City Changes Course on Demographer Following Report

Douglas Johnson testifies on North Carolina’s Voting Maps

Following the Vanguard’s report on Friday highlighting very recent problems with the company National Demographics Corporation (NDC) in North Carolina, the city has quickly changed course.  The city late on Friday sent out a “Supplemental Staff Report” in which they announced the change.

The report notes, “In reaching our recommendation on NDC, staff, in conjunction with the City Attorney, had researched and reached out to several potential demography firms and performed reference checks.”

However, they now state, “In light of additional information that has come to our attention with regard to NDC since publishing the original staff report, staff and the City Attorney are currently soliciting proposals from additional firms to provide demographic services (should the City Council take actions on August 13th to pursue consideration of shifting to a district-based City Council election process).”

One source told the Vanguard that the new demographer is likely to be a more locally based company, and the source felt the local entity probably should have been the choice from the beginning.

The staff report notes: “The demographer will ensure that the proposed district maps comply with Federal Voting Rights Act and California Voting Rights Act requirements and will assist in soliciting feedback from the community.”

Staff added that they anticipate presenting a recommendation regarding the choice of demographer along with a potentially revised timeline for public hearings and community forum dates at the council meeting on Tuesday.

While NDC seemed to have both extensive experience and a good reputation, a case from just two weeks prior, on July 25, presented a large red flag.

Published reports out of a trial in North Carolina – challenging the Republican gerrymandering of that state’s congressional district – shined a problematic light on Douglas Johnson, founder and president of NDC.

Mr. Johnson testified that his analysis showed a 36 percent difference between the Common Cause maps and the ones adopted by lawmakers.  But those numbers were challenged by the Common Cause attorney who argued that Mr. Johnson failed to include close to a dozen House districts in his analysis.

In a critical exchange, Daniel Jacobson, the Common Cause attorney, asked him, “Those numbers are completely wrong, right?”

“They apparently mismeasured the degree of the change. They don’t change the fact that there is significant change between the maps,” Mr. Johnson replied. “Whether it’s 36 percent or, if I was off by half, it’s still 18 percent. It’s still one in five residents who were moved between the two maps.”

Mr. Johnson later testified, “The 36 percent is the average change in each of the districts. So if there are, as you say, 10 or 12 districts added to that, those numbers are going to swing that relative to shifting the average for all of the districts. It would make it smaller, but at most, you would cut it in half, and you’d still be at one in five people moved from the Hofeller plan and the enacted plan.”

But the judges were not convinced.  Wake County Superior Court Judge Paul Ridgeway said that “his opinions must be the product of reliable methods and principles … and the principles used by Dr. Johnson were not reliable.”

According to a story in The News and Observer from July 25, the three-judge panel agreed to strike portions of Mr. Johnson’s testimony.

The newspaper reported that Mr. Johnson “admitted to several errors under cross-examination.”

When challenged, however, his contention was, “It would have been a change in degrees, but not a change in conclusion.”

Ultimately, however, the judge agreed with Mr. Jacobson’s charges and struck all of the key testimony comparing the maps.

Lost in the reports over problems with the demographer is the staff recommendation that council approve a resolution with the intent to transition from at-large to district-based council elections.

Staff notes: “Should the City Council decide not to pursue a move to District elections, the City would be exposed to litigation and required to pay legal fees not only for the City’s defense but potentially for the plaintiffs’ costs as well. To date, no city has prevailed on the merits in a lawsuit challenging the California Voters Rights Act, so Davis’ costs would likely exceed $1 million.”

Staff maintains that “the threshold required for showing a violation of the CVRA is low.”

They reiterate: “Should the City Council decide not to pursue a transition to district-based elections, the costs to defend the City in court are high, likely reaching into the millions of dollars in legal fees, and the likelihood of the City prevailing is low.”

The State Elections Code spells out the process and timeline by which a City must transition to a district-based system in order not to incur additional legal costs.

If they decide to proceed, the city has 30 days to hold at least two public hearings, 45 days to pass a Resolution of Intent to Transition to District Elections and after that resolution is passed, 90 days to hold a series of five public hearings.

In the schedule mapped out by council, most of the outreaches would be on Tuesday nights during council meeting times, with a couple of outside events.  The first public hearing would be August 27 and the second September 3.

The council would also need to decide how to create the districts, how they will select the mayor, the sequence of the elections and the timing of the elections.

—David M. Greenwald reporting

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