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.
Slip Opinion No. 2022-Ohio-789
SUPREME COURT OF OHIO
March 16, 2022
Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted March 9, 2022
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-789
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-789.]
Redistricting—Original actions under
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted March 9, 2022—Decided March 16, 2022.)
ORIGINAL ACTIONS filed pursuant to
I. INTRODUCTION
{¶ 1} This is now the third time we are called upon to consider the validity of a General Assembly-district plan adopted by respondent Ohio Redistricting Commission. In League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, ¶ 2 (“League I“), we held that the commission‘s original plan was invalid because the commission had not attempted to meet the standards set forth in
{¶ 2} We hold that petitioners have shown beyond a reasonable doubt that the second revised plan violates
II. BACKGROUND
A. The commission failed to adopt a new plan by February 17
{¶ 3} In League II, we ordered the commission to adopt a new district plan no later than February 17, 2022. League II at ¶ 68. On February 9—two days after the release of League II—respondent Senator Vernon Sykes, a Democratic member and cochair of the commission, sent respondent Speaker of the House Robert Cupp, a Republican member and the other cochair, a letter requesting that the commission
{¶ 4} On February 11, Senator Sykes and House Minority Leader Russo sent a letter to all commission members urging them to meet as soon as possible to comply with the February 17 deadline. They also noted that they were awaiting feedback on the Sykes-Russo plan, and they asked other commission members to share any map proposals so that the commission could “work cooperatively.”
{¶ 5} On February 15—eight days after the release of League II—the commission announced that it would hold a meeting on February 17. Also on February 15, counsel for the petitioners in League of Women Voters of Ohio v. Ohio Redistricting Comm. and in Bennett v. Ohio Redistricting Comm. submitted to the commission an updated version of a proposed General Assembly-district plan created by Dr. Jonathan Rodden (the “Rodden III plan“).3
{¶ 7} At one point during Senate President Huffman‘s comments, Senator Sykes stated again that neither he nor House Minority Leader Russo had received substantive feedback about their proposed Sykes-Russo plan before the meeting. Senator Sykes reminded the other members that this court had directed the commission—not the majority or minority parties—to draw a map and that the commission members would need to work together to comply with the court‘s order. Senate President Huffman responded by saying that in September 2021,
{¶ 8} The commission voted five to two against adopting the Sykes-Russo plan. No other commission member proposed a General Assembly-district plan for consideration at the February 17 meeting. Instead, after a recess, several commission members made statements. Senate President Huffman suggested that it was impossible to draw an entirely new plan within ten days as ordered by this court and that he did not believe the commission could “ascertain” a General Assembly-district plan that complies with the
{¶ 9} The commission adjourned its February 17 meeting without adopting a General Assembly-district plan. The commission did not specify the steps it had taken to attempt to comply with this court‘s order. The next day, the commission filed in this court a “Notice of Impasse.”
B. Respondents are ordered to show cause
{¶ 10} On February 18, petitioners filed motions to require respondents either to explain their reasons for failing to adopt a new General Assembly-district plan or to show cause why they should not be held in contempt. Later that day, this court ordered respondents to show cause by February 23 why they should not be held in contempt for failing to comply with our order in League II. 166 Ohio St.3d 1402, 2022-Ohio-498, ___ N.E.3d ___; 166 Ohio St.3d 1403, 2022-Ohio-498, ___ N.E.3d ___.
{¶ 12} On February 23, respondents filed five separate responses to the show-cause order. Senate President Huffman and House Speaker Cupp argued that a contempt hearing was unnecessary because they anticipated that the commission would vote on a new plan “this week.” At the commission‘s meeting later that day, House Speaker Cupp reported that “progress [was] being made” on a proposed General Assembly-district plan and that the map would be made available soon. House Minority Leader Russo again requested that if work was being done on a map “that the majority caucuses please make their staff available” to the minority members and their staff so that they could “meet to discuss what these maps may look like.”
C. The commission adopts a second revised plan on February 24
{¶ 13} On February 24, respondents were ordered to appear in this court for a March 1 hearing on the show-cause order. 166 Ohio St.3d 1407, 2022-Ohio-518, ___ N.E.3d ___. According to House Minority Leader Russo, also on February 24, House Speaker Cupp informed her and Senator Sykes that DiRossi and Springhetti could meet with them to show them the new proposed General Assembly-district plan. House Minority Leader Russo states that during the meeting with DiRossi and Springhetti, she and Senator Sykes asked whether they would have an
{¶ 14} About an hour later, the commission reconvened and discussed the proposed plan. Presumably referring to himself, House Speaker Cupp, and their map drawers, Senate President Huffman said, “[W]e‘ve been working a lot of these past several days to try to resolve the General Assembly maps,” and it was his understanding that “all of the Republican commissioners” had had an opportunity to review the proposed plan. Senator Sykes asked whether the other Republican commission members had participated in drafting the plan. Senate President Huffman responded: “I don‘t have a daily log or diary of what each of the other six members of the commission did. Everyone‘s had a chance to see it, make comments, suggestions, whatever it may be.”
{¶ 15} After a recess, Senate President Huffman and House Speaker Cupp spoke in favor of the newly proposed plan. They indicated that the plan complied with this court‘s orders and had 54 Republican-leaning and 45 Democratic-leaning seats in the House and 18 Republican-leaning and 15 Democratic-leaning seats in the Senate. House Speaker Cupp further said that the plan had been “developed anew” and that about 73 percent of the districts were different from those in the commission‘s first revised plan. And he noted that in the House, the first revised district plan had had 12 “asymmetrical districts, as defined by the court” but that the newly proposed plan had “only five asymmetrical districts.”5
{¶ 16} Senator Sykes expressed disappointment that other commission members were expecting him to vote on a proposed plan that he had received only hours earlier and without having had any opportunity to give input on the plan. He asked how the commission had complied with this court‘s directive that the commission itself—rather than individual commission members—engage in map drawing. Senate President Huffman replied, “[W]e‘re here now and we can talk about it.” Senator Sykes and House Minority Leader Russo expressed concerns about the increased number of districts leaning Democratic by a margin of only 50
{¶ 17} Because both Democratic members of the commission voted against the plan, it did not have the bipartisan support required by
{¶ 18} The “Article XI, Section 8(C)(2) Statement” adopted by the commission members who voted for the second revised plan noted that the commission had drawn an entirely new plan that met strict proportionality. The statement further noted that staff for all commission members had had access to the map drawers and that all commission members had been included in the map-drawing process. And the statement indicated that the second revised plan “addressed the asymmetry problem” identified in League II by having only five House districts and two Senate districts with a “partisan lean between 50 and 50.99%,” which was the “same number of asymmetric House and Senate districts” found in the Sykes-Russo plan.
{¶ 19} Senator Sykes and House Minority Leader Russo submitted a separate statement indicating that the second revised plan failed to satisfy the
D. Petitioners file objections
{¶ 21} Petitioners in all three cases filed objections to the adoption of the second revised plan, arguing that it violates
{¶ 22} Respondents submitted five separate responses to the objections. The commission members who voted to adopt the second revised plan argue that it complies with both
III. ANALYSIS
A. The burden and standard of proof
{¶ 23} As we noted in our prior decisions in these cases, a district plan adopted by the commission is presumptively constitutional. E.g., League I,
B. Article XI, Section 6(A)
{¶ 24}
{¶ 25} To start, evidence again shows that the commission did not follow the process that
{¶ 26} In League I, we noted that Senate President Huffman and House Speaker Cupp had controlled the map-drawing process to the exclusion of the minority-party and other commission members. League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 118-120. And in League II, we observed that although the first revised plan had been adopted through more collaboration, the map-drawing process had still been controlled by Republican map drawers who answered only to Senate President Huffman and House Speaker Cupp. League II at ¶ 34. Senate President Huffman and House Speaker Cupp‘s nearly exclusive control over the first two rounds of map drawing was strong evidence of partisan intent. See League I at ¶ 120, quoting Davis v. Bandemer, 478 U.S. 109, 129, 106 S. Ct. 2797, 92 L. Ed. 2d 85 (1986) (plurality opinion), abrogated on other grounds
{¶ 27} The evidence here is just as strong, if not stronger. The Democratic members of the commission had no opportunity to provide input in creating the second revised plan, and they had no meaningful opportunity to review and discuss it or to propose amendments once it was presented at the commission hearing on February 22, 2022.
{¶ 28} According to Senator Sykes, when the commission failed to adopt a plan by the February 17 deadline and House Speaker Cupp declared an impasse, the Republican commission members gave no indication that they were going to continue trying to develop a new district plan. In fact, Senate President Huffman said during the February 17 meeting of the commission that he did not think that it was possible to draw a compliant plan. And Secretary LaRose said that DiRossi and Springhetti had told him that the commission cannot “constitutionally do what the court majority has asked [the commission] to do.” Senate President Huffman and House Speaker Cupp did not reveal that they were working on a new district plan until the commission meeting on February 22, when congressional redistricting was on the agenda and after this court had issued the show-cause order in these cases. At that point, Senate President Huffman told members of the media that he and House Speaker Cupp had been working on a new plan since February 11. Neither Senator Sykes nor House Minority Leader Russo had been included in that process. Moreover, it is clear that the commission again adopted a plan drawn by employees of the Republican caucuses, who, as even Secretary LaRose acknowledged (at the February 17, 2022 commission meeting), “work for the speaker and for the president.” See League I at ¶ 119-120; League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 34.
