A federal judge on Tuesday outlined steps to streamline a lawsuit over Arkansas' new legislative districts so state officials will have time to redraw the boundaries if the map is tossed by the court before next month's filing period.
A hearing, scheduled to start Jan. 27, on the new Arkansas House of Representatives district map could send the Arkansas Board of Apportionment back to the drawing board just days before the filing period opens for House candidates on Feb. 22.
For that reason, U.S. District Judge Lee Rudofsky, the presiding judge over the case of the Arkansas State Conference NAACP et al vs. Arkansas Board of Apportionment et al, said during Tuesday's status conference that he will consider the rare step of opening his courtroom for a Saturday session, if necessary.
Last month, ACLU of Arkansas lawyers filed a lawsuit on behalf of the Arkansas NAACP and Arkansas Public Policy Panel against the Board of Apportionment -- a three-member board consisting of Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston -- which is responsible for redrawing the state's legislative districts every 10 years after the U.S. census.
The lawsuit claims that the Republican board's redistricting plan, approved in November, thins the influence of racial minority voters and violates the Voting Rights Act. Arkansas is one of several states to have their redistricting plans challenged in federal court.
The legal challenges asks the court to block the state from implementing the new map, beginning with the May 24 primary election.
Rudofsky noted that the upcoming preliminary injunction hearing -- which will start on a Thursday -- will likely be heavy on factual testimony and could take several days. Rudofsky said he will likely require anyone providing expert testimony to be present in the courtroom, despite an administrative order calling for remote hearings when possible to mitigate the spread of covid-19.
Rudofsky said he felt it would be beneficial for both the defense and plaintiffs' expert witnesses to testify in person.
"I think this is going to be a very factual intensive case and I am certainly going to need both sides' experts to explain their reports and declarations and statements, and the numbers and calculations they have come up with and just as well to be subject to cross examination," he said. "I am going to expect them to be here for this preliminary injunction hearing."
Rudofsky also said he has no estimate for how long the preliminary injunction hearing might take, but he put all attorneys on notice that, should the matter run more than two days, he will likely require a Saturday court day to be able to rule in sufficient time for the state to react if the current map is thrown out.
"Given the need for a quick resolution on the [preliminary injunction] question, if we are not done by Friday evening I intend for us to continue on Saturday," the judge said. "If we are not done on Saturday we will take a rest on Sunday and we'll be back at it on Monday morning."
Bryan Sells of Atlanta, an attorney for the plaintiffs, said he would address "the elephant in the room" regarding a recent administrative order from Chief U.S. District Judge D. Price Marshall Jr. curtailing many in-person proceedings after covid-19 infections began rising recently. In his order, Marshall said that exceptions would be decided on a case-by-case basis by the presiding judge.
"Do you anticipate having some or all court proceedings in person?" Sells asked. "Or is this going to be a Zoom hearing?"
"Everything is going to be in person," Rudofsky replied. "This is an exceptionally important case, I think everyone would agree. It's also highly factually intensive and it is important, especially with experts, that we can all understand what everybody is talking about."
Rudofsky said, pointing out he was speaking only for himself, that he is triple-vaccinated and will wear a mask at all times unless he is speaking.
"I would assume everybody is going to be cautious in that regard," he said.
Sells said two legal team members could not travel because of medical reasons and he was unsure whether they would have witnesses to examine or would be acting in a support role. Rudofsky said his preference during the hearing would be for witnesses and attorneys to be present in the courtroom for all testimony because of the technical nature of much of the testimony.
"You all have on this call ... seven attorneys ... it strikes me that if two members of your team can't travel there are plenty of people for you to have if someone is to question a witness," Rudofsky said. "I'm OK if someone is questioning one of the lay witnesses ... but if we are to get into the weeds -- and I imagine we are with these expert witnesses -- I really would rather people are here."
To expedite some of the technical testimony, Sells suggested allowing experts to testify briefly on the stand and then to allow their reports to be entered as testimony, reducing the amount of time each individual would be on the witness stand. Rudofsky, pointing out that much of the testimony would likely involve mathematical formulae, said it would be advantageous to have those experts in the courtroom offering direct testimony.
"I don't think the reports are entirely clear all on their own," he said. "I think it probably behooves you to want to present them orally, in person, where you can have good visualized maps and everything else."
But, Rudofsky said if the plaintiffs and defendants wished to jointly offer suggestions on how to streamline the hearing he would consider that.