Election or referendum in United States. Election expert witness holds envelope in hand above ballot. USA flags in background.The Virginia Department of Elections brought a motion to exclude the testimony of a proposed election expert witness for the plaintiffs—three individuals and two voluntary associations affiliated with the Republican Party of Virginia. The lawsuit challenged the constitutionality of the Incumbent Protection Act, which provides certain elected officials with the power to choose the method of nomination used to select their political party’s nominee for office.

The Expert

The expert was a Professor of Public Policy, Political Science, and Law at the University of Southern California. Prior to joining USC, he taught at the University of Virginia for 10 years. His work focused on legislative politics and political parties and included more than 40 articles in peer-reviewed journals. The expert disclosure indicated that he would testify about the nomination process under state law and the Plan of Organization of the Virginia Republican Party, the structural advantages enjoyed by incumbent office holders, and the additional advantages conferred to incumbent officeholders.

In forming his opinions related to this case, the expert relied heavily on rational choice institutionalism—a theory that posits that political outcomes are the product of preferences and institutions. Pursuant to this theory, the expert opined 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.” He stated that “the mere existence of the Act … disadvantages challengers and benefits incumbents.”

Chief U.S. District Judge Michael F. Urbanski wrote in his opinion that in 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,” citing Fourth Circuit precedent.

Defendants argued that the expert should be excluded because his testimony was irrelevant and wouldn’t be helpful to the trier of fact. They argued that he lacked the requisite familiarity with the state electoral procedures at issue and that his definition of a “closed primary” contradicted the definition employed by federal courts in controlling cases.

In support of their first argument, Defendants argued that the expert’s academic background on national politics was inapplicable to this case, and he didn’t review sufficient Virginia-specific materials in forming his opinions. Defendants argued that the expert attempted “to parlay his research and familiarity as an expert on national politics into an expert opinion on Virginia election procedures and state party dynamics.”

Plaintiffs responded that the election expert’s expertise in rational choice institutionalism allows him 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.”

Defendants also argued that the expert didn’t sufficiently prepare to form his opinions on the subject matter of this case, which further revealed his lack of familiarity with the state’s electoral system. In preparing, the expert reviewed state election law (including the Act), forms promulgated by the Department of Elections, and other Party documents related to the selection of nomination methods. According to Defendants, those materials didn’t provide enough background on which the expert could have reliably formed his opinions. They contended that the expert should’ve reviewed other specific materials.

Rule 702

The judge reviewed the expert’s proposed testimony, his qualifications, and preparation. He concluded the elections expert was qualified under Rule 702. As Defendants recognized, the expert had “significant experience with national political science.” His proposed testimony applied general principles of rational choice institutionalism to the electoral procedures at issue. His testimony showed his familiarity with the Act and the Plan, he said, along with the sources at the center of the controversy. Although the expert didn’t consider every bit of evidence that Defendants considered 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,” Judge Urbanski wrote, quoting an earlier Circuit decision. Consequently, the judge found that the expert possessed the requisite background as a political scientist and adequately reviewed case-specific materials to offer his proposed testimony on the election issues in the case.

Defendant also argued that the expert used a definition of a “closed primary” that was more restrictive than the definition relied on in Supreme Court cases, and therefore, this portion of his testimony wasn’t relevant. Because the expert’s view of what constitutes a closed primary was more restrictive than the descriptions used by federal courts, Defendants argued that such a disagreement requires the court to exclude his testimony as irrelevant. However, Judge Urbanski disagreed.

Defendants cited no authority for the proposition they sought to establish—that expert testimony is irrelevant if the witness disagrees with federal courts’ definition of a term that describes an electoral procedure. But even assuming the definition of a “closed primary” amounts to a legal conclusion, the judge held that the experts’ testimony would be admissible because it would help the trier of fact in resolving this case. Any disagreement over the definition of terms went to the weight of his testimony, not its admissibility. The expert’ testimony about closed primaries wasn’t to be excluded.

Finally, the conclusion to admit the expert’s testimony was further bolstered by the fact that this case demanded a bench trial. The Daubert standards apply less stringently when the proposed expert testimony won’t be considered by a jury, the judge explained. While the lower Daubert standard wasn’t determinative here, Judge Urbanski said that it strengthened his conclusion that the testimony was admissible under Rule 702.