the 15 stated acceptable documents had photographs in them or 16 how readily obtainable they were?17 A. We did not.18 Q. You'd -- you mentioned earlier several times 19 that your office is concerned with sort of technical 20 matters of the law and particularly implementation. Did 21 your bill analysis of SB 14 undertake an examination of 22 how SB 14 might be implemented from the perspective of 23 individual voters being able to use any of the stated 24 forms of ID as acceptable photo ID?25 A. No.

220

1 Q. I'd like to go back to your testimony in 2005, 2 and I will give it to you -- 3 A. Okay.4 Q. -- so that you can refresh your recollection, 5 and that is Exhibit U.S. 283. Do you have --6 A. I think I have it.7 Q. -- U.S. 283? You might not have the right 8 pages then. I wanted to direct you to pages --oh, yes, 9 103 and 104. It's the very end maybe.

10 A. Oh, okay.11 Q. I also thought that maybe all the pages weren't 12 there.13 A. Oh, okay.14 Q. Okay. In 103 and 104, you're talking about -- 15 you're clearing something up about HAVA.16 A. Right.17 Q. And you mentioned earlier in your testimony 18 that the requirement to present identification at the 19 time of first voting for a voter who registered by mail 20 would disappear at some point, and you used the word 21 "disappear" here in your testimony. And I wanted to 22 make sure I understood, because you also mentioned that 23 you only used this requirement for a couple of years. 24 Is this requirement that you described in HAVA to 25 provide ID at the time of first voting, is that still in






221

1 effect in Texas?2 A. Not this exact process. Because we have a 3 statewide database. But there -- but now that we have 4 implemented that statewide database, where we verify 5 driver's license and Social Security number, in the 6 event that the State can't verify a voter's -- a voter 7 applicant's driver's license number, it goes back to the 8 county with a message saying state can't confirm the 9 identity, and if it comes from DPS, we send that county

10 the underlying DPS record. 11 If the county -- you know, sometimes the 12 county can look at the DPS record and see that there was 13 a typo, and then they can add it back in and submit it 14 to the state, and if we're able to verify it, that voter 15 gets registered. 16 If the county looks -- and we're all 17 assuming this is rejected -- or a DPS, a voter that's 18 submitted a driver's license number. If the county sees 19 no data entry, then they send a notice of incomplete to 20 the voter saying "State couldn't verify you. Please 21 resubmit." If a voter submits it again, and it goes -- 22 and the county submits and it goes through and it gets 23 approved, then they're registered. If it's submitted 24 again, and the state still can't confirm the identity, 25 then that voter is registered to vote, but they get

222

1 flagged as having to provide ID when they show up to 2 vote. So that's the process that's used today.3 Q. Does the statewide voter database check against 4 the Social Security database?5 A. Yes.6 Q. So if somebody provided the last four digits of 7 the Social, but no driver's license, you would run the 8 check that way?9 A. We would run the check that way. It's almost

10 the same process. The only difference is, is we don't 11 get any reason from Social Security as to why the record 12 didn't match. So we can only send back to the county if 13 it didn't match.14 Q. All right. So as opposed to every person who 15 registered by mail having to show ID at the polls for 16 first-time voting, it would be a smaller number of 17 people who you could not match through the database, the 18 statewide database?19 A. Correct.20 Q. And I'm curious why you were mentioning this 21 during your testimony. Were you explaining to the 22 legislature that there already was a photo ID 23 requirement in place, were you trying to give them some 24 context?25 A. Oh, you were called for this hearing too.

223

1 Q. I was?2 A. Yes. You're on Page 35.3 Q. Oh, well, let's -- we won't talk about that 4 part (laughing).5 MR. MORTARA: Ms. Perales loves making 6 herself a fact witness as well. 7 A. I think I was responding to a specific 8 question, but these are excerpts, so it's hard to -- 9 Q. (By Ms. Perales) It starts, you get -- you're

10 called up on Page 102. Do you have Page 102 there?11 A. Yes.12 Q. And you kind of start right away with that, so 13 I suppose maybe they were mentioning it before.14 A. Yeah. Because it goes from Page 36 to 102, so 15 there may have been some sort of discussion. I'm not 16 sure what it was. But Representative Bohac, Chairman 17 Bohac is saying that "she" -- that I will have some 18 enlightening testimony for us. So I don't know. We 19 would have to look at those.20 Q. Were you trying to make the point that the ID 21 requirement under HAVA allowed the voter to either 22 present the ID at the polls on election day or mail it 23 in so there were some alternatives there?24 A. You know, I really don't know. March of 2005 25 was still early in implementation of HAVA. And this was

224

1 a subcommittee on verification of voters. I'm not 2 sure. I don't know why I jumped right into that. I 3 don't know what the previous question was. I'm not sure 4 of the context.5 Q. Is your statewide voter database, does it have 6 a name, like a nickname?7 A. Yes. It's called "Team." 8 Q. It's called Team, yes?9 A. (Witness nods head yes.)

10 Q. I have a question for you about Team. What 11 happens when someone registers and Team cannot get a hit 12 on this person either in Social Security or in the 13 driver's license, DPS database, is that then the 14 circumstance that you described previously, you would 15 return that information to the county?16 A. Yes.17 Q. And to your knowledge, do all counties send out 18 notices to people in that situation asking them to 19 resubmit?20 A. They're required to.21 Q. I wanted to ask you some questions about 22 2009. During the 2009 session when the voter ID bill 23 was pending in the House, the chairman was Todd Smith, 24 Representative Todd Smith. 25 A. Right.






225

1 Q. Are you familiar with any facts around Chairman 2 Smith's efforts to get a bill passed in the House, some 3 of his proposals?4 A. I'm probably familiar with some of them. I 5 think he was trying to hear as many suggestions, hearing 6 from lots of different folks on.7 Q. Do you remember whether Chairman Smith rolled 8 out a proposed substitute at any point?9 A. I'm sure he did. I don't remember them all,

10 but -- 11 Q. Do you remember a proposal by Chairman Smith 12 that would increase funding for voter education and 13 voter registration as part of the voter ID bill?14 A. I don't remember that. I -- it may have been 15 in there, but I have forgotten that.16 Q. Now, at this point in 2009, there is some talk 17 about potential disparate impact of the voter ID as it 18 was being proposed at that time. And you had some 19 conversations with Ms. Westfall about Spanish surname 20 registered voters, and I want to put that aside for 21 now. 22 And I want to ask whether the Secretary of 23 State generated any information or analysis on whether 24 there were classes of persons who might have less access 25 to the ID required by the bill, whether that be groups

226

1 of people based on age, either youth or age, an older 2 age, or income or race. Do you remember making any 3 inquiry, your office making any inquiry or generating 4 any information like that?5 A. I don't recall us doing that.6 Q. So, for example, with respect to accepting 7 student IDs as voter ID, do you recall whether your 8 office looked into whether accepting student IDs might 9 ameliorate students and young people, in general,

10 otherwise not having access to acceptable ID?11 A. I don't remember doing any research on that.12 Q. Okay. And the same with elderly people that 13 might live in nursing homes, did your office ever look 14 into or make any analysis or generate any information on 15 their access to ID?16 A. I don't think so.17 Q. In 2009, did you have any internal 18 conversations at the Secretary of State's Office about 19 assessing potential disparate impact on the basis of 20 race of the voter ID bill that was being proposed at 21 that time? 22 MR. MORTARA: Ms. McGeehan, the question 23 is unobjectionable, but I remind you on the attorney-24 client privilege within the Secretary of State's Office, 25 to the extent that anything you did is protected by

227

1 that; you should self-police the attorney-client 2 privilege.3 Q. (By Ms. Perales) So as long as it wasn't a 4 conversation with the four people that you mentioned 5 earlier, the Secretary, who might not have been Hope 6 Andrade in 2009. 7 A. I think it was, she was.8 Q. So put aside the Secretary, Deputy Secretary, 9 communications and general counsel, I'd like to know

10 about your conversations or your communications with 11 e-mail, conversations inside the Secretary of State's 12 Office about potential disparate impact on the basis of 13 race or whether you needed to look into that?14 A. I don't recall any.15 Q. At this point, by 2009, you are getting 16 questions during hearings about potential racial impact 17 though; isn't that correct?18 A. I don't know that I received that question.19 Q. But were you present in hearings where this 20 issue was starting to be discussed -- 21 A. Yes.22 Q. -- by other witnesses, by members of the 23 legislature -- 24 A. Yes.25 Q. -- including Ralph Anchia?

228

1 A. Yes.2 Q. But do you not recall any conversations inside 3 the Secretary of State's Office that are not privileged, 4 sort of peer to peer.5 A. Uh-huh.6 Q. Involving looking into potential racial 7 disparate impact?8 A. No.9 Q. I'd like to go to 2010 in the interim.

10 MS. PERALES: Okay. Here's a question for 11 United States. We have the transcript of the interim 12 Elections Committee meeting in June of 2010. Do you 13 happen to know the number for that exhibit so we can 14 refer to it? 15 MS. WESTFALL: We didn't use that exhibit.16 MS. PERALES: You didn't use that exhibit?17 I'd like to mark this Rodriguez 2, please.18 (Rodriguez 2 marked for identification.)19 Q. (By Ms. Perales) I'm handing you what has been 20 marked Rodriguez 2. Happy to say we're already in 2010.21 A. Good.22 Q. If you would turn with me to Pages 36 and 37. 23 Starts near the top with "Good morning, I'm Ann 24 McGeehan."25 A. Okay.






229

1 Q. So we've got you at the beginning of your 2 testimony.3 A. Okay.4 Q. At the second paragraph, you talk about a 50 5 state chart survey, and you say it's in your packet.6 A. Right.7 Q. Do you know whether -- I mean, is this -- do 8 you know whether this was ever disclosed by the state in 9 discovery in this case?

10 A. I don't know. 11 MR. MORTARA: You know better than to ask 12 me.13 MS. PERALES: I'm not going to ask you. 14 I'll stick with the answer I got from the witness, and 15 I'll follow up later.16 Q. (By Ms. Perales) And that was all I was going 17 to ask you about 2010. 18 A. Okay.19 Q. Let's go to U.S. Exhibit 288. It's a House 20 hearing transcript. Thank you.21 A. Okay. March 1st, 2011.22 Q. Correct. And turn with me to Page 313, if you 23 may. It starts -- there's a back and forth going on 24 here. And I'd like to have you read it from 310, Page 25 310, just to get a better of sense of what's going on

230

1 there.2 A. Okay.3 Q. On Page 310, near towards the bottom of the 4 page, Representative Anchia starts to talk to you about 5 what he called a "vote saving affidavit approach," and 6 I'd like you to read through your comments on 313 just 7 to yourself.8 A. Okay. (Witness reading.) Okay. So through 9 313?

10 Q. Yes.11 And so what you're basically talking about 12 here, would it be correct to say then is what we would 13 call a "bypass affidavit," or an affidavit in which the 14 person swears to their identity and is then permitted to 15 vote in lieu of providing photo ID; is that correct?16 A. Right.17 Q. And you say "We could" -- "We could look at." 18 On Page 13, you say "We could look at what some of the 19 other states have done." And you mentioned Michigan. 20 Representative Anchia mentions Ohio. You say you might 21 have heard Florida. I'm curious whether you ever -- 22 your office ever looked into that, whether or not an 23 affidavit could serve as a way to allow someone to vote 24 who lacked ID? 25 A. We did in 2009 a little bit, but I think that's

231

1 covered under this privilege.2 Q. Okay. So I think I can ask you about 3 information that you have generated as opposed to 4 communications. 5 MR. MORTARA: You can ask about -- she can 6 you about information that you generated. 7 A. Uh-huh.8 MR. MORTARA: She cannot ask about to whom 9 you communicated it, because that would be revealing a

10 communication. But she can ask what information you 11 generated. 12 A. Okay.13 Q. (By Ms. Perales) I will ask about the 14 information that you generated. 15 A. Okay.16 Q. Can you describe for me the information that 17 you generated when you looked into this question?18 A. I think that in 2009, the question came up 19 about essentially this, like some sort of bypass 20 affidavit that could be used. And we were asked to look 21 at Michigan -- or I don't remember if we were directed 22 or we had to look that up and find out which states had 23 that, but we did look at that -- an affidavit process 24 that a person who didn't have an ID could use.25 Q. And what type of -- in what form did the

232

1 information -- in what form did you embody the 2 information? Did you create a memo, or did you write 3 any of this down?4 A. I -- I know I contacted Michigan, and I 5 contacted Florida, and I think I got -- either they told 6 me their law. I looked it up online. I -- and that's 7 what I did.8 Q. Okay. And did you write -- make any notes 9 about the information that you were learning, or did you

10 prepare an e-mail?11 A. I don't remember if I put it in an e-mail or if 12 it was in a phone conversation. I don't remember. And 13 I think by the time we got the information, the need for 14 the information had sort of -- wasn't as -- people 15 weren't asking about it as much as they were.16 Q. Once you gathered the information, did you form 17 a conclusion that a bypass affidavit would lead to voter 18 fraud?19 A. What I -- what I obtained from the information 20 I got from Michigan and Florida was that they thought it 21 was a pretty good process. Although, I think I've read 22 that Michigan is trying to change that law now. So -- 23 Q. You mentioned this was in 2009. 24 A. Yes.25 Q. So at the time that you gathered the






233

1 information, you understood that those states felt 2 positively about their affidavit bypass. Did you gather 3 any information suggesting that the affidavit bypass 4 would increase voter fraud?5 A. We didn't really do much with it. I mean, we 6 basically found out what -- what their process was. We 7 didn't do any further analysis on it.8 Q. And you learned that they felt good about their 9 process?

10 A. I know that the Florida director felt positive 11 about the process, and I don't know if he came to 12 testify or there was -- at some point, there was a 13 discussion that he might come and testify in one of the 14 hearings.15 Q. And did you learn any information at that time 16 that the bypass affidavit process would lead to 17 increased voter fraud?18 A. No.19 Q. Could you go in the same transcript to Page 20 285? The transcript that we're holding here.21 A. Okay.22 Q. Oh, let me ask you one last question. Since 23 your testimony that we were just talking about was in 24 2011, did you make any further investigation of bypass 25 affidavit in 2011 after being asked about it in the

234

1 legislature, in the hearing?2 A. No.3 Q. Is there any particular reason you did not 4 generate more information about affidavit bypass in 2011 5 after being asked about it in the hearing?6 A. I guess the impression I got was it was sort of 7 an idea that was suggested at the hearing but that I 8 don't know that any -- I didn't think anyone directly 9 asked us to look into it or give them any information on

10 it.11 Q. On Page 285, you are talking about the fiscal 12 note for SB 14. And going from Page 284 to 285, is it 13 correct that you testified in a hearing that your fiscal 14 note assumes training and voter education for one 15 election cycle; is that correct?16 A. Yes. For the 2012 cycle.17 Q. And so the fiscal note did not contemplate any 18 further voter education or training in terms of how much 19 money it was describing?20 A. Right.21 Q. I have a question about this, the HAVA funds 22 being used for voter education on SB 14, and it's later 23 in my outline, but I figure we could just get to it now.24 A. Okay.25 Q. I understand that Secretary of State Andrade

235

1 wrote a letter to Senator Ellis, I believe, saying that 2 she had received assurances from the U.S. Election 3 Assistance Commission that HAVA funds could be used for 4 voter education on SB 14. Do you recall that?5 A. Yes.6 Q. And did you make similar assurances when you 7 testified in the legislature that the EAC HAVA funds 8 could cover voter education for SB 14?9 A. I probably did, and I don't know if that was

10 before the letter -- before Secretary Andrade wrote hat 11 letter or not.12 Q. Did you have any direct communications with the 13 EAC, the Election Assistance Commission on this topic?14 A. I did.15 Q. Can you tell me about that, those 16 communications?17 A. I spoke with Tom Wilke, who was the director of 18 the Election Assistance Commission, and asked him that 19 question. And -- over the phone. And he answered. And 20 he pointed me in the direction of I think an opinion 21 they had written for the state of Indiana. I think it 22 was Indiana. He called me back a day or two later, 23 after the letter from Secretary Andrade had gone out and 24 said he wasn't authorized to give that advice over the 25 phone. So --

236

1 Q. Did you ever receive a letter or any 2 correspondence in writing from Mr. Wilke or anybody else 3 at the EAC on the topic?4 A. Yes. I think he actually ended up sending a 5 letter saying that they would have to direct that to 6 their general counsel, or something along those lines.7 Q. Do you know whether they ever did direct that 8 question to their general counsel?9 A. I don't know. I don't think we ever got -- I

10 don't think we ever received a letter from their general 11 counsel on that, that I recall.12 Q. So sitting here today, do you know the answer 13 to the question, whether HAVA funds could be used for 14 voter education for SB 14?15 A. It was my understanding that they could and 16 that they had been used for voter education in other 17 states.18 Q. But with respect to the prospective use of HAVA 19 funds, given that you have nothing in writing from the 20 EAC, and Mr. Wilke essentially verbally retracted what 21 he had told you before, saying he was not authorized -- 22 A. Well, he just said he couldn't say one way or 23 the other. But I mean, even if we hadn't had that 24 conversation, there were opinions on the EAC website 25 that authorized other states to use their HAVA funds to






237

1 educate on voter ID.2 Q. So would it be fair to say then that you feel 3 confident today that EAC HAVA funds could be used for 4 voter education on SB 14?5 A. Yes.6 Q. We talked earlier that in 2009, your office did 7 not make an inquiry into the impact of the proposed 8 voter ID law at that time on special classes of persons 9 such as the very young or the very old. I'm wondering

10 whether you looked into those questions during the 2005 11 session or the 2007 session, what efforts your office 12 may have made to generate information about the impact 13 of voter ID on special classes of persons?14 A. We did not do any analysis like that in 2005 or 15 2007.16 Q. Did you have any conversations internally that 17 were not privileged, within the Secretary of State's 18 Office in 2005 or 2007, about generating information or 19 inquiring or doing an analysis into the potential impact 20 of a voter ID law on special classes of persons? 21 A. No.22 Q. So, for example, nobody -- none of the staff 23 attorneys came up to you and said, "We got another voter 24 ID bill on the horizon. I think our bill analysis ought 25 to include the potential impact on certain groups of

238

1 people"?2 A. No.3 Q. You testified earlier that in February or March 4 of 2011, your office undertook an effort to try to match 5 registered voters without ID with your Spanish surname 6 registered voters; is that correct?7 A. Yes. Wait, no, I'm sorry. We -- not with 8 Spanish surname.9 Q. Okay.

10 A. In February or March, we tried to do the 11 comparison of drivers that didn't have driver's license 12 on file with the DPS database to see if we could find 13 additional voters, how many voters didn't have driver's 14 license or ID identification number.15 Q. Okay. I understand. So the Spanish surname 16 registered voter part was not a part of the picture yet 17 at that time? 18 A. That's correct.19 Q. And that was the analysis that you created and 20 then waited for approval from your executive committee 21 to be able to release that information?22 A. Right.23 Q. Okay. And at what point did you receive that 24 approval and were able to release that analysis?25 A. We didn't -- we -- I didn't get any instruction

239

1 to release that during session. And so I guess -- and I 2 guess nobody was breaking down the door to ask for it, 3 so it just kind of sat there for a while.4 Q. All right. And did you then release it in 5 response to a request by DOJ?6 A. Yes.7 Q. And would you use -- I think you said earlier 8 that it was essentially the same analysis?9 A. I believe it was, as far as the process that we

10 used to pull the data in the February, March time frame 11 was pretty much what we did in August or September, 12 whenever we pulled it for the Justice Department.13 Q. I see. So you used the same methodology but 14 you did the poll as of a later date?15 A. Yes.16 Q. Now, the Secretary of State routinely 17 provides -- you testified earlier on this, routinely 18 provides data on Spanish surnamed registered voters; 19 that's correct?20 A. Yes.21 Q. And I'm certainly familiar with that. We've 22 been one of those groups that requested the information 23 and received it. 24 A. Okay.25 Q. So I'm familiar with that a little bit. Isn't

240

1 it true that following a general election, the Secretary 2 of State typically updates its Spanish surnamed 3 registered voter data, or do you do that live?4 A. We -- we do it more frequently now with the 5 statewide system. It used to be that we did it at 6 designated times of the year. But with Team, you can do 7 it, you know, I think you can do it pretty much whenever 8 you want to. It's easier, I think.9 Q. And the Secretary of State does post the

10 information about Spanish surnamed registered voters on 11 its website, correct?12 A. I don't know if we do or not.13 Q. When you put in your election returns, do you 14 recall whether you ever put in Spanish surnamed 15 registered voters?16 A. I don't think so. No, I don't think we do.17 Q. Okay. So would you say that you update your 18 information on Spanish surnamed registered voters 19 statewide at least twice a year?20 A. Well, I -- actually, I think anybody can -- can 21 request a copy of the, you know, the file of registered 22 voters and can request to have the flag. So, I mean, 23 it's available any day somebody asks for it. I think 24 for sort of having the data ready if we get a press call 25 or something like that, we do it; I think we do it once






241

1 a month.2 Q. All right. So because you have Spanish surname 3 registered voters readily available for your total voter 4 roll, I'm curious why once you did your analysis in 5 February and March of 2011, attempting to identify 6 registered voters who did not have a DPS ID, why at that 7 point you didn't simply run the flags and look? Because 8 you already had the data for your statewide voter role. 9 All you needed was to run the data for the persons you

10 had identified as not having a DPS ID. Why didn't you 11 do it?12 A. I guess nobody thought to do it.13 Q. Were you ever instructed not to do it?14 A. No.15 Q. Okay. Did it ever occur to you to do it, and 16 this is a different question whether anybody asked you 17 to do it?18 A. It really didn't. I mean, you know, during a 19 legislative session, it's just very busy, so it did not 20 occur to me to do it. So I can only speak for myself.21 Q. Okay. But you had been through the '09 22 session. 23 A. Yes.24 Q. And at this point you're in the '11 session.25 A. Right.

242

1 Q. And you're sitting through these legislative 2 hearings on voter ID. And at every hearing, you're 3 hearing witnesses say this is going to have a disparate 4 racial impact; isn't that correct?5 A. Yes. At least by members of the legislature, 6 nobody else.7 Q. And witnesses as well; isn't that correct?8 A. In some hearings.9 Q. Tell me the ways in which the Secretary of

10 State's Office would receive allegations of election 11 fraud.12 A. We could get them via e-mail, phone calls, 13 written correspondence.14 Q. And what do you know about the office or the 15 special investigation unit that was set up by the 16 Attorney General's Office to look into voter fraud?17 A. What do I know about it? I -- at some point in 18 the -- you know, the -- maybe around 2005 or '06, I know 19 that they got more staff, so they were, you know, more 20 -- had more resources to investigate election fraud. So 21 we -- around that time, you know, it was decided that we 22 would just send any credible allegation of election 23 fraud, whether it was for electioneering or, you know, 24 intimidating a voter, whatever it might be, we would 25 send it over.

243

1 Q. And so you began to forward complaints about 2 voter fraud to the special investigation unit of the 3 AG's office around 2005 or 2006?4 A. Oh, no. We always had made referrals based on 5 criminal -- allegations of criminal violations. In the 6 early 2000s, we did not send over electioneering 7 violations or misdemeanors, things like that, because 8 they didn't have the staff. And they said, you know, 9 please, we can't investigate. So, but they got more

10 staff, and we were directed to just send over any 11 credible allegations of fraud.12 Q. And how would you determine that an allegation 13 was credible? What was your criteria for deciding 14 whether something was worth sending on to the AG's 15 Office?16 A. Generally, they would have to provide some sort 17 of specific facts. They couldn't just say, you know, 18 "We think this election is crooked. Investigate." They 19 would have to provide something specific. Not 20 necessarily provide any proof, but state something and 21 there -- and it would be required to be in writing. We 22 wouldn't take something over the phone.23 Q. Would you require something to be notarized?24 A. No.25 Q. Would you require it to be signed if it came in

244

1 by e-mail and it was credible?2 A. No.3 Q. All right. What was your understanding of what 4 the special investigation unit of AG's office would do 5 with these allegations?6 A. I -- I know they had investigators that would 7 investigate. And then I guess at a certain point, they 8 would turn it over to prosecutors. But we didn't -- 9 once we sent it over, we didn't really have any regular

10 communication on that.11 Q. I saw that in one of your hearing testimony 12 transcripts that you testified that you were unaware of 13 the ultimate disposition --14 A. Correct.15 Q. -- of some of these complaints.16 A. Right. We didn't -- we wouldn't necessarily 17 know if they were going to prosecute someone or not.18 Q. Did there ever come a time when your office 19 decided to check back in on some of these allegations 20 that had been made and find out from the special 21 investigation unit what had happened to these 22 complaints?23 A. I think we had discussed a process to kind of 24 have sort of regular updates, but it -- we never really 25 got very far with that.






245

1 Q. So today, do you have any more information 2 about the disposition of these complaints than you did 3 when you were testifying in the legislature?4 A. No.5 Q. Do you know whether documenting election fraud 6 became a higher priority at some point for the special 7 investigation unit at the AG's office?8 A. I don't know. I mean, like -- I know that they 9 got more resources so they dedicated more folks to

10 it. That's about all I know on that.11 MS. PERALES: Can we have Exhibit U.S. 12 284?13 Q. (By Ms. Perales) Do you have Exhibit U.S. 284?14 A. Here it is.15 Q. Okay. Oh, it's very small. Do you have Page 16 99 in there? If not, I'll give you the bigger 17 transcript.18 A. Okay. Yes. I have Page 99.19 Q. Okay. So down at the bottom, Senator 20 Van de Putte asks you, "How many complaints have you had 21 about voter impersonation?" Is it correct that you 22 testified, "We have not had any"?23 A. Yes.24 Q. Okay. And then let's go to June 14, 25 2010. This is Rodriguez --

246

1 A. 2? 2 Q. It's Rodriguez 2. Thank you. Can you turn to 3 Page 46? 4 A. Yes.5 Q. Okey-dokey. Oops. You're talking on Page 46. 6 If you can look back to Page 45, you start talking about 7 -- you start giving your answer. And is it correct to 8 say that on June 14, 2010, in the paragraph near the 9 bottom, you say, of the 24 referrals that you made to

10 the Attorney General, at least two of them involve 11 allegations of voter impersonation.12 A. I'm sorry. On what page? 13 Q. 46.14 A. 46.15 Q. It's in the second full paragraph. 16 A. Okay. Yeah. I see that now.17 Q. You testified you've made 24 referrals over the 18 past two years, and you said "two of them," and then you 19 said, "at least two of them involve allegations of voter 20 impersonation." 21 A. Uh-huh. Yes.22 Q. And that was your testimony?23 A. Yes.24 Q. Was it two or was it more than two?25 A. I said it was two. Maybe in my head I thought

247

1 -- I don't know. I don't remember now what they all 2 were, but -- let me see what the exact question they 3 asked me. 4 Well, that's what I said. Maybe -- I 5 don't know. Maybe some of the referrals may have sort 6 of some general allegations, and it's possible once the 7 AG does their investigation, they may uncover other 8 violations. But probably just on the face of it, two of 9 them clearly involve that as an allegation. And I think

10 we provided copies of all this to the committee too.11 Q. Do you know if the state produced those 12 documents in discovery?13 A. I don't know.14 Q. I'm going to give you one more document. This 15 is the March 6th memo. 16 (Rodriguez 3 marked for identification.) 17 Q. (By Ms. Perales) Ms. McGeehan, the court 18 reporter has handed you what has been marked Rodriguez 19 Deposition Exhibit 3. Do you recognize this as a memo 20 from Secretary of State Hope Andrade to members of the 21 House Committee on Elections dated March 6, 2009?22 A. Yes.23 Q. Okay. I'd like you to turn with me to Page 2, 24 where there's a section about complaints received 25 concerning election-related crimes (vote fraud). Do you

248

1 see this?2 A. Yes.3 Q. By the way, did you write this document?4 A. I -- yes, I think I did. I'm sure other people 5 helped, but I think I was the primary author.6 Q. Okay. Do you recall anyone ever making 7 suggestions that you change the document from one draft 8 to the other?9 A. I'm sure that I -- most likely, I wrote the

10 initial draft, and then it was sent to the executive 11 department for review, and they probably did make 12 changes.13 Q. Okay. So in this paragraph about -- on Page 2, 14 let's see, somewhere in here you say you have received 15 -- okay. It's a dense paragraph, but maybe about a 16 third of the way in.17 A. Yeah. I can't believe we provided it this way, 18 but maybe we did. It looks kind of like -- anyway.19 Q. It says, "Of those complaints, of the written 20 complaints received, several alleged multiple instances 21 of voter impersonation complaints clearly involve 22 allegations of voter impersonation." 23 And here the word "several" is used. And 24 the time frame, I believe, is since September 1, 2007. 25 So that would be about a year and a half between 2007






249

1 and 2009. I'm having a hard time meshing that number 2 several with your other testimony in -- well, in 2005, 3 you had received no complaints, and then in 2010, you 4 said you received two complaint between 2009 and 2010.5 A. Well, is the difference that they're talking 6 about complaints here and in the other, it's talking 7 about referrals to the AG.8 Q. I see. I see. So that helps me with my next 9 question. Do you recall whether you ever forwarded to

10 the Attorney General's Office for investigation any 11 complaints that arose from the City of Taft?12 A. Well, I guess we did. This is dated March of 13 2009. City of Taft, City of Progreso, and something in 14 Harris County.15 Q. But you were mentioning to me before that not 16 all of the complaints go on to the Attorney's General's 17 Office. They have to be sufficiently specific to be 18 investigated.19 A. Right.20 Q. Do you recall whether any of the complaints 21 from Taft, Progreso or Harris County were sufficiently 22 detailed or even gave enough information that they could 23 be investigated?24 A. I think those were. I mean, I believe we did 25 make referrals to the AG on those. You know, it could

250

1 be -- well, I don't know.2 Q. Do you remember attaching copies or putting 3 together with this memo copies of the complaints? 4 Because it says in the next couple of sentences, "Copies 5 of all written complaints are enclosed." Do you 6 remember other things being with this memo such as 7 copies of the complaints?8 A. I think there were. Yes.9 Q. Do you know if that was ever produced by the

10 state in discovery?11 A. I don't know.12 Q. On the next page, the third page, the very top, 13 in all caps, is -- 14 A. This is not a final. I don't know where this 15 came from, but yeah, this does -- I know this did not go 16 out to the committee like that. I can just tell you 17 that for sure.18 Q. I don't know. Maybe the executive office made 19 changes after you wrote a beautiful draft. I can't say 20 either. But did I want to ask you about the paragraph 21 at the top. "Question for Ann," it says. "Do these 22 figures in the attachments I reviewed reflect all 23 instances of complaints the office received for all 24 elections since September 27, whether primary, local or 25 otherwise?" Do you know where that question came from?

251

1 A. That probably came from John Sepehri, who was 2 the general counsel.3 Q. And do you ever remember providing an answer to 4 that question?5 A. I'm sure I did provide an answer.6 Q. Okay. Do you remember what the answer was?7 A. I think it did. I mean, I think it did, 8 because I think that's the question that Representative 9 Anchia asked us, so... And it would have included all.

10 We wouldn't have -- 11 Q. Do you remember whether the complaints from 12 Taft and Progreso were related to local elections?13 A. Progreso was related to local elections. I 14 think it was school district and city. Taft, I don't 15 really remember what that was.16 Q. Okay. So would it be fair to say then that 17 John is asking you here, the general counsel for the 18 Secretary of State, asking you here to make sure you put 19 in everything you had?20 A. Yes.21 THE COURT REPORTER: Is it okay if we take 22 a short break? 23 MS. PERALES: Yes.24 (Recess from 5:27 to 5:36 p.m.)25 MS. PERALES: I marked Rodriguez 4. Did I

252

1 give it to you? 2 THE WITNESS: No.3 MS. PERALES: I did not. Can you please 4 mark this.5 (Rodriguez Exhibit 4 marked for 6 identification.) 7 Q. (By Ms. Perales) Ms. McGeehan, I'm handing what 8 has been marked Rodriguez 4. Do you recognize this 9 document?

10 A. Yes.11 Q. And what is the document?12 A. It is the State submission of Senate Bill 14, 13 the letter submission. I guess we -- okay. It's the 14 whole submission.15 Q. I hope it is.16 A. Yeah.17 Q. Okay. If you wouldn't mind turning with me to 18 Page 10, paragraph N as is "Nancy." You state here, 19 "The Act does not have the intent and will not have the 20 affect the diluting voting strength of any racial or 21 linguistic minority." And you also state that the Act 22 will not affect members at any racial or linguistic 23 minority differently from the way the general public is 24 affected." Do you see that language?25 A. Yes.






253

1 Q. Can you give me the factual basis that you had 2 for making that statement?3 A. That was the opinion of the office based on the 4 information we had, and there's a discussion beneath 5 that paragraph or further discussion in N that sets out 6 a legal analysis of that.7 Q. I see it. Putting aside the legal analysis, 8 are you able to identify any specific facts that formed 9 the basis of your statement in the first paragraph of

10 Section N?11 A. Well, essentially, this is a standard clause 12 that we put in most of our submissions. This may have 13 been tweaked a little bit on this one, but we almost 14 always have this sentence in every submission. So 15 unless we have specific information that there is a 16 discriminatory intent or a discriminatory impact, we 17 will put this -- these statements in the submission.18 Q. I understand, and I have seen this type of 19 statement before in other submissions. I understand 20 it's something of a boilerplate.21 A. Yes.22 Q. But here, I need an answer directly to my 23 question whether you had any facts supporting the 24 statements in the first paragraph of N at the time of 25 the submission.

254

1 A. I had no facts that showed that the Act would 2 have -- that the Act would affect members of a racial or 3 linguistic minority differently from the way the general 4 public was affected.5 Q. Did you have any facts that the Act would not 6 affect members of any racial or linguistic minority 7 differently? 8 A. No.9 Q. Did you have any fact showing that the Act did

10 not have the intent of diluting the voting strength of 11 any racial or linguistic minority?12 A. No, I did not have any fact, factual 13 information that the Act had the intent of diluting the 14 voting strength of any racial or linguistic minority.15 Q. Would it be correct to say that you didn't have 16 any facts one way or the other with respect to the 17 effect of Senate Bill 14 on racial and linguistic 18 minorities?19 A. Yes. I think that's fair.20 Q. You signed the submission; is that correct?21 A. Yes.22 Q. Did you prepare it?23 A. It was -- the initial draft was by one of the 24 attorneys in the Division, and then it went through 25 Elizabeth. I looked at it. It went to John Sepehri,

255

1 and John may have sent it to some other folks.2 Q. And then eventually, it made its way back to 3 you?4 A. Yes.5 Q. All right. And do you always read it through 6 and make sure it's all you before you sign it and send 7 it off?8 A. Well, I mean, it wasn't all me, but I felt 9 comfortable signing it.

10 Q. Why did you put Larry Gonzalez and Aaron Pena 11 as contacts in the -- I guess you'd call it the second 12 to last page. It actually looks like there's three 13 contacts: Aaron Pena, Larry Gonzales, and Jose 14 Aliseda. Why did you put those three people?15 A. Actually, John Sepehri made that decision as to 16 which -- as to who he would list as the minority 17 contacts.18 Q. I see. So this is typically racial minority 19 persons?20 A. Yes.21 Q. Are there any African Americans on this list?22 A. No.23 Q. Do you know of any African Americans who were 24 -- who spoke or testified on the bill?25 A. For the bill?

256

1 Q. For or against.2 A. For or against. I don't recall any African 3 American legislators testifying for the bill.4 Q. Do you remember some in opposition?5 A. Yes.6 Q. Okay. And with respect to Latinos, because 7 these three guys are Latinos; is that right?8 A. Yes.9 Q. They were all for the bill?

10 A. I know that Representative Pena and 11 Representative Jose were. I don't know about Gonzales, 12 Representative Gonzales. I guess he was. He was a 13 co-sponsor, so...14 Q. Yes, he was a co-sponsor, so we're assuming he 15 voted for the bill he co-sponsored? 16 A. Yes.17 Q. And so these three names that you chose to give 18 to DOJ, these three Latinos did not oppose the bill; is 19 that correct?20 A. That's my understanding.21 Q. Okay. So the decision was made by the general 22 counsel to put three Latinos, no African Americans, and 23 only people who supported the bill?24 A. Yes. And generally, that's what we do is, put 25 down the names of people that are supportive of the






257

1 bill.2 Q. Did you have any communications with 3 legislators or anyone in the Office of the Lieutenant 4 Governor during the period of time that this submission 5 was being prepared and following passage of SB 14? 6 MR. MORTARA: I'm sorry. Can you read 7 back the question, Chris? I just have make sure I have 8 no privilege instruction.9 (Requested portion was read back by the

10 court reporter.)11 MR. MORTARA: You can answer that question 12 yes or no.13 A. I did not.14 Q. (By Ms. Perales) Do you know whether anybody in 15 your office had the communications with anybody in the 16 Legislature or the Lieutenant Governor's Office during 17 the preparation of this submission and following passage 18 of SB 14?19 A. I'm not aware of any.20 Q. Okay. Would that answer be same with respect 21 to with some of the subsequent correspondence that you 22 had DOJ?23 A. Regarding if there were any conversation with 24 the Lieutenant Governor's Office or the Legislature?25 Q. Correct.

258

1 A. That's correct. I'm not aware of any 2 communications.3 Q. All right. So while all this significant 4 amount of back and forth is going on between you and the 5 Department of Justice, and you're trying to provide more 6 information in response to their requests for more 7 information, who did you turn to, to navigate through 8 this if not anybody in the Legislature or the Lieutenant 9 Governor's Office?

10 A. I think our -- from my perspective, we were 11 more in contact with the AG's Office, and that's 12 probably privileged, at that point, with the Attorney 13 General's Office --14 Q. Uh-huh.15 A. -- on how to respond to Justice Department.16 Q. Well, you weren't the client of the Attorney 17 General.18 MR. MORTARA: No, but the Attorney General 19 represents the State, and the Attorney General is the 20 lawyer for the entire state, including the Secretary of 21 State when they ask for legal advice from the Attorney 22 General's Office, so it's privileged.23 Q. (By Ms. Perales) So you asked the Attorney 24 General's Office for legal advice?25 A. Yes.

259

1 Q. Was there -- did you have communications with 2 the Attorney General's Office that was not a request for 3 legal advice?4 A. No. I think -- I think it would be considered 5 legal advice as far as getting the Act precleared.6 Q. Uh-huh. Would you send factual information to 7 the Attorney General's Office from time to time during 8 the course of the back and forth with DOJ on the 9 Section 5 submission?

10 MR. MORTARA: You can answer that question 11 yes or no, Ms. McGeehan. 12 A. Yes.13 Q. (By Ms. Perales) Do you know whether that 14 factual information was produced in discovery?15 A. I don't know what was produced in discovery.16 Q. I'm sorry I keep asking that question.17 A. That's okay. Okay. Yeah.18 Q. But I have to get it on the record. I don't 19 mean to be a pest about that. Okay.20 MS. PERALES: I'd like mark this Rodriguez 21 5, please.22 (Rodriguez Exhibit 5 marked for 23 identification.) 24 Q. (By Ms. Perales) Do you recognize the first 25 page of this document as a letter from Senator Ellis to

260

1 you dated October 27th, 2011. 2 A. Yeah. I need to refresh my memory on 3 this. (Reading document.) okay. I have looked at it.4 Q. Do you recognize the first document, that's the 5 first page, printed double-sided, as a letter to you 6 from Senator Ellis?7 A. Yes.8 Q. Do you recognize the second document as an 9 attachment to that letter which is a letter from state

10 demographer Lloyd Potter?11 A. Yes.12 Q. I'm going to ask you a couple of questions 13 about this. Were you involved in the meeting between 14 the Secretary of State's Office and Dr. Potter, the 15 state demographer, about the methodology for deriving 16 the number of registered voters in Texas by race and 17 Spanish surname that might lack ID?18 A. Yes.19 Q. Okay. And is it correct to say, then, that in 20 this meeting with Dr. Potter, you discussed your 21 methodology for coming up with this number, and he 22 discussed his ideas?23 A. Yes.24 Q. Did Dr. Potter make any suggestions about the 25 methodology that should be used?






261

1 A. As best as I can remember the meeting, 2 Dr. Potter, you know, ran through a couple possible ways 3 that they might be able to do the analysis. And I think 4 when he heard of the information that DPS had -- and I 5 think in the meantime -- okay. We had already gotten 6 the request from DOJ asking -- I'm just trying to get 7 the time line straight in my head.8 Okay. So we had already had received the 9 Justice -- so the Justice Department had probably

10 already asked us to be looking at the -- or comparing 11 the DPS race data. So we were starting to analyze what 12 we could do with that. And I think once we shared that 13 with Dr. Potter, I think he decided that might be more 14 fruitful than the kinds of analysis that he could do 15 with the census information and things like that.16 Q. Did Dr. Potter make any suggestions or offer 17 something he thought you all should be doing that you 18 decided not to do?19 A. I don't remember that.20 Q. When you had your conversation with Dr. Potter, 21 was it only about race, or was it also about trying to 22 look at Spanish surname?23 A. I think it also was about race. Spanish 24 surname or -- could you restate your question, please?25 Q. Well, I understand from your previous testimony

262

1 that when you were looking at trying to identify Spanish 2 surnamed registered voters who might lack ID --3 A. Uh-huh.4 Q. -- that you were comparing your registered 5 voters with DPS and looking at their Spanish surnamed 6 people; is that right? Or you were just looking at all 7 the Spanish surnamed flagged people in your database, 8 and the ones you could not find in DPS?9 A. Well, and I remember we didn't -- we didn't do

10 any analysis of DPS data -- and I'm just trying to build 11 a timeline here. We sent the Justice Department the 12 data on the voters that we could identify that didn't 13 have a driver's license. The Justice Department came 14 back and said, oh, but we know that DPS has information 15 on the driver's race. Can you run that information 16 against your voter information? And that request, I 17 think, came in around the same time as this letter from 18 the demographer, or the request from Senator Ellis. And 19 I'm not sure how DPS -- how they identified race in 20 their data.21 Q. Uh-huh. Okay. So with respect to Spanish 22 surname, you could always have run -- once you figured 23 out who was in the voter database who you couldn't find 24 in DPS, which is possibly a list of people who lack 25 voter ID, you could always have looked at that group of

263

1 people for what percentage of them were Spanish 2 surnamed; you didn't need to look at DPS's race data to 3 figure that out? In fact, they weren't even in the DPS 4 database, correct?5 A. Well, and we sent that to the Justice 6 Department in September. We did that --7 Q. With the Spanish surname information?8 A. Yes.9 Q. Okay. And so this is -- these letters that

10 we're looking at in Rodriguez 5 have more to do with an 11 attempt to figure out the race of the people who might 12 not have ID?13 A. Yes.14 Q. So at this point, you've got the Spanish 15 surname figured out.16 A. We've got the Spanish surname data figured out.17 Q. Okay.18 A. Right, and then the Justice Department asked us 19 to, sort of, see if we could further analyze the voter 20 data by comparing it to the DPS data with the -- 21 whatever racial classifications they had.22 Q. And at that time, were you looking at Hispanic 23 as a racial classification, or had you stopped looking 24 at Hispanics?25 A. Well, DPS had that as a -- as a category, so we

264

1 looked at it. Now, that was on -- that was just 2 beginning, and I left the agency before that analysis 3 had concluded. 4 Q. Okay. 5 MS. PERALES: Can we look at the March 18, 6 '09 House Journal. I would like to mark this as 7 Rodriguez 6.8 (Rodriguez Exhibit 6 marked for 9 identification.)

10 Q. (By Ms. Perales) The court reporter has handed 11 you what has been marked Rodriguez 6. And do you 12 recognize this as the Senate Journal from March 18, 13 2009?14 A. Yes.15 Q. Turn with me to Page 591 if you would, which is 16 tail end of a letter that actually begins on the first 17 page, from Deputy Secretary of State Colby Shorter, III. 18 A. Yes. And it's really Coby, not Colby.19 Q. Coby.20 A. Coby. His real name.21 Q. So this is a letter from Mr. Shorter, and he -- 22 you have previously described the position of Deputy 23 Secretary of State as somebody in the executive office; 24 is that right?25 A. They're basically number two.






265

1 Q. The number two, right below Hope Andrade; is 2 that right?3 A. That's right.4 Q. If you would turn with me to Page 591, there is 5 a question on that page: "Does the Secretary of State 6 track the racial status of registered voters? If not, 7 how will the state prove that Senate Bill 362 does not 8 have an adverse impact on the minority voters when the 9 state submits the bill for preclearance." Do you see

10 that question?11 A. Yes.12 Q. And is it correct, if you look at the second 13 paragraph, every submission to the U.S. Department of 14 Justice? Do you see that second paragraph there?15 A. Yes?16 Q. The third sentence, do you see where it says, 17 "A similar effort to obtain such demographics may be 18 required for a voter identification bill." Do you see 19 that there?20 A. Yes, I do.21 Q. So would it be fair to say, then, that the 22 number two person at the Secretary of State's Office, in 23 March of 2009, was informing the Legislature that an 24 effort would have to be made when attempting to preclear 25 a voter ID bill to identify the demographics of

266

1 registered voters?2 A. Yeah. He said it may be required. He offered 3 it, but...4 Q. Okay. So would it be fair to say, then, and 5 your office knew, in 2009, that having to get 6 demographics on registered voters might be a part of the 7 preclearance process for showing that a voter ID bill 8 complied with Section 5?9 A. Yes, I mean, Deputy Shorter's answer mentioned

10 that, so...11 Q. Okay. 12 MS. PERALES: I'd like to mark this, 13 please.14 (Rodriguez Exhibit 7 marked for 15 identification.)16 Q. (By Ms. Perales) The court reporter has handed 17 you what has been marked Rodriguez Deposition 18 Exhibit 7. And do you recognize this as some e-mail 19 communication between yourself and a staffer for Senator 20 Van de Putte?21 A. Yes.22 Q. And is it fair to say that in your September 23 15th e-mail, 2011, to Amber Hausenfluck, you are 24 discussing the possibility that DOJ will ask for racial 25 breakdowns of data regarding which voters do not have a

267

1 Texas driver's license or ID?2 A. Yes. That's what I said.3 Q. How did you know that it was possible that the 4 U.S. DOJ would ask for that, if the letter asking for it 5 didn't come in until September 23rd?6 A. Well, Amber -- Amber's original question to me, 7 or she's referencing -- she is referencing a request 8 from Senator Gallegos's office, I think. Well, I don't 9 really know who Debbie is. But in any event, I mean,

10 what we did -- I think it started out at Senator 11 Gallegos's office, they asked a question about, you 12 know, the number the voters that didn't have driver's 13 license or personal ID numbers issued by DPS, and I 14 think we had just sent that to Justice Department.15 Q. Uh-huh.16 A. And so it was public information, and I sent it 17 to Senator Gallegos's office. He must have sent it to 18 Senator Van de Putte's office. And I think once it was 19 out there, then the question was, have you broken this 20 down by Hispanic surname. So once other people were 21 asking the question, it seemed natural that DOJ might 22 ask that question, so...23 Q. Is it your testimony that it did not occur you 24 to you that DOJ would ask for breakdowns by Spanish 25 surname before it was suggested to you by the staffer in

268

1 an e-mail?2 A. I don't think it did. I don't think they 3 specifically asked for it when they asked for the data.4 Q. DOJ, you mean?5 A. DOJ.6 Q. Okay. I understand. DOJ didn't ask for the 7 data until they asked for it --8 A. Right.9 Q. -- around September 23rd. But is it your

10 testimony that it did not occur to you that the Justice 11 Department would ask for that kind of information prior 12 to September 14th, when it was suggested by a Senate 13 staffer?14 A. I don't remember it -- I mean, it seems obvious 15 now, but I don't recall it coming to me or asking our IT 16 department to do it. 17 Q. And so you don't recall it occurring to you?18 A. No.19 Q. Okay. 20 MS. PERALES: Mark this Rodriguez 8.21 (Rodriguez Exhibit 8 marked for 22 identification.)23 Q. (By Ms. Perales) The court reporter has handed 24 you what has been marked Deposition Exhibit Rodriguez 25 8. Do you recognize this as a September 7, 2011 letter






269

1 from you to Chris Herren at the Department of Justice?2 A. Yes.3 Q. In the very last sentence of your letter you 4 say, "The percentage --" and by there you were talking 5 about registered voters who have a Texas driver's 6 license or I.D. card -- "it's very likely to be higher 7 since we used stringent matching criteria to arrive at 8 this figure." Do you see that last sentence there?9 A. I'm sorry. On the first page?

10 Q. No, last --11 A. On the last page.12 Q. Last sentence, last page.13 A. Yes.14 Q. All right. Did you perform any analysis in 15 your office comparing or exploring the degree to which 16 your matching criteria would be under inclusive?17 A. Well, we knew that it would be, because when we 18 have to verify driver's license numbers for purposes of 19 getting a voter registered, we knew that a match on 20 first name, last name -- and let me refresh my memory 21 here. Last name, first name and date of birth tends to 22 produce fewer matches.23 Q. Than what?24 A. Than if we did last name and first initial. 25 And I would need to refresh my memory. But we have a --

270

1 first names frequently don't match exactly, because you 2 may -- I may be Annie in one database and Ann in another 3 or whatever. And I know that we didn't have any 4 flexibility with the matching criteria with Social 5 Security Administration, because that was set out and 6 it's the same nationwide, but we were able to work 7 the -- on our matching criteria for verifying voters for 8 voter applicants.9 Q. Uh-huh. And when you verify somebody who is

10 applying to register to vote, you do use the matching 11 criteria, last name, first name, date of birth; is that 12 right?13 A. Well, we match on the driver's license number, 14 so I don't think we use the full first name.15 Q. Okay.16 A. I would -- I would need to refresh my memory, 17 but I think that -- I don't think we require an exact 18 match on first name.19 Q. Do you have any studies in the Secretary of 20 State's Office showing the under inclusiveness of a last 21 name, first name, date of birth matching criteria or the 22 potential errors of just using last name, first initial 23 date of birth? Do you have any, sort of, empirical 24 evidence regarding the -- what you call, you know, or 25 what you suggest is an under inclusive methodology here?

271

1 A. I don't know that we have any empirical data. 2 I know that went we met with DPS to set up the process 3 to verify the driver's license numbers for purposes of 4 complying with HAVA, we met with their folks and 5 discussed matching criteria, and this issue came up. I 6 don't think we have any studies or anything of that 7 nature.8 Q. And you chose not to use a match on the 9 driver's license number when you were producing this

10 data for DOJ? You chose to use last name, first name, 11 date of birth? Don't you have the driver's license 12 number in the voter registration database?13 A. Well, but this is for -- these were for the 14 folks that didn't have a driver's license.15 Q. Oh, okay. That's right. 16 A. That's why we had to do it that way.17 Q. So you have a completely different methodology 18 for confirming identity in your statewide database for 19 voter applicants than you did for your DOJ submission?20 A. Yes.21 Q. Because you couldn't match on the driver's 22 license number? 23 A. Right. 24 Q. But so putting aside your conversations with 25 DPS on matching voter applicants, do you have any

272

1 empirical data with respect to the either over or under 2 inclusive nature of trying to match last name, first 3 name and date of birth?4 A. The only other evidence we would have of that 5 is the different rates of verifying drivers' licenses 6 against the rate of verifying the last four digits of 7 the social security number, and there's a higher rate of 8 rejects on social security number. And so it's been our 9 conclusion that that's due to the stricter matching

10 criteria for social security.11 Q. But you just said that when you're matching a 12 driver's license number, you're not using last name, 13 first name, and date of birth. 14 A. Right. But we have to do that for social -- 15 what I'm saying is, for the social security number 16 match, it's similar to this. It's first name and last 17 name. We don't do that when we verify with the DPS 18 data.19 Q. And so you get a closer match when you can 20 match up driver's license numbers than when you are 21 looking at names and date of birth?22 A. Yes, exactly.23 Q. Okay. 24 (Rodriguez Exhibit 9 marked for 25 identification.)






273

1 Q. (By Ms. Perales) The court reporter has handed 2 you what has been marked Rodriguez Deposition Exhibit 3 9. Do you recognize this as a letter from you to Chris 4 Herren at the DOJ?5 A. Yes.6 Q. And dated October 4, 2011?7 A. Yes.8 Q. Is it with this letter that you produced to DOJ 9 for the first time an attempt to identify the number of

10 Spanish-surnamed persons who are not matched in the DPS 11 records for driver's license and Texas ID?12 A. Well, let me look at the letter. I mean, I 13 thought we provided it before this, but I could be 14 wrong.15 Q. Take a look at Page 4 and paragraph number -- 16 well, it's got a number in front of it, 5, and 17 specifically 5B. 18 A. 5B, okay. Oh, okay. I guess we sent it with 19 this letter, then. It looks like we sent them an Excel 20 spreadsheet or something.21 Q. And so if you sent DOJ this information on 22 October 4th, can you give me a sense of when you 23 generated this information for the first time? And by 24 that I mean, trying to identify, within the 605,576 25 registered voters who the state advise do not have a

274

1 Texas driver's license or personal ID card, the number 2 of people who are Spanish surnamed? Would you have done 3 it shortly before October 4th or a little bit earlier 4 than that?5 A. Well, I don't remember when we received the 6 request for additional -- for additional information 7 from the Justice Department, but it probably have been 8 -- and I'm --9 Q. I think it was September 23rd.

10 A. Okay. So it would have been sometime between 11 September 23rd and, you know, before this -- before 12 October 4th. 13 Q. Already. So less than two weeks?14 A. Yeah.15 Q. Okay. 16 MS. PERALES: Please mark this.17 (Rodriguez Exhibit 10 marked for 18 identification.)19 Q. (By Ms. Perales) You have been handed what has 20 been marked Rodriguez Deposition Exhibit 10. Do you 21 recognize this as a letter from you dated October 27, 22 2011, to Jennifer Maranzano from the DOJ?23 A. Yes. 24 Q. I can only imagine that -- I mean, this is -- 25 what is this, three weeks? A little bit over three

275

1 weeks following the provision of the Spanish surname 2 information; is that correct?3 A. Right.4 Q. I just can only -- reading through these, 5 honestly, it just seemed like -- it was just very 6 stressful. I have to say. That's not a question, so 7 you don't have say anything in response to that.8 But I did want to ask you whether, when 9 you're talking about racial classification data in your

10 October 27th letter, whether you're talking about 11 something different than identifying Spanish-surnamed 12 registered voters?13 A. Yes.14 Q. So when you're talking about Hispanics in the 15 DPS database being an obvious under count, but can you 16 explain why you think there was an obvious under count 17 of Hispanics in the DPS database?18 A. Well, we knew -- and I don't have those -- we 19 knew that they -- it was a very low number of Hispanics 20 in the driver's database, like, you know, 5 or 6 21 percent, and so we knew that had to be wrong. So we had 22 some concerns about, you know, how reliable the data 23 was. And I think that's -- I think we try to say that 24 in this letter, that there are limitations with the 25 data.

276

1 Q. Do you know if DPS ever tried to update its 2 Hispanic numbers by running a Spanish surname search?3 A. No. I mean, I don't know.4 Q. Okay. I'm going to ask you now about Spanish 5 surname voter registration in the Secretary of State's 6 data, the stuff that I know about.7 A. Okay. 8 Q. You had mentioned earlier in your testimony 9 that from time to time, you would pull information about

10 Spanish-surnamed registered voters with respect to a 11 jurisdiction when doing a Section 5 preclearance 12 submission. 13 A. Yes.14 Q. And you mentioned some local jurisdictions that 15 you would pull that information for. Do you remember 16 pulling or providing Spanish-surnamed registered voter 17 information to DOJ when you submitted, in 1998, the 18 statewide change to fill judicial vacancies following 19 the Hardberger versus Angelini decision; do you remember 20 that? 1998?21 A. I remember that whole decision and all of that, 22 but I don't remember if we included it. We may have.23 Q. Do you remember getting an objection?24 A. Oh, yes. I do remember that. Yes.25 Q. Okay. All right. So moving back from the






277

1 objection, do you remember the objection letter talking 2 about the fact you had provided them information on 3 Spanish surname voter registration for the --4 A. The letter from the Justice Department? 5 Q. Yes. Do you remember the Justice Department 6 letter of objection referring to Spanish surname 7 registered voter data?8 A. No, I don't remember that part of the letter.9 Q. Okay. But if it did, it would have come from

10 the Secretary of State, right?11 A. Yes.12 Q. Now, redistricting, which you called another 13 animal, is one in which also prepared Section 5 14 submissions, correct?15 A. Yes. Sometimes, unless it went straight to 16 court or something. 17 Q. And when you prepared submissions, 18 administrative submissions for redistricting, you 19 routinely provide Spanish surname registered voter data 20 for the state and for individual districts, correct?21 A. Yes. Yes.22 Q. And, in fact, you are the source of Spanish 23 surname registered voter data for the Texas Legislative 24 Council when they build their redistricting database; 25 yes?

278

1 A. Yes.2 Q. And their GIS system?3 A. Yes. That's my understanding.4 Q. You were very careful earlier in your testimony 5 when you talked about Spanish surname registered voters 6 and some of the complaints that you had received, to 7 talk about Spanish speaking. And I appreciated your 8 carefulness in this, because you talked about people who 9 complained to your office because they had received

10 mailers in Spanish; is that right?11 A. Right.12 Q. And they would tell you, "I'm not Spanish 13 speaking," correct?14 A. Right. 15 Q. Okay. Is it possible to be Hispanic and not 16 Spanish speaking?17 A. Yes.18 Q. So it could have been that you correctly 19 identified this person as a Spanish surnamed person and 20 even an Hispanic person, but they didn't speak Spanish?21 A. Yes, that could happen.22 Q. Okay. And so speaking Spanish is not the same 23 as being Hispanic, is it?24 A. No.25 Q. And, in fact, nonHispanic people speak Spanish,

279

1 too.2 A. Right. Right. 3 Q. Mr. Mortara aside.4 MR. MORTARA: But his wife does speak 5 Spanish and is, as far as Mr. Mortara knows, not 6 Hispanic. 7 Q. (By Ms. Perales) Have you seen any study on the 8 accuracy of your identification of Spanish surnamed 9 registered voters with respect to being able to identify

10 Hispanic voters in Texas?11 A. No.12 Q. Okay.13 MS. PERALES: Please mark these two.14 (Rodriguez Exhibits 11 and 12 marked for 15 identification.)16 Q. (By Ms. Perales) If you wouldn't mind looking 17 at Rodriguez Deposition Exhibits 11 and 12 for me.18 A. Okay.19 Q. I want to ask you about the January 6th letter 20 first. Do you recognize this as another letter to the 21 Department of Justice?22 A. Yes.23 Q. Okay.24 A. Well, it's not signed, but...25 Q. That's right. And if you wouldn't mind

280

1 checking and seeing that the January 12th letter is 2 signed by Keith Ingram. 3 A. Yes.4 Q. Okay. And did Keith Ingram become director of 5 Elections after you left or before you left?6 A. After I left.7 Q. And what happened to Elizabeth Winn?8 A. She was acting director for a while, and then 9 when Keith was named or came on board, she went back to

10 her duties as director of the Legal section.11 Q. Who took your place when you left?12 A. Well, Elizabeth basically would wore two hats. 13 I think she acting director of the Division and also 14 director of the Legal section.15 Q. What is her title now?16 A. I believe it's Director of Legal section.17 Q. Okay.18 A. But, I mean, maybe it's changed, but that's 19 what it was before I left.20 Q. All right. So from what I can figure out -- 21 well, first of all, let me ask you: Did you draft the 22 January 6th letter that we're looking after here before 23 you left?24 A. I don't think so, but I will look at it. I did 25 not write this letter.






281

1 Q. It doesn't sound like you, but I had to ask.2 Let me point you to the language on Page 2 3 of the letter you're holding from January 6th. There 4 are some bullet points, and I want you to look at bullet 5 point 5. Look at bullet point 5 that starts with, "Use 6 of Hispanic surname."7 A. Okay.8 Q. When you were at the Secretary of State's 9 Office, did you ever write or offer the opinion that use

10 of the Hispanic surname is an unreliable methodology for 11 the purpose of this exercise, which we can understand is 12 identifying Hispanics?13 A. No. And I think we -- had I offered this 14 earlier with Ms. Westfall, also, that's it -- you know, 15 we know it's not a perfect process, but, you know, it 16 was our belief at the time that it was -- it was 17 probably the only available tool we had to try and 18 identify Spanish surname voters, Hispanic voters. And 19 furthermore, it was also pursuant to an agreement with 20 the Justice Department as sort of an authorized way to 21 identify Hispanic voters.22 Q. And the courts accept it as such in 23 redistricting litigation, don't they?24 A. Yes.25 Q. Okay. And now if you look with me in the

282

1 January 12th letter, which looks a lot like the January 2 6th letter, if you go to the fifth bullet point again on 3 Page 2, you'll see it says, "Hispanic surname analysis 4 is an imprecise substitute for accurate racial data."5 Do you have any idea why the language was 6 changed from "unreliable" to "imprecise"?7 A. I don't know.8 Q. Did you work on editing any form of this 9 letter --

10 A. No.11 Q. -- before you left?12 A. No.13 Q. Are you familiar with -- are you familiar with 14 any incident in which an individual presented, for 15 voting, the voter certificate of a different individual 16 in order to impersonate that voter?17 A. I think there was a case in Houston where 18 somebody, I think a son, showed his deceased father's 19 certificate or something along those lines.20 Q. Other than the incident that you heard of 21 involving a son presenting a certificate of his father, 22 are you aware of any other incidents in which one 23 individual used the voter certificate of a person in 24 order to vote?25 A. I can't recall any right now, except for the

283

1 fact that I have reviewed, you know, some of these 2 documents where I stated that we made referrals to the 3 AG maybe twice on voter impersonation, and that may have 4 been based on somebody like another person's analysis of 5 all the complaints.6 Q. So you don't know of a specific incident, other 7 than the one in Harris County involving the son using 8 his father's voter certificate? Because you can 9 impersonate a voter with other documents, under the

10 current law, besides the voter certificate; yes?11 A. Right.12 Q. Okay. So with respect only to the use of the 13 voter certificate, is it correct to say, then, that you 14 were only aware of one incident that you heard of where 15 a son used the voter certificate of his father to vote?16 A. Well, I think it would be fair to say that 17 that's a specific fact scenario that I specifically 18 remember. But I also feel comfortable saying that we 19 had some -- you know, at least two complaints where that 20 was an allegation. I don't remember the underlying 21 facts under those allegations.22 Q. So what -- do you remember those two cases 23 solving allegations of the use of a voter certificate?24 A. I don't remember precisely. And voter 25 impersonation, I mean, that's not really an offense

284

1 under the Election Code. So, when we were asked to 2 analyze that, we'd have to sort of look at the 3 complaints and say, well, does that fit under this 4 category, which was sort of a category that's not really 5 defined. We know what it means, but...6 Q. I understand. But what you're saying is that 7 with specific reference to one person using another 8 person's voter certificate, that exact document, you can 9 recall one specific incident involving a son voting with

10 his deceased father's certificate and that you recall 11 other voter impersonation compliant, two other, in which 12 the certificate might or might not have been involved?13 A. Yes.14 Q. And can you think of a valid reason to remove 15 the voter certificate from the list of acceptable ID for 16 voting?17 A. You know, I can only speculate that the 18 Legislature felt it was important to have a photo ID, so 19 since the certificate doesn't have a photo, they didn't 20 feel like that was strong enough.21 Q. Okay. I understand. And for so many years, you 22 had to defer to the policy decisions of the 23 Legislature. But I want to ask you whether you, based 24 on your 20-plus years in the Secretary of State's Office 25 and your familiarity with one very specific incident






285

1 involving the improper use of a voter certificate by a 2 son to vote for his deceased father, whether you can 3 think of a valid reason, based in reality, and I'll be 4 more specific here, to prevent voter fraud by removing 5 the voter certificate from the list of acceptable ID for 6 voting? 7 A. You know, as director of Elections, you know, 8 my duty was to implement the law, and, you know, it's 9 not my duty to the second guess the law. And so for

10 photo ID, the stated intent was that this is going to, 11 you know, strengthen our voter laws. It's going to, you 12 know, increase confidence in the process because there's 13 going to be an affirmative identification at the polls.14 So in that sense, the certificate alone 15 probably doesn't meet that goal. You know, I'm not the 16 Legislature, so, you know, so I guess that's my answer, 17 if you let me get away with that.18 Q. (By Ms. Perales) I won't. I have to object as 19 nonresponsive, because I'm asking for your opinion, and 20 maybe the first and last time I'll ask. I mean, I have 21 to ask you for your opinion. And you spent many, many 22 years in the Office. If there's anybody in the state of 23 Texas who is an expert on the operation of elections and 24 all things surrounding elections, including the 25 acceptance of voters for voting, it's you.

286

1 A. My opinion is, I think both sides of the issue 2 are a little exaggerated and overstated and the truth is 3 probably somewhere in the middle.4 Q. And so with respect to your opinions 5 specifically on the removal of the voter certificate 6 from the list of ID that should be presented for voting, 7 can you think of a reason, based in reality, to remove 8 the voter certificate from the list of ID in order to 9 prevent voter fraud?

10 A. Well, I mean, as a practical matter, what we 11 hear from election officials is most voters don't 12 present it anyway.13 Q. So is there a reason to remove it, in your 14 opinion?15 A. I mean, it's hard to examine that without 16 knowing that -- if the mandate is photo ID, then there's 17 a reason to remove it.18 Q. All right. But putting aside SB 14, our 19 current law, which we have a voter ID law in Texas, 20 includes the voter certificate as a form of ID for 21 voting, and you testified you can think of one very 22 specific incident in which a son used his father's voter 23 certificate after his father passed away to vote in his 24 place. Knowing everything you do about Texas election 25 administration, and this one very specific incident and

287

1 two other possible incidents where you don't know 2 whether the certificate was involved -- 3 A. Right.4 Q. -- what is your opinion or do you have -- well, 5 I'm not going to ask the other opinion, because you'll 6 tell me you don't. But in your opinion, is there a 7 valid reason, based in reality, to remove the voter 8 certificate from the list of acceptable ID in order to 9 prevent fraud?

10 MR. MORTARA: Objection, asked and 11 answered.12 Q. (By Ms. Perales) It's a yes or no question, and 13 so I need a yes or no answer. 14 A. Yes. I think there would be a reason if the 15 stated goal is to increase confidence in the process and 16 to ensure the public that people aren't voting 17 fraudulently, whether it really happened in reality or 18 not aside, but if the thought is we want to promote 19 confidence in the process and the rules in the system, 20 then, yes, I think that some folks might feel more 21 confident about voting if they knew that only these 22 governmental photo IDs are allowed at the polling place.23 Q. Have you had received any complaints from 24 voters who said they lacked confidence in the system 25 because the voter certificate could be used for voter

288

1 identification?2 A. No.3 MS. PERALES: These are my last questions, 4 the Dechert folder.5 (Rodriguez Exhibit 13 marked for 6 identification.) 7 Q. (By Ms. Perales) You have been handed what the 8 court reporter has marked Rodriguez Deposition Exhibit 9 13. I'm going to ask my last questions of you regarding

10 the Public Education Plan under HAVA.11 A. Okay.12 Q. Did you, when you were at the Secretary of 13 State's Office, work on the current Public Education 14 Plan?15 A. I gave some feedback on this RFP, but I was not 16 the primary author or driver of it.17 Q. Was the Public Education Plan developed 18 in-house at the Secretary of State?19 A. The request for a proposal was.20 Q. Okay. And when you say request for a proposal, 21 you mean Rodriguez Deposition Exhibit 13, yes?22 A. Yes.23 Q. Okay. And what's the difference between the 24 RFP and the Public Education Plan under Senate Bill 14, 25 because I noticed you made a distinction, so I wasn't






289

1 sure.2 A. Well, I mean, the RFP is -- basically, it's 3 asking for proposals to help the Secretary of State 4 develop a statewide voter education program. So the 5 actual voter education program is going to be different 6 than this. This is just sort of setting out, sort of, 7 the minimum requirements that the office wanted to see 8 in responses.9 Q. Okay. And so the responses to the request for

10 proposal would be, in essence, this is how it should 11 look, the Public Education Plan should look?12 A. I don't think we had a preconceived notion as 13 to how it would look. I mean, we had certain 14 requirements we wanted see them meet, but I think they 15 were also looking for creative solutions as to how to 16 get the word out and educate voters.17 Q. Okay. You were still at the Secretary of State 18 when the deadline arrived for responses --19 A. Yes.20 Q. -- to the RFP; yes?21 A. Yes.22 Q. How many proposals did the Secretary of State 23 receive in response to this RFP?24 A. I don't know. I mean, I helped, or at some 25 point, I reviewed this document, but I did not see any

290

1 of the responses that came in. 2 Q. So would you be able to answer any questions 3 regarding whether the proposals that the Secretary of 4 State received included plans designed to target African 5 Americans or Hispanic communities?6 A. I couldn't answer any of those questions.7 Q. Do you know whether a proposal has been 8 selected as a result of this RFP?9 A. I think it has, because I noticed on the

10 website that the Secretary had sort of picked off a new 11 kind of an education tour, and I presume that's part of 12 this. But I don't know for sure.13 Q. Okay. Do you know whether any legislators 14 encouraged the Secretary of State's Office to select a 15 particular proposal or contractor?16 A. I don't know.17 MR. MORTARA: Well --18 MS. PERALES: It's not legislative. 19 MR. MORTARA: Yeah. Sorry. 20 A. No, I don't know.21 Q. (By Ms. Perales) Okay. I'm going off that 22 topic now.23 Do you know anything about the substance 24 of the proposal that was selected? 25 A. No.

291

1 Q. There are some BIC regulations, the Texas 2 Administrative Code 37 15.181 through .185. Does this 3 sound familiar to you?4 A. Yeah, maybe, on the procurement process or --5 Q. I'm looking now.6 A. Okay.7 Q. With respect to the proposal that was selected, 8 which we think there's been a proposal selected, who at 9 the Secretary of State's Office would be most

10 knowledgeable about the contents of the proposals and 11 the proposal that was ultimately selected?12 A. Probably the communications director.13 Q. Okay. Eligibility for Election Identification 14 Certificate. We have to let the court reporter mark it.15 (Rodriguez Exhibit 14 marked for 16 identification.)17 Q. (By Ms. Perales) The court reporter has handed 18 you what has been marked Rodriguez Depo Exhibit 14. 19 It's selections from the Texas Administrative Code on 20 Eligibility For Election Identification 21 Certificate. Did you work on these regulations?22 A. These are the DPS's regulations it looks like?23 Q. Yes, having to do with this new election 24 identification certificate under SB 14.25 A. I may have seen a draft of these.

292

1 Q. Do you know which agency did the first draft?2 A. DPS.3 Q. Okay. So you might have seen a draft of this 4 somewhere along the line?5 A. Yeah. I think they were asking for some 6 feedback.7 Q. Do you remember providing any feedback?8 A. I believe we did.9 Q. Do you remember when all of this occurred?

10 A. Well, I don't -- I know that -- I think it was 11 in September or maybe October, that we met with DPS to 12 discuss these rules. I don't know that I ever saw what 13 they actually proposed in the register.14 Q. Uh-huh.15 A. So it says it was effective December 13th, so 16 they probably proposed it sometime in October, but 17 that's what I know.18 Q. Do you know the source of the suggestion 19 involving fingerprints? Did that come from the 20 Secretary of State?21 A. No, that did not come from the Secretary of 22 State. I'm trying to find that, where that is.23 Q. I know. I am, too. But it's in here 24 somewhere. 25 A. Yeah.






293

1 Q. Do you remember adding items to this long list 2 of supporting identification under 15.182? And do you 3 remember in your comments from the Secretary of State's 4 Office adding additional documents that you thought 5 should be used in order to support the application for 6 an election identification card?7 A. No. I think they were following their -- the 8 process for obtaining an personal identification number, 9 as I recall.

10 Q. Okay. I found the fingerprints. It's in 11 15.183. The applicant must provide fingerprints in 12 order to get an election identification card. You don't 13 remember that coming from the Secretary of State?14 A. No.15 Q. Do you remember having any conversations about 16 that requirement?17 A. Yes.18 Q. And tell me what those conversations were.19 THE WITNESS: Is there any privilege on 20 this?21 Q. Who is the conversations with? Was it DPS?22 A. It was DPS. Okay. 23 MR. MORTARA: I mean, you and DPS may 24 share a conversation, but, for instance also included 25 OAG on legal advice, that would be privileged. DPS

294

1 would have the same lawyer. If you and DPS were just 2 having conversations about what to do with respect to 3 these regulations, and you don't think you were giving 4 legal advice, you can answer. 5 MS. PERALES: She doesn't have an 6 attorney- client relationship with DPS.7 MR. MORTARA: That will be common interest 8 between her and DPS Lawyers. So, for instance, they can 9 have a common legal interest and coordinate, just like

10 you get to talk to the Justice Department. You have a 11 common interest, and that's -- I don't get to discover 12 what you're saying to the Justice Department.13 So if it was legal advice that you and DPS 14 lawyers were coordinating on, you can't answer. If it's 15 not legal advice, you can answer.16 Q. (By Ms. Perales) Well, let me first ask you 17 then who you had the communication with at DPS regarding 18 the fingerprints? 19 A. It was DPS general counsel, and kind of their 20 government relations person. I don't know what her 21 title is exactly. I think the director or the assistant 22 director of the driver's license department. And one or 23 two other people from DPS. And I think John Sepehri was 24 present and Elizabeth Winn was present.25 MR. MORTARA: And just further

295

1 clarification. If these conversations were not 2 ultimately for the purpose of you rendering shared legal 3 advice between DPS and yourself to your client, the 4 Secretary of State or the executive body thereof, you 5 may answer. If it's part of that process, you may not, 6 about the substance of this communication.7 Q. (By Ms. Perales) So was the substance of the 8 communication to DPS for the purpose of giving legal 9 advice to your executive office and your boss, the

10 Secretary of State?11 A. I think it was for the purpose of giving some 12 legal advice to DPS.13 MR. MORTARA: I think you can't answer 14 that.15 THE WITNESS: Can or cannot? 16 MR. MORTARA: Cannot.17 Q. (By Ms. Perales) If you just said it was a 18 stupid idea, I think that counts.19 A. As legal advice?20 Q. Not legal advice. As not legal advice.21 MR. MORTARA: Things can be stupid because 22 they are not legal.23 MS. PERALES: That's true. Very true. 24 Okay.25 I'd like to take a one-minute break.

296

1 (Recess from 6:45 p.m. to 6:48 p.m.)2 MS. PERALES: So we are back on the 3 record.4 All right. I reserve the remainder my 5 questions for the time of trial. I pass the witness to 6 Mr. Mortara.7 MR. MORTARA: No questions. 8 MS. PERALES: That's it. The deposition 9 is concluded.

10 (Signature reserved.)11 (Deposition concluded at 6:50 p.m.)12 13141516171819202122232425






297

1 CHANGES AND SIGNATURE

2 RE: TEXAS VS. HOLDER, ET AL

3 PAGE LINE CHANGE REASON

4 ________________________________________________________

5 ________________________________________________________

6 ________________________________________________________

7 ________________________________________________________

8 ________________________________________________________

9 ________________________________________________________

10 ________________________________________________________

11 ________________________________________________________

12 ________________________________________________________

13 ________________________________________________________

14 ________________________________________________________

15 ________________________________________________________

16 ________________________________________________________

17 ________________________________________________________

18 ________________________________________________________

19 ________________________________________________________

20 I, ANN McGEEHAN, have read the foregoing deposition

21 and hereby affix my signature that same is true and

22 correct, except as noted above.

23

24 __________________

25 ANN McGEEHAN

298

1 THE STATE OF _________________)2 COUNTY OF_____________________)3 4 Before me,_______________________, on this day 5 personally appeared ANN McGEEHAN, known to me (or proved 6 to me under oath or through____________________ 7 (description of identity card or other document) to be 8 the person whose name is subscribed to the foregoing 9 instrument and acknowledged to me that they executed the

10 same for the purposes and consideration therein 11 expressed.12 Given under my hand and seal of office 13 this_________day of ______________, 2012.14 15 16 ________________________

NOTARY PUBLIC IN AND FOR17 THE STATE OF __________18 19 20 21

22

23

24

25

299

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

2 STATE OF TEXAS, )

3 ) Plaintiff, )

4 ) VS. )

5 ) ERIC H. HOLDER, JR. in his )

6 official capacity as Attorney ) General of the United States, )

7 ) Defendant, )

8 ) ERIC KENNIE, et al, )

9 ) Defendant-Intervenors, )

10 ) TEXAS STATE CONFERENCE OF ) CASE NO. 1:12-CV-00128

11 NAACP BRANCHES, ) (RMC-DST-RLW) ) Three-Judge Court

12 Defendant-Intervenors, ) )

13 TEXAS LEAGUE OF YOUNG VOTERS ) EDUCATION FUND, et al, )

14 ) Defendant-Intervenors, )

15 ) TEXAS LEGISLATIVE BLACK )

16 CAUCUS, et al, ) )

17 Defendant-Intervenors, ) )

18 VICTORIA RODRIGUEZ, et al., ) )

19 Defendant-Intervenors. )20 REPORTER'S CERTIFICATION

DEPOSITION OF ANN McGEEHAN21 MAY 31, 201222 I, Chris Carpenter, Certified Shorthand Reporter in 23 and for the State of Texas, hereby certify to the 24 following:25 That the witness, ANN McGEEHAN, was duly sworn by

300

1 the officer and that the transcript of the oral 2 deposition is a true record of the testimony given by 3 the witness; 4 That the deposition transcript was submitted on the 5 _______day of _________, 2012, to the witness or to the 6 attorney for the witness for examination, signature and 7 return to__________________________________________, by 8 ___________________, 2012; and if returned, the original 9 transcript will forwarded to Elizabeth Westfall, the

10 custodial attorney;11 That the amount of time used by each party at the 12 deposition is as follows:13 Ms. Westfall: 4 hours, 34 minutes14 Ms. Perales: 2 hours, 13 minutes15 I further certify that I am neither counsel for, 16 related to, nor employed by any of the parties or 17 attorneys in the action in which this proceeding was 18 taken, and further that I am not financially or 19 otherwise interested in the outcome of the action.20 Certified to by me this 2nd day of June, 2012.21 22 _______________________________

Chris Carpenter, Texas CSR 115123 Expiration Date: 12/31/2012

100 Congress Avenue, Suite 200024 Austin, TX 78701

(512)328-555725 Firm Registration No. 283





Date post:	24-Jul-2020
Category:	Documents
Upload:	others
View:	0 times
Download:	0 times