{¶ 29} Similarly, not until 12:30 p.m. on February 24—the day the commission voted on and passed the second revised plan—were the minority-party commission members given a copy of the proposed plan for review. According to
{¶ 30} The process leading to the adoption of the second revised plan was at least as one-sided as the process that we found problematic in League I and even more one-sided than the process addressed in League II. Senate President Huffman and House Speaker Cupp did not allow the minority-party commission members to provide input on the second revised plan, much less let them participate in its creation. Nor does the record indicate that the other members of the commission—the statewide officeholders—engaged in any map drawing. According to House Minority Leader Russo, Secretary LaRose told her that he did not have staff with the technical expertise to draw maps. As before, the process was controlled entirely by Senate President Huffman and House Speaker Cupp. Just as in League I and League II, the one-sided process is evidence of an intent to draw a plan that favors the Republican Party at the expense of the Democratic Party. The commission should retain an independent map drawer—who answers to all commission members, not only to the Republican legislative leaders—to draft a plan through a transparent process.
{¶ 31} In all three of our opinions in these cases, we have identified a flawed process in which the General Assembly-district plan adopted by the commission has been the product of just one political party. The first dissenting opinion posits that our decision operates to “micromanage the commission,” dissenting opinion of Kennedy and DeWine, JJ., ¶ 67, and to compel its seven members to “gather around a computer with the redistricting software and jointly draft a plan,” id. at ¶ 68. But nothing in League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, or our opinion today suggests that we expect seven commission members to have “seven hands on the computer
{¶ 32} The evidence shows that the map-drawing process for all three districting plans we have reviewed has been controlled by the Republican Party. The evidence shows that the individuals who controlled the map-drawing process exercised that control with the overriding intent to maintain as much of an advantage as possible for members of their political party. The commission has again adopted a plan in which a disproportionate number of toss-up districts are labeled Democratic-leaning. The second revised plan includes 19 Democratic-leaning House districts in which the Democratic vote share is between 50 and 52 percent. And it includes at least seven Senate districts in which the Democratic vote share is in that range. There are no Republican-leaning House or Senate districts that have a Republican vote share that is less than 52.7 percent. Indeed, only two Republican-leaning House districts have a Republican vote share of less than 55 percent, and no Republican-leaning Senate districts have a Republican vote share of less than 54 percent.7 The result is that the 54 percent seat share for Republicans is a floor while the 46 percent share for Democrats is a ceiling—an
{¶ 33} To be clear, the presence of toss-up districts in the plan is not alone the basis of our determination. The core of our determination is the plain language of
{¶ 34} In League II, we held that “the quality of partisan favoritism” in the first revised plan was “monolithically disparate” because “every toss-up district [was] a ‘Democratic district.’ ” (Emphasis sic.) League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 40. We explained that when a plan labels every “competitive” or “toss-up” district as a Democratic-leaning one, that is evidence of intent to favor the Republican Party. Id. The second revised plan bears the same hallmarks of improper partisan intent. The evidence shows—overwhelmingly—that the individuals who drafted the second revised plan
{¶ 35} The first dissent suggests, however, that this court lacks the constitutional authority to determine whether the commission has acted primarily to favor Republicans and disfavor Democrats because we do not have judicial authority to review the “subjective requirements” of
{¶ 36} As a final matter, we note that Senate President Huffman appears to have voted against the Sykes-Russo plan based, at least in part, on a misunderstanding of
C. Article XI, Section 6(B)
{¶ 38}
{¶ 39} The second revised plan reduces the number of Democratic-leaning districts with a Democratic vote share between 50 and 51 percent, but it dramatically increases the number of Democratic-leaning districts with a Democratic vote share of 52 percent or less. As explained above, under the second revised plan, there are 19 House districts and 7 Senate districts—43 percent of all Democratic-leaning districts—that have Democratic vote shares between 50 and 52 percent. There are no Republican districts with a vote share less than 52.7 percent.
{¶ 40} In League II, we did not define the outside limit of what makes a district competitive. We did not need to, because the districts at issue—those between 50 and 51 percent—were “surely” competitive “under any reasonable measure” and therefore had to be excluded from the proportionality assessment. Id. The question now is whether districts between 51 and 52 percent can be allocated to a political party for purposes of the proportionality assessment. That is, we must determine whether districts with vote shares in that range “favor” a political party within the meaning of
{¶ 41} The expert evidence discussed above leads us to conclude that the 26 districts in the second revised plan with a Democratic vote share between 50 and 52 percent do not “favor” the Democratic Party. Indeed, the evidence shows that those districts represent the foundation of a politically asymmetric plan. According to Dr. Latner, with a two-point statewide swing in their favor, Republicans could expect to win 74 percent of House seats and 79 percent of Senate seats under the second revised plan. The same two-point statewide swing favoring Democrats would result in no seat gains for the Democratic Party in either the House or the Senate. Dr. Rodden opines that even with “a truly historic 7 percentage point uniform swing in favor of the Democrats” (meaning that their statewide vote share rose to 53 percent), the Democrats still would not gain a majority of seats in the House. According to Dr. Rodden, Democrats would need to obtain “a truly
{¶ 42} Based on this evidence, we conclude that the sub-52-percent districts allocated to the Democratic Party under the second revised plan are “competitive” districts and, under our holding in League II, must be excluded when assessing the plan‘s overall proportionality. See League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 62. When the 26 so-called Democratic-leaning districts in that range are excluded, the second revised plan has 72 Republican districts and 34 Democratic districts, for a total of 106 non-excluded districts. This gives Republicans a 67.9 percent share of the non-excluded districts (72 out of 106) and Democrats 32.1 percent (34 out of 106). That disproportionality is further from even the original plan we invalidated in League I, in which 64.4 percent of the districts favored Republicans. League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 105. The second revised plan thus does not “correspond closely” to the statewide preferences of Ohio‘s voters and violates
{¶ 43} In reaching this conclusion, we note, again, that the existence of competitive districts is not inherently problematic. The gross and unnecessary
IV. CONCLUSION
{¶ 44} We sustain petitioners’ objections relating to the second revised plan‘s violation of
{¶ 45} We further order the commission to file the district plan with the secretary of state no later than Monday, March 28, 2022, and to file a copy of that plan in this court by 9:00 a.m. on Tuesday, March 29, 2022. We retain jurisdiction for the purpose of reviewing the new plan.
{¶ 46} Petitioners shall file objections, if any, to the new plan, by 9:00 a.m., three days after the new plan is filed in this court. Respondents shall file responses, if any, to the objections, by 9:00 a.m., three days after the objections are filed. If the deadline for the objections or responses falls on a Saturday, Sunday, or holiday, then the objections or responses shall be filed by 9:00 a.m. on the next business day. Petitioners shall not file a reply or any motion for leave to file a reply. The clerk shall refuse to accept any filings under this paragraph that are untimely or prohibited.
{¶ 47} No requests or stipulations for extension of time shall be filed, and the clerk of this court shall refuse to file any requests or stipulations for extension of time.
Objections sustained in part.
O‘CONNOR, C.J., and DONNELLY and STEWART, JJ., concur.
BRUNNER, J., concurs, with an opinion.
KENNEDY and DEWINE, JJ., dissent, with an opinion.
FISCHER, J., dissents, with an opinion and joins paragraphs 138-143 of the dissenting opinion of Justices Kennedy and DeWine.
BRUNNER, J., concurring.
{¶ 49} I fully join the majority opinion, but I write separately to address the contentions set forth in both dissenting opinions that
{¶ 50} That elections will occur in our system is a given, regardless of whether they occur in a year following redistricting. When the redistricting process is interjected with abject and continuous refusals to abide by the requirements of our Constitution and the orders of this court, remedies may become consequences in order to permit an election to happen, promoting both ballot access by candidates and voter enfranchisement. Driving litigation to the brink of making it impossible to hold an election is not a substitute for nor a permissible threat against doing what is necessary to draft a district plan that complies with
{¶ 51} The dissents emphasize that because the Ohio Redistricting Commission is comprised of partisan elected officials,
conclusion. For example, the Constitution does not limit the number of political parties to two. See
{¶ 52} The tenor of this “let politics decide politics” approach is not grounded in the Ohio Constitution. Rather, it is an oversimplistic, myopic, parochial, two-party view that would have us look askance at our duties and treat the redistricting process as a political duel or mud-wrestling match between political competitors to decide a very serious endeavor: the decennial exercise adopted by the voters of Ohio to ensure fair and accurate representation in the government.
{¶ 53} The colored map of Ohio inserted into the first dissenting opinion showing a single year‘s (2020) partisan statewide general-election results is not evidence submitted by any party in these cases. See dissenting opinion of Kennedy and DeWine, JJ., ¶ 89. It was created by or on behalf of one or both drafters of that dissenting opinion to make a point that is not based in the Constitution. Article XI, Section 6(B) requires that 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 * * * correspond closely to the statewide preferences of the voters of Ohio.” (Emphasis added.) The first dissenting opinion‘s map is an attempt to support the specious arguments that Ohio is hopelessly divided into Democratic-leaning urban areas and Republican-leaning rural areas and that Ohio is now so “red” (based on one year‘s election results) that its political geography makes it impossible to draw a constitutionally compliant plan.
{¶ 54} The first dissenting opinion then seems to argue that due to Ohio‘s political geography, applying
{¶ 55} Thus, if we identify districts that are not truly competitive but, rather, are “toss-up” districts, we must discount the genuineness of the intent in creating them, especially when such districts are compared to districts in which there is a clearer majority. Toss-up districts do not go in the column of districts that lean toward one party or another. When a plan containing all the districts is analyzed and the districts are compared for their partisan leaning, this court is authorized to find a lack of proportionality under
{¶ 56} The first dissenting opinion goes on to offer a flowchart and a sentence diagram, presumably to try to explain its application of the plain language of Article XI. Again, neither of those representations are evidence in the record, and at best, they seem to be offered as illustrative support for arguments that propel more vitriol than constructive commentary.
{¶ 57} The first dissenting opinion‘s complete denial of this court‘s discretion in analyzing a district plan under
{¶ 58} The plain language of Section 6 authorizes this court to use its discretion in analyzing a district plan when the evidence calls for it. There is no doubt that this is one of those instances. It is to that end that the majority opinion leans, and not toward a partisan purgatory that will never provide the fairness for which Ohio voters have so long yearned and which prompted them to adopt the amendments to Article XI.
KENNEDY and DEWINE, JJ., dissenting.
{¶ 59} The majority decrees electoral chaos. It issues an order all but guaranteed to disrupt an impending election and bring Ohio to the brink of a constitutional crisis. It does so through an edict that finds no grounding in the text of the Constitution but instead is merely the latest manifestation of the majority‘s shifting whims.
{¶ 60} Three times now, the Ohio Redistricting Commission has enacted a General Assembly-district plan. And three times now this court has struck down the enacted plan. In the last go-round, we pointed out that the majority had shifted the goalposts by imposing new requirements found nowhere in the Ohio Constitution and not suggested in its first opinion. League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, ¶ 115 (Kennedy and DeWine, JJ., dissenting) (”LWV II“). Today, the majority tears down those goalposts altogether. It ignores the standards set forth in the Constitution. And now that the rationales manufactured in its previous opinions counsel in favor of upholding the latest plan (“the second revised plan“), see League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___ (”LWV I“); LWV II, the majority ignores those too. Its latest command to the commission is simply this: What the Constitution says doesn‘t matter—bring us a map that will achieve the political outcomes we desire. We‘ll know it when we see it.
{¶ 61} The majority gives two reasons for invalidating the second revised plan, neither grounded in the Constitution. First, it complains that the seven commissioners did not cooperate and jointly draft the plan. And second, even
{¶ 62} No one at this point can fairly call what the majority is doing the act of judging. It does not assess the plan against constitutional standards. Rather, it has commandeered the redistricting process—only instead of moving the redistricting software to the Thomas J. Moyer Ohio Judicial Center, it has forced the commission to attempt to draw the map of the majority‘s mind‘s eye. Alexander Hamilton promised that judges would exercise “neither force nor will, but merely judgment.” The Federalist No. 78. The majority proves Hamilton overly optimistic.
{¶ 63} Through its actions today, the majority undermines the democratic process, depriving the voters of the constitutional amendment they enacted and leaving in its place only the majority‘s policy preferences. In so doing, it threatens the very legitimacy of this court.
{¶ 64} We adhere to our view that this court‘s review is not so far reaching as the majority believes and would hold that a General Assembly-district plan cannot be invalidated absent a violation of the express and objective map-drawing requirements of
I. The majority tears down the goalposts it erected and imposes new standards found nowhere in the Constitution
{¶ 65} At the outset, it is important to reiterate that we should not be here at all.
{¶ 66} In our dissents in LWV I and LWV II, we repeatedly detailed the court‘s lack of authority to do what the majority keeps doing, so we will save further discussion on that point for Part III of this dissent. Instead, we start by explaining that even putting aside the court‘s lack of authority to order yet another new map, what the majority does today is inconsistent with both the text of the Constitution and the goalposts set by its previous opinions.
A. Seven hands on the computer mouse
{¶ 67} Perhaps the most remarkable thing about the majority‘s opinion today is its new “seven drafters working together” requirement. One of the majority‘s principal justifications for finding the second revised plan unconstitutional has nothing to do with the plan itself; rather, the majority deems the plan unconstitutional because “the commission did not follow the process that [Section 1 of] Article XI requires.” Majority opinion, ¶ 25. Although the majority represents that it will not address arguments related to
{¶ 68} In the majority‘s view,
{¶ 69} This, of course, is ludicrous. Go back to the sentence the majority finds all important: “The commission shall draft the proposed plan in the manner prescribed in this article.” Section 1(C). For the majority‘s reading to even begin to make sense, “commission” would instead need to say “commissioners.” But more to the point, the majority ignores the last clause of the sentence it relies on: “in the manner prescribed in this article.”
{¶ 70} Article XI prescribes in Section 1(A) that the “Ohio redistricting commission shall be responsible for the redistricting of this state for the general assembly.” To discharge that duty, the commission “shall adopt” a General Assembly-district plan. Section 1(C); see also Section 9(D)(1) (requiring that all plans be “approved by the commission“). Article XI then provides that some actions of the commission require a bipartisan vote. There must be bipartisan agreement to approve a map that lasts ten years. Section 8(B). There also must be bipartisan agreement to adopt rules, hire staff, and expend funds. Section 1(B)(2). Pursuant to this delegation, the commission unanimously adopted Commission Rule 09: “Any member of the Ohio Redistricting Commission, person, or organization may submit for the consideration of the Commission a proposed general assembly district plan.” Ohio Redistricting Commission Rules, Rule 09, Redistricting plans, https://redistricting.ohio.gov/assets/organizations/redistricting-commission/events/commission-meeting-august-31-2021-16/ohio-redistricting-commission-rules.pdf#page=1 (accessed March 15, 2022) [https://perma.cc/F6DM-D4EW].
{¶ 71} Nonetheless, the commission is composed of partisan elected officials, and therefore Article XI anticipates that bipartisan agreement may not always be possible to obtain. It creates a default rule that (save for specific, contrary provisions), “a simple majority of the commission members is required for any action by the commission.”
{¶ 72} Nor is the commission required to draft all plans as a body. Instead, if the commission reaches an impasse, it “shall introduce a proposed general assembly district plan by a simple majority vote of the commission.”
{¶ 73} The majority‘s rule is patently ridiculous. It never explains how a plan that is introduced and adopted by a simple majority can somehow have been collectively drafted. The Constitution provides for the impasse procedure exactly because such agreement is not always—or even likely—possible when the balance of political power is at stake.
{¶ 74} The second revised plan was introduced and approved by the commission.
{¶ 75} If one needs further proof of the folly of the majority‘s reasoning, consider that pursuant to the commission‘s rules, several members of the public submitted plans to the commission. Under the majority‘s position today, had the commission decided to adopt one of the public proposals, that would have violated the Constitution because the commission—more precisely, its seven constituent members—must “draft” the plan. The same would hold true had the commission adopted Senator Sykes‘s proposed plan or any of the plans drafted by Dr. Jonathan Rodden, one of petitioners’ experts.
{¶ 76} Indeed, anyone who has ever served on a committee recognizes that the work of a committee is rarely, if ever, done jointly by all the members of the committee. Legislative committees are routinely tasked with preparing reports. The members do not sit down together and jointly write the report. Instead, a report is drafted by legislative staff and voted on by the whole committee. Almost invariably, there are those who disagree—leading to majority and minority reports.
{¶ 77} The same is true for this court. The majority issues a per curiam opinion. But one can be sure that the four members in the majority did not sit down jointly at a computer and take turns keying in words. And of course, those of us in dissent played no part in writing today‘s per curiam opinion.
{¶ 78} We often celebrate the “drafters” of our federal Constitution. But no one believes its 39 signatories jointly worked through every word and clause. Rather, it is known from James Madison‘s Notes and other sources, see 2 Farrand, The Records of the Federal Convention of 1787 (Rev.Ed.1966), that the convention delegates were assigned to various committees. Only five of our Founding Fathers served on the Committee of Style and Arrangement credited with producing the final draft, yet we still remember their 34 fellow delegates as “drafters” of the charter.
{¶ 79} What the majority demands belies common sense. One can just imagine seven people looking at a computer screen, each with their own ideas about which direction to move the cursor. Do the members vote on every toggle of the mouse? Solve disputes through games of rock, paper, scissors? Or is it more of a scrum, with the strongest prevailing?
