LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
Nos. 2021-1193, 2021-1198, and 2021-1210
Supreme Court of Ohio
January 12, 2022
2022-Ohio-65
STEWART, J.
Submitted December 8, 2021
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-65
LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
BENNETT ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
OHIO ORGANIZING COLLABORATIVE ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-65.]
Redistricting—Original actions under
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted December 8, 2021—Decided January 12, 2022.)
ORIGINAL ACTIONS filed pursuant to
{¶ 1} Respondent Ohio Redistricting Commission adopted a General Assembly–district plan in September 2021 to be effective for the next four years. The complaints in these three cases allege that the plan is invalid because the commission did not comply with
{¶ 2} We hold that the plan is invalid because the commission did not attempt to draw a plan that meets the proportionality standard in
I. BACKGROUND
A. Overview of Article XI of the Ohio Constitution
{¶ 3} In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, we rejected a challenge to the 2011 apportionment of General
{¶ 4} In November 2015, Ohio voters overwhelmingly approved an amendment to the Ohio Constitution that repealed former
{¶ 5}
{¶ 6} Of particular relevance to this litigation,
The Ohio redistricting commission shall attempt to draw a general assembly district plan that meets all of the following standards:
(A) No general assembly district plan shall be drawn primarily to favor or disfavor a political party.
(B) The statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.
(C) General assembly districts shall be compact.
Nothing in this section permits the commission to violate the district standards described in Section 2, 3, 4, 5, or 7 of this article.
{¶ 7} The commission must adopt a final plan under
{¶ 8} Under the impasse procedure, the commission must introduce a district plan proposed by a simple majority vote of
what the commission determined to be the statewide preferences of the voters of Ohio and the manner in which the statewide proportion of districts in the plan whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party corresponds closely to those preferences, as described in division (B) of Section 6 of this article.
{¶ 9} Under
B. Factual background and procedural history
1. The commission, the map-drawing process, and the September 1 deadline
{¶ 10} On August 6, 2021, the governor convened the first meeting of the Ohio Redistricting Commission. See
{¶ 11} Between August 23 and August 27, the commission held multiple hearings during which members of the public gave input about the redistricting process.
{¶ 12} The commission held its second meeting on August 31—one day before the deadline to adopt a final district plan. See
{¶ 13} House Speaker Cupp explained that the commission itself would not be drafting a plan, that anyone may present a plan for consideration, and that he did not know when other maps would be presented
2. The commission adopts a proposed plan on September 9
{¶ 14} On September 8, the commission announced that it would meet at 10:00 a.m. and 2:00 p.m. the following day.
{¶ 15} At the 10:00 a.m. meeting, Senate President Huffman offered a proposed plan and introduced Ray DiRossi and Blake Springhetti, who worked for the Senate and House Republican Caucuses, respectively, to talk about the proposal. Senator Sykes asked DiRossi how the plan satisfied the requirements of
{¶ 16} At the 2:00 p.m. meeting, Senate President Huffman moved the commission to select the plan introduced by the Republican caucuses as the commission‘s proposed plan. Senator Sykes and House Minority Leader Sykes expressed concerns, including that the map drawers had not considered the proportionality provision in
3. The commission adopts a four-year plan on September 16
{¶ 17} On September 12, 13, and 14, the commission held lengthy public hearings regarding its proposed plan. During the September 13 hearing, Senator Sykes and House Minority Leader Sykes offered an amendment that they believed would move the plan closer to the proportionality standard articulated in
{¶ 18} On the morning of September 15, the commission commenced its final meeting. Senate President Huffman immediately moved for a recess until 3:00 p.m. so that the members could continue consulting with each other. The commission, however, did not reconvene until approximately 11:15 p.m.
{¶ 19} Upon reconvening, Senate President Huffman introduced an amendment to the commission‘s proposed plan. He stated that the changes were based on conversations between commission members and feedback from the public hearings. He also noted that his amendment would move the commission‘s proposed plan closer to the amended plan offered by the Sykeses on September 13. Senate President Huffman opined that the commission‘s proposed plan, with his amendment, was the only submitted plan that met
{¶ 20} The commission voted five to two, along party lines, to adopt the amendment. Senate President Huffman then moved the
{¶ 21} Secretary LaRose expressed disappointment in the commission‘s failure to reach a ten-year plan. He stated:
I‘m casting my yes vote with great unease. I fear, I fear we‘re going to be back in this room very soon. This map has many shortcomings, but they pale in comparison to the shortcomings of this process. It didn‘t have to be this way. It didn‘t have to be this way. Some of us worked in good faith, in a bipartisan way, to try to get a compromise. There are members of this committee who I do not believe worked in good faith to try to reach that compromise, but here we are.
{¶ 22} Governor DeWine similarly stated that he was disappointed and “very, very sorry” about where the commission ended up. He said:
I will vote to send this matter forward. But it will not be the end of it. We know that this matter will be in court. I‘m not judging the bill one way or another. That‘s up for, up to a court to do. What I do, what I am sure in my heart is that this committee could have come up with a bill that was much more clearly, clearly constitutional. I‘m sorry we did not do that.
{¶ 23} Auditor Faber also expressed disappointment about the process. He noted that “the reality is, compared to some of the other maps we‘ve had a choice to go with, this map isn‘t that bad. It‘s not that good either.” He intended to “vote yes with some apprehension.”
{¶ 24} Sometime after midnight on September 16, the commission voted five to two, along party lines, to adopt the amendment as its final General Assembly–district plan. President Huffman estimated that under the plan, 62 seats in the Ohio House of Representatives would lean in favor of Republican candidates and 37 seats would lean in favor of Democratic candidates. In the Ohio Senate, they estimated that 23 seats would lean Republican and 10 seats would lean Democratic.
4. The commission adopts a statement required under Article XI, Section 8(C)(2)
{¶ 25} After the vote, Senate President Huffman moved for the adoption of a statement, required under
the Commission determined that Republican candidates won thirteen out of sixteen of those elections resulting in a statewide proportion of voters favoring statewide Republican candidates of 81% and a statewide proportion of voters favoring statewide Democratic candidates of 19%. When considering the number of votes cast in each of those elections for Republican and Democratic candidates, the statewide proportion of voters favoring statewide Republican candidates is 54% and the statewide proportion of voters favoring statewide Democratic candidates
is 46%. Thus, the statewide proportion of voters favoring statewide Republican candidates is between 54% and 81% and the statewide proportion of voters favoring statewide Democratic candidates is between 19% and 46%. * * * [T]he Commission adopted the final general assembly district plan, which contains 85 districts (64.4%) favoring Republican candidates and 47 districts (35.6%) favoring Democratic candidates out of a total of 132 districts. Accordingly, the statewide proportion of districts whose voters favor each political party corresponds closely to the statewide preferences of the voters of Ohio.
The statement further noted that the final plan complied with all the “mandatory requirements” in
{¶ 26} House Minority Leader Sykes submitted a statement on behalf of herself and Senator Sykes. Among other things, their statement opined that the commission‘s final plan failed to comply with
{¶ 27} The commission then accepted the majority‘s
5. Petitioners file three actions in this court2
{¶ 28} Within 12 days of the commission‘s having adopted its final plan, three separate lawsuits were filed in this court against the commission and its members. First, the League of Women Voters of Ohio, the A. Philip Randolph Institute of Ohio, and six individual voters3 filed a complaint alleging that the plan violates
Council on American-Islamic Relations, the Ohio Environmental Council, and six individual voters5 filed a complaint, also alleging that the commission‘s plan violates
{¶ 29} Pursuant to a court-ordered schedule, the parties conducted discovery and submitted evidence and merit briefing. See 164 Ohio St.3d 1450, 2021-Ohio-3424, 173 N.E.3d 1248; 164 Ohio St.3d 1457, 2021-Ohio-3607, 174 N.E.3d 805. This court
C. Evidence
{¶ 30} As evidence, the parties filed ten depositions, nine expert reports, multiple fact affidavits, and a voluminous number of additional documents. This evidence elucidates the activity that took place both before and in between the commission meetings.
1. The commission‘s role in drawing a plan
{¶ 31} The commission had no employees and did not itself engage in any map drawing. Instead, each pair of legislative caucuses was allocated $150,000 for redistricting purposes. Later, the Democratic caucuses requested and received an additional $200,000. No funds were allocated to the governor, the secretary of state, or the auditor.
{¶ 32} The expectation—at least for the majority of the commission members—was that the legislative caucuses would draft and propose maps and that the commission members would thereafter negotiate and adopt a final plan. For example, Governor DeWine believed that the best way to adopt a ten-year plan was for the Democratic and Republican members of the commission to each come forward with their own maps “and then see where everybody was and then [he would] be a person that could try and pull this together.” Senator Sykes and House Minority Leader Sykes, however, believed that the commission itself, not the political caucuses, should draw the maps. Secretary LaRose and Auditor Faber expected the caucuses to draw the initial maps, but they also assumed that they would have access to map-drawing software. Secretary LaRose also expected that he would have access to the map drawers.
2. Delays in receiving census data
{¶ 33} Although the United States Census Bureau was required to release Ohio‘s population data by April 1, 2021, it did not do so until August 12. The delay required the commission to adopt a plan under a significantly shortened timeframe. In June 2021, House Minority Leader Sykes and Senate Minority Leader Kenny Yuko asked Governor DeWine to convene the commission—despite the census delays—in order to address preliminary issues such as staffing and the adoption of procedural rules. The governor did not do so, because he did not see a reason to convene the commission long before the receipt of the census data.
3. The map drawers: DiRossi and Springhetti
{¶ 34} Senate President Huffman and House Speaker Cupp oversaw the process of drawing the district plan that the commission ultimately adopted. Senate President Huffman assigned DiRossi, the finance director for the Ohio Senate, and House Speaker Cupp assigned Springhetti, the finance director for the Ohio House of Representatives, as the map drawers. Springhetti had no prior map-drawing experience, but DiRossi was actively involved in drawing the maps for the 2001 and 2011 apportionment processes. Senate President Huffman did not think that hiring outside consultants was necessary, because according to him, DiRossi “might be the most qualified person in the United States.”
4. Instructions to the map drawers
{¶ 36} Senate President Huffman and House Speaker Cupp instructed DiRossi and Springhetti to comply with certain provisions of the Constitution, but they did not instruct the map drawers to comply with
{¶ 37} Senate President Huffman testified during his deposition that because
{¶ 38} According to Springhetti, House Speaker Cupp identified the mandatory sections of
5. Access to the map drawers
{¶ 39} Throughout the process, DiRossi and Springhetti reported their progress to Senate President Huffman and House Speaker Cupp, who occasionally visited the map drawers’ office to view information on their computer screens. Other commission members had no direct access to DiRossi and Springhetti and had no role in drafting or creating the maps adopted by the commission. This frustrated some of the commission members, especially Secretary LaRose, who testified that he repeatedly asked to collaborate with, and have access to, the Republican-designated map drawers but was excluded from the process.
6. Consideration of partisan data
{¶ 40} In their depositions, DiRossi and Springhetti explained that when using Maptitude to draw district boundaries, a display window appeared on the computer screen showing information about the proposed district, including the partisan leaning of the district. When they changed the district‘s lines, that information also would change.
{¶ 41} DiRossi claims that he had not yet completed a partisan analysis of the Republicans’ proposed plan before it was introduced at the commission‘s September 9 meeting. Therefore, when Senator Sykes inquired about the plan‘s compliance with
{¶ 42} Senate President Huffman testified that when the commission met on September 9, he was unaware of the proportion of districts that favored each political party and had not conducted his own analysis regarding whether the plan complied with
{¶ 43} House Speaker Cupp and Springhetti similarly testified that before the September 9 plan was introduced, they had some conversations about the political leanings of certain House districts, but Springhetti had not yet analyzed—and they had not discussed—the overall partisan makeup of the plan. After September 9, Springhetti determined the number of seats favoring each political party. House Speaker Cupp testified that after receiving the expected partisan breakdown, he was surprised by the number of Republican-leaning House districts and was concerned that it would be unacceptable to the Democratic commission members. Out of 99 House districts, 67 leaned Republican.6
7. The Democratic caucuses also draw plans
{¶ 44} The Senate Democratic Caucus contracted with Project Govern—owned by Christopher Glassburn—to provide redistricting services. The House Democratic Caucus contracted with HaystaqDNA. According to Glassburn, very few of HaystaqDNA‘s suggestions were incorporated in the final maps proposed by the Democratic caucuses. The Democratic caucuses’ maps were proposed to the other commission members on August 31, September 1, September 13, and
September 15. After the Democratic commission members proposed their initial map, Secretary LaRose and Auditor Faber met with Glassburn and Democratic staffers. Senator Yuko and Senator Sykes asked Glassburn to integrate as many of Secretary LaRose‘s and Auditor Faber‘s requested changes as possible.
8. The commission members’ final negotiations
{¶ 45} Although accounts vary about the sincerity of the negotiations, most commission members testified that between September 9 and 15, they met with other members of the commission with the goal of compromising to adopt a ten-year bipartisan map. The negotiations centered mostly around the acceptable number of Democratic- and Republican-leaning seats in the House of Representatives.
{¶ 46} All parties agreed that in statewide partisan elections over the past decade, Republican candidates had won 54 percent of the vote share and Democratic candidates had won 46 percent of the vote share. The Democrats’ August 31 proposed plan almost exactly mirrored those percentages, with 44 out of 99 House seats leaning Democratic and 55 out of 99 House seats leaning Republican. By contrast, the Republicans’ proposed plan—which the
{¶ 47} At some point on September 14 or 15, House Speaker Cupp and Senate President Huffman circulated a proposed amendment reducing the number of Republican-leaning House seats from 67 to 62 and increasing the number of
Democratic-leaning House seats from 32 to 37. According to House Speaker Cupp, they were prepared to go even further, but the Sykeses stopped negotiating. Senate President Huffman testified that they waited all day on September 15 for a counteroffer, but Senator Sykes and House Minority Leader Sykes refused to participate—even though Huffman‘s amendment had moved closer to the Democrats’ proposal.
{¶ 48} Secretary LaRose, Auditor Faber, and Governor DeWine testified that in those final days, they attempted to mediate between the Republican and Democratic legislative camps but eventually concluded that neither side would budge from their positions. Secretary LaRose believed that the four legislative leaders were the least open to compromise. Auditor Faber believed that some commission members were posturing for litigation. He also testified that House Minority Leader Sykes had essentially shut down the negotiations by the night of September 14.
{¶ 49} For their part, both Senator Sykes and House Minority Leader Sykes believed that they had already compromised by accepting less than the Democratic-leaning proportion of the statewide voter share and that to agree to even fewer seats might be contrary to
{¶ 50} Senator Sykes was particularly frustrated with Secretary LaRose. According to the senator, the secretary admitted that Senate President Huffman‘s plan was unfair but said that he would not vote against his Republican colleagues. When the Sykeses realized that the statewide officeholders were unwilling to vote contrary to the Republican legislative leaders, they saw no reason to continue negotiating.
9. The Article XI, Section 8(C)(2) statement
{¶ 51} According to Senate President Huffman, when it became clear that the commission likely would be passing a four-year
{¶ 52} Governor DeWine had no role in drafting the
D. Legislative history of Issue 1
{¶ 53} In addition to evidence relating to the commission‘s adoption of the plan, the parties also included evidence relating to the passage of Issue 1, the 2015 ballot issue approving the amendment of
{¶ 54} During House debates, representatives stated that some portions of the new constitutional language were mandatory and some were “aspirational.” Then-Representative Huffman stated:
And so, again, the purpose of this is to clarify the rules.
There have been a variety of rules in the Constitution that were unclear. * * *
So now we have a clear order of things that are mandatory. We have other things that are aspirational in nature. And it‘s really the clarity in this, I think that will make sure that the majority must follow these rules or, of course, suffer a variety of penalties.
Democratic Representative Kathleen Clyde, while urging other representatives to vote in favor of the resolution, noted the concessions that the Democratic side of the General Assembly had made. She said: “Another concession by our side is that the fairness criteria are not required but are aspirational.”
{¶ 55} After the legislature placed the issue on the ballot, Senate President Huffman and Senator Sykes formed Fair Districts for Ohio, an organization supporting Issue 1. The organization issued literature, including a flyer stating that the amendment
Fairness
- Protects against gerrymandering by prohibiting any district from primarily favoring one political party.
- Requires districts to closely follow the statewide preferences of the voters.
Accountable
- Creates a process for the Ohio Supreme court to order the commission to redraw the map if the plan favors one political party.
(Boldface and italics sic.) Although his name was on the flyer, Senate President Huffman testified that he had no recollection of being involved with the organization‘s literature and that some portions were factually inaccurate. Senator Sykes did not recall Senate President Huffman disputing the contents of the flyer at the time.
{¶ 56} The official ballot language, appearing as Issue 1 on the 2015 statewide general-election ballot, stated the following:
Issue 1
Creates a bipartisan, public process for drawing legislative districts
Proposed Constitutional Amendment
Proposed by Joint Resolution of the General Assembly
To enact new Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Article XI and to repeal Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of Article XI of the Constitution of the State of Ohio.
* * *
The proposed amendment would:
End the partisan process for drawing Ohio House and Senate districts, and replace it with a bipartisan process with the goal of having district boundaries that are more compact and politically competitive.
Ensure a transparent process by requiring public meetings, public display of maps, and a public letter explaining any plan the Commission adopts by a simple majority vote.
Establish the bipartisan Ohio Redistricting Commission, composed of 7 members including the Governor, the Auditor of the State, the Secretary of State, and 4 members appointed by the majority and minority leaders of the General Assembly.
Require a bipartisan majority vote of 4 members in order to adopt any final district plan, and prevent deadlock by limiting the length of time any plan adopted without bipartisan support is effective.
(Boldface sic.)
II. ANALYSIS
A. Threshold matters
{¶ 57} Before analyzing the validity of the General Assembly–district plan under the
1. The statewide officeholders as proper parties
{¶ 58} Governor DeWine, Secretary LaRose, and Auditor Faber argue that they should be dismissed from these cases because they are not proper parties. These statewide officeholders contend that only the commission may be sued in cases arising under
{¶ 59} We addressed a similar issue in Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814. Under former
{¶ 60} We held that the apportionment board and the dissenting board member were not “necessary and indispensable” parties under
{¶ 61} Wilson is instructive here, although the amendment of
{¶ 62} This litigation demonstrates why the individual respondents are proper parties. Although the commission is a respondent in these cases, its one-page merit brief merely “adopts and incorporates” the statements and arguments that the Republican commission members made in their briefs. And in its response to the various discovery motions filed by petitioners, the commission represented to this court that it “is not in possession, custody, or control of any document or any information potentially responsive to discovery requests served in any of these matters that is not in the possession, custody, and control of one or more of its individual members.”
{¶ 63} We therefore hold that individual commission members are proper parties in these cases. Therefore, we do not dismiss
2. Article XI, Section 8(C)(1)(a) does not bar this court‘s review of the plan
{¶ 64}
Except as otherwise provided in division (C)(1)(b) of this section, if the commission adopts a final general assembly district plan in accordance with division (A)(3) of this section9 by a simple majority vote of the commission, and not by the vote required to adopt a plan under division (B)(3) of Section 1 of this article, the plan shall take effect upon filing with the secretary of state and shall remain effective until two general elections for the house of representatives have occurred under the plan.
{¶ 65} All the respondents acknowledged in their initial merit briefs that this court has authority to invalidate a four-year district plan passed by a simple majority vote under
{¶ 66} In their supplemental brief, Senate President Huffman and House Speaker Cupp argue that
{¶ 67} The second dissenting opinion seizes on the argument raised by Senate President Huffman and House Speaker Cupp that this court could conclude that it may not review the district plan, because
{¶ 68} The second dissenting opinion‘s interpretation, however, requires readers of
{¶ 69} For starters,
{¶ 70} The term “notwithstanding” means ” ‘without prevention or obstruction from or by; in spite of.’ ” State ex rel. Carmean v. Hardin County Bd. of Edn., 170 Ohio St. 415, 422, 165 N.E.2d 918 (1960), quoting Webster‘s Second New International Dictionary 1669 (1954). Provisions included in a clause invoking that term override any conflicting provisions. See Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 35. Thus,
{¶ 71} Second,
{¶ 72} Third, even if the second dissenting opinion were correct that a conflict exists between
{¶ 73} Moreover,
{¶ 74} Finally, it is difficult to overlook the absurd result that would arise from the second dissenting opinion‘s interpretation of
{¶ 75} For these reasons, we hold that this court has authority under
B. The burden and standard of proof
{¶ 76} In Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 18-24, we noted that apportionment is a legislative task and that an adopted apportionment plan—like enacted legislation—is presumptively constitutional. We therefore held that “[t]he burden of proof on one challenging the constitutionality of an apportionment plan is to establish that the plan is unconstitutional beyond a reasonable doubt. In the absence of evidence to the contrary, we presume that the apportionment board properly performed its duties in a lawful manner.” Id. at paragraph two of the syllabus.
{¶ 77} Several distinct concepts are embedded within that holding. Fundamentally, the standard allocates the burden of proof, which itself “is a composite burden that ‘encompasses two different aspects of proof: the burden of going forward with evidence (or burden of production) and the burden of persuasion.’ ” Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 20, quoting Chari v. Vore, 91 Ohio St.3d 323, 326, 744 N.E.2d 763 (2001). The standard also defines the burden of proof for factual issues as beyond a reasonable doubt.
{¶ 78} Petitioners argue that they should not be required to prove factual issues beyond a reasonable doubt, because these cases arise under the original jurisdiction of this court and the rule in ordinary civil cases is that facts must be proved by a preponderance of the evidence. But these are not ordinary civil cases. When legislative action is the subject of a facial constitutional challenge, it is well settled that the challenging party faces “the highest standard of proof, which is also used in criminal cases, proof beyond a reasonable doubt,” State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21.
{¶ 79} Petitioners dispute the premise that these cases should be treated as facial constitutional challenges. But in doing so, petitioners do not attack the primary reasons for the Wilson court‘s holding—i.e., that apportionment is a legislative task (albeit now delegated by the
{¶ 80} Application of this standard of proof on factual issues does not prevent us from independently assessing the constitutionality of the commission‘s plan. In emphasizing the “strong presumption of constitutionality” of legislation, we typically invoke the rule that “a statute will be upheld unless proven beyond a reasonable doubt to be unconstitutional.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. This rule borrows terminology usually associated with the proof of facts, referring to the quantum of evidence needed to convict a defendant in a criminal case. But the ultimate question here remains a legal one: does the commission‘s adoption of its plan ” ‘clear[ly] and irreconcilabl[y] conflict with some express provision of the constitution’ “? Ohio Congress of Parents & Teachers at ¶ 20, quoting Spivey v. Ohio, 999 F.Supp. 987, 999 (N.D.Ohio 1998). Petitioners express concern that we will consider that question with a rubber-stamp form of review, but that concern is misplaced. And contrary to the suggestion of Senate President Huffman and House Speaker Cupp, the presumption and high burden of proof do not require us to defer to the commission‘s interpretation of
C. Article XI, Section 6
{¶ 81} Petitioners in all three cases argue that the adopted plan is invalid because it fails to comply with
{¶ 82} Senate President Huffman, House Speaker Cupp, and the statewide officeholders respond to petitioners’ challenge to the adopted plan with three arguments. They first argue that
{¶ 83} As explained below, the evidence—much of which is undisputed—shows that the commission did not attempt to comply with the standards stated in
1. Article XI, Section 6 requires an attempt
{¶ 84} When interpreting constitutional language, we generally apply the same rules of construction that govern the interpretation of statutes. See Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn., 146 Ohio St.3d 356, 2016-Ohio-2806, 56 N.E.3d 950, ¶ 16. We must begin by looking at the language of the provision itself. Id. We consider “how the words and phrases would be understood by the voters in their normal and ordinary usage.” Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 22, citing Dist. of Columbia v. Heller, 554 U.S. 570, 576-577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In other words, “[i]n construing constitutional text that was ratified by direct vote, we consider how the language would have been understood by the voters who adopted the amendment.” Knab at ¶ 22.
{¶ 85} The opening sentence of
{¶ 86} The phrase” in
{¶ 87} This of course raises the question: What constitutes an “attempt” to meet the standards provided in
{¶ 88} The final sentence of
{¶ 89} Senate President Huffman and House Speaker Cupp make much of the legislative debate that preceded the amendment of
{¶ 90} But legislative debate does not inform a proper reading of
2. Article XI, Section 6 claims are actionable
{¶ 91} Senate President Huffman, House Speaker Cupp, and the statewide officeholders also argue that the claims based on
If the supreme court of Ohio determines that a general assembly district plan adopted by the commission does not comply with the requirements of
Section 2 ,3 ,4 ,5 , or7 of this article, the available remedies shall be as follows:(a) If the court finds that the plan contains one or more isolated violations of those requirements, the court shall order the commission to amend the plan to correct the violation.
(b) If the court finds that it is necessary to amend not fewer than six house of representatives districts to correct violations of those requirements, to amend not fewer than two senate districts to correct violations of those requirements, or both, the court shall declare the plan invalid and shall order the commission to adopt a new general assembly district plan in accordance with this article.
(c) If, in considering a plan adopted under division (C) of Section 8 of this article, the court determines that both of the following are true, the court shall order the commission to adopt a new general assembly district plan in accordance with this article:
(i) The plan significantly violates those requirements in a manner that materially affects the ability of the plan to contain districts whose voters favor political parties in an overall proportion that corresponds closely to the statewide political party preferences of the voters of Ohio, as described in division (B) of Section 6 of this article.
(ii) The statewide proportion of districts in the plan whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party does not correspond closely to the statewide preferences of the voters of Ohio.
(Emphasis added.)
{¶ 92} Senate President Huffman, House Speaker Cupp, and the statewide officeholders argue that
{¶ 93} This argument misunderstands the scope of our jurisdiction and general remedial power under
In the event that any section of this constitution relating to redistricting, any general assembly district plan made by the Ohio redistricting commission, or any district is determined to be invalid by an unappealed final order of a court of competent jurisdiction then, notwithstanding any other provisions of this constitution, the commission shall be reconstituted as provided in Section 1 of this article, convene, and ascertain and determine a general assembly district plan in conformity with such provisions of this constitution as are then valid, including establishing terms of office and election of members of the general assembly from districts designated in the plan, to be used until the next time for redistricting under this article in conformity with such provisions of this constitution as are then valid.
(Emphasis added.)
{¶ 94} Because neither
{¶ 95} We further reject the notion that
{¶ 96} It is not difficult to harmonize
plan that might not otherwise be declared invalid under
{¶ 97} Further, the language and structure of
{¶ 98}
{¶ 99} The first dissenting opinion argues that
Nowak—and even setting aside the application of
{¶ 100} Despite
{¶ 101} The suggestion that the solution to unconstitutional partisan gerrymandering is simply to vote out its perpetrators is disingenuous. Partisan gerrymandering entrenches the party in power. See, e.g., Gill v. Whitford, 138 S.Ct. 1916, 1935, 201 L.Ed.2d 313 (2018) (Kagan, J., concurring). If the legislative members of the commission that adopted the instant plan are voted out of office, the party that appointed them will simply appoint different partisans. And common sense dictates that notwithstanding attrition based on term limits or any other reasons, the officeholders will stand for reelection primarily on the basis of their performance in those offices, not as members of the redistricting commission. The notion that the voters who overwhelmingly approved the amendment of
3. The commission did not attempt to meet the standard set forth in Article XI, Section 6(B)
{¶ 102} Petitioners have shown beyond a reasonable doubt that the commission did not attempt to draw a district plan that meets the standard articulated in
{¶ 103} To start, funding for redistricting was allocated only to the legislative caucuses involved, and the commission members from the executive branch were not given access to the mapping programs that would have allowed them to meaningfully participate in the drawing of the maps. Even under this arrangement, only two commission members—Senate President Huffman and House Speaker Cupp—were involved when the plan that was ultimately adopted was drawn. Thus, the commission did not demonstrate a correct understanding of what was required in drawing the maps.
{¶ 104} As to the specific requirement of
{¶ 105} This standard requires the calculation—and then the comparison—of two things. The commission must first calculate the statewide proportion of districts whose voters favor each political party. In making this calculation, the commission must determine how voters in the proposed districts are likely to vote in future elections by examining the statewide federal and state partisan election results from the previous ten years. The evidence submitted shows that map-drawing software performed this calculation for the map drawers recruited by the Republican legislative members of the commission. The commission acknowledged in its
{¶ 107} This methodology, however, does not tell us the “statewide preferences of the voters of Ohio.” Calculating the percentage of statewide election victories over the last ten years does not indicate the preferences of individual Ohio voters. The “statewide preferences of the voters of Ohio” must be determined by examining how the voters voted—i.e., by totaling the votes cast in statewide partisan elections and calculating the percentages of votes received by candidates of each political party. Senate President Huffman and House Speaker Cupp‘s approach looks not to votes cast but to statewide offices won, which is a measure that does not comport with
{¶ 108} As used in
{¶ 109} The misunderstanding of what
{¶ 110} Senate President Huffman and House Speaker Cupp nevertheless argue that they did attempt to satisfy
{¶ 111}
{¶ 112} Moreover, petitioners have introduced substantial expert evidence showing that the commission could have drawn a more proportional plan. One expert, Dr. Kosuke Imai, a professor in Harvard University‘s departments of government and of statistics, who has expertise in developing simulation algorithms for evaluating legislative redistricting, employed a redistricting simulation algorithm using the
{¶ 113} Respondents offer little to dispute this evidence. In fact, Senate President Huffman and House Speaker Cupp respond to it in their brief by conceding that “[Petitioners‘] experts can easily draw simulated maps after the fact that provide exact proportionality by making exact proportionality one of their criteria for drawing maps.” They argue that there are no manageable standards for this court to apply in determining how “fair” a plan must be. But
{¶ 114} Based on the evidence presented, we conclude beyond a reasonable doubt that the commission did not attempt to draw a district plan that meets the standard articulated in
{¶ 115} Under
The words used in [former]
Article XI do not explicitly require political neutrality, or for that matter, politically competitive districts or representational fairness, in the apportionment board‘s creation of state legislative districts. Unlike Ohio, some states specify in either constitutional or statutory language that no apportionment plan shall be drawn with the intent of favoring or disfavoring a political party. * * * Therefore,Article XI does not prevent the board from considering partisan factors in its apportionment decision.
(Emphasis added.) Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 14.
{¶ 116} Thus, in holding that former
{¶ 117} Courts have found that direct or circumstantial evidence may establish that a districting plan was drawn primarily to favor one political party over another. See League of Women Voters of Florida v. Detzner, 172 So.3d 363, 375-376 (Fla.2015); see also Ohio A. Philip Randolph Inst. v. Householder, 373 F.Supp.3d 978, 1096 (S.D.Ohio 2019), vacated on other grounds sub nom. Chabot v. Ohio A. Philip Randolph Inst., ___ U.S. ___, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019), by Rucho v. Common Cause, ___ U.S. ___, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019), quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (“Plaintiffs may prove discriminatory partisan intent using a combination of direct and indirect evidence because ‘invidious discriminatory purpose may often be inferred from the totality of the relevant facts‘“).
{¶ 118} A map-drawing process may support an inference of predominant partisan intent. The evidence here demonstrates that Senate President Huffman and House Speaker Cupp controlled the process of drawing the maps that the commission ultimately adopted. No other commission members had access to DiRossi and Springhetti; nor did other commission members have any role in drawing the plan. Senate President Huffman and House Speaker Cupp did not instruct DiRossi and Springhetti to comply with
{¶ 119} This is not the process that
{¶ 120} At bottom, the process that culminated in the adopted plan, having been directed and controlled by one political party‘s legislative leaders, was not an attempt to comply with
{¶ 121} Further, the expert evidence supports the conclusion that the adopted plan‘s partisan skew cannot be explained solely by nondiscriminatory factors. Under the adopted plan, Republicans are favored to win between 61 and 68 House seats and between 20 and 24 Senate seats. The expert report of Dr. Michael Latner, a professor of political science at California Polytechnic State University with expertise in electoral-system design and statistical methods in elections and in designing electoral districts, shows that the plan substantially favors Republican voters through targeted “cracking” and “packing” of Democratic voters that “did not occur by chance or accident.”13 Using a partisan-symmetry analysis, a metric that is broadly accepted by political scientists to measure partisan bias, Dr. Latner
concluded that the plan adopted by the commission significantly discriminates against Democratic voters to the advantage of Republican voters.
{¶ 122} “Partisan symmetry” measures whether each party would receive the same share of legislative seats assuming that each had identical percentage vote shares. Dr. Latner‘s analysis showed that if Republican candidates won 54 percent of the statewide vote under the adopted plan, they would win 64 House seats (a supermajority). In contrast, with the same statewide vote-share percentage, Democratic candidates would not win even a bare majority of the House seats under the adopted plan. Similarly, for statewide vote shares ranging from 45 percent to 55 percent—within the swing of actual Ohio voting patterns—Dr. Latner projected that under the Senate map that was adopted, the Republican candidates would win an average of 17 percent more seats than Democratic candidates for the same vote share.
{¶ 123} Dr. Latner further opined that “discretionary choices,” as opposed to the necessity of complying with
{¶ 124} Dr. Imai‘s work also supports the conclusion that the adopted plan‘s partisan skew is not due to Ohio‘s political geography. Using
{¶ 125} Dr. Imai also performed a detailed analysis of districts in Hamilton, Franklin, and Cuyahoga-Summit-Geauga counties.14 Using data from 13 statewide elections from 2012 to 2020, Dr. Imai found that the adopted plan had a pattern of packing disproportionately large numbers of Democratic voters into some districts while turning other districts into Republican safe seats. This targeted packing and cracking of Democratic voters allowed the adopted plan to gain Republican House seats in these counties. And among all possible compliant Senate plans that included these counties, the adopted plan was an outlier: none of the simulations projected as many legislative seats being won by Republican candidates.
{¶ 126} Dr. Rodden‘s expert report similarly demonstrates that the adopted plan was drawn primarily to favor Republican candidates and to disfavor Democratic candidates. Dr. Rodden compared the adopted plan to other plans, including a plan that he created. Though Dr. Rodden acknowledged the challenges presented by Ohio‘s political geography, he concluded that the partisan skew of the adopted plan was not a product of those challenges. In his view, the adopted plan resulted from (1) strategic packing and cracking of Democratic voters in metropolitan areas, (2) splitting proximate groups of Democratic voters to scatter them across majority-Republican rural and exurban districts (e.g., the Cincinnati and Dayton metropolitan areas), and (3) keeping proximate groups of Democratic voters apart to carve out majority-Republican districts within urban counties.15 Indeed, when Dr. Rodden drew his district plan that adhered to traditional redistricting principles, complied with
districts and in which the partisan split in Republican candidates’ favor was 57 percent to 43 percent in the House and 55 percent to 45 percent in the Senate.
{¶ 127} Senate President Huffman and House Speaker Cupp argue that the Republican advantage in the adopted plan results from the changing voting and residential patterns of Ohioans. They cite both Dr. Rodden—one of petitioners’ experts—and their own experts to show that Democratic voters are highly clustered in urban
{¶ 128} There is no dispute among the experts that Ohio‘s political geography poses challenges in the drawing of overall
{¶ 129} To show that the adopted plan‘s partisan skew was due to the political geography of the state, Senate President Huffman and House Speaker Cupp submitted expert testimony from Dr. Michael Barber, a professor of political science at Brigham Young University with expertise in advanced statistical methods for analyzing election data, and Sean P. Trende, a doctoral candidate in political science at the Ohio State University and an analyst with RealClearPolitics. Dr. Barber and Trende mainly compared the adopted plan to plans introduced by Senator Sykes on September 1 and September 15. They point out the various ways in which Senator Sykes‘s plans are pro-Democratic gerrymanders. Similarly, an affidavit submitted by DiRossi details the ways in which Senator Sykes‘s September 15 plan and a plan offered by a citizen group do not comply with
{¶ 130} Senate President Huffman and House Speaker Cupp offer additional expert testimony addressing whether the adopted plan has a partisan bias. Trende questions the metrics used by petitioners’ experts to measure partisan bias, opining that it is not clear what this court must infer from those metrics. Trende does not, however, offer an alternative way to measure partisan bias. More importantly, he does not offer testimony rebutting Dr. Rodden‘s or Dr. Imai‘s evidence that it is possible for the commission to draw a district plan that is compliant with
{¶ 131} Although respondents have presented evidence showing that Ohio‘s political geography and the map-drawing requirements of
{¶ 132}
{¶ 133} Because we invalidate the plan under
{¶ 134} A final note. Our analysis and conclusion in these cases would be the same regardless of which political party makes up the majority of the commission or drives the map-drawing process. And any disagreement between the members of this court about the legal interpretation of words in the Ohio Constitution does not undermine the integrity of the court or Ohioans’ confidence in it, as the second dissenting opinion fears. It is a hallmark of an independent judiciary, made up here of seven jurists, that principled legal disagreements may arise. When disagreements do arise and are addressed intelligently and truthfully by the justices, confidence in the judicial branch of our government is strengthened.
But when they are addressed with dire predictions and what appears to be unreasonable characterizations, we cannot help but wonder whether such aspersions will shake the public‘s confidence in our court.
E. Remedy
{¶ 135} For the reasons set forth above, we hold that the redistricting commission did not comply with
{¶ 136} We are mindful of the imminent 2022 election cycle, which starts with the February 2, 2022 deadline for candidates for legislative offices to submit petitions and declarations of candidacy. See
{¶ 137} Therefore, in addition to declaring the plan invalid and ordering the commission to reconvene to adopt a new plan, we direct the commission to adopt a new plan within ten days of this judgment. We also retain jurisdiction to review the plan that the commission adopts for compliance with our order.
III. CONCLUSION
{¶ 138} Because the commission did not attempt to meet the standards set forth in
{¶ 139} We further order the commission to adopt a new plan within ten days of this judgment, and we retain jurisdiction for the purpose of reviewing the new plan adopted by the commission. Petitioners shall file any objections to the new plan within three days of the plan‘s adoption.
Relief granted.
DONNELLY, J., concurs.
O‘CONNOR, C.J., concurs, with an opinion joined by BRUNNER, J.
BRUNNER, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion.
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O‘CONNOR, C.J., concurring.
{¶ 140} I concur fully in the majority opinion.
{¶ 141} I write separately because readers should understand they have the power to again amend the Ohio Constitution to ensure that partisan politics is removed from the drawing of Ohio Senate and House districts that takes place every ten years.
{¶ 142} And, if upon reading the court‘s decision today, readers determine that
{¶ 143} While not free from their own vulnerabilities, independent redistricting commissions have become “the premier institutional solution to the problem of partisan gerrymandering” because they increase the degree of separation between map-drawers and partisan politics. Zhang, 109 Cal.L.Rev. at 1000. They shift the power to redistrict away from partisan actors who have an incentive to gerrymander in order to maintain or expand their political power. Christopher Esposito, Gerrymandering and the Meandering of Our Democratic Principles: Combating Partisan Gerrymandering After Rucho, 30 S.Cal. Interdisc.L.J. 195, 211 (2021). States that have enacted citizen-led, independent redistricting commissions include Arizona, California, Michigan, and Colorado. Zhang, 109 Cal.L.Rev. at 990.
{¶ 144} In 2000, in an effort to end the practice of gerrymandering, Arizona voters adopted Proposition 106, an initiative that amended the state‘s constitution to shift redistricting authority from the state legislature to the Arizona Independent Redistricting Commission (“AIRC“). See Arizona State Legislature v. Arizona Independent Redistricting Comm., 576 U.S. 787, 792, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015). The resulting constitutional amendment provides for a five-member commission, with each member chosen from a pool of nominees established by the state‘s commission on appellate-court appointments.
{¶ 145} The California Redistricting Commission operates similarly to the AIRC, but its redistricting plans take effect only if approved by public referendum. Arizona State Legislature at 798, citing
{¶ 146} More recently, in 2018, Michigan voters passed a proposal to amend that state‘s constitution ” ‘to establish a commission of citizens with exclusive authority to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and U.S. Congress.’ ” Daunt v. Benson, 999 F.3d 299, 303 (6th Cir.2021), quoting Michigan Board of State Canvassers, Official Ballot Wording approved by the Board of State Canvassers, August 30, 2018, Voters Not Politicians, https://www.michigan.gov/documents/sos/Official_Ballot_Wording_Prop_18-2_632052_7.pdf. The Michigan commission consists of 13 registered voters, randomly selected by the secretary of state from eligible applicants.
{¶ 147} Having now seen firsthand that the current Ohio Redistricting Commission—comprised of statewide elected officials and partisan legislators—is seemingly unwilling to put aside partisan concerns as directed by the people‘s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics.
BRUNNER, J., concurs in the foregoing opinion.
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BRUNNER, J., concurring.
{¶ 148} I fully join the majority opinion invalidating the 2021 redistricting plan for the Ohio General Assembly under
{¶ 149} The OOC‘s argument is that the legislative redistricting plan does not comply with the Ohio Constitution‘s guarantees of equal protection (
Speech Clauses by burdening Democrats’ political and associational activities. I focus solely on the OOC’s equal-protection claims regarding the dilution of Democratic votes in reviewing the plan under
I. The plan violates petitioners’ rights to vote on equal terms
{¶ 150} Both of the dissents in this case argue that this court has no power to review the four-year plan for legislative redistricting that was adopted by the Ohio Redistricting Commission in late 2021. The dissents argue that voters in newly reconstituted, gerrymandered districts may vote out of office their elected legislative representatives if they do not believe their leaders have honored their oaths to the Ohio Constitution requiring fair legislative districts. While “vote them out of office” is an oft-used, convenient mantra of political laissez-faire, Ohio voters did not vote to “let it be.” The dissents dissect and wring from Article XI a ban against this court’s acting to address what is our exclusive responsibility concerning a four-year redistricting plan. By providing a remedy to petitioners under this new Article XI of our Constitution, we are neither exercising “judicial fiat,” dissenting opinion of Kennedy, J., at ¶ 277, nor undermining the public’s confidence in this court nor harming the judicial branch of Ohio’s government “for generations,” dissenting opinion of Fischer, J., at ¶ 351. Instead, we are exercising our constitutionally required jurisdiction under
{¶ 151} Gerrymandering at its core prevents voters from voting on equal terms to alter or reform their government.
{¶ 152} The right to vote is at the core of this provision, as altering and reforming the government is done most directly and most commonly by casting a ballot. See Hamilton v. Fairfield Twp., 112 Ohio App.3d 255, 275, 678 N.E.2d 599 (12th Dist.1996) (“the right to vote or otherwise choose whether to form a municipal corporation is a fundamental right that is guaranteed by Section 2, Article I of the Ohio Constitution“); see also State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 55 (“Ours is still a representative democracy in which legislators derive their authority from the citizens of our state“).
{¶ 153} When describing this right to vote, state law routinely uses the term “elector.” An elector is a person who has “the qualifications provided by law to be entitled to vote.”
{¶ 154}
{¶ 155} With depressed voter turnout, all electors and voters are affected. This may result in doubt and lack of confidence in the democratic process—that is, whether the outcome of an election by so few voters as compared to electors is truly the will of the people.
{¶ 156} Gerrymandering and its resulting effects undermine a government that is intended for the benefit and equal protection of the people. See
{¶ 157} Undeniably, ” ‘[t]he right to vote includes the right to have one’s vote counted on equal terms with others.’ ” State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 58, quoting League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir.2008). A law—and in this case, the Ohio Redistricting Commission’s plan—that decreases the weight or dilutes the power of a group of citizens’ votes relative to their ability to achieve representative influence in the legislature may impermissibly burden that right when the outcomes relating to one class of voters are not proportional to the votes cast. See Common Cause v. Lewis, N.C.Super. No. 18 CVS 014001, 2019 WL 4569584, *116 (Sept. 3, 2019) (“There is nothing ‘equal’ about the ‘voting power’ of [one political party’s] voters when they have a vastly less realistic chance of winning a majority in either chamber under the enacted plans“). There is no allowance in
II. Three-prong test to prove an equal-protection violation
{¶ 158} In adjudicating the OOC’s claims that the adopted legislative district plan violates
Inst. forms a persuasive, cogent basis for analyzing how our state constitutional provisions may be used to perform an equal-protection analysis of the 2021 state legislative maps. The federal court’s analysis was specifically applied to Ohio’s 2011 congressional redistricting map for 2012, and ten years later, the new constitutional provisions in Article XI for state legislative redistricting now specifically require the representational fairness discussed and sought in Ohio A. Philip Randolph Inst. at 1092-1150.
{¶ 159} The United States Supreme Court in Rucho v. Common Cause made clear that gerrymandering is an issue that cannot be solved by federal courts, because there is “no plausible grant of authority in the [federal] Constitution” allowing such an inquiry. ___ U.S. ___, ___, 139 S.Ct. 2484, 2507, 204 L.Ed.2d 931 (2019). However, the court noted that its holding did not “condemn complaints about districting to echo into a void,” because state courts interpreting provisions of state law that provide for fair districts were held to be capable of providing that relief. Id. at __, 139 S.Ct. at 2507-2508 (noting constitutional amendments and legislation in Florida, Missouri, Iowa, Delaware, Colorado, and Michigan).
{¶ 160} Thus, under the framework set forth in Ohio A. Philip Randolph Inst., we should require that the OOC, to establish a violation of the Equal Protection Clause of the Ohio Constitution, “demonstrate that those in charge of the redistricting ‘acted with an intent to “subordinate adherents of one political party and entrench a rival party in power.” ’ ” 373 F.Supp.3d at 1093, quoting Common Cause v. Rucho, 318 F.Supp.3d 777, 862 (M.D.N.C.2018), vacated by Rucho, __ U.S. __, ___ 139 S.Ct. 2484, 204 L.Ed.2d 931, quoting Arizona State Legislature v. Arizona Indep. Redistricting Comm, 576 U.S. 787, 791, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015). This goes to the fundamental protection of ensuring that state government will continue to be instituted for Ohioans’ benefit and equal protection under
{¶ 161} Second, we should require that the OOC prove the plan’s discriminatory effect, demonstrating that the plan will have the effect of “diluting the votes of members of the disfavored party.” Ohio A. Philip Randolph Inst. at 1096. In light of
{¶ 162} Finally, if subordination and entrenchment along with vote dilution are proved, the burden should shift to the respondents “to present evidence that legitimate legislative grounds provide a basis for the way in which [the map] was drawn.” Id. at 1098. In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 80-82, Justice McGee Brown noted in her dissent that
[o]ther states have also shifted the burden of proof to the parties responsible for the apportionment plan to justify their departure from certain constitutional provisions once [the] relators established that the plan is unconstitutional in some respect. See In re Legislative Districting of the State, 370 Md. [312,] 368, 805 A.2d 292 [2002] (when apportionment plan raised sufficient issues with respect to its compliance with state constitutional requirements, court placed burden of proof on the state to justify the plan); In re Reapportionment of Colorado Gen. Assembly, 45 P.3d 1237, 1241 (Colo.2002) (court held that if an apportionment plan does not comply with the county-boundary requirement of the Colorado Constitution, the reapportionment commission must make an adequate factual showing that less drastic alternatives could not have satisfied the equal-population constitutional requirement); In re Legislative Districting of Gen. Assembly of Iowa, 193 N.W.2d 784, 791 (Iowa 1972) (state failed to sustain burden of proof to show why state legislative reapportionment plan could not comply with state constitution’s compactness requirement).
This approach is logical. The respondents who crafted and approved the apportionment plan are in the best position to know the basis for any noncompliance with [former] Article XI.
Therefore, I would hold that once [the] relators make a prima facie showing beyond a reasonable doubt that [the] respondents have violated a provision of [former] Article XI of the Ohio Constitution, the burden of proof shifts to [the] respondents to justify that violation based on the avoidance of a violation of another superior or coequal legal requirement. Id.
{¶ 163} The application of the three-part test also would be favored based on the plain language of
{¶ 164} For the first prong, that the state acted with an intent to subordinate adherents of one political party and entrench a rival party in power, intent ” ‘is rarely provable by direct evidence’ ” and ” ‘generally must be inferred from the totality of the circumstances.’ ” Aztec Internatl. Foods, Inc. v. Duenas, 12th Dist. Clermont No. CA2012-01-002, 2013-Ohio-450, ¶ 42, quoting Fairbanks Mobile Wash, Inc. v. Hubbell, 12th Dist. Nos. CA2007-05-062, CA2007-05-068, 2009-Ohio-558, ¶ 22; see, e.g., State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260, 2014-Ohio-3614, 17 N.E.3d 547, ¶ 16. In a partisan-gerrymandering case, an intent to dilute votes to entrench a party in power may be demonstrated by
the timeline and logistics of the map-drawing process, the map drawers’ heavy use of partisan data, contemporaneous statements made by the map drawers about their efforts, the characteristics of the map itself (including the irregular shape of the districts, their lack of compactness, and the high number of county and municipality splits), and finally, the outlier partisan effects that the map has produced since its enactment.
Ohio A. Philip Randolph Inst., 373 F.Supp.3d at 1099. The evidence discussed by the majority supports the conclusion that the district plan adopted by the commission was drawn purposely to entrench one political party’s power and control over the General Assembly by diluting the votes of the other party’s voters. See majority opinion at ¶ 121-123 (discussing the expert report of Dr. Michael Latner). The adopted plan indisputably makes it easier for voters favoring one major party, the Republican Party, to transform their votes into legislative seats than it does for voters favoring the other major party, the Democratic Party. The objective difference between the statewide preference of voters over the last ten years and the ratio of Republican-leaning versus Democratic-leaning districts under the plan adopted is evidence beyond a reasonable doubt of vote dilution through gerrymandering.
{¶ 165} The depositions of Drs. Latner, Kosuke Imai, and Jonathan Rodden also plainly show that the Ohio Redistricting Commission could have drawn and adopted maps that are compliant with the Ohio Constitution and that do not impermissibly dilute the votes of either party for either chamber of the General Assembly. See id. at ¶ 121-126.
{¶ 166} The process followed by the commission provides evidence of an intent to entrench one party in power at the expense of voters supporting the other party. The commission ceded its responsibility and power to the four members of the legislative branch, and when adopting the final plan and the statement under
{¶ 167} And when the Republican legislative leaders’ map was presented for the commission’s review on September 9, 2021, the members of the commission used that map as a starting point to negotiate between the opposing partisan caucuses of the legislature a ten-year map, while the executive branch of state government was left to stand by benignly, encouraging the two parties’ leaders to try to come to some meeting of the minds. Basically, the commission permitted past decades’ business as usual and mapping behind closed doors, despite new and specific constitutional provisions requiring a more fair and transparent process that were adopted by the voters in order to create fair legislative districts.
{¶ 168} The commission even failed to use ten years of statewide data to reach its determination of statewide proportions of somewhere between 54 and 81 percent Republican and 19 and 46 percent Democratic. The opposing partisan caucuses of the legislature even negotiated what data actually was used to determine the statewide proportion of votes between the parties, unconstitutionally settling on four years’ worth, despite the constitutional requirement of ten years of data. See
{¶ 169} The record indicates that ten years of data was at least consulted in the mapmaking process by DiRossi and that the 2012 and 2014 data not used by the commission was needed to make Maptitude work. Necessary and reliable data is essential to accurate results. The parties here arbitrarily “negotiated” which data they would rely on to determine the statewide proportion of voter preferences. While
{¶ 170} Consider the Ohio Court of Claims’ resolution of a reimbursement dispute based on data completeness and accuracy between a charter school and the
{¶ 171} Based on the evidence discussed in the majority opinion, the Article XI, Section 8(C)(2) statement introduced by Senate President Huffman evidences beyond a reasonable doubt an aim to favor Republican voters and disfavor Democratic voters. The statement offered the figure of 81 percent of voters favoring Republican statewide candidates as a measure of the “statewide preferences of the voters of Ohio,” skimming the top line or total vote of Republican to Democrat winners by political party in partisan statewide races during the last ten years. Thus, with Republicans having won 81 percent of statewide contests in the last ten years, the statewide proportion of voter preference could be as much as 81 percent, according to respondents. The OOC argues that under this commission model, if the Republican Party won 100 percent of statewide elections with 50.1 percent of the vote, it would be a proportional outcome for Republicans to win 100 percent of General Assembly districts.
{¶ 172} The second element of the test—whether the plan has the effect of substantially diluting votes for a group’s candidates—is also satisfied here beyond a reasonable doubt based on the evidence previously discussed in this opinion and relied on in the majority opinion. Dr. Latner’s proportionality analysis alone shows that under the commission’s plan, statewide Democratic candidates’ vote totals will not translate into representation at the same rate as will Republican candidates’ vote totals. See majority opinion at ¶ 121-123.
{¶ 173} Finally, respondents in their various arguments have not demonstrated that there is a legitimate, nonpartisan justification for their redistricting plan. The evidence in the record demonstrates that the commission could have drawn maps that were proportional and that did not disfavor one party yet still complied with other requirements, such as the county- and city-split requirements in
{¶ 174} The plan violates petitioners’ rights to vote on equal terms and thus violates the equal-protection guarantee of
III. “Judicially manageable standards” for judging claims of gerrymandering
{¶ 175} The statewide officeholders, along with counsel for the commission, argue
{¶ 176} The expert evidence presented here and discussed in the majority opinion provides this court with numerous ways of evaluating how closely the redistricting plan meets these standards. Early federal caselaw applying the one-person, one-vote rule has resulted in malapportioned maps being invalidated without identifying a threshold for how much deviation from the 1-to-1 ratio between districts is permitted. See Reynolds v. Sims, 377 U.S. 533, 545-546, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (involving population-variance ratios of up to 41 to 1); Wesberry v. Sanders, 376 U.S. 1, 2, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (involving population-variance ratios of up to 3 to 1). When legislative maps involve extreme gerrymandering, they, too, are invalid. And with respect to a threshold, it is likewise appropriate to permit the development of “a body of doctrine on a case-by-case basis” concerning maps drawn and adopted under
{¶ 177} Regarding Florida’s state districting scheme, the nation’s high court stated in Rucho:
In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So.3d 363 (2015). The dissent wonders why we can’t do the same. * * * The answer is that there is no “Fair Districts Amendment” to the Federal Constitution.
Rucho at __, 139 S.Ct. at 2507, 204 L.Ed.2d 931.
{¶ 178} Like Florida and unlike the federal Constitution, the Ohio Constitution contains provisions explicitly guaranteeing fair districts based on statewide voter preferences as expressed by specified voting patterns during the last ten years. This required proportionality between political parties was approved by Ohio voters in 2015 when they adopted by popular vote the amendments to Article XI of the Ohio Constitution. These state constitutional guarantees are enforceable with or without enforceable principles of federal law, and this court, as the sole repository of “exclusive, original jurisdiction in all cases arising under” those provisions, must see to it that they are enforced.
{¶ 179} Despite proponents’ and voters’ best intentions for systemic government change in approving the ballot measure to amend the state Constitution in 2015, the evidence shows that the leaders of the majority party in Ohio’s veto-proof gerrymandered legislature managed to create a plan through the new bipartisan (as opposed to independent) redistricting commission that would have the effect of extending their party’s dominance in even more impactful ways than in 2011— giving their party a supermajority of the legislature for another four years—just by adopting the plan by a simple majority of the commission vote without bipartisan support. What the dissents seem to be conceding, without expressly saying so, is that the voters were “duped” when the legislature presented them with a jointly recommended “bipartisan” proposed constitutional amendment for their adoption. Under the rationale of the dissents, new Article XI has given Republican legislators a “free pass” for four more years of outsized Republican dominance not matching a voting proportionality that, in itself, was not determined in conformity with constitutional requirements.
{¶ 180} The real takeaway from this four-year plan is that the Ohio Redistricting Commission should not be composed of people for whom the temptation may be too great to place political self-preservation above selfless service, regardless of party affiliation. What is needed in Ohio is an independent redistricting commission. Then, no matter who holds the pen, the district lines drawn will more likely be fair and reflect population changes of the state over ten-year swaths of time based on changes identified by the decennial United States Census. What is an “independent redistricting commission“?
An Independent Redistricting Commission (IRC) is a body separate from the legislature that is responsible for drawing the districts used in congressional and state legislative elections. In most states, the state legislature is responsible for drawing and approving electoral districts with a simple majority subject to a gubernatorial veto. Because this process—known as redistricting—generally involves political actors whose careers depend on how the lines are drawn, both major political parties have used the process to unfairly strip voters of their voice.
* * *
* * * The structure of IRCs var[ies] from state to state, but IRCs are meant to make the redistricting process more transparent and impartial by establishing standards for who can serve on the commission and criteria that must be followed when drawing district maps.
Effective IRCs require the commissioners to adhere to strict criteria, such as complying with federal and state constitutions, equal population, protecting language and racial minorities, partisan fairness, compactness, and contiguity, among others. Effective IRCs also require the commission to hold public hearings, make the data being used to draw maps publicly available, accept public comments, and allow voters to submit maps to the commission online.
In 2018, voters in four states—Colorado, Michigan, Missouri, and Utah—approved ballot measures creating IRCs, and Ohio
Campaign Legal Center: Advancing Democracy through Law, Independent Redistricting Commissions, https://campaignlegal.org/democracyu/accountability/independent-redistricting-commissions (accessed Jan. 4, 2022) [https://perma.cc/7PRS-P8FB].
{¶ 181} Other states have devised and adopted independent redistricting commissions as the means to accomplish this higher calling for fair representation. They have amended their state constitutions to require nonpartisan, citizen-led redistricting commissions to implement constitutional formulas and methodologies that stop elected officials from choosing their voters and that place voters in the best position possible to fully choose their elected officials.
{¶ 182} Ohio’s redistricting efforts in 2021 were the first test of Ohio’s “bipartisan commission” under Article XI. The plan we have reviewed was not based on a fair process and perhaps could not have been, given the makeup of the commission established by Article XI—and this does not seem to be lost on either the majority or the dissenting justices. The stark differences among the views of the members of this court regarding the court’s power to fashion a remedy bears witness to the unworkability of Ohio’s new model. Since Ohio voters retain the power to change their government by popular vote, perhaps this 2021 experiment may supply motivation to do more.
{¶ 183} The people of Ohio, in exercising their inherent political power, have on numerous occasions used the ballot box to effect the change they wish to see in their government. They have reserved that power to themselves in the state’s Constitution. See
{¶ 184} When statewide petition drives result in statewide ballot measures either to propose laws, stop laws from taking effect, or amend the very document from which Ohio government flows, the Ohio Constitution, the legislative response has often been to tighten the rules of populist engagement through the power of legislation delegated to the legislature by the Constitution, making it harder (perhaps unconstitutionally) for voters to exercise these reserved powers. See
{¶ 185} One example of such an effort by Ohio voters—and a response by the legislature designed to nullify that effort—can be seen in Ohioans’ attempt in 2011 and 2012 to repeal 2011 Am.Sub.H.B. No. 194 (“H.B. 194“), a comprehensive bill designed to revise the election laws, including laws governing the constitutional initiative and referendum process. See https://publicfiles.ohiosos.gov/free/publications/SessionLaws/129/129HB-194.pdf (accessed Jan. 5, 2022). Ohioans opposed to H.B. 194 successfully obtained enough signatures to have a statewide referendum on the repeal of the law on the ballot for the November 2012 general election. See Terri L. Enns, Commentary: Thoughts on HB 194 and Ohio’s Referendum Process (Apr. 3, 2012), available at https://law.osu.edu/electionlaw/comments/index.php?ID=9075 (accessed Jan. 5, 2022) [https://perma.cc/J84G-38U8]. However, even though in December 2011, “the Ohio Secretary of State certified that the referendum proponents had successfully gathered the requisite number of valid signatures to place the bill onto the November 2012 ballot,” id., the portions of H.B. 194 that had not taken effect were repealed by the legislature in August of 2012 in Sub.S.B. No. 295, effective August 15, 2012, before the November 2012 general election, see Ohio Legislative Serv. Comm., Final Analysis Sub.S.B. 295, https://www.lsc.ohio.gov/documents/gaDocuments/analyses129/12-sb295-129.pdf (accessed Jan. 8, 2022) [https://perma.cc/7DD7-VXK2]. The referendum was not placed on the November 2012 ballot by the secretary of state, see cleveland.com, Ohio House votes to repeal controversial election law (May 8, 2012), available at https://www.cleveland.com/open/2012/05/ohio_house_votes_to_repeal_con.html (accessed Jan. 3, 2022) [https://perma.cc/GY46-XD29] (“The unprecedented nature of Tuesday’s action left some confusion over whether the referendum would actually appear on the November ballot. Ohio Secretary of State Jon Husted, a Republican, released a statement that said the legislature’s repeal of HB 194 leaves no law to put before voters. ‘Referendums determine if laws passed by the legislature should be upheld,’ Husted said in his statement. ‘With the law at the heart of the referendum on HB 194 having been repealed, there is no longer a question to place before the voters’ “). Yet, and incredibly, portions of the law contained in H.B. 194 were later reenacted by the legislature. See, e.g.,
V. Conclusion
{¶ 186} I concur in the majority’s determination that the Ohio Redistricting Commission did not comply with
_________________
KENNEDY, J., dissenting.
{¶ 187}
{¶ 188}
{¶ 189}
{¶ 190} Instead of applying the inconvenient textual limits on this court’s authority set forth in
{¶ 191} Lastly, any claim that the General Assembly-district plan violates the rights to equal protection, freedom of speech, and freedom of assembly as guaranteed by the
{¶ 192} Because in my view our authority as members of the judiciary is limited by the
I. BACKGROUND
A. Overview of General Assembly Redistricting in Ohio
{¶ 193} In December 2014, the General Assembly adopted
{¶ 194} As amended,
{¶ 195} The
{¶ 196} The redistricting commission must determine the number of people who will be represented in each House and Senate district and the number of districts that each county may contain.
{¶ 197} Senate districts are comprised of three contiguous House districts.
{¶ 198}
{¶ 199}
{¶ 200}
B. The Commission Adopts a Four-Year Plan
{¶ 201} In his statements before the redistricting commission and in his testimony during his deposition, Ray DiRossi explained that as he helped to draw the maps, he sought first to comply with the mandatory requirements of
{¶ 202} Similarly, Blake Springhetti, who also worked on drafting the district maps, explained that Speaker of the House Robert Cupp had sought a compromise by creating more Democratic-leaning districts and adopting the Democratic members’ priorities, such as maintaining Cincinnati in three districts and Dayton in two districts. House Speaker Cupp and Senate President Huffman therefore proposed a plan that created five more Democratic-leaning districts. House Speaker Cupp expected that the plan would comply with
{¶ 203} In the end, the attempts at compromise failed and the proposed plan that would have created more Democratic-leaning districts was not adopted. The votes in favor of the plan did not include at least two members of the commission from
C. Challenges to the District Plan
{¶ 204} This matter involves three separate complaints. In the first two complaints, petitioners the League of Women Voters of Ohio et al., and Bria Bennett et al., allege that the plan that the commission adopted violates
{¶ 205} This case presents two issues for this court’s consideration: Does
II. ANALYSIS
A. Interpreting the Constitution
{¶ 206} “The purpose of our written Constitution is to define and limit the powers of government and secure the rights of the people.” Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 16 (lead opinion). Its language controls, as written, unless it is changed by the people through the amendment procedures established by
{¶ 207} Therefore, in construing the
{¶ 208} Interpreting the constitutional provisions at issue here is complex. It requires
B. Reviewability of a General Assembly-District Plan
1. Article XI, Section 9(A)
{¶ 209}
2. Article XI, Section 9(B)
{¶ 210} The majority claims to find the answer in
In the event that any section of this constitution relating to redistricting, any general assembly district plan made by the Ohio redistricting commission, or any district is determined to be invalid by an unappealed final order of a court of competent jurisdiction then, notwithstanding any other provisions of this constitution, the commission shall be reconstituted as provided in Section 1 of this article, convene, and ascertain and determine a general assembly district plan in conformity with such provisions of this constitution as are then valid, including establishing terms of office and election of members of the general assembly from districts designated in the plan, to be used until the next time for redistricting under this article in conformity with such provisions of this constitution as are then valid.
{¶ 211} According to petitioners and the majority, this provision, standing alone, gives this court unlimited authority to review any alleged violation of
{¶ 212} Reliance on
{¶ 213} Nothing in that language represents an affirmative grant of power to this court—or any other court of competent jurisdiction—to invalidate a four-year plan adopted under
{¶ 214} Contrary to the majority’s chicken-or-egg approach, then, invalidation of the plan under some other provision of state or federal law must always come first before
{¶ 215} In crafting its “broad” power from the language of
3. Article XI, Section 9(D)
{¶ 216} It might be inconvenient for the majority, but the plain language of
(a) If the court finds that the plan contains one or more isolated violations of those requirements, the court shall order the commission to amend the plan to correct the violation.
(b) If the court finds that it is necessary to amend not fewer than six house of representatives districts to correct violations of those requirements, to amend not fewer than two senate districts to correct violations of those requirements, or both, the court shall declare the plan invalid and shall order the commission to adopt a new general assembly district plan in accordance with this article.
(Emphasis added.)
{¶ 218} Notwithstanding this specific remedial provision, the majority claims that “Section 9(B) recognizes this court’s authority to determine whether a plan is invalid for any reason and specifies what must happen if it does.” (Emphasis sic.) Majority opinion at ¶ 98. Yet, couched in a footnote, it pulls back from that assertion of power, saying that
{¶ 219} Plainly, little is left for the court to evaluate under its “otherwise broad authority” to declare a district plan invalid without a predicate violation of
{¶ 220} And because its “otherwise broad authority” can possibly apply only to violations of
{¶ 221} But would any plain reading of the provisions of
{¶ 222}
If, in considering a plan adopted under division (C) of Section 8 of this article, the court determines that both of the following are true, the court shall order the commission to adopt a new general assembly district plan in accordance with this article:
(i) The plan significantly violates those requirements in a manner that materially affects the ability of the plan to contain districts whose voters favor political parties in an overall proportion that corresponds closely to the statewide political party preferences of the voters of Ohio, as described in division (B) of Section 6 of this article.
(ii) The statewide proportion of districts in the plan whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party does not correspond closely to the statewide preferences of the voters of Ohio.
(Emphasis added.)
{¶ 223} The existence of this provision further showcases how impossible it is to square the majority’s position with the words of the Constitution. If the majority is correct that
{¶ 224} There are two prerequisites that must be satisfied before this court can reach the question whether the General Assembly-district plan is disproportionate to the statewide political-party preferences of Ohio voters. See
{¶ 225} This language, which limits the court’s authority to invalidate a General Assembly-district plan, cannot be reconciled with the majority’s assertion that a plan may be invalidated solely because the commission failed to attempt to adopt a plan in which “[t]he statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years,
{¶ 226} As written,
{¶ 227} In sum, contrary to the majority’s constitutional construction, the negative implication of
{¶ 228} The majority’s holding that
4. The Majority’s Other Interpretive Arguments
{¶ 229} The majority resorts to the in pari materia canon of construction in an attempt to read
{¶ 230} Although the majority is correct that the context of these provisions matters, “[l]et us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.” (Emphasis sic.) King v. Burwell, 576 U.S. 473, 501, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (Scalia, J., dissenting).
{¶ 231} Lastly, the majority’s comparison of
{¶ 232} Therefore, the majority’s assertion that
C. The Structure of Article XI Reinforces the Conclusion that Violations of Section 6 Are Not Judicially Enforceable
{¶ 233} The structure of
{¶ 234} Central to
{¶ 235} Pursuant to this approach,
redistricting, because as far back as 1851,
{¶ 236} Section 6 is part and parcel of this approach.
The Ohio redistricting commission shall attempt to draw a general assembly district plan that meets all of the following standards:
(A) No general assembly district plan shall be drawn primarily to favor or disfavor a political party.
(B) The statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.
(C) General assembly districts shall be compact.
Nothing in this section permits the commission to violate the district standards described in Section 2, 3, 4, 5, or 7 of this article.
(Emphasis added.) Violations of these provisions are not coequal to violations of Section 2, 3, 4, 5, or 7; Section 6 states that in the event the commission‘s attempt to draw a General Assembly-district plan conflicts with Section 6‘s guideposts, the mandatory map-drawing criteria provided in Section 2, 3, 4, 5, or 7 will control.
1. Section 6 Imposes Directory Duties on the Commission
{¶ 237} The majority focuses on the use of the word “shall” in Section 6 as making a stand-alone violation of that section actionable. However, when a constitutional provision uses the word “shall,” it can establish either a mandatory or a directory requirement. See generally In re Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, 820 N.E.2d 335, ¶ 37-38; Ex parte Falk, 42 Ohio St. 638, 639 (1885). Neither type of provision is intended to be disregarded by public officials. See 1A Norman Singer and Shambie Singer, Sutherland Statutes and Statutory Construction, Section 25:3 (7th Ed.Rev.2021). Their enforceability, however, differs.
{¶ 238} “A directory provision, by definition, involves no invalidating consequence for its disregard,” Nowak at ¶ 37, and ” ‘an objection that [a directory provision was] not observed will be unavailing in the courts’ ” (brackets added in Nowak), id., quoting Falk at 639. The safeguard against a public official violating a directory constitutional provision is his or her
{¶ 239} In contrast, a violation of a mandatory provision invalidates the act or transaction, and compliance with the provision may be enforced in the courts. See Nowak at ¶ 37; 1A Singer and Singer at Section 25:3. Therefore, unlike a directory provision, a remedy is provided to redress the violation of a mandatory provision. For example, Sections 2, 3, 4, 5, and 7 of Article XI impose mandatory duties on the commission when drawing district maps because Section 9(D)(3) requires this court to invalidate a district or a plan that does not sufficiently comply with any of those provisions.
{¶ 240} By adopting
{¶ 241} The majority asserts that House Speaker Cupp and Senate President Huffman concede that under
{¶ 242} But if
{¶ 243} The majority‘s analysis of how
{¶ 244}
{¶ 245} That the standards established by
{¶ 246} Therefore, the structure of
2. The Commission Attempted to Comply with Section 6
{¶ 247} Having brushed aside the constitutional limits on its authority, the majority declares the district plan invalid by holding that the commission failed to attempt to draw a plan that does not primarily favor or disfavor a political party and that contains a statewide proportion of districts that closely corresponds to the statewide preferences of Ohio voters. The word “attempt” means “to make an effort to do, accomplish, solve or effect.” Webster‘s Third New International Dictionary 140 (2002). The majority, however, disregards the meaning of “attempt” and says that the attempt required by Section 6 must be successful “[i]f it is possible,” majority opinion at ¶ 88. But an attempt denotes the beginning of an effort and does not speak to whether the results of that effort are successful. For example, the sentence, “She attempted to swim across the swollen river,” which suggests failure, is different from the sentence, “She swam across the swollen river.”
{¶ 248} The majority‘s analysis therefore rewrites the plain language of attempt to if it is possible, draw a general assembly district plan that meets all of the following standards.” However, the authority to amend the Ohio Constitution is reserved to the people of this state pursuant to
{¶ 249} Moreover, there is competing evidence to demonstrate that the commission did attempt to draw a plan that does
{¶ 250} First, the commission was successful in its attempt to comply with
{¶ 251} Second, the commission attempted to comply with
3. Disposition of Claims Alleging Violations of Section 6
{¶ 252} The complaints filed in League of Women Voters of Ohio v. Ohio Redistricting Comm. (Supreme Court case No. 2021-1193) and Bennett v. Ohio Redistricting Comm. (Supreme Court case No. 2021-1198) do not allege that the plan the commission adopted violates
D. Alleged Violations of Section 3(B)(2)
{¶ 253} The complaint in Ohio Organizing Collaborative also alleges that the plan that the commission adopted violates
1. Equal Protection
{¶ 254}
{¶ 255} However, the plan adopted by the commission does not affect the right to vote on equal terms to alter or reform the government under the Ohio Constitution. The right to vote is not created by
{¶ 256} Further, the adopted district plan does not affect the right to alter or reform the state government, because such a vote would take place on a statewide basis to initiate a law, a constitutional amendment, or even a new constitution. See
{¶ 257} The OCC maintains that the plan deprives some Democratic voters of the chance to elect their chosen candidate to office by diluting their voting strength. But as the United States Supreme Court has explained,
[p]artisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a “norm that does not exist” in our electoral system—“statewide elections for representatives along party lines.”
Rucho v. Common Cause, ___ U.S. ___, 139 S.Ct. 2484, 2499, 204 L.Ed.2d 931 (2019), quoting Davis v. Bandemer, 478 U.S. 109, 159, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (O‘Connor, J., concurring). Applying the federal Equal Protection Clause, the United States Supreme Court has rejected the proposition that “each party must be influential in proportion to its number of supporters.” Id. at ___, 139 S.Ct. at 2501. “It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support.” Id.
{¶ 258} Of course, the Ohio Constitution is a document of independent force and can provide greater protection than its federal counterpart. Arnold v. Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993). But the people of Ohio adopted the Equal Protection Clause of
{¶ 259} That is, “[t]he objective sought by the constitutional provisions was the prevention of gerrymandering,” id. at 509, by “plac[ing] the function of apportionment in impartial hands and at the same time mark[ing] the way so that in the main at least the provisions of the Constitution would work automatically and the apportioning process [would] ordinarily be a mere matter of calculation,” id.
{¶ 260} Although the framers of the 1851 Constitution included equal protection language, they nonetheless established the remedy for gerrymandering for partisan advantage not in equal-protection principles but in a more specific provision addressing reapportionment. As Justice Rufus Ranney, a delegate at the 1851 Constitutional Convention, wrote for this court in 1853, “I am much mistaken if the system adopted by the convention [i.e., former Article XI] is not found entirely adequate to accomplish all the substantial purposes proposed, and one of the most valuable features of the constitution.” State ex rel. Evans v. Dudley, 1 Ohio St. 437, 443 (1853); see King at 99. He noted that “[t]he state had been subjected to a most humiliating experience, while the [apportionment] power was left with the General Assembly; and the scenes of anarchy and confusion, which had marked its exercise there, undoubtedly determined the people to deprive that body of it absolutely, so far as the election of their own members was concerned, for the future.” Evans at 443. Rather than rely on
{¶ 261} In ratifying the current version of
{¶ 262}
{¶ 263} But if
{¶ 264} The partisan preferences of voters are not evenly distributed across the state of Ohio. Dr. Michael Barber‘s expert report describes the political geography of Ohio and explains that Democratic voters tend to live in more densely populated areas (i.e., in cities) while Republican voters tend to live in less populated (i.e., rural and suburban) areas. Further, Democrats tend to live in more homogeneous cities with a stronger partisan preference than Republicans, who tend to live in more heterogenous areas of the suburban and rural areas. As Dr. Barber explains, the Ohio Constitution requires “spatially contiguous, geographically compact electoral districts“; this occurs because of the mandatory requirement to minimize the division of political units and the directory requirement for compact districts. Compliance with these requirements leads to Democratic voters tending to be clustered in districts that result in so-called “wasted” votes in which Democratic candidates win by overwhelming numbers while Republicans tend to be in more competitive districts in which Republican candidates win by smaller margins.
{¶ 265} Dr. Barber‘s review of Ohio‘s political geography also reveals that 65 counties are uniformly Republican and that based on their population, they would be expected to control approximately one-third of the House seats. Seventeen counties are what he calls “purple cluster” counties—counties that are mostly Republican except that they have a small-to-medium-sized municipality that is majority Democratic. These represent 26 House districts, but only 5 could be drawn in compliance
{¶ 266} Based on this political geography, Dr. Barber explains, the various requirements of the Ohio Constitution for territorial continuity, district compactness, political-unit integrity, and proportionality come into tension. He opined that in order for the statewide proportion of House districts to closely correspond to the preferences of Ohio voters (i.e., 54 Republican seats and 45 Democratic seats), the commission would have to draw districts in the purple-cluster counties and the urban-blue counties in a way intended to give a political advantage to Democratic voters in those counties. That is, a plan that overcame the political geography of Ohio would provide Democrats greater representation in counties than the preferences of voters there would merit.
{¶ 267} This is shown in the report of the OOC‘s expert, Dr. Jonathan Rodden, who proposed a plan that more closely corresponded with the partisan divide of the state by taking urban areas that tend to vote strongly for Democratic candidates and combining them with more suburban and rural areas that tend to vote Republican. For example, Dr. Rodden intentionally drew 11 districts in Franklin County in such a way that all 11 districts would skew in favor of the Democratic Party. So, while the partisan divide of Franklin County is approximately 63 percent Democratic and 37 percent Republican, Dr. Rodden‘s plan would give 100 percent of the districts to the Democratic Party. The plan proposed by Senator Vernon Sykes and House Minority Leader Emilia Sykes eliminates Republican representation not only in Franklin County but also in Pickaway County, a rural county that gave President Donald Trump over 70 percent of the vote in 2020. Similarly, Hamilton County leans 55 percent Democratic and 45 percent Republican. Dr. Rodden‘s plan, however, would provide 6 out of 7 House districts (or approximately 85 percent) to Democrats by cracking Republican-leaning areas of the county and packing them with the more Democratic urban areas.
{¶ 268} The alternative plans that the OOC presents, then, would dilute the votes of Republican voters in the areas surrounding cities. To the extent that the OOC seeks a remedy to the dilution of Democratic voters, the remedy would do so at the expense of other voters. Therefore, even if voter dilution were actionable under
2. Freedom of Speech, Assembly, and Association
{¶ 269} Lastly, the OOC asserts that the commission‘s plan violates their rights to freedom of speech, assembly, and association. However, the plan does nothing to burden any of these rights. It does not limit speech, prohibit assembly, or deny Ohio voters the ability to associate with others. See Rucho, ___ U.S. at ___, 139 S.Ct. at 2504, 204 L.Ed.2d 931 (“there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district“).
{¶ 270} For these reasons, the OOC has failed to demonstrate a violation of
E. The Majority‘s Final Note
{¶ 271} In concluding its opinion, the majority strikes a “final note.” Majority opinion at ¶ 134. The majority writes:
A final note. Our analysis and conclusion in these cases would be the same regardless of which political party makes up the majority of the commission or drives the map-drawing process. And any disagreement between the members of this court about the legal interpretation of words in the Ohio Constitution does not undermine the integrity of the court or Ohioans’ confidence in it, as the second dissenting opinion fears. It is a hallmark of an independent judiciary, made up here of seven jurists, that principled legal disagreements may arise. When disagreements do arise and are addressed intelligently and truthfully by the justices, confidence in the judicial branch of our government is strengthened. But when they are addressed with dire predictions and what appears to be unreasonable characterizations, we cannot help but wonder whether such aspersions will shake the public‘s confidence in our court.
{¶ 272} But the final note that the majority strikes is emblematic of the disharmony of our times.
{¶ 273}
{¶ 274} But the majority opinion signals that only it is faithfully and impartially discharging its duty in these cases because its analysis and conclusion would be the same regardless of “which political party makes up the majority of the commission or drives the map-drawing process,” majority opinion at ¶ 134. This implies that the justices who are not joining the majority opinion are not faithfully and impartially discharging their duty in these cases.
{¶ 275} And the majority opinion‘s insinuation that the dissenting opinions are driven by political affiliations and political outcomes is difficult to harmonize with this court‘s recent decision in Cleveland Metro. Bar Assn. v. Morton, ___ Ohio St.3d ____, 2021-Ohio-4095, ___ N.E.3d ___. The same justices who are today implying that other justices of this court are guided by something other than fidelity to a sworn oath of office harshly disciplined an attorney who had “filed a pleading in which he accused this court of adjudicating based on political motives,” id. at ¶ 45 (O‘Connor, C.J., concurring). The four members of the majority here joined a concurring opinion in Morton, which stated that an attorney should be disciplined in order to “preserv[e] the integrity of the court—i.e., the judicial system as a whole—by maintaining public confidence in the court‘s impartiality and the rule of law.” (Emphasis sic.) Id. at ¶ 41 (O‘Connor, C.J., concurring). That concurring opinion stated that “accusing this court of furthering its own political agenda directly undermines this confidence.” Id. at ¶ 42 (O‘Connor, C.J., concurring).
{¶ 276} When the attorney in Morton accused this court of having political motivations, the members of today‘s majority concluded that the attorney had committed an ethical violation by undermining confidence in this court‘s impartiality and the rule of law. But when today‘s majority opinion, by way of insinuation, suggests that the dissenters’ views are politically motivated, it simply calls it a “final note,” majority opinion at ¶ 134. So, these cases beg the question: Where is the ethical line?
III. CONCLUSION
{¶ 277} Invariably, redistricting is a process of line drawing. And in drawing those lines, some Democratic voters must be placed in Republican-leaning districts and some Republican voters must be placed in Democratic-leaning districts. Any plan will dilute or enhance the strength of some voters. The Ohio Constitution requires the redistricting commission to follow politically neutral map-drawing practices and directs the commission to attempt to adopt a plan that gives proportional representation, but it does not eliminate the dilution of some electors’ voting strength. The remedy provided by the Constitution may not please all Ohio voters, but this court does not have license to demand by judicial fiat the adoption of a new General Assembly-district plan.
{¶ 278} In the end, none of the complaints filed in these three cases demonstrates petitioners’ entitlement to the relief sought. Because the majority invalidates the General Assembly-district plan even though that power has been denied to this court by the Ohio Constitution, I dissent.
DEWINE, J., concurs in the foregoing opinion.
_________________
FISCHER, J., dissenting.
{¶ 279} I must respectfully dissent. I agree with the conclusion stated in the first dissenting opinion that not one of the complaints filed in these three cases demonstrates that any petitioner is entitled to the relief sought. See dissenting opinion of Kennedy, J., at ¶ 278. I am strongly convinced, however, that it is not even necessary for us to engage in an analysis of the merits of these cases. The text of the Ohio Constitution is clear, and given the allegations in the complaints, this court lacks the authority to act as requested by the petitioners bringing these cases.
I. The plain language of Article XI, Section 8(C)(1)(a) precludes this court from reviewing the plan in these cases
{¶ 280}
{¶ 281} Under
{¶ 282} If, however, at least two commission members representing each of the two largest political parties do not vote for a final General Assembly–district plan after an impasse,
{¶ 283} At the conclusion of that four-year term, if the commission, in adopting a new final General Assembly–district plan, is once again unable to obtain the votes of at least two commission members representing each of the two largest political parties,
{¶ 284}
{¶ 285} Because the phrase “except as provided in Section 9 of this article” is not included in
Just as statutory language suggesting exclusiveness is missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication. The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded.
Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 81, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002). Because
{¶ 287} It is telling that in analyzing the provisions of
{¶ 288} Ohio Senate President Matt Huffman and Ohio House Speaker Robert R. Cupp argue in their supplemental brief that this court “could reasonably construe Section 8(C)(1)(a) as divesting this Court of any authority to review or”
enjoin four-year plans.” The other parties in these cases and the majority opinion, however, fail to offer any reasonable explanation for what the absence of the phrase “except as provided in Section 9 of this article” in
{¶ 289} The
{¶ 290} Similarly,
{¶ 291} And there is an important and revealing lack of parallelism in a provision
{¶ 292} The provision in
{¶ 293} Because the majority opinion ignores the difference in the language, it then also makes phrases such as “except as provided in * * *” found elsewhere in the
{¶ 294} Finally, the legislative history of the joint resolution that proposed the current version of
A. The clear text of Article XI, Section 8(C) prevents review of four-year plans under Article XI, Section 9
{¶ 295} Under the text of the Constitution, and as acknowledged in the complaints, this is an
{¶ 296} These arguments are unavailing because
{¶ 297} It is true that
{¶ 298} Indeed, by omitting the phrase “except as provided in Section 9 of this article,”
{¶ 299} More specifically, when a provision contains no such exception, we cannot add one to its express language. State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 39. The majority opinion‘s exercise of jurisdiction under
{¶ 300} Nor does
{¶ 301} For similar reasons,
B. Speculation regarding the intention of Ohio voters in approving the amendments to the Constitution cannot override the actual text of Article XI of the Constitution as passed by the citizens of Ohio
{¶ 302} In arguing that the text of
{¶ 303} “[O]ur primary concern in construing
{¶ 304} In these cases, intent can easily be ascertained by the plain text of the relevant constitutional provision. As explained above, the meaning and significance of
{¶ 305} Given this clear and express constitutional language, it is not for this court to call the language of
{¶ 306} But it is not for this court to question the wisdom of either the framers of the current
{¶ 307} In not making four-year plans adopted pursuant to
{¶ 308} By not including the phrase “except as provided in Section 9 of this article” in
{¶ 309} Consistently with keeping this court out of the process, in regard to four-year plans,
{¶ 310} But the parties are also presented with a corresponding stick, or cost, if they do not negotiate. If no bipartisan consensus is reached, a majority party faces the cost of having its approved plan last for only four years, under
{¶ 311} Under that same scenario, a minority party also faces a cost for not reaching a bipartisan consensus, namely, it will have to live with a plan that it did not agree to for four years. By ignoring the absence of the phrase “except as provided in Section 9 of this article,” the analysis of the majority opinion effectively eliminates that stick and thus significantly lessens the cost to a minority party for failing to reach a consensus. If members of a minority party do not like the way the process is unfolding, they can simply stop participating in the process and challenge the eventual four-year plan in court. By making four-year plans subject to
{¶ 312} Ultimately, we cannot know what the voters’ individual or collective intent and aims were beyond the specific wording that they approved. If Ohio voters had, and have, a different intent, they may express that intent by amending
{¶ 313} Indeed, the second concurring opinion indicates that the majority opinion may be based on policy motivations: the opinion suggests that Ohio‘s first experience with redistricting under the current version of
{¶ 314} For these reasons, this court should not, and cannot as a matter of law, elevate any speculative intention of voters in approving a constitutional provision above the clear language that those same voters approved. I accordingly conclude that we must honor and follow
II. Even if this court had the authority to review the district plan in these cases, it would still be unable to review it for a violation of Article XI, Section 6
{¶ 315} Even if we assume for the sake of argument that this court had the authority to review a four-year plan pursuant to
{¶ 316} Critically,
{¶ 317} Pursuant to the plain language of
A. In two of the cases before us, the petitioners have failed to allege a violation of Article XI, Section 2, 3, 4, 5, or 7
{¶ 318} In League of Women Voters of Ohio v. Ohio Redistricting Comm., Supreme Court case No. 2021-1193, and Bennett v. Ohio Redistricting Comm., Supreme Court case No. 2021-1198, the petitioners’ complaints challenging the four-year plan allege only violations of
B. In the third case before us, the petitioners have alleged a violation of Article XI, Section 3(B)(2), but that claim is unavailing, precluding this court from reaching the petitioners’ Article XI, Section 6 claims
{¶ 319} In Ohio Organizing Collaborative v. Ohio Redistricting Comm., Supreme Court case No. 2021-1210, petitioners Ohio Organizing Collaborative et al. (collectively, “OOC“) have alleged violations of
{¶ 320} In addressing the merits of the
{¶ 321} In 2019, the United States Supreme Court considered claims alleging that the apportionment of congressional districts in North Carolina and Maryland violated the
{¶ 322} The question in Rucho was whether the claims were justiciable in federal court. Id. at ___, 139 S.Ct. at 2491, 2493-2494. The court began by noting that “[p]artisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.” Id. at ___, 139 S.Ct. at 2494. The court then clarified that partisan gerrymandering is not a per se violation of the United States Constitution: “while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, ‘a jurisdiction may engage in constitutional political gerrymandering.’ ” Id. at ___, 139 S.Ct. at 2497, quoting Hunt v. Cromartie, 526 U.S. 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). The question presented in cases in which the practice of gerrymandering is challenged, then, is not whether partisan gerrymandering occurred but whether the apportioning body went too far. Id. at ___, 139 S.Ct. at 2498, 2501.
{¶ 323} That question, the court concluded, is not justiciable in federal court. Id. at ___, 139 S.Ct. at 2499-2500, 2506-2507. To adjudicate such claims, courts would need “a standard that can reliably differentiate” between constitutional and unconstitutional political gerrymandering. Id. at ___, 139 S.Ct. at 2499. The court determined that no such standard exists. Id.
{¶ 324} The court first rejected the idea that the right to equal protection demands proportional representation: ” ‘The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.’ ” Rucho, ___ U.S. at ___, 139 S.Ct. at 2499, quoting Mobile v. Bolden, 446 U.S. 55, 75-76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion). It then observed that plaintiffs in political-gerrymandering cases—being unable to insist on strict proportionality—essentially ask the courts to determine “how much representation particular political parties deserve—based on the votes of their supporters.” (Emphasis sic.) Id. The court explained that “fairness” is not a manageable standard for a court to administer. Id. at ___, 139 S.Ct. at 2499-2500.
{¶ 325} To illustrate that point, the court set forth several examples of what might be deemed “fair“: a greater number
{¶ 326} Ultimately, the Rucho court held that “partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” Id. at ___, 139 S.Ct. at 2506-2507. Yet the court noted that the states—by statute or in their own constitutions—could “provide standards and guidance for state courts to apply,” for example by removing partisans from the redistricting process, by expressly prohibiting partisan favoritism in redistricting, or by imposing specific requirements for partisan fairness. Id. at ___, 139 S.Ct. at 2507-2508 (citing examples).
{¶ 327} Rucho was decided under the federal Constitution. The question in this case is whether the OOC may achieve a different result under provisions of the
{¶ 328} Historically, this court has held that the Ohio and federal Equal Protection Clauses “are functionally equivalent and require the same analysis.” State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29; see also Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) (“the federal and Ohio Equal Protection Clauses are to be construed and analyzed identically“). But “the
{¶ 329} At least one state court interpreting a state constitution has reached a conclusion contrary to that in Rucho. A three-judge panel of a Superior Court of North Carolina held that claims of political gerrymandering are justiciable under the equal-protection, freedom-of-speech, and free-association guarantees of the
{¶ 330} The OOC also cites two other cases in which state courts held that partisan gerrymandered plans violated provisions
{¶ 331} The OOC asserts that the
{¶ 332} In support, the OOC cites Hamilton v. Fairfield Twp., 112 Ohio App.3d 255, 266, 678 N.E.2d 599 (12th Dist.1996), a case in which the court of appeals struck down a statute allowing a township to unilaterally form a municipality without the consent of its voters. The court invalidated the statute because “the right to vote or otherwise choose whether to form a municipal corporation is a fundamental right guaranteed by
{¶ 333} With such arguments, the OOC makes an absolutely unconvincing case that Ohio‘s Equal Protection Clause provides the manageable standards of review that its federal counterpart lacks. First, the OOC‘s argument that the right to “alter, reform, or abolish” the government translates to the “right to vote on equal terms” is attenuated; the OOC provides no support for its claim that voting for legislative representatives is the “most common” way that Ohioans reform their government. Indeed, the principal case that the OOC relies on, Hamilton, involved the right to vote on the form of government (whether to create a municipality), not the right to vote for representatives within an existing form of government. See Hamilton at 275. And Skaggs dealt with inequality in the rules governing whether votes were to be counted or not counted. Skaggs at ¶ 63. Inequality in the relative weight of those votes was not at issue. And finally, the right to “alter, reform, or abolish” the government is actuated by Ohio voters amending the Constitution, not by electing different representatives to the current government. The OOC thus has not shown that it has a viable claim arising under Ohio‘s Equal Protection Clause.
{¶ 335} The OOC has failed to identify support allowing this court to decide that the
III. Even if this court could review the district plan for a violation of Article XI, Section 6 in these cases, no violation of that section has been proved beyond a reasonable doubt
{¶ 336} Although I do not believe that this court should reach the merits of petitioners’ arguments, given that we do not have the constitutional authority to do so, I note that in addition to the OOC‘s failure of to establish its claimed violation of
{¶ 337} This court interprets the language of a constitutional provision de novo. While we may be swayed by an interpretation presented by the parties, we give no deference to and are not bound by those interpretations; the proper interpretation of a constitutional provision is a duty that lies entirely with this court, as it is purely a question of law. See State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 9 (questions of law are reviewed de novo); Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 13 (the same rules for interpreting statutes apply to interpreting constitutional provisions). Nevertheless, while this court interprets a constitutional provision de novo, this does not diminish petitioners’ burden of proof.
{¶ 338} Generally, the party who makes a facial constitutional challenge to a legislative act has the burden of proving that the legislative act is unconstitutional beyond
{¶ 339} The beyond-a-reasonable-doubt standard prevents this court from becoming a policymaking branch of this state‘s government and helps to maintain the separation of powers inherent in the
{¶ 340} This high standard applies in these cases because, under our precedent, a plan adopted by the redistricting commission must be considered a legislative act. See Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 20. In Wilson, this court determined that the plans created by the Ohio Apportionment Board—the body then responsible for drawing Ohio‘s legislative district maps—should be considered legislative acts because redistricting has been primarily and historically a legislative function. Id. We now have the same situation that we faced in Wilson, and redistricting is still an historically legislative function. It would be unreasonable to apply a different standard. Therefore, the district plan must be treated as a legislative act. And because redistricting is a legislative act, the presumption of constitutional validity applies. See id. at ¶ 21. Thus, petitioners must prove that the plan is unconstitutional beyond a reasonable doubt. Although the majority opinion acknowledges this standard, see majority opinion at ¶ 77, the analysis set forth in the majority opinion falters in applying the standard.
{¶ 341} This court has determined that for a party to succeed on a facial constitutional challenge, the party must demonstrate beyond a reasonable doubt that there is no plausible interpretation of the challenged provision under which the provision would be valid. See Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. The court in Collier, relying on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), stated, “The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid.” Collier at ¶ 37. This court reaffirmed that principle in Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872, 916 N.E.2d 446, ¶ 24. In Ohio Grocers Assn., the court determined that when there are two plausible interpretations of a statute, under one of which the statute is constitutional and under the other it is unconstitutional,
{¶ 342} Important here, this court in Ohio Grocers Assn. specifically recognized that there were competing plausible readings of the legislative act at issue and that the act could thus not be found unconstitutional beyond a reasonable doubt. Id. at ¶ 24. This principle directly informs our analysis in these cases. We have recognized that “it is not enough to show that one plausible reading requires [the legislative act] to be stricken as unconstitutional, when another plausible reading permits it to survive.” Id.; see also Collier at ¶ 37.
{¶ 343} After reviewing the evidence in these cases, the majority opinion and the first dissenting opinion reach different conclusions. The majority opinion proposes a plausible reading of the district plan under which the plan is unconstitutional. Majority opinion at ¶ 131. However, the first dissenting opinion sets forth a competing plausible reading under which the plan is constitutional, determining that the evidence indicates that the redistricting commission made an effort to comply with
{¶ 344} For the reasons stated above and given the evidence before us in these cases, I would conclude that if we could address the
IV. Conclusion
{¶ 345} Contrary to the assertion set forth in the majority opinion, my overriding concern in these cases is not the outcome of the majority‘s analysis. Instead, the most troubling aspect of the majority opinion is that it engages in a merits analysis when
{¶ 346} Notably, neither the majority opinion nor either of the two concurring opinions attempts to answer the basic question raised in this opinion: If
{¶ 347} Most importantly, neither the majority opinion nor either of the concurrences accords appropriate significance to the fact that the complaints filed in all three of these cases and petitioners’ arguments during oral argument demonstrate that the bases for these cases are the impasse procedures under
{¶ 348} There may be more than a little irony in the majority opinion—which shies away from the text and structure of
{¶ 349} By reaching the merits of these cases even though this court lacks the authority to do so—and our authority is established by the
{¶ 350} The saddest and worst result for the citizens of Ohio due to the majority opinion‘s reaching the merits of these cases in order to formulate policy—a role that this court is not designed to do—is that the majority opinion undermines the integrity and good reputation of this
{¶ 351} The majority opinion‘s constitutional analysis is not logical, is not reasoned, and does not properly construe the text of the Constitution, and thus it undermines confidence in this court. The resulting lack of the citizens’ support will harm the judicial branch of Ohio‘s government for generations. Therefore, I respectfully, and sadly, must dissent.
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ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey; American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González, Juliana Goldrosen, David Denuyl, L. Brady Bender, Alexander Thomson, Anupam Sharma, James Hovard, and Yale Fu, for petitioners in case No. 2021-1193.
McTigue & Colombo, L.L.C., Donald J. McTigue, and Derek S. Clinger; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Aria C. Branch, Jyoti Jasrasaria, and Spencer W. Klein, for petitioners in case No. 2021-1198.
Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A. Sutherland, Ben R. Fliegel, Brad A. Funari, and Danielle L. Stewart; and Brennan Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij Rudensky, Michael Li, Harry Black, and Ethan Herenstein, for petitioners in case No. 2021-1210.
Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, and Ashley Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission.
Dave Yost, Attorney General, and Bridget C. Coontz, Julie M. Pfeiffer, and Michael A. Walton, Assistant Attorneys General, and Michael J. Hendershot, Deputy Solicitor, for respondents Ohio Governor Mike DeWine, Ohio Secretary of State Frank LaRose, and Ohio Auditor Keith Faber.
Taft Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson; and Nelson Mullins Riley & Scarborough, L.L.P., Phillip J. Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp.
Ice Miller, L.L.P., Diane Menashe, and John Gilligan, for respondents Senator Vernon Sykes and House Minority Leader Emilia Sykes.
Thompson Hine, L.L.P., Stephanie M. Chmiel, and Mary E. Csarny, urging granting of relief for amicus curiae David Niven, Ph.D.
Andrew W. Garth, City Solicitor, Emily Smart Woerner, Deputy City Solicitor, and Shannon Price, Assistant City Solicitor, urging granting of relief for amicus curiae city of Cincinnati.
Ulmer & Berne, Steven S. Kaufman, Dolores P. Garcia Prignitz, and Sara S. Dorland; and Rob Weiner, Chris Lamar, and Valencia Richardson, urging granting of relief for amicus curiae Campaign Legal Center, in case No. 2021-1193.
The Chandra Law Firm, L.L.C., Subodh Chandra, and Donald Screen; and NAACP Office of the General Counsel, Janette McCarthy Wallace, urging granting of relief for amicus curiae Ohio State Conference of the NAACP, in case Nos. 2021-1193 and 2021-1210.
John M. Haseley, urging granting of relief for amicus curiae We Are Ohio, in case No. 2021-1193.
Isaac, Wiles & Burkholder, L.L.C., Donald C. Brey, and Ryan C. Spitzer, urging denial of relief for amicus curiae Renew Ohio.
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Notes
The supreme court of Ohio shall have exclusive, original jurisdiction in all cases arising under this Article. In the event that any section of this Constitution relating to apportionment or any plan of apportionment made by the persons responsible for apportionment, by a majority of their number, is determined to be invalid by either the supreme court of Ohio, or the supreme court of the United States, then notwithstanding any other provisions of this Constitution, the persons responsible for apportionment by a majority of their number shall ascertain and determine a plan of apportionment in conformity with such provisions of this Constitution as are then valid, including establishing terms of office and election of members of the general assembly from districts designated in the plan, to be used until the next regular apportionment in conformity with such provisions of this Constitution as are then valid.