1 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 2 CENTRAL DIVISION 3 DAN WHITFIELD and GARY FULTS, No. 4:20CV00466 KGB 4 Plaintiffs, 5 v. 6 JOHN THURSTON, In his Wednesday, May 27, 2020 Official Capacity as Little Rock, Arkansas 7 Secretary of State for the 9:16 a.m. State of Arkansas, 8 Defendant. 9 TRANSCRIPT OF HEARING ON MOTION FOR PRELIMINARY INJUNCTION/TRIAL BEFORE THE HONORABLE KRISTINE G. BAKER, 10 UNITED STATES DISTRICT JUDGE 11 APPEARANCES: 12 On Behalf of the Plaintiffs: 13 MR. JAMES C. LINGER, Attorney at Law 14 Law Offices of James C. Linger 1710 South Boston Avenue 15 Tulsa, Oklahoma 74119-4810 16 MR. WILLIAM WHITFIELD HYMAN, Attorney at Law King Law Group 17 300 North Sixth Street Fort Smith, Arkansas 72908 18 19 On Behalf of the Defendant: 20 MR. NICHOLAS JACOB BRONNI, Solicitor General MR. VINCENT MOORE WAGNER, Deputy Solicitor General 21 MR. DYLAN L. JACOBS, Assistant Solicitor General MR. MICHAEL ALLEN MOSLEY, Assistant Attorney General 22 Arkansas Attorney General's Office 323 Center Street, Suite 200 23 Little Rock, Arkansas 72201-2610 24 Proceedings reported by machine stenography and displayed in realtime; transcript prepared utilizing computer-aided 25 transcription. Elaine Hinson, RMR, CRR, CCR United States Court Reporter 2 1 I N D E X 2 Opening Statement 3 By Mr. Linger.......................................11 By Mr. Bronni.......................................21 4 5 PLAINTIFFS' WITNESSES: Direct Cross Redirect Recross 6 Daniel Whitfield 24 82 89 7 Gary Fults 90 118 Sandra Furrer 130 143 150 8 Roderick Talley 153 163 165 Lee Jarrod Evans 165 172 9 Richard Winger 176 188/201 200 10 DEFENDANT'S WITNESS: 11 Meghan Cox 208 219 12 13 Closing Argument By Mr. Linger.....................................228 14 By Mr. Bronni.....................................237 By Mr. Linger (Rebuttal)..........................252 15 16 EXHIBITS RECEIVED: 17 Plaintiffs' 1 through 12..............................23 Plaintiffs' 13.......................................141 18 19 20 21 22 23 24 25 Elaine Hinson, RMR, CRR, CCR United States Court Reporter 3 1 P R O C E E D I N G S 2 [Reporter's Note. This proceeding was conducted by 3 telephone. The audio at times was distorted and/or inaudible.] 4 THE COURT: Good morning. We are on the record in 5 Case No. 4:20CV466. It is Dan Whitfield and Gary Fults versus 6 Arkansas Secretary of State John Thurston. We are here this 7 morning for a hearing and a consolidated trial on the merits. 8 Counsel for plaintiffs, please introduce yourselves for our 9 record. Let me know if we are waiting on anyone this morning. 10 MR. LINGER: Your Honor, this is James Linger, counsel 11 for the plaintiffs. I believe Mr. Whit Hyman is also here as 12 counsel for the plaintiffs. And we have six witnesses. I 13 believe they are on the line. If it would be all right with the 14 Court, I would like to inquire if they are on the line right 15 now. 16 THE COURT: All right. 17 MR. LINGER: The first witness is Dan Whitfield, if he 18 would acknowledge he is present, please. 19 MR. WHITFIELD: Good morning. I am present. My name 20 is Daniel Whitfield. 21 MR. LINGER: And the second witness is Gary Fults. 22 MR. FULTS: Yes. I'm here. 23 MR. LINGER: Third, we have Sandra Furrer. 24 MS. FURRER: I'm here. And it's pronounced Furrer. 25 MR. LINGER: Furrer. Sorry. And then, next, Roderick Elaine Hinson, RMR, CRR, CCR United States Court Reporter 4 1 Talley. 2 MR. TALLEY: Yes. I'm here. 3 MR. LINGER: Lee Evans. 4 MR. EVANS: Yes. I'm here. 5 MR. LINGER: And Richard Winger. Mr. Winger? 6 Well, we'll check on that, Your Honor. We had him as our 7 last witness. 8 THE COURT: All right. Mr. Linger, are we waiting on 9 anyone else? 10 MR. LINGER: No, Your Honor. 11 THE COURT: All right. Counsel for defendant, Mr. 12 Thurston, you may proceed to introduce yourselves, please. And 13 let me know who else is on the line. Also, let me know if we're 14 waiting on anyone. 15 MR. BRONNI: Good morning, Your Honor. This is 16 Nicholas Bronni, solicitor general of Arkansas. On the line 17 with me is Vincent Wagner, Dylan Jacobs and Michael Mosley. 18 Then I understand Meghan Cox, who is one of our witnesses, is 19 also on the line, if she can acknowledge that she's on. 20 MS. COX: Yes. I'm present. 21 MR. LINGER: Pardon me. I apologize for speaking out 22 of turn, but Richard Winger is here. 23 THE COURT: Thank you, Mr. Winger. And thank you, Ms. 24 Cox. 25 Mr. Bronni, are we waiting on anyone else to join the call? Elaine Hinson, RMR, CRR, CCR United States Court Reporter 5 1 MR. BRONNI: We are not, Your Honor. 2 THE COURT: All right. With respect to our witnesses, 3 I know that many of the exhibits, and even certain aspects of 4 the testimony, have been stipulated to by the parties. Does 5 anybody wish to invoke the rule with respect to testimony that 6 the Court is going to receive today? I don't recall if that 7 point was covered in the stipulations and in the materials that 8 counsel provided prior to the hearing. If it was, please remind 9 me if there's an agreement. 10 Mr. Linger. 11 MR. MOSLEY: Your Honor, this is Mike Mosley. Pardon 12 me, Your Honor. 13 THE COURT: You may proceed, Mr. Mosley. 14 MR. MOSLEY: This is Mike Mosley. And I would like to 15 invoke the rule to exclude witnesses Furrer, Evans and Talley. 16 And I think everybody else can stay. 17 THE COURT: All right. Mr. Linger, what's your 18 position with respect to the names that Mr. Mosley has recited? 19 MR. LINGER: Well, they are neither parties or expert 20 witnesses. However, I think it will make it a little bit 21 difficult, because if the rule is invoked as to them -- and this 22 is the first notice that I've had that that was going to be done 23 -- then they are going to have to get out of the conference call 24 and then come back when they are ready to testify. Our intent 25 was to call witnesses in the order that I called them recently Elaine Hinson, RMR, CRR, CCR United States Court Reporter 6 1 and as are listed on our exhibit and witness list, which was 2 Document No. 17 filed in the case. 3 THE COURT: All right. Just procedurally, Mr. Linger, 4 what we've done with other hearings that we've conducted by 5 telephone is, if the witness will drop off the line, then we, 6 Ms. Washington, my courtroom deputy, who is here in court with 7 me, listening in, will reach out to the witness when it's time 8 for them to testify and can contact them by telephone and ask 9 them to call back in to the line. Then, once they have joined 10 the call, we'll proceed with their testimony. That's how we've 11 done it in the past. That's worked efficiently. 12 MR. LINGER: Do you want their numbers right now, or 13 would it be good to give Ms. Washington their telephone numbers 14 so that she can contact them? 15 THE COURT: Mr. Linger, if you have access to an email 16 or if you have an assistant or someone there who can help you, 17 just email Ms. Washington those numbers. 18 MR. LINGER: All right. Well, Mr. Hyman is handling 19 Roderick Talley and Lee Evans, so I would ask him to email those 20 to Ms. Washington. I will have my legal assistant email Sandra 21 Furrer's telephone number to Ms. Washington. 22 THE COURT: All right. And my understanding, Mr. 23 Mosley, is that Ms. Cox is also serving as an expert. Is that 24 right? 25 MR. MOSLEY: Yes, Your Honor. Elaine Hinson, RMR, CRR, CCR United States Court Reporter 7 1 THE COURT: All right. 2 MS. FURRER: I have a question. This is Sandy Furrer. 3 Do I need to hang up now? 4 THE COURT: So, Ms. Furrer, Mr. Talley and Mr. Evans, 5 if you all will hang up from the call, Ms. Washington, my 6 courtroom deputy, will reach you by telephone and ask you to 7 call back in when it's time for your testimony. 8 MS. FURRER: Okay. 9 THE COURT: So just stay loose this morning and stay 10 available. She will reach out to you when we're ready. Thank 11 you. 12 MS. FURRER: Okay. 13 THE COURT: All right. Thank you. 14 All right. Mr. Linger and Mr. Mosley -- I'm not certain, 15 Mr. Mosley, if you are going to handle all of the proceedings 16 today. But I'll direct my questions to both of you. Does 17 either side wish to present an opening statement, or do we want 18 to begin proof and then do a closing statement at the end? I am 19 open to whatever the parties have agreed to. If the parties 20 have not agreed, I will certainly set the schedule after hearing 21 from both sides. 22 MR. MOSLEY: Your Honor, I don't want to step in front 23 of Mr. Linger. But I think -- go ahead, Jim. Go ahead.