{¶ 80} The majority‘s complaint is that the Republicans did not work together with the Democrats. But that lament is as old as our two-party system. Small wonder that the Constitution incentivizes bipartisanship and imposes a consequence for lack of cross-aisle cooperation. See
{¶ 81} Nothing in the Constitution requires the seven commissioners to sit down together to draft the plan—effectively handing each one of them an unbridled veto power. Nothing in the majority‘s previous opinions established this as a requirement to adopt a valid plan. And certainly nothing in the Constitution gives this court the authority to invalidate a plan for failure to comply with this made-up requirement. Under Section 9(D)(3), the court‘s remedial authority is triggered only by a violation of Section 2, 3, 4, 5, or 7. This court has no business micromanaging the procedures by which the commission discharges its duty to “adopt” a plan. See Youngstown City School Dist. Bd. of Edn. v. State, 161 Ohio St.3d 24, 2020-Ohio-2903, 161 N.E.3d 483, ¶ 20 (lead opinion of O‘Connor, C.J.) (“It is not our role to police how the amended language came into existence“); id. at ¶ 36, quoting Miller v. State, 3 Ohio St. 475, 484 (1854) (Kennedy, J., concurring in part and concurring in judgment only in part) (courts are not “authorized to supervise every step of legislative action, and inquire into the regularity of all legislative proceedings that result in laws“).
B. Perfect proportionality is not good enough for the majority
{¶ 82}
1. Shifting the goalposts on statewide proportionality
{¶ 83} In LWV I, the majority read the word “attempt” out of Section 6(B) and held that the provision actually mandates that the commission draw a plan with a partisan makeup that closely corresponds with statewide voter preferences if it is possible to do so. LWV I at ¶ 88. In LWV II, the court read the word “closely” out of the provision and suggested that a plan needed to exactly correspond to statewide voter preferences. LWV II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 63, 64. That measure, it proclaimed, is “a foundational ratio created not by this court or by any particular political party but instead etched by the voters of Ohio into our Constitution.” Id. at ¶ 64.
{¶ 84} In response, the commission did exactly what the majority demanded. It drew a plan in which “[t]he statewide proportion of districts whose voters * * * favor each political party” matched exactly the “statewide preferences of the voters of Ohio,” Section 6(B). The second revised plan is perfectly proportional, matching the 54-46 percent partisan makeup of Ohio voters.
{¶ 85} Unbelievably, the majority now says that even perfect proportionality is not good enough. Given the standardless judging exhibited in LWV I and LWV II, it comes as no surprise that the majority introduces a new formula. Even though the Constitution says that statewide proportionality is to be assessed by comparing the proportion of districts that “favor” each political party, Section 6(B), the majority looks at individual districts and determines that those that favor a political party by less than 2 percent should be excluded from the calculation. It then holds that the plan is unconstitutional because if one replaces the formula set forth in the Constitution with the majority‘s new formula, the plan fails to meet the Constitution‘s proportionality requirement. Confused? We certainly are. High marks to the majority for creativity, but nothing in the Constitution supports the exclusion of competitive districts—Section 6(B)‘s terms address statewide proportionality and therefore include all districts.
2. Shifting the goalposts on competitive districts
{¶ 86} The majority also shifts the goalposts on what counts as a competitive district. In LWV I, the majority held that Section 6(B) simply required
{¶ 87} Of course, the Constitution does not preclude super-competitive districts—in fact, they are laudable in a democracy. See Rucho v. Common Cause, ___ U.S. ___, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019). Indeed, the more competitive a district, the more an election will be decided by voter preference and candidate quality rather than simple partisan voting patterns. The Ohio Constitution requires an assessment of “districts whose voters * * * favor each political party.”
{¶ 88} But, alas, poor Charlie Brown has had the football yanked away again. Now, the majority says that even districts in which Democrats have a 2 percent advantage do not count as districts that ” ‘favor’ [the Democratic] party.” Majority opinion, ¶ 41. If the majority is going to create new requirements not found in the Constitution, it would certainly be nice if it would give the commission a little advance warning.
{¶ 89} The majority objects to the outsized number of Democratic-leaning competitive districts. But that is simply a function of political geography. Just look at a map of Ohio‘s Republican vote share by county in the last presidential election:9
{¶ 90} Every expert who has opined on the matter in these cases agrees that because Democratic voters are concentrated in a few urban areas and Republican voters predominate in large rural swaths of the state, there are limited geographic areas in which Democratic-leaning districts can be created. LWV I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 128. A natural function of this political
{¶ 91} Indeed, at the time of the amendment‘s enactment the former chairman of the Ohio Democratic Party explained that
computer modeling showed the process [under the amended version of Article XI] likely would not give Democrats a majority.
“When you get modeling back that says you‘re confining yourselves to a permanent minority and Democrats will never get to 50, that gave many people pause,” said state Democratic chairman David Pepper * * *. “We weren‘t looking for, and we didn‘t find, any models that showed we could guarantee ourselves a majority. Frankly, that would be gerrymandering just like in the past * * * the most important change is there would be many more competitive races.”
(Emphasis added and second ellipsis in original.) Vote yes on Issue 1, Columbus Dispatch (Sept. 27, 2015) 5J.
{¶ 92} The majority, though, never acknowledges the undisputed evidence about the challenges inherent in creating sufficient Democratic-leaning districts to satisfy the proportionality requirement. Instead, it makes much of the fact that 19 Democratic-leaning districts are competitive and cites expert testimony stating that a 2 percent change in the voting preferences of Ohioans would cause Democrats to lose these districts. In doing so, the majority relies on predictions of future
{¶ 93} In demanding that the commission adopt a plan designed to guarantee Democratic wins, even in the face of changing voter preferences, the majority compels what the Constitution forbids: gerrymandering. This is the same majority that decried gerrymandering in Adams v. DeWine, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, ¶ 2. Gerrymandering, it said, “is an abuse of power * * * that strategically exaggerates the power of voters who tend to support the favored party while diminishing the power of voters who tend to support the disfavored party.” Id. Abandoning its pretense of upholding democratic principles, the majority makes clear today that notwithstanding the quality of candidates, the performance of incumbents, or the issues that matter to voters and drive turnout, winners and losers in statehouse elections must not be chosen on election night but instead must be preordained by the commission‘s plan.
3. Shifting the goalposts on alternative “more proportional” plans
{¶ 94} In concluding in LWV I that the enacted plan unduly favored the Republican Party, the majority pointed to a plan prepared by Dr. Rodden, one of petitioners’ expert witnesses, as evidence that it was possible to draw a more proportional plan that complied with constitutional requirements. LWV I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 126. The Rodden plan contained 57 Republican leaning House districts and 18 Republican leaning Senate districts. (It turned out that Dr. Rodden‘s plan did not comply with constitutional requirements—a fact petitioners were forced to admit in a filing to the court after LWV I was decided.) In LWV II, the majority pointed to a plan prepared by Democratic Party operative Chris Glassburn—apparently finalized only after the commission had adopted the first revised plan—as evidence that it was possible to draw a more proportional plan. LWV II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___,
{¶ 95} On this go-round, though, the majority throws out its previous benchmarks. The second enacted plan contains more Democratic-leaning districts than the Rodden plan, which the majority held up as a model in LWV I, and it contains exactly the same number as the Glassburn plan. But now that those benchmarks counsel upholding the plan, they apparently no longer matter.
{¶ 96} Notably absent from the majority opinion is any reference to a map that is more proportional than the second enacted plan. And for good reason. One does not exist. It is telling in this regard that the plan that petitioners would have this court order the commission to adopt actually creates fewer districts that favor the Democratic Party than the second revised plan.
4. Shifting the goalposts on statistical measures
{¶ 97} A revealing feature of these three cases is the shifting use of statistical measures by petitioners’ experts and the majority. Instead of applying a consistent set of measures to fairly assess each of the three plans, the petitioners and the majority have simply cherry-picked statistics to support their favored outcomes.
{¶ 98} For example, in LWV I, the majority relied heavily on Dr. Kosuke Imai‘s 5,000 simulated plans to show that the commission could have drawn a more proportional plan and that it could have done so without disfavoring Democrats. LWV I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 112. In LWV II, the majority relied on Dr. Imai‘s 5,000 simulated plans to contend, incorrectly, that the first revised plan was an outlier. LWV II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 43. In fact, the first revised plan was more proportional than most of Dr. Imai‘s 5,000 plans: “the average of the 5,000 plans he generated contained 79 total Republican-leaning districts (60 percent) and 53 total Democratic-leaning districts (40 percent).” Id. at ¶ 110 (Kennedy and DeWine, JJ., dissenting).
{¶ 99} So what does Dr. Imai have to say about the second revised plan? Crickets. Petitioners this time have offered no analysis from Dr. Imai. Sometimes what is not said tells more than what is.
{¶ 100} Dr. Imai had also opined that the first revised plan was an outlier when analyzed under four political-science measures of partisan bias—efficiency gap, mean-median gap, partisan symmetry, and declination. Other than partisan symmetry, there is no evidence presented regarding the three other metrics. For example, Dr. Christopher Warshaw‘s affidavits in support of the first and second sets of objections analyzed the efficiency gap, mean-median gap, and declination of the various plans, but he did not address those metrics at all in his affidavit supporting the third set of objections. It does not require a tremendous leap of logic to infer why this type of evidence is missing today.
{¶ 101} Petitioners point to the plan‘s partisan asymmetry, contending that some, if not all, of the competitive districts that lean Democratic based on prior election results should be counted as Republican districts. Respondents, on the other hand, point to Dr. Michael Barber‘s explanation that the commission‘s second revised plan creates an efficiency gap—the number of “wasted” votes above 50 percent plus 1 that a party receives—that favors Democrats in both chambers of the General Assembly. But nary is there a mention of any of this in the majority opinion. Once again, the majority selectively incorporates only the evidence that can support its chosen outcome.
{¶ 102} Further, in LWV II, the majority indicated that the Democratic-leaning districts were too competitive because “a 1 percent swell in Republican vote share would sweep [those] 12 additional districts into the Republican column.” LWV II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 40. That no longer applies under the second revised plan, so the majority now asserts that a 5 percent swing of votes in favor of the Republican Party would result in 23 more Republican seats while an inverse swing would net the Democrats at most two seats. See majority opinion at ¶ 33. The majority is simply rewriting the rules as it goes along to create the appearance that its holding stands on law and principle rather than the need to reach a chosen outcome.
C. The majority‘s curious treatment of double bunking
{¶ 103} There is another aspect of the majority opinion that bears mention. The majority criticizes Senate President Huffman for expressing concern that the
{¶ 104} The majority is correct that Article XI does not explicitly prohibit double-bunking incumbents in the same district. Yet, contrary to the majority‘s assumption, courts have recognized that maintaining incumbents in their home districts is a legitimate goal in adopting a district plan. See, e.g., Karcher v. Daggett, 462 U.S. 725, 740 (1983); Harper v. Hall, 2022-NCSC-17, ¶ 170. The practice of protecting incumbents is “neutral” and “time-honored.” See Vieth v. Jubelirer, 541 U.S. 267, 300 (2004) (lead opinion of Scalia, J.); see also Rucho, ___ U.S. at ___, 139 S.Ct. at 2500 (protecting incumbents is a “traditional” districting criteria). Incumbency considerations do not evince an intent to favor or disfavor a political party, particularly here because the commission avoided double-bunking incumbents of both parties.
II. The second revised plan is constitutional
{¶ 105} The majority‘s conclusion that the second revised plan violates sections 6(A) and 6(B) rests on two faulty premises: (1) that only a plan that is collectively drafted by all seven members of the commission is valid; and (2) that competitive districts with a margin of less than 2 percent should not be counted in
A. The plan complies with Article XI, Section 6(A)
{¶ 106} The majority concludes that because all seven commissioners did not jointly draft the second revised plan, there is a violation of Section 6(A)‘s requirement that the commission attempt to draw a plan that is not drawn primarily to favor a political party. But the Constitution specifically authorizes a simple majority of the commission to enact a plan. Sections 8(A) and (C). The second revised plan was enacted by the commission in accordance with all commission rules and all constitutional requirements. Just because the majority does not like the process created by Article XI does not mean that the second revised plan unduly favors the Republican Party.
{¶ 107} Furthermore, it is manifest that the commission drafted the plan to comply with the neutral map-drawing requirements of Sections 2, 3, 4, 5, and 7 as well as its directory duty to achieve partisan proportionality. The evidence simply does not establish that the commission attempted to draw the second revised plan with the primary purpose to favor or disfavor a political party.
{¶ 108} The majority contends that the commission acted primarily to favor Republicans and to disfavor Democrats by drawing a number of “competitive” Democratic-leaning districts without also drawing a proportionate number of “competitive” Republican-leaning districts. But the evidence does not support the majority‘s implicit assumption that it was possible to comply with the objective map-drawing requirements of Sections 2, 3, 4, 5, and 7 and this court‘s judge-made rule that the plan must provide proportional representation while also ensuring that all Democratic-leaning districts are essentially safe enough to result in a proportional number of Democratic victories over the life of the plan. No map presented to the commission or to this court has achieved that. And the fact that the commission failed to do the impossible does not prove that it drew the second revised plan primarily to favor or disfavor a political party.
{¶ 109} In fact, it is petitioners who seek a partisan plan. They ask for less proportionality and fewer Democratic-leaning districts in order to receive safer, more solidly Democrat districts. They therefore recognize that proportionality and safe Democratic districts are incompatible with Ohio‘s political geography. But nowhere does Article XI ensure safe seats. With the second revised plan, the commission has gone from Republicans being favored to win 85 House and Senate seats to the Democrats’ 47, see LWV I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 24, to what is currently a perfectly proportional division of districts in a 72-60 split. How is an attempt to create 13 more districts that favor the Democratic Party primarily an attempt to disfavor the Democratic Party?
B. The plan complies with Article XI, Section 6(B)
{¶ 110}
{¶ 111} Nowhere does Article XI guarantee symmetry such that both political parties have the same number of “safe” seats and the same number of “competitive” seats. Instead,
{¶ 112} Once the majority‘s faulty premises are stripped away, there is no basis on which to sustain petitioners’ objections. We would overrule the objections and sustain the constitutionality of the second revised plan.
III. It did not have to be this way
{¶ 113} Fair to say, the majority‘s decision creates chaos. With the primary election set to occur in less than two months, voters, candidates, and election officials remain in the dark about Ohio‘s legislative-district lines. The majority attempts to shift the blame for that to the commission, but had the majority simply followed the text of the Constitution and respected the limits to this court‘s power, none of this would be happening. To explain why, we need to take a step away from the process that has been followed by the majority and outline the process that is actually laid out in the Constitution.
A. Background: Article XI
{¶ 114}
{¶ 115} The subjective map-drawing requirements include the standards that the members of the commission keep in mind when drawing a plan. The
{¶ 116} Section 1 establishes the redistricting commission and provides the procedures it must follow. Sections 2, 3, 4, 5, and 7 are the objective map-drawing requirements, which the commission shall apply. Section 2 establishes the number of legislators per district. Section 3 sets forth the population and line-drawing rules for all districts and the composition and numbering of House districts, and Section 4 prescribes the composition and numbering of Senate districts. Section 5 regulates district boundaries for senators who have unexpired terms, and Section 7 establishes the governmental-unit boundaries to be used.
{¶ 117} When a plan is adopted by a bipartisan vote including at least two members from each of the two largest political parties, the plan lasts for ten years, unless it is invalidated by this court or a federal court.
{¶ 118} When a plan is challenged in this court, our authority to review the plan is limited.
{¶ 119} This entire General Assembly-redistricting process is displayed in the following flowchart:
B. The majority mischaracterizes Article XI
{¶ 120} The second revised plan was adopted along party lines. Such a plan takes effect upon its filing with the secretary of state.
{¶ 121} Although
{¶ 122} For “isolated violations of those requirements,”
{¶ 123} Therefore, this court‘s power to invalidate a plan, in whole or in part, expressly depends on the existence of a predicate violation of Section 2, 3, 4, 5, or 7. The majority, however, has never held that any of the plans adopted by the commission in these cases violated those provisions. See generally LWV II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___; LWV I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___.
{¶ 124} Tellingly, the majority makes no attempt to ground its exercise of judicial review in any provision of the Constitution. Although the majority previously asserted that
{¶ 125} In any event, because
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.
{¶ 126} Reduced to its essentials,
{¶ 127} Elementary rules of grammar demonstrate that the commission, not this court, is the subject of
{¶ 128} Because the commission is the subject of
{¶ 129} If the opening clause of
{¶ 130} Again,
{¶ 131} Because
the negative implication of
Article XI, Section 9 is obvious.Section 9(D) is a provision that limits the authority of this court in reviewing a General Assembly-district plan. It prohibits this court from ordering the commission to adopt a specific plan and from drawing the districts ourselves. And that same provision provides that this court may invalidate a General Assembly-district plan in whole or in part only if we first find a violation of Article XI, Section 2, 3, 4, 5, or 7.
LWV I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 227 (Kennedy, J., dissenting).
{¶ 132} Indeed, “[i]f violations of Section 6 were intended to be actionable, one would naturally expect
{¶ 133} But this raises the question why. Why would
{¶ 134} In contrast to the wholly subjective standards of
{¶ 135} So, with precision, the amendments to
{¶ 136} The careful calculus embodied within
C. The unfulfilled promise of Article XI
{¶ 137} Rather than follow the process established by the Ohio Constitution (as depicted in the simple flowchart above), the majority creates a new remedy to invalidate a plan for failing to comply with
{¶ 138} It did not have to be this way. The official ballot language for Issue 1, the 2015 proposed constitutional amendment to
{¶ 139} The people were led to believe that Issue 1 would create a bipartisan process that would yield more competitive elections within more compact House and Senate districts, that the process would be public, and that any deadlock over a district plan would be prevented by limiting the life of a plan adopted along party lines to four years.
{¶ 140} Contemporary media accounts heralded the four-year-plan impasse procedure as a key element of the proposed amendment, in that the consequence of the failure to attain bipartisan agreement on a ten-year plan would be a partisan plan limited to four years.
Issue 1‘s key reform is that for an ‘apportionment’ (legislative map) to apply, as now, for 10 years, at least two minority party Redistricting commissioners would have to support it. Otherwise, the map would only apply for four years.
No coincidence, Ohio elects governors, auditors and secretaries of state every four years. So: A Redistricting Commission majority that refused to bargain with a Redistricting Commission minority to approve a 10-year map might find itself the
commission‘s new minority in four years—when new General Assembly districts would have to be drawn. That is, Issue 1 would tie carrots to sticks to encourage bipartisan district-drawing.
Suddes, State Issue 1 an opportunity for Democrats, Dayton Daily News (July 19, 2015). Senate President Huffman, a state representative at the time, said: ” ‘This system basically says we are going to have a system that you now have an incentive to take in account what the minority party wants. * * * If there‘s a chance your district may change four years from now, that is bad. There‘s value in a 10-year map as proposed to a four-year map. * * * All the people sitting at the table now have an incentive to compromise.’ ” Sowinski, Huffman gives sales pitch for redistricting in Ohio, Lima News (Aug. 29, 2015).
{¶ 141} The voters understood that the proposed amendment included a process geared toward bipartisan agreement and that it contained an alternative with a real political cost—a plan passed on a partisan basis would last only four years and be subject to revision by a reconstituted redistricting commission with new members, possibly of a different political party. The hedge against partisanship, then, was the limitation of a partisan plan to four years. But because of the majority‘s activist decision to substitute itself for the commission in
{¶ 142} What was not contemplated when
{¶ 143} The majority hoists the blame for the looming constitutional crisis on the commission, but that is simply a diversion. The blame falls solely with the four justices in the majority today. The majority has thrust the court into this political process and wreaked havoc. It has usurped the sovereignty the people exercised in adopting
IV. Conclusion
{¶ 144} The majority‘s decree today is an exercise of raw political power. Nothing less. Nothing more.
{¶ 145} The Constitution limits this court‘s authority to order the commission to adopt a new plan, but the majority ignores this limitation. The majority invalidates a plan that complies with all constitutional requirements. And now that the commission has met the extraconstitutional guidelines announced by the majority in this court‘s previous decisions, the majority finds those efforts insufficient. The goalposts that the majority erected in League I, and moved in League II, have now been torn down entirely.
{¶ 146} The majority demands a new plan but provides precious little guidance on how that is to be achieved. An imminent election is thrown into disarray and Ohio nears a constitutional crisis, but the majority offers the commission only standardless judging and a vague admonition to try again.
{¶ 147} In so doing, the majority proves prescient Thomas Jefferson‘s fear that the Constitution would be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” 12 The Works of Thomas Jefferson 137 (P. Ford Ed.1905). We disagree that fundamental law is so malleable.
{¶ 148} Because the majority does not exercise authority granted to it by the Ohio Constitution but instead nakedly wields the judicial power, we dissent.
FISCHER, J., concurs in paragraphs 138-143 of the foregoing opinion.
FISCHER, J., dissenting.
{¶ 149} I must respectfully dissent.
{¶ 150} As stated in my previous dissents in these cases, I would not reach the merits of petitioners’ objections. See League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, ¶ 279 (”League I“) (Fischer, J., dissenting); League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, ¶ 149
{¶ 151} Ohio now finds itself stuck in the hole dug by the majority opinions in League I and League II. As I have explained before, if this court had followed the clear language of the Ohio Constitution, the original plan adopted by respondent Ohio Redistricting Commission would already be in effect for four years under
{¶ 152} I still believe that it is improper for this court to consider the merits of petitioners’ objections in these cases. But because the majority opinion considers the merits of the objections, I am forced to do so as well.
I. Article XI, Sections 6(A) and 6(B)
{¶ 153} In addressing the merits of petitioners’ arguments, I would conclude that petitioners have not shown beyond a reasonable doubt that the second revised General Assembly-district plan violates
{¶ 154} Petitioners must prove that the second revised plan is unconstitutional beyond a reasonable doubt. League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 339-340 (Fischer, J., dissenting), citing Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 20. In this situation, the presumption of constitutional validity applies. Id. at ¶ 340, citing Wilson at ¶ 21. While the majority opinion cites this standard, it does not actually apply it.
{¶ 155} As noted in League II,
{¶ 156} Petitioners want this court to apply that reasoning from League II but to shift the threshold for what amounts to a “toss-up” district from 51 percent to 52 percent. In other words, they want more Democratic-leaning districts that have a vote share of more than 52 percent, even if strict proportionality is thereby sacrificed.
{¶ 157} As noted in the majority opinion, counsel for some of the petitioners in these cases submitted to the commission an updated version of a proposed General Assembly-district plan created by Dr. Jonathan Rodden (the “Rodden III plan“). Tellingly, even if this court were to assume that the Rodden III plan otherwise complies with
{¶ 158} Moreover, the evidence before this court points to the realities of Ohio‘s political geography as being a factor in the commission‘s allocation of so-called “safe” and “competitive” seats under the second revised plan. All the parties have agreed that Ohio‘s political geography makes it difficult to create Democratic-leaning districts in many areas of the state. See League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 127-128. Indeed, in none of the plans discussed by
{¶ 159} Even in the Rodden III plan, which contains the most total House and Senate districts with Democratic vote shares of 55 percent or higher, there are only 40 such Democratic-leaning districts—as opposed to the 66 such Republican-leaning districts (i.e., 50 percent of the General Assembly) in that plan. As noted by Dr. Michael Barber, a Brigham Young University political-science professor (with expertise in advanced statistical methods for analyzing election data) whose expert testimony was submitted by respondents President of the Senate Matthew Huffman and Speaker of the House Robert Cupp, “[t]his is a function of Democratic voters in the state being densely clustered in homogenous precincts in the largest cities of the state while Republican voters are more scattered throughout the state in more heterogeneous districts.”
{¶ 160} Further cutting against petitioners’ objections is the fact that their proposed 52-percent-vote-share benchmark is not grounded anywhere in the Ohio Constitution. In League II, the majority opinion improperly called it “absurd” to label districts with a Democratic vote share between 50 and 51 percent as “Democratic-leaning,” particularly because the first revised plan contained no districts with a similarly slim Republican leaning. League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 61. But the majority opinion in League II did not identify a threshold for labeling a district as a “toss-up.” It stated only that when a redistricting plan contains a large number of districts whose voters “favor” Democrats at a vote share between 50 and 51 percent and contains no districts that favor Republicans at such a razor-thin margin, the plan shows evidence of having been intentionally drawn with partisan bias. Id. at ¶ 40. The mere existence of numerous closely competitive Democratic-leaning districts in the second revised
{¶ 161} In addition, other factors that led to the invalidation of the previous plans in League I and League II are not present here. In both League I and League II, the majority opinions relied on statistical evidence submitted by 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) showing that the plans were statistical outliers that favored the Republican party more than in any of the 5,000 simulated plans that he had generated. League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 122-126; League II at ¶ 43-44.
{¶ 162} This time, petitioners have offered no such analysis from Dr. Imai or any other similar expert. Dr. Imai had also opined that the first revised plan was an outlier when analyzed under four so-called political-science metrics for measuring partisan bias—efficiency gap, mean-median gap, partisan symmetry, and declination. Conspicuously absent this time is any evidence relating to these metrics, other than that of partisan symmetry, which is discussed below. This is significant because respondents have submitted evidence showing that one of the partisan-bias measures—the efficiency-gap analysis—shows that the second revised plan‘s bias toward the Republican Party is actually slight or nonexistent. Dr. Barber noted:
Using the 9 statewide elections [from 2016-2020, as used by the commission], the third Commission map has an efficiency gap value of 2.43%, which indicates a slight bias in the direction of the Democratic Party. The Rodden III plan has an efficiency gap value of -1.13%, which indicates a slight bias in the direction of the Republican Party. The Sykes Russo plan has an efficiency gap value of 0.38%, which indicates a very small bias in the direction of the [Democratic] Party. Overall, all of these numbers are small and indicate relative balance between the parties.
{¶ 163} The evidence of partisan asymmetry in the second revised plan is weaker than it was for the plans at issue in League I and League II. 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, concludes that Democrats could expect to win approximately 44 percent of the House seats (approximately 44 seats) under the second revised plan if they won 50 percent of the statewide vote whereas Republicans could expect to win approximately 53 percent of the seats (approximately 52 seats) if they won 50 percent of the statewide vote. Similarly, Dr. Latner opines that Democrats could expect to win 45 percent of the Senate seats (approximately 15 seats) if they won 50 percent of the statewide vote whereas Republicans could expect to win 52 percent of the seats (approximately 17 seats) if they won 50 percent of the statewide vote. This is evidence of possible partisan asymmetry, to be sure. But Dr. Latner‘s analysis also shows that the second revised plan significantly improved on the first two plans. Indeed, Dr. Latner concludes that the partisan-symmetry indexes for the second revised plan are closer to those of the Rodden III plan than the commission‘s first two plans.
{¶ 164} Another factor that guided the majority opinions in League I and League II in their evaluations (and invalidations) of the previous plans was that “an alternative, more proportional plan” was possible. League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 45-47; see also League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 126. That factor does not support petitioners’ objections here. The second revised plan, at least on its face, is strictly proportional to the statewide preferences of Ohio voters. Instead of pushing for a more proportional plan, petitioners now ask this court to invalidate the second revised plan because there are alternative plans that do not contain as many competitive Democratic-leaning districts (i.e., districts with a Democratic vote share of less than
{¶ 165} As the commission argues, petitioners’ objections to the second revised plan essentially ask this court to compel the commission to adopt a plan in which there are “fewer Democratic-leaning seats, [with] the remaining Democratic-leaning seats be[ing] less competitive.” But the Ohio Constitution does not compel the commission to eliminate competitive districts, and it “does not require exact parity in terms of the vote share of each district.” League II at ¶ 40.
{¶ 166} The
{¶ 167} One of the main issues as to the first revised plan‘s constitutionality identified in the majority opinion in League II was the disparity between the number of barely-Democratic-leaning House districts (12) and the number of barely-Republican-leaning House districts (zero). See League II, ___ Ohio St.3d ___,
{¶ 168} The majority opinion in League II made clear that
{¶ 169} If this court is to be consistent with League II, it must exclude the districts with vote shares of under 51 percent from the proportionality assessment. The question is whether the districts with vote shares between 51 and 52 percent must be excluded as well.
{¶ 170} Obviously, at a certain level of partisan support, any concern over the commission‘s designating “competitive” districts as ones that “favor” a party falls away, even if there remains a large disparity in the vote shares of each party‘s districts. For example, if all the Republican districts in a plan favored Republicans by 90 percent but all the Democratic districts in the plan favored Democrats by “only” 65 percent, the vote share would still be quite disparate, but it would be absurd to say that the Democratic districts did not truly “favor” Democrats. Whether a vote share between 51 and 52 percent is sufficient to eliminate the League II majority opinion‘s concerns about any disparate application of the “favor” provision is an issue for which the Constitution provides no guidance.
{¶ 171} This lack of constitutional guidance about what makes a district “competitive” militates strongly in favor of judicial restraint: this court should conclude that the commission deserves the leeway that we give to the promulgator of any legislative act. See 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, ¶ 73; Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 48. Here, the majority opinion leaves unclear when a district ceases to be “competitive” and thus counts toward the proportionality determination. In my view, we have passed that point and must now exercise proper judicial restraint. Accordingly, I would conclude that the districts with vote shares between 51 and 52 percent must not be excluded from this court‘s proportionality analysis.
{¶ 172} Moreover, respondents have identified various reasons that explain why the second revised plan includes so many districts with Democratic vote shares between 51 and 52 percent. For instance, as a matter of simple logic, moving Republican voters out of one district in the plan to make the district more favorable to Democrats naturally makes the surrounding districts more favorable to Republicans.
{¶ 173} Also militating in favor of judicial restraint is the fact that the alternative plans favored by petitioners and Senator Sykes and House Minority Leader Russo contain a disparate allocation of districts with less than a 53 percent vote share (although the alternative plans do contain fewer Democratic districts with less than a 53 percent vote share than the second revised plan contains). Specifically, the second revised plan has 29 total House and Senate districts with Democratic vote shares between 50 and 53 percent but only one Republican district within that range; the Rodden III plan has 14 total House and Senate districts with Democratic vote shares between 50 and 53 percent but only 4 Republican districts within that range; and the Sykes-Russo plan has 14 total House and Senate districts with Democratic vote shares between 50 and 53 percent but only 2 Republican districts within that range. Maybe the commission could have done a better job under this particular metric. (Senate President Huffman and House Speaker Cupp have argued, without citing any evidence, that doing better on this metric would
{¶ 174} In sum, the key to the majority opinion‘s
{¶ 175} If we exclude from consideration only the House and Senate districts with between 50 and 51 percent vote shares in the second revised plan, the plan would have a total of 57.6 percent Republican districts and 42.4 percent Democratic districts. Given this breakdown, I would conclude that petitioners have not shown beyond a reasonable doubt that the commission did not attempt to draft a plan that closely corresponds to the statewide preferences of Ohio‘s voters. Given the fact that the alternative plans are less proportional than the second revised plan, this is a hard showing for petitioners to make. I would conclude that they have failed to meet their burden, as a breakdown of 57.6 percent Republican districts and 42.4 percent Democratic districts corresponds closely to the statewide preferences of Ohio‘s voters based on the record before this court.
{¶ 176} I also disagree with the majority opinion‘s criticism of Senate President Huffman‘s concern for protecting incumbents. See majority opinion at ¶ 36. The Supreme Court of the United States established long ago that “avoiding
{¶ 177} I would conclude that petitioners have failed to prove beyond a reasonable doubt that the commission violated
II. Article XI, Section 1(C)
{¶ 178} The petitioners in Bennett v. Ohio Redistricting Comm. argue that the commission also violated
At the first meeting of the commission, which the governor shall convene only in a year ending in the numeral one, except as provided in Sections 8 and 9 of this article and in Sections 1 and 3 of Article XIX of this constitution, the commission shall set a schedule for the adoption of procedural rules for the operation of the commission.
The commission shall release to the public a proposed general assembly district plan for the boundaries for each of the ninety-nine house of representatives districts and the thirty-three senate districts. The commission shall draft the proposed plan in the manner prescribed in this article. Before adopting, but after introducing, a proposed plan, the commission shall conduct a minimum of three public hearings across the state to present the proposed plan and shall seek public input regarding the proposed
The commission shall adopt a final general assembly district plan not later than the first day of September of a year ending in the numeral one. After the commission adopts a final plan, the commission shall promptly file the plan with the secretary of state. Upon filing with the secretary of state, the plan shall become effective.
Four weeks after the adoption of a general assembly district plan or a congressional district plan, whichever is later, the commission shall be automatically dissolved.
{¶ 179} The majority opinion purports to avoid reaching the argument that the commission violated
{¶ 180} The Bennett petitioners focus on the notice and public-hearing requirements in the second paragraph of
{¶ 181}
(1) If the Ohio redistricting commission fails to adopt a final general assembly district plan not later than the first day of September of a year ending in the numeral one, in accordance with
Section 1 of this article, the commission shall introduce a proposed general assembly district plan by a simple majority vote of the commission.(2) After introducing a proposed general assembly district plan under division (A)(1) of this section, the commission shall hold a public hearing concerning the proposed plan, at which the public may offer testimony and at which the commission may adopt amendments to the proposed plan. Members of the commission should attend the hearing; however, only a quorum of the members of the commission is required to conduct the hearing.
(3) After the hearing described in division (A)(2) of this section is held, and not later than the fifteenth day of September of a year ending in the numeral one, the commission shall adopt a final general assembly district plan, either by the vote required to adopt a plan under division (B)(3) of
Section 1 of this article or by a simple majority vote of the commission.
{¶ 182}
{¶ 183} Without, in my view, any constitutional authority to do so, the majority opinion in League II ordered the commission, under
{¶ 184} I would overrule the Bennett petitioners’ objection arguing that the second revised plan violates
III. Remedies
A. The Majority Opinion‘s Instructions
{¶ 185} In invalidating the second revised plan, the majority opinion imposes new requirements for the commission to follow in adopting a fourth plan. First, the majority opinion requires that the commission retain an independent map drawer before drafting a new plan. Majority opinion at ¶ 30. Second, the majority opinion orders the commission, presumably along with this independent map drawer, to draft the plan in public and convene “frequent” meetings. Id. at ¶ 44.
{¶ 186} These requirements are unprecedented in Ohio. They cannot be found anywhere in the Constitution, nor were they demanded of the commission when its other plans were invalidated the first two times the parties appeared before this court. The imposition of these judicially created requirements is troubling. The majority opinion quotes no constitutional text to support this order. And if these requirements are so critical to the redistricting process, then why are they being imposed only now, more than two months after the decision in League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, and after the commission has twice reconvened to adopt revised plans?
{¶ 187} Equally troubling are the timing requirements imposed in the majority opinion. This court previously directed the commission to adopt a new plan within ten days. League I at ¶ 137; League II, ___ Ohio St.3d ___, 2022-Ohio-
{¶ 188} These unfortunate realities are a direct result of the approach taken by the majority opinion today and by the majority opinions in League I and League II. All of this could have been avoided had this court applied the language of
B. Injunctive Relief
{¶ 189} The majority opinion does not address the other remedies requested by the parties. In a sense, the approach set forth in the majority opinions in League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, and League II has encouraged the parties to seek these additional and baseless forms of relief. Because the majority opinion‘s approach to these cases has not been properly grounded in the Ohio Constitution, one cannot necessarily fault the parties for asking this court to grant other remedies not grounded in the Constitution. Because these additional remedies must be addressed in some fashion to prevent further unconstitutional requests, I will proceed to explain why those remedies should not, and cannot, be granted.
{¶ 190} On February 26, 2022, respondent Secretary of State Frank LaRose issued a directive to all county boards of elections, instructing them on how to prepare for the May 3, 2022 primary election using the second revised plan. The directive states:
[D]ecisions in ongoing litigation may render some or all of this Directive moot. In that event, my Office will issue additional instruction. As you know, the redistricting process has been the subject of much litigation. This Directive is not contrary to any
order of the Ohio Supreme Court, nor should it be construed as such. This new General Assembly district plan adopted by the Ohio Redistricting Commission was filed with my office and is presumed valid. If there is additional litigation over this new district plan, the outcome of that litigation will be that the new plan is either valid or invalid. Because of the severe time constraints under which we are operating to hold Ohio House and Ohio Senate primary races with the May 3, 2022 Primary Election, we must begin preparations for those elections immediately in the anticipation that the Court will uphold the new plan. Obviously, if a few weeks from now the Court rules that the new plan is invalid, it will not be possible to conduct Ohio House and Ohio Senate primary elections with the May 3, 2022 Primary Election. * * *
[G]iven the incredibly unfortunate impact that redistricting litigation has had on the election calendar and our ability to administer an election in a manner that will inevitably lead to the best chances of success, all boards must immediately begin the process of reprogramming their voter registration systems with the February 24, 2022 General Assembly district maps.
(Footnote omitted.) Directive 2022-26, https://www.sos.state.oh.us/globalassets/elections/directives/2022/directive-2022-26.pdf, at 2-3 [https://perma.cc/439R-CLEG].
{¶ 191} Petitioners, along with Senator Sykes and House Minority Leader Russo, argue that this court should enjoin Secretary LaRose from making this directive, thereby preventing him from implementing the second revised plan. They further argue that this court should enjoin the implementation of any plan that remains subject to judicial review.
{¶ 192} Requests for injunctive relief are generally not within this court‘s original jurisdiction. See State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634-635, 716 N.E.2d 704 (1999). And petitioners have not shown that they are entitled to the injunctive relief they seek here.
{¶ 193} Significantly, there is nothing unlawful about Secretary LaRose‘s directive. It is true, as Secretary LaRose stated in his February 26, 2022 directive, that the second revised plan is presumptively valid. See League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___ , at ¶ 76-80. And as the state‘s chief elections officer, Secretary LaRose has a duty to instruct elections officials how to prepare for the May 3 primary election, which at this point will include General Assembly races. See
{¶ 194} Moreover, Secretary LaRose‘s directive might still be proper even though this court is invalidating the second revised plan. The second revised plan was adopted by a simple majority vote and is governed by
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 section 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.
(Emphasis added.)
{¶ 195} The statement that the plan “shall remain effective until two general elections for the house of representatives have occurred” is unqualified—it does not state that the plan shall cease to be in effect if this court declares it to be invalid under
{¶ 196} Petitioners also argue that “this Court should not hesitate to use its authority to suspend or modify election-related deadlines until Ohioans are able to vote under constitutional maps.” And they argue that this court should “direct the Secretary of State and General Assembly to make the required adjustments” to the primary-election deadlines. The only authority offered in support of these arguments is Carter v. Chapman, Pa. No. MM 2022, 2022 WL 549106 (Feb. 23, 2022), in which the Supreme Court of Pennsylvania modified deadlines for Pennsylvania‘s 2022 congressional primary election. But Carter does not point to any authority allowing this Ohio court to modify Ohio‘s primary-election date or schedule, especially considering that Ohio has a specific constitutional amendment that spells out this court‘s role in the General Assembly-redistricting process. Indeed, as this court specifically recognized in League II at ¶ 65-66, it is the province of the General Assembly to set the election date and election-related deadlines. See
C. Validation of Alternative Plans
{¶ 197} Senator Sykes and House Minority Leader Russo ask this court to violate
{¶ 198} In its earlier decisions in these cases, the majority opinions cited previous plans prepared by Dr. Rodden as evidence that the commission, had it attempted to do so, could have adopted a district plan that allegedly came closer to complying with
{¶ 199}
* * *
{¶ 200} The Bennett petitioners nevertheless ask that this court itself adopt a plan, asserting that “[c]ountless courts have done the same * * * even without express authority to do so under those courts’ own state constitutions.” To be sure, other state courts have adopted reapportionment plans, and the Supreme Court of the United States has recognized that state courts generally have the authority to do so in certain circumstances. See Scott v. Germano, 381 U.S. 407, 409, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965). But the
{¶ 201} The Bennett petitioners acknowledge that
{¶ 202} As a final matter, the Bennett petitioners argue that the separation-of-powers doctrine requires this court to disregard
D. Appointment of a Special Master
{¶ 203} Petitioners argue that this court should appoint a special master to “provid[e] guidance and assistance to the Commission to aid it in drawing a constitutional plan.” They suggest that a special master could draft a plan as a starting point and that the commission could be required to justify any changes to that plan. And they suggest that a special master could “provide minute-by-minute feedback on a plan drawn collectively by the Commission in public view, instead of evaluating maps after their passage.” Senator Sykes and House Minority Leader Russo also ask this court to appoint a special master, arguing that we could authorize a special master “to employ one or more experts” and “prepare a constitutional plan.”
{¶ 204} Ohio‘s Constitution does not permit such a thing. Petitioners and the minority-party commission members have not shown that this court could lawfully appoint a special master to carry out these duties. Any special master would be an officer of this court, acting on our behalf. See Black‘s Law Dictionary 1168 (11th Ed.2019) (defining “special master” as a “parajudicial officer” who is “appointed to assist the court with a particular matter or case“). Because this court
E. Declaration of an Impasse
{¶ 205} The OOC petitioners argue that as a last resort, this court should “declare an impasse, after which a federal court will provide federal remedies.” See Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (recognizing that a federal court may become involved in reapportionment if there is evidence that the appropriate state entity “will fail timely to perform” its duty to reapportion).
F. Contempt
{¶ 206} The Bennett petitioners argue that this court should hold respondents in contempt until they adopt a plan that we declare to be constitutional. The OOC petitioners similarly note that “there is still time for this Court to schedule a contempt hearing to determine the appropriate remedy for the Commission‘s refusal to adopt a constitutional plan.”
{¶ 207} Contempt proceedings are “special proceeding[s].” In re Contempt of Common Pleas Court, 30 Ohio St.2d 182, 187, 283 N.E.2d 126 (1972), overruled on other grounds, State ex rel. Edwards v. Murray, 48 Ohio St.2d 303, 305, 358 N.E.2d 577 (1976). They are “sui generis in the law. They bear some resemblance to suits in equity, to criminal proceedings and to ordinary civil actions; but they are none of these.” Cincinnati v. Cincinnati Dist. Council 51, Am. Fedn. of State, Cty., and Mun. Emps., AFL-CIO, 35 Ohio St.2d 197, 201-202, 299 N.E.2d 686 (1973).
{¶ 208} To avoid conflating its consideration of petitioners’ objections with the separate contempt proceedings, this court must defer on deciding the contempt issues at this time.
G. Attorney Fees
{¶ 209} The Bennett petitioners argue that this court should award them attorney fees. They first refer to
{¶ 210} The Bennett petitioners also argue that this court should award attorney fees based on “a determination that Respondents acted in bad faith.” “In Ohio, the general rule is that absent a statute allowing attorney fees as costs, the prevailing party is not entitled to an award of attorney fees unless the party against whom the fees are taxed acted in bad faith.” State ex rel. Maloney v. Sherlock, 100 Ohio St.3d 77, 2003-Ohio-5058, 796 N.E.2d 897, ¶ 55. “Bad faith” connotes “a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.” Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus, overruled on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph one of the syllabus. Because this type of inquiry would significantly overlap with what this court eventually may consider in
IV. Conclusion
{¶ 211} The majority opinion constitutes yet another assertion of authority that this court has not been given under
{¶ 212} For these reasons, I must respectfully dissent and would overrule the objections.
____________________
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, Alexander Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1193.
McTigue, Colombo & Clinger, L.L.C., Donald J. McTigue, and Derek S. Clinger; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, 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 T. Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission.
Dave Yost, Attorney General, and Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Christopher J. Hogan, special counsel to Attorney General Dave Yost, for respondent Ohio Governor Mike DeWine.
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 respondent Ohio Secretary of State Frank LaRose.
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.
Cooper & Elliott, L.L.C., C. Benjamin Cooper, Charles H. Cooper Jr., and Chelsea C. Weaver, for respondents Senator Vernon Sykes and House Minority Leader Allison Russo.