SALT LAKE CITY — A critical court hearing is getting under way in the legal battle over redistricting in Utah.
The judge will consider which map to adopt to represent the state's congressional districts. The Utah State Legislature has submitted its map, while the plaintiffs in the lawsuit over redistricting have submitted theirs.
The League of Women Voters of Utah, Mormon Women for Ethical Government and others sued the legislature, alleging it improperly overrode Proposition 4, the citizen ballot initiative that passed in 2018. They also argued that what the legislature passed in a congressional map was illegal gerrymandering to favor Republicans. Judge Dianna Gibson sided with them, declaring Prop. 4 law and ordered a new map. Under a court order (and under protest), the legislature met and adopted a new map, known as "Map C."
The legislature continues its appeals, maintaining it has the sole constitutional authority to conduct redistricting, despite a court-held right for citizens to alter or reform their government. It's led to a lengthy legal battle. Here's a blog of the latest events in court:
4:09 p.m.
Judge Gibson has scheduled hearings for next month on the injunction requests by the plaintiffs, including the challenge to the Utah GOP's initiative and referendum. It's pretty clear she's trying to triage the many motions and counter-motions while still balancing the primary case involving Prop. 4.
4:03 p.m.
"How do you want to proceed?" Judge Gibson says as she sits down again.
Plaintiffs want to keep going, the legislature's lawyers would like to start tomorrow. None of their witnesses are here.
"We'll defer to you and your preferences," Reymann tells the judge.
Everyone says things went faster than expected. There are only three witnesses the legislature intends to call.
Judge Gibson says she'll end for the day. Court will resume tomorrow.
3:49 p.m.
Malcolm Reid is being cross-examined by Tyler Green, an attorney for the Utah State Legislature.
Does he have an opinion on partisan fairness tests or anything like that?
"I have not delved deeply into those kinds of tests," Reid replies.
Is a fair district one that is competitive, up for grabs by either party? Reid says a fair map is one that's drawn fairly. Can a fair map be non-competitive? Reid says southern Utah may be one of those areas. He pushes back on Green, saying that if you follow the Prop. 4 principles, it should be fair.
Green zeroes in on Millcreek being split in Map C. Reid acknowledges there will be boundaries. Are the plaintiff's maps better than the legislature? Reid says either of them is better than Map C. Green zooms into an area split up and says they'd be split up, too.
Reid sarcastically tells Green: "But don't let me see the partisan leanings on these maps, please."
Green is trying to point out other communities will get split, too, just like Millcreek.
Reid is finished. The plaintiffs rest.
3:42 p.m.
After a very brief redirect, Dr. Oskooii is done.
Malcolm Reid, the husband of Victoria Reid and another plaintiff in the case, is the next witness. A retired information technology worker, Reid testifies that he and his wife moved to Utah in 2018. He supported Prop. 4.
"I was happy to vote for it. It gave me some encouragement that Utah would be a state that listens to its citizens," he testifies.
Reid tells the court he likes that Prop. 4 would be "nonpartisan and neutral." He liked that it respected county and city boundaries and communities of interest. He supported the work of the independent redistricting commission.
Asked about his community, Reid says Millcreek is "creating an identity of its own." The 2021 redistricting maps divided Millcreek into four congressional districts.
"In that way I think it really diluted the voice of Millcreek residents," he testifies, adding that talking with neighbors and friends they do not know what district they live in.
"I just think my voice has been diluted by the whole redistricting effort," he tells the judge.
Asked by plaintiff's attorney David Reymann about Map C, Reid testifies "it hurts half as much."
"We're down to two congressional districts rather than four," he says.
Shown Plaintiffs Maps 1 & 2, Reid says they keep his city whole and "that would be my preference to keep the city intact." As a voter, he wants his voice heard consistently at the local and federal level. He says having Millcreek divided in four means they've been "neglected" by representatives in Congress.
Reymann says you still get your ballot, you can still donate money to politicians?
