[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-
342.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-342
LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING
COMMISSION ET AL.
BENNETT ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
OHIO ORGANIZING COLLABORATIVE ET AL. v. OHIO REDISTRICTING
COMMISSION ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm.,
Slip Opinion No. 2022-Ohio-342.]
Redistricting—Original actions under Ohio Constitution, Article XI—The Ohio
Redistricting Commission’s revised plan violates Article XI, Sections 6(A)
and 6(B) of the Ohio Constitution—Revised plan is invalid—The Ohio
Redistricting Commission shall be reconstituted, convene, and adopt an
entirely new plan in conformity with the Ohio Constitution.
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted February 1, 2022—
Decided February 7, 2022.)
ORIGINAL ACTIONS filed pursuant to Ohio Constitution, Article XI, Section 9.
SUPREME COURT OF OHIO
__________________
Per Curiam.
I. INTRODUCTION
{¶ 1} On January 12, 2022, this court held that the General Assembly–
district plan adopted by respondent Ohio Redistricting Commission in September
2021 was invalid. League of Women Voters of Ohio v. Ohio Redistricting Comm.,
___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, ¶ 2, 138. We held that
petitioners1 had proved beyond a reasonable doubt that the commission had not
attempted to draw a district plan that met the standard in Article XI, Section 6(A)
of the Ohio Constitution—which requires that no plan be drawn primarily to favor
a political party—or the proportionality standard in Article XI, Section 6(B)—
which requires that the statewide proportion of districts whose voters favor each
political party correspond closely to the statewide preferences of the voters of
Ohio. Id. at ¶ 2, 114, 131, 138. We ordered the commission to be reconstituted and
to adopt a new plan in conformity with the standards set forth in Sections 6(A) and
6(B) within ten days of our judgment. Id. at ¶ 137-139. We retained jurisdiction
for the purpose of reviewing the new plan and authorized petitioners to file
objections to the new plan within three days of the plan’s adoption. Id. at ¶ 139.
{¶ 2} The commission adopted a plan on January 22. Petitioners timely
objected, arguing that the plan does not meet the standards set forth in Sections
6(A) and 6(B). Some of the petitioners also argue that the plan improperly splits
municipalities and townships in violation of Article XI, Section 3(D)(3) and that
1. Petitioners in case No. 2021-1193 are the League of Women Voters of Ohio, the A. Philip
Randolph Institute of Ohio, and six individual voters: Tom Harry, Tracy Beavers, Valerie Lee, Iris
Meltzer, Sherry Rose, and Bonnie Bishop. Petitioners in case No. 2021-1198 are ten individual
voters: Bria Bennett, Regina C. Adams, Kathleen M. Brinkman, Martha Clark, Susanne L. Dyke,
Carrie Kubicki, Meryl Neiman, Holly Oyster, Constance Rubin, and Everett Totty. Petitioners in
case No. 2021-1210 are the Ohio Organizing Collaborative, the Ohio chapter of the Council on
American-Islamic Relations, the Ohio Environmental Council, and six individual voters: Pierrette
Talley, Samuel Gresham Jr., Ahmad Aboukar, Mikayla Lee, Prentiss Haney, and Crystal Bryant.
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January Term, 2022
the commission violated certain procedural requirements in Article XI, Section
1(C). The commission timely responded to the objections.
{¶ 3} We hold that petitioners have shown beyond a reasonable doubt that
the plan adopted by the commission on January 22 violates Article XI, Sections
6(A) and 6(B) of the Ohio Constitution. We do not reach the alleged violations of
Article XI, Section 1(C) and Section 3(D)(3). As explained in more detail below,
we again order the commission to be reconstituted and to adopt a new plan in
conformity with the Ohio Constitution.
II. BACKGROUND
A. The commission reconvenes
{¶ 4} On January 16, 2022—four days after we issued our decision
invalidating the original district plan—the commission announced that it would
reconvene on January 18. The commission’s announcement stated that individual
commission members were instructing their respective staff members to “begin
identifying possible areas to address the court’s ruling regarding Section 6 of the
Ohio Constitution” and that commission members would “have access to other
commission members’ relevant staff and contractors.”
{¶ 5} On January 17, Ray DiRossi and Blake Springhetti, who worked for
the Senate and House Republican Caucuses, respectively, and who were the map
drawers for the commission’s original district plan, met with staffers for the Senate
and House Democratic Caucuses and Chris Glassburn, a consultant retained by the
Democratic legislative caucuses for map-drawing purposes. Among other things,
they all seem to have agreed that they would use election data from all statewide
federal and state partisan elections from 2016 to 2020.2
2. Article XI, Section 6(B)’s proportionality standard refers to “statewide state and federal partisan
general election results during the last ten years.” Ohio Constitution, Article XI, Section 6(B); see
also League of Women Voters of Ohio, __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 105. In
their objections, petitioners have not contested the commission’s use of statewide election results
from 2016 to 2020 rather than from the entire ten-year period.
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{¶ 6} During the January 18 commission meeting, Governor Mike DeWine
administered the oath of office to a new commission member, House Minority
Leader Allison Russo, who replaced Representative Emilia Sykes.3 Some of the
commission members expressed their understanding of the commission’s task in
light of this court’s ruling. Yet the commission members did not engage in any
map drawing or otherwise specifically explain how they intended to redraw the
district plan.
{¶ 7} After the meeting, staff representatives of each commission member
met and agreed to continue meeting in the days ahead. At some point, the
commission members decided to take a “regional” approach to the map-drawing
process. On January 19, DiRossi and Springhetti began emailing other staff
representatives possible changes to House and Senate districts in different regions
of the state, requesting feedback. DiRossi and Springhetti started with proposed
changes in Franklin and Hamilton Counties and later sent a proposal regarding
Lorain County. On January 20, Glassburn replied with the “[D]emocratic
responses” to the proposals for Franklin and Hamilton Counties.
B. The commission’s January 20 meeting
{¶ 8} The commission met again on January 20. Speaker of the House
Robert Cupp, who cochaired the commission with Senator Vernon Sykes, said that
staff for each of the commission members—both the legislative members and the
statewide-officeholder members—had been working together but that the
commission had not yet reached an agreement. House Speaker Cupp further said
that “[w]e”—presumably referring to himself and President of the Senate Matthew
Huffman or to Republican members of the commission—had proposals for
Franklin and Hamilton Counties and their surrounding areas, which had been
posted to the commission’s website. In an affidavit submitted to this court, Senator
3. On January 12, the House Democratic Caucus elected Russo as the House Minority Leader, and
on January 26, she was sworn into that office.
4
January Term, 2022
Sykes stated that he was “caught off guard” by that statement because he did not
know that the Republican commission members would be submitting their own
county maps on the commission’s website before the commission had reached a
consensus on how those districts would be drawn. Senator Sykes requested a
recess.
{¶ 9} House Speaker Cupp’s proposal included a map of the areas in and
around Franklin and Hamilton Counties, the boundaries of the proposed districts in
those areas, and the “index”—i.e., the partisan leaning—for each district. For
example, under his proposal, Franklin and Union Counties would include 11
Democratic-leaning House districts, 1 Republican-leaning House district, 4
Democratic-leaning Senate districts, and 0 Republican-leaning Senate districts—
which was one fewer Republican-leaning House district and one fewer Republican-
leaning Senate district than in the same territory under the commission’s original
district plan. But some of the Democratic-leaning districts favored Democratic
candidates by very slim margins, including a Senate district with a 50.08
Democratic index and a House district with a 50.14 Democratic index. House
Speaker Cupp’s proposal for Hamilton and Warren Counties included one fewer
Republican-leaning House district than in the commission’s original district plan.
But again, one House district had a 50.14 Democratic index.
{¶ 10} After the recess, House Speaker Cupp gave a brief presentation of
his proposal. He said that the maps were drawn to keep the districts compact and
competitive and “to take a step towards the proportionality requirement of the
Constitution, as explained by the Ohio Supreme Court.” Senator Sykes introduced
Glassburn to present a “counter” on behalf of the Democratic members of the
commission. Glassburn distributed his own maps for Franklin and Hamilton
Counties—which by that point had also been posted on the commission’s
website—and explained the similarities with and differences from the
“Republicans’ proposal.” Significantly, he noted that in the Democratic proposal,
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SUPREME COURT OF OHIO
both Senate districts within Hamilton County leaned Democratic, while the
Republican proposal included only one Democratic-leaning Senate district.
Senator Sykes repeatedly said that reconfiguring those Hamilton County Senate
districts would be a simple way for the commission to move toward proportionality.
Glassburn also cautioned that if one political party had a disproportionate number
of districts in which the party was favored by just over 50 percent, the “court’s
concerns regarding the asymmetry of districts * * * will come into play.”
{¶ 11} In response to a question from Auditor of State Keith Faber,
Glassburn said it was “more than possible” to comply with Article XI, Sections 2,
3, 4, 5, and 7 of the Ohio Constitution, to draw compact districts, and to “meet the
ratio established by the court” under Section 6(B).4 Auditor Faber noted that in
League of Women Voters of Ohio, see __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d
__, at ¶ 112, we had cited a proposed plan submitted by one of petitioners’ experts,
Dr. Jonathan Rodden, that purportedly complied with all of Article XI’s
requirements and was more proportional to statewide voter preferences than the
plan originally adopted by the commission. But that plan, Auditor Faber said, “was
not a 54 or 55 map” but a “57 or 58 map.”
{¶ 12} After questioning Glassburn, Senator Sykes said that instead of
adjourning, the commission would recess “because our time is short and we want
to make sure we provide adequate notice.” The commission therefore recessed
until 9:30 a.m. the following day, Friday, January 21. The commission, however,
did not meet on January 21.
4. In League of Women Voters of Ohio, we found that votes cast in statewide elections over the
relevant period showed that “about 54 percent of Ohio voters preferred Republican candidates and
about 46 percent of Ohio voters preferred Democratic candidates. Accordingly, under Section 6(B),
the commission is required to attempt to draw a plan in which the statewide proportion of
Republican-leaning districts to Democratic-leaning districts closely corresponds to those
percentages.” __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 108.
6
January Term, 2022
{¶ 13} Throughout the January 20 meeting, commission members noted
that their staffs had been working together to comply with this court’s order.
Senator Sykes stated: “This is the first time I believe in the history of the state that
Republican and Democrat staff have been working together on maps. It’s a
herculean task, but I think we’re up to trying to make sure we comply with the court
order * * *.” But Senator Sykes’s optimism did not last long. In affidavits filed in
this litigation, he and House Minority Leader Russo averred that the Republican
commission members and/or their staffs ultimately would not commit to the goal
of drawing a proportional plan and refused to collaborate with them or consider
their suggestions to make the plan more proportional.
C. Petitioners submit a proposed plan and the commission releases more
regional maps
{¶ 14} On January 20, counsel for the petitioners in Bennett v. Ohio
Redistricting Comm. (Supreme Court case No. 2021-1198) submitted to the
commission a revised version of a proposed General Assembly–district plan drafted
by Dr. Rodden (the “Rodden II plan”).5
{¶ 15} On January 21, the commission posted a proposal for Lorain County
to its website. In comparison to the commission’s original plan, the proposal
changed one Republican-leaning House district and one Republican-leaning Senate
district to Democratic-leaning districts. The proposal included a House district with
5. In October 2021, the Bennett petitioners submitted an expert report from Dr. Rodden in which
he claimed that he had drafted a district plan that complied with Article XI’s line-drawing
requirements and was more proportional than the commission’s original plan. In their merit briefs,
respondents did not contest Dr. Rodden’s assertion, and in League of Women Voters of Ohio, __
Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 126, we noted that Dr. Rodden’s district plan
“complied with Article XI” and resulted in a partisan split favoring Republican candidates by 57
percent to 43 percent in the House and 55 percent to 45 percent in the Senate. Dr. Rodden, however,
later discovered that his plan included splits that are impermissible under Article XI, Section 3 of
the Ohio Constitution, and he therefore submitted a revised version during the commission’s
redrawing process.
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a Democratic index of only 50.003 and a Senate district with a Democratic index
of 50.030.
{¶ 16} Also on January 21, DiRossi sent to staff representatives a proposal
for changes to Cuyahoga and Summit Counties and again asked for feedback. That
proposal was posted to the commission’s website on January 22. Compared to the
commission’s original plan, the proposal changed two Republican-leaning House
districts and one Republican-leaning Senate district to Democratic-leaning districts.
Under this proposal, six of the region’s Democratic-leaning House districts had
indexes between 50 and 51 percent.
{¶ 17} Early on January 22—the tenth day after this court’s decision
invalidating the original plan—DiRossi and Glassburn each distributed their final
proposed General Assembly–district plans to staff representatives for the
commission members.
D. The commission adopts a district plan on January 22
{¶ 18} In the afternoon of January 22, the commission resumed the meeting
it had commenced on January 20. House Speaker Cupp said that he and Senator
Sykes had agreed that the respective map drawers for the “Republicans” and the
“Democrats” would each present their proposed district plans to the commission
and that the commission members could discuss the proposals after the
presentations.
{¶ 19} During DiRossi and Springhetti’s presentation, Springhetti noted that
they had been instructed to use the “base map”—i.e., the plan that we had invalidated
in League of Women Voters of Ohio—as a “starting point” because it was familiar to
them and complied with Article XI, Sections 2, 3, 4, 5, and 7. DiRossi said that he
had been “actively engaged daily and around the clock with the staff of all seven
members of the Commission,” and he explained how DiRossi and Springhetti had
incrementally proposed changes regarding urban areas of the state to comply with
this court’s order. In total, they had changed five House districts in the commission’s
8
January Term, 2022
original plan from Republican-leaning to Democratic-leaning and had changed three
Senate districts from Republican-leaning to Democratic-leaning. Their proposal had
57 Republican-leaning and 42 Democratic-leaning House districts and 20
Republican-leaning and 13 Democratic-leaning Senate districts. DiRossi said that
they could not devise a plan containing fewer than 57 Republican-leaning House
districts without otherwise violating another section of Article XI.
{¶ 20} House Minority Leader Russo noted that under DiRossi and
Springhetti’s proposal, 14 of the 42 Democratic-leaning House districts had a
Democratic index between 50 and 52 percent but none of the Republican-leaning
House districts had an index between 50 and 52 percent. That result, she noted,
appeared to evince “an intentional approach to drive as many of those close to 50
to technically say that you have created a Democratic leaning district without
actually in good faith creating as many Democratic leaning districts that are
possible” under the Constitution’s proportionality standard. In response to those
comments, DiRossi explained the process for changing a district from Republican-
leaning to Democratic-leaning and noted, “[W]hether we ended at 49.2, or 49.8, or
49.9, or 48.2, when you finally get over the hurdle to go under 50, and everything
else balances, and everything else matches, I would move on to another district.”
{¶ 21} Senator Sykes repeatedly asked DiRossi and Springhetti to identify
what prevented them from achieving a more proportional plan and from changing
the Senate pairings in Hamilton County to create another Democratic-leaning
Senate district in that county—as he had previously recommended. In varying
ways, DiRossi and Springhetti responded that they had attempted to comply with
this court’s order and that any alternative proposals coming closer to providing
perfect proportionality contained constitutional defects. But they did not
specifically explain what prevented them from reconfiguring the Hamilton County
Senate districts. When Senator Sykes pressed DiRossi and Springhetti about the
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Hamilton County districts, House Speaker Cupp cut off the questioning and said
that DiRossi and Springhetti had responded in the best way they could.
{¶ 22} Glassburn claimed during his presentation that his proposal met the
proportionality standard in Article XI, Section 6(B) and that it complied with
Article XI’s other requirements. Senate President Huffman, however, identified
what he considered to be constitutional defects in Glassburn’s plan, including
possible violations of Article XI, Section 3(D)(3), Section 5, and Section 6(C).
{¶ 23} Auditor Faber expressed concerns about not having received a
proposal from the Democratic members until the day of the commission’s deadline
and said, “It appeared to many of us that because we wouldn’t say that we
absolutely were going to do a 45-54 map, that somebody took their ball and went
home.” Auditor Faber also expressed concerns about intentionally placing
Republican voters in Democratic-leaning districts to “hit some superficial ratio.”
In his words, Glassburn’s proposal was “effectively taking districts and
gerrymandering them to hit some Democratic ratio.” Later in the meeting, Auditor
Faber explained why he believed “this arbitrary percentage * * * is a little bit
suspect.” And he again noted that Dr. Rodden had had 57 Republican-leaning
House districts in his original plan and that we had cited that plan in League of
Women Voters of Ohio; therefore, according to Auditor Faber, this court had
already indicated that a plan with 57 Republican-leaning House districts would be
constitutional.6
{¶ 24} After the commission members had finished questioning Glassburn,
Senator Sykes said that it was never his or House Minority Leader Russo’s
“intention to produce a map because we were directed by the court for the
6. In actuality, we cited the Rodden plan as an example of a plan that met Article XI’s line-drawing
requirements and was more proportional than the original plan; we did not state that a plan
potentially providing any specific number of House seats for a particular political party would pass
constitutional muster. League of Women Voters of Ohio, __ Ohio St.3d __, 2022-Ohio-65, __
N.E.3d __, at ¶ 126, 130-131.
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January Term, 2022
commission to produce a map, not to have the Democratic map and a Republican
map.” He had recommended the “regional” approach to the map-drawing process,
he said, because the commission members could not initially agree on which plan
to use as a starting point. He also said that he had been informed only a day or two
before the January 22 meeting that other commission members or their staff
believed that Article XI, Section 6(B)’s proportionality requirement could not be
met. Therefore, he—and presumably House Minority Leader Russo—had asked
Glassburn to put together a district plan to show that by employing a different
strategy, the commission could adopt a map that meets Section 6(B)’s
proportionality standard.
{¶ 25} After a recess, the commission voted five to two, along party lines,
to adopt DiRossi and Springhetti’s proposal as the final General Assembly–district
plan. Because the majority vote adopting the plan did not have the level of
bipartisan support required by Article XI, Section 8(B) of the Ohio Constitution for
the plan to remain in effect for ten years, the plan can remain in effect for no more
than four years. Ohio Constitution, Article XI, Section 8(C)(1)(a).
{¶ 26} The Article XI, Section 8(C)(2) statement adopted by the five
commission members who voted for the revised plan said that neither the Ohio
Constitution nor this court’s decision in League of Women Voters of Ohio required
the commission to adopt a plan that achieves strict proportionality.7 The statement
indicated that the commission was required to attempt to draw a plan that closely
corresponds to statewide voter preferences and that the commission had met that
standard. The statement also indicated that the revised plan was the only submitted
7. As noted in League of Women Voters of Ohio, if the commission adopts a four-year plan, the
plan must include a statement explaining how the commission complied with Article XI, Section
6(B)—that is, explaining what the commission determined to be the statewide preferences of Ohio
voters and how the commission’s plan corresponds to those preferences. __ Ohio St.3d __, 2022-
Ohio-62, __ N.E.3d __, at ¶ 8, 25.
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plan that fully complied with Article XI, Sections 2, 3, 4, 5, and 7 and with all
subsections of Section 6.
{¶ 27} Senator Sykes and House Minority Leader Russo submitted a
separate statement. Among other things, they indicated that the commission had
failed to comply with Section 6 as interpreted by this court and that it is not
impossible to draw a proportional map that is compliant with the Constitution’s
line-drawing requirements. They also cited Republican commission members’
failures to properly instruct their staff to comply with the proportionality
requirement, and they stated that the Republican members did not consider
proposed maps submitted by the public and rejected their offers to work together
on the plan. They stated, “It is possible to meet the Court’s order; it just appears
that the majority of Commissioners do not want to.”
E. Petitioners file objections
{¶ 28} On January 25, petitioners filed objections to the commission’s
revised plan. The petitioners in all three cases argue that the revised plan violates
Article XI, Sections 6(A) and 6(B). The Bennett petitioners argue that the revised
plan also violates Article XI, Section 1(C) and Section 3(D)(3). With their
objections, petitioners have collectively submitted five new expert reports. On
January 28, the commission filed a response to the objections, which included a
new affidavit from DiRossi. Senator Sykes and House Minority Leader Russo filed
a separate pro se response to the objections, which included affidavits from Senator
Sykes, House Minority Leader Russo, and Glassburn.
III. ANALYSIS
A. The burden and standard of proof
{¶ 29} As we explained in League of Women Voters of Ohio, we have
generally treated apportionment plans as presumptively constitutional. __ Ohio
St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 76. Petitioners therefore have the
burden of proving that the revised plan violates the Constitution. Id. at ¶ 76-77.
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January Term, 2022
They must prove factual issues beyond a reasonable doubt. Id. Yet, the
presumption and high burden of proof do not require us to defer to the
commission’s interpretation of Article XI.
B. Article XI, Section 6(A)
1. Our prior decision
{¶ 30} Article XI, Section 6(A) of the Ohio Constitution provides that the
commission must attempt to meet the standard that “[n]o general assembly district
plan shall be drawn primarily to favor or disfavor a political party.” Thus, Section
6(A) “requires this court to discern the map drawers’ intent.” League of Women
Voters of Ohio at ¶ 116. In our prior decision, we recognized that “direct or
circumstantial evidence may establish that a districting plan was drawn primarily
to favor one political party over another.” Id. at ¶ 117.
{¶ 31} “A map-drawing process may support an inference of predominant
partisan intent.” Id. at ¶ 118. In finding that the predominant intent in drafting the
original plan was to favor Republicans, we noted that Senate President Huffman
and House Speaker Cupp had “controlled the process of drawing the maps that the
commission ultimately adopted.” Id. We observed that “[w]hen a single party
exclusively controls the redistricting process, ‘it should not be difficult to prove
that the likely political consequences of the reapportionment were intended.’ ” Id.
at ¶ 120, quoting Davis v. Bandemer, 478 U.S. 109, 129, 106 S.Ct. 2797, 92 L.Ed.2d
85 (1986) (plurality opinion), abrogated on other grounds by Rucho v. Common
Cause, __ U.S. __, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019).
{¶ 32} We also examined expert evidence—including reports from Dr.
Michael Latner, Dr. Kosuke Imai, and Dr. Rodden—to determine whether the
original plan’s partisan skew could be “explained solely by nondiscriminatory
factors.” Id., __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 121. Dr. Latner
opined that the original plan displayed partisan asymmetry caused by deliberate
choices to create safe seats for Republican candidates. Id. at ¶ 122-123. Dr. Imai
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concluded that the original plan was more favorable to Republicans than any of his
5,000 simulated plans. Id. at ¶ 124. And Dr. Rodden purported to have drawn an
Article XI–compliant plan that favored the Republican Party in 57 percent of House
districts and 55 percent of Senate districts.8 Id. at ¶ 126.
{¶ 33} Based on this evidence, we held that the extreme partisan skew of
the original plan was not due to Ohio’s political geography but, rather, to the
commission’s carrying out its intent to favor the Republican Party at the expense
of the Democratic Party. Id. at ¶ 131.
2. The commission violated Section 6(A)
{¶ 34} Article XI, Section 1 of the Ohio Constitution requires the
“commission” to draft a district plan. Although the Republican and Democratic
commission members were somewhat more cooperative in the development of the
revised plan, as noted above, Senator Sykes’s optimism about collaboration proved
short-lived. DiRossi and Springhetti still ultimately drafted the plan, and they
answered only to Senate President Huffman and House Speaker Cupp. As before,
“the commission itself did not engage in any map drawing or hire independent staff
to do so,” League of Women Voters of Ohio at ¶ 119.
{¶ 35} Moreover, in League of Women Voters of Ohio, we noted the
distinction between Section 9(B), which “contemplates that this court may declare
a plan invalid and order the commission to adopt an entirely new plan,” and Section
9(D)(3), under which this court does “not have to declare a plan entirely invalid if
violations of Section 2, 3, 4, 5 or 7 are isolated or would require amendments
regarding relatively few districts.” (Emphasis added.) __ Ohio St.3d __, 2022-
Ohio-65, __ N.E.3d __, at ¶ 96. We made clear that we were invalidating the
original plan, in its entirety, under Section 9(B).
8. After this court’s judgment, petitioners acknowledged that the plan Dr. Rodden previously
submitted did not comply with all of Article XI’s requirements. Dr. Rodden submitted the Rodden
II plan, in which he purported to correct the violations.
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January Term, 2022
{¶ 36} Yet the commission did not adopt an entirely new plan. DiRossi and
Springhetti started with the same plan that we invalidated and then merely adjusted
certain districts just enough so that they could nominally be reclassified as
“Democratic-leaning.” As DiRossi testified before the commission, when he
finally got “over the hurdle to go under 50 [percent of Republican vote share in a
district],” he “would move on to another district.” At the same hearing, DiRossi
was asked why the plan contained many districts with a Democratic vote share
between 50 and 52 percent but contained zero districts with a Republican vote share
of less than 52 percent. The questioner asserted, “So effectively, you know, you
are creating districts with less opportunity for clearly perhaps Democrats to sit into
those seats,” and then she asked why those decisions had been made. DiRossi
responded:
[I]f you’re asking if we were identifying collectively as a staff a
district that might favor Republican by 53 percent and trying to
make it a Democrat-leaning seat, yes is moving to the other side of
the ledger, so I think that’s why there is an absence of those seats on
the Republican side because they were identified by the staff, they
were—they were modified to make Democrat-leaning and so that’s
why they’re not there anymore.
{¶ 37} It is clear that the map drawers and the commission knew that their
approach—starting with the invalidated map and switching competitive
Republican-leaning districts to competitive Democratic-leaning districts—would
have the dual effect of eliminating weak Republican districts and creating weak
Democratic districts. The commission nevertheless adopted the revised map using
that process—on a party-line vote. This was not the process that our decision
contemplates, and the commission’s awareness of the partisan effects supports an
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“inference of predominant partisan intent” similar to the one we found with respect
to the original plan, __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 118.
{¶ 38} We find unavailing the claim that the map makers started with the
original plan because time was short and they were familiar with it. We clearly
invalidated the entire original plan in League of Women Voters of Ohio. The
commission’s choice to nevertheless start with that plan and change it as little as
possible is tantamount to an intent to preserve as much partisan favoritism as could
be salvaged from the invalidated plan.
{¶ 39} It is also clear that the commission rejected, without explanation,
easy and obvious changes that would have made the revised map more proportional.
Senator Sykes proposed to swap the Senate districts to which House districts 26
and 30—both in Hamilton County—are assigned, which would have created an
additional Democratic-leaning Senate district. This simple swap would have posed
no other constitutional problems and would have resulted in Senate districts that
are at least as compact as those in the revised plan. Yet the commission refused to
adopt the change, with House Speaker Cupp abruptly and inexplicably cutting off
Senator Sykes’s questioning of DiRossi and Springhetti about the proposal. The
commission’s choice to avoid a more proportional plan for no explicable reason
points unavoidably toward an intent to favor the Republican Party. In reaching this
conclusion, we are not unmindful of the fact that 20 is the number of senators
necessary to constitute a veto-proof supermajority in the Senate, see Ohio
Constitution, Article II, Section 16 (a vote of 60 percent of the members of each
chamber is required to override the governor’s veto).
{¶ 40} Article XI, Section 6(B) provides that the commission shall attempt
to draft a plan in which “[t]he statewide proportion of districts whose voters * * *
favor each political party shall correspond closely to the statewide preferences of
the voters of Ohio.” (Emphasis added.) Yet the commission knowingly adopted a
plan in which all the House districts whose voters favor Republicans do so at vote
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shares of 52.6 percent and above, while more than a quarter (12 out of 42) of the
House districts whose voters “favor” Democrats do so at a vote share between 50
and 51 percent (meaning that a 1 percent swell in Republican vote share would
sweep 12 additional districts into the Republican column). Nine of those districts
favor Democrats at a level under 50.5 percent. While the Constitution does not
require exact parity in terms of the vote share of each district, the commission’s
adoption of a plan in which the quality of partisan favoritism is monolithically
disparate is further evidence of a Section 6(A) violation. In other words, in a plan
in which every toss-up district is a “Democratic district,” the commission has not
applied the term “favor” as used in Section 6(B) equally to the two parties. The
commission’s adoption of a plan that absurdly labels what are by any definition
“competitive” or “toss-up” districts as “Democratic-leaning”—at least when the
plan contains no proportional share of similar “Republican-leaning” districts—is
demonstrative of an intent to favor the Republican Party. Indeed, if a Republican
candidate were to win in half of the 12 House districts in which the Democratic
vote share is between 50 and 51 percent, the Republican Party could expect to have
a 63 to 36 majority in the House. This is an even larger Republican majority than
the one contemplated in the September 2021 plan that we invalidated. See League
of Women Voters of Ohio, __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __ at ¶ 24
(noting that Senate President Huffman estimated that 62 seats in the House would
favor Republican candidates). Regardless, the revised plan’s structure guarantees
that the 58 percent seat share for Republicans is a floor whereas the 42 percent seat
share for Democrats is a ceiling.
{¶ 41} In League of Women Voters of Ohio, we also relied on statistical
evidence—including a partisan-symmetry analysis and a determination that the
original plan was a partisan outlier compared to Dr. Imai’s 5,000 simulated plans—
to support our finding of a violation of Article XI, Section 6(A). Id. at ¶ 122-126.
As support for that finding of primarily partisan intent, we also cited evidence that
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the original plan had a heavier partisan skew than would be dictated merely by
Ohio’s political geography and the neutral map-drawing requirements of Article
XI, Sections 3 and 4. Id. at ¶ 131.
{¶ 42} As in the original plan that this court invalidated, there is evidence
that the revised plan has a high degree of partisan asymmetry: Dr. Latner’s analysis
indicates that with 50 percent of the statewide vote, Democrats would expect to win
43 percent of the House seats and 42 percent of the Senate seats. By contrast, the
Republicans would win 57 percent of the House seats and 58 percent of the Senate
seats with the same percentage of the statewide vote. Dr. Latner concludes that
“the asymmetry in both the revised House and Senate maps is only a marginal
improvement from the Original Plan and lags far behind all other comparison
plans.” He further opined that “the Commission intentionally created a large
number of highly competitive but Democratic-leaning districts, while keeping more
Republican voters in safer districts. That decision is a major source of the observed
asymmetry.”
{¶ 43} There is also evidence that the revised plan is a statistical outlier in
terms of Republican seat share (more than five standard deviations greater) and in
terms of various accepted metrics in political science for measuring partisan bias
(ranging between six and nine standard deviations), as compared with Dr. Imai’s
5,000 simulated plans. As we said in League of Women Voters of Ohio, “[t]he fact
that the adopted plan is an outlier among 5,000 simulated plans is strong evidence
that the plan’s result was by design.” __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d
__, at ¶ 124. We again find petitioners’ statistical evidence to be compelling.
{¶ 44} As in the original plan that this court invalidated, there is also
evidence that it was possible for the commission—had it committed to attempting
a proportional map, worked collaboratively toward that end, and used its allotted
time efficiently—to draw a map that achieved or closely achieved the 54 to 46
percent partisan share that we identified in League of Women Voters of Ohio. The
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record indicates that the commission did not reconvene until January 18—six days
after our ruling ordering the commission to draft a new plan within ten days—and
did not hold a substantive meeting until January 20, forcing the process to be
rushed. While DiRossi and Springhetti, who worked for Republican commission
members, and Glassburn, who worked for Democratic commission members,
nominally met with commission members and their staffs, DiRossi and Springhetti
still prepared a statewide map about which Senator Sykes was “in the dark,” about
which House Minority Leader Russo had “little clue,” and that was introduced and
later adopted on the same day.
{¶ 45} In League of Women Voters of Ohio, we further found the existence
of an alternative, more proportional plan to be probative evidence that the
commission had drawn the original plan primarily to favor the Republican Party.
Id. at ¶ 126. Petitioners focus on the Rodden II plan, which they claim is less
skewed than the revised plan. The commission asserts that the Rodden II plan
contains violations of Article XI, Section 3(D)(3) that “affect thousands of people
and would require substantial redrawing.” The commission, however, relies on
DiRossi’s opinion, which at this point we do not view as an objective measure of
the validity or constitutionality of the various plans.
{¶ 46} Regardless, Glassburn has also prepared a map that he avers is both
proportional and otherwise constitutional. Glassburn submitted an initial version
of his map to the commission on its final day. Commission members identified
potential constitutional violations in that map, which Glassburn avers he could have
addressed if given several hours. The commission did not permit him to do so. The
commission also rejected his offers to work to add additional Democratic seats to
the revised plan, citing time pressure (which, of course, the commission itself had
created). Glassburn avers that he later corrected the errors in his map and that he
now has a map that addresses the issues the commission raised with his original
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map and is proportional, containing 54 Republican House seats, 45 Democratic
House seats, 18 Republican Senate seats, and 15 Democratic Senate seats.
{¶ 47} Despite its unwillingness to work toward fixing Glassburn’s more
proportional plan, the commission concedes that its revised plan also contains “a
few minor violations of Section 3(D)(3).” We find the evidence regarding
alternative plans to be just as persuasive here as the original Rodden plan was in
League of Women Voters of Ohio.
{¶ 48} The decennial reapportionment of seats in the General Assembly is
a weighty and important task, which the people of Ohio, by their overwhelming
approval in 2015 of amendments to Article XI of the Ohio Constitution, entrusted
to a special body of limited duration and singular purpose: the Ohio Redistricting
Commission. See Article XI, Section 1(A). The commission is composed, in part,
of three of the state’s highest executive officeholders. Id. Their duties as
commission members, however, do not overlap with their roles as governor,
secretary of state, or auditor. Id.; see generally Article XI. Rather, the Constitution
taps these high officeholders to help usher Ohio through its redistricting because
they can be counted on as reliable stewards of the public trust. The commission’s
remaining members are persons appointed by the Speaker of the House of
Representatives, the House Minority Leader, the President of the Senate, and the
Senate Minority Leader. Article XI, Section 1(A). The Constitution does not
require these officeholders to appoint themselves to the commission—although that
is what most of them have chosen to do in this case. In fact, it does not require the
persons they appoint to be members of the legislature. Id. But whichever persons
are appointed, the commission members are all public servants, regardless of their
roles outside the commission, and they are entrusted with the solemn duty to draw
a district plan that complies with the requirements of Article XI. They are charged
with drawing a plan that inures to the benefit of not just one political party, not just
one constituency, but of Ohio as a whole. Members of the legislature selected to
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serve on the commission must be, in good faith, commission members first, setting
aside their usual partisan modes. Section 6(A) directly prohibits actions in conflict
with this principle.
{¶ 49} We hold that the evidence discussed above demonstrates beyond a
reasonable doubt that in drawing the revised plan, the commission failed to comply
with Article XI, Section 6(A) of the Ohio Constitution. As explained in more detail
below, we invalidate the entire revised plan and order the commission to draft an
entirely new plan—this time in accordance with all of Article XI, including Section
6(A), as explained above.
C. Article XI, Section 6(B)
1. Our prior decision
{¶ 50} Article XI, Section 6(B) of the Ohio Constitution provides that the
commission shall “attempt” to draw a district plan that meets the following
standard: “The statewide proportion of districts whose voters, based on statewide
state and federal partisan general election results during the last ten years, favor
each political party shall correspond closely to the statewide preferences of the
voters of Ohio.” In League of Women Voters of Ohio, we explained that the
qualifying word “attempt” does not mean that the Section 6(B) standard is merely
aspirational. League of Women Voters of Ohio, __ Ohio St.3d __, 2022-Ohio-65,
__ N.E.3d __, at ¶ 90. Indeed, “there might be circumstances that make it
impossible for the commission to meet the standards of Section 6 while also
following the map-drawing requirements of Sections 2, 3, 4, 5, and 7.” Id. at ¶ 88.
But “[i]f it is possible for a district plan to comply with Section 6 and Sections 2,
3, 4, 5, and 7, the commission must adopt a plan that does so.” (Emphasis sic and
footnote omitted.) Id.
{¶ 51} As we explained in League of Women Voters of Ohio, Article XI,
Section 6(B) “requires the calculation—and then the comparison—of two things.”
Id. at ¶ 105. The commission first must calculate “the statewide proportion of
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districts whose voters favor each political party,” which requires the commission
to “examin[e] the statewide federal and state partisan election results from the
previous ten years” to “determine how voters in the proposed districts are likely to
vote in future elections.” Id. It then must calculate “the statewide preferences of
the voters of Ohio,” id. at ¶ 106, which requires the commission to total “the votes
cast in statewide partisan elections and [calculate] the percentages of votes received
by candidates of each political party,” id. at ¶ 107. Under this methodology, there
is no dispute that “about 54 percent of Ohio voters preferred Republican candidates
and about 46 percent of Ohio voters preferred Democratic candidates” in the
relevant past elections. Id. at ¶ 108.
{¶ 52} We concluded that Senate President Huffman and House Speaker
Cupp never instructed the map drawers, DiRossi and Springhetti, to attempt to
comply with Article XI, Section 6. Id. at ¶ 109. We also determined that Senate
President Huffman and House Speaker Cupp—as reflected in the commission’s
statement explaining its determinations pursuant to Section 8(C)(2)—had an
incorrect understanding of the proper methodology, because they asserted that the
share of Ohio voters preferring Republican candidates was somewhere between 54
and 81 percent. Id. at ¶ 106-108. These two facts led us to conclude that the
original plan failed to comply with Section 6(B) because “the individuals who drew
the plan did not try to comply with” the standard of that section and because they
“did not have the right target in mind.” Id. at ¶ 102.
{¶ 53} We also pointed out that the majority-party members’ negotiation
with the minority-party members—or even that party’s acquiescence to a plan—
does not necessarily indicate that the commission attempted to draw a plan that
meets the Section 6(B) standard. Id., __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d
__, at ¶ 110-111.
{¶ 54} Finally, we relied on substantial expert evidence showing that “the
commission could have drawn a more proportional plan.” Id. at ¶ 112. This
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evidence included the reports of Dr. Imai, who had created 5,000 simulated plans,
none of which favored a party as strongly as the plan that had been adopted by the
commission, and Dr. Rodden, who had purported to have drawn an Article XI–
compliant plan that was more proportional than the plan that had been adopted by
the commission. Id. This evidence, we explained, “further support[ed] the
conclusion that the commission did not attempt to meet the standard set forth in
Section 6(B).” Id. at ¶ 113.
2. The commission violated Section 6(B)
{¶ 55} Petitioners argue that like the invalidated plan, the revised plan
violates Article XI, Section 6(B) because it does not “closely correspond[] with
statewide voter preferences.” We agree.
{¶ 56} Petitioners have presented a new report by their expert, Dr. Imai,
who opines that the commission’s methodology for assessing the revised plan’s seat
share grossly overestimates the number of Democratic-leaning seats. Dr. Imai
points out that under the commission’s method, two hypothetical districts having
Republican vote shares of 49.9 percent and 50.1 percent would be classified as
Democratic-leaning and Republican-leaning respectively, yet because their
Republican vote shares differ by only .2 percentage points, their partisan leans are
essentially the same. Both are truly “toss-up” districts. Yet the commission’s
methodology would count the first as a Democratic district and the second as a
Republican one.
{¶ 57} Dr. Imai then demonstrates that the commission’s revised plan
contains 12 House districts in which the Democratic vote share is between 50 and
51 percent—nine of which have Democratic vote shares between 50 and 50.5
percent. The commission calls them all Democratic-leaning districts. Yet, Dr. Imai
points out that the revised plan contains no House districts within one percent above
a 50 percent Republican vote share—i.e., no similarly close districts that are labeled
Republican-leaning. The closest Republican-leaning House district in the revised
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plan has a Republican vote share of 52.6 percent. The following plot from Dr.
Imai’s report shows the disparity in the number of extremely close toss-up House
districts assigned to each party:
The blue dots running in a line nearly parallel to the 50-percent line represent the
dozen toss-up “Democratic-leaning” House districts that have been identified by
Dr. Imai. This plot also visually demonstrates Dr. Imai’s conclusion that “a shift
in election results by just one percentage point towards the Republicans could lead
to as many as 12 more Republican-won seats.” Dr. Imai opines, “By counting what
are really toss-up districts as ‘Democratic-leaning’ in this way, the Commission’s
methodology grossly overestimates the number of Democratic-leaning districts
under the revised plan.”
{¶ 58} Dr. Imai sets forth a different methodology that he claims provides
a superior measure of a district’s partisan lean. That methodology, which was also
used in his initial report, looks at whether a Republican or Democrat would have
won the district based on the data from each election out of the nine statewide
elections between 2016 and 2020, the same election years used by the commission.
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It then labels each seat fractionally—for example, Dr. Imai calculates that House
district 52, which the commission calls “Democratic-leaning,” would have been
won by Republicans in four out of the nine elections, so his methodology counts
that district as 4/9ths of a Republican-leaning seat and 5/9ths of a Democratic-
leaning seat. (Dr. Imai applies this method to safer seats as well—for example, a
seat counted as 8/9ths of a Republican seat.) According to Dr. Imai, when
averaging across the 2016 through 2020 statewide elections, Republicans would
have won 6 out of the 12 “toss-up” House districts that the commission has labeled
Democratic-leaning. Using this method, Dr. Imai calculates that the Republican
Party is expected to win 61.6 House seats.
{¶ 59} Dr. Imai compared this result to his 5,000 simulated plans. The
revised plan’s 61.6 Republican House–seat share is 2.7 seats higher than in the
average simulated plan, which had 58.9 Republican House seats. In fact, all 5,000
of the simulated plans contained fewer than 61.6 Republican House seats. Dr. Imai
opines that “[t]he difference between the revised plan and the average simulated
plan exceeds 5 standard deviations of the simulated plans and is therefore
statistically significant.” He also compares the revised plan and the 5,000 simulated
plans under a metric assessing the percentage of House seats a plan would net the
Republican Party when compared with a strictly proportional plan. He calculates
that the average simulated plan would contain 6.5 percent more Republican House
seats than a strictly proportional plan, while the revised plan contains 9.2 percent
more Republican House seats than a strictly proportional plan—a difference he
again says is greater than five standard deviations and therefore statistically
significant. He concludes that the revised plan makes it “almost certain for the
Republican party to win disproportionately more seats relative to their statewide
vote share.”
{¶ 60} Article XI, Section 6 contains no specific language regarding the
methodology that the commission is to employ when determining “[t]he statewide
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proportion of districts whose voters * * * favor each political party,” other than to
provide that the calculation shall be “based on statewide state and federal partisan
general election results during the last ten years.” The parties have apparently
agreed that 2016 through 2020 are the practicable years of data to use. Even using
those same election years, Dr. Imai demonstrated how his method is preferable and
more accurate than the commission’s.
{¶ 61} But we need not endorse Dr. Imai’s methodology to conclude that
the commission’s methodology, as applied here, violates Article XI, Section 6(B)
of the Ohio Constitution. Bluntly, the commission’s labeling of a district with a
Democratic vote share between 50 and 51 percent (in one case, a district having a
50.03 percent vote share) as “Democratic-leaning” is absurd on its face. Section
6(B) requires the commission to attempt to draft a plan in which the statewide
proportion of districts whose voters “favor” each party closely corresponds to the
statewide voters’ preferences. Here, the quality and degree of favoritism in each
party’s allocated districts is grossly disparate. When 12 of the 42 “Democratic-
leaning” House districts (i.e., more than 25 percent) are very close “toss-up
districts” yet there are 0 “Republican-leaning” districts that are similarly close, the
proportion of districts whose voters “favor” each party is not being assessed
properly.
{¶ 62} To be clear, we do not read Article XI, Section 6(B) as prohibiting
the creation of competitive districts. But competitive districts—which the 12
districts identified by Dr. Imai surely are, under any reasonable measure—must
either be excluded from the proportionality assessment or be allocated to each party
in close proportion to its statewide vote share.
{¶ 63} Petitioners have established beyond a reasonable doubt that there are
far fewer than 42 Democratic-leaning House districts in the revised plan. Yet even
at 57 to 42 seats in the House and 20 to 13 seats in the Senate, petitioners have
shown beyond a reasonable doubt that the commission did not attempt to adopt a
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plan in which the statewide proportion of districts favoring each party closely
corresponds to the statewide preferences of the voters. We are convinced that a
more closely proportional plan could have been achieved. We cannot credit the
claims of those who drew the revised plan that that plan was the most proportional
one possible, because the map drawers misunderstood their task. They were guided
by incorrect directives, began with an invalidated plan, and worked to eliminate
closely Republican-leaning districts by turning them into competitive “Democratic-
leaning” districts. The commission set its compass wrong, and it wound up in the
wrong place.
{¶ 64} Finally, we reject the suggestion that our order constitutes a mandate
to gerrymander to create Democratic-leaning districts. This suggestion implies that
neither the September 2021 plan nor the revised plan were Republican-favoring
gerrymanders. The evidence demonstrates otherwise. Throughout the process, the
Republican map drawers refused to expressly work toward a 54 to 46 percent
partisan share. Yet that is not a “superficial ratio,” a “Democratic ratio,” or an
“arbitrary percentage,” as one commissioner cavalierly dismissed it. Rather, as we
made clear in League of Women Voters of Ohio, __ Ohio St.3d __, 2022-Ohio-65,
__ N.E.3d __, it is a foundational ratio created not by this court or by any particular
political party but instead etched by the voters of Ohio into our Constitution. To
be sure, the ratio may be different in the next reapportionment, but for this
reapportionment, the “statewide preferences of the voters of Ohio,” Article XI,
Section 6(B), are 54 percent in favor of the Republican Party and 46 percent in
favor of the Democratic Party. The revised plan does not attempt to closely
correspond to that constitutionally defined ratio. Our instruction to the commission
is—simply—to comply with the Constitution.
D. The election calendar
{¶ 65} In its response to petitioners’ objections, the commission asks us to
decide this matter by February 11, 2022, or, alternatively, to stay our decision until
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the 2022 general election has been completed using the revised plan. The
commission notes that the deadline for partisan candidates to file their candidacies
for General Assembly offices was February 2 (see R.C. 3515.05 (candidate
petitions are due 90 days before the primary election)) and that other deadlines
related to the May 3 primary election are quickly approaching.
{¶ 66} The General Assembly established the date of the primary election,
see R.C. 3501.01(E)(1), and it has the authority to ease the pressure that the
commission’s failure to adopt a constitutional redistricting plan has placed on the
secretary of state and on county boards of elections by moving the primary election,
should that action become necessary.
IV. CONCLUSION
{¶ 67} We sustain petitioners’ objections relating to the revised plan’s
violation of Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. We
invalidate the revised plan in its entirety. We further order the commission to be
reconstituted, to convene, and to draft and adopt an entirely new General
Assembly–district plan that conforms with the Ohio Constitution, including Article
XI, Sections 6(A) and 6(B) as we have explained those provisions above.
{¶ 68} We further order the commission to adopt the new plan and file it
with the secretary of state no later than February 17, 2022, and to file a copy of that
plan with this court by 9:00 a.m. on February 18, 2022. We retain jurisdiction for
the purpose of reviewing the new plan.
{¶ 69} Petitioners shall file objections, if any, to the new plan, by 9:00 a.m.,
three days after the plan is filed in this court. Respondents shall file responses, if
any, to the objections, by 9:00 a.m., three days after the objections are filed. If the
deadline for the objections or responses falls on a Saturday, Sunday, or holiday, the
objections or responses shall be filed by 9:00 a.m. on the next business day.
Petitioners shall not file a reply or any motion for leave to file a reply. The clerk
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shall refuse to accept any filings under this paragraph that are untimely or
prohibited.
{¶ 70} No requests or stipulations for extension of time shall be filed, and
the clerk of this court shall refuse to file any requests or stipulations for extension
of time.
{¶ 71} Because we sustain the objections as to Sections 6(A) and 6(B) and
invalidate the plan in its entirety, we do not reach petitioners’ objections regarding
Article XI, Sections 1 and 3(D)(3).
Objections sustained in part.
O’CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY and DEWINE, JJ., dissent, with an opinion.
FISCHER, J., dissents, with an opinion.
_________________
KENNEDY and DEWINE, JJ., dissenting.
{¶ 72} We dissent from the majority’s pronouncement that the revised
General Assembly-district plan violates Article XI, Sections 6(A) and 6(B) of the
Ohio Constitution and is therefore invalid. And we disagree with the majority’s
decision to retain jurisdiction over this case and to set arbitrary time limitations and
new rules for the Ohio Redistricting Commission’s work that have no basis in the
text of the Ohio Constitution.
{¶ 73} It is apparent that in disregard of constitutional standards, four
members of this court have now commandeered the redistricting process and that
they will continue to reject any General Assembly-district plan until they get the
plan they want. It would simplify matters if the commission would just provide the
majority with the map-drawing software, Maptitude, so that they can draw the map
themselves. At this point, one must wonder which seven-member body is the true
redistricting commission—the constitutionally named officers or this court?
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{¶ 74} The Ohio Constitution entrusts the responsibility for redistricting to
the commission, not to this court. In its previous decision, the majority exceeded
its authority by declaring a map invalid based on alleged violations of Article XI,
Sections 6(A) and 6(B), despite the fact that our Constitution does not make stand-
alone violations of these sections judicially enforceable. Today, the majority
doubles down on its error by invalidating a revised plan that satisfies the same
metrics that it held out as a model of constitutionality in its first decision. In today’s
astonishing order, the majority compels the commission to design districts that
guarantee Democratic victories. There is a word for the action the majority has
ordered the commission to undertake—gerrymandering. See Article XI, Section
6(A), Ohio Constitution.
{¶ 75} Article XI, Section 6(A) provides that the commission “shall
attempt” to adopt a plan that is not “drawn primarily to favor or disfavor a political
party,” and Section 6(B) directs it to draw the plan so that “[t]he statewide
proportion of districts whose voters * * * favor each political party shall correspond
closely to the statewide preferences of the voters of Ohio.” The evidence submitted
by petitioners in these cases confirms that the districts that the majority finds
objectionable “favor” Democrats. Majority opinion, ¶ 30, 50. The majority now,
however, holds that it is not enough that a district “favor” a political party; it now
decrees that the commission must draw districts that favor Democrats to a degree
of the majority’s liking. But nothing in the Ohio Constitution requires the creation
of districts that guarantee victories for a political party. The Constitution requires
only an attempt to create districts that favor one side or the other in close
correspondence to statewide preferences, and that is exactly what the revised map
does.
{¶ 76} Furthermore, the majority lacks the authority to impose deadlines on
the commission and to retain jurisdiction for the purpose of reviewing a new plan.
When a plan is invalidated by a court, Article XI, Section 9(B) mandates the
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reconstitution of the commission pursuant to Section 1. Once reconstituted, the
commission is required to “convene, and ascertain and determine a general
assembly district plan in conformity with” the provisions of Article XI that are still
valid. Article XI, Section 9(B), Ohio Constitution. Therefore, the work of the
commission is controlled by the Ohio Constitution, not by judicial fiat. The
arbitrary timeline set by the majority usurps the right of the people to have a voice
in the redistricting process that is guaranteed by Article XI, Section 1(C). By
rejecting the revised plan, improperly retaining jurisdiction over these cases, and
setting another arbitrary deadline of ten days, it is apparent that the majority has in
mind the number of Democratic-leaning districts that must exist and the percentage
of voters that is necessary in a district to guarantee electoral victories for
Democrats. Things would be much easier if they just told the commission exactly
what they want.
{¶ 77} We reject the assertion that the revised plan violates Article XI,
Section 1(C); that provision is directory and not judicially enforceable. The
commission concedes that the revised plan contains a few municipal splits that
violate Article XI, Section 3(D)(3). Because these violations are “isolated” and do
not materially affect the plan, the commission should amend the plan to correct the
violations pursuant to Article XI, Section 9(D)(3)(a).
{¶ 78} Therefore, we would overrule the objections claiming that the
revised plan is invalid under Sections 6(A), 6(B), and 1(C), sustain the objection
regarding the isolated violations of Section 3(D)(3) as conceded by the commission,
and order the commission to amend the revised plan pursuant to Section 9(D)(3)(a)
to correct those minor violations. Because the majority holds otherwise, we dissent.
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I. FACTS AND PROCEDURAL HISTORY
A. The General Assembly-District Plan Is Invalidated
and a Revised Plan Is Adopted
{¶ 79} On January 12, 2022, a divided court invalidated the original
General Assembly-district plan adopted by the commission on September 16, 2021,
and directed the commission to adopt a new plan within ten days.
{¶ 80} The commission reconvened and held its first public meeting on
January 18, 2022. The commission did not start from scratch; instead, it directed
staff to collaborate and determine which currently Republican-leaning districts
could be redrawn to be Democratic-leaning districts without violating the
requirements of Article XI, Sections 2, 3, 4, 5, and 7. The commission unanimously
agreed to take a regional approach to redrawing the map. It started with Hamilton
and Franklin Counties, with a goal of meeting the proportionality requirement
unless doing so would result in violations of other constitutional requirements.
Over the following days, support staff discussed and shared proposals for
increasing the number of Democratic-leaning districts, particularly in Hamilton,
Franklin, Cuyahoga, Summit, and Lorain Counties. Senator Vernon Sykes, a
Democrat and a member of the commission, stated: “The staffs have been working
together. This is the first time, I believe, in the history of the state that Republican
and Democratic staff have been working together on maps.”
{¶ 81} On January 20, 2022, the commission held a public meeting; rather
than adjourning the meeting, the commission went into recess. When it reconvened
on January 22, commission members introduced proposed plans. The commission,
by a party-line vote, adopted the plan prepared by members of the Republican
caucus in collaboration with, but not always agreement with, members of the
Democratic caucus.
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B. The Realities of Ohio’s Political Geography
{¶ 82} Before we get to the revised map, some background is necessary to
understand the constraints under which General Assembly redistricting takes place
in Ohio. Start with Ohio’s political demographics. No one disputes the fact that
the partisan preferences of Ohio voters are not evenly distributed. Democratic
voters are clustered predominately in densely populated areas around Ohio’s six
largest cities. Republicans are more uniformly distributed—and large, rural swaths
of the state are solidly Republican as the below maps show:9
9. The first map is from the expert report of Michael Barber, Ph.D. The second map is from the
expert report of Sean P. Trende.
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Importantly for redistricting purposes, the concentration of Democratic voters is
much higher in Democratic areas than that of Republican voters in Republican-
leaning areas. Election results10 from the most recent presidential election help
illustrate this point (the percentage is the Republican-vote share in each county):
10. This map was created using data from the Ohio Secretary of State’s Office. See Ohio Secretary
of State, 2020 Official Elections Results, available at https://www.ohiosos.gov/elections/election-
results-and-data/2020/ (accessed Feb. 7, 2022) [https://perma.cc/FY23-HYMD]. It was created
using a template available at https://commons.wikimedia.org/wiki/File:Ohio_Presidential_
Election_Results_2020.svg (accessed Feb. 7, 2022) [https://perma.cc/BBR5-SXGH].
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January Term, 2022
56.2% 60.9%
40.8%
69.1% 60.9%
72.1% 32.4% 61.0%
54.7%
54.9%
62.8% 50.5%
67.3% 71.0% 52.9% 55.5%
69.7% 61.1% 44.5%
74.9% 66.2% 50.4%
82.4%
67.9%
73.5%
67.7% 58.5% 71.7%
77.9% 74.3% 74.6%
69.0% 69.2%
75.1% 75.6%
68.4% 83.4%
80.7% 76.3% 69.2% 68.5%
81.9%
71.2%
76.9% 75.7%
73.6%
80.9% 52.7%
64.8%
81.1% 73.1% 63.2%
71.4% 73.6% 71.2%
68.9%
33.5%
60.8%
76.4%
69.7% 61.0% 81.0%
78.1% 48.1% 74.1%
58.8% 72.9% 73.6%
75.1%
70.5% 69.6%
61.3% 64.7% 75.5% 41.7%
66.9%
76.9%
41.3% 79.7%
75.9%
73.8% 76.4%
67.5%
81.3% 70.6% 77.1%
78.1%
72.2%
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{¶ 83} Now layer on top of this political reality the mandatory requirements
of the Ohio Constitution. Districts must be compact and contiguous, and there are
explicit limitations on splitting political subdivisions. Restrictions against splitting
political subdivisions are explicitly given precedence over the exhortations of
Article XI, Sections 6 that a plan shall not be drawn to favor a political party and
shall closely correspond to the statewide voter preferences.
{¶ 84} As Dr. Michael Barber explained, the constitutional requirements for
territorial continuity, district compactness, political-unit integrity, and
proportionality are in tension with the creation of a map that achieves proportional
representation along party lines. Compliance with these requirements means that
Democrats tend to be clustered in districts that result in so-called “wasted votes” in
which Democrats win by overwhelming numbers while Republicans tend to be in
more competitive districts in which Republican candidates win by smaller margins.
{¶ 85} Dr. Barber detailed the challenges facing mapmakers who want to
achieve exact proportionality by creating House districts that correspond to the
preferences of Ohio voters (i.e., 54 Republican seats to 45 Democratic seats). He
described the following demographic breakdown of the state:
65 counties are uniformly Republican and represent approximately one-third of
the House districts.
17 counties are “purple cluster” counties—counties that are uniformly
Republican except that they have a small-to-medium municipality that is
majority Democratic. These represent 26 House districts, but only 5 could be
drawn as Democratic districts in compliance with the requirement to avoid
splitting governmental units.
6 “urban blue” counties, which split approximately 60 percent Democratic and
40 percent Republican and account for approximately 41 House districts.
{¶ 86} Based on these demographics, a mapmaker who seeks to achieve
anything close to 45 Democratic-leaning districts faces significant challenges. A
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mapmaker would need to draw all 5 possible Democratic-leaning districts in the
“purple cluster” counties, and 40 out of the 41 “urban blue” districts would have to
be Democratic. In other words, for the statewide proportion of House districts to
achieve exact proportionality, the commission would need to go to extraordinary
lengths to draw districts in the purple-cluster counties and the urban blue counties
in a way that gives maximum political advantage to Democrats. That is, a plan that
overcomes Ohio’s political geography would necessarily provide Democrats with
virtually all the available seats in urban counties—a far cry from the representation
that voting preferences in those counties would merit.
C. Issues Presented
{¶ 87} These cases present two issues for this court’s consideration: Does
this court have authority to invalidate the revised General Assembly-district plan
based on stand-alone violations of Article XI, Sections 1 and 6? The answer is no.
And have the petitioners in Bennett v. Ohio Redistricting Comm. (Supreme Court
case No. 2021-1198) demonstrated that the commission violated Article XI, Section
3(D)(3)? The answer to that question is yes. As the commission concedes, the
revised plan contains isolated violations of Article XI, Section 3(D)(3), and
pursuant to Section 9(D)(3)(a), this court should remand the revised plan to the
commission to correct those violations.
II. ANALYSIS
A. Judicial Reviewability of a General Assembly-District Plan
{¶ 88} As the first dissenting opinion explains in League of Women Voters
of Ohio v. Ohio Redistricting Comm., Article XI, Section 9(D) limits this court’s
authority to review General Assembly-district plans. ___ Ohio St.3d ___, 2022-
Ohio-65, ___ N.E.3d ___, ¶ 227 (Kennedy, J., dissenting). The power to invalidate
a plan, in whole or in part, depends on the existence of a predicate violation of the
requirements of Section 2, 3, 4, 5, or 7. For “isolated violations of those
requirements,” Section 9(D)(3)(a) requires this court to order the commission to
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amend a plan to remedy the violations. When the violations are more extensive,
requiring the commission to amend at least six House districts or two Senate
districts, Section 9(D)(3)(b) directs the court to wholly invalidate the plan. Finally,
Section 9(D)(3)(c) permits the court to invalidate a plan adopted under Section 8(C)
if a significant violation or violations of Section 2, 3, 4, 5, or 7 materially affect the
ability of the plan to provide proportional representation and the proportion of
districts does not correspond closely to the statewide preferences of Ohio voters.
{¶ 89} Contrary to the majority’s claim, nothing in Article XI, Section 9(B)
empowers this court to invalidate the revised plan based on a stand-alone violation
of Section 6. Further,
the negative implication of Article XI, Section 9 is obvious. Section
9(D) is a provision that limits the authority of this court in reviewing
a General Assembly-district plan. It prohibits this court from
ordering the commission to adopt a specific plan and from drawing
the districts ourselves. And that same provision provides that this
court may invalidate a General Assembly district-plan in whole or
in part only if we first find a violation of Article XI, Section 2, 3, 4,
5, or 7.
Id. at ¶ 227 (Kennedy, J., dissenting).
{¶ 90} Indeed, “[i]f violations of Section 6 were intended to be actionable,
one would naturally expect Section 9(D) to say so. But that language is
conspicuously absent.” Id. at ¶ 217 (Kennedy, J., dissenting). The exclusion of
Section 6 from the remedies expressly provided by Section 9(D)(3) demonstrates
that such violations are not judicially enforceable—the inclusion of Sections 2, 3,
4, 5, and 7 in this remedy portends the exclusion of Section 6. See Scalia & Garner,
Reading Law: The Interpretation of Legal Texts 107 (2012). For this reason, “the
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standards established by Article XI, Section 6 are directory and therefore not
judicially enforceable.” League of Women Voters at ¶ 245 (Kennedy, J.,
dissenting).
{¶ 91} Because this court lacks authority to invalidate a plan based on a
stand-alone violation of Sections 6(A) or 6(B), petitioners’ objections that are
premised on those provisions fail.
B. The Commission Did Not Violate Article XI, Section 6
{¶ 92} Because there has been no showing of the necessary predicate
violation of Article XI, Section 2, 3, 4, 5, or 7, this court has no authority to wholly
invalidate the plan for a violation of Section 6. Nevertheless, because the majority
ignores this limit on its authority, we address the majority’s conclusion that the
revised plan violates Sections 6(A) and 6(B).
{¶ 93} Article XI, Section 6 establishes three standards that the commission
must “attempt” to follow when drawing a General Assembly-district plan. The
commission must attempt to produce a map that (A) is not drawn primarily to favor
a political party, (B) contains a statewide proportion of districts whose voters favor
a political party in close correspondence to statewide voter preferences, and (C)
contains compact districts. But in pursuing these goals, the commission shall not
violate Section 2, 3, 4, 5, or 7—the neutral map-drawing requirements designed to
prevent gerrymandering.
1. The Revised Map Does Not Violate Article XI, Section 6(A)
{¶ 94} Article XI, Section 6(A) provides, “No general assembly district
plan shall be drawn primarily to favor or disfavor a political party.” The operative
word in the provision is “primarily,” which is ordinarily understood to mean
“predominantly.” Therefore, under the plain language of this provision, to show a
violation of Section 6(A), petitioners needed to prove that the commission’s
predominant motivation in drawing the revised plan was to favor or disfavor a
political party.
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a. There has been no showing that partisan favoritism
was the commission’s primary motivation
{¶ 95} Petitioners argue that the commission did not attempt to comply with
Article XI, Section 6(A). The crux of the argument is that the commission’s revised
map purposefully creates districts that lean toward Democrats only marginally, and,
so petitioners say, Republicans might end up winning some of these districts and
obtaining a greater than proportionate share of representation. We disagree that the
commission’s predominant motivation was to favor a political party.
{¶ 96} The commission’s members understood that under the majority’s
holding in League of Women Voters, they had to comply with Sections 6(A) and
6(B) unless doing so caused the revised plan to violate Section 2, 3, 4, 5, or 7. The
staffs of the Republican and Democratic caucuses collaborated intensely in drawing
a map, even if there was not always agreement on how each district should be
drawn. Mapdrawer Ray DiRossi explained that “the Commission decided to
proceed with this Court-ordered re-draw by drawing districts in various geographic
regions of the state where it is possible to draw Democratic leaning districts while
complying with Sections 2, 3, 4, 5, and 7 of Article XI of the Ohio Constitution.”
This way, they started with a plan that they knew already complied with Sections
2, 3, 4, 5, and 7. Even then, DiRossi noted that it took “hours of work” to change
a Republican-leaning district to lean toward Democrats, but because of this court’s
order for the commission to adopt a revised plan in ten days, time was short.
DiRossi explained that it was not possible to adopt a map that had fewer than 57
Republican-leaning House districts without also violating other provisions of
Article XI, and he testified that other proposed maps he had seen did not comply
with all the requirements of Sections 2, 3, 4, 5, and 7. Blake Springhetti, a
Republican staffer who helped draw the revised plan, also noted that he had not
seen a constitutional map that gave Democrats more districts than the commission’s
revised map.
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{¶ 97} When asked why the revised plan made Democratic-leaning seats
more competitive, Springhetti explained that “the decisions were centered around
complying with the court order and closely corresponding with Section 6.” And in
responding to a question whether drawing competitive districts was intended to
disfavor Democrats, DiRossi stated, “[I]f you’re asking if a 53 percent Republican-
leaning seat that becomes a 48 percent Republican-leaning seat is—makes it easier
for a Republican to win, I mean, that just wouldn’t make sense to me.”
{¶ 98} Petitioners’ own expert, Dr. Kosuke Imai, admitted that in the
revised plan’s most competitive district, Democrats would win the election five out
of nine times. And in the four next most competitive districts, Democrats could
have won at least six out of nine elections. It stands to reason that the other seven
competitive districts with larger margins of political advantage for the Democrats
would have been even more likely to elect Democratic legislators.
{¶ 99} In effect, petitioners assert, and the majority apparently agrees, that
the revised plan does not favor the Democratic Party enough. But changing the
map to add more “safe” Democratic districts would mean that the commission had
a primary purpose to favor the Democratic Party when Article XI, Section 6(A)
strictly prohibits such action.
b. The majority’s Section 6(A) analysis
{¶ 100} The majority does not cite any direct evidence that partisan
favoritism was the drafters’ primary motivation. Instead, it draws inferences from
three sources to support its conclusion that the commission’s primary motivation
was to favor the Republican Party: (1) the fact that the commission took as a starting
point the map this court previously invalidated in drawing new districts, (2) the fact
that the map did not achieve perfect partisan proportionality, and (3) the fact that
many of the districts favored the Democratic Party only by small margins. This
evidence does not prove the majority’s faulty conclusion.
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SUPREME COURT OF OHIO
{¶ 101} The majority begins by complaining that “the commission did not
adopt an entirely new plan” but, rather, began by making revisions to the old map.
Majority opinion at ¶ 36. But, of course, this has nothing do with whether the
commission intended to “primarily” favor or disfavor a political party. It was a
Democratic member of the commission, Senator Sykes, who proposed the idea to
adopt the “regional” approach to grapple with the reality of Ohio’s political
geography. Starting from the invalidated map was a bipartisan decision, motivated
primarily by the need to comply with the majority’s order to redraw the plan within
ten days. Certainly, the decision is not evidence that the commission’s primary
motivation was to favor Republicans.
{¶ 102} Moreover, there is nothing in Article XI that authorizes the majority
to micromanage the manner in which the commission carries out its map-drawing
functions. The commission’s unanimous decision to take a regional approach to
redrawing the plan makes perfect sense when one considers that no one challenged
the previous plan for failing to comply with the neutral line-drawing requirements
of the Constitution. Indeed, starting completely from scratch would have made
little sense. The Constitution mandates that the starting point for the creation of the
districts be Franklin County, the most populous county, and it also mandates the
order in which the remaining districts be drawn. So, any new map would have been
based on the same parameters as the old one.
{¶ 103} Furthermore, the demographics of Ohio dictate that Ohio’s rural
districts are going to be Republican; readjustments of the boundaries of these
districts would have done nothing to change the Republican/Democratic ratio of
districts. The only place for the commission to add more Democratic districts was
in the urban counties. So, it was perfectly reasonable for the commission to start
exactly where it did.
{¶ 104} Second, the majority infers that the drafters had an improper
partisan motivation from the fact that the revised plan did not achieve perfectly
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proportional representation. In doing so, it conflates the issue of proportionality
under Article XI, Section 6(B) with the intent determination of Section 6(A).
Section 6(B) is a mathematical problem. It asks whether the statewide proportion
of districts “correspond[s] closely” to the statewide preference of voters. Section
6(A) is a question of intent and asks whether the commission acted above all else
to favor or disfavor one party over the other. The fact that the majority today does
not view the revised plan as sufficiently proportional does not prove that the
commission intended to favor or disfavor a particular party. As explained below in
the discussion of Section 6(B), the majority’s decision in League of Women Voters,
__ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, suggested that the partisan
proportionality of the revised plan would comply with Section 6(B). At best, the
proportionality of the revised plan shows that the commission acted primarily to
obey the majority’s order, not to disfavor Democrats.
{¶ 105} Lastly, the majority today finds “other evidence” that supports a
violation of Article XI, Section 6(A) in a lack of “parity in terms of vote share of
each district.” Majority opinion at ¶ 40. But competitive districts do not favor or
disfavor a particular political party, so they cannot be evidence of the commission’s
intent to disfavor the Democrats. Rather, the narrow margins of partisan preference
were largely a function of demographics. As outlined above, the political
demographics of Ohio meant that in order to obtain proportionality, the
overwhelming majority of Republican districts in Ohio’s urban counties had to be
transformed into Democratic ones despite the fact that Republican voters constitute
a significant proportion of Ohio’s urban population. This necessarily meant
drawing districts having small Democratic margins. Furthermore, by allowing the
commission so little time to revise the plan, the majority exacerbated these
constraints, as changing even one district to lean toward Democrats was time
consuming. The drafters also had to comply with Sections 2, 3, 4, 5, and 7, without
losing sight of the compactness standard of Section 6(C).
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{¶ 106} The record establishes that the commission’s primary purpose in
adopting the revised plan was to comply with this court’s order to adopt a plan with
a proportion of districts that more closely corresponds with the partisan preferences
of Ohio voters without also violating the neutral map-drawing requirements of
Article XI and dealing with the consequences of Ohio’s political geography. The
plan therefore was not drawn primarily to favor or disfavor any particular political
party. Partisan considerations are not forbidden by Section 6(A); they just must not
be the primary motivation in drawing the plan, and here they were not.
{¶ 107} For these reasons, we would reject the objections premised on a
violation of Article XI, Section 6(A).
2. The Revised Plan Does Not Violate Article XI, Section 6(B)
{¶ 108} Going further, the majority concludes that the redistricting
commission did not comply with this court’s direction in League of Women Voters
that the commission attempt to adopt a plan under Article XI, Section 6(B) in which
“[t]he statewide proportion of districts whose voters, based on statewide state and
federal partisan general election results during the last ten years, favor each political
party * * * correspond closely to the statewide preferences of the voters of Ohio.”
a. The Majority’s Decision in League of Women Voters of Ohio
{¶ 109} In League of Women Voters, this court explained that prior election
results showed “about 54 percent of Ohio voters preferred Republican candidates
and about 46 percent of Ohio voters preferred Democratic candidates.” __ Ohio
St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 108. Based on this distribution of
partisan preference, precise proportionality would mean that there are 71.28 total
House and Senate districts (54 percent of the sum of the 99 House districts and 33
Senate districts) that lean toward the Republicans and 60.72 that lean toward the
Democrats (46 percent of the same sum). But close correspondence is not precise
proportionality. By modifying the word “correspond” with the adverb “closely,”
Article XI, Section 6(B) provides that proportionality need not be exact but just
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close enough. In contrast, the word “favor” in Section 6(B) is not similarly
modified. If a district prefers a political party by the smallest statistical amount, it
necessarily favors that party. In this analysis, there can be no toss-ups; one party is
favored based on past election data, and one is not.
{¶ 110} But how does the majority understand the term “closely”? It is
important to consider what it suggested was close enough in League of Women
Voters. In determining that the commission’s original plan did not comply with
Article XI, Section 6(B), the majority pointed to the report of Dr. Imai, an expert in
districting statistics who was hired by petitioners. Id. at ¶ 112. Dr. Imai’s original
report filed in these cases stated that the average of the 5,000 plans he generated
contained 79 total Republican-leaning districts (60 percent) and 53 total
Democratic-leaning districts (40 percent). The majority stated, “Dr. Imai’s analysis
showed that the plan adopted by the commission was an outlier, displaying a greater
degree of disproportionality than any of the simulated maps he generated.” Id.
{¶ 111} The majority in League of Women Voters also relied on Dr.
Jonathan Rodden’s report and stated that “[he] drew a plan that was compliant with
Article XI and that is more proportional to the statewide voter preferences than the
plan adopted by the commission.” (Emphasis added.) Id. at ¶ 112. It further
claimed that “when Dr. Rodden drew his district plan that adhered to traditional
redistricting principles, complied with Article XI, and did not endeavor to help or
harm any political party, the result was much different: a plan with more compact
districts and in which the partisan split in Republican candidates’ favor was 57
percent to 43 percent in the House and 55 percent to 45 percent in the Senate.”
(Emphasis added.) Id. at ¶ 126. The majority in League of Women Voters of Ohio
unambiguously stated that Dr. Rodden’s plan complied with Article XI, including
Section 6(B).
{¶ 112} Notably, after League of Women Voters was decided, a notice of
correspondence was filed in this court in which counsel for the Bennett petitioners
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informed the commission that Dr. Rodden’s plan did not comply with the
mandatory map-drawing requirements of Article XI, stating, “[W]e now believe
that [Dr. Rodden’s] plan contained some technical issues that may result in
municipal corporation and township splits beyond those permitted by the strict
language of Article XI, Section 3.” Dr. Rodden’s original plan also did not number
the Senate districts, as required by Article XI, Section 5. And it is not clear that he
began drawing House districts with the most populous county—Franklin County—
as required by Section 3(C)(1). This is problematic, because Dr. Rodden stated in
his report that he began preparing his plan by first “resolving the dilemma of
Northeast Ohio.” Nonetheless, the majority in League of Women Voters favorably
cited Dr. Rodden’s plan in its decision. Consequently, despite the flaws in Dr.
Rodden’s work, the clear message that the majority sent to the commission was that
a plan having levels of proportionality similar to those determined by Dr. Rodden
would withstand constitutional scrutiny.
{¶ 113} In addition, the commission was aware that on September 13, 2021,
a Democratic member of the commission, Senator Sykes, had previously proposed
a plan that contained 77 total Republican-leaning House and Senate districts and 55
Democratic-leaning House and Senate districts. See League of Women Voters, __
Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 46.
b. The Majority Moves the Goalposts
{¶ 114} Against this backdrop in which the majority had set Dr. Imai’s and
Dr. Rodden’s reports as exemplars for drawing a plan that is compliant with Article
XI, Section 6(B), the commission adopted the revised plan, which provided 77 total
Republican-leaning districts in the House and Senate—about 58 percent—and 55
total Democratic-leaning House and Senate districts—about 42 percent. By the
standards set forth by the majority in League of Women Voters, the revised plan is
constitutional. In its previous decision, the majority relied on Dr. Imai’s simulation
in concluding that the original plan was an “outlier,” id. at ¶ 112, but under the
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same data, the revised plan is not. In fact, the revised plan provides more total
Democratic-leaning districts than the majority of Dr. Imai’s 5,000 simulated plans.
Further, the partisan makeup of the revised plan is almost identical to the partisan
makeup of Dr. Rodden’s original plan—the plan that the majority held up as a
model of constitutionality in its original decision. The revised plan also contained
the exact division of total Republican- and Democratic-leaning districts proposed
in Senator Sykes’s September 13, 2021 plan. According to the majority, the plan
initially proposed by the minority-party members of the commission would
somehow unconstitutionally favor their opposing party. That is as good of an
indication as any of just how far afield the majority has veered.
{¶ 115} Indeed, a fair reading of the majority’s previous decision is that the
revised plan satisfies Article XI, Section 6(B), and the majority is now simply
moving the goalposts to avoid upholding the plan. What it indicated in its previous
decision regarding what would be a close enough division of districts is no longer
close enough. Instead, under today’s decision, the commission must undertake a
reverse-gerrymandering to guarantee Democratic victories to achieve exact
proportional representation.
{¶ 116} The majority asserts that the existence of alternative plans is
probative in evaluating the revised plan. It should then be relevant that Dr. Rodden
submitted to the commission a revised plan containing 74 total Republican-leaning
districts and 58 total Democratic-leaning ones. But although that plan may contain
a slightly more proportional division of districts than the commission’s revised
plan, it does so at the expense of once again violating some of the mandatory map-
drawing requirements of Article XI. The commission submitted evidence that Dr.
Rodden’s plan unconstitutionally divided more than one municipality or township
in nine districts, in violation of Article XI, Section 3(D)(3). Some of these divisions
could not be corrected without overpopulating or underpopulating the district,
sending ripple effects throughout the entire plan. Dr. Rodden’s plan also
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SUPREME COURT OF OHIO
erroneously numbered numerous Senate districts, see Article XI, Section 5, causing
at least one senator to be up for reelection two years before the conclusion of his
term.
{¶ 117} Therefore, while the majority faults the commission for not
adopting a more proportional plan, it is significant that no plans that were both more
proportional and satisfied the other relevant constitutional standards were presented
to the commission.
c. It Is Not Possible to Draw Perfectly Proportional District Plans
{¶ 118} DiRossi testified that none of the plans he had seen provided
proportional representation without also violating other requirements of Article XI.
Apparently not liking what DiRossi says, the majority simply disregards his
testimony. But DiRossi’s testimony is backed up by other evidence in the record.
Dr. Rodden is an expert in matters pertaining to redistricting, but even he was not
able to draft a plan with a proportion of districts that more closely corresponds with
the partisan preferences of Ohio voters while still complying with the neutral map-
drawing requirements of Sections 2, 3, 4, 5, and 7. Similarly, Senator Sykes’s
September 13 plan and the Ohio Citizens Redistricting Commission’s plan, which
were both cited in Dr. Rodden’s first report, were not able to reach much closer
proportionality even though they also violated the neutral map-drawing
requirements and were therefore unconstitutional.
{¶ 119} Further, out of all of Dr. Imai’s 5,000 simulated plans that he
claimed complied with all of Article XI’s requirements, none of the plans were able
to reach perfect proportionality, i.e., 71.28 total Republican-leaning House and
Senate districts and 60.72 total Democratic-leaning House and Senate districts.
None even came within 5 percent of perfect proportionality. His average ratio was
between slightly more than 78 Republican-leaning districts and slightly more than
53 Democratic-leaning districts, and his plans ranged from approximately 76
districts leaning Republican to 81 leaning Republican. The commission’s revised
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plan is therefore more proportional than the majority of Dr. Imai’s 5,000 plans.
And to reach the proportionality apparently required by the majority’s decision
today, the plan would be an outlier in Dr. Imai’s study, with about five fewer
Republican districts than even his most pro-Democratic simulated plan.
{¶ 120} And while the Democratic members of the commission prepared a
plan purportedly containing 72 total Republican-leaning House and Senate districts
and 60 total Democratic-leaning House and Senate districts, all indications are that
the plan included little if any attempt to comply with all the requirements of Article
XI, Sections 2, 3, 4, 5, and 7. Senator Sykes noted that the purpose of his plan was
to show that proportional districts could be drawn, without worrying whether they
were “error free.” And the plan contained constitutional errors, improperly dividing
municipalities and townships in a way that cannot be corrected without
overpopulating some districts and “caus[ing] ripple effects throughout the entire
county, and likely beyond.” It also improperly numbered some Senate districts in
a way that puts at least two senators on the ballot in the middle of their four-year
terms, violating Article XI, Section 5. (The drafter of this plan, Chris Glassburn,
claimed that he was subsequently able to correct these errors, but the maps attached
to his affidavit are, at the very least, not numbered, in violation of Sections 3, 4,
and 5.)
{¶ 121} The majority should apply the plain language of Article XI, Section
6(B) and not demand exact proportionality when there is scant evidence that it is
possible to draