Judges criticized past analysis by redistricting expert hired by Utah lawmakers, records show

SALT LAKE CITY — Judges in Louisiana and Maryland have discounted expert testimony in the past from the redistricting expert hired by Utah lawmakers to help redraw the state’s congressional boundaries, court records show.

Sean Trende is a senior elections analyst at RealClearPolitics who has given expert testimony in dozens of redistricting lawsuits across the country and helped draw Virginia’s maps in 2021 after the state’s independent redistricting commission deadlocked.

He was hired by the co-chairs of Utah’s Republican-controlled Legislative Redistricting Committee after a judge threw out the state’s 2021 congressional maps. Trende provided analysis on the five maps proposed by the committee earlier this week and is also retained by the state as an expert witness going forward, as lawmakers plan to appeal the recent ruling, which kicked off the hurried and unusual process to redraw the congressional boundaries before Nov. 10.

But Trende’s testimony has been questioned by at least two judges in similar legal cases, one who wrote it was “superficial,” and another who said his analysis was “oversimplistic” and “completely useless,” according to court records obtained by KSL.com.

Other courts, however, have relied on Trende’s analysis and found his testimony “reliable” and credible.

‘The appearance of rigor’

Trende was retained by Republican lawmakers from Maryland in 2021 when they challenged the decennial state legislative maps drawn by the Maryland Legislature, which is controlled by Democrats. He presented a chart showing four metrics of compactness for various districts in Maryland, compared to a data set of districts across the county.

According to an appeals court ruling in 2022, Trende’s chart showed the number of districts in the data set that scored below Maryland’s districts across all four metrics, meaning if a comparison district outscored one of Maryland’s on at least one metric, the comparison map “was graded as ‘better’ than the challenged district on the issue of compactness.”

“An analogy might be made to a batter in a baseball game who has three hits out of four at bats against a pitcher — resulting in an incredible .750 batting average against that pitcher,” the judges wrote in a footnote. “Mr. Trende’s methodology would find that the pitcher had prevailed in that game and credit the batter with a .000 batting average.”

The opinion later said the comparison of district compactness “is not instructive on the issues before the court.”

“His number crunching had the appearance of rigor, but contributed little to meeting the petitioner’s burden,” it said. “The special magistrate apparently accorded little weight to it. Given the superficial quality of his analysis and the lack of any opinion by Mr. Trende on whether the adopted plan demonstrated the alleged partisan gerrymandering, we agree that it is entitled to little weight.”

In a related case in Maryland around the same time — involving the state’s congressional maps — Trende also testified as a witness for the plaintiffs, and the judge afforded “great weight to the testimony and evidence presented by and discussed by Sean Trende.”

“Mr. Trende’s presentation was an example of a deliberate, multifaceted and reliable presentation that this fact finder found and determined to be very powerful,” Senior Judge Lynne Battaglia wrote in a March 25, 2022, opinion.

‘Reliable’ and credible

Trende was also called as an expert witness by the state of Louisiana after the Republican-controlled state was sued for allegedly diluting the voting power of Black voters in violation of the Voting Rights Act of 1965. A district court found the maps violated the Voting Rights Act “by ‘packing’ Black voters into a small number of majority-Black districts and ‘cracking’ other Black communities across multiple districts, thereby depriving them of the opportunity to form effective voting blocs.”

Trende again testified to measures of compactness, but the “district court found Dr. Trende’s testimony and analysis ‘fundamentally flawed,’ ‘oversimplistic,’ ‘unhelpful,’ ‘untested,’ and completely useless,” according to an August decision by the U.S. Court of Appeals for the 5th Circuit.

The appeals court found Trende did not balance “all the required factors” for evaluating district boundaries and said the lower court was right to discount his testimony.

In a separate case of alleged racial gerrymandering in Alabama, a U.S. District Court judge acknowledged that Trende’s testimony had been excluded in other cases, but said she agreed with Trende’s explanation that circumstances that led to those findings were not present in the Alabama case and accepted his “limited opinion” in the case, calling his testimony “credible” and “reliable.”

“The court carefully observed Dr. Trende’s demeanor during trial and found him to be candid,” Judge Anna Manasco wrote on Aug. 22. “For instance, when Dr. Trende was confronted with an error in one of his calculations, he acknowledged it and testified that it would change, but not inflate, the resulting margin of error. Dr. Trende took care to limit his testimony to his expertise and not to overstate his conclusions.”

The co-chairs of the Utah redistricting committee declined to comment because of Trende’s involvement in their ongoing case. Trende did not respond to a request for comment.

What it means

The court documents raise questions about Trende’s involvement in drawing the proposed maps for Utah, as legal experts say such rebukes are rare from the bench. The rulings reflect “very poorly on his qualifications and expertise,” according to KSL legal analyst Greg Skordas, who added that he would not rely on Trende as an expert given the concerns expressed by the judges.

“Judges often appreciate expert testimony,” he said. “It’s helpful for them in formulating their own conclusions. And although experts are almost always hired by one of the parties, they are most credible when they are seen as objective and can educate the court. In that regard, it is rare that a judge would openly criticize them.”

Trende is not the only expert involved in Utah’s redistricting process who is facing questions, after Republicans on the committee grilled the analyst hired by the committee Democrats to draft a separate proposal for consideration over earlier social media posts that were critical of the Utah Legislature during a contentious hearing on Wednesday.

Rep. Cal Roberts, R-Draper, pressed Daniel Magleby on his past posts, which “read like a left-wing activist,” including one related to the maps Utah lawmakers drew in 2021, in which Magleby said: “This is straight out of the authoritarian playbook.”

Magleby said he had “no memory of the tweet,” and later added, “No, I don’t think that you’re authoritarians, and I have high hopes that you will do well by the people of Utah.”

Roberts read another tweet from Oct. 1, 2020, which read: “The system is ALREADY rigged in favor of Republicans. Democrats can make things a little better if they add (Washington), D.C. and (Puerto Rico) as states.” He asked if Magleby was trying to “use this map to rig the system in favor of Democrats.”

“That is not my intention with this map,” Magleby replied. “I have no intention of rigging the system.”

Senate Minority Leader Luz Escamilla, D-Salt Lake City, said she wasn’t concerned by the optics of Magleby’s involvement, saying Trende “is considered a Republican hire.”

“Dr. Trende looks to me very suspicious, like probably Dr. Magleby looks for you, but they are experts in their areas,” she said.