"I remain a U.S. citizen and the First Amendment still applies," Reid claps back, but his voice is still "diluted."
Millcreek being separated from other cities at the "mouth of the canyon," Reid says they identify more with Salt Lake City and Holladay.
3:24 p.m.
Tyler Green, the attorney for the Utah State Legislature, is cross-examining Dr. Oskooii.
Plaintiff's map 1 started as a simulation, he asks, who's simulation? Dr. Oskooii doesn't know but adds that if he has to guess, it's Dr. Chen.
Haven't seen the code behind it?
"Not at all," Dr. Oskooii says.
Turning to Plaintiff's Map 1, Green asks about a road problem in Rich County. Was it a real contiguity issue? Dr. Oskooii says it could be an issue, but it's ultimately for the court to decide.
Green says Dr. Oskooii has described Plaintiff's Map 1 as "traversible." But have you ever been to Utah before today?
"I've not had the pleasure," he said.
Did you see the mountains on the way in?
"Beautiful," Dr. Oskooii replies.
So you've never been to Utah County or Alpine? No, Dr. Oskooii tells him. Green calls up Alpine on a map on a screen and asks him to name cities nearby. Switching to a satellite view, Green points out the mountains near Alpine. Calling up Plaintiff's Map 1, Green zooms in to where Alpine is and points out the only way to get from Alpine to anywhere else in District 3 is to go directly over the mountains.
Green is obviously trying to show the judge that there are problems with the plaintiff's maps. But Dr. Oskooii admits he's never been to Utah and he doesn't know if any roads are paved that go right over the mountain.
Green pivots to Kanab. Those are in District 3 in the Plaintiff's map. Green points out that for a congressional rep to go from Kanab to Blanding? They'd have a long drive. Green plugs it into Google Maps and the route calculates going from Kanab, into Arizona, back up and into San Juan County. It's a four hour drive.
Green then asks Dr. Oskooii if he performed any tests on his maps?
"I have not," he replies.
Moving to Plaintiff's Map 2, Green points out it is a variation on the Utah State Legislature's Map C. But Dr. Oskooii testifies he tried to minimize disruptions, resolving municipal splits by moving the lines through unincorporated areas of the state to achieve equal population.
"Do you agree there is always tradeoffs in redistricting?" Green asks.
"Yes, that's generally the case," Dr. Oskooii replies.
Green presses him on population shifts in his map-making. He's contrasting the legislature's map and the plaintiffs maps. He's going into cities, pointing out which communities wind up in different districts and whether he factored in various "communities of interest" like county council boundaries, public school districts, etc. Dr. Oskooii acknowledged he did not. Green points out Map C keeps them grouped together.
On Plaintiff's Map 2, Riverton and Herriman are separated from Bluffdale, South Jordan and other places.
"That's a trade-off," Dr. Oskooii says, pointing out it's only a 5 minute drive.
2:51 p.m.
Dr. Kassra A.R. Oskooii, a political science professor at the University of Delaware, is now on the witness stand testifying for the plaintiffs. He is considered an expert on redistricting principles.
He is the one who was asked to draw the maps for the plaintiffs that they have submitted to the judge. He insists he did not use any partisan or political data. Dr. Oskooii testifies he believes the maps do meet the criteria of Prop. 4.
Dr. Oskooii looks directly at the judge as he answers questions from the plaintiff's counsel. He is describing where the maps split communities and counties. He describes finding ways to split Utah County only twice, keeping Bluffdale in one district, keeping Millcreek whole in another district and still meeting the population requirements of the initiative.
There is a lot of testimony comparing and contrasting the various maps before the judge.
Why did he choose the municipalities he did?
"I was asked to make the least destructive changes," Dr. Oskooii testifies.
Pleasant Grove was split, but he was unable to resolve that split, he says. However, he did "clean up" how many times it was split. Pleasant Grove is still "not as bad as Millcreek," Dr. Oskooii testifies.
