Law & Legal Expert Witness Testimony Allowed

Plaintiff sued defendant on the grounds that the Virginia Incumbent Protection Act is not constitutional.  The plaintiff hired a law & legal expert witness to assist in the case.  The defendant filed a motion to exclude, which was denied by the court.

Facts: This case (Fitzgerald et al v. Alcorn et al – United States District Court – Western District of Virginia – January 5th, 2018) involves a challenge to the constitutionality of the Virginia Incumbent Protection Act, which provides that certain election officials have the power to choose their method of nomination  used to select their party’s nominee for their office.  The defendants in this case are the Virginia Department of Elections and members of the Virginia Board of Elections. The plaintiffs are two individuals and associations affiliated with the Virginia Republican Party.   The plaintiffs have hired law & legal expert witness Jeffrey A. Jenkins, PhD to provide testimony in this case.  The defendants have filed a motion to exclude this testimony.

Discussion:  Jenkins is a professor of Public Policy, Political Science and Law at the University of Southern California.  His work focuses on legislative politics and political parties.  According to the plaintiffs, Jenkins will be testifying on the nomination process of Virginia Law, the advantages benefiting incumbent office holders in this process, and other additional advantages of the law.  In coming to his conclusions, Jenkins relied on a theory known as rational choice institutionalism, which hypothesizes that political outcomes are the products of preferences and institutionalism.  Jenkins opines that the mere existence of the Act provides advantages to incumbents and puts challengers at a disadvantage.

The defendants argue that Jenkins’ testimony should be excluded because he does not have familiarity with the Virginia electoral procedures and his definition of a “closed primary” is contradictory to that employed by the federal courts.  First, the defendants argue that Jenkins’ academic experience on national politics is not relevant in this case.  In addition, they state that Jenkins did not review materials specific to Virginia in forming his opinions.  Also, the defendants allege that Jenkins did not sufficiently prepare to form an opinion.  They argue that the materials that he did look at does not provide enough background to reliably form opinions.

The court disagreed, stating that Jenkins has significant experience with national political science and his testimony shows that he has familiarity with the Act and the Plan, which are the sources at the center of the controversy.    Regarding Jenkins’ definition of “closed primary”, the court opined that the defendants do not cite to any authority for the proposition that they seek to demonstrate.  In addition, the court stated that, because this is a bench trial, as opposed to trial by jury, the Daubert standards are not applied as stringently.

Conclusion:  The motion to exclude the expert witness testimony of Jeffrey A. Jenkins is denied.