NEIMAN ET AL. v. LAROSE, SECY., ET AL.; LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. LAROSE, SECY., ET AL.
Nos. 2022-0298 and 2022-0303
Supreme Court of Ohio
July 19, 2022
2022-Ohio-2471
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-2471
NEIMAN ET AL. v. LAROSE, SECY., ET AL.
LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. LAROSE, SECY., ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Neiman v. LaRose, Slip Opinion No. 2022-Ohio-2471.]
Redistricting—Original actions under
(Nos. 2022-0298 and 2022-0303—Submitted June 14, 2022—Decided July 19, 2022.)
ORIGINAL ACTIONS filed pursuant to
I. INTRODUCTION
{1} On January 14, 2022, this court held that the congressional-district plan passed by the General Assembly and signed by the governor in November 2021 was invalid in its entirety. Adams v. DeWine, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, ¶ 5, 102. We held that the plan unduly favored the Republican Party and disfavored the Democratic Party in violation of
{2} Under
{3} Two sets of petitioners have filed original actions challenging the March 2 plan.1 We hold that the March 2 plan unduly favors the Republican Party and disfavors the Democratic Party in violation of
A. Article XIX‘s remediation process
{4}
{5} If the General Assembly does not timely pass a remedial plan, “the Ohio redistricting commission shall be reconstituted and reconvene and shall adopt a congressional district plan” in accordance with the Constitution. Id. at
B. The General Assembly did not pass a remedial plan
{6} We issued our decision in Adams on January 14, 2022. On February 2, Blake Springhetti, an employee of the House Republican caucus and a drawer of the plan that we invalidated in Adams, id. at ¶ 15-17, sent an email with the subject line “Proposed Plan Information” to respondent Speaker of the House Robert Cupp. The email included attachments with what appear to be maps of proposed
{7} House Speaker Cupp later said that because of the 90-day referendum period for new laws, he believed the legislature did not have enough time to enact a new plan before the May 3, 2022 primary election.2 He pointed out that any plan adopted by the commission would instead become effective immediately and therefore allow Ohio to maintain the May 3 primary date regarding the election of members to Congress.
C. President of the Senate Huffman introduces a plan to the commission
{8} As a result of the General Assembly‘s failure to act, the responsibility for congressional redistricting transferred to the commission on February 14. On February 21, Springhetti sent an email with the subject line “Congressional Plan Information” to the office of Auditor of State Keith Faber, a commission member. The email again included attachments with what appear to be maps of proposed congressional districts.
{9} On February 22, the commission first met to discuss congressional redistricting. House Speaker Cupp said that he and the other commission cochair, Senator Vernon Sykes, had asked their staffs to begin working together to draft a proposed congressional-district plan. The commission also announced that it would schedule hearings so that members of the public could testify about proposed plans that they had submitted to the commission. The commission held those hearings on February 23 and 24. On February 22, Dr. Kosuke Imai, a statistics
{10} On February 25, respondent President of the Senate Matt Huffman sent letters to the other commission members advising them that Ray DiRossi, an employee of the Senate Republican caucus and a drawer of the plan that we invalidated in Adams, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, at ¶ 15-18, was available to meet with the other commission members. House Speaker Cupp sent a similar letter inviting the other commission members to work with Springhetti. On Sunday, February 27, DiRossi and Springhetti met with the staffs of the commission‘s two Democratic Party members, Senator Sykes and House Minority Leader Allison Russo. Senator Sykes later described that meeting as a “one way communication” because, in his view, Democratic staffers shared their ideas at the meeting but the Republican map drawers were not as forthcoming. Senate President Huffman disagreed with Senator Sykes‘s characterization of the meeting.
{11} Regardless, Senator Sykes and House Minority Leader Russo both indicated that during the meeting, DiRossi and Springhetti did not share any proposed plans with the Democratic staffers. Another commission member, respondent Secretary of State Frank LaRose, acknowledged that he had first viewed a “working draft” of a new congressional-district plan on February 27—the same day as the Republican map drawers’ meeting with the Democratic staffers. And on the same date, Secretary LaRose texted Auditor Faber a screen shot of a district plan that was very similar to the plan that the commission later adopted on March 2.
{12} When the commission met again on Tuesday, March 1, Senate President Huffman introduced a proposed congressional-district plan. House Minority Leader Russo said that because she had received a copy of the proposal
{13} First, she asked why the proposal combined Cincinnati with Warren County instead of keeping Cincinnati within a district entirely within Hamilton County. She also asked whether the proposal addressed this court‘s concern in Adams about carving out Hamilton County‘s Black population from surrounding neighborhoods. In response, Senate President Huffman said that pursuant to
{14} Second, House Minority Leader Russo asked why proposed Districts 5 and 9 in northwest Ohio were drawn the way they were and, more specifically, why Lucas County was not drawn into a more compact district with Lorain County. Among other things, Senate President Huffman said that District 9 remained unchanged from the original map “because the court did not comment” on that district and “the constitutional charge” was to remedy the defects that this court identified in its opinion in Adams.
{15} Third, House Minority Leader Russo asked why portions of Franklin County in proposed District 15 were combined with far-away counties rather than
{16} Fourth, House Minority Leader Russo asked why proposed District 7 combined the western and southern suburban areas of Cuyahoga County with dissimilar counties to the south, which included Amish Country, rather than creating a more compact district by combining the Cuyahoga County areas with areas to the west or east of Cuyahoga County. Senate President Huffman responded that regarding northeast Ohio, the proposed plan had, for the most part, created very compact districts and that the Polsby-Popper scoring method had rated the proposal as just as compact or more compact than a plan that had been proposed by Senate Democrats.4 For example, he noted that the proposed new District 13, which he described as a “[D]emocratic drawn district,” would include all of Summit County, which was “what the court specifically provided.” He acknowledged that proposed District 7 “is a little like [the] 15th where it‘s made up of parts,” but he also noted that it included two whole counties and was drawn so that the plan complied with this court‘s directive in Adams not to split Cuyahoga County into more than two districts.
{17} After commission members discussed whether a bipartisan vote was required to adopt a new plan, the commission agreed to meet again the following day.
{18} At the beginning of the March 2 meeting, Senator Sykes moved the commission to adopt a congressional-district plan proposed by the Senate Democrats that consisted of eight Republican and seven Democratic districts. After the commission voted five to two along party lines to reject the proposal, Senate President Huffman moved the commission to adopt his plan, which included two “slight changes” from the map that he had introduced the day before.
{19} House Minority Leader Russo proposed an amendment to Senate President Huffman‘s plan that she believed would make the plan comply with this court‘s decision in Adams and not unduly favor Republicans and disfavor Democrats. Her amendment included four proposals: (1) changing Districts 1 and 8 so that District 1, which included Cincinnati, would be wholly within Hamilton County and District 8 would include Warren County, (2) swapping territory in northwest Ohio in Districts 5 and 9 to make District 9 more compact and not a toss-up district, (3) modifying Districts 3, 4, and 15 in central Ohio to create a more compact District 15 that would have a partisan index “slightly above the toss-up range” (presumably more in favor of Democrats) and better link more “cohesive” communities, and (4) modifying Districts 7 and 11 in Cuyahoga County so that District 7 would become a Democratic-leaning toss-up district.
{20} Senate President Huffman opposed the proposed amendment and opined that the standards set forth in
{21} House Minority Leader Russo asked that the commission “take a day” to attempt to reach a bipartisan compromise and avoid further court intervention, but the commission voted five to two along party lines to reject her amendment. Without further discussion, the commission also voted five to two, again along party lines, to adopt Senate President Huffman‘s proposal as the new congressional-district plan.
E. Petitioners file motions to enforce this court‘s judgment and for leave to amend their complaints
{22} A few days after the commission adopted the March 2 plan, the petitioners in the Adams litigation filed motions to enforce this court‘s January 14, 2022 order, arguing that the March 2 plan violated
{23} Less than a week after we denied the postjudgment motions in the Adams litigation, two new lawsuits were filed in this court challenging the March 2 plan. The first case, case No. 2022-0298, was filed by the Neiman petitioners. The second case, case No. 2022-0303, was filed by the League petitioners. In the complaints in both cases, the petitioners named four respondents: Secretary LaRose in his official capacity as secretary of state, House Speaker Cupp in his official capacity as House speaker, Senate President Huffman in his official capacity as Senate president, and the commission.
{24} The Neiman petitioners requested a highly expedited scheduling order so that this court could resolve their claims before the May 3 primary election. Although the League petitioners also sought an expedited scheduling order, they did not seek relief for the 2022 election. Secretary LaRose, Senate President Huffman, and House Speaker Cupp opposed petitioners’ requests to expedite the cases. Among other arguments, Senate President Huffman and House Speaker Cupp argued that they needed time to engage in meaningful discovery pertaining to petitioners’ experts. On March 29, we issued a scheduling order that expedited these matters but set briefing and evidence deadlines past the May 3 primary date. 166 Ohio St.3d 1452, 2022-Ohio-1016, 184 N.E.3d 138. We also consolidated the two cases. Id.
{25} The parties submitted evidence by April 25 and completed briefing on June 1. As evidence, the parties filed five new expert reports relating to the March 2 plan and a voluminous number of documents—many in response to petitioners’ discovery requests. Although House Speaker Cupp and Senate President Huffman retained an expert to review the documents produced by one of petitioners’ experts, they did not depose any of petitioners’ experts.
{26} On May 3, Ohio held a primary election that included voting for candidates in congressional districts drawn under the March 2 plan.
A. The burden and standard of proof
{27} In Adams, we held that the first congressional-district plan was presumptively constitutional because it was passed as legislation by the General Assembly. Adams, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, at ¶ 26. Although the March 2 plan was adopted by the commission, it is also entitled to a presumption of constitutionality. See League of Women Voters of Ohio v. Ohio Redistricting Comm., _ Ohio St.3d _, 2022-Ohio-65, _ N.E.3d _, ¶ 76 (holding that a General Assembly-district plan adopted by the commission was presumptively constitutional). Accordingly, as in Adams, petitioners have the burden of proving that the March 2 plan violates the Constitution. See Adams at ¶ 26. In Adams, we assumed that petitioners’ challenge was subject to the highest standard of proof: proof beyond a reasonable doubt. Id. at ¶ 29. We do not defer to the commission on questions of law. See Id. at ¶ 28.
B. The commission had to remedy the original congressional-district plan‘s defects
{28}
adopted by the commission and that Article XIX permits all commission-adopted plans to unduly favor a political party and unduly split governmental units. We reject this argument.
{29} The commission‘s constitutional duty is to adopt a congressional-district plan to replace the original, invalidated plan. That duty arises under
{30} Contrary to the arguments of Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe, this court‘s order that the commission correct the General Assembly‘s noncompliance with
{31} Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe argue that requiring the commission to remedy the General Assembly‘s noncompliance with
C. Article XIX, Section 1(C)(3)(a)
{32} In Adams, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, at ¶ 40, we explained that
{33} To start, it is notable that Senate President Huffman and House Speaker Cupp do not believe that the commission is required to refrain from unduly favoring one political party over the other. At the March 2 meeting, Senate President Huffman explained at length his belief that the commission is not constrained by the standard set forth in
2. Expected performance
{34} In Adams, we began by examining how the two major political parties were expected to perform under the original plan. Id. at ¶ 42. We relied on the expert evidence that had been submitted showing that Republicans were likely to win 80 percent of the seats (i.e., 12 out of 15) under that plan, despite receiving only about 53 percent of the vote in recent statewide elections. Id. at ¶ 47-50. We concluded that the original plan was a statistical outlier, exhibiting significant bias in favor of the Republican Party. Id.
{35} The parties have now submitted evidence showing that the March 2 plan is only slightly less favorable to the Republican Party (or more favorable to the Democratic Party) than the original plan. The March 2 plan has five Democratic-leaning districts and ten Republican-leaning districts. But three of the five Democratic-leaning districts have Democratic vote shares very close to 50
{36} The March 2 plan creates just three seats with Democratic vote shares over 52 percent (and one of those is at 52.15 percent). By contrast, all the Republican-leaning seats comfortably favor Republican candidates. The most competitive Republican-leaning district has a 53.32 percent Republican vote share. Thus, the best-case projected outcome for Democratic candidates under the March 2 plan is that they will win four—roughly 27 percent—of the seats. Considering that Democratic candidates have received about 47 percent of the vote in recent statewide elections, this probable outcome represents only a modest improvement over the invalidated plan. Indeed, according to Dr. Imai, any plan in which Democratic candidates are likely to win fewer than six seats is considered a statistical outlier.
3. Comparisons focusing on urban counties
{37} In Adams, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, we also were persuaded by evidence showing that the original plan maximized the number of Republican-leaning districts by “cracking” and “packing” Democratic voters in several urban counties. Id. at ¶ 53-54, 58, 61. We noted substantial evidence showing that the original plan contained districts in Ohio‘s three largest metropolitan areas that were shaped not by neutral political geography but by an effort to “pack” and “crack” Democratic voters—resulting in more districts in
{38} Petitioners have presented similar evidence concerning the March 2 plan. With respect to the Cincinnati area, Dr. Imai concludes that the March 2 plan has no safe Democratic seat in Hamilton County. Dr. Imai compared the partisan vote share of the district that each precinct in Hamilton County is assigned to in the March 2 plan against the vote share of each precinct‘s assigned district in each of the 5,000 simulated plans he created. His analysis shows that the simulated plans would expect voters in Cincinnati and a large area of northern Hamilton County to be included in a Democratic-leaning district. As shown in the map below, the March 2 plan draws a district line directly through the Democratic area, carving it into two districts—one of which, as in the original plan, connects Cincinnati to mostly rural Warren County through a narrow strip of land.
As Dr. Imai explained, “in Hamilton County, the [March 2] plan turns one safe Democratic district into a toss-up district by cracking Democratic voters.”
{39} Dr. Jowei Chen, an associate professor of political science at the University of Michigan who has published academic papers on legislative
{40} With respect to the Columbus area, Dr. Imai‘s simulated plans would expect all of Franklin County and parts of Delaware County and Fairfield County to belong to Democratic-leaning districts. But according to Dr. Imai, the March 2 plan packs Democrats into District 3 and cracks the rest into other districts, including District 15—which encompasses downtown Columbus and stretches into Shelby County, as shown in the map below.
{41} Dr. Chen states that the two Columbus districts in the March 2 plan are more favorable to Republican candidates than the majority of those in his simulated plans: District 3 is more heavily Democratic than 89.6 percent of the simulated plans’ districts containing the most Columbus population, while District 15 is more heavily Republican than 99.4 percent of the simulated plans’ districts containing the second-highest Columbus population. Dr. Chen states that District 15 is also less compact than nearly every simulated district with the second-highest Columbus population. Dr. Imai similarly found District 15 to be far less compact than expected based on his simulated plans. Dr. Chen concludes that the two Columbus districts were engineered to create a more Republican-friendly outcome, achieved in part by sacrificing the compactness of District 15.
{42} Finally, with respect to the Cleveland area, Dr. Chen concludes that the Cleveland-based district in the March 2 plan is more heavily Democratic than 98.8 percent of the simulated plans’ Cleveland-based districts, while the district with the second-highest Cuyahoga County population is more Republican than 100 percent of the simulated plans’ districts with the second-highest Cuyahoga County population. All of Dr. Chen‘s simulated plans have one safe Democratic district based in Cleveland and a second competitive or Democratic-leaning district that includes parts of Cuyahoga County. In contrast, the March 2 plan packs Democrats into District 11, making District 7 safely Republican. Both districts, according to Dr. Chen, “are significantly less geographically compact than the vast majority of their geographically analogous districts in the simulated plans.”
{43} Dr. Imai submitted an example plan (which was also submitted to the commission on February 22) showing a more compact treatment of all three of Ohio‘s largest urban areas and containing six districts favoring Democrats. According to Dr. Imai, his example plan shows it is possible to apply Article XIX
{44} In Adams, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, at ¶ 62, we held that the original plan contained oddly shaped districts in each of Ohio‘s three largest metropolitan areas and that the “inescapable conclusion” was that those districts were “the product of an effort to pack and crack Democratic voters.” As the above expert analyses demonstrate, those problems persist in the March 2 plan.
4. Additional comparisons
{45} Dr. Imai compared the partisan vote shares of the March 2 plan‘s districts with those of his 5,000 simulated plans and concluded that the three most competitive Democratic-leaning districts in the March 2 plan are much less Democratic-leaning than almost all of the Democratic-leaning districts in his simulated plans. One of those districts in the March 2 plan has a Republican vote share that is 1.9 standard deviations above the median Republican vote share of the comparable districts in the simulated plans and has a Republican vote share that is higher than the Republican vote share in 86.6 percent of the simulated plans’ counterpart districts. The other two districts have Republican vote shares that are 2.8 and 3.5 standard deviations above the median for comparable districts in the simulated plans and are higher than 99.75 percent of the simulated plans’ counterpart districts.
{46} Dr. Imai also identified two districts that are slightly Republican-leaning toss-up districts under the simulated plans yet are safely Republican under the March 2 plan. These districts (District 10 and District 15) have Republican vote shares that are 3.4 and 5.5 standard deviations above the median of comparable simulated districts. And he analyzed the districts at the extremes of vote share for each party, concluding that the two most-Democratic districts (District 3 and District 11) are packed, having lower Republican vote shares than counterpart districts in the simulated plans. By contrast, the most-Republican districts are less
{47} Dr. Chen similarly compared the March 2 plan to his 1,000 simulated plans, leading him to conclude that the March 2 plan “is an extreme partisan outlier, both at a statewide level and with respect to the partisan characteristics of its individual districts.” As noted above, according to Dr. Chen, the most-Democratic district in the March 2 plan (District 11 in Cleveland) is more heavily Democratic than 98.8 percent of the most-Democratic districts in each of Dr. Chen‘s 1,000 simulated plans. The second-most-Democratic district in the March 2 plan (District 3 in Columbus) is more heavily Democratic than 90.4 percent of the second-most-Democratic districts in each of the simulated plans. In comparison, the most-Republican district (District 2 in southern Ohio) is less heavily Republican than 90.1 percent of the most-Republican districts in Dr. Chen‘s simulated plans.
{48} According to Dr. Chen, these characteristics “are consistent with an effort to favor the Republican Party by packing Democratic voters into a small number of districts that very heavily favor the Democratic party.” Dr. Chen concludes that by allocating more Democratic voters to the most partisan districts, the March 2 plan allocates fewer Democratic voters to other districts, making them more Republican. Dr. Chen notes that four districts in the March 2 plan have higher Republican vote shares than 95 percent of their counterpart districts in the simulated plans, making them unusually safe Republican districts due to the packing of Democratic voters into Districts 2, 3, and 11.
{49} Using the definition of “competitive” promoted by the proponents of the original congressional-district plan (i.e., having a partisan vote share between 46 and 54 percent), Dr. Chen further concludes that the March 2 plan is a statistical outlier. See Adams, _ Ohio St.3d _, 2022-Ohio-89, _ N.E.3d _, at ¶ 19. The
March 2 plan has nine “safe Republican” districts (one more than the original plan), which is more than the number of safe-Republican districts in 97 percent of Dr. Chen‘s 1,000 simulated plans. The March 2 plan includes two safe-Democratic districts (the same as the original plan), which is fewer than the number of safe-Democratic districts in 95 percent of the simulated plans.
{50} Finally, Dr. Chen notes that the March 2 plan is less compact than all 1,000 of his simulated plans under the Polsby-Popper and Reock metrics.6
{51} Dr. Imai‘s and Dr. Chen‘s comparison analyses show that the March 2 plan‘s significant favoritism of the Republican Party did not result from the application of neutral map-drawing criteria.
5. Other measures of partisan bias
{52} In Adams, we credited expert analysis showing that the original plan unduly favored the Republican Party and disfavored the Democratic Party. ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, at ¶ 63-66. Petitioners have presented similar evidence showing that the March 2 plan likewise unduly favors the Republican Party.
{53} Dr. Rodden concluded that a 3 percent statewide shift in favor of Democrats (bringing them to 50 percent of the statewide vote) would lead to Democrats winning, at most, five seats (i.e., 33 percent of the seats) under the March 2 plan. A 3 percent shift in favor of Republicans (bringing them to 56 percent of the statewide vote) would lead to Republicans winning 13 seats (i.e., 87 percent of the seats). Dr. Rodden also calculated that the March 2 plan has an
{54} Dr. Rodden further points out that the March 2 plan treats Republican and Democratic incumbents differently. Of 12 Republican incumbents, ten are in safe Republican-leaning districts, one is in a nominally Democratic-leaning district that retains about 70 percent of the population of his previous district, and one did not seek reelection. By contrast, of the four Democratic incumbents, two are in safe Democratic-leaning districts, one is in a district with a bare Democratic majority with only about half of the residents of the new district having been residents of her previous district, and one did not seek reelection.
{55} Finally, Dr. Warshaw submitted three charts comparing the congressional-district plan that was in effect from 2011 through 2020, the invalidated plan, and the March 2 plan. Applying several social-science metrics to a variety of data sets, Dr. Warshaw shows that the March 2 plan is nearly as biased as last decade‘s plan and the invalidated plan. This evidence supports the conclusion that the March 2 plan unduly favors the Republican Party.
6. Petitioners have satisfied their burden
{56} Petitioners have satisfied their burden by showing beyond a reasonable doubt that the March 2 plan unduly favors the Republican Party in violation of
{57} Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe offer little in response to petitioners’ evidence. They start by questioning the idea that experts can assist the court in determining whether a plan complies with the standards set forth in
{58} Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe nevertheless argue that even if we consider petitioners’ evidence, it is “conflicting and contradictory.” They give two examples. First, they argue that all of Dr. Imai‘s simulated plans included eight or nine Republican-leaning districts while most of Dr. Chen‘s simulated plans included ten Republican-leaning districts. Second, they criticize the example plan that Dr. Imai submitted to the commission because it included nine Republican-leaning districts, even though most (80 percent) of his simulated plans included only eight Republican-leaning districts. The fact that the experts have identified a range of probable Republican-leaning seats (rather than a definitive number), they say, shows that the experts’ “‘math’ is unreliable.” These criticisms are unfounded. Even though Dr. Imai and Dr. Chen predict different seat allocations depending on the methods of
{59} Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe also assert that Dr. Imai has put his “thumb on the scale” and “gam[ed] the math” by using data from six statewide federal elections from 2012 to 2020 (referred to in Adams as the “FEDEA dataset“) to predict that Republicans should expect to win eight, or maybe nine, seats. See Adams at ¶ 19, 48-49. They cite to the analysis of their own expert, Sean P. Trende, who is the senior elections analyst for RealClearPolitics, a company that produces a political website, and a visiting scholar at the American Enterprise Institute focusing on American politics. His analysis shows that when different data sets are applied to Dr. Imai‘s simulation program, more than eight or nine Republican seats can be expected. Trende‘s analysis, however, does not undermine the reliability of Dr. Imai‘s projections. Dr. Imai explained that he used the FEDEA dataset because that was the data set the General Assembly had used in assessing the plan it passed. Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe have not shown and cannot show that Dr. Imai‘s analysis has been manipulated to derive a particular result favorable to petitioners’ cases.
{60} As a final matter, Senate President Huffman, House Speaker Cupp, Senator McColley, and Representative LaRe claim that we should not rely on petitioners’ evidence, because there has not been time for full discovery, particularly the cross-examination of petitioners’ experts. This argument, too, is not based on sound reasoning. The scheduling order in these cases required the parties to file evidence within 25 days of this court‘s entry. 166 Ohio St.3d 1452, 2022-Ohio-1016, 184 N.E.3d 138. Depositions of petitioners’ experts could have been taken during that time.
{61}
{62} As an initial matter, we reject the League petitioners’ argument that District 15 violates
{63} Petitioners fail to develop any other arguments supporting their claim that the March 2 plan violates
{64} The Adams petitioners showed that the original plan split Hamilton, Cuyahoga, and Summit Counties an excessive number of times. See id., ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, at ¶ 87 (crediting evidence that “splitting Hamilton County into three districts is ‘statistically anomalous‘“); ¶ 90 (noting that Summit County need not be split at all); ¶ 91 (noting that only 8 of Dr. Imai‘s 5,000 simulated plans split Cuyahoga County twice). Petitioners in these cases again challenge the splitting of Hamilton County, but unlike the original plan, the March 2 plan splits Hamilton County only once (as it must, due to population requirements).8 Unlike in Adams, petitioners have not identified evidence showing that the splitting of the counties in District 1 or 15 is inherently excessive or unwarranted. Petitioners’ arguments address only the manner in which the March 2 plan splits certain counties. That concern (presented alone, as petitioners have done) relates only to whether the plan unduly favors or disfavors a political party under
IV. CONCLUSION
{65} For the foregoing reasons, the March 2 plan does not comply with
Relief granted.
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.
BRUNNER, J., concurring.
{66} I fully concur in the majority opinion. I write separately to respond to the first dissenting opinion, which takes the position that the congressional-district plan passed by the Ohio Redistricting Commission on March 2, 2022 (“March 2 plan“), is lawful because it “reasonably attempts to maximize competitive seats,” dissenting opinion of Kennedy and DeWine, JJ., ¶ 91. That position is not supported by the record. And endorsing respondents’ abuse of the legislative privilege is unjustifiable.
{67} In Rucho v. Common Cause, ___ U.S. ___, 139 S.Ct. 2484, 2500, 204 L.Ed.2d 931 (2019), the United States Supreme Court stated that creating a “fair” redistricting plan is difficult because the word “fair” may mean different things to different people. The interpretation of the word “fair” depends on the goal of the drafters—i.e., whether their goal is to prioritize the creation of competitive districts, to create proportionality, or to adhere to “traditional” redistricting criteria. Id. However, those goals sometimes conflict. For example, “making as many districts as possible more competitive” could lead to a high degree of disproportionality. Id. In reaching the conclusion that the March 2 map was designed to prioritize competitive districts and is therefore constitutional, the first dissenting opinion falls short, not determining whether the underlying record supports that conclusion.
{69} During discovery in Adams, the petitioners requested evidence concerning the creation of the first plan—including, for example, evidence substantiating who was drafting the plan, what instructions were given to the map drawers, and how the respondents were analyzing a district‘s competitiveness. But respondent President of the Senate Matt Huffman and respondent Speaker of the House Robert Cupp broadly invoked legislative privilege to avoid responding to any inquiry regarding legislators’ statements and decisions during the creation of the plan. The petitioners in Adams objected to the respondents’ invocation of legislative privilege at depositions and in their merit briefs. Unfortunately, the highly expedited nature of that case prevented the issue of legislative privilege from being fully litigated.
{70} Senate President Huffman and House Speaker Cupp later sought to rely on assertions about some of the very same subjects over which they had invoked legislative privilege. For example, as support for the claim that the first plan prioritized competitive districts, Senate President Huffman and House Speaker Cupp9
{71} The respondents in Adams, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, pointed to nothing else in the record to support the assertion that DiRossi had been instructed to create competitive districts or to convincingly establish that maximizing competitiveness had been the overall goal of legislators when the first plan was created. In finding that the plan violated
{72} The dissenting opinion in Adams accepted the respondents’ unsupported assertion that the plan had been designed to create competitive districts and would have approved the plan on the ground that the competitiveness rationale was reasonable. Id. at ¶ 167-186 (Kennedy, Fischer, and DeWine, JJ., dissenting). In doing so, however, it pointed to nothing in the record concerning the actual creation of the first plan. Id. at ¶ 167-170 (Kennedy, Fischer, and DeWine, JJ., dissenting). The law, as expressed by the dissent in Adams, is not supported by the record. No underlying evidence supports the premise that the respondents had designed the first plan to maximize competitive districts.
{73} In drawing the March 2 plan, respondents made minimal changes from the first plan. When petitioners sought discovery into the behind-closed-doors
{74} Notwithstanding this, the first dissenting opinion reasserts what was stated in the dissenting opinion in Adams, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___. It asserts that the March 2 plan “reasonably attempts to maximize competitive seats,” dissenting opinion of Kennedy and DeWine, JJ., at ¶ 91, but it again points to nothing in the record supporting that assertion. The dearth of evidence in the record to support respondents’ arguments is due to respondents’ own decision to invoke legislative privilege. Bare reliance by the dissent on the statements in respondents’ briefs is insufficient to constitute law.
{75} There is yet another fundamental problem with the first dissenting opinion. It is well established in Ohio that a litigant may not abuse a privilege by using it as both a sword and a shield. It is patently unfair to invoke a privilege during discovery and then waive it selectively to gain an evidentiary foothold to the detriment of the party seeking the discovery. See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 41; State v. Houck, 2d Dist. Montgomery No. 09-CA-08, 2010-Ohio-743, ¶ 38; see also In re Lott, 424 F.3d 446, 454 (6th Cir.2005), quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991) (“To be sure, litigants cannot hide behind the privilege if they are relying upon privileged communications to make their case. ‘[T]he attorney-client privilege cannot at once be used as a shield and a sword‘” [brackets added in Lott]).
{76} Courts in other jurisdictions have rejected attempts by legislators to use the legislative privilege as both a sword and a shield in redistricting litigation. See Favors v. Cuomo, 285 F.R.D. 187, 212 (E.D.N.Y.2012) (“once the [legislative] privilege is invoked, the Court should not later allow the proponent of the privilege to strategically waive it to the prejudice of other parties“); Commt. for a Fair & Balanced Map v. Illinois State Bd. of Elections, N.D.Ill. No. 11 C 5065, 2011 WL 4837508, at *11 (Oct. 12, 2011); Singleton v. Merrill, N.D.Ala. Nos. 2:21-cv-1291, 2021 WL 5979516, at *8 (Dec. 16, 2021) (rejecting legislators’ defense of
{77} This issue has not been raised until now. The first dissenting opinion does not have a discussion of either the scope of the legislative privilege or the way it may be used. Allowing respondents to invoke the legislative privilege to prohibit discovery into officials’ goals in the creation of the first plan and the March 2 plan, and then allowing respondents to rely on bare assertions about those subjects in defense of those plans, is an invitation to parties to avail themselves of this abuse of power in the future. This court should ensure that discovery is available in cases like this so that the court can meaningfully judge whether a party‘s arguments about what they designed a plan to do can be tested by evidence in the record or are instead simply post hoc rationalization. This court should not accept a party‘s abuse of legislative privilege, particularly when that party uses it to create a contrived evidentiary basis in support of a legal argument. To look the other way—as the dissent did in Adams, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, and as the first dissenting opinion does again here, creates the risk that Ohio‘s constitutional requirements for drawing congressional districts can be effectively avoided and thereby defeated by an abuse of legislative privilege.
{78} For these reasons, I offer this concurring opinion while also joining the majority opinion.
{79} These cases are about an election that will not be held until 2024. The new complaints filed in this court protest the congressional-district plan adopted by the Ohio Redistricting Commission on March 2, 2022 (“the March 2 plan“) in response to the majority‘s decision in Adams v. DeWine, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, which invalidated the plan that had been passed by the General Assembly in November 2021 (“the first plan“).
{80} In Adams, the majority held that the first plan violated
{81} While the March 2 plan is new, there is little that could be considered “new information” in the majority opinion. The majority applies the same faulty analysis that it used in Adams and therefore fails to present “any workable standard about what it means to unduly favor a political party.” Adams at ¶ 107 (Kennedy, Fischer, and DeWine, JJ., dissenting). The majority clings to proportionality, which appears in
I. BACKGROUND
{82} Despite the far-off relevance of another redistricting plan, the majority rushed these cases to completion. The majority‘s scheduling order for these cases sacrificed a robust discovery process in exchange for a speedy result. As we wrote in our opinion concurring in part and dissenting in part as to the scheduling order, “[t]his case most likely will turn on the credibility of expert testimony,” and “25 days is insufficient” time for discovery, given the need to schedule depositions for numerous fact and expert witnesses. 166 Ohio St.3d 1452, 2022-Ohio-1016, 184 N.E.3d 138, ¶ 5 (Kennedy, Fischer, and DeWine, JJ., concurring in part and dissenting in part). Each side filed its evidence on April 25, leaving no time to depose the other‘s experts, and we are left with a discovery process that has produced a large amount of information but little critical analysis. In our opinion, we advocated for a 25-day period after expert reports were exchanged so that each side could conduct further discovery. Id. at ¶ 28. And as we predicted, the 25-day discovery time left no time to depose experts or to challenge the bases on which those experts made their decisions. While it is easy to see what has been lost due to the truncated discovery period, it is far more difficult to see what has been gained. The 2022 election cycle is set. Consequently, there was no need to cut discovery short and hurry these cases along. This truncated discovery period enables the majority to cherry-pick its preferred expert evidence, without the adverse parties being able to test the reliability of that evidence through cross-examination. None of the normal procedural safeguards that facilitate truth finding are present in these cases, despite the majority outsourcing its entire analysis to expert testimony that exists in a vacuum.
{83} The majority holds that the March 2 plan is “slightly less favorable to the Republican Party (or more favorable to the Democratic Party) than the [first]
II. ANALYSIS
A. Does the commission‘s plan have to comply with Article XIX, Section 1(C)?
{84} Respondents argue that these cases are easily resolved because a plan adopted by the commission need not comply with any of the requirements of
{85} Although respondents raise a serious argument, we are mindful of the “‘cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.‘” State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799 (C.A.D.C.2004) (Roberts, J., concurring in part and in judgment). Indeed, this dissenting opinion will not address this issue because, whether it was required to or not, the March 2 plan satisfies the requirements of
{86} As we explained in Adams, the first plan complied with
C. The March 2 plan complies with Section 1(C)(3)(a)
{87} We continue to disagree with the majority‘s approach to determining whether a redistricting plan “unduly favors” one political party. It is true that
{88} The problem with the majority opinion‘s analysis that there is no such requirement in
{89} When passing a congressional-district plan as part of a simple majority vote, the General Assembly must prepare “an explanation of the plan‘s compliance with”
{90} There is nothing in the Constitution that precludes map makers from seeking to maximize competitive districts, and such a goal does not cause undue favoritism. And, as we opinion stated in Adams, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, the range of plus or minus 4 percent of 50 percent is within the bounds of the map drawers’ constitutional mandate. Id. at ¶ 178 (Kennedy, Fischer, and DeWine, JJ., dissenting). We further explained: “The General Assembly, this state‘s policymaking body, chose that range. We have no authority or competence to monitor the dividing line between competitive and not.” Id. at ¶ 177.
{91} The March 2 plan is again oriented toward competitiveness. As explained by Sean P. Trende, a senior elections analyst for RealClearPolitics who tracks, analyzes, and writes about elections, the plan features two noncompetitive districts favoring Democrats (Districts 3 and 11) and six noncompetitive districts favoring Republicans (Districts 2, 4, 5, 6, 8, and 12). The other districts are
{92} The commission‘s choice to focus on creating competitive districts where they are possible is consistent with
{93} Given the political geography of Ohio, when the neutral map-drawing rules of
{94} This court is not an equal partner with the General Assembly and the commission when it comes to redistricting. A plan passed by the General Assembly or adopted by the commission does not automatically come to this court for our blessing. Our role is limited and is triggered only when someone protests a plan. We are not involved in the policy determination of the best way to achieve the
{95} It is not for us to decide how we would draw a congressional-district map. Instead, “our precedent in redistricting cases applies a strong presumption that a plan is constitutional.” Adams, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, at ¶ 150 (Kennedy, Fischer, and DeWine, JJ., dissenting), citing Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 22, superseded by constitutional amendment as stated in League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St. 3d ___, 2022-Ohio-65, ___ N.E.3d ___.
{96} But the outcome of these cases today demonstrates that the majority has once again assumed an oversized role in the process of drawing a congressional-district map by perpetuating its own standard of what constitutes “unduly favoring” a political party. The majority faults the commission for not following that standard. But in reality, there is only one standard that matters. The majority clearly has a number of Democrat congressional seats in mind, and any plan that does not result in that number will be deemed unconstitutional and therefore invalid.
III. CONCLUSION
{97} We agree with the majority that the March 2 plan meets the requirements of
FISCHER, J., dissenting.
{98} I fully join the other dissenting opinion. I write to expound on a few points of particular importance.
I. Petitioners have not proven their cases beyond a reasonable doubt
{99} As noted in the majority opinion, the challenges of the petitioners in these cases are “subject to the highest standard of proof: proof beyond a reasonable doubt.” Majority opinion, ¶ 27.
{100} But petitioners do not even meet the lower clear-and-convincing-evidence burden of proof or the even lower preponderance-of-the-evidence burden of proof. In any event, petitioners have not satisfied their burden of showing beyond a reasonable doubt that the March 2 plan unduly favors the Republican Party in violation of
{101} In Section II(A) of their merit brief, respondents Senate President Huffman, Senator Rob McColley, Representative Jeff LaRe, and Speaker of the House Robert Cupp set forth a detailed argument pointing out numerous flaws in the evidence that is relied on in the majority opinion. In the interest of brevity, I will not reprint that argument here; however, respondents have both identified numerous flaws in the experts’ reports relied on in the majority opinion and raised significant doubts as to whether petitioners have presented a full mathematical analysis. These flaws and incomplete analyses directly attack the majority opinion. The majority opinion not only sidesteps respondents’ points but also faults respondents for failing to depose petitioners’ experts within the limited time that this court provided for discovery. Majority opinion at ¶ 60.
{102} In doing so, the majority opinion turns the burden of proof on its head. Respondents have no burden of production in these cases. Instead, it is incumbent upon petitioners to prove their cases beyond a reasonable doubt. League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___ ¶ 78-79, citing Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 20-21; see also Adams v. DeWine, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___ ¶ 26. Respondents have raised more than reasonable doubts, regardless of whether petitioners’ experts could have or should have been deposed. Indeed, those and other reasonable doubts are further explored in the other dissenting opinion. In concluding otherwise, the majority opinion seems to ultimately apply some lesser burden of proof, even though it purports to apply the beyond-a-reasonable-doubt burden of proof. Because petitioners have not satisfied their burden of proof, I must respectfully dissent from the majority opinion.
II. The procedure used in these cases is fundamentally flawed
{103} In addition, I have deep concerns regarding the process used by this court to decide these cases. These cases arose under our exclusive, original jurisdiction pursuant to
{105} This court‘s failure to hold even one hearing in these cases undoubtedly raises concerns among the public regarding this court‘s lack of transparency, and one might wonder why such concerns have not been voiced in the media. Regardless, if this court is to strike a constitutionally enacted and mandated congressional plan, it should do so in the light of day, providing Ohioans with a meaningful opportunity to understand not just all the evidence before this court but also this court‘s decision-making process in such an important matter.
III. Conclusion
{106} This court‘s misguided rush to decide these cases has resulted in an unnecessary and truncated procedure that has effectively tied this court‘s hands and rendered it unable to make a fully informed decision. Given the evidence before this court, petitioners have failed to satisfy their burden of showing beyond a reasonable doubt that the March 2 plan unduly favors the Republican Party in violation of
{107} Accordingly, I respectfully dissent.
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,
ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey; American Civil Liberties Union Foundation, Alora Thomas, and Julie A. Ebenstein; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, David Denuyl, Janelle Lamb, James Smith, Sarah Suwanda, Alex Thomson, Kimberly Plumer, Rishi Gupta, Alexandra Widas, Anupam Sharma, and Yale Fu, for petitioners in case No. 2022-0303.
Dave Yost, Attorney General, and Julie M. Pfeiffer, Jonathan D. Blanton, Michael A. Walton, and Allison D. Daniel, Assistant Attorneys General, for respondent Ohio Secretary of State Frank LaRose.
Nelson Mullins Riley & Scarborough, L.L.P., Phillip J. Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins; and Taft Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson, for respondents Senate President Matt Huffman, Speaker of the House Robert Cupp, Senator Robert McColley, and Representative Jeffrey LaRe.
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.
Chris Tavenor; and Hubay Dougherty, L.L.C., and Trent Dougherty, urging granting of relief for amici curiae, Ohio Environmental Council, Ohio Organizing Collaborative, Ohio Farmers Union, LEAD Ohio, Red Wine & Blue, OPAWL—Building AAPI Feminist Leadership, Innovation Ohio, Ohio Coalition on Black Civic Participation/Ohio Unity Coalition, and Ohio Citizen Action.