Dr. Oskooii is asked if he looked at the Independent Redistricting Commission's maps. Not until after he drew his own, he says. Dr. Oskooii testifies that he considered the legislature's communities of interest including military installations and Native American tribal lands. On the screen, those are placed over the plaintiff's maps as attorneys attempt to show how they comply with even the legislature's criteria.
Dr. Oskooii defends the results as complying with Prop. 4.
Utah County is split across three districts in Map C proposed by the legislature, whereas the plaintiff's maps only split it in two.
That was surprisingly brief, considering he is the one who made the plaintiff's maps. We will see how cross-examination goes.
2:07 p.m.
On redirect, Dr. Warshaw is asked again about some of the academic publications cited by the legislature's attorneys. He's asked if he has a response to the criticism leveled?
"I don't agree with it. I recognize it's a critique that's been made," Dr. Warshaw says, defending the efficiency gap as a formula that can be used.
There is some re-cross over equations and Dr. Warshaw is asked to do a little math, but the testimony wraps up and he is excused.
Judge Gibson calls a break.
1:53 p.m.
On cross-examination by one of the legislature's attorneys, Dr. Warshaw is asked about his expert report in this case. Specifically, he asked about the "efficiency gap" and states with smaller congressional districts being less informative. Dr. Warshaw acknowledges that is possible.
He is shown more academic articles that appear to be critiquing the "efficiency gap" in redistricting.
The testimony is getting a little dry and the hearing seems to be slowing down (it's just that time of day!). In the audience, people are shifting in their seats, rubbing their eyes and checking their phones.
1:19 p.m.
Dr. Warshaw continues his direct testimony, going into very technical explanations on the partisan bias test.
Asked his opinion if it's best for Utah to assess congressional redistricting, he says it's not the best because Utah is not a competitive state. Turning to the other tests the legislature passed in SB1011, Dr. Warshaw argues that the mean/median test is "gameable" in Utah, even though he has used it in other cases.
"It tends to work best in competitive states," he testifies.
Again, this is highly technical testimony but the plaintiffs are attacking SB1011, the special session bill that rewrote how redistricting is done in Utah. The plaintiffs have asked the judge to block it from being enforced. In a new court filing, the legislature fired back.
"Plaintiffs would enjoin the only measures in place to evaluate election maps, with no time left to enact any others. In effect, they want this Court to make them the Legislature, specifying the standards this Court—and the actual Legislature—should use to assess the proposed maps in the compressed window before the Lieutenant Governor’s deadline," Tyler Green, an attorney representing the legislature, wrote in a response to the plaintiffs' motion for injunction.
Read the filing here:
1:00 p.m.
Dr. Christopher Warshaw, a political scientist from Georgetown University, is now testifying. He is another of the plaintiffs' expert witnesses.
He testifies about the metrics he used to evaluate the maps produced by Utah's redistricting process. He is asked specifically about applying a "partisan bias test" on the Utah State Legislature's congressional map.
"When I looked at the elections in Utah, based on a variety of indicators, Utah's statewide elections are not competitive," he said.
Dr. Warshaw is going over formulas, saying Republican dominance in Utah politics goes back to the 1970s. But in order to use a partisan bias test, state elections have to be competitive.
"It's been many, many years since the average of these elections was even somewhat competitive," he testifies, adding that the best Democrats have done in Utah? At least the early 2000s. At least the 1990s since it's been truly competitive for Democrats.
Dr. Warshaw frowns on the partisan bias test the legislature has pushed, saying it would not work in a state like Utah. As part of his analysis of SB1011 (the bill the legislature passed in the recent special session rewriting redistricting rules) it has a "pro-Republican tilt."
12:44 p.m.
Court is back in session. Victoria Reid, one of the plaintiffs is now on the witness stand. She is involved in the litigation with her husband, Malcolm.
"It's great. I love the national parks, I love the outdoors, I love my community," she testifies about living in Utah.
