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Fitzgerald v. Alcorn

United States District Court, W.D. Virginia, Harrisonburg Division

January 5, 2018

ANNE T. FITZGERALD, et al., Plaintiffs,
JAMES B. ALCORN, et al.. Defendants.



         This matter comes before the court on defendants' motion to exclude the testimony of Jeffrey A. Jenkins, PhD, as a proposed expert witness for the plaintiffs. ECF No. 37. The court heard argument on the motion at an October 26, 2017 hearing. The defendants are the Virginia Department of Elections and members of the Virginia Board of Elections.[1] The plaintiffs are three individuals and two voluntary associations affiliated with the Republican Party of Virginia (the "Party"). The lawsuit challenges the constitutionality of the Incumbent Protection Act (the "Act"), Va. Code. Ann. § 24.2-509(B). The Act provides certain elected officials with the power to choose the method of nomination used to select their political party's nominee for their office. Cross motions for summary judgment are pending and will be considered in a forthcoming Memorandum Opinion. But for now, the court addresses defendants' request to exclude Jenkins as an expert witness. The court will deny the motion for the reasons below.


         Jenkins is a Provost Professor of Public Policy, Political Science, and Law at the University of Southern California. Prior to joining USC, Jenkins taught at the University of Virginia for ten years. He also held academic positions at Northwestern University and Michigan State University and postdoctoral fellowships at Princeton University and Michigan State University. Jenkins' work focuses on legislative politics and political parties and includes more than 40 articles in peer-reviewed journals. He has not served as an expert witness in litigation during the prior four years.

         In support of their summary judgment motion, plaintiffs filed a signed declaration summarizing Jenkins' proposed trial testimony, 'ECF No. 39-27, and Jenkins' deposition taken by defense counsel, ECF No. 39-30. Plaintiffs expert disclosure indicated that Jenkins would testify about "the nomination process under Virginia Law and the Plan of Organization of the Republican Party of Virginia, the structural advantages enjoyed by incumbent office holders [sic] in such process, and the additional advantages conferred to incumbent officeholder [sic] by Section 24.2-509(B) ... as well as related matters, all as set forth in the Expert Report previously provided." ECF No. 38-1, at l-2.[2]

         In forming his opinions related to this case, Jenkins relied heavily on rational choice institutionalism, a theory that posits that political outcomes are the product of preferences and institutions. ECF No. 39-27, at 3-4. Pursuant to this theory, Jenkins opines in his declaration that Virginia incumbents "have the ability to assess how they would perform under the different nomination methods and choose the one that they believe maximizes their chances of reelection." Id. at 9. He states that "the mere existence of the Act... disadvantages challengers and benefits incumbents." Id. In addition, Jenkins believes that one way to strengthen the role of political parties would be to implement party registration for primary voters, which would allow "parties to restrict primary participation to their members exclusively." Id. at 10. Jenkins expanded on these opinions in his deposition. Plaintiffs contend that Jenkins' testimony is relevant to both of the issues at the center of this case: whether plaintiffs have standing to sue and whether the Act violates their First Amendment rights. Defendants argue that Jenkins' testimony fails to satisfy the evidentiary standards related to expert witnesses.


         Federal Rule of Evidence 702 governs the admissibility of expert testimony.[3] The Rule's prescriptions are guided by the Supreme Court's decisions in Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993), and Kumho Tire Co.. Ltd. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the Court explained that the "trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589. Under Rule 702, "expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful" to the trier of fact. Id. at 591.[4] In Kumho Tire, the Court made clear that these principles apply to all proposed expert witnesses, including those with specialized knowledge such as Jenkins. See Kumho Tire. 526 U.S. at 141. "The question of whether a witness is qualified to testify is context-driven and can only be determined by the nature of the opinion he offers." RG Steel Sparrows Point. LLC v. Kinder Morgan Bulk Terminals. Inc., 609 Fed.Appx. 731, 738 (4th Cir. 2015).

         Defendants argue that Jenkins ought to be excluded as an expert because his testimony is irrelevant and would not be helpful to the trier of fact in resolving the case. They make two arguments: (1) Jenkins lacks the requisite familiarity with the Virginia electoral procedures at issue in this case; and (2) Jenkins' definition of a "closed primary" contradicts the definition employed by federal courts in controlling cases.

         In support of their first argument, defendants argue that Jenkins' academic background on national politics is inapplicable to this case, and Jenkins did not review sufficient Virginia-specific materials in forming his opinions. Defendants focus on Jenkins' statement that "[m]ost of my scholarly work is on national parties, U.S. Congress, American political development. Much less so on state parties." ECF No. 38-2, at 9:15-17 (emphasis added). They argue that "Jenkins attempts to parlay his research and familiarity as an expert on national politics into an expert opinion on Virginia election procedures and state party dynamics." ECF No. 38, at 7. Plaintiffs counter that Jenkins' expertise in rational choice institutionalism allows Jenkins to opine as to how those general principles apply to the facts of this case. According to plaintiffs, "courts do not require narrower and narrower sub-specialization ... in order to admit expert testimony into evidence." ECF No. 41, at 5 (discussing Palatka v. Savage Arms. Inc., 535 R App'x 448, 454 (6th Cir. 2013), wherein the court allowed expert testimony of a mechanical engineer in a products liability case about firearms, even though the engineer lacked specific knowledge of firearms).

         Defendants also argue that Jenkins did not sufficiently prepare in order to form his opinions on the subject matter of this case, which further reveals his lack of familiarity with Virginia's electoral system. In preparing for his testimony, Jenkins reviewed various sections of Virginia's election laws (including the Act), forms promulgated by the Department of Elections used to enforce those laws, memoranda filed by plaintiffs in the case, the Party's Plan of Organization (the "Plan"), and other Party documents related to the selection of nomination methods. He also reviewed the academic literature related to the Act, albeit scarce, and other peer-reviewed literature on principles of incumbency advantage and political parties. See ECF No. 39-27, at 4, 12-13.

         According to defendants, those materials do not provide enough background on which Jenkins could have reliably formed his opinions. They contend that Jenkins should have reviewed meeting minutes of plaintiffs 20th House of Delegates District Republican Committee and 6th Congressional District Republican Committee. Further, Jenkins ought to have known that in presidential primaries, Virginia law allows political parties to require "the signing of a pledge by the voter of his intention to support the party's candidate." Va. Code Ann. § 24.2-545(A). Defendants also cite Jenkins' lack of knowledge that the Party voted to exercise such a pledge requirement in the 2016 presidential primaries.[5]

         The court has reviewed Jenkins' proposed testimony, his qualifications, and preparation and concludes that he his qualified under Rule 702. As defendants recognize, Jenkins has "significant experience with national political science." ECF No. 38, at 8. Indeed, his proposed testimony applies general principles of rational choice institutionalism to the electoral procedures at issue in this case. Jenkins' testimony shows his familiarity with the Act and the Plan, the sources at the center of the controversy. Although Jenkins did not consider every bit of evidence that defendants consider important, "one need not be precisely informed about all details of the issues raised or even have prior experience with the particular subject the testimony concerns." RG Steel, 609 Fed.Appx. at 739; see also Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017) ("[Q]uestions regarding the factual underpinnings of the expert witness' opinion affect the weight and credibility of the witness' assessment, not its admissibility."). The meeting minutes and other materials that Jenkins did not consider, while relevant, are not critical to Jenkins' testimony that the powers granted by the Act affect political outcomes. Consequently, the court finds that Jenkins possesses the requisite background as a political scientist and adequately reviewed case-specific materials to offer his proposed expert testimony.

         Defendant's second argument challenging Jenkins' qualification is likewise unavailing. They argue that Jenkins' employs a definition of a "closed primary" that is more restrictive than the definition relied on in Supreme Court cases, and therefore, this portion of Jenkins' testimony is not relevant. The Supreme Court has characterized a closed primary as one "in which only persons who are members of the political party-i.e. who have declared affiliation with that party when they register to vote-can vote on its nominee." California Democratic Party v. Tones. 530 U.S. 567, 570 (2000) (describing Cal. Elec. Code Ann. §§ 2150, 2151); see also Clingman v. Beaver,544 U.S. 581, 587 (2005) ("In Tashjian, this Court struck ...

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