LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
Nos. 2021-1193, 2021-1198, and 2021-1210
Supreme Court of Ohio
April 14, 2022
2022-Ohio-1235
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-1235
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-1235.]
Redistricting—Original actions under
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted April 8, 2022—Decided April 14, 2022.)
ORIGINAL ACTIONS filed pursuant to
I. INTRODUCTION
{¶ 1} For the fourth time, we are called upon to consider the validity of a General Assembly–district plan adopted by respondent Ohio Redistricting Commission. The commission adopted three General Assembly–district plans between September 2021 and February 2022. We invalidated each of those plans because they did not comply with
{¶ 2} The commission adopted its fourth plan—the “third revised plan”—on March 28. Petitioners1 have filed objections to that plan, arguing that it violates the standards of
II. BACKGROUND
A. The commission retains independent map drawers
{¶ 3} In League III, we noted, “The commission has adopted three plans so far, but it still has not drafted one.” (Emphasis sic.) Id. at ¶ 25. The previous plans had been drafted by staff members of the offices of respondents President of the Senate Matt Huffman and Speaker of the House Robert Cupp, who controlled the process and did not allow the Democratic members of the commission to participate in the creation of the plans. Id. at ¶ 25, 27, 30. We said that “[t]he 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.” Id. at ¶ 30. We also said that “the drafting should occur in public and the commissioners should convene frequent meetings to demonstrate their bipartisan efforts to reach a constitutional plan within the time set by this court.” Id. at ¶ 44.
{¶ 4} On March 18, two days after we decided League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, Ohio Attorney General Dave Yost issued a memorandum to the commission proposing a framework for complying with our decision. In it, the attorney general noted our language in League III suggesting that the commission “should” retain an independent map drawer. The attorney general recognized that we “used ‘should’ and not ‘shall’ ” but nevertheless advised the commission that “it would be wise to treat this suggestion with the degree of deference one might pay to the suggestions of one’s spouse.” Accordingly, the attorney general recommended hiring a “bipartisan duo” of consultants whose “charge should be simply to produce a map that complies with the Ohio Constitution and the orders of the Ohio Supreme Court.”
{¶ 6} At the commission’s next meeting, on Monday, March 21, Senator Sykes recommended Dr. Michael McDonald, a professor at the University of Florida, to serve as an independent map drawer. House Speaker Cupp recommended Dr. Douglas Johnson, the president of National Demographics Corporation, to serve as
B. The commission meets daily and livestreams the map-drawing process
1. The March 22 meeting
{¶ 7} On Tuesday, March 22, the commission decided on a daily meeting schedule through Saturday, March 27. The commission then unanimously approved retaining two mediators employed by the United States Court of Appeals for the Sixth Circuit. The commission members discussed instructions for the independent map drawers—who would be arriving the following day—but could not come to an agreement regarding the instructions and decided to continue that discussion at the next meeting.
2. The March 23 meeting
{¶ 8} Dr. McDonald and Dr. Johnson appeared at the Wednesday, March 23 meeting and introduced themselves to the commission. The commission members engaged in a lengthy discussion about written instructions for the independent map drawers and adopted 24 “Ground Rules.” Among other things, the rules specified that the independent map drawers were to draft the district plan at the commission’s direction and in conformity with Article XI and this court’s prior decisions, draft an entirely new plan without considering prior plan proposals or previous work product, and provide regular updates to the commission at its scheduled meetings. The rules also provided a process for resolving any disputes between Dr. McDonald and Dr. Johnson, including mediation if the commission were unable to unanimously resolve the dispute. In addition, the rules specified that all map drawing would occur in a designated room at the statehouse and would be livestreamed by the Ohio Channel. The commission members were expected to provide feedback and guidance to the
3. The March 24 meeting
{¶ 9} The independent map drawers began working on Thursday, March 24. Their workroom was livestreamed so that the public could observe the process. During the March 24 commission meeting, Dr. McDonald and Dr. Johnson updated the commission on their progress, which, after some technical delays, had included drafting potential House districts in Franklin County. The map drawers sought guidance from the commission on a few issues, including how it wanted them to define a “toss up” district. Although several commission members opined on how they would define such a district, the commission did not reach an agreement. Senator Sykes said that the commission would get back to the independent map drawers on that issue. Near the end of the meeting, Senator Sykes noted that livestreaming the map-drawing process and the commission’s open discussion about map-drawing principles were “historic” for Ohio and the nation.
4. The March 25 meeting
{¶ 10} On Friday, March 25, the independent map drawers presented to the commission preliminary draft maps of potential House districts in Franklin and Union Counties; Cuyahoga, Lake, and Summit Counties; and Hamilton County. The map drawers acknowledged that they had not yet started on Senate maps. Some of the commission members had questions and comments for the map drawers. For example, respondent Auditor of State Keith Faber expressed concerns about the shapes of the districts in the maps and said that the map drawers should focus not only on
{¶ 11} At the Saturday, March 26 meeting, the independent map drawers reported that they had created two sketches of district plans for the commission’s consideration. One of the sketches included both a House map and a Senate map, while the second sketch included only a House map. Dr. McDonald said that both sketches were proportional—meaning that the House maps had 45 Democratic-leaning House seats and 54 Republican-leaning House seats.
{¶ 12} Senate President Huffman moved the commission to insert the addresses of the 33 Senate members into the maps and requested that the map drawers consider those addresses in the map-drawing process. Senate President Huffman acknowledged that such considerations were not constitutionally required but explained why he thought they were important. Specifically, he noted that 16 current senators are in midterm and are therefore constitutionally entitled to serve out their terms; the goal, he said, should be to ensure that those senators continue to reside in the districts they represent. He further said that for the 17 remaining Senate seats, 11
{¶ 13} Senator Sykes and House Minority Leader Russo objected to adding incumbents’ addresses to the maps, and House Minority Leader Russo cited this court’s observation in League III that protecting incumbents is not grounded in Article XI. See ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 37-38. But Auditor Faber said that there is value in incumbency and that although protecting incumbents is not a “primary constitutional factor,” the map drawers should avoid placing incumbents together “where [they] can.” House Speaker Cupp agreed that the map drawers should make every effort to avoid drawing incumbents together when it was possible to do so without violating other constitutional requirements. The commission members agreed to take the issue to mediation.
6. The March 27 meeting
{¶ 15} On March 27—one day before this court’s deadline for submitting a new plan—Dr. McDonald and Dr. Johnson presented three district plans to the commission: two drafted by Dr. McDonald and a third drafted by Dr. Johnson. They indicated that they had not yet had the chance to consolidate their ideas into one unified proposal and that they were still seeking the commission’s guidance on outstanding issues. Dr. Johnson again noted a trade-off between achieving symmetry of toss-up districts and drawing compact districts and expressed his preliminary belief that creating more Republican-leaning toss-up districts would lead to a less compact plan. Dr. McDonald disagreed and said that there was no trade-off, noting that his sketch achieved exact symmetry of toss-up districts and was more compact than Dr. Johnson’s. But in response to questions from Auditor Faber about splitting cities into multiple House districts, Dr. McDonald acknowledged that the “puzzle pieces don’t fit together very well” and that “the geography is extremely challenging in Ohio.”
{¶ 17} In addition, House Speaker Cupp advised the map drawers that the commission had reached a mediated resolution about the issue of considering incumbents. Senate President Huffman read a mediation agreement that provided the following:
Upon completion of the independent map drawers’ merger of their independent versions of the House and Senate maps and prior to any presentation to the Commission, the independent map drawers shall consider the residence locations of non-term limited House and Senate incumbents, and Senate incumbents in mid-term, in drafting a Commission map, and where possible without violating constitutional principles, avoid pairing incumbents and also drawing districts such that Senators protected under Section 5 of Article 11 no longer live in the district they represent.
Incumbents will be identified as House or Senate and no other identifying information shall be used.
The commission unanimously adopted the mediation agreement. But later in the meeting, Senate President Huffman and Senator Sykes disagreed about its meaning.
C. Senate President Huffman proposes an alternative plan
{¶ 18} The commission next met on the morning of Monday, March 28. Dr. McDonald and Dr. Johnson reported that they had merged their maps to create a
{¶ 19} The commission met again in the late afternoon that day. Dr. Johnson reported that they had adjusted most of the House map—except in northeast Ohio—to avoid incumbent pairings. They had not yet tackled the incumbency issues in the Senate, however, and said they would need a couple more hours. Dr. Johnson said that they were moving as fast as they could but that it was a slow process and that Ohio has “some of the most complicated geographic challenges, certainly the most strict geographic rules and also the most complicated Senate rules.” Around 5:00 p.m., Dr. McDonald left the meeting—and the statehouse—so that he could return to Florida for a professional commitment.
{¶ 20} House Speaker Cupp and Auditor Faber expressed concerns about the independent map drawers’ plan. Auditor Faber asked several questions about the compactness of the plan and noted that the map drawers had adopted the “hub and spoke model” by dividing the urban core of cities into different districts and drawing them with suburbs to create Democratic districts. Dr. Johnson acknowledged that “to hit that magic number, it involves a lot more work to draw those Democratic seats.”
{¶ 21} Senate President Huffman also expressed concerns about the plan, stating that as of 5:00 p.m. on the day of the deadline, the map drawers had not yet produced a Senate map. He noted that after the commission adopted a plan, staff would need time to complete several administrative tasks; he said that to meet this
{¶ 22} Senator Sykes and House Minority Leader Russo objected to the motion, citing the resources the commission had invested in the independent map drawers and noting that the map drawers were almost finished. House Minority Leader Russo opined that this court would rather have the commission finish its job than submit another unconstitutional plan. She suggested that the commission take the issue to mediation. Senate President Huffman, however, did not believe that mediation would be productive. Senator Sykes inquired about requesting an extension of time from this court, but Senate President Huffman and House Speaker Cupp said that League III prohibited any requests for extensions of time. The commission approved Senate President Huffman’s motion by a vote of five to two, along party lines. The commission agreed to meet again at 9:00 p.m.
D. The commission adopts a district plan drawn by Republican-caucus staff
{¶ 23} When the commission reconvened, Dr. Johnson reported that he had not yet finished the Senate map. He again said that the “Senate rules are extremely complex,” that he had hit “roadblocks” necessitating changes to the House map, and that he needed at least another 45 minutes to finish. Senate President Huffman said that his staff had identified some improper splits in the independent map drawers’ House map, including one in a Cleveland Heights district. Fixing the problem, Senate
{¶ 24} House Speaker Cupp said that it was not feasible at that point to expect the independent map drawers to produce a complete and constitutional plan by this court’s deadline. Therefore, he moved that the commission adopt his new proposal, which had just been distributed to the members. He said that compared to the second revised plan, his proposal improved the “symmetry measures” by reducing the number of Democratic-leaning toss-up districts by two in the House and by one in the Senate. And he said that the proposed plan was drawn in the livestreamed public workroom earlier that day.
{¶ 25} House Minority Leader Russo and Senator Sykes opposed the motion. House Minority Leader Russo called the motion a “farce,” noted that the plan had again been drawn by only one party, and said that she had not been provided any information about the partisan leanings of the districts or symmetry of the toss-up districts. She also disputed House Speaker Cupp’s claim that Springhetti had prepared the map in the livestreamed public workroom: “Mr. Springhetti sat in the map room for about 45 minutes, clicked his mouse around a few times and called that public and transparency. That’s not public and transparency. This map was drawn long before this evening. I guarantee it.” Senator Sykes added that instead of trying to assist the independent map drawers to cross the finish line, the “majority” had withdrawn from the process and then hijacked it. In response to questioning from House Minority Leader Russo, Auditor Faber, respondent Governor Mike DeWine, respondent Secretary of State Frank LaRose, and Senator Sykes acknowledged that
{¶ 26} House Minority Leader Russo requested a recess to review House Speaker Cupp’s proposal, but Senate President Huffman said that because it was already after 10:00 p.m., the commission needed to pass a plan to comply with this court’s deadline. He further noted that Dr. Johnson had not yet completed a final Senate map and that Dr. Johnson admitted that he would not have time to include any amendments to his proposal by the midnight deadline. House Minority Leader Russo requested that the commission file an emergency motion in this court for a 12-hour extension of time. The commission, however, voted four to three to adopt House Speaker Cupp’s plan—i.e., the third revised plan—as its final General Assembly–district plan. Because both Democratic members of the commission voted against the plan, the plan did not have the bipartisan support required by
{¶ 27} Senate President Huffman distributed the commission statement required by
E. Senator Sykes moves to adopt the independent map drawers’ plan
{¶ 29} Other commission members also commented on the independent map drawers’ work. House Speaker Cupp said that he noticed “some egregious compactness issues” in Dr. Johnson’s plan. Governor DeWine indicated that although the independent map drawers had established proportionality and had created a similar number of toss-up districts, the independent map drawers’ plan had a “compact district problem” with more split cities and fewer competitive districts. Governor DeWine noted that competitive districts was a goal of the constitutional amendment. Auditor Faber praised the work of the independent map drawers and emphasized the difficulty of their task given the short amount of time that they had. But he said that they could not incorporate his suggestions, that their plan appeared to unnecessarily split cities, and that they had engaged in cracking and packing to create more Democratic districts. The commission voted five to two against adopting Dr. Johnson’s plan.
{¶ 30} Senator Sykes and House Minority Leader Russo submitted their separate statement, which said that the third revised plan had been drawn in secret
{¶ 31} On March 29, the commission notified this court that it had adopted a fourth General Assembly–district plan.
F. Petitioners file objections
{¶ 32} On April 1, petitioners filed objections to the third revised plan, primarily criticizing the commission’s process in adopting the third revised plan and arguing that the plan violates
{¶ 33} Respondents filed four separate responses to petitioners’ objections. Senate President Huffman, House Speaker Cupp, Governor DeWine, and Secretary LaRose opposed petitioners’ objections. Senate President Huffman and House Speaker Cupp submitted an affidavit from Dr. Johnson, who averred that his work had been “highly constrained” by Ohio’s complex geography and constitutional rules and the limited window of time in which to draw the maps. He further stated that
{¶ 34} Senator Sykes and House Minority Leader Russo filed responses to the objections that align with petitioners’ positions. They also submitted their own affidavits as well as an affidavit from Glassburn. Senator Sykes stated in his affidavit that when the independent map drawers proposed maps that were proportional and symmetrical, Republican commissioners seemed “rattle[d]” and started to impede and discredit the process by complaining about compactness and the double-bunking of incumbents (i.e., placing two incumbents in the same district). House Minority Leader Russo averred that after the independent map drawers had made progress and sought guidance from the commission, her Republican colleagues refused to give it. She also averred that any double-bunking that had occurred in the map drawers’ initial drafts was inadvertent—because they did not have incumbent information—all of which was the byproduct of drawing a constitutional map.
{¶ 35} Glassburn averred that in his opinion, the final plan submitted by Dr. Johnson complies with Article XI and its proportionality and symmetry requirements. He further averred that the independent map drawers’ plan is more compact than the third revised plan and that to the extent that there are any technical
III. ANALYSIS
A. The burden and standard of proof
{¶ 36} A district plan adopted by the commission is presumptively constitutional. League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 76. Petitioners therefore have the burden of proving that the third revised plan violates the Constitution. Id. at ¶ 76-77. They must prove factual issues beyond a reasonable doubt. Id. We do not defer to the commission’s legal interpretations. Id. at ¶ 80.
B. Article XI, Section 6(A)
{¶ 37}
1. The process leading to the third revised plan
{¶ 38} In League III, this court found that substantial and compelling evidence showed that the process leading to the adoption of the second revised plan was evidence of an intent to draw a General Assembly–district plan that favored the Republican Party at the expense of the Democratic Party. ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 24-32. That evidence included the following: (1) staff members of Senate President Huffman and House Speaker Cupp (rather than the commission members) drew the second revised plan, (2) the Democratic members of the commission had no opportunity to provide input and no meaningful opportunity to discuss or review the second revised plan or to propose amendments once it was presented to the commission, and (3) the map-drawing process was controlled by the Republican-legislative staffs. Id. at ¶ 25, 27. In League II, this
{¶ 39} In this case, the evidence shows that the commission began to heed our suggestions in League III, consistent with the recommendations of the attorney general’s March 18 memorandum to the commission, and that it made significant changes to its process. The commission retained independent map drawers and mediators, held meetings almost daily, ensured that the map drawers had a neutral set of written instructions, and allowed the public to observe the map-drawing process. Senator Sykes described these efforts as “historic” for Ohio and the nation. But what began as a “historic” process devolved into the same one-sided partisan map-drawing process that led us to invalidate the previous three plans.
{¶ 40} Although the commission retained independent map drawers and held frequent meetings throughout the 12-day map-redrawing period, the commission ultimately readopted a modified version of the second revised plan that we invalidated in League III. The evidence suggests that Springhetti, a staff member for the Republican legislative caucus, modified the second revised plan in one afternoon to produce the third revised plan. Neither Senator Sykes, House Minority Leader Russo, nor their staff had an opportunity to provide input concerning the creation of the third revised plan or a meaningful opportunity to review the proposal or provide amendments to it once it was presented to the commission. Instead, the Democratic commission members were forced to vote on the plan within minutes of receiving it, even though they had not been provided any documents showing the partisan leaning of the plan’s districts. Further, Senator Sykes’s and House Minority Leader Russo’s requests for a recess were rebuffed, as were their requests to seek an extension of this
{¶ 41} Moreover, the third revised plan suffers from a similar fundamental flaw that we found obstructed the constitutionality of the plan we invalidated in League II. In League II, we found that the principal drawers of the first revised plan “started with the same plan we invalidated and then merely adjusted certain districts just enough so that they could nominally be classified as ‘Democratic-leaning.’ ” ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 36. We observed that the commission’s choice to start from an unconstitutional plan and “change it as little as possible” was “tantamount to an intent to preserve as much partisan favoritism as could be salvaged from the invalidated plan.” Id. at ¶ 38.
{¶ 42} Despite our admonition in League II, the commission’s self-described “parachute” was to have Springhetti use an invalidated plan and tweak it a bit. The third revised plan is no more than a modification of the second revised plan and, as admitted by Senate President Huffman, includes “only minor changes” from its predecessor. As before, the commission did not adopt a plan using a process that Article XI and this court’s prior decisions require.
{¶ 43} We also discern intent of partisan favoritism from the timeline that led to the commission’s decision to scrap the work of the independent map drawers in
{¶ 44} In Dr. Johnson’s words, it became clear on March 28 that he and Dr. McDonald “were not going to finish a map before the Court’s midnight deadline without more direct guidance from the Commission members’ staff.” This became apparent despite the fact that on March 27, Dr. McDonald and Dr. Johnson presented three district plans to the commission and sought the commission’s guidance on outstanding issues to enable them to merge their ideas with the commission’s into a final plan. As time for completion grew shorter, the commission failed to provide the guidance that Dr. McDonald and Dr. Johnson needed, hindering their ability to complete their work.
{¶ 45} Particularly problematic was Senate President Huffman’s last-minute insistence that the independent map drawers consider the residence locations of non-term-limited and mid-term House and Senate incumbents in drafting a plan. The commission instructed the independent map drawers to consider incumbent residences “and where possible without violating constitutional principles, avoid pairing incumbents.” Although this instruction was not necessarily inconsistent with this court’s admonitions in League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 37, because it required the map drawers to consider incumbency only “where possible,” the timing of it pulled the rug out from under the independent map drawers. Rather than including the instruction in the March 23 “Ground Rules,”
{¶ 46} Although the commission appeared to be engaging in a more collaborative process in drafting a legislative map, the final day leading up to the adoption of the third revised plan revealed anything but that. Rather than helping the independent map drawers finish their work on a plan, the commission instead chose to modify a previously invalidated plan. That plan was prepared by a member of the Republican legislative caucus’s staff, and the Democratic commission members and the statewide-officeholder commission members were effectively prevented from participating in preparing the plan. These facts indicate beyond a reasonable doubt an intent to favor the Republican Party at the expense of the Democratic Party in the commission’s fourth try at drafting the General Assembly–district plan.
2. The third revised plan’s substantive noncompliance with Article XI, Section 6(A)
{¶ 47} In League III, we noted that the second revised plan contained 19 districts in which the Democratic vote share was between 50 and 52 percent with no comparably competitive Republican-leaning districts, resulting in the conclusion that “the 54 percent seat share for Republicans is a floor while the 46 percent share for Democrats is a ceiling—an observation similar to the one [this court] found persuasive in League II.” League III at ¶ 32. We found that “[t]he remarkably one-sided distribution of toss-up districts is evidence of an intentionally biased map * * *.” Id. at ¶ 33.
{¶ 49} As discussed above, the third revised plan is merely the second revised plan with just a few alterations. Even Senate President Huffman described it as “probably 97 percent” of the previous map. Two of petitioners’ experts, Dr. Michael Latner and Dr. Christopher Warshaw, calculate that regarding the House, only 451 census blocks out of more than 276,000 were assigned to a different district in the third revised plan, affecting only 0.265 percent of the total population. As Dr. Latner explains, “[o]therwise, the Second and Third Revised Plans are identical, which explains their similar performance.” Dr. Warshaw calculates that regarding the Senate, only 270 census blocks out of more than 276,000 were assigned to a different district in the third revised plan, affecting only 0.2 percent of the total population. Thus, 31 of 33 Senate districts and 92 of 99 House districts are the same in the third revised plan as they were in the second revised plan. Another of petitioners’ experts, Dr. Jonathan Rodden, explains that only a few district boundaries were moved in the Worthington/Upper Arlington area and in the Canton area, which shifted a few Democratic districts from just under a 52 percent Democratic vote share to just over a 52 percent Democratic vote share.
{¶ 51} Dr. Latner further observed:
A small two percentage point shift in the electorate in favor of Republicans would be expected to wipe out 17 Democratic House seats and 6 Democratic Senate seats, giving Republicans 72% percent of House seats and 73% percent of Senate seats—a supermajority in both chambers. Equivalent shifts among voters in favor of Democrats would not yield any additional seats * * *.”
(Emphasis deleted.) He further opined that, as before, the plan is structured to create a floor for Republicans and a ceiling for Democrats: “[S]imilar to the First and Second Revised Plans, the Third Revised Plan performs like a ‘winner-take-all’ gerrymander but with only a one-way ratchet in favor of Republicans.” In League III, this court found such a structure to be persuasive evidence of an
{¶ 52} Senate President Huffman and House Speaker Cupp point out that the third revised plan improves upon the second revised plan. While this may be true, the improvement falls short of landing in constitutional territory. Dr. Latner notes,
“Compared to the Second Revised Plan, the number of seats where Democrats win 5 percent or more than their statewide vote average has increased by one, slightly improving symmetry, but consistent with each of the Commission’s plans, Republicans maintain a substantial, and statistically significant, advantage.”
Similarly, regarding the Senate, the results mirror those of the second revised plan, with no more than marginal improvement in some sectors. The aggregate asymmetry in the assignment of toss-up districts remains strong evidence of an intentionally biased plan, as does the partisan asymmetry of the plan itself.
{¶ 53} Senate President Huffman and House Speaker Cupp argue that the third revised plan performs similarly to the rejected independent map drawers’ plan in the event of a hypothetical 5 percent swing in either party’s favor. They further argue that the independent map drawers’ plan was not a commission-drawn plan, because the commission members did not have the opportunity to propose amendments. But they fail to explain how their assertions about the independent map drawers’ plan relates to a Section 6(A) analysis or even how their actions and arguments negate the evidence of partisan intent with respect to the plan the commission actually adopted. Indeed, we found a Section 6(A) violation in League III without reference to or comparison with any of the proposed alternative plans. See id. at ¶ 24-37.
{¶ 54} Senate President Huffman and House Speaker Cupp also criticize the independent map drawers’ plan for what they call “hub and spoke” districts, “where the map drawer slices into an urban core and ‘spokes’ the district out of the urban core into a rural or suburban area.” They assert that these districts are noncompact and demonstrate that the third revised plan’s “supposed asymmetry * * * is not unreasonable and that to achieve ‘better’ symmetry cities must be carved up like a pizza.” But they cite no evidence or authority for the proposition that the “hub and spoke” districts they describe are not compact. And petitioners have submitted evidence showing that the independent map drawers’ plan has better scores for
{¶ 55} In sum, the third revised plan has not materially changed from the invalidated second revised plan. The evidence supports the finding that the third revised plan violates
C. Article XI, Section 6(B)
{¶ 56}
{¶ 57} In League II, this court held that if the term “favor” is to be applied equally to both parties, “the quality and degree of favoritism in each party’s allocated districts” may not be “grossly disparate.” Id. at ¶ 61. We explained that while Section 6(B) does not “prohibit[] the creation of competitive districts,” to give effect to the term “favor,” such districts “must either be excluded from the proportionality assessment or be allocated to each party in close proportion to its statewide vote share.” Id. at ¶ 62. We held that the revised plan at issue in League II violated Section 6(B), in part because that plan contained 12 competitive House districts with Democratic vote shares between 50 and 51 percent that the commission had counted
{¶ 58} In League III, this court held that the second revised plan violated Section 6(B) because it contained 26 districts (19 House districts and 7 Senate districts) with Democratic vote shares between 50 and 52 percent that the commission had counted as Democratic districts and zero such districts with similar Republican vote shares that were counted as Republican districts. ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 39, 42. We concluded that the 26 “so-called Democratic-leaning districts” did not “favor” the Democratic party and were instead “competitive” districts that must be excluded from the proportionality assessment. Id. at ¶ 41-42. In the second revised plan, 67.9 percent of the noncompetitive districts favored Republicans and 32.1 percent favored Democrats—leading us to conclude that the plan’s allocation of districts favoring each political party did not closely correspond to the statewide preferences of the voters. Id. at ¶ 42.
{¶ 59} The third revised plan contains 23 districts (17 House districts and 6 Senate districts) with Democratic vote shares between 50 and 52 percent—three fewer than did the second revised plan. As before, the third revised plan contains zero districts with a Republican vote share between 50 and 52 percent. For the reasons explained in League III, see id. at ¶ 40-42, these 23 competitive districts should be excluded from the proportionality assessment. Therefore, in the third revised plan, 66.1 percent of the noncompetitive districts favor Republicans and 33.9 percent favor Democrats. The third revised plan’s slight improvement over the second revised plan still leaves it far short of close correspondence with the statewide preferences of the voters. Indeed, this disproportionality is still greater than the original plan that we invalidated in League I, in which 64.4 percent of the districts favored the Republican Party. See ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 105.
{¶ 61} In their response to petitioners’ objections, Senate President Huffman and House Speaker Cupp compare each party’s seat share in the third revised plan and the independent map drawers’ plan in the event of a 5 percent statewide vote swing in each party’s favor. Their argument appears to be that the numbers look similar for both plans, so the asymmetry of the plans is similar. But Senate President Huffman and House Speaker Cupp fail to articulate how this comparison of the adopted plan with a nonadopted plan relates to the requirements of
{¶ 62} The third revised plan violates
D. Remedies
{¶ 63} Because the commission and its third revised plan did not and do not comply with
1. Adoption of an alternative plan
{¶ 64} The petitioners in Bennett v. Ohio Redistricting Comm. (Supreme Court case No. 2021-1198) and the petitioners in Ohio Organizing Collaborative v. Ohio Redistricting Comm. (Supreme Court case No. 2021-1210) (“OOC petitioners“) ask this court to itself adopt a plan—either the independent map drawers’ plan or Dr. Rodden’s latest plan (referred to previously as “the Rodden III plan“). We decline to do so because we lack the constitutional authority to grant that relief. The Ohio Constitution expressly forbids this court from “order[ing], in any circumstance, the implementation or enforcement of any general assembly district plan that has not been approved by the commission in the manner prescribed by this article.”
{¶ 65} The Bennett petitioners acknowledge that
{¶ 66} The OOC petitioners take a slightly different approach: they argue that this court should enforce the federal Constitution by adopting a General Assembly–district plan. Put another way, they ask us to disregard the Ohio Constitution to vindicate the federal Constitution. But there is not a basis for this court to grant relief under the OOC petitioners’ theory. For one thing, no petitioner has asserted a claim arising under the federal Constitution. And further, such a claim would conflict with the Ohio Constitution’s conferred standing in original jurisdiction that appears in
{¶ 67} The remedies suggested by the Bennett and OOC petitioners are based on their belief that a three-judge panel of the United States District Court for the Southern District of Ohio in Gonidakis v. Ohio Redistricting Comm., S.D. Ohio case No. 2:22-cv-0773, will order the implementation of a General Assembly plan by April 20, 2022. They are concerned that the federal court may implement a plan that we have already found unconstitutional, at least for the 2022 election cycle. According to the Bennett petitioners, questioning by the three-judge panel in Gonidakis during a March 30 preliminary-injunction hearing “made clear” that if the federal court does impose a plan, the options it is considering include the second revised plan that we declared invalid in League III, the third revised plan that we
{¶ 68} We are mindful of representations made by or on behalf of the secretary of state in the pending Gonidakis federal court proceedings that a district plan must be in place by April 20 for the last possible primary-election date for the 2022 election, August 2, to be feasible. However, we fail to see how this contention should motivate us—or the federal court for that matter—to adopt a plan for the 2022 state legislative elections by April 20. It is unclear as to why August 2, 2022, is the last available date for a primary election in Ohio.9 We note that several states will have primary elections on August 16, 2022, or later, including four states that will have their primary elections in September. National Conference of State Legislatures, 2022 State Primary Election Dates and Filing Deadlines (Apr. 4, 2022), https://www.ncsl.org/research/elections-and-campaigns/2022-state-primary-election-dates-and-filing-deadlines.aspx (accessed Apr. 12, 2022) [https://perma.cc/Y73V-2TSB]. Thus, on the record before us, the so-called April 20 “deadline” for implementing a General Assembly–district plan appears to be an artificial deadline that is based on a speculative, potential primary-election date for state legislative races.
{¶ 69} While the commission has yet to adopt a constitutionally valid plan in time for the May 3 primary election,10 sufficient time remains for the commission to perform its constitutional duty to adopt a valid General Assembly–district plan for use in the 2022 election cycle, including a primary election. Any suggestion that the federal court could—much less that it should—set an August 2 primary-election date as a remedy in the federal-court litigation strikes us as a dubious
{¶ 70} While the process has proved challenging for the commission, as evidenced by four legislative plans falling short of Article XI’s requirements, the difficulty of the task is not a reason for federal-court intervention. In this case, there is a clear and viable path forward to having a constitutionally valid General Assembly–district plan in place for the 2022 election cycle. As set forth in detail below, the independent map drawers retained by the commission after League III started the commission down what could be a viable path of a General Assembly–district plan that complies with
2. Validation of an alternative plan
{¶ 72} Senator Sykes and House Minority Leader Russo ask us to declare that the independent map drawers’ plan is presumptively constitutional. There is also no constitutional basis for this court to grant that remedy.
{¶ 73} We also note that by the admission of one of the plan’s primary drafters, Dr. Johnson, that plan is not yet fully completed. According to Dr. Johnson, certain potential constitutional defects cannot be identified without running reports that he did not have time to complete before the commission’s deadline for adopting the third revised plan.
E. Possible approach for the commission
{¶ 74} Though we do not have the power under
{¶ 75} The independent map drawers acknowledge that the process of finalizing their plan is incomplete. Although they have stated that they tried to comply with all provisions of the Constitution, no one has yet verified that their plan fully complies with
{¶ 76} Moreover, Dr. Rodden’s analysis indicates that the independent map drawers’ plan outperforms the third revised plan on a number of other metrics: the plan achieves partisan proportionality that closely corresponds to statewide voter preferences, splits fewer voting precincts, and is more compact as a whole. Dr. Rodden’s analysis also cuts against a consistent theme of respondents throughout this litigation—that the commission’s prior maps were necessitated by Ohio’s political geography. Dr. Rodden explained that the independent map drawers’ plan helps to confirm that this was not the case. In other words, the plan on which Dr. McDonald and Dr. Johnson performed considerable work appears on track to achieve what respondents have consistently argued is impossible due to Ohio’s political
{¶ 77} Regardless of the availability of Dr. McDonald and Dr. Johnson to complete their work on the plan they were preparing, the commission should continue the course it began when it followed our and the attorney general’s recommendations to engage independent map drawers. Even if the commission is unable to engage Dr. McDonald and Dr. Johnson, the commission has a head start toward a complete and possibly constitutionally compliant plan. Dr. McDonald and Dr. Johnson produced an almost completed set of General Assembly–district maps for which the commission agreed to pay them nearly $100,000. To completely abandon that work seems like a waste of resources and taxpayer dollars and could take us further away from the constitutionally required goal of a fair district plan. Just as in League III, when we recommended that the commission take certain steps to ensure a constitutional process, we now likewise express the view that the commission should use the independent map drawers’ work thus far as a starting point for the next plan.
IV. CONCLUSION
{¶ 78} We sustain petitioners’ objections to the third revised plan under
{¶ 80} 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 by 9:00 a.m., three days after the objections are filed. If the deadline for 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 of the court shall refuse to accept any filings under this paragraph that are untimely or prohibited.
{¶ 81} No requests or stipulations for extension of time for the objections or responses shall be filed, and the clerk shall refuse to file any requests or stipulations for extension of time. For good cause shown, the commission may file a motion for extension of time to file the district plan with the secretary of state. And for the reasons explained above, we deny petitioners’ requests for additional relief.
Objections sustained
and alternative or additional relief denied.
O’CONNOR, C.J., and STEWART and BRUNNER, JJ., concur.
DONNELLY, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion.
FISCHER, J., dissents, with an opinion and joins paragraphs 151-152 and 157-158 of JUSTICE DEWINE’S dissenting opinion.
DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
DONNELLY, J., concurring.
{¶ 82} I join the majority opinion in full. I write separately only to make some additional observations.
{¶ 84} But just when the independent map drawers were perilously close to showing that the difficult was achievable by drawing a General Assembly–district plan that satisfied the proportionality requirements of
{¶ 85} The independent map drawers’ efforts were apparently little more than a sideshow—yet more fodder in this political sport. In 2018, commission member and respondent Secretary of State Frank LaRose, who was then a state senator, co-authored an article calling for substantive changes to the way that state and federal-legislative districts are drawn. He was correct when he acknowledged at that time that “[a]lthough both parties have been guilty of unfairly reconfiguring districts to their benefit, Republicans have taken the heat in recent years for prominent gerrymandering cases.” LaRose & Olsen, The Supreme Court didn’t act on gerrymandering, so it’s up to state legislators to stop doing it, NBC News (June
{¶ 86} Yet, since the adoption of the constitutional reforms mandated by
{¶ 87} What appeared to be the start of a transparent redistricting process when the two independent map drawers were engaged by the commission became transparent only in the sense that it exposed the falsehood that some of the commission members had fulfilled their obligations under the Ohio Constitution. As to that, Ohioans are still watching and waiting.
KENNEDY, J., dissenting.
{¶ 88} The measure of power is its limits. Respecting the limits of power is essential to our American form of government. Anything less is an affront to it.
{¶ 89} The essential characteristic of our government—the separation of powers—is part of the woven fabric of the Ohio Constitution. See S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159 (1986). At their core, the issues in these cases concern that basic concept.
{¶ 90} In yet another wiping-egg-from-its-face moment, the majority retreats from its edicts in League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___ (“League III“), to explain that when it set out the steps the commission “should” take, it did not mean that the commission must take those steps, and it now admits to petitioners in these cases that this court does not have the power to tell the commission how to perform its constitutional duties. All the majority can do is “suggest” steps the commission could take. I agree that the Ohio Constitution does not give this court the power to tell respondent Ohio Redistricting Commission, an independent constitutional body, whom to hire, how to do its work, or who should draw a redistricting plan.
{¶ 91} By recognizing this limitation, the majority takes one step forward but two steps back, because it continues to ignore the limitations of its power by redefining its power under Section 9. The plain, limiting language of
{¶ 92} Because the Ohio Constitution does not give this court the power to tell the commission how it “should” exercise its power and perform its work, I agree with the majority that this court cannot hold it in contempt. I disagree, however, with the majority’s determination that this court may continue to exercise judicial power over these redistricting cases pursuant to
{¶ 93} The majority tries to walk back the imperative language it used in its March 16 decision, which stated that the commission “should” hire an independent map-drawing expert, convene frequent meetings to draw the maps in public, and adopt a plan prepared by the commission as a whole. League III, __ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __ at ¶ 30, 44. It now frames these directives as mere suggestions or recommendations, even though the word “should” expresses a duty or obligation, Webster‘s Third New International Dictionary 2104 (2002). The majority also attempts to shift responsibility for its overreach onto Ohio Attorney General Dave Yost, noting that he suggested treating the court‘s directions “with the degree of deference one might pay to the suggestions of one‘s spouse.”
{¶ 94} But regardless of how the majority characterizes its prior opinion, this court does not have the power to hold the commission or its members in contempt. This court recently explained in Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, that ” ‘[t]he power of contempt is inherent in a court, such power being necessary to the exercise of judicial functions.’ ” Id. at ¶ 22, quoting Denovchek v. Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988). The primary interest at stake in a contempt proceeding is the court‘s ” ‘authority and proper functioning,’ ” id., quoting Denovchek at 16, so a litigant may be held in contempt of court for conduct that ” ’ “brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions,” ’ ” id., quoting Denovchek at 15, quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph one of the syllabus.
{¶ 95} Our decision in Toledo continued, stating that ” ‘[i]f a valid restrictive order has been issued, a court has the statutory and inherent power to entertain contempt proceedings and punish disobedience of that order.’ ” Id. at ¶ 23, quoting Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 61, 556 N.E.2d 157 (1990). “But a court order cannot be enforced in contempt unless the order was ‘clear and definite, unambiguous, and not subject to dual interpretations.’ ” Id., quoting State ex rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, at ¶ 25.
{¶ 96} This court had no authority to tell the commission whom to hire or how to do its work; therefore, it follows that the court cannot hold the commission in contempt. Redistricting is a legislative process, Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 20, and “the great heritage of the common law and the principles of free government” provide the basis for legislative immunity and, by extension, immunity to others when exercising a legislative function, Bigelow v. Brumley, 138 Ohio St. 574, 582, 37 N.E.2d 584 (1941).
{¶ 97} Adherence to the defined roles of each branch is essential to the functioning of our representative democracy. Therefore, maintaining respect for the enumerated powers granted expressly to the commission precludes this court from interfering with the exercise of those powers or attempting to supervise the commission‘s work through the threat of contempt. In DeRolph v. State, the court‘s reasoning that “it is not the function of the judiciary to supervise or participate in the legislative and executive process” applies equally to the commission, an independent constitutional body exercising the legislative power. 78 Ohio St.3d 419, 420, 678 N.E.2d 886 (1997). It is therefore only after the commission has completed its work and adopted a General Assembly-district plan that this court has any power to review it. See Toledo at ¶ 29. Even then, the court may not invalidate the plan unless it is inconsistent with the Constitution. See id. “The separation-of-powers doctrine * * * precludes the judiciary from asserting control over ‘the performance of duties that are purely legislative in character and over which such legislative bodies have exclusive control.’ ” Toledo, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, at ¶ 27, quoting State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 633, 716 N.E.2d 704 (1999).
{¶ 98} For these reasons, the commission cannot be held in contempt for submitting a redistricting plan that did not come from the independent map drawers, because this court had no power to order the commission to hire the independent map drawers and to yield its constitutional power to them.
A Standalone Violation of Section 6 Is Not Actionable
{¶ 99} Seemingly, the majority eschews the limitations on this court‘s power established in
{¶ 100} No one disputes that this court‘s authority to review a General Assembly-district plan comes from
Alternative Remedies
{¶ 102} Petitioners ask this court to adopt the incomplete redistricting plan drawn by the commission‘s independent map drawers. However, this plan has not yet been judged in the crucible of cross-examination, and the majority admits that “no one has yet verified that their plan fully complies with
How Did We Get Here?
{¶ 103} This is the fourth time that petitioners have challenged the validity of a General Assembly-district plan adopted by the commission, and a majority of this court has invalidated each plan for not complying with
{¶ 104} This history is summarized in the following charts:
| League I, __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __ January 12, 2022 | |||
|---|---|---|---|
| Commission‘s Redistricting Plan | Petitioners’ Challenges | Majority‘s Holding | Majority‘s Order |
Plan favors Republicans:
|
|
|
|
| League II, __ Ohio St.3d __, 2022-Ohio-342, __ N.E.3d __ February 7, 2022 | |||
|---|---|---|---|
| Commission‘s Redistricting Plan | Petitioners’ Challenges | Majority‘s Holding | Majority‘s Order |
Plan favors Republicans:
|
|
|
|
| League III, __ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __ March 16, 2022 | |||
|---|---|---|---|
| Commission‘s Redistricting Plan | Petitioners’ Challenges | Majority‘s Holding | Majority‘s Order |
Plan favors Republicans:
|
Commission failed to adopt a new plan by February 17, 2022, and petitioners request that it be ordered to show cause why it should not be held in contempt. After the commission filed its plan, the chief justice continues the hearing on the show-cause order. Petitioners argue that the third revised plan violates
Petitioners contend that the plan violates |
|
|
| League of Women Voters of Ohio v. Ohio Redistricting Comm., __ Ohio St.3d __ 2022-Ohio-__, __ N.E.3d __ April 14, 2022 | |||
|---|---|---|---|
| Commission‘s Redistricting Plan | Petitioners’ Challenges | Majority‘s Holding | Majority‘s Order |
Plan favors Republicans:
|
Petitioners renew their motions to hold the commission in contempt and object to the third revised plan:
|
|
|
Conclusion
{¶ 107} The complaints in these cases allege that the General Assembly-district plan adopted by the commission is unconstitutional, because the commission failed to comply with
FISCHER, J., dissenting.
{¶ 108} I respectfully dissent from the majority opinion‘s decision to sustain petitioners’ objections to the latest General Assembly-district plan.
{¶ 109} As noted in my previous separate opinions, all three complaints in these cases allege that this matter is governed by the impasse procedures set forth in
{¶ 110} Accordingly, once again, the majority opinion fails to follow the words of the Ohio Constitution. See League III at ¶ 151 (Fischer, J., dissenting). In doing so, as more fully explained below, the majority opinion undermines, undercuts, and guts the entire structure of
{¶ 111} By eliminating the “stick” of a possible four-year plan, as specified in the Ohio Constitution in
{¶ 112} Without the continuing “threat” of the four-year plan as a “stick” to prod compromise, the majority opinion destroys
{¶ 113} Thus, we have yet another majority opinion declaring a plan of the commission unconstitutional—as there is no reason for any minority-party member of the commission to come to a compromise with the majority-party members of the commission, contrary to what
{¶ 114} One might argue that I overreached when using the word “generations” in my first dissent in these cases, League I at ¶ 351 (Fischer, J.,
II. The structure of Article XI, Section 8
{¶ 115} As I have said before, see id. at ¶ 282-286 (Fischer, J., dissenting); League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 152 (Fischer, J., dissenting),
(B) If the commission adopts a final general assembly district plan in accordance with division (A)(3) of this section 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 the next year ending in the numeral one, except as provided in Section 9 of this article.
(C)(1)(a) 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. (b) 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) of Section 1 of this article, and that plan is adopted to replace a plan that ceased to be effective under division (C)(1)(a) of this section before a year ending in the numeral one, the plan adopted under this division shall take effect upon filing with the secretary of state and shall remain effective until a year ending in the numeral one, except as provided in Section 9 of this article.
(Emphasis added.) I emphasize, once again, see League I at ¶ 286 (Fischer, J., dissenting); League II at ¶ 152 (Fischer, J., dissenting), that
III. The majority opinion continues to head in the wrong direction
{¶ 116} As a further “bad consequence” of ignoring this wording, the majority opinions have either wrongfully ordered or improperly “advised” the Ohio Redistricting Commission to take particular actions, and this court has no authority to do either of those things. See League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 30 (“[t]he commission should retain an independent map drawer” [emphasis added]); id. at ¶ 44 (“the drafting should occur in public and the commissioners should convene frequent meetings to demonstrate their bipartisan efforts to reach a constitutional plan within the time set by this court” [emphasis added]).
{¶ 118} And if the majority opinions’ wordings were merely “recommendations” or “advisory,” in any way, then the majority opinions—like today‘s version—constitute unconstitutional advisory opinions, in absolute disregard of longstanding and repeated caselaw of this court. See, e.g., State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.3d 508, ¶ 18 (“Our conclusion comports with our well-settled precedent that we will not indulge in advisory opinions“), citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 238, 242, 736 N.E.2d 893 (2000); Egan v. Natl. Distillers & Chem. Corp., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus (“it is well-settled that this court will not indulge in advisory opinions“). And as today‘s majority opinion, id. at ¶ 39, and concurring opinion, id. at ¶ 83 (Donnelly, J., concurring), indicate, if the “should” language was advisory and/or merely
{¶ 119} Either extraconstitutional action from these majority opinions is the result—and an outward and obvious sign or symbol—of this court far exceeding its role in Ohio‘s government, violating the separation of powers inherent in the Ohio Constitution, see Cleveland Bar Assn. v. Picklo, 96 Ohio St.3d 195, 2002-Ohio-3995, 772 N.E.2d 1187, ¶ 4, quoting S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986), citing State v. Warner, 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18 (1990); State ex rel. Atty. Gen. v. Harmon, 31 Ohio St. 250 (1877), and thus undermining the rule of law in this state—a mistaken and problematic role for this court, which must always act to support the rule of law.
{¶ 120} This latest majority opinion takes the extraconstitutional/unconstitutional approach a step further by conducting an approving advisory review of the independent map drawers’ incomplete plan, which the map drawers have not even reviewed to verify whether it complies with the Ohio Constitution, as acknowledged in the majority opinion. See majority opinion at ¶ 70. Again, this advisory review contravenes longstanding precedent from this court. See Egan at syllabus (“it is well-settled that this court will not indulge in advisory opinions“); Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E.21 (1910), quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) (” ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions * * *’ “).
{¶ 121} Not only does the majority opinion conduct an advisory review, but it also tries to “signal” to the commission what type of redistricting plan it demands, see majority opinion at ¶ 69-74, because the court knows that it cannot directly create a plan under
IV. Once again, the “beyond a reasonable doubt” standard has not been met
{¶ 122} I also point out that petitioners once again fail to prove anything beyond a reasonable doubt, which is the applicable standard in these cases. League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 153-154 (Fischer, J., dissenting), citing 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.
{¶ 123} As an initial example, Dr. Douglas Johnson‘s affidavit, as even today‘s majority opinion notes, majority opinion at ¶ 33, shows that the independent map drawers were constrained by Ohio‘s geography, Constitution, and time limitations. And one of the map drawers had to leave at the last minute. And the so-called independent maps have obvious constitutional problems, which Dr. Johnson acknowledged still needed to be resolved. It should be emphasized that the commission members did not have an opportunity to incorporate their own amendments into Dr. Johnson‘s work. Moreover, the “independence” of this map is dubious, as Dr. Johnson acknowledged that he used a portion of a map of northeast Ohio that was drawn by Chris Glassburn, a consultant who had been retained by the Democratic legislative caucuses. Thus, any evidentiary analysis in the majority opinion as to the maps that were submitted is wrongful, improper, and unconstitutional under our caselaw as well as
{¶ 124} As a second example, the majority opinion attempts to rely on Dr. Michael Latner‘s concept of a “2 percentage” change in future voting. Majority opinion at ¶ 51. This is, at best, pure speculation because the shift of 2 percentage points may not be equally distributed as current voting patterns occur, just like the
{¶ 125} Now, both concepts are speculative, at best, and based on in futuro concepts that are inadmissible under
{¶ 126} But even if not speculative and somehow admissible, both theories would then apply to this court‘s analysis. And if those pushing the 2 percent concept have the burden to show unconstitutionality beyond a reasonable doubt, then those submitting the 5 percent contrary authority negate the evidence supposedly amounting to proof beyond a reasonable doubt. In addition, while the majority opinion relies on the assertion that the map drawers were nearly finished with completing a map when commission members decided to move forward with an alternative approach, see majority opinion at ¶ 23, no one has offered an explanation why it took until April 12 for a so-called independent map to be filed with this court, see April 12, 2022 Notice of Filing, case No. 2021-1198. Once again, just like the prior majority opinions, the majority opinion here touts the proper standard of evidence but then refuses to actually enforce that standard. See League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 343 (Fischer, J., dissenting); League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 154 (Fischer, J., dissenting).
V. Conclusion
{¶ 127} The majority opinions in these cases continue to harm this court, the Ohio Constitution, and all citizens of this great state. These opinions have placed this state on an unconstitutional path. While this latest majority opinion asks
{¶ 128} For these reasons, in the hope of saving this honorable court from future misadventures like these, I respectfully dissent. See Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, at ¶ 32-33 (once a legislative act has been declared unconstitutional, the duty lies with the legislative branch to remedy that unconstitutional act and the courts should refrain from exercising further jurisdiction).
DEWINE, J., dissenting.
{¶ 129} It‘s deja vu all over again.12 For the fourth time, the majority holds that a map enacted by the Ohio Redistricting Commission violates the Ohio Constitution. That‘s what it says, anyway. But if anything is clear at this point, it is that the majority has long ago forsaken any concern about the actual words of the Constitution—it simply demands a General Assembly-district plan that achieves its policy goals.
{¶ 130} With each iteration of these cases, it becomes more evident that a rogue majority is simply exercising raw political power. No one should be
{¶ 131} A more comprehensive discussion of how the majority has gone astray is provided in the dissenting opinions in the previous decisions in these cases. See League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___; League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___ (”League II“); League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___ (”League III“). For today, I will make just a few points.
I. We have a mess on our hands because this court has ignored the constitutional limits on its authority
{¶ 132} Ohio will have two primary elections this year, costing taxpayers an estimated extra $20 to $25 million. Candidates and voters still have no idea which candidates will be running in which districts. And a federal court is weighing whether it needs to step in and save us from ourselves.
{¶ 133} All of this was easily avoidable. The Ohio Constitution explicitly provides that “if the supreme court of Ohio determines that a general assembly district plan adopted by the commission does not comply with the requirements of
{¶ 134} It may be that the architects of the General Assembly-redistricting amendment were overly optimistic. Perhaps the threat of a plan lasting only four years was not the stick it was thought to be to induce partisan political actors to cooperate. But that is the remedy provided by the Constitution—this court has no authority to make up one of its own. And now Ohio‘s citizens are paying in electoral chaos the price of this court‘s overreach.
II. The majority‘s extraconstitutional hostility toward competitive districts
{¶ 135} The Constitution says that the commission “shall attempt to draw a general assembly district plan” in which “[t]he statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.”
{¶ 136} The majority, though, has created a new standard—“partisan symmetry,” majority opinion, ¶ 75—found nowhere in the Constitution. It says that competitive districts ” ‘must either be excluded from the proportionality assessment or be allocated to each party in close proportion to its statewide vote share.’ ” Id. at ¶ 57, quoting League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 62. But why? And how? There is certainly no basis for this requirement in the text of the Constitution. And no one has shown that it is even possible to meet this judge-crafted standard.
{¶ 137} Indeed, the “independent map drawers” that the commission hired on the majority‘s instructions, League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___
{¶ 138} And the limited progress the independent map drawers made toward the majority’s made-up partisan-symmetry benchmark came at the expense of constitutional requirements governing compactness and keeping political subdivisions intact. Dr. Douglas Johnson, one of the independent map drawers, explained that in their “quest to get as close to symmetry” as possible, they were “kind of blowing through compactness.”
{¶ 139} As Speaker of the House Robert Cupp and President of the Senate Matt Huffman point out, the independent map drawers used a “hub and spoke” approach to draw districts in urban and suburban areas so that cities are carved up like slices of a pizza. The majority doesn’t dispute this characterization. (How could it?) Rather, it says respondents “cite no evidence or authority for the proposition that the ‘hub and spoke’ districts they describe are not compact.” Majority opinion at ¶ 54. No evidence? How about a simple eyeball test? Take a gander at a few examples of the independent map drawers’ work in Cincinnati, Akron, and Dayton:
{¶ 140} The Constitution requires that district boundaries be created “using the boundaries of counties, municipal corporations, and townships.”
{¶ 141} The work of the independent map drawers proves the lie of the majority’s premise. As every expert in this case—including the independent map drawers—to opine on the issue has acknowledged, the political geography of Ohio makes it nearly impossible to meet the majority’s requirement to achieve partisan symmetry in the makeup of competitive districts. See League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 90 (Kennedy and DeWine, JJ., dissenting). The majority’s answer is to require the commission to reverse-gerrymander (or hire map drawers who will)—that is, carve up Ohio’s metropolitan areas like a pie to maximize the number of solidly Democratic districts. In doing so, it commands exactly what the Constitution forbids: gerrymandering.
{¶ 142} The majority turns the language of
III. This court has no authority to direct the commission’s work or to advise its duties
{¶ 143} Likely fearing that an activist court would do exactly what the majority has done, the drafters of the redistricting amendment placed sharp limits on this court’s authority. In its first sentence, the amendment commands that the redistricting commission “shall be responsible for the redistricting of this state for the general assembly.” (Emphasis supplied.)
{¶ 145} Heeding the majority’s admonition, the commission hired two independent map drawers. It’s hard to see how a map drafted by independent map drawers would any more comply with the majority’s requirement that the plan be drafted by the commission than the previous plans that were drafted by staff and adopted by a majority vote of the commission. After all, neither would be drafted collectively by the commission. But the commission nonetheless did what it was told. And while the independent map drawers made substantial progress in drafting a plan, they were not able to comply with the arbitrary 12-day deadline this court had set.
{¶ 146} One might think that the majority would have learned a lesson about imposing arbitrary deadlines on an independent constitutional body. Apparently not. Instead, it engages in a remarkable bit of revisionist history. The majority acknowledges that the independent map drawers were unable to meet this court’s deadline. But instead of recognizing the failure of its attempt to micromanage the commission’s work, it faults the commission for not asking for an extension of the deadline. And it goes so far as to claim that Senate President Huffman and House Speaker Cupp misread League III when they told the
{¶ 147} But that is exactly what League III provided. Paragraph 45 of League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, ordered the commission to file the district plan with the secretary of state no later than March 28 and with this court by 9:00 the next morning. Paragraph 46 ordered objections to be filed no more than three days later. And paragraph 47 provided that “[n]o 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.” The majority now says that “it is not proper to read paragraph 47 in isolation; it should be read in context. And in the paragraph prior to paragraph 47, we stated that untimely filings ‘under this paragraph’ were prohibited.” Majority opinion at ¶ 40, fn. 8. That’s nonsense. If paragraph 47 was meant to be a continuation of paragraph 46, there would have been no need to make it a separate paragraph at all. By making paragraph 47’s no-extensions order into a separate paragraph and placing it immediately after the two paragraphs setting deadlines, it is clear that the court meant no extensions would be granted. Period.
IV. The majority’s cavalier approach to Ohio election law and the duties of Ohio’s election officials
{¶ 148} The majority spends a good portion of its opinion practically begging a federal court not to intervene and clean up the mess that the majority has created. At the same time, though, the majority inspires little confidence that it will allow the state of Ohio to conduct an orderly election. To the contrary, it cavalierly treats Ohio’s statutory framework for elections as an unnecessary nuisance and disregards the complexities of holding multiple elections in a short time frame.
{¶ 149} In addition to the regular May primary in non-presidential-election years and the November general election,
We are mindful of representations made by or on behalf of the secretary of state in the pending Gonidakis federal-court proceedings that a district plan must be in place by April 20 for the last possible primary-election date for the 2022 election, August 2, to be feasible. However, we fail to see how this contention should motivate us—or the federal court for that matter—to adopt a plan for the 2022 state legislative elections by April 20. It is unclear as to why August 2, 2022, is the last available date for a primary election in Ohio. We note that several states have primary elections on August 16, 2022, or later, including four states that will have their primary elections in September. Thus, on the record before us, the so-called April 20 “deadline” for implementing a General Assembly-district plan appears to be an artificial deadline that is based on a speculative, potential primary-election date for state legislative races.
(Emphasis supplied; footnote and citation omitted.) Majority opinion at ¶ 68, citing Gonidakis v. Ohio Redistricting Comm., S.D.Ohio case No. 2:22-cv-0773. Wow. Take a minute to unpack what the majority has just said.
{¶ 150} Start with the majority’s assertion that this court shouldn’t be “motivated” by deadlines based on election dates established by statute. That right there pretty much sums up the majority’s attitude about the other—supposedly coequal—branches of government. The legislature’s considered judgment about when to hold elections matters not; there is no reason to bother the court with such frivolities. But see
{¶ 151} Next, consider the majority’s characterization of the secretary of state’s representation that to hold an orderly election, districts must be finalized by April 20. The majority brushes this off as “an artificial deadline that is based on a speculative, potential primary-election date for state legislative races.” Majority opinion at ¶ 68. What possibly is the basis for this claim by the majority? The majority hasn’t asked for any evidence on this point from the secretary of state, the “chief election officer of the state,”
{¶ 152} Indeed, the majority does not even try to account for the myriad laws that govern elections in Ohio and the constraints that they impose on the timing of elections. For example, under the Uniformed and Overseas Citizens Absentee Voting Act,
{¶ 153} Then there are the practical difficulties in holding another primary election close in time to the general election. Ohio had some 3,563 polling places
{¶ 154} (And let’s not forget why we have elections in the first place. The voters are entitled to the information they need to make meaningful choices. That entails some period of time in which voters and candidates know the district lines so candidates can campaign and voters can assess the candidates.)
{¶ 155} To be fair, I can’t say with certainty that what the majority suggests is impossible. But the majority cannot fairly say that it is possible. We are judges, after all, not election officials. We have no institutional expertise in the mechanics of holding elections. And the person who does—Ohio’s secretary of state—has made clear that he thinks April 20 is the drop-dead date for holding an orderly election. There is nothing in the record before us that would suggest that that is untrue. This court is no better qualified to dispute the administrative calculus of Ohio’s chief election official than is the secretary of state to tell this court the meaning of the Ohio Constitution. See majority opinion at ¶ 36 (“We do not defer to the commission’s legal interpretations“).
{¶ 156} At this juncture, though, the majority’s dismissive attitude toward the practical concerns of holding an orderly election should hardly come as a
{¶ 157} Furthermore, the majority has made the commission’s task considerably more difficult by prohibiting it from using a previously invalidated plan as a starting point. See id. ¶ 78 (“We further order * * * that the commission draft and adopt an entirely new General Assembly-district plan“); see also League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 38. In the eyes of the majority, issuing a revised plan that is “no more than a modification” of a previously invalidated plan, majority opinion at ¶ 42, is ” ‘tantamount to an intent to preserve as much partisan favoritism as could be salvaged from the invalidated plan,’ ” id. at ¶ 41, quoting League II at ¶ 38. Why on earth should that be the case? Isn’t it conceivable that a few tweaks could fix a close-but-not-quite-good-enough plan? Nonetheless, it seems that the commission has only two options that will satisfy the majority: either try to fix the independent map drawers’ slice-and-dice plan or start entirely from scratch. What basis for that is there in the Constitution?
{¶ 158} Indeed, it is amazing that despite prohibiting the commission from working off its previous plan, the majority has no qualms about strongly suggesting that the commission work from the independent map drawers’ plan—a plan that has never been adopted or subjected to adversarial testing. The majority tells the commission that it “appears that the most efficient” course is for the independent map drawers to continue to work on the map and it provides various other guidance about how the commission should proceed. Majority opinion at ¶ 74. This court,
V. Conclusion
{¶ 159} This court’s job is to adhere to the text of the Constitution. It is not to impose extraconstitutional standards on the commission in an attempt to achieve political outcomes that the court finds desirable. And it is not to micromanage a task that the Constitution entrusts solely to the commission.
{¶ 160} If it is really true that history repeats itself, first as tragedy then as farce, we are now comfortably in the farce stage. The fourth enacted plan complies with all constitutional standards. It is long past time for the majority to acknowledge as much and put an end to the chaos it has created. Because the majority does not, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
FISCHER, J., concurs in paragraphs 151-152 and paragraphs 157-158 of the foregoing opinion.
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ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey; American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González, Juliana Goldrosen, David Denuyl, Alexander Thomson, Anupam Sharma, and Yale Fu, for petitioners in Supreme Court 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,
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, and Harry Isaiah Black, for petitioners in Supreme Court 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, Jonathan D. Blanton, Deputy Attorney General, Michael J. Hendershot, Deputy Solicitor, and Julie M. Pfeiffer and Michael A. Walton, Assistant Attorneys General; and Dickinson Wright, P.L.L.C., David A. Lockshaw Jr., Terrence O’Donnell, and Manuel D. Cardona, for respondent Ohio Secretary of State Frank LaRose.
Bricker & Eckler, L.L.P., Brodi J. Conover, and Anne Marie Sferra, for respondent Auditor of State Keith Faber.
Dave Yost, Ohio Attorney General, and 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, special counsel to Attorney General Dave Yost, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp.
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