Victoria Reid testifies she is a registered Republican. She attended her precinct caucuses and is also a member of Mormon Women for Ethical Government (another plaintiff in the litigation).
"I was very excited to vote for Proposition 4. I believe fair maps are important for government. I was disappointed in the legislature," she tells the judge.
Reid says the legislature "carved up my city." She describes herself as a "moderate Republican" and believes the party should be "rule followers." Their actions, she testifies are that of a "rule breaker."
She calls the legislature's map an "improvement" over the prior one. Reid prefers the plaintiffs map, as it keeps her community of Millcreek together but she wants "fair maps for the entire state of Utah."
On cross-examination, Reid is asked if her rights have been infringed? She acknowledges she can still attend rallies, speak out on politics, etc..
"Would you be happy if there's one competitive district that's drawn?" Reid is asked.
"I don't feel like I'm the person to ask that question of," she answers, adding she is in favor of competitive districts across the board.
No further questions.
11:55 a.m.
Dr. Chen is asked again about the academic studies that appeared to be critical of his works.
"That's just absolutely a complete lie," Dr. Chen says, adding there was no way he could take thousands of maps and alter their districts by hand, calling it "preposterous."
Since the Pennsylvania case, Dr. Chen says his work has changed as it happened eight years ago.
Gaber calls up Utah's statute on redistricting and goes through the methodology, asking if his algorithm used what was in there? Yes. Did Drs. Trende and Barber use them? No, Dr. Chen testifies.
"As an example, none of their maps are equally populated," Dr. Chen says.
On the redistricting comments, Gaber asks how would defining a community of interest affect his algorithm? Dr. Chen says respecting communities of interest under Prop. 4 would tend to keep Salt Lake City or another municipality (say Holladay) together.
What if a community of interest crosses lines? How does the algorithm keep it together? Dr. Chen says it would not split more and more counties just because somebody said they have a community of interest that spans multiple counties. Communities of interests is a lower priority than the other criteria of Prop. 4, Dr. Chen testifies.
Geiger is back with a re-cross. He asks about changing his algorithm eight years ago?
"I do different things now than what I was working on eight years ago," Dr. Chen replies, suggesting it is not abnormal.
Geiger asks about publishing papers and making his algorithm available for download online? Dr. Chen says he did make an algorithm available in 2021.
Dr. Chen is done testifying. Judge Gibson calls a break.
11:46 a.m.
Dr. Chen is being grilled about the data he plugged in to generate his maps and how he knows they are matching Prop. 4's tenets. Dr. Chen argues that "communities of interest" is a "tie-breaker" when put up against the other criteria for redistricting.
Geiger shows Dr. Chen some comments made during redistricting which describes the Avenues, east-central Salt Lake City as "liberal," and describing other places that "tend to lean Democratic." This continues for some time as Dr. Chen is asked to read people's comments describing their neighborhoods as "progressive" and "liberal" and "Democratic" but being in districts that include "rural" and "conservative" representation.
Geiger ends his cross-examination. Gaber is back for redirect.
11:30 a.m.
Dr. Chen is still being cross-examined. Geiger continues to show academic papers that appear to be critical of Dr. Chen's work. It is clear he is trying to cast doubt on the witness and his methods for the judge.
Geiger hands Dr. Chen a pair of maps, giving Judge Gibson a copy.
"I can see they're similar," Dr. Chen says, but adds he cannot point out the specific differences without a more thorough analysis.
Geiger shows more maps.
"Same answer," Dr. Chen says.
More maps are shown.
"I can see some differences, but generally the same answer as before."
This Q & A continues through a series of maps.
Geiger asks Dr. Chen about a report he generated that claims only three counties must be split. But to achieve population equality, it could keep 27 of 29 counties whole, Geiger says, but Dr. Chen chose not to. Dr. Chen acknowledges he did not do that.
Salt Lake County must be split in any congressional plan, Dr. Chen acknowledges in cross-examination, because of its population size. There is a Democrat-favoring district in 99% of his maps, Geiger suggests. Dr. Chen says he does not know if that is always the case.
"Out of your 10,000 plans, your algorithm created about 9,100 plans... by taking Democrats in northern Salt Lake County and joining them with voters in another county," Geiger says.
"I'm going to have to take your word for it," Dr. Chen replies.
Dr. Chen adds that the Great Salt Lake remains a natural barrier and he is not allowing districts to "jump across the water." He also notes Draper and Bluffdale, which span Salt Lake and Utah counties. That makes certain configurations "more likely."
But is the Great Salt Lake a natural barrier between Salt Lake and Tooele counties?
"No," Dr. Chen testifies.
Geiger appears to be laying out an argument that the plaintiff's own maps are gerrymandering, too.
11:12 a.m.
Dr. Chen is still on the witness stand, being cross-examined by Soren Geiger, one of the attorneys for the legislature. He is asked about his algorithm to generate maps for the plaintiffs.
Again, this is very, very technical testimony. Dr. Chen explains a methodology known as "Monte Carlo" and the different ways it's applied. There is a lot of testimony about Monte Carlo, Sequential Monte Carlo and other simulations.
Geiger goes over a previous case Dr. Chen has testified in, a redistricting case in Pennsylvania where he described his simulation modeling. Geiger talks about open source simulation models and who has used them? Drs. Trende and Barber (who are the legislature's experts).
Is their simulation model unreliable? With respect to Prop. 4? Yes, Dr. Chen testifies.
Geiger suggests it cannot be programmed to comply with Prop. 4. Dr. Chen says he has no opinion on that.
Is your algorithm publicly available? Dr. Chen says it is not. Only you can use this algorithm? Dr. Chen says he has no opinion on that, but to use it they must have a copy of his code.
"If the Utah legislature wanted to use your algorithm, how would they go about doing that?" Geiger asks.
"I have no opinion on that," Dr. Chen replies.
"Would they need to hire you?"
"I have no opinion on that."
Geiger shows Dr. Chen an academic report from 2021 and asks him to read from it describing "petri dish methods," referring to his methodology.
"Yeah, they're talking about me," Dr. Chen says.
The academic paper sounds critical of Dr. Chen's methodology. Geiger asks why Dr. Chen only generated 10,000 plans and not more? Dr. Chen argues that is "more than enough to draw broad, statistical conclusions."
10:46 a.m.
On the witness stand, Dr. Chen is addressing criticism of his own maps generated for the plaintiffs, and accusations he has engaged in gerrymandering. For example, he creates a "northern Salt Lake County" split.
"I produced 10,000 maps and every one is different," Dr. Chen testifies.
He calls the another expert's map "exact copies of the previous map." Dr. Chen notes the Great Salt Lake is a barrier and he doesn't want a congressional district to cross the massive water body. But he also pointed to Bluffdale and Draper, which cross the Salt Lake/Utah County line.
But Dr. Chen says when you combine Prop. 4 with natural political geography
For the judge, this will come down to which expert she chooses to believe when she issues her final ruling: the plaintiffs or the defendants? We do expect to hear from the defendant's experts either later today or tomorrow.
The judge has called a recess and the legislature's attorneys will get a chance to cross-examine Dr. Chen.
10:22 a.m.
Dr. Chen continues to trash the methodology used by the Utah State Legislature's experts in creating maps, arguing that it still favors Republicans in redistricting.
"These maps are clearly not adhering to the Prop. 4 neutral criteria," Dr. Chen argues.
Dr. Chen also argues that some of the maps prepared for the legislature split Salt Lake County more than is necessary. He testifies he believes Salt Lake County is being treated differently than other counties, getting split into three or four districts in every simulation while it does not happen for other counties in Utah.
10:00 a.m.
As Dr. Chen continues his testimony in evaluating Dr. Trende's maps, Judge Gibson is taking notes and looking directly at the witness.
The highly technical testimony is occasionally interrupted by people who come in to court for Judge Gibson's regularly scheduled "recovery court" (a judiciary program for defendants in recovery), which has been moved to another courtroom where another judge is handling those cases today.
Dr. Chen continues to call the partisan bias test "not appropriate" for a state like Utah and points out methodology used to generate maps for the legislature are not compliant with the tenets of Prop. 4. Dr. Chen argues that his own maps were drawn with strict adherence to Prop. 4.
Again, this is part of the plaintiff's case that Judge Gibson ought to reject the legislature's map in favor of the plaintiffs.
9:42 a.m.
Dr. Chen has been asked to review Dr. Sean Trende's maps, which were created for the Utah State Legislature's Redistricting Committee.
Dr. Chen reviewed the software and the code that was used and found "it's not appropriate... because it's not built with the Proposition 4 neutral redistricting criteria."
Gaber continues with questions about population deviations, partisan characteristics, etc.
9:32 a.m.
Dr. Chen continues his testimony, making a case for the plaintiffs that the legislature's proposed "Map C" does not comply with Prop. 4.
"It is a partisan outlier," he testifies.
Dr. Chen is going over very technical simulations to make a case of which maps pass the tests of Prop. 4. He testifies that the plaintiff's maps pass the tests, while the legislature's Map C does not.
On the topic of a "partisan bias test," Dr. Chen says it requires them to consider "a hypothetical world in which Utah is a tied 50/50 state." Asked if he has an opinion on whether it is appropriate, Dr. Chen says "it's inappropriate in Utah."
The legislature recently included it in their special session bill that reworked the criteria for redistricting.
9:22 a.m.
Dr. Jowie Chen of the University of Michigan, who studies redistricting and gerrymandering, is the first witness for the plaintiffs. He has been retained in cases of both Republican and Democratic gerrymandering. Judge Gibson agrees to designate him as an expert witness.
Mark Gaber, an attorney for the plaintiffs, brings up the criteria of Prop. 4. Most importantly, equally populated districts. Then there's minimizing the municipalities and counties. He generated maps built with those criteria in mind. Dr. Chen says he also considered geographic boundaries through an algorithm, to avoid splitting 590 "communities of interest."
Dr. Chen says he also considered the legislature's communities of interest like military bases, Native American tribal lands, etc.
"I generally found the similarly plans I produced were pretty comparable to all the proposed remedial plans," Dr. Chen testifies.
Did he consider partisan election results, voter info or racial data?
"No," Dr. Chen testifies.
Dr. Chen is now bringing up his computer program to talk about the partisanship of each of the four districts. Typically, the normal range for "least Republican district" is about 42-46%. He also ran the remedial plans and the legislature's Map C District 3 has a "least Republican district" of 56% GOP vote share.
"It is more heavily Republican..." he says.
Dr. Chen appears to be making a case for the judge to adopt the plaintiff's maps instead of the legislature.
8:56 a.m.
Court is under way and Judge Dianna Gibson is on the bench. They are discussing scheduling for other motions. Judge Gibson says she'd like to consider those at the end of the day or another day.
8:30 a.m.
Attorneys for the legislature have begun to arrive in court, bringing boxes of documents. Asked how long today is expected to go in court, FOX 13 News was told: "Long."
8:18 a.m.
Before court gets started, here's what the judge must consider: whether or not the map approved by the Utah State Legislature complies with the tenets of Prop. 4. But there are side issues that will also factor in. During the special session earlier this month, the Utah State Legislature passed a bill that re-wrote what can be considered in terms of redistricting. The plaintiffs have asked Judge Gibson to throw that out.
(Separately, the plaintiffs have also asked a judge to block the Utah Republican Party's initiative to undo Prop. 4.)
Here's the map submitted to the judge by the legislature:
Here are the plaintiffs maps submitted for the judge to consider:
