Quilter v. Voinovich

Claims-Paying Ability A minimum “A+” from than Rating of no less Poor’s, Moody’s Duff &

Standard Phelps. at least billion assets of $1 3. Admitted surplus of adjusted capital and million. at least $100 QUILTER, al., Plaintiffs, Barney et VOINOVICH, George V. al., et Defendants. No. 5:91 CV 2219. Court, District United States Ohio, N.D. Division. Eastern Aug. Gregg Haught,

Jack Bergman, Andrew S. General, Attorney Columbus, Office Of The OH, party in interest. Kane, Jr., Shohl,

Lawrence A. Dinsmore & Cincinnati, OH, special master. Gilliam, Jr., Armistead Wightman, W. Ann Faruki, Ireland, OH, Dayton, Gilliam & for intervenors-plaintiffs. CELEBREZZE,

Before JONES and Judges, DOWD, Circuit Judge. District PER CURIAM.

OPINION question before this court is whether Apportionment

the Ohio Board’s consider- ation of race in its redistricting plan Equal violated the Protection Clause of the Fourteenth Amendment. We hold that virtue of demonstrated white and African American coalitional legislative Ohio, seats in and the failure of Defendants to' compelling demonstrate a state interest using predominant race as the factor drawing lines, legislative certain districts in plan the 1992 are unconstitutional. Background History I. and Procedural Constitution, Pursuant to the Ohio the Board, Apportionment State comprised of Scanlon, Timothy F. Gearinger, Scanlon & members, reapportion five must State House Akron, OH, Gilliam, Jr., Armistead W. Ann and Senate electoral for districts the state Sanom, Faruki, Wightman, Laura A. Gilliam legislature every years.1 Following ten the Ireland, OH, Dayton, plaintiffs. & for census, majority Appor- 1990 federal Collier, III, Orla Ellis Norton Victor Good- appointed Tilling tionment Board2 James R. man, DeLeone, Tucker, James F. Mark D. apportionment plan to draft an on behalf of Benesch, Friedlander, Aronoff, Coplan & Co- conducting public the Board. hearings After lumbus, OH, May- Rosenberg, Charles M. state, throughout including meeting the with Buck, III, Gilman, Jeremy Benesch, nard A. minority some organizations, members of Friedlander, Aronoff, Coplan Cleveland, & Tilling plan eight drafted a included OH, districts, majority-minority defendants. districts in which 1. Article State of bers of the house of legislative not a member major political party scribed in this Article the boundaries for each shall meet and establish in the er is a state, senate The Such the one Ohio governor, XI, member, persons, apportionment the representatives person Section 1 of the Constitution of the general assembly. the two houses of the leaders in provides: political party shall and one or a auditor of chosen be the of which the of this state for mem- and the leader in the person by persons responsible of which the state, the of their speaker chosen manner secretary speaker number, speak- by pre- the of 2. The V. resentatives, the State of Ohio. Speaker In the Stanley and Robert A. governor shall convene on a date the of and Voinovich, ninety-nine Const., year thirly-three majority J. Pro Aronoff, ^[1971] between and art. Tempore Taft, II, Governor of the State of consisted of house XI, § were Plaintiffs Thomas E. and senate districts. Such President of the Ohio August eveiy of the Ohio House of Secretary of representatives tenth Ferguson, 1 Defendants designated by and of State of Ohio. Barney year October 1 in thereafter. Auditor of meeting districts Quilter, Senate, George Ohio, Rep- the justification for As districts. of a dominated is a member population majority of the compli- cited Quil changes, the Defendants v. these minority group. Voinovich specific federal 1149, 1153, Voting Rights Act and the 148, ance ter, 146, 1991, 1, law, mandated (1993). allegedly which On October case L.Ed.2d 500 Id. majority-minority districts. plan drawing adopted Board Apportionment along party vote by a 3-2 Tilling submitted 1992, majority 31, of this January On Republican members three Id. The lines. “no there was judge panel held three two Democrats plan, and for the voted Voting Rights finding of a legal mandate recon Board later The it. against voted justify Defendants’ creation Act violation 1991, make several on October vened possi- districts wherever majority-minority plan, technical amendments plan.” Id. at apportionment ble in the 3,1991, in wake adopted on October plan, Thus, draft a the Board to we ordered designated “Amend changes, was of these remedy- that it was plan or demonstrate new ment C.” at 702. Id. ing a section violation.4 1991, Barney Quilter and On November responded Apportionment Board on the Democrats Ferguson, two Thomas Febru- establishing a record on adopting plan, and vari against the Board who voted view, that, justified 18, 1992, ary in its legislators party officials ous Democratic minority-controlled state creation Board’s Republican members against the filed suit its Feb- Furthermore at legislative districts. Tilling.3 . Board Apportionment amended the meeting, the Board ruary 18 the Plain plan, Seeking invalidation of technical plan to a series eliminate redistricting plan violat alleged that tiffs the Ohio errors Voting Rights Act of 2 of the ed section separate in its review had identified Court § the Four amended, 42 U.S.C. Ferguson, 63 Ohio plan, Voinovich to the Fifteenth Amendments teenth and (1992). The re- 586 N.E.2d St.3d Constitution, and XI of Article United States D,” created plan, “Amendment sulting Constitution, specif provided which the Ohio districts, majority-minority howev- only five Quilter v. Voi guidelines. apportionment ic er, eight majority-mi- a reduction from (N.D.Ohio novich, F.Supp. 695-96 plan, “Amend- nority in the 1991 Plaintiffs, De to the According ment C.” into intentionally minorities “packed fendants sub historically after Board On March minorities where certain districts conclusions, along findings and its choice of mitted representatives were able to elect that plan, this court held new 1992 at 698. The with the Id. votes.” with crossover once again justify its to “fail[ed] Board packing result the this that contended Plaintiffs majority-minority dis of wholesale creation minority packed votes in a ed waste submitted, tricts, plan, the rendering thus a dilution districts and Voting Rights Act of 1965.” the violative of surrounding areas where strength in the 756, Voinovich, Quilter F.Supp. 757 794 v. influence elections. “packed” voters could 1992). Furthermore, (N.D.Ohio this court contended response, the Defendants Id. In plan 1992 also violated strength held that actually enhanced plan that the safe, of the States minority- Amendment United creating Fifteenth of black voters court, utilizing they simply were com- the federal the Plaintiffs 3. The claims that dissent accomplish control Ohio’s end. litigation wrest to that this "to means menced best reapportionment process from court place with the federal it the system.” Dissenting Op. Board constitu- to the Plaintiffs’ 4. declined address We Obviously, [1031]. analysis point at this because our claims tional any entity against charge could be such a leveled plan required to Voting Rights Act under the infringement challenge a state's that chooses Likewise, justified because or revised. rights statutory constitutional of its federal Court, Ferguson, v. Supreme in Voinovich bring such means it is one of the because 1992) curiam), (Ohio (per was N.E.2d 1020 586 Nevertheless, the end or this was not challenge. considering claim un- 'concurrently the Plaintiffs’ claim. purpose filed their which the Plaintiffs Constitution, from we abstained der the Ohio plan sought reapportionment Plaintiffs pendant addressing claim. discriminatory, filing racially suit and in was not later, days remand, Upon Constitution. Id. Nine re we held that the Ohio reap portionment plan scrutiny survived sponse stay for a under Defendants’ motion one-person-one-vote guarantee Equal pending appeal the March 10 order to the (1) Protection Clause because the Defendants Court, Supreme United States this court ad genuine, advanced a policy rational state ditionally held both the 1991 and 1992 justify population the deviations from equali plans violated the Fourteenth Amendment ty among (2) legislative districts, state they departed requirement because from the plan reasonably their furthered the rational nearly equal .population. that all districts be of (3) policy, state the 13.81% and 10.54% Qu Voinovich, 5:91CV-2219, v. No. ilter total deviations fell within constitutional limits. * (N.D.Ohio 677145, 19, 1992 WL at 10 Mar. Qu Voinovich, F.Supp. ilter 1992). (N.D.Ohio 1994). Accordingly, judgment was entered for the Defendants on this issue. appealed The Defendants to the United pend While the latter decision was Supreme States Court. In Voinovich v. however, ing, the Plaintiffs moved this court Quilter, S.Ct. permission complaint to amend their (1993), Supreme L.Ed.2d 500 Court re light Supreme Court’s recent decision Quitter Deny versed this court’s decisions. Reno, in Shaw v. claims, ing two of the Plaintiffs’ the Court (1993).5 125 L.Ed.2d 511 As a lower reapportionment held that at issue court, course, we regardless are bound of did Voting Rights not violate section of the strength reservations,6 of our to follow Act, nor did violate the Fifteenth Amend Reno, Supreme Court’s decision where ment to the United Constitution. States the Court held for the first time that a Nevertheless, the Court held that the Plain plaintiff could Equal state a claim under the tiffs prima had established a case facie by alleging Protection Clause that a district population deviations between the dis ing plan, “though face, race-neutral on its Clause, Equal tricts violated the Protection rationally cannot be anything understood as “only and the Court remanded for further separate other than an effort to voters into proceedings plan’s on whether the deviation race, different districts on the basis and. equal population among from districts vio separation justifica lacks sufficient late[d] the Fourteenth Amendment.” Id. at at-, tion.” Id. 113 S.Ct. at 2828. We 152, 113 granted motion,7 the Plaintiffs’ and their dissent, colleague argues 94-558/627, In our Hays, the Plain ed States v. Nos. 1995 WL actually bringing (U.S. tiffs were another vote dilution June claim rather than a Shaw v. Reno claim. Dis however, senting Op. Actually, at [1031]. this dissent, colleague disagree- our renews his simply example case is a classic that the same set prior ment with our decision to allow the Plain- may give of facts or circumstances rise to more Complaint bring tiffs to amend their a Shaw than one cause of action. The Court challenge reapportionment plan. v. Reno to the clearly denied the Plaintiffs' vote dilution claim [1032-1033]; Dissenting Op. Supp.Dissenting at Act, Voting Rights 2 under section of the but the 3], Op. alleges n. [1031 The dissent that our Apportio Court did not address whether the by exceeding decision violated the mandate rule n redistricting, ment Board's use race of in ostens remand, scope the of the and he claims that i bly pursuant Voting aas remedial measure to the actually “required review of a Shaw claim a new Act, Rights Equal violated the Protection Clause draw, probable lawsuit and a new with a differ- Quilter, of the Fourteenth Amendment. See 507 three-judge panel.” ent Id. 156-57, U.S. at 113 S.Ct. at 1157. The Plaintiffs brought challenge have the latter in the instant decision, prior In our we clarified that "while case. controlling a mandate is as to matters within its compass, on the remand a lower court is free as Voinovich, to other Quilter (N.D.Ohio 1994) We issues." v. 157 note that critics of the Court’s decision in 6. 36, compelling (quoting F.R.D. Shaw have raised 38-39 concerns with Jordan, 332, 18, sympathize. Quern which we v. 440 U.S. n. See A. 347 99 Leon Jr., al., 1139, 18, Higginbotham, (1979) et S.Ct. 1148 Shaw v. Reno: A Mi n. 59 L.Ed.2d 358 omitted)). rule, rage Devastating (quotation Good Intentions with Under the Racial mandate Consequences, (1994); may 62 Fordham L.Review 1593 we not consider on remand the issues that decided, Congressional may Brief of the Black the Caucus Court but we consid Support Appellants, as Amicus Curiae in Unit er issues that have not been decided. See id. at 1014 redistricting support Quil legal theories two accordingly amended.8 complaint was Clause Equal Protection (N.D.Ohio challenge the under 36, Voinovich, F.R.D. 40 157 ter v. (1) violation Amendment: the Fourteenth which principle, “one-person-one-vote” of the and evidence the record Having considered equal population requires that districts both written parties, the arguments of

the by in one dis- voters the votes cast so that issue our deci- oral, prepared to are we cast weight than those less trict do not have findings of fact and our preface We sion.9 districts, Reynolds v. by in other voters however, law, a discussion conclusions of 1385, 1362, Sims, 377 U.S. ana- provides the law that governing (2) (1964); a claim of 506 12 L.Ed.2d for our conclusions. lytical paradigm dilution, purpose- whereby districts vote Principles First II. or diminish the unfairly dilute fully drawn to v. Reno Claim a Shaw A Nature group of vot- voting strength of an identified 613, 102 ers, Lodge, S.Ct. Rogers v. 458 U.S. deci Supreme Court’s to the Prior (1982). Hunt, v. 3272, Shaw 1012 only 73 L.Ed.2d Reno, delineated the Court had sion firmed, legally 260, (6th from Lewis, Ohio did not suffer (citing v. 957 F.2d Jones voting.... 125, racially pokirized 841, cognizable denied, Cir.), S.Ct. cert. deliberately created The Defendants (1992); (citing at 39 n. 1 see id. 121 L.Ed.2d legislative centers same). in urban districts race-based initially holding In the other circuits cases from purported, but the then used case, expressly abstained Supreme Court this the shtim, necessity creating as the such districts type Equal considering Protection from anti-geny- ignoring the traditional basis for challenge Voinovich delineated Clause in Shaw. mandering Constitution 156-57, provisions of the Quilter, rip- Thus, throughout Absent the (1993). the state of Ohio. Court’s 122 L.Ed.2d gerrymandering ple effect considering prohibit us not from mandate did Ohio, the Defen- centers of the state of urban issue on remand. ignore on have been dants would not forced the Plaintiffs’ support the contention To XI, of Article basis the directives a wholesale lawsuit, draw, required new a new Shaw claim to follow of the Ohio Constitution Section etc., Rules that cites to Local some dissent legislative existing political boundaries appropriate respect to the give direction with possible. wherever sepa- cases Eire filed disposition of related the tradi decision to ... The abandon 2]; Dissenting Op. at n. rately. [1031 See districting within mandates contained tional Yet, Op. these Supp.Dissenting [1031 3]. n. compelled by Ohio Constitution is neither only apply had if Plaintiffs would Local Rules supremacy, nor based of federal the doctrine alleging As Shaw claim. lawsuit a new filed lawful, organized, district- any or rational on propo- support the Rules do not such these Local ing criteria.... "required to file a Plaintiffs were sition articulated no Defendants have 55. The Indeed, sup- offers no the dissent lawsuit." new compelling governmental interest authority proposition, other than porting for this provisions of abandonment wholesale previ- conjunction with the cited in the case law result, the Defen- Constitution. As the Ohio argument. ous irregular in numer- dants have drawn districts state, places throughout districts which ous Complaint re- Second 8. The Amended Plaintiffs' ripple explanation ef- than no other have only Complaint two Amended vised First racially by districts drawn fects caused First, IV, ‘‘Violation of respects. Count entitled instances, the ra- In some the urban centers. Segregation of Vot- Equal Protection Clause— irregular have cially themselves drawn Compelling by Governmental Without ers Justification,” Race required by Constitution. shapes the Ohio Second, prayer for is added. been modified 56. The districts which have part, pertinent accordingly revised. relief was Dis- solely House on basis of race include alleges following: IV Count 21, 38, 39, 31, 30, 22, and 49. No tricts plan adopted reapportionment ... presented trial court to the been evidence has February inten- the Defendants cognizable action legally remedial that either of tionally separated on the basis Ohio voters racitilly gerry- necessary to draw these was regtird redis- traditional race districts, without of such or that the creation mandered Consti- tricting principles set forth the Ohio any narrowly further tailored districts was any compelling otherwise without tution and compelling governmental need. justification. justify cre- To governmental ¶¶ Am.Compl. 52-56. Pls.’ Second urban cen- districts in the ation of race-based Em appreciated considered Ohio, court and 9. The also that Defendants asserted there ters of by States De- throughout submitted United voting amicus brief widespread racial bloc was Justice, posi- found, supported the partment which of specifically and trial court Ohio. The tion of Defendants. States con- Supreme Court of the United

1015 408, (E.D.N.C.1994), F.Supp. proba 861 421 assigns When the State voters on the basis — noted, race, -, jurisdiction ble of engages U.S. 115 it in the offensive and 2639, (1995); demeaning assumption S.Ct. 132 L.Ed.2d 878 see also voters of a race, Reno, particular at-,-,-, race, 509 because of their U.S. 113 S.Ct. — alike, “think 2823, 2828; Johnson, political share the at same inter- Miller v. ests, prefer and -, -, 2475, 2501, will the same candidates U.S. 115 S.Ct. 132 polls.” at (1995) assignments Race-based J., (Ginsburg, dissenting). 762 L.Ed.2d “embody stereotypes that treat Reno, however, individuals v. Shaw the Court an product race, as the of their evaluating challenge legisla a third means to nounced thoughts their and very efforts —their redistrieting tive Equal under the Protection worth as according to a criterion plaintiff Clause. The Court held that “a citizens — by barred to the history Government reapportionment challenging [plan] under the Constitution.” Equal may Protection Clause state a — at-, (citations U.S. 115 at by alleging claim S.Ct. 2485 [plan], though omitted). face, rationally on its race-neutral cannot be anything understood as other an than effort reasons, For these the Court has separate voters into different on held that gerrymandering by leg racial state race, the basis of separation and that judicial islatures scrutiny; demands close justification.” lacks sufficient 509 U.S. at thus, a redistrieting plan race-based can be — -, 2828; Miller, 113 S.Ct. at U.S. at upheld only narrowly if it is tailored to fur -, 115 S.Ct. at 2482. The Court defined Reno, compelling ther a state interest. 509 such arbitrary a deliberate and at-,-,-, distortion of S.Ct., U.S. 113 at — 2826, 2830; Miller, district —, boundaries for racial as a purposes U.S. at - Reno, , -, 2481, 2485, 2490; gerrymander.”10 “racial at 509 U.S. at S.Ct. see also — -, Village Arlington Heights 113 S.Ct. at Metropolitan v. 252, 266, Corp., Hous. Dev. 429 U.S. 97 S.Ct. The Reno Court reasoned that “[classifica (1977) (noting 50 L.Ed.2d 450 solely tions of citizens on the basis race applies only strict scrutiny legislation by very ‘are their nature odious to a free explicit that contains racial but classifications people whose upon institutions are founded also to those “rare” statutes that are “unex ” at-, equality.’ the doctrine of Id. 113 plainable race,” on grounds other than even (citing Hirabayashi S.Ct. at 2824 v. United face). though they race-neutral on their States, 81, 100, 1375, 1385, 320 U.S. 63 S.Ct. prior practice, Consistent with the Reno (1943)). “They L.Ed. 1774 threaten' gerry Court made clear because racial stigmatize by individuals reason of their classification, is a mander racial must membership in a group racial to incite scrutiny reviewed strict if even hostility,” City Richmond v. J.A. redistrieting plan drafters of the claim that Co., 469, 493, Croson “benign” pur was drawn with the (1989) (plurality opin 102 L.Ed.2d 854 pose enhancing minority — ion), they “may serve to stimulate our at-, strength, U.S. 113 S.Ct. at 2830 society’s race-consciousness, suggest latent (“Equal Protection Clause demands strict ing utility propriety basing deci scrutiny of all racial classifications ... be sions ideally it, factor that no bears rela cause a court without cannot determine tionship needs,” to an individual’s worth or truly whether or not the discrimination Organizations Carey, —-, United Jewish “benign.”); at id. S.Ct. 144, 173, (“[District obviously L.Ed.2d pur lines drawn for the (1977) (Brennan, J., concurring part). pose separating voters race require These scrutiny Equal observations were careful reiterated under the Protection Court’s regardless recent decision in Miller underly- v. Johnson: Clause of the motivations [1041], Dissenting Op. 10. The dissent does not find the Court's tions.” Evidently, gerrymandering "particularly of racial definition recognized dissent has never that someone delib- enlightening apparent in view the conflict of erately arbitrary can in an manner. act meaning 'arbitrary' between 'deliberate' and ac- 1016 anything as ally not be understood could racial or claim that the adoption.”), ing their segregate voters to than an effort races other or burdens benefits gerrymander at-,-, race. 509 U.S. at-, (citing the at 2829 basis 113 S.Ct. equally, id. however, districts, 2828, 409, 2832. Such Ohio, 400, 111 S.Ct. S.Ct. at U.S. v.

Powers (“It review sim- (1991) constitutional draw close is do not L.Ed.2d 411 shape. Adher- irregular of their ply not do because that racial classifications axiomatic districting principles, such assumption that all ence traditional legitimate on the become respect for contiguity, and compactness, degree.”); see as equal in them persons suffer — subdivisions, is not a constitutional at-, Miller, political at 115 S.Ct. U.S. also at-, at 2827 113 S.Ct. requirement. Id. distinc- racial and ethnic (noting that 735, Cummings, 412 U.S. (citing v. Gaffney inherently suspect any sort tions 2321, 18, 37 2331 & n. 752 & n. 93 S.Ct. scrutiny regardless exacting judicial require (1973)). Rather, bizarre-shaped by L.Ed.2d 298 or benefited burdened the race those scrutiny their because classification). strict demand evidence that race circumstantial shape is clearly in creat- Although Reno the Court in their purposeful factor cre- a has been challenge apportion- state means to ed a new Daggett, 462 U.S. v. ation. See Karcher to the plans pursuant Fourteenth ment 77 L.Ed.2d 133 103 S.Ct. Amendment, many analysis unan- its left (“One (1983) J., (Stevens, concurring) need integral to the questions that are swered classic definition of Stewart’s Justice use claim: v. resolution of Shaw Reno proper I see it’ —as an obscenity know when —T (1) of “bizarre” evidence Is circumstantial judging the constitu- ultimate standard necessary to state and sustain shapes district recognize that tionality gerrymander to of a (2) claim?; extent To what v. Reno a Shaw shapes may have suffi- dramatically irregular apportionment in an “race” be a factor must explana- call for an probative force to cient gerry- plan a racial becomes before omitted)). (footnotes Logically, tion.” analysis?; scrutiny subject strict mander therefore, of a use dis- Court’s (3) scrutiny triggered, who has is Once strict evidence of shape trict’s as circumstantial (4) claim?; in a Reno proof the burden proof can be made implies that racial intent “compelling inter- state constitutes What concession, means, including state “by any justify redistrict- race-based that would est” shape, or some combination bizarre (5) meaning “nar- is the ing?; and What prove the typically used to factors various redistrieting context? rowly tailored” equal protection claim of an ‘intent’ element sub- questions were of these answered Some Hunt, Heights.” Arlington under Miller We sequently in the decision. Court’s 431; Heights, Arlington at see F.Supp. these issues. turn now to consider (“Determining at 563 discriminatory purpose invidious whether Shapes: District B. Bizarre motivating a sensitive factor demands was a Necessary A Element? and direct inquiry into such circumstantial Reno, the con Relying on Defendants available.”). may intent evidence of in scrutiny not required that strict is tend have not estab because “Plaintiffs this case recently validity reasoning was of this any in of the districts [the lished by the Court in Miller: confirmed ‘irregular.’” Defs.’ plan] are ‘bizarre’ of the conse- observation Our Shaw question This raises the Post Trial Br. at 55. stereotyping was not quences of district presence of whether the bizarre district must be suggest that a meant to necessary or a shapes element threshold there is a consti- its face before bizarre on claim. requirement a Shaw Reno state conclusion Nor was our tutional violation. instances a certain dis- Reno Shaw Undeniably, the Court (or, precise, to be more appearance trict’s action the new cause of emphasized with certain combination appearance its Amendment based under the was Fourteenth evidence) give can rise an demographic shapes of districts presence on the whose [-, claim, U.S., protection they equal ration- irregular or bizarre were so 2834], holding status, 113 S.Ct. at that bizarre religious economic political per- showing, appel suasion, a threshold ness was variety and a of other demograph- it circumspect lants believe to be. Our ic factors. That sort of race consciousness approach holding in and narrow Shaw did inevitably does not impermissible lead n racediscrimination. barring an accepted not erect artificial rule equal protection analysis in other redis at-, (emphasis 113 S.Ct. at 2826 tricting Shape cases. not be relevant in original). necessary cause bizarreness is a element of Johnson, In Miller v. the Court wrong the constitutional or a threshold clarified proof the burden of necessary to requirement proof, may but it because trigger scrutiny: strict persuasive circumstantial evidence that sake, race for its own and not other dis- Although decisionmaking race-based is in- tricting principles, legislature’s was the herently suspect, until a claimant makes a controlling dominant and rationale in showing sufficient support allega- drawing logical its district lines. The im good tion the faith legislature of a state plication, applying as courts have presumed.... Shaw must be plaintiffs The recognized, parties may rely is that show, through burden is to either circum- evidence other than bizarreness" to estab stantial evidence of a shape district’s lish districting. race-based demographics or more go- direct evidence — ing legislative purpose, that race was at-, Thus, U.S. S.Ct. 'predominant .the motivating leg- “parties alleging assigned that a State has factor islature’s place significant decision to voters on the basis of race are neither con- number of voters within or par- without a proof fined in regarding their to evidence ticular district. To showing, make this geometry district’s makeup required nor plaintiff prove must legislature to make showing a threshold of bizarreness” subordinated traditional race-neutral dis- in order to state a valid Shaw Reno claim. tricting principles, including but not limit- Miller, at-, 115 S.Ct. at 2487. compactness, ed to contiguity, respect for types Now that we have discussed the .political subdivisions or communities de- party evidence that a can marshall to sustain interests,, fined actual shared to racial claim, a Shaw v. Reno we turn to consider considerations. Where these or other both the extent to which race must be a race-neutral considerations are the basis apportionment plan factor in an before the redistricting legislation, and are not gerrymander subject becomes a racial race, subordinated to a state can “defeat a scrutiny to strict party and the that bears claim that gerryman- a district had been proof. that burden of dered on racial lines.” — Trigger Scrutiny C. Strict at-, (citations added). emphasis omitted and The Court in specify Reno did not showing the threshold of racial consideration clarification, Despite this there remains necessary that was to establish that a redis ambiguity regarding some “pre- the Miller tricting plan gerrymander was a racial re Specifically, dominant factor” test. what did quiring judicial scrutiny. close The Court plain- mean when it said that a did, however, spectrum by narrow signifi prove tiff legislature must that the “subordi- cantly reiterating principle that “aware districting principles nated” traditional to ra- ness” of race or “race consciousness” trigger cial considerations in order to strict districting process equivalent is not to a ra scrutiny? plaintiff Does this mean that a gerrymander cial requires strict scruti prove legislature disregarded must that the ny analysis: districting princi- or abandoned traditional [R]edistricting ples differs from other kinds of in favor racial considerations or does decisionmaking state legislature scrutiny it triggered mean that strict will be always is aware of race legislature when draws even if a state follows traditional lines, just district age, districting as it is principles, simply aware because those objection of to Geor- majority pointed an emphasis or less accorded were' principles lodged with Attorney General was gia’s considerations? weight racial than less response to the Department the Justice Miller inherent ambiguity The three ma- Department’s demand Justice highlight- test is factor predominant Court’s Georgia. Id. The jority-black districts of Justice opinion concurring by the ed that to com- Attorney claimed General dissenting opinion of Jus- State and O’Connor justice would have Although no other a the State ply such demand Ginsburg. with tice “ wrote Justice O’Connor joined opinion, of com- her reasonable standards ‘violate all to understanding her emphasize to separately The Court contiguity.’” Id. pactness test: factor predominant of the Court’s “powerful evi- a statement be found such standard the threshold I understand tradi- legislature subordinated dence legislature subor- adopts Court race when districting principles —“that tional districting race-neutral dinated traditional creating three ma- plan ultimately enacted considerations,” ... to racial principles —to Nevertheless, a Id. jority-black districts.” strict To invoke demanding one. abe language does not interpretation of this fair show plaintiff must scrutiny, a that “subordination” to the lead conclusion race in substantial has relied State only proven if a state abandons be can dis- customary and traditional disregard districting principles in traditional violates tricting practices. fact, racial considerations. favor of (O’Connor, Miller, at-, 115 S.Ct. dissent, Ginsburg pointed out Justice (citation empha- J., concurring) omitted District, major- Georgia’s Eleventh which dissent, added). Ginsburg in Justice sis “subordination,” example of ity to be an held Stevens, Breyer, and Sout- by joined Justices imprint of familiar district- actually bore “the predominant er, new interpreted the Court’s at-, at 2499 Id. 115 S.Ct. ing practices.” differently: factor test at-, J., (Ginsburg, dissenting); id. judicial expands the Today Court J., (Ginsburg, dissent- at 2502-2503 115 S.Ct. are to role, courts announcing that federal (noting specifically the Eleventh ing) how any district searching review of undertake significant con- design reflects District’s motivated” “predominantly with contours factors). districting of traditional sideration triggered be scrutiny” will by race: “strict districting prac- only traditional when not Moreover, conclusion that “subordina- abandoned, those when but also tices are if abandons only proven tion” can .state given less “subordinated practices are to” — districting principles in or violates traditional new Applying this weight race. than constitutes a considerations favor racial standard, the “race-as-predominant-factor” fallacy. presupposition such a logical The districting plan Georgia’s Court invalidates are drawn on that if conclusion is District, Georgia’s Eleventh though even districting princi- of traditional the basis the im- today’s dispute, bears focus of etc., contiguity, then such ples compactness, — districting practices. print of familiar gerry- of racial be the result districts cannot J., (Ginsburg, at-, at 2499 S.Ct. Id. is fallacious mandering. a conclusion Such (citation emphasis dissenting) omitted logically certainly possible, both it is because added). factually, could be crafted that districts itself, as it had recognized, majority, districting the confines of traditional within Shaw, at-, S.Ct. at U.S. predominantly motivat- still be principles and compliance tradition legislature’s that a the same time. by ed racial considerations may well suffice districting principles al Furthermore, accords otherwise to conclude but gerrymandering, a claim of racial defeat significance to a preclusive constitutional possible in Miller was not such a refutation districting traditional compliance with state’s the State of found- that Court because significance ac- principles, which exceeds factors Georgia had those subordinated Reno, — 509 U.S. at Court. See at-, corded Miller, objectives. -, subordination, at 2816. proof As at 2489. language together, particular challenge Taken all of this er the under takes may plaintiff greater degree that a race account leads us to conclude into to a than prove necessary satisfy predominant compelling factor test and to further a state inter- districting question principles ‘narrowly traditional were est is a for the tailored’ objectives only prong scrutiny analysis, to racial the strict subordinated which a state abandons traditional the ‘fit’ when violates examines between the compelling districting in moti principles precise favor of racial state interest and the means chosen substantially Hunt, but also state accomplish vations when the state to it.” 861 princi complies districting at F.Supp. (citing Wygant, with traditional 437 476 U.S. at 6, gives weight appor 6, in ples and them less 280 & n. 106 1850 S.Ct. at & n. Fullilove, process 507, tionment than considerations. 448 U.S. at 100 S.Ct. at 2789 J., (Powell, concurring)). presenting, Without equal Although the Plaintiffs in this an exhaustive review of those reasons that challenge bear bur protection the ultimate theoretically might compelling serve as a throughout persuasion proceeding, den redistrieting context, in state interest we — at -, 2488; id. 115 at see U.S. S.Ct. have chosen limit our discussion to the 79, Kentucky, v. 476 & n. Batson U.S. 93-94 compelling interest that the Defendants have 1712, 18, 106 S.Ct. 1721 & n. L.Ed.2d 90 n offeredin this ease—compliance with section (1986); 277-78, Wygant, 476 U.S. at 106 69 Voting 2 Rights Act. Defs.’ Post Trial 1848-49, proof at if the Plaintiffs S.Ct. offer Br. at 57-63. substantiating predominant that race was the motivating apportionment factor the state’s Reno, In Shaw v. the state ar process, gives presumption then this rise to a gued compliance Voting that Rights with unconstitutional, that is and the a compelling Act was state interest. 509 shifts burden to the Defendants to demon at-, Court, U.S. 113 at 2830. The S.Ct. narrowly that their of race strate use was however, stopped totally endorsing short of interest, compelling tailored to meet a state certainly very this claim:- “The states have a Croson, 728; at see 488 109 U.S. S.Ct. at strong complying interest in with federal Hunt, Yet, F.Supp. 861 at 436. the Defen are antidiscrimination laws that constitution production dants’ shifted burden is one of Id.; ally interpreted applied.” as as valid only, persuasion. The bear Plaintiffs still — Miller, -, see U.S. at 115 S.Ct. at persuading ultimate court burden Obviously, the Court aware that in compel that the Defendants did not have a scrutiny parlance-a “compelling strict state justified ling state use of interest their Thus, is a term of interest” art. we do not apportionment process in race or that “very think the Court’s choice of words redistricting plan nar Defendants’ was not insignificant. strong suggests interest” is It rowly such tailored to meet an interest. See may Voting Rights to us that the Act serve 292-93, Wygant, 476 at 106 at U.S. S.Ct. compelling as a interest in cir state some J., Hunt, (O’Connor, concurring); 1856-57 cumstances, others, in but state action osten F.Supp. at 861 sibly conformity may therewith violate the Equal Protection Clause the Fourteenth Compelling

D. State Interest Miller, at -, Amendment. See 115 S.Ct. — Next, 2490; Grandy, at see also v. De we consider those reasons Johnson interest, U.S. -, -, compelling serve might as a state 2666- (1994) J., justifying (Kennedy, engage a state’s decision to in race- L.Ed.2d 775 129 (“Given Shaw, concurring) redistricting. point, At this are not our decision in based we good state concerned with whether the Defendants there is reason for and federal responsibilities compelling justification this case had a with related to redis officials plan; tricting engaging race in are remedial action [that their consideration of the 1992 pursuant Voting Rights Defen to section 2 of the we concerned with whether the courts, Act], justification any reviewing recognize compelling dants had a well as districting redistricting plan explicit as a embarks that considered race race-based predominant question dangerous It is neces- factor. of “wheth- us on a most course.

1020 redistricting comply order to redistricting must based sary mind to bear Rights Act it has informa- overriding Voting when demands of the comply with Clause.”). support prima tion sufficient Equal Protection facie showing that its failure to do so would recog Previously, the Court has Croson, at Act. See 488 U.S. violate the taking interest in compelling nized a state’s (evidence (majority) 500 at [109 725] S.Ct. measures eradicate race-based remedial prima of a con- “approaching a facie case racial discrimination. past the effects violation”). statutory stitutional or — at -, Miller, 2490 U.S. 115 S.Ct. at Hunt, 437-439; F.Supp. at see Johnson at -, Reno, at (citing S.Ct. U.S. (S.D.Ga.1994), Miller, F.Supp. 491-93, Croson, (citing — -, 'd, S.Ct. aff 720-721; Wygant, 476 U.S. at 280- (1995). 132 L.Ed.2d 762 1850-51)). Furthermore, 82, at 106 S.Ct. Generally, prima to a facie establish recognized this ex has that interest Court redistricting single-member plan case that a present remedying past or violations tends Act, Voting Rights 2 a violates section that were intended to of federal statutes things, Gingles three plaintiff must show specific in aspects discrimination eliminate preconditions: Croson, at 488 U.S. 109 S.Ct. life. See First, plaintiff] (“constitutional must show [the statutory or viola at 725 sufficiently large minority group “‘is 289, 106 tion”); Wygant, at S.Ct. at (“violation compact ma- geographically to constitute a (O’Connor, J., concurring) 1854 ” jority single-member in a district.’ Sec- statutory require or constitutional federal ond, prove that ments”). plaintiff] must Moreover, [the has 'the Court clarified ” “ minority group politically ‘is cohesive.’ judicial does have to await a that a state “ Third, plaintiff[ ‘that ] must establish past finding present that it committed has sufficiently as a white votes voluntarily before it takes re discrimination usually bloc to it ... to defeat the discrimination, enable action to eradicate the medial ” “ minority’s preferred candidate.’ in long ‘strong it has basis so a evidence its conclusion that remedial action was for Quitter, 507 at 113 Voinovich v. U.S. Croson, necessary.’” U.S. at 109 488 Emison, (quoting at 1157 Growe v. 507 S.Ct. Wygant, 476 (quoting at 725 at S.Ct. U.S. 25, 39, 113 1075, 1084, 122L.Ed.2d U.S. S.Ct. — 1848); Miller, at at U.S. (1993) Gingles, (quoting Thornburg 388 Hunt, -, -, 2491; 115 S.Ct. 50-51, 2752, 2766-67, 478 106 F.Supp. at 437. Johnson, (1986))); 92 L.Ed.2d 25 1387; Hunt, F.Supp. F.Supp. at 440. Applying principles these to the re Thus, a state has reliable information when districting Rights the Voting context and minority group the relevant indicates Act, developed very Hunt a court useful prima challenge could a facie under establish by which to determine when the standard Voting Rights Act to the section Voting Rights compelling as a Act can serve existing districting plan, “strong then it has a state interest: concluding it basis in that must evidence” we think it principles, Under these clear engage redistricting comply in race-based “compelling” in that a state has a interest Act, Voting Rights with section in engaging redistricting to race-based “compelling it has a interest” for established give strength effect Hunt, F.Supp. the remedial measures. “strong a basis in evi- whenever has at 440. concluding that such dence” for action is “necessary” to its prevent Narrowly electoral dis- E. Tailored tricting violating Voting scheme from Finally, consider to determine we how Rights Act. justified by gerrymander, whether if interest, narrowly tai- compelling state is in The Court “strong

A has basis lored to further interest. state evidence” Reno, engage help concluding provided must little with this issue that it race- say other than to that in the context of a whether a complied state could have with the challenge Voting under section 5 of the Voting Rights Act with means that were less Act, Rights reapportionment plan “[a] would race-based. The Plaintiffs in this case do not narrowly not be tailored if the State went allege Apportionment Board created beyond reasonably necessary what was to more majority-minority districts than is rea- Therefore, retrogression.” avoid agree we sonably necessary comply with the Voting analytical with the Hunt court that best Rights Rather, Act. they generally claim approach is to examine the Court’s decisions packed that the Board black voters into dis- apply narrowly tailored standard in comprise tricts to majority, less than a where other race-based remedial contexts. See minority population, a black conjunction Hunt, F.Supp. at 444-45. significant votes, white crossover al- ready ample had opportunity to elect the contexts, In other race-based candidate of its choice without the addition Court has examined five factors to determine black packing whether a voters. of black race-based This vot- affirmative action narrowly into they ers compelling tailored to serve the were not where needed remedying allegedly interest state resulted in a discrimina waste of black votes in (1) efficacy tion: “packed” alternative remedies districts and a loss of minority (2) race-neutral; that were less race-based or “influence” those districts where the black plan quota whether the utilizes a fixed racial previously voters were located. Assuming (3) or a goal; flexible racial the duration of arguendo that such race-based measures tru- (4) plan; the relationship the between the ly compliance further with section 2 of the plan’s goal minority for representation in the Act, Voting Rights analytical question pool applicants selected to receive the a becomes two-fold concern: whether affirmative percentage action and the of mi plan “packed” 1992 creates more districts pool eligible norities the relevant candi reasonably than is necessary comply to with (5) dates; impact plan on the “packed” the Act and whether the districts it rights parties. of third United See States v. substantially larger creates contain concen- Paradise, 149, 171-85, 480 U.S. trations than voters is reasonably 1053, 1066-74, (1987) (plurali 94 L.Ed.2d 203 necessary give minority voters a realistic ty); Local Sheet Metal Workers’ Int’l opportunity representatives to elect of their EEOC, 421, 485-89, Ass’n v. 106 Hunt, choice those districts. See 86Í 3019, 3055-57, (1986) S.Ct. 92 L.Ed.2d 344 F.Supp. at 446. (Powell, J., Croson, concurring); see also 507-08, 729; U.S. at Wygant, S.Ct. factor, Regarding the second a court 279-84, 476 U.S. at 106 S.Ct. at 1849-52. must challenged determine plan whether Although these criteria developed were in requires a quota fixed racial that is crafted to contexts other than redistricting, race-based requires achieve racial or balance a flexible they we think easily adapted are to this goal to gauging be used as a standard context. engaged rigor While we have in a efforts at eradicating state’s the discrimina analysis, inquiry ous our has been careful question. Workers, tion See Sheet Metal and sensitive. 477-78, 106 478 U.S. at S.Ct. at 3050-51. We agree with the Hunt

Considering factor, gerry court that racial the first a court manders will decide “seldom be invalid on must whether the state could have this accomplished ground” they impose its because do not compelling by interest some fixed quota. F.Supp. means that racial were less at 446. Even if race-based race- Wygant, neutral. creates a at 280 n. state certain number of districts compliance designed S.Ct. at 1850 n. 6. If are minority represen with elect tatives, Voting Rights Act guarantee is a state’s there no compelling is that minority then, obviously, representatives Thus, interest a race-neutral will alter elected. be such Assuming native does not exist. hardly race must can be viewed as anything comply considered to Voting examples than acceptable, other anof flexible Act, Rights question then goal minority representation. becomes for See Sheet plan Workers, 487-88,106 redistricting “a race-based U.S. at court Metal imposes upon burden third unacceptable an sufficiently ‘nar- parties, hence is not [and] factor invokes consider- [26] The third mus- rowly tailored’ to constitutional survive planned of the remedial duration ation ter, redistricting comply with if it fails to provision, temporary is not a measure.' If it principles that are themselves constitutional- reasonably necessary may longer last than mandated, ly person, like one vote’ the ‘one targeted dis- the effects of the to eliminate against undue prohibition standard 479,106 id. at S.Ct. at 3051 crimination. See strength any identifi- dilution of temporary remedial (noting that a race-based Hunt, F.Supp. at group able of voters.” it “will acceptable is because end as measure court, however, do we Like Hunt longer remedy ... it is no needed soon as gerrymander imposes not that a think discrimination”). A race-based redis- past parties sim- unacceptable an burden on third likely satisfy tricting plan in Ohio will this redistricting plan a bi- ply has because required, prac- as a test because the State shape or from traditional dis- zarre deviates matter, to redistrict after each decennial tical which, themselves, tricting principles, census, will in re-consider- and this result constitutionally Id. at 449-56. mandated.11 possible previ- termination of the ation point im At this we note that it is plan. ous race-based portant presented all in this the issues requires the The fourth factor court - analyzed way gives case in a to be presents consider whether remedial expression constitutionally to the and statu relationship plan’s a reasonable between torily goal protecting based national minority representation pool goal rights persons historic dis victimized applicants to receive the affirma selected crimination, they may effectively par so that percentage action and the of minorities tive ticipate changing public policies in to “ensure pool eligible of candidates. relevant in opportunities and fair nondiscrimination context, redistricting applied to the we As education, employment, housing, and other requirement long this so think is satisfied as Karlan, Arthur areas.” A. Baer & Pamela S. percentage racially-packed of districts Voting Rights Agenda Act An Enforcement: substantially percentage exceed the does Opportunity, New Equal Electoral in for minority throughout the of voters state. See Challenges, Rights The Record Civil of — Grandy, v. n. Johnson De U.S. at - & (Re Clinton Administration Mid-term 169 11, (noting at 2658 n. 11 S.Ct. & port of the Commission on Civil Citizen’s Voting right Rights of section 2 ultimate of Rights, today decisions must Court minority opportunity equal Act is voters’ be mindful of the Court’s admoni choice, of their elect candidate measured years ago tion over one hundred in Yick Wo by proportionality percentage of between Hopkins, v. majority-minority voting in state to districts (1886), right to vote is a L.Ed. minority pop members’ share of the relevant political right, preser because “fundamental state). throughout ulation rights.” in presented all The issue vative of requires responded fifth this must not to in such a The factor a court case challenged plan way gut Voting Rights prom “im as to Act’s to consider whether opportunity. mi unacceptable equal an on innocent ise of electoral When pose[s] burden Paradise, deliberately nority purposeful are parties.” third 480 U.S. at voters ly they packed As into district where applied 107 S.Ct. at 1072. the redis context, minority’s agree unnecessary to tricting we with the Hunt the election the words Justice inconvenient tions; even bizarre in some situa- 11. Consider of Chief Warren some; Burger Charlotte-Mecklenburg may Bd. impose Swann all burdens on but Educ., 28 L.Ed.2d 554 cannot be awkwardness and inconvenience (1971), ap- considered and where Court- period remedial avoided in interim when proved the use of race-sensitive remedies to com- adjustments being dual tire made to eliminate the remedy segregated bat schools: "The for such system.” 91 S.Ct. at 1282. school Id. awkward, administratively segregation may be choice, capable candidate of who “chang districts identified in complaint public policies,” ing plan such a must be were illustrative of alleged race- justified by compelling governmental pur based districts necessarily but not an pose. particularly This is true when the listing said, exclusive of them. That effect likely however, of such a scheme is to be to we note that we are not con- opportunity reduce the voters to cerned with districts irregular whose coalesce with other voters to influence the shape may have been ripple effect election of candidates of their choice in the of another district racially that was they districts from which are drawn. gerrymandered. When irregular Such an very this occurs the spirit Voting may district proscrip- indeed violate Rights Act prompt is eroded. risk The has Constitution, tions of the Ohio but the reject portions ed us to plan of the 1992 focus of a Shaw v. Reno claim is racial issue here. gerrymandering in violation of the

Fourteenth Amendment to the United Findings III. Thus, of Fact and States Constitution. only we are Conclusions of Law concerned this case with districts allegedly racially have been gerry- Based on our review of the evi mandered. find, dence submitted parties, both we 2. The admittedly Defendants considered following reasons, that racial consider drafting race when appor- their 1992 predominant ations were the factor in the plan. tionment Apportionment reapportionment Defendants’ 1992 plan: Board Tilling instructed to “draw a 1.The Plaintiffs’ gerry claims comportment that was in with the mandering are somewhat unusual Constitution, the Fourteenth and First, this they case. allege that the Fifteenth Amendments of the United Defendants drew legislative race-based States Voting Constitution and the the urban areas of Ohio and Act,” Rights Tilling attempted that this decision ripple had the effect comply. Hr’g Tilling Tr. at 208. con- causing irregular shaped districts sidered race to avoid dilution of minor- State, throughout which violated ity voting strength in violation of the districting traditional principles Voting Rights Act. Id. at 308. Constitution, embodied the Ohio Tilling 3. Before apportion- an drafted particularly XI, § Article 7. Pls.’ Sec plan, ment he public attended hear- ¶ Am.Compl. addition, ond 55. In the ings throughout the state. At these alleged Plaintiffs that some of the hearings Apportionment Board districts, themselves, race-based had testimony heard from some members irregular shapes in violation of the tra minority community requesting ditional districting principles contained minority the Board to voting enhance in the Ohio Finally, Constitution. Id. strength by creating majority- more alleged the Plaintiffs that racially minority Defendants’ Post- districts. gerrymandered districts “included” Trial Br. at At hearings, 2-3. these 31, 30, 22, 21, 38, 39, House districts Tilling publicly stated that consider- ¶ 44, and 49. Id. 56. The Defendants compliance ation of and with the Vot- contend that the Plaintiffs are limited ing Rights important was an Act challenging to only eight these dis principle apportionment guiding the tricts, which were identified in their process. Id. 3-5. complaint. Defendants, however, miseharacterize Apportionment the Plaintiffs’ com Findings 4. The Board’s plaint. Conclusions, The word clearly “included” adopted February and Thus, not an 18, 1992,12 exclusive eight term. plan, support the 1992 Apportionment 12. The findings Appor- Board has not met since constitute direct evidence of the 18, 1992, February change modify either to justification its tionment Board's and for rationale Thus, findings regarding plan. plan. these the 1992 shifts, turnout, demograph- population was a sub only that race not

reveal factors, pat- voting ics, incumbency motivating factor and stantial require factors other such and process but terns reapportionment Cuya- outside minority districts certain factor in predominant was the increased County must reflect hoga on the conclu Based districts. house voting pro black Voting Rights percentages Act that the relative sions voters, Accordingly, incum age population.”) tected classes ¶¶ 177, see, Findings “unless Black bents, e.g., Bd. determined Board margins Population existed Voting Age racial bloc and that Ohio, including districts, minority the State of minori- throughout adopted voters, minority id. containing minority Bd. losing districts.” districts ties risk ¶¶ ¶ Board 124, 167, Apportionment Findings 174. dis to create it needed decided that drew County, the Board Franklin sufficient contain that would tricts possibility to enhance lines district the elec guarantee to population black candidate. electing a black new (non-incumbent) black any new tion Finding indicates that Till- Board Thus, through Board candidate. “reconfigured House districts ing minority to Tilling black voters added protect County to in Franklin and County Cuyahoga outside districts and minority in those districts voters black [wa]s “there insufficient because minority District create a Senate to minority districts population in previous- County none where Franklin candi election of a black guarantee the ¶ Tilling testified ly existed.” Id. 189. voter given levels of particularly date legislators, incumbent black voting in the racial bloc turnout and Beatty, had indicated Reps. Miller ¶ Obviously, one of Id. 168. district.” offices, for different to run desire pro in this assumptions working Voting Rights Act because would voters was that black cess voters and not in- classes of protects only candidate as their a black choose cumbents, were added to black voters clearly one of This is representative. Beatty Reps. Miller and districts of assump demeaning offensive ¶ Id. 189. The goal. this achieve pre has Court tions population Rep. of black percentage impermissible viously as an criticized district, 22 under H.D. Miller’s —Miller, stereotype. See increased from 38.50% plan, was Reno, at-, (citing at 2485 (40.98% voting age black 44.68% at-, 113 S.Ct. at increase, which is a 6.18% population), incumbency analysis of Board’s

5.The that would the 6-10% standard within elections necessary compensate an in- revealed incumbency advantage. loss of possible per- cumbency advantage of six to ten I, Ex. DD. Supp.Exs., Vol. Defs.’ ¶ 171, 173, cent, Board id. Likewise, population Rep. the black to that it was concluded unreasonable district, Beatty’s under H.D. cur- on the configure based districts 46.80% from plan, was increased because the successful rent incumbent (48.30% voting age black 54.30% to retire, die, move might incumbents Id. of 7.50%. an increase population), during positions political on to other Beatty previously had Miller Both 90’s, Bd. Con- at 172. See also id. terms, to and seven elected six been ¶ (“It clusion of Law unreasonable ¶ 162, by Findings respectively, Bd. minority based reconfigure to than two-to-one. of better pluralities minority success on the electoral drew County, Board lines 7. In Lucas Further, reconfigu- such incumbents. electing a possibility of enhance to mi- impermissible ration will result Tilling stated black candidate. new Consideration nority vote dilution. in Lucas drew the districts he voting, voter as racial bloc factors such County protect voters, “to a class of was from increased 36.10% to 40.69% particular (36.71% incumbent in that voting age black population), ¶ situation.” Id. 177. Tilling added an increase of 4.59%. Supp. Defs.’ minority Rep. additional votes Ca- Exs., I,Vol. Ex. DD. sey district, Jones’ H.D. 49 under the 10. In County, Hamilton the Board drew plan, Casey “not because Jones lines to enhance the possibility of needed them but because down the electing new black candidates. The road in this decade whoever is his suc- Board found the following: cessor needs opportunity give minorities a clear chance to elect a Tilling, Mr. drafting Appor- the 1991 candidate of their choice.” Id. More- Plan, tionment also determined that the over, Tilling accepted the rationale of Voting Rights protected Act classes of increasing minority Casey voters in voters not Represen- incumbents. Since Jones’ district growth because the Mallory 60’s, tative is in his there is a University of Toledo displaced had particular need reconfigure House individuals, a number of causing some District 23 [H.D. 31 in plan] the 1992 shift population district, in his increase the relative percentage of black might Jones nearing because retire- population in that district in order to ¶ ment age. Id. 195. popu- The black provide an opportunity for a new black lation in Jones’ district was increased candidate, without the benefit of incum- (46.42% from 41.70% to 49.99% black bency, to be elected iii the district. voting age population), an increase of ¶ Findings Bd. 183. Accordingly, I, 8.29%. Supp.Exs., Defs.’ Vol. Ex. Board increased the black population in DD. Mallory’s district from 45.90% to 49.16% 8. In County, Summit the Board drew (43.13% voting age black population), an lines to possibility enhance the of elect- increase of 3.26%. Supp.Exs., Defs.’ Vol. ing black new candidates. ‘Based on I, Ex. DD. The Board also increased the Rep. conclusion that Sykes’ Vernon population black in Rep. district, Rankin’s district, H.D. 44 plan, under the 1992 H.D. plan, the 1992 from 53.20% to “losing was population black and to (52.72% 55.98% black age popula- minority dilution,” avoid vote Bd. Find- tion), an increase 2.78% in a district that ¶ 194, ings the Board increased the already was a majority-minority district. black population Sykes’ district from Id. The Board popula- increased the black (39.86% 35.40% to 43.07% black voting tion in district allegedly Rankin’s because age population), 7.67%, an increase “[a] new black require candidate would I, Supp.Exs., Defs.’ Vol. Ex. DD. Pre- district with increased black population to viously Sykes had been elected to five ¶ Findings be successful.” Bd. by margins terms of two-to-one. Bd. ¶

Findings 162. In to the Apportionment addition Findings Board’s Montgomery Conclusions, County, the Board Tilling, guarantee drew who was the principal lines to archi- the election of tect of apportionment new Again, kept black candidates. plan, based “population Rep. in Rep. McLin’s tionment plan. and See Roberts’ dis- Pis.’ Ex. Prior tricts, B, H.D. 38 and H.D. respective- Proceeding No. 120. The notes ¶ ly plan. under the 1992 Id. revealed steps 193. that his first five The population Tilling black in McLin’s dis- population calculated the ideal trict was increased from 42.10% to size of the Senate and House dis- (41.56% 44.47% tricts, black age popu- pursuant XI, to Article Section lation), . an increase of Constitution, and the 2 of the 2.30% Ohio and deter- black population in district Roberts’ mined counties popula- those that had not-too-distant that a fact remains ideal of the percent five within tions plan was forerunning of XI, the Section Article with

in accordance manner, Begin- in the aforementioned drawn Constitution. 10 of the Ohio do contend with Defendants continuing and the step and ning six with thereafter, totally the discarded plan county that the urban each origi- Tilling that and results procedure repeatedly indicate the notes minority population plan.13 the displayed nal computer his county on urban each pur that for point we note At this 12. “minority the then drew screen and case, without assume this poses of we proceeding. before first districts” Apportionment holding that the at- heightened and the process This the substantially complied with Board was con- composition tention to principles man districting traditional Tilling hearing when the firmed. at Con XI of the Ohio Article dated in the maps concerning the testified analy earlier Based on our stitution. in accordance drawn urban predominant Court’s of the Miller sis contained process the II.C., we test, supra part see factor Viewed at 344-51. Hr’g Tr. notes. ad unnecessary specifically to find it that maps indicated the sequentially, com Defendants the dress whether county, the urban for each districting the traditional plied with the most displayed; was population Con in the Ohio principles contained were drawn heavily black districts if a state sub even because stitution succeeding district first; each and dis- stantially to traditional adheres a decreas- contained drawn that was still plaintiff can tricting principles, a population. of black ing percentage objectives were prove that racial maps in claim Plaintiffs The apportion factor predominant notes establish conjunction with districting if process ment traditional con- predominant “the that race was giv principles subordinated were to— the Board.” Tilling and cern of Mr. consider weight than —racial en less 14. The Defen- Br. Trial at Pis.’-Post — at-, Miller, See ations. Tilling’s and notes dants contend -, 2488; id. at maps are irrele- corresponding J., (Ginsburg, dissent S.Ct. at origi- to the they refer vant because Nevertheless, note that ing). we Tilling submit- plan that nal “model” tradition -withthe compliance Board’s September to Board on ted Ohio districting principles al this Although it is true that mat hotly is a contested Constitution in effect plan was never exact 36-49, Posb-Hr’g Br. at ter, occasions, see Pls.’ on numerous was modified previously chosen we have on which of the Defen- probative we still find abstain, Quilter, F.Supp. at see consideration predominant dants’ 702.14 redistricting process. race in the Conclusions, adopted were Findings which agreed that the Originally, held Board's race-based of the direct evidence plan is their claim counterclaimants in the Board's redistricting was contained that thorough 13. Based on our review and 16. The agree Defendants that in order pre- consideration of the all evidence show that section 2 of Voting the case, Rights sented in this we find that race Act was a compelling state interest, predominant motivating they the was fac- must strong have a ba- tor in sis in the Defendants’ creation of evidence that race-based redis- 21, 22, 30, 31, 38, 39, tricting House was necessary districts as a remedial plan comply and 49 in measure to Voting the 1992 because with the Rights Moreover, Act. districting principles traditional Id. at 59-60. were the agree Defendants given that a weight subordinated to or less state has “strong basis in reapportionment the evidence” to con- process than clude that it engage needs to racial race- considerations. These House redistricting based comply districts gerry- are the result of with 2 of Voting section the Rights mandering. Although Act none these when the state has information that is presents districts shape, a bizarre reasonably sufficient to lead it to con- both direct evidence from trial testi- clude that the relevant mony Apportionment and the Board’s group prima could make out a facie Findings Conclusions, and cir- 2 challenge section existing cumstantial Tilling’s evidence from plan. 59, 60, Id. at 63. notes and accompanying maps, clearly reveal that earlier, the Defendants in- 17. As we noted plaintiff can tentionally eight crafted prima these dis- establish a facie ease of a viola- predominant tricts with the tion purpose of section 2 of Voting Rights separating Act by providing voters on the basis of evidence that satis- race. fies Gingles preconditions: the three First, plaintiff] [the must show that the Because 14. race was the predominant minority group sufficiently large “‘is motivating drafting factor and geographically compact to constitute eight these plan, districts in the 1992 ” majority single-member in a district.’ they subjected must be to strict scru Second, plaintiff] prove [the must that — Miller, tiny analysis. at U.S. “ minority group politically ‘is cohe- -, Thus, 115 S.Ct. at 2490. Third, sive.’” plaintiff! ] must es- production burden of to the shifts De tablish “‘that the white votes fendants to show that House districts sufficiently as a bloc to enable it ... 21, 22, 30, 31, 38, 39, 44, 49 in usually minority’s defeat pre- plan narrowly were tailored to ” ferred candidate.’ compelling meet a state interest. See — Quilter, at-, Voinovich v. U.S. id.; Croson, 505, 109 at S.Ct. Emison, (quoting S.Ct. at 1157 Growe v. 728; Hunt, at F.Supp. 436. 25, 39, 1075, 1084, 507 U.S. (1993) L.Ed.2d (quoting Thornburg 15. The Defendants claim compliance that Gingles, 30, 50-51, 106 Voting section 2 of Rights 2766-67, (1986))). 92 L.Ed.2d 25 compelling Act was the state interest justified that their Assuming redis- holding race-based without tricting. Defs.’ Post Br. at possessed Trial 57- Defendants information reasonably would lead them to and, accordingly, unconstitutional we find the sections 7 under and 10 of Article XI plan court, to be constitutional.” N.E.2d of the Ohio Constitution and that this id. ac- Nevertheless, cordingly, careful precluded addressing examination of the was not from per opinion Defendants, however, curiam reveals that court was issue. The have ar- specifically addressing constitutionality gued precluded court this from address- ing Senate district 32 under constitutionality sections and 11 reapportionment Thus, XI Article of the Ohio Constitution. under the Ohio Constitution because the argued in the instant Supreme Plaintiffs case before specifically this Court stated that constitutional, plan” court the Ohio meaning Court did not rule "the was constitutionality challenged on the plan. house whole 1028 As we occurred. Rights Act had satisfy Voting could plaintiff that conclude earlier, required to a state is not factors, we hold noted Gingles two

the first commit- finding that it has judicial have a await a not did Defendants that the it before present discrimination engage past or ted in “strong evidence” basis action to eradi- voluntarily takes remedial redistricting in House in race-based discrimination, long as it has a 39, 44, so 30, 31, 38, 22, cate the 21, districts for its conclu- “‘strong in evidence they did basis because the 1992 49 of ” necessary.’ action was that would sion that remedial information possess not 500, at 725 Croson, 109 S.Ct. U.S. at that reasonably them to conclude lead 277, 106 at (quoting Wygant, the third Gin- satisfy could plaintiff — at-, 1848); Miller, at districts —the S.Ct. in gles factor these 2490, point Our -, at voting. 115 S.Ct. racial bloc presence of rulings of this court previous noting in this court and Both regarding the ab- Supreme Court and the the basis of previously held Court voting in was polarized Ohio sence evidence, racially polar- all the readily and rea- what was emphasize that not exist voting generally did ized held sonably to and apparent The legislative elections. Ohio’s reasonably courts, have also should been following: Court noted racially po- apparent to the Defendants — have case] this [A]ppellees [Plaintiffs not exist voting generally does larized pre Gingles’ third demonstrate failed to legislative elections.15 Ohio’s majority bloc white condition—sufficient Tilling contend that the election voting frustrate 20. The Defendants reasonably choice. that “racial bloc candidate of concluded group’s minority found Ohio.” specifically voting throughout existed Court The District “racially n. 45. Trial Br. 62 & from at does suffer Defs.’ Post that Ohio analysis Yet, regression at F.Supp. 700- voting.” 794 the bivariate polarized Dr. Accord, expert, App. to Juris. Statement Plaintiffs’ 2, Henderson, years 132a-134a, Even for the election n. 139a-140a. 1984, Arg. of Oral revealed agree. Tr. appellees See Here, voting “in in each Gingles, the absence of eoalitional presence as in voting cannot the De eight districts where significant white bloc fendants, ability through vot chose to en Tilling, be said redistricting in the representatives race-based gage their chosen ers to elect Quilter, voters.” 1992 WL plan. that of white Gin See is inferior 15, percentage at n. *4 & n. 2. The at 49 gles, 478 U.S. in each of cross-over vote 2766 n. 15. of white Rep. follows: 1158; was as those Quilter, U.S. at Rankin— Mallory 50.66%; Rep. at *4 & WL Quilter, 1992 see also — 44.50%; Rep. 50.93%; Rep. has eoali- (holding n. n. *8 Miller — McLin— Beatty 50.25%; Rep. cross over and voting, tional where whites — 45.98%; Rep. 35.44%; Rep. candidates, polar and not vote for Roberts — black Rep. Sykes 48.76%; Jones —44.46%. white vote for voting, where whites ized — to the time that *4 n. 2. Prior Id. at candi vote for black and blacks candidates adopted “Amendment Defendants dates). precedents, By relying on these expert, D,” plan, own their Apportionment saying that the we are not analyzed 200 elections King, over Dr. into account not take race Board could Ohio, he concluded throughout proven in a until it had been unless and racially polarized “degree 2 of the a violation section court that Voting Rights Act. court however, ed section note, exception. In Armour one 15. We 1991), (N.D.Ohio Ohio, totality anal- F.Supp. of the circumstances under a found districts, House racially polarized held that two existed in these ysis district court 52 and redistricting plan, under the 1981 two districts. County, Mahoning violat- located which were

1029 Ohio,” voting in existed but he was could not reasonably conclude that willing degree not to characterize the the relevant group could es- polarization “legally sig of racial as prima tablish a facie case of a viola- nificant.” Defs.’ Post Trial Br. at 63 tion of section 2 of Voting the Rights Regardless n. 47. King’s & of Dr. Act in eight the challenged districts. ability “legal” sig on comment Significant-evidence of white analyses, nificance of his the fact rem voting bloc in legislative these Ohio King ains that challenge Dr. did not districts did not exist. Dr. point. Henderson’s results on this 21. Because the pos- Defendants did not Quilter, See 1992 WL at *4 n. strong sess a in basis evidence King’s 3. Dr. that regarding own results they polarized voting engage in needed to in Ohio revealed that race-based average on 95% redistricting comply of blacks voted for with 2 section black candidates and 56.7% of whites Voting Rights, the Act does not candidates, voted for thereby black provide compelling a state interest confirming Dr. Henderson’s results. justify the remedial action.16 See Id. at *4 n. In — Apportionment Miller, at-, U.S. 115 S.Ct. at Findings Conclusions, Board’s and (“As 2490 1995 WL at *13 we the Board presence even admitted the suggested Shaw, in compliance with voting of white cross-over mi federal antidiscrimination law cannot nority districts where race-based- re justify districting race-based where medial measures were utilized. Bd. challenged district was not rea- ¶ Findings 168. Given the over sonably necessary under a constitu- whelming statistical evidence of coali- reading tional application of those challenged tional in the dis laws.”); Hunt, F.Supp. 861 at 440. tricts existing plan, under Apportionment Because the given the fact Board that the Defendants compelling lacks a had this state available to them interest information they its adopted before racial plan, gerrymandering the 1992 in House 21, 22, 30, 31, 38, 39, its race-based remedial mea sures, we find that the Defendants 49 of plan,17 the 1992 we conclude that 16. The dissent concludes the "State of previous plan in each district under to deter- compelling ... has the comply- prima state interest of mine if facie evidence of a section 2 viola- ing Voting Rights Dissenting Op. with the Act." tion exists. If such does evidence not exist ain district, support holding, given [1041-1042]. As for this engage then the Board cannot dissent relies on the redistricting district court’s decision simply race-based in that district Ohio, (N.D.Ohio F.Supp. v. Voting Rights Armour 1044 because a previously Act violation 1991), where the court held two house was part found in another a district in different districts, Mahoning county 52 and located of the State. . redistricting plan under the 1981 violated section Act, Voting Rights dissent, 2 of the colleague Fifteenth Amend- our concludes that the Constitution, to the United Apportionment ment States and sec- compel Board have another did 7(C) ling tion of Article XI of justified gerrymander the Ohio Constitution. interest that its racial implies finding ing: dissent compliance The our instant with Article XI of the Ohio Voting Rights Constitution, section 2 of did not Act constitute which contains Ohio's mandate to compelling justify a state interest to districting principles the Board's utilize traditional in the re gerrymandering districts, eight challenged districting process. in the Dissenting Op. at [1041- Obviously, House is inconsistent somehow with the 1042]. such a conclusion is based on actuality, court’s presumption decision in Armour. In the two Board adhered to the present finding districting decisions no principles conflict. The traditional in the Ohio Con racially polarized voting Voting Rights plan. Act stitution when it drafted Al Ohio, county though violation in one does not neces- the dissent finds that the Board did com sarily ply mean that such districting principles evidence will be found in with the in the Ohio Constitution, every county of Ohio. House districts in as we noted earlier the latter con Mahoning matter, County plan hotly under the 1992 were lusion see c contested Pls.' Post- 36-49, challenged engage Hr'g even instant case. To previously Br. at we which have abstain, Quilter, redistricting remedy poten- in race-based as to F.Supp. so chosen to see Defendants, themselves, Voting Rights violations tial of section 702. Because the did Act, analyze voting patterns proffer Board must compelling justifica- not choose to such Wilson, Lane Equal Pro- Court districts violate the

these 275, 59 83 L.Ed. the Fourteenth tection Clause (1939), holding, [Fifteenth] Based on our “The Amendment Amendment. simple-mind- unnecessary to discuss sophisticated we find it nullifies as well narrowly was char- whether ed modes of discrimination.” Without compelling to a state acterizing tailored further nature discrimination the here, simply interest. hold present we that Justice equally applica- Frankfurter’s admonition is IY. Conclusion Equal to Protection Clause of the ble the Using the Fourteenth Amendment. race as Fifteenth The Fourteenth predominant factor to lines to concen- draw to States Constitu Amendments the United legislative in tion, trate black voters discrete dis- have Voting Rights the Act of 1965 reciprocal of siphoning tricts with the effect major of empowerment been vehicles for the reducing their in dis- enjoy off and influence other long full black Americans denied the tricts, justification, legally cognizable political rights. without their Over the ment of Constitution, incompatible with now is the as years, various schemes artifices have Supreme impediments interpreted by the Court. Accord- designed to as to the been serve ingly, we the re- citizenship by status minorities. direct State Defendants to attainment of however, 21, 22, 30, 31, 38, 39, Frankfurter, As wrote for draft Justice House determined, again gerrymandering, we and did tion for their racial once such a condition was compliance unnecessary specific proffer address issue not even with the Con- find it to the Ohio complied compelling justification. whether the Board with traditional stitution a Defs.' as See districting principles in the Ohio Constitution at Post Trial Br. 56-63. Nevertheless, plan. drafted the we when it Second, logical dissent’s conclusion defies regarding is- offer two observations the broader reiterating reasoning. Without Fourteenth whether, holding assuming sue without that the aversion Amendment's toward race-base classifi Constitution, comply did Board with cations, say analysis suffice it to that our earlier compliance compelling such could serve as a Supreme precedent Court revealed that a justify state that would the Board’s racial interest purposeful only use can state's of race survive plan. gerrymandering in the 1992 scrutiny is strict if it remedial in nature and First, previous a no court has held that state’s substantially supported by past evidence of racial complying in with its own constitution interest provides Reno, at -, discrimination. See engage compelling justification a to in Croson, 491-93, (citing S.Ct. at 2831 488 U.S. at gerrymandering. The cites case racial law, dissent 720-21; 280-82, Wygant, 109 S.Ct. at 476 U.S. at legitimate holds do a which that states have S.Ct, 1850-51). example, For the con in complying dis- interest in with the traditional Rights Voting text of Act as our discussion tricting principles in their state consti- embodied interest, compelling compli noted state we Op. Dissenting [1041-1042]. tutions. No Voting Rights ance with Act could serve as court, however, has ever held in the context an engage compelling justification in to race-based equal protection challenge and the face in long redistricting so as substantial evidence was gerrymandering evidence that a direct of racial present indicate the for need such remedial complying state's interest with its traditional supra part Compliance action. with See II.D. justifi- districting principles compelling provided Act, Rights promulgated Voting was as which engage gerrymandering. cation to in racial Even remedial measure racial discrimination Defendants, themselves, do make such a not context, require clearly will sure, argued claim. To the Defendants entity apportioning purposefully consider race. Apportionment compliance with Ar- Board’s compliance Obviously, with the traditional dis- that it ticle XI of Ohio Constitution indicated tricting principles in the Ohio Constitution does engage gerrymandering and did not in racial qualify compelling such a not as interest. scrutiny accordingly required. strict was not See Apportionment purpose 61-64; Board did not have to 6-14, Br. at Defs.’ Trial Defs.' Post Trial fully remedy past so Nevertheless, race as to racial consider Br. at 45-56. even the Defendants comply in order tradi discrimination with the realized that if court determined that strict this districting principles tional in the Ohio ger- Constitu scrutiny triggered by was of racial evidence districting principles tion. The traditional in Ar rymandering, only viable Defendants’ com- clearly designed purpose XI ticle were pelling justify race- interest such sufficient eliminating all bias from the redis redistricting forms of based would be the Board's interest Const, Thus, tricting process. art. complying See Ohio XI. mandates section with the Thus, comply Voting Rights to conclude that the Board's-interest in Act. the Defendants compel- ing principles justified solely Voting Rights on as with these their relied Act redistricting, gerrymandering logically ling justification their race-base unsustainable. and 49 to comply costs, with the including reasonable attorneys’ fees principles. aforementioned pursuant to 42 §§ 1973l(e). U.S.C. 1988 and IT IS SO ORDERED. placing reliance this court’s and the holdings Court’s that racial bloc voting generally SUPPLEMENTAL had occurred Ohio’s DISSENTING legislative elections, OPINION we judgment make no to the state progress of racial in other as- DOWD, Judge, District dissenting. pects of race relations in Ohio. The fact that May 26, On 1995, my colleagues voters, however, black vacated legisla- various opinion April 28, dated districts, tive as shown record this (Docket 322) No. replaced case, it with a new coalesce with significant white voters in (Docket majority opinion 327). No. In enough April, numbers to elect candidates of their (Docket I had dissented No. choice, May, In I happened black, who to be demon- chose modify not to my original dissent, filing strates a high degree maturity. of In our nothing in response to view, the “new” majority degree this of voter maturity repre- opinion which essentially only added sents com the essence and objective ultimate of ments on my dissent. Voting Rights Act and the Constitution. my Now colleagues have again once vacat IT IS SO ORDERED. ed majority their opinion replaced it with opinion an that substantially changes the May 26, opinion, particularly by JUDGMENT their

deletion of the discussion relating to the 11, [Filed August 1995] “trigger” for scrutiny (i.e., strict the progeny Reno, v. -, Shaw 113 S.Ct. Because race predominant was the moti (1993)), 125 L.Ed.2d 511 and their in vating factor in the Apportionment State sertion of a discussion recently of the decided Board’s creation of 22, 30, House districts — Johnson, Miller v. U.S.-, 115 S.Ct. 38, 39, 44,and 49 in the reapportion 2475, 132 (1995).1 L.Ed.2d 762 (“Amendment D”) plan ment and because the juncture, At this I remain my steadfast in Board compelling lacks a state interest for its not my decision to vacate April dissent of racial gerrymandering, we conclude that the 1995, notwithstanding that, given fact all aforementioned House districts violate the tinkering with the majority opinion, the Equal Protection Clause of the Fourteenth is longer dissent no very good “fit” for the Amendment to the United States Constitu majority opinion. major One reason my Thus, tion. hereby we enter judgment decision not to vacate is that dissent has favor of the Plaintiffs and order Defen already been submitted for review before the George Voinovich, dants V. Stanley J. Aro- Supreme Court States, of the United as is noff, and Robert A. Taft II in their official by evidenced its placement Appendix capacity as Apportion members the State to the Jurisdictional Statement filed with ment Board to redraft House districts said, I Court.2 What I said. For the 30, 31, 38, 39, 44, arid 49 the 1992 part, most I May, did I feel now no real comply principles with the delineated in the compulsion to my “correct” in light dissent Opinion, filed contemporaneously with this subsequent majority opinion which com- judgment. We also redrafting order on it light mented or in majority latest completed be by 1,1995. November opinion. Astute readers will my accord dis- Because Plaintiffs are the prevailing party sent whatever value it interpret has it in matter, in this we find that they are light (and entitled subsequent procedural of the sub- 1. Miller v. Johnson is also found on the 2. WEST- opinions Both have also been submit- LAW electronic database WL part jurisdictional ted as of the statement. majority opinion The cites to this database. For consistency, supplementary this dissent will here- after do the same. extent, must retract I To that develop L.Ed.2d stantive) case of this posture discussed my dissent which however, portions of do, to set wish those I law. in case

ments show- the threshold v. was of Miller thought I then what application my view forth v. a Shaw Reno claim. ing required for this case.3 Johnson v. John- Miller majority, As noted MILLER OF APPLICATION necessary to proof son clarified the burden JOHNSON V. scrutiny: trigger strict dissent, I took my April show, either burden is plaintiffs Shaw plaintiffs’ position threshold of a dis- through evidence circumstantial the dis- no merit because had Reno claim or more demographies shape and lawsuit, trict’s in this question tricts legislative pur- Johnson, going to direct evidence howev- Miller v. bizarrely shaped. predominant pose, that race was “a threshold factor er, made clear has now — decision legislature’s motivating the required. is not showing of bizarreness” voters within significant number of place a U.S.-,-, docket, judge's it existing another case on necessary re- an to comment I also believe judge who my the docket of the shifted to majority opinion's assessment cannot garding the both Local absent consent application of drew the first case prior discussion 6:2.5(c). 1:2.4(2) and Rules judges. for the Northern See Local Court the U.S. District Rules of Moreover, impor- judge an unrelat- of the cannot transfer do because one of Ohio. I so District judge and this District Court docket another latter issue to on or her to of case his tance the ed by Judge impact case is reviewed of the potential approval as this the Chief its without recently, very I was Supreme Court. 6:2.4. I first the Until Local Rule Court. See District Court's longtime my of this District part Chairman the of basis for as the these local rules cited Therefore, admittedly am in I Rules Committee. post-remand opposition to a amendment colleagues to my position than two a better complaint. know, apply of the Local Rules appreciate and majority making up the of judges The circuit Accordingly, this I make Court. District this to their in a footnote panel stated have this clarifying comment. in this in- apply do not opinion the rules that majority's always opposed decision the I have plaintiffs not file a new did because the stance complaint their grant plaintiffs leave amend to to The alleging claim. a Shaw v. Reno lawsuit majority had, Equal claim Protection add an to remand after under Shaw plaintiffs point. the the If has missed 28, April my of In dissent v. Reno. have, lawsuit to they filed a new as should reasons, 1995, was my one of which I articulated claim, the cited Local post-remand their assert of Rules the certain of the Local rooted in course, (presuming, of that this District Rules of Ohio. District for the Northern Court District district, as it could was filed in this new case the opinion May majority, both its The properly the Southern been filed in have also Local opinion, the asserted and latest Ohio), prevent operated to would have District not so. application. This no is I have Rules cited three- placing this their claim before from them that, undoubtedly recognizes un- majority The already panel they knew judge panel, a which panel sits as district § a this der 28 U.S.C. viewpoint. was, majority, their favorable to the Therefore, North- Local Rules the the court. Therefore, Local of this District under the Rules despite that apply, the fact ern District Court, plaintiffs only way the could that the judges. judges panel circuit court two of the obtain leave to sympathetic ear was to a assure January Court's this District Prior to complaint. the amend subsequently-filed provided a that Local Rules that, previous- may to a it majority related not case would be deemed while civil The asserts same authority "involve[d] the remand the issues ly-filed case which to "consider on civil have decided,” grows may same out of "con- fact or the Court or issue issues that pending subject a civil as not been There or matter that decided.” transaction issues have sider 7.09(4)(c). considering is- Rule between Former Local a world of suit[.]” See is difference required previously rule decided and that local been that have not such circumstances sues pre- judge assigned previously raised. The to case be have been the láter-filed issues that, long gone earlier so as the has siding point earlier is once case case over entire back, plaintiffs new claims pending. if the have appeal was case still defendants, they file a new Court, must acting against under Judges of this The District Fed.R.Civ.P. to do so stretches Failure over lawsuit. authority Fed.R.Civ.P. determined rule, rules of this and the local being remand used was rule this "related case” time that meanings beyond as to their shop.” Court so "judge far attorneys District completely litigants by ultimate destroy This them. is Therefore, rule was abolished related case sought very to be judge-shopping, abuse present pursuant rule replaced local with the Rules. by Court’s Local this which, District appears avoided case related even if a new particular or without a district. To something make is subordinated when it is showing, plaintiff this prove must placed in a class, lower order or or con- legislature subordinated traditional sidered having less importance. value districting principles, race-neutral includ- This, however, only point minor of di- ing compactness, but not limited to conti- vergence my between majori- view and the guity, respect political subdivisions or ty’s. communities defined actual in- shared I find that the defendants adhered to tra- terests, to racial considerations. Where ditional districting principles, which happen these or other race-neutral considerations to be Constitution, also contained in the Ohio are the basis redistricting legislation in drawing legislative in question race, and are not subordinated a state they and that did not prin- subordinate these can “defeat a claim that a district has been ciples to racial I considerations. gerrymandered would so on racial lines.” hold notwithstanding that, the fact Ias rec- at-, (citations 115 S.Ct. at 2487 omitted ognized my April dissent of 1995 at added). emphases footnote James R. Tilling’s suggest conclude scrutiny that strict required, is not principles or that merely it “accorded [them] a conclusion which virtually would end the emphasis less weight[J” majori- less The analysis my in view.5 ty concludes that both interpretations are correct. Even if scrutiny required, strict were I find for

I do the reasons disagree previously majority’s with the set forth in ul- my 28,1995 April timate proof conclusion that dissent that of the defendants either dis- regard had a compelling abandonment state I of interest. will not and/or traditional repeat districting principles my analysis in point. favor on of racial this con- Suffice to that, say proof my view, siderations or of in empha- diminished the respect- defendants sis on traditional ed districting traditional districting principles principles while also favor giving of racial considerations race the is sufficient consideration was due in to plaintiffs establish a light Voting Rights claim of the race Act and Armour v. predominant Ohio, was the (N.D.Ohio upon factor State F.Supp. a 775 which of given 1991). redistricting was Balancing based. I would all of these considerations only quarrel with the of led to a redistricting plan characterization narrowly tailored predominant “the factor test” ambigu- as interest, meet a compelling state thus ous. “Subordination” has a clear meaning: withstanding scrutiny. strict dissent, my April In addressing I declined at predominant race was the My factor considered. length the majority’s "trigger” discussion the present of position my April is not inconsistent with scrutiny, for strict a discussion which has been simply because dissent there I took the view majority deleted opinion in the latest in favor of for the of requires sake discussion "that caution the April scrutiny.” Dissent, Miller (April Johnson discussion. On strict I at simply (1) Miller, presumed, Following of because the references the test is clear and the need notes, (2) Tilling’s race importance gone. the on caution this matter is stake, rights (3) ambiguity regarding the and appropriate “trigger,” the scrutiny that strict scrutiny review, If strict is not the standard of apply. should Now that the has applies. Court then rational basis It would be extreme- "trigger” difficult, clarified "race-the-predomi- that the ly is impossible, if not to conclude that the nant-factor,” clearly I want to state that would I had defendants no rational for the district basis Tilling's not find prove notes sufficient to they lines drew. Constitution, every ten done subject of the Ohio the plan that is redistricting The In- census. the decennial years with 99 and follows legislature a involves this lawsuit population configured creases, shifts in must be and which decreases House Districts boundary Of fines require the Ohio Constitution. compliance inevitably challenged have been only eight Representatives these in the House seats the 99 take in eight discrete and, consequence, here. These be redrawn one more than are entitled which counties the Senate boundary the 33 seats in fines for required each, which a fact legislator of three consists senate district since each as to decisions Board make Apportionment districts. discrete house several split the counties. Given how to (the Board), as Board Apportionment Apportionment placed constraints Constitution, consists by the Ohio Act, established Rights the Four- Board, i.e., Voting State, Governor, Secretary Ohio, Amendment, v. State Armour teenth single representative Constitution, this Auditor and State to the in addition major parties political admonition of the two from each take to heart must Court Consequent- Assembly. that: in the Ohio General Miller Court at least party that controls being ly, political aware of between distinction [t]he have will being motivated three statewide offices two of the racial considerations This Board. to make. on the may majority representation difficult be them with the difficulty, together evidentiary reappor- most recent At the time of the redistricting nature sensitive tionment, years, time for the first good that must faith presumption holding of Gov- Party, the offices Republican enactments, requires legislative accorded State, majority Secretary of had ernor extraordinary caution exercise courts to Board. The two of three on the has a state adjudicating claims that Board, Ferguson Auditor members basis of race. lines on the drawn district Quilter together with Representative — U.S.-at-, Johnson, Miller v. Party com- of the Democratic other members added). view, my (emphasis of Ohio’s litigation to wrest control menced requi- to exercise majority has failed process from reapportionment caution. site federal place it with the of the Board and CONCLUSION fourth litigation, in its system. The court 28, elections year, two my April continues —even expressed in For the reasons after D pursuant to Amendment dissent, and modified' conducted supplemented as 1995 by majority of the Board. herein, adopted respectfully dissent. I responsibility to shift the The first effort OPINION DISSENTING the Board reapportioning Ohio from 28, April 1995] [Filed States decision of the failed with the United dissenting. DOWD, Judge, District Quilter, v. 507 in Supreme Voinovich Court 1149, 146, 122 L.Ed.2d 500 113 S.Ct. General of the Ohio reapportionment The (1993)1 subsequent of this decision by and the strictly controlled Assembly, required and findings They in Supreme include Exhibit A. rulings challenged before 1. The steps. racially polarized, significantly incremental that there in several Court reached Ohio is were Court, 1992, 31, majority January of this On addressing history in of official discrimination statutory challenge, only federal participate in affecting rights minorities plaintiffs and ordered found in favor the Board either redraft process, that is racial bloc there the democratic or demonstrate the Plan experienced ra- voting, have minorities remedying 2 existing a Section Plan was participation the dem- in to effective cial barriers Voinovich, F.Supp. 695 794 v. Quilter violation. 147, (Docket process No. Exh. in Ohio. ocratic (N.D.Ohio Subsequently, I dissented. 107-137). A, 99-100, findings ¶¶ These were justification its presented to the Court the Board when, disregarded by on simply districts, majority-minority for the creation Plan, 1992, 10, again that the it held once March along ''technical” amendments certain amended, Voting Rights Act. The as violated Findings and Conclusions The Board's the Plan. 147, prepare a special appointed a master Court No. this case at Docket the record of are on Voinovich, Quilter F.Supp. in v. Court I. THIS THREE-JUDGE PANEL’S 1994) (N.D.Ohio responding CONSIDERATION OF THE to the Su PLAIN- TIFFS’ ACTION TO SET ASIDE THE preme Court’s remand of the issue of wheth REAPPORTIONMENT OF THE 99 er the deviations excess of 10% in the size HOUSE AND DISTRICTS 33 SEN- of several districts Ohio violated the Four ATE DISTRICTS FOR THE OHIO Amendment. teenth GENERAL ASSEMBLY WAS LIMIT- responded Before this Court to the re- ED TO THE SCOPE OF THE RE- in March mand issue but after the MAND BY THE UNITED STATES decision, SUPREME announcement of the COURT AND Voinovich CONSE- QUENTLY THIS COURT decision, SHOULD contrast to that unanimous NOT HAVE PERMITTED THE Supreme by United States Court a five-four PLAINTIFFS TO FILE A SECOND Reno, vote held in Shaw v. 509 U.S. AMENDED COMPLAINT RAISING (1993) S.Ct. 125 L.Ed.2d 511 that a EQUAL FOR THE FIRST TIME THE complaint alleges redistricting so bizarre PROTECTION CLAIM. unexplainable grounds on its face that it is It is well established that an inferior court other than race states a cause of action under have, circumstances, does not save unusual Equal Protection Clause of the Four- power authority to deviate from the subject teenth Amendment and is not to a by mandate appellate issued an court. Supreme motion to dismiss. The Court ma- Briggs Co., Pennsylvania v. R. 334 U.S. jority allegations further held that such de- 1039, 1040, 68 S.Ct. 92 L.Ed. 1403 scrutiny mand the same strict under the (1948); Stanton, Stanton v. Equal Protection given Clause that is other 717, 718, 719, 50 L.Ed.2d classify state laws that citizens race. (1977). Reno, Following plaintiffs Shaw v. Court remanded this ease permitted were to file an complaint amended single for a purpose and limited of determin and, time, equal pro- the first raised an ing whether the equal Plan’s deviation from population tection among claim. The testimony Court heard the districts violated the Quil Fourteenth Amendment. days for two Voinovich v. November of 1994 and the ter, 150-51, 507 U.S. at positions parties fully have been Upon remand, this Court decided that issue. briefed. Quilter Voinovich, F.Supp. respectfully I dissent from opinion (N.D.Ohio 1994). Consequently, this case my colleagues I judgment believe should should point. have been concluded at that be entered for the defendants on several In granting plaintiffs’ motion for leave grounds, each of which independently stands complaint, to file a second amended the ma Further, of the my reasoning others. jority of this Court reasoned that because upon based facts which I would have included Shaw v. Reno Supreme was decided after the Fact, Findings of I had written the case, Court issued its decision this majority opinion. These facts are attached reapportionment plan should be reevaluated. Qui Appendix to this dissent as A. Several of Voinovich, 36, v. 157 F.R.D. lter incorporated (1994). facts are also merit, herein. 40 Assuming concept has Voinovich, redistricting plan. choice, Quilter v. 794 their and the fact that such candidates (N.D.Ohio 1992). F.Supp. Again 756 I dissented. period have been elected over a sustained of Later, of the found Supreme Court that the Plan time.” Id. at *2. The Court never also violated the directly particular Fourteenth and findings Fifteenth addressed these of the See, Amendments to the majority, United States Constitution. other than to note them. Voino Voinovich, 5:91CV2219, Quilter, 150-51, Quilter v. No. 1992 WL vich v. 507 U.S. at 113 S.Ct. at (N.D.Ohio 19, 1992). I, however, opin 677145 my Mar. original In that adhere to view ion, majority specifically properly justify found that there that the defendants did a need to

were majority-minority “three critical facts: the absence of racial create Quilter districts. v. Voi voting, novich, J., (Dowd, bloc F.Supp. the fact that black voters have been 794 at 758 dissent able to elect ing). both black and white candidates of 1036 bringing views, backgrounds or beliefs when lawsuit and a new required review such “equal box. Yet to the ballot three- united voice different draw, probable awith new not limit right to vote does protection” of the

judge panel.2 very process of association public itself to the colleagues granted my when I dissented “Equal protec voting. through coalitional a Second right to file plaintiffs anything if it rights means of tion” the first to raise Complaint Amended rights of the individual protect must remand, Protection Equal an time, post Elections, Virginia Board Harper v. well. it was an to hold I continue of Claim. 169 L.Ed.2d 86 S.Ct. 383 U.S. grant that motion discretion of abuse (state’s right (1966) conditioning of the considered have been case should that this poll violates payment the issue tax determined on the Court vote once the closed I Thus Fourteenth of the by the Court. Clause Equal Protection remanded Amendment). Light allow the Sec- motion to v. also Gomillion rule See would improvidently Complaint 125, 131, 339, 349, was Amended ond 81 S.Ct. foot, motion, deny it revisit granted. (1960) Tuskegee I would (redistricting of L.Ed.2d the case. close segregation an unlawful Alabama constituted Equal EQUAL CLAIM violation PROTECTION races of citizens II. THE REAPPOR- Amend A LEGISLATIVE of the Fourteenth IN Clause Protection CON- ment) J., approved IS (Whittaker, concurring), CASE TIONMENT LIM- NARROW at-, BY THE Reno, STRAINED 509 U.S. by v. Shaw OPINION THE MAJORITY OF 2825-26; Rockefeller, ITS Wright v. 113 S.Ct. AN EXAMI- V. RENO AND IN SHAW 11 L.Ed.2d 512 376 U.S. REAPPOR- THE OF NATION (Fourteenth Amend (1964) Fifteenth LINES OF BOUNDARY TIONED of a gerrymandering challenge to ment DIS- AND THE HOUSE SENATE a constitutional stated congressional district IN DEMONSTRATES OHIO TRICTS claim, failed to meet their although plaintiffs THEY CAN- THAT CONCLUSIVELY trial), interpreted Shaw proof at burden of BA- ON THE EXPLAINED BE NOT at-, Reno, 113 S.Ct. at v. 509 U.S. ALONE. OF RACE SIS through the enactment Congress interpreted has Supreme Court judicial emphasized Voting Rights Act has protect principle to person, one vote” “one voting rights. As a protection- coalitional as a to vote rights of citizens collective recognize result, quick to have been courts Reno, 509 U.S. v. unit. See Shaw cohesive vote dilution concepts such as that coalitional 2816, 2823, 125 L.Ed.2d -,-, 113 S.Ct. parcel of part and recognized as should be (1993) Bd. Elec (citing Allen v. State equal protection Fourteenth Amendment tions, minority voting doctrine. Discussions (1969)). outgrowth of the As an L.Ed.2d cohesiveness, etc. voting, strength, racial bloc I, § 2 of the in Article freedom of association equal aspect of this reflections became Constitution, person, “one United States of the co- these protection. But discussions protects that cherished principle one vote” by the Four- protections guaranteed of like alitional others to associate with freedom reapportionment challenging based great lengths in filed gone has court 2. This district Reno, filed in either have it could been any opportunity for Shaw years past to avoid five and it of Ohio Southern District they the Northern or judge wish to have lawyers to select judge assigned to a would have been case rule The related adjudicate lawsuit. their § provisions U.S.C. and, of 28 The even if a district. consequently, has been abolished the Chief been invoked and existing then case on would have appears related to an new case opportu- have docket, Judge would had of the Circuit shifted to the judge's it cannot another judges he wished nity anew which to case determine judge the first who drew docket of the However, majority See, assign a case.’ to to the judges. Local of both absent consent or, Court, Moreover, as Circuit presumably unaware of 1:2.4(2) 6:2.5(c). judge this one Rules impact of completely Judges, indifferent to on his or her unrelated transfer an case cannot Rules, their to use elected Court's Local approval of judge without docket to another panel give See, three-judge to assignment to this Judge Local Rule the district. the Chief apple. plaintiffs bite at another been Consequently, law suit” had "new 6:2.4. type teenth Amendment have times overshad- understood eligibility as of voter clas- aspect sification theoretically indistinguishable owed that of the Amendment which from poll tax, literacy residency guarantees voting rights. require- test or the individual’s Compare States, ment. Guinn v. disparate precedent Courts faced United with on the (1915) U.S. 35 S.Ct. 59 L.Ed. aspects voting rights constitutional law (state literacy use of grandfather test and struggled apply particular have to that law to clause to eligibility determine one’s to vote large cases. To extent those efforts have Amendment). violates the Fifteenth Each of part may been successful. this be due to these payment tax, the fact that far plaintiffs as were con- attributes — ability write, to read and geographic domi- rights cerned the individual and cile—constitutes a characteristic without rights group were not at odds. The which a Likewise, vote cannot be cast. equal protection concerns of the individual elections representatives in a multimem- group and the to which that individual associ- legislative body, ber a voter who must vote ated himself or herself were the same. This system under a district voting cannot cast a Reno, changed all with Shaw v. ballot for the candidate or his or her if choice -, (1993). 125 L.Ed.2d 511 happens running candidate to be in an- Reno, individuals, In Shaw v. who did not other district. Without the characteristic of group associate themselves with the whose residing district, within the a voter cannot voting rights sought protect, the state to cast a ballot. This is not the case in an at- invoked the Fourteenth Amendment to inval- large system. contrary, To the an protect idate the state’s efforts to the coali- at-large system qualified an otherwise voter voting rights tional of those others. The can cast a ballot for whatever candidates or prohibit acting Court did not the state from slate of candidates choose to vie for a seat protect voting rights guar- to the coalitional legislature, only top vote-getters by equal protection. anteed Instead it held being By enacting system seated.3 a district that the state not act protect could those at-large system, instead of an the state fa- voting principles by coalitional creating a vot- locality-based vors elections over ones which eligibility er by classification—in this case emphasize larg- interests of the creating through a classification the use of political er geography. system In a district system the district irrational on its face —“so might representatives make sense for only that it can be understood as an effort to were, “bring home the bacon” as it while' voters ... segregate because of their at-large system an the interests of the over- -, race....” 113 S.Ct. at arching majority Thus, predominate. this By striking the balance between indi- locality-based eligibility voter classification vidual and coalitional Fourteenth Amend- expressed by system the district is an attrib- rights way, ment in this the Court defined ute of the for which individual law voters the limits of a Fourteenth Amendment claim equal protection. deserve If the state acts guarantees based on equal pro- individual deprive equal protection an individual of holding tection. That the of Shaw v. Reno law, remedy may this then a through be had was limited to Fourteenth Amendment chal- the Fourteenth Amendment. lenges to “bizarre” or “irrational” districts As is eligibility the ease of other voter stems from recognition Court’s classifications, however, the mere fact that right right individual at issue: the not to be the state selects one classification over anoth- segregated on the basis of race into bizarre give equal protection er does not an rise to or irrational districts when the state acts to process claim. districting The mere clas- protect voting rights the coalitional of others. sifies voters. But that classification alone right nature of the individual ad- creates no constitutional violation. More- easily over, dressed Shaw v. Reno is under- the individual citizen vis a vis other law, system stood. At the “district” general right can be individuals has no to be drawn single system 3. Of course at-large system where an election is held for a district and the one political presi- office such as with elections a the same. dent, executive, governor, mayor, county or 1038 State, for a permissible ... think it “[W]e out of anoth- to be drawn into one district districting principles employing sound in one is included long the citizen as er. As ' population compactness and such as group, a enough. Citizens as district mi- attempt prevent racial to to equality, equal protec- however, a coalitional have do by being repeatedly outvoted norities from their association- of right to have certain tion rep- fair that will afford creating districts line-drawing in the protected al interests racial those to the members of resentation Thus, coalitional general, in process. sufficiently numerous groups who predominate over group interests op- patterns whose residential afford may en- the state interests and individual’s in which creating districts portunity of recognizes those districting that in gage majority.” in the they will be difficulty comes with group interests. The at-, Reno, 113 S.Ct. 509 U.S. v. Shaw state drafts that when the

the realization UJO, 168, 97 S.Ct. (quoting 430 U.S. at 2829 boundary protect the coalitional district added).4 1011) opinion of (emphasis This simultaneously group, the state interests of by the in UJO as endorsed Justice White for the individu- voting classification selects the nature majority in v. Reno defines Shaw The line is group interest. on al based vot individual a Fourteenth Amendment of v. is classified. Shaw and the voter drawn Voting claim. ing rights protection equal proposition that where for the Reno stands group voters on classifications which district its face irrational on line is “so drawn tradi to the adhering while the basis race only an effort to understood it can be by districting principles announced tional race ... of their voters because segregate challenged if in must be UJO Justice White at-, ...,” at 2832 then 113 509 S.Ct. U.S. principles the vote “dilution” at all based on separating the the line has crossed the state Lodge, Rogers v. in such cases as embodied recognition state improper proper from 613, 102 3272, 1012 73 L.Ed.2d S.Ct. 458 U.S. voting rights. In such a case of coalitional (1982) (at large challenged under election right equal protection not the individual’s Amendments) and Fifteenth Fourteenth and eligibility classification subject to a voter 533, 29, Sims, 555 & n. Reynolds v. 377 U.S. into a segregate the individual designed to 29, n. 12 L.Ed.2d 506 1378 & 84 S.Ct. predominates race over district based (1964) (district challenged reapportionment protecting the legitimate interest state’s Amendment).5 When under Fourteenth voting rights of others. coalitional voting classifications district the state makes defined the v. Reno districting The Court Shaw to traditional which do adhere permissible from separates by districting line that the use of principles, then recognition of coalitional by segre state impermissible interests protect coalitional state opinion rights quotation its race states a on the basis of gating voters White, joined by Stevens of the Four prima Justices for a facie violation of Justice claim However, Organiza as demon Jewish Rehnquist, United teenth Amendment. 144, 168, in this viewed 97 the evidence case Carey, strated tions v. (1977): such light plaintiffs, most favorable to 996, 1011, L.Ed.2d man- the Fifteenth Amendments Daggett, 462 U.S. 740- Fourteenth nor v. also Karcher Cf. 2653, 2663-65, against using any perse L.Ed.2d racial factors 103 S.Ct. date rule (1982) may vary (acknowledging that state districting apportionment). principles person, one vote” from "one consistently applied "[a]ny [nondis number opinion expresses on whether no 5. The Court [including] criminatory] legislative policies ... districting by these traditional failure abide municipal compact, respecting making districts creating eligibility qualifi- principles voter when boundaries, prior dis preserving the cores a claim other than race states cations on bases tricts, avoiding incumbent contests between generally Amendment. See under the Fourteenth acknowledging implicitly Representatives,” and Elections, Virginia U.S. Harper Bd. voting strength of "preserving the that minority groups” might (1966) policies); 16 L.Ed.2d of those 86 S.Ct. be one FCC, Broadcasting, ("Our Equal Inc. v. Protec- Metro cases demonstrate 2997, 3018-19, 583-84, 111 L.Ed.2d re- Clause the Fourteenth Amendment tion (1990) (minorities viewpoints particular have fixing qualifications voter strains the States from protection exercise worthy effective discriminate."). invidiously which such that neither franchise their electoral

1Q39 Consequently, not case here. is the the Ohio Constitution but pick was done to significant reliance on Shaw v. Reno is mis- number of Court’s black put voters and fact, placed. them District 38. In demon- as by contested, strated the defendants and not plaintiffs’ reapportion claim that The the followed, the “moose head” boundary the eight challenged house ment the districts6 City Dayton required lines of the by as gerrymandering constitutes under Ohio Constitution. proof. again, v. Reno is devoid of Shaw Once view, my D, Amendment as it relates to helpful it is to recall the advice of Bernard eight challenged districts before the Grofman, apportionment expert a national Court, reflects adherence to traditional dis- they issues as relate to interests: tricting principles compactness, contiguity approach eliminating reducing “One or respect integrity political sub- gerrymandering through statutory or state divisions inherent in XI Article of the Ohio provisions strictly imple constitutional major population Constitution. Given the compactness, ment formal criteria such as shifts during which occurred the last decade equal population, and maintenance of the in Ohio, in the State of most of the districts tegrity Quilter political subunits.” v. Voi established in 1981 could not be retained novich, (Dowd, J., F.Supp. dis XI, 7(D). Further, § under Article the re- senting). quirements XI, §§ of Article 9 and 10 take 7(D) precedence § over pre- those of provisions The Ohio constitutional mirror clude the retention of Moreover, most of the 1981 dis- apportion- Grofman’s advice. tricts. ing produced system whereby of Ohio has in electing

blacks are successful members of my It is also eight view that the challenged Assembly their race to the Ohio General “extremely irregular,” districts are not “high- impressive numbers. ly irregular,” “so irrational” or “bizarre” as only to be attributable race-based line- plaintiffs’ reappor- The claim that the 1991 drawing purpose segregating for the gerryman- tionment of Ohio constitutes racial Rather, they drawn, races. regularly are dering fails at plain- the outset because the compact, contiguous geographically cohe- point any tiffs are unable to house district required by sive as Article XI of the Ohio in Ohio where the boundaries of the district Constitution. explained solely can be on the basis of race. i.e., only attempt, such to describe a “irregularity” subjec- Since is a somewhat drawn,” “bizarrely district as was made matter, tive I find that if even one were to plaintiffs’ sole witness. Dr. Gordon irregularity find in boundaries those pointed portion Henderson to the northwest districts, explained it can be with reference constituting of House District 38 as a “moose subdivisions, political the boundaries of fingers showing.” head” a “hand with two conjunction populations with the of those var- Henderson contended that the division of split ious subdivisions. The of certain com- House Districts 38 and with the so-called munities results from the fact these explainable by “moose head” was not geographically communities exist in nonconti- Although majority opinion accepts to state that need Plan "included” these plaintiffs' they challenging assertion that given It is a districts. that the Plan includes all Plan, just eight entire these districts I find Districts, eight of the Plouse these as well as Complaint that the Second Amended rea- cannot Furthermore, ¶ specified. those not 55 of the sonably challenge any be read to than more Complaint, alleges Second Amended which eight specified Paragraph districts. 56 of the irregular the defendants have drawn districts "in Complaint alleges Second Amended that “[t]he state,” places throughout numerous further solely districts which have been modified on the interpretation supports, only certain dis- 31, 30, 22, basis of race include House Districts being challenged, tricts are not the Plan. entire 21, 38, 39, added). (emphasis 44 and 49." Notwithstanding plaintiffs' present position, I position eight Plaintiffs take the that these dis- Complaint would find that the Second Amended merely racially gerry- tricts are illustrative of the However, only regards states a Shaw v. Reno claim mandered districts. if the entire Plan really being challenged, eight specified were there would be no districts. Complaint focused addition, Amended instanc- The Second in some In guous sections. irregu- being so eight House Districts on precinct bound- es, ward and changes in the on race alone. explained lar toas be changes population, in aries, coupled with districts, by Amendment configured eight as might judge to be some to what contribute follows, first D, with the composed as boundaries. “unusual” district popu- percentage of black being the number con- may have been other Although there and the second number lation in each district drawing ways of stitutionally-permissible voting age of black being percentage Board, by drawing them districts, the these population in that district: did, gerryman- in racial engaged as it has (Franklin 1) County)— House District Equal Pro- not violated dering and has 54.30% and 48.30%. Constitu- the United States tection Clause (Franklin 2) County)— House District tion. 44.68% and 40.98%. and limited construction (Hamilton) the narrow 3) Given House District 30 —55.98% Reno, v. combined application of Shaw and 52.72%. evidence that any demonstrable absence (Hamilton) 4) House District 31 —49.16% Districts are so the House the boundaries and 43.13%. the basis of explainable on as to be bizarre 5) (Montgomery)— House District alone, are entitled to the defendants race 44.47% and 41.56%. Equal plaintiffs’ Protection judgment 6) (Montgomery)— House District proof on the of a failure because Claim and 36.71%. 40.69% part plaintiffs.7 7) (Summit) District 44 House —43.07%

and 39.86%. IN OFFERED SUP- III. THE PROOF (Lucas) 8) House District —49.99% AMENDED THE SECOND PORT OF 46.42%. REALITY A IS IN COMPLAINT only challenged districts is In one of the ATTEMPT TO THINLY DISGUISED majority of black voters. There is there a ISSUE THE REVISIT DILUTION re- nothing challenged in districts which DECIDED ALREADY ADVERSELY political apartheid motely approaches the THE PLAINTIFFS BY SU- THE TO motivating appears to fac- fear which DECISION. PREME COURT’S Reno, at-, 509 U.S. tor in Shaw v. reality, plaintiffs seek In the S.Ct. in the brief submitted As indicated any v. Reno to include expansion an of Shaw plaintiffs’ Second Department, Justice reapportionment plan that is race-conscious presents Complaint Shaw Amended and, expand doing, in the realm cursory man- so only “in the most Reno claim every reapportionment judicial supervision to Moreover, by the predicted as Justice ner.” Here, plaintiffs apportion plan. wish plaintiffs precious offered Department, not to insure the election challenged house dis- the black voters little evidence blacks, choice for as they additional candidates of irregular that were ex- so tricts were Voting much of the To con- is the motive behind solely in racial terms. plainable litigation, to have the black voters Rights but trary, keeping with the mandates they Constitution, a fashion that will distributed such legislative the Ohio voting power. That is dilu- compact. have maximum regular and contrast quite look claim. claim, than a Shaw v. Reno tion claim rather which was offered to a Shaw v. Reno reason that the I for the additional motion to file dissent granting basis at- majority’s a renewed opinion constitutes the testimo- Complaint, Amended Second vot- tempt reapportion to maximize black attempt thinly disguised ny offered is a remedy rejected by the Su- ing power, a by offering it in a claim renew the dilution in this case. preme Court garment. Shaw dissent, scholarly arrives at the fashion than this an amicus brief from 7. The Court solicited brief, Department a more same conclusion. and that Justice Bandemer, (quoting THAT 2823 IV. ASSUMING ARGUENDO Davis v. 109,164,

PLAINTIFFS HAVE ESTABLISHED 92 L.Ed.2d 85 (1986) A PRIMA FACIE CASE OF AN (Powell, J., concurring part EQUAL VIOLATION, PROTECTION dissenting part)). That definitions seems THE PROOF OFFERED BY THE particularly enlightening not in view of the IN DEFENDANTS SUPPORT OF apparent meaning conflict of between “delib AMENDMENT D THE ENTITLES “arbitrary” erate” and majority actions. The DEFENDANTS TO JUDGMENT UN- has devoted a considerable amount of time DER A STRICT SCRUTINY EVALU- trying progeny to find in Shaw’s an answer ATION. “trigger” However, question.8 since my colleagues majority As in the have (i.e., rights fundamental are at stake here concluded, Equal jurispru under Protection voting rights equal rights), simply and I take reapportionment plan dence a that classifies the view that requires caution strict scrutin race, though citizens on the basis of even not y,9 is, explicitly, requires scrutiny; strict eight challenged The districts will with- plan upheld only narrowly can be if it is scrutiny stand strict they if were drawn to compelling tailored to further a state inter Reno, -, compelling est. v. at state interest if they Shaw 509 U.S. 113 meet Supreme narrowly at S.Ct. 2825. The Court made were accomplish tailored to gerrymander clear that even if a racial goal. is The State of Ohio a compelling has “benign” purpose enhancing done for the complying interest with Article XI of its minority voting strength, it must be reviewed Constitution,10requiring compact contig- Reno, scrutiny. with strict Shaw v. 509 U.S. respect uous districts which boundaries of at-, 113 S.Ct. at 2830. See, political Sims, Reynolds subdivisions. v. 533, 578, 1362, 1390, 377 U.S. 84 S.Ct. 12 Court, however, Supreme The did not (1964), Reno, L.Ed.2d 506 cited Shaw v. identify the threshold level of racial consider- at-, 2826, 509 U.S. 113 S.Ct. for the necessary redistricting ation that is before a proposition that interests such as these are gerrymander is characterized as a racial also, legitimate. Wright subject Rockefeller, See v. scrutiny. to strict The Court defined 52, 603, 376 U.S. 84 11 gerrymandering” S.Ct. L.Ed.2d 512 redistricting “racial as (1964) (where arbitrary groups highly racial “the deliberate and distortion of con- communities,- ... purposes.” district boundaries for centrated certain [racial] districts Reno, at-, v. Shaw 113 which likewise concentrate those —— 1994), noted, U.S.-, majority opinion acknowledged, probable jurisdiction 8. As the has that, 713, (1995) (race v. Shaw Reno Court the fact in the 115 S.Ct. discussed 130 L.Ed.2d 620 context, consideration”); redistricting motivating it is race "substantial or De not mere "con Wilson, (E.D.Cal. F.Supp., triggers Witt v. 856 sciousness” or 1413 "awareness” which strict 1994), because, petition filed, scrutiny. cert. 63 U.S.L.W. 3127 drawing This is true when (U.S. 8, 1994) (No. 94-275) (race Aug. lines, "the sole legislature always district is aware of Hunt, [sic]”); F.Supp. race, criteria 861 Shaw age, as well as other factors such as reli (E.D.N.C.1994), filed, petition status, cert. gion, politician persuasion. economic 94-923, (U.S. 21, 1994) (Nos. U.S.L.W. 3439 Nov. position The Court’s is consistent with 24) (“ 'race-a-motivating-factor' trigger 94 long-recognized - 9 distinction between race- test”). ing conscious, race-based, opposed as decisions. See, e.g., Feeney, Personnel Admin. Mass. v. Tilling strongly suggest 9. The notes of James R. 60 L.Ed.2d purposefully that he considered race when he (1979) (" purpose’ ‘Discriminatory ... im drew the house district boundaries reflected in plies more than intent as volition intent challenged Amendment D and here. citi- Since consequences” implies awareness of but rather were, State, parts zens at least in certain of the of,’ part merely "action at least 'because race, eight challenged classified arguably of,' spite upon 'in its adverse effects an identifi subjected scrutiny. must be to strict group.”). able length As discussed at argument some 10. There is no advanced that Article XI opinion, facially Equal different courts since Shaw v. Reno have in violation of the Protection See, adopted triggering e.g., plaintiffs challenged different tests. John Clause. The have not Miller, (S.D.Ga. F.Supp. constitutionality son v. of Article XI. Also, remedy. contours pur- declare the wholly legitimate may reflect groups order, appear would a remedial absent poses). judicial from action no there is definitive compelling also has State appeal. Assum- could the defendants which Voting complying'with state interest to en- majority has not chosen ing that fact, at the time a matter Rights Act.11 As advisory opinion, it rendering an gage in here, scrutiny under reapportionment charged public officials would seem Ohio, 775 State Armour v. case of scheduled for running the election next 1991) (N.D.Ohio just made had F.Supp. 1044 voters, potential candidates brought challenge Armour was that clear. Assem- to the General next for the election reapportion- voters, after the by black guidance on given some what bly, should be ment, drawn between claiming the line that addition, guidance County split and Mahoning In happens in next.12 districts two strength in that commu- majority opinion voting reconcile the black needed to diluted history there was a teaching that nity. example, Armour found under the Armour. For such that against blacks Armour, of discrimination acceptable put 35% was opportunity for deprived of an blacks were one dis- voting age population into black pro- the democratic in participation effective two split the blacks into rather than trict Id., further The court at 1058-59. cess. blacks, respec- having and 24% districts 11% voting and bloc there was racial found that Armour, percentage that of black tively. In candidates of to elect that were unable blacks and, in packing voters was not considered decision was The Armour choice. Id. their fact, required avoid was vote 4, 1991, a mere month September on issued case, In the where House dilution. instant Plan was Reapportionment the 1991 before County Montgomery in contains District reason, the court did not For that due. age population, the ma- 36.71% black redrawn. Howev- districts be that the order “packing.” jority impermissible that calls what er, jurisdiction to see retain it did in the 1991 happen with the would eventually majority Presumably, will Plan. judgment final and that a Rule 54 enter undoubtedly judgment will delineate con- without a doubt here were

The defendants plain- exactly what relief the required siderable detail which the Armour decision aware of drawing presume I race when also to consider tiffs are awarded. the Board twist, strange guidance the defendants judgment entry provide In a will some lines. effectively or- they were having done what and time lines view regarding deadlines court, majori- by to do the Armour general dered primary and elections. upcoming charge “race motivation.” ty now levels any right to comment such I reserve the no clear way to win and there is no It seems judgment it is entered. after posi- defendants’ persons in the guidance for tion. VI. CONCLUSION. REMEDY. V. summary, respectfully I dissent for colleagues my declares opinion of following reasons: voters in the of black apportionment majority A of this Court erred 1. Hamilton, Frank- legislative districts eight to file a granting plaintiffs’ motion Sec- Lucas lin, Coun- Montgomery, Summit Complaint which action was ond Amended in the context of the is unconstitutional ties the narrow contrary to and in limits excess of the Fourteenth Equal Clause Protection Court. However, of the remand from opinion fails

Amendment. Primary See, Election has the 1996 Ohio Organizations, Car 12. Since Inc. v. Jewish 11. United 19, 1996, partisan up 144, 161-168, March been moved 1007- ey, candidacy by no (1977) opinion); must their (plurality candidates declare L.Ed.2d 229 J., (Stewart, January This time line 179-180, later than at 1017 id. at jeopardy. easily put he could concurring judgment). reject majority’s expansive interpreta- “bizarrely-drawn which 2. The lines” are teachings proof equal protection tion of the narrow of Shaw condition of to an Reno, effectively unchallenged, if converts claim. reapportionment process as mandated judicial Constitution into a exercise APPENDIX A guidelines unprecedented

with no for the ex- FINDINGS OF FACT judicial power. ercise of federal (the Apportionment The 1991 Board opinion in In the event the Shaw v. Board) defendants, consisted of Governor contend, my provide, colleagues Reno does Voinovich, George Secretary V. of State Rob Equal violates the the state Protection Jr., Taft, A. ert Ohio Senate President Clause where race is a substantial and moti- Stanley Aronoff, plaintiffs, J. and two of the vating drawing boundary factor in lines for Ferguson Auditor of State Thomas E. reapportionment processes, plaintiffs Speaker Tempore Pro of the Ohio House of prove nevertheless have failed to Representatives Barney Quilter. (Report of race-conscious concerns of 2) Tilling, p. (Tilling R. Report).a James Reapportionment members of the Ohio Board constituted a substantial and motivat- August 2. On ap- Board ing drawing boundary in factor the of the pointed Tilling (Tilling), defendant James R. eight challenged lines for the districts. the then Chief Executive Officer of the Ohio Senate, Secretary. (Tilling Report, p. as its opinion 4. in the event the Shaw v. 2).b for, my colleagues con- Reno does allow as tend, requirement the state must Tilling 3. has a Bachelor of Science de- compelling demonstrate a in the re- interest gree in Social Sciences from Clarkson Uni- apportionment legislative of a district where versity Degree a in and Masters Political it is found that race was a substantial and Illinois, University from the Science of with a motivating drawing in factor of the major metropolitan politics; in urban and in district, boundary challenged of I lines addition, completed he has course work to- find that the has a state demonstrated such professor ward a doctorate. He is a former interest, i.e., compelling compliance political University science at Ohio where Voting Rights provisions Act and the of the taught (Tilling Report, he from 1969-1976. reappor- Ohio Constitution which deal with 2-3). During years pp. prior the four to the tionment. Board, convening Tilling of the served on the Task Force of the National Conference of majority

5. The decision of the fails to (NCSL), establish, Legislators bipartisan group State purpose guidance, what staff, legislators, legislative and members opposed “pacldng” constitutes “dilution” as fifty groups of other interested from all in the distribution of black voters into dis- (Transcript Proceedings, states. Novem- highly tricts urbanized counties 17, 1994, [TR-2], 197; p. ber Docket No. 312 reapportionment consistent with the man- 3). Tilling Report, p. dates of the Ohio Constitution. Voinovich, Taft, majority opinion 6. The is 4. and Aronoff directed Court guidelines Tilling apportionment devoid of to draft and submit an direct state officials to, process complied reapportionment so as on the which with the Ohio Constitu- hand, tion, Constitution, offending Voting Rights one avoid the United States and the Act, interpreted by Voting Rights seq. § Act the decision Armour U.S.C. et 207-208). and, hand, (TR-2, pp. on the other avoid Pursuant to this au- State Ohio offending Equal thority, Tilling Apportion- Protection Clause of the drafted the 1991 Plan, (Tilling given pro- including ment Amendment D. Fourteenth Amendment 2). Report, p. nouncements of the in this case copy Tilling Report Tilling

a. A found at Defen- b. was not himself a member of the Board. is Exhibits, I, (Transcript Proceedings, November Supplemental dants’ Vol. Exhibit A. 274). p. 104,- population range in was from by Fall of 1990 Tilling testified Proceedings, 115,045. (Transcript of understanding of good developed a he had 78) (Docket [TR-1], p. November re-districting and involved legal issues 311). No. (TR- to those issues. sensitized had become 198). Among was concern p. those issues requires also 11. The Ohio Constitution and Fifteenth Amend- county, Fourteenth is not county, part for the if or of a Constitution, require- population large enough the United States to meet ments to district must constitutional ment of Voting Rights Act and Ohio’s Section units, 199). by combining governmental (TR-2, formed p. requirements. following order: giving preference that, in the course of Tilling testified city counties, municipalities, townships, Force, it was Task his work on the NCSL 7(B)). (Art. XI, § wards. repre- groups him various clear to made county political subdivi- 12. Where interpre- senting minorities current comply large to with the Section sion is too that, Voting Rights Act was tation requirement, the Ohio Constitu- population first, attempt to dilute there should be no population be requires that the excess tion and, second, every voting strength lines, pref- along geographical giving split off mi- should be taken to increase opportunity city township, in order as follows: erence (TR-2, p. nority voting strength. ward, village. city, and Where division XI of the Ohio Constitution Article may necessary, only unit be divided be- one XI) (Article the basic XI or Art. dictates (Art. 7(C)). XI, § tween two districts. apportioning the of Ohio method for State XI, provides § se 13. Article Assembly.c members of the General creating numbering quence for house apportionment found The method for 8. step designate is to first districts. The only mandatorily per in XI includes a framework Article counties are either which single orderly apportionment missively constituted as for an succession for entitled to be 10(A) (Art. XI, (Art. §§ and XI, 10), principles of member districts. § but also for 10(B)). (Allen, 1991, four counties War (Art. In XI, 3), compact- § equality population Wood) ren, were in the and Columbiana ness, geographical cohesion contiguity and (Ash- mandatory category and three counties (Art. XI, 7(A)), respect § for the bound- and per tabula, Wayne) were in and Fairfield communi- political subdivisions aries of and ¶¶ 12, 13). Report, category. (Tilling missive (Art. 7(B), 7(C), 8, XI, §§ ties of interest majority Apportionment Board of the 10). and Fairfield, designate Wayne and elected to requirement in constitu- The first 9. districts. single member Ashtabula as tionally-defined apportionment process is to step to out 14. The next is create districts population for a district the ideal determine counties, county beginning with the of whole by dividing population the State’s largest population, having the where obvious (Art. 2). XI, § In of house seats. number allo ly one house district will be more than decennial using the most recent federal cated, ap fixing the boundaries for the and information, that ideal mathematical census this propriate of house districts. In number ¶ 6). 109,567. (Tilling Report, number was territory any remaining coun process, the specifies that The Ohio Constitution territory 10. adjoining ty must be combined with any be population of house district cannot county proceeding com outside the before to remaining territory of the into than 95% nor more than 105% state less bine (Art. 10(C)). XI, (Art. 3). § XI, representative § In districts.d population number. ideal Voinovich, (N.D.Ohio F.Supp. copy ter v. XI of c. true and correct Article A 1992). Sup- districts must con- of those Twelve Constitution is found Defendants' Ohio Exhibits, I, (Joint Cuyahoga County wholly within plemental tained Vol. G. Exhibit will, necessity, spill ¶ 305, 4). over thirteenth district Stip., Docket No. county. Selecting portion a adjoining an into governed by county "spill-over" is Article County, pop- example, Cuyahoga the most d. For XI, 7(C). § county, Quil- is entitled to 12.88 districts. ulous However, apportionment completed significant population for the there were After the State; specifically, shifts within there county, process populous then the most from quadrant was shift to Northeast populous county to the next moves most portions, the Central and particu Southwest until all continues in that fashion counties Franklin, Delaware, larly to Union and Madi single to more than a district have entitled son Counties. There also occurred shift Ohio, accommodated. In which has 88 been County from Cincinnati Hamilton counties, of the house substantial Butler, Clermont and Warren Counties. popu- in. districts are contained the 26 most Cuyahoga County lost one entire dis house through lous counties. House Districts 8 (109,000 population people), trict while (Tilling Re- were created this manner. County gained Franklin one entire house ¶ 14). port, County replaced Franklin district. Hamilton process completed has been 15. Once the County populous county as the second most respect to counties entitled more than significant of the State. There were also district, apportionment one of the re- population shifts from the inner cities accomplished by mainder of the State is fol- suburbs, changes in municipal as well as cor XI, lowing provisions of boundaries.g Article Section poration, precinct ward and 10(D). provision, this the 62 counties Under ¶ 42-43). (Tilling Report, population which had a 1990 number less Ohio, significant minority popula- 109,567 than 90% of the ideal number of were major tions are concentrated urban combined with other counties create populations geographi- counties. These through (Tilling House Districts 82 Re- cally contiguous. compact (Tilling Re- ¶ port, ¶ 65).h port, D, also referred to as the Amendment plaintiffs challenge 20. The have leveled a Plan, currently is the effective version against the formation House Districts Apportionment D Plan. Amendment 22, 30, 31, 38, 39, 44 All and 49.i of these during was effective the 1992 and 1994 Ohio major districts are located Ohio’s urban ¶ (Joint 3).e ¶ 63). Stip., Docket No. (Tilling Report, elections. counties. by Tilling in previ- 17. The Court has 21. Handwritten notes made process drafting Amendment C to the ously complies held that the Plan with the by step step thought Plan reflect his Voinovich requirements of Article XI. Notes).j drawing. (Tilling process in the line 198, Ferguson, 63 Ohio St.3d 586 N.E.2d (1992).f challenged 22. Plaintiffs have House Dis- County.k 22 in tricts 21 and Franklin 1990, pop- Between 1980 and the total 18. same, virtually 21, regards Tilling’s

ulation of Ohio remained As H.D. notes 23. 50,000 gaining only people. would first “draw with the State indicate he Plan, (Franklin 22); original Apportionment County, Districts 21 and Exhibit e. The T C, 31); (Hamilton County, by has not been used in V Districts 30 and Ex- amended Amendment (Montgomery County, any longer plan. 38 and election is no the current hibit X Districts (Summit 44); 39); County, Exhibit Z District (Lucas 49). County, and Exhibit BB District copy opinion f. A of this is found at Defendants’ Exhibits, I, Supplemental Vol. Exhibit D. See, dissenting opinion. i. note in the g. experienced significant Several counties wards, changes example: County j. copy Franklin A of the notes is found at Plaintiffs' Prior 74; Exhibits, Proceeding County 2 of Exhibit went 58 wards to Lucas went Trial Vol. from 23; County from 24 wards to and Summit ward changed dramatically. (Tilling boundaries were ¶ 51). Report, Districts, County map k. A of the Franklin House including District 21 and District is found Exhibits, I, Supplemental Maps showing Vol. Ex- h. the 1990 census concentration Defendants’ showing political voting-age map in each of the counties hibit U. A subdivision blacks challenged Volume at Ex- are found at De- boundaries is found same where districts Exhibits, I, Supplemental Vol. Exhibit hibit II. fendants' (Tilling non-contiguous sections. primarily “avoid consists and that he would districts” ¶ 37c; Plaintiffs’ Exhibit Defen- Bexley (Tilling Report, Notes and Whitehall.” white MM). 21). Supplemental Exhibit dants’ on H.D. D, H.D. configured in Amendment 24. As 3,1992 general elec- In the November 108,859consisting population 21 contains D, tion, Amendment black conducted under following political subdivisions: being prevailed in H.D. there Democrat County, OH Franklin (Defendants’ Supplemental challenger. no City— 02 Columbus JJ). Exhibits, I, Exhibits GG Vol. Fifty-sixth Ward— Twenty-third Ward— 8,1994 general elec- In the November Precinct A 25096023A D, tion, under Amendment black conducted B Precinct 25096023B prevailed in H.D. 21 over a white Democrat E 25096023E Precinct (Defendants’ Ex- Supplemental candidate. 25096023GPrecinct G LL). hibits, I., H 25096023HPrecinct KK and Vol. Exhibits Twenty-fifth Ward— regards Tilling’s H.D. notes 30. As Twelfth Ward— would “create as close to a indicate that he Thirteenth Ward— Ward— Sixteenth possible” and majority-minority district as Seventeenth Ward— Whitehall, Bexley which are most- “avoid Twenty-sixth Ward— (Tilling on H.D. ly Precinct C 25096027C south, on the 22 on the and H.D. 25 H.D. F 25096027F Precinct and east. north 25096027GPrecinct G par- boundaries of H.D. 27. The H 25096027HPrecinct tially coterminous with the boundaries I 250960271Precinct Columbus, City boundaries resulted which J 25096027J Precinct K 25096027KPrecinct irregular annexation.1 Clinton Town- from 25096027MPrecinct M in H.D. consists of ship, part of which is Twenty-eighth Ward— non-contiguous sections. geographically Forty-fourth Ward— ¶ 37c; (TR-2, 225, 229-230; Tilling Report, p. Forty-seventh Ward— 1; Supple- Exhibit Defendants’ Plaintiffs’ Forty-eighth Ward— (Docket 319)). No. mental Exhibit MM Township, 0— Madison Precinct inside of I-270 Portion on the part is H.D. also Ward of which what, outsider, "subjected rampant annexations for Tilling pointed to an been 1. out that (TR-2, 225). boundary might appear years.” p. to be an “unusual" least the last 20 having county's actually Franklin the result of County, Hamilton OH (Defendants’ Exhibits, I, Supplemental Vol. City— 03 Cincinnati C). Exhibit Thirteenth Ward— Fifteenth Ward— configured in Amend- As H.D. 22 is Seventh Ward— D, popu- of the total ment blacks are 44.68% Fourteenth Ward— voting age population of The black lation. Second Ward— (Defendants’ Supplemen- 3108652APrecinct A H.D. is 40.98%. 3108652BPrecinct B DD). Exhibits, I, tal Vol. Exhibit 3108652CPrecinct C 3108652DPrecinct D H.D. 21 on the 33. H.D. is bordered E 3108652E Precinct west, north, H.D. 23 H.D. south 3108652F Precinct F east, 24 on the south and and H.D. 25 on the 3108652GPrecinct G north and east. 3108652H Precinct H 31086521Precinct I part Township,m 34. Madison of which is 3108652LPrecinct L 3108652MPrecinct M geographically in H.D. consists of non- P 3108652P Precinct (TR-2, 232; Tilling contiguous p. sections. 3108652R Precinct R ¶ 37c; Report, Plaintiffs’ Exhibit Defen 3108652TPrecinct T MM). Supplemental dants’ Exhibit Precinct 3108652U U 3108652VPrecinct V 3,1992 general In the November elec- Precinct 3108652W W Third Ward— D, tion, a black conducted under Amendment City— Bernard St. prevailed in H.D. over a white Democrat Township— 24 Columbia (Defendants’ Supplemental Ex- candidate. (No Wards) JJ). hibits, I, Exhibits GG and Vol. 31M020B B Precinct Precinct 31M020C C 8,1994 general November elec- 31M020DPrecinct D 31M020E Precinct E D, tion, conducted under Amendment black Township— 27 Elmwood prevailed Democrat in H.D. over another Township— Manor 30 Golf (De- candidate and a white candidate. black Springfield Township— (No Wards) Exhibits, L, Supplemental Ex- fendants’ Vol. DD 31M075DD Precinct LL). KK and

hibits (Defendants’ Exhibits, I, Supplemental Vol. challenged 37. Plaintiffs have House Dis C). Exhibit County.n tricts 30 and 31 Hamilton configured H.D. 30 is in Amend- 40. As D, popu- ment blacks are 55.98% the total regards Tilling’s 108,885consisting population contains a Springfield 42. In H.D. Columbia and Townships geographically following political both consist subdivisions: Districts, Henderson, map County expert, House criti- n. A of the Hamilton m. Plaintiffs' Dr. Gordon pre- including found at containing only District 30 and District District for one cized this Exhibits, I, However, ap- Supplemental Township. Vol. Ex- Defendants’ cinct of Hamilton map showing political W. A subdivision pears an error and that hibit to me this is Ex- split is found in the same Volume as of Madi- boundaries Henderson intended to refer to (TR-2, 129-130). Township. pp. II. hibit son 7; 235; (TR-2, Supple- Defendants’ p. Till- tiffs’ Exhibits 6 and non-contiguous sections. NN). ¶ mental Exhibit 37d; Plaintiffs’ Exhibits 6 and ing Report NN). 7; Supplemental Exhibit Defendants’ 3,1992 general In the November elec- 50. D, tion, a black conducted under Amendment 3,1992 general In November elec- 43. prevailed in H.D. 31 over two Democrat D, tion, a black conducted under Amendment (Defendants’ Supplemen- candidates. white two prevailed in H.D. 30 over Democrat JJ). I, Exhibits, tal Vol. Exhibits GG (Defendants’ Supplemen- white candidates. JJ). I, Exhibits, 8,1994 Exhibits GG and general tal Vol. elec- 51. the November D, tion, a black conducted under Amendment 8,1994 general elec- 44. In the November prevailed in H.D. 31 over another Democrat D, tion, under Amendment black conducted (De- candidate and a white candidate. black prevailed in H.D. 30 over another Democrat Exhibits, I., Ex- Supplemental Vol. fendants’ (Defendants’ Supplemental candidate. black LL). KK and hibits LL). Exhibits, I., KK Exhibits Vol. challenged Dis 52. Plaintiffs have House 31, Tilling’s notes regards H.D. 45. As County.o Montgomery 38 and 39 in tricts [a] that he would “draw second ma- indicate regards Tilling’s tricts, including in the same Volume at District 38 and District vision boundaries is found Exhibits, Supplemental Vol. Exhibit II. found at Defendants' I, Exhibits, (Defendants’ Supplemental Vol. F 5711103F030540Precinct C). F 5711103F030639Precinct Exhibit Precinct G 5711103G configured in Amend- 38 is 55. As H.D. Precinct H 5711103H D, popu- of the total are 44.47% blacks ment Precinct I 5711103J Precinct J age population of The black lation. Precinct K 5711103K (Defendants’ Supplemen- 41.56%. H.D. 38 is L 5711103LPrecinct DD). I, Exhibits, Exhibit tal Vol. M 5711103MPrecinct Precinct N 5711103N030540 by H.D. 39 on the H.D. 38 is bordered 56. N 5711103N030639Precinct west, east, 40 on the H.D. H.D. north 57111030 Precinct O south, east. and H.D. on the on the P Precinct 5711103P Fifteenth Ward— boundary lines are In H.D. 57. I 571110151030537Precinct municipal with the partially coterminous Ward— Sixteenth (TR-2, p. City Dayton. boundaries Ward— Seventeenth ¶ 37e; 238; Plaintiffs’ Exhibit Tilling Report, Eighteenth Ward— Twenty-first Ward— Twenty-second Ward— 3,1992 general elec- In the November 58. Fourth Ward— D, tion, a black under Amendment conducted Fifth Ward— over a white Precinct prevailed H.D. 38 5711105C C Democrat Precinct E 5711105E (Defendants’ Supplemental Ex- candidate. H 5711105HPrecinct JJ). hibits, I, Vol. Exhibits GG City— 10 Trotwood Township— 19 Madison 8,1994 general elec- November Township— 20 Mad River D, tion, Amendment a black conducted under Wards) (No over another prevailed in H.D. 38 Democrat Precinct B 57M045B (De- and a white candidate. black candidate Precinct E 57M045E Exhibits, I., Ex- Vol. Supplemental fendants’ F Precinct 57M045F LL). KK hibits K 57M045KPrecinct 57M045SPrecinct S 39, TOling’s notes regards As H.D. T Precinct 57M045T an influence dis- “create state that he would Precinct U 57M045U possible vote” highest trict with the 57M045WPrecinct W Township, Precinct C— Harrison [Town- in Madison “[t]ake and that he would non-eontiguous portion to Only the Trotwood, portions of Harrison ship], [and] East 39)). (Tilling on H.D. [Township].” 7700351UPrecinct U in H.D. 39 exist as non- 64. Some wards 7700351VPrecinct V contiguous portions City Dayton. Precinct 7700351W W (TR-2, 239-240; ¶376; Tilling Report pp. X 7700351XPrecinct 2). Plaintiffs’ Exhibit 7700351Y42 Y Precinct 3,1992 general In 65. the November elec- Y 7700351Y44Precinct tion, D, conducted under Amendment a black Second Ward— prevailed Democrat in H.D. 39 over another Third Ward— (Defendants’ Supplemental candidate. black Fourth Ward— JJ). Exhibits, I,Vol. Exhibits GG (Defendants’ Exhibits, I, Supplemental Vol. 8,1994 general 66. In the November elec- C). Exhibit tion, D, conducted under Amendment a black prevailed Democrat in H.D. 39 over a white configured 70. As H.D. is in Amend- (Defendants’ Supplemental candidate. Ex- D, ment blacks popu- are 43.07% the total LL). hibits, I, KK Vol. Exhibits voting age lation. population The black challenged 67. Plaintiffs have House Dis (Defendants’ Supplemen- H.D. 44 is 39.86%. County.p trict 44 in Summit I, DD). Exhibits, tal Vol. Exhibit regards Tilling’s 68. H.D. As notes “try that he would indicate to maximize the 71. H.D. 44 is bordered H.D. 46 on the minority [Representative voters Vernon north, west, H.D. 45 on the H.D. 47 on the district,” Sykes’] Akron, including “city south, and H.D. the east. 1, 4, parts Wards 5 and and 10.” 44). (Tilling Notes on H.D. 3,1992 72. In general the November elec- configured D, 69. As Amendment H.D. tion, D, conducted under Amendment a black 104,538 population consisting contains prevailed Democrat in H.D. 44 over white political following subdivisions: (Defendants’ Supplemental candidate. Ex- County, Summit OH hibits, I, JJ). Vol. Exhibits GG and City— 01 Akron Tenth Ward— 8,1994 general the November elec- First Ward— tion, D, conducted under Amendment black 7700351A A Precinct prevailed Democrat in H.D. 44 over a B white 7700351BPrecinct 7700351CPrecinct C (Defendants’ Supplemental candidate. Ex- 7700351DPrecinct D hibits, LL). I., Vol. Exhibits KK and E 7700351E Precinct 7700351GPrecinct G challenged Plaintiffs have House Dis- 7700351H H Precinct trict County.q 49 Lucas I Precinct L 7700351L Precinct regards Tilling’s As H.D. (Defendants’ D, Sup- those districts is 43.71%. H.D. in Amendment configured As 76. DD). Exhibits, I, Exhibit 105,798 plemental Vol. consisting population of 49 contains subdivisions: following political minority repre- one more 83. There was County, OH Lucas one more senator sentative and City— Toledo D than in 1992 under Amendment elected Second Ward— Appor- the 1981 last been elected under had K Precinct 4842652K fifteen, Plan, as com- tionment for a total of L Precinct 4842652L (TR- thirteen, minority legislators. pared to Fourth Ward— 256). Ward— Sixth p. Tenth Ward— election, number In the same 84. the 1994 Eighth Ward— plus minority representatives was elected Thirteenth Ward— senator, of sixteen for a total one additional Fourteenth Ward— (TR-2, p. minority legislators. Ward— Seventeenth Exhibits, I, (Defendants’ Vol. Supplemental C).

Exhibit configured in Amend- As H.D. 49 is 77. popu- D, total 49.99% the blacks are ment voting age population The black lation. (Defendants’ Supplemen- 46.42%. H.D. 49 is DD). Exhibits, I, Exhibit Vol. tal by H.D. 50 on the H.D. 49 is bordered Plaintiff, TOLEDO, CITY OF east, the south and H.D. 52 on north west. 3,1992 general elec- In the November SERVICES, AND BEAZER MATERIALS D,

tion, a black Amendment conducted under Koppers INC., Successor-in-Interest 49 over a white prevailed in H.D. Democrat Corpora Inc.; Company, Toledo Coke (Defendants’ Supplemental Ex- candidate. tion; Corporation, Succes the Interlake LL). hibits, I, Exhibits KK and Vol. Inc.; Interlake, the In sor-in-Interest 8,1994 general elec- November Inc., Companies, Successor-in- terlake D, tion, a black under Amendment conducted Interlake, Acme Inc. and Interest another in H.D. 49 over prevailed Democrat Company, Successor-in-Interest Steel (Defendants’ Supplemental candidate. black Interlake, Inc., Defendants. LL). Exhibits, L, KK and Exhibits Vol. No. 90-CV-7344. popula- percentage of black 81. Given Court, District United States districts, i.e., challenged eight tion Ohio, N.D. (H.D. 22), (H.D. 21), 55.98% 44.68% 54.30% Division. Western (H.D. (H.D. 31), (H.D. 30), 44.47% 49.16% (H.D. 44), (H.D. 39), 38), 43.07% 40.69% 20, 1995. Nov. (H.D. 49), average percentage 49.99% is 47.79%. in those districts population black I, Exhibits, (Defendants’ Vol. Supplemental DD).

Exhibit voting percentage of black 82. Given challenged dis- eight age population (H.D. (H.D. 21), i.e., tricts, 40.98% 48.30% (H.D. 31), (H.D. 30), 22), 43.13% 52.72% (H.D. 39), (H.D. 38), 39.86% 41.56% 36.71% (H.D. 49), (H.D. average 44), 46.42% age population percentage of black notes shifts” handwritten and the desire to indicated his procedure predominant “avoid dilution of and his voting,” use of Board in drawing original increased the race population appor- black

Notes

notes dissent plan. See support of purposefully specifically suggested] he Tilling "strongly III., ¶¶ supra part 4-10. house district when he drew race considered evi that this D” Amendment boundaries issue, trigger consider this strict we decide to 14. Were action should dence race-based 9]; however, preliminary matter also we Dissenting Op. n. see note scrutiny. at [1041 38, 45, 23, 30, court whether this ¶¶ 21, to decide would have Dissenting Op.App. we A. addressing the constitution- precluded Supreme from Court’s was light Miller, Article XI ality under of the 1992 test in predominant factor adoption the Ohio because of however, position and Constitution changed its Ohio has dissent Fergu- Voinovich previous decision in Court's Tilling's not sufficient notes are decided son, 586 N.E.2d Op. 63 Ohio St.3d Supp.Dissenting scrutiny. trigger strict curiam). Ultimately, (1992) (per under Nevertheless, 4], dissent contin n. [-& Constitution, Supreme Court the Ohio com ignore totally and more the better ues plete against the following: finds "The court

notes Despite clarity expression, this that he purposefully considered race when majority concludes “there remains some drawing the districts. One can purposefully ambiguity regarding ‘predominant the Miller consider something without automatically su- factor’ specific test.” ambiguity The relates bordinating all other factors also under con- meaning to the of the word “subordinated” sideration.4 I find that the defendants con- the test. opines that “subordi- sidered they race as factors, considered other that, nated” could mean as compared to ra- such as districting principles set forth in considerations, cial legislature “disre- Therefore, Ohio Constitution. I would garded or abandoned” traditional districting

areas.” Notes white Forty-first Ward— Ward— Sixth D, configured in H.D. 31. As Amendment Seventh Ward— 110,848 consisting population contains a Eighth Ward— following political subdivisions: Township— 15 Clinton (No Wards) County, Franklin OH B 25M020B121531Clinton City— 02 Columbus Township— 21 Mifflin First Ward— Second Ward— I, (Defendants’ Exhibits, Supplemental Vol. Thirty-fifth Ward— C). Exhibit Third Ward— configured H.D. 21 is in Amend- 25. As Fourth Ward— D, popu- blacks are 54.30% of the total ment Fiftieth Ward— Fifty-first age population Ward— lation. The black Fifty-fifth Ward— (Defendants’ Supplemen- H.D. 21 is 48.30%. Fifth Ward— DD). Exhibits, I,Vol. Exhibit tal Twenty-seventh Ward— H.D. 26 and 26. H.D. is bordered A 25096027APrecinct north, west, H.D. 23 on the H.D. 27 on B 25096027BPrecinct

H.D. notes 38. As voting age population The black lation. majority- “start[ ] indicate he would (Defendants’ Supplemen- H.D. 30 is 52.72%. greatest “includ[e] districts” and DD). I, Exhibits, tal Vol. Exhibit portion segment popu- of black of the eastern by H.D. 36 on the 41. H.D. 30 is bordered (Tilling Notes on H.D. lation.” east, H.D. 21 on the north and H.D. 31 and west, and H.D. 37 on the south. D, configured in H.D. 39. As Amendment

H.D. notes 53. As district, using areas of black jority-minority “majority-minor- state that he would create a 30). (Tilling H.D. population.” Notes on ity (Tilling Notes on H.D. district[.]” D, configured in As Amendment H.D. D, configured 54. As in Amendment H.D. 105,573consisting population contains a 106,899 consisting population 38 contains a following political subdivisions: following political subdivisions: County, OH Hamilton Montgomery County, OH City— 03 Cincinnati Dayton City— Twenty-third Ward— Tenth Ward— Eleventh Ward— Twenty-second Ward— Tenth Ward— First Ward— Eleventh Ward— Fifth Ward— Twelfth Ward— 5711105APrecinct A Sixteenth Ward— B 5711105BPrecinct Ward— Seventeenth 5711105DPrecinct D Eighteenth Ward— 5711105F Precinct F Sixth Ward— Precinct 5711105G 57111051Precinct I G Eighth Ward— Ninth Ward— Sixth Ward— Seventh Ward— Springfield Township— (No Wards) Eighth Ward— L 31M075L Precinct Twelfth Ward— (Defendants’ Exhibits, I, Supplemental Thirteenth Ward— Vol. Fourteenth Ward— C). Exhibit Fifteenth Ward— configured in 47. As H.D. 31 is Amend- A 57111015APrecinct 57111015BPrecinct D, popu- total ment blacks are 49.16% of the B voting age population lation. black 57111015CPrecinct C 57111015DPrecinct D (Defendants’ Supplemen- is 43.13%. H.D. 31 E 57111015EPrecinct DD). Exhibits, I, tal Vol. Exhibit F Precinct 57111015F 57111015GPrecinct G 57111015H030537Precinct H H.D. 31 H.D. 35 on the is bordered west, north, H.D. 34 on the H.D. 33 and H 57111015H030636Precinct H.D. and H.D. 37 on the east. H.D. Precinct I partially Springfield Township, Nineteenth Ward— geographically H.D. consists of non-eon- Twentieth Ward— (TR-2, 234-235; Township tiguous p. sections. Plain- Jefferson I, political County map showing map Montgomery Exhibit Y. A subdi o. A House Dis-

Notes I, (Defendants’ Exhibits, Supplemental Vol. D, H.D. configured Amendment 61. As C). Exhibit 107,079 consisting population of 39 contains a following political subdivisions: configured in Amend- H.D. 39 is 62. As D, popu- of the total blacks are 40.69% ment County, Montgomery OH population of voting age The black lation. City— Dayton (Defendants’ Supplemen- H.D. 39 is 36.71%. Third Ward— Precinct A DD). 5711103A Exhibits, I, Exhibit tal Vol. B Precinct 5711103B0303539 on the H.D. 43 H.D. 39 is bordered Precinct C 5711103C D Precinct west, 5711103D north, on the north and H.D. 40 Precinct E 5711103E south. and H.D. on the H.D. 38

notes 7700351MPrecinct M 77003510 Precinct O state that he would “[d]raw district 7700351P42Precinct P first, upon minority population based distri- 7700351P44Precinct P display” bution and that “follow[ he would ] 7700351Q Q Precinct population the black concentration to Ward 6 7700351R Precinct R 7700351SPrecinct S ... Hispanic [and] then ... add voters.” 7700351T T Precinct (Tilling Notes on H.D. Districts, p. map Districts, County q. map County A of the Summit House A of the Lucas House including including District is found at Defendants’ District is found at Defendants’ Exhibits, I, Exhibits, I, Supplemental Supplemental Vol. Exhibit AA. A Vol. Exhibit CC. A map showing political map showing political subdivision bound- subdivision bound- aries is found in the same Volume at Exhibit II. aries found in the same Volume at Exhibit II.

Case Details

Case Name: Quilter v. Voinovich

Court Name: District Court, N.D. Ohio

Date Published: Aug 11, 1995

Citation: 912 F. Supp. 1006

Docket Number: 5:91 CV 2219

Court Abbreviation: N.D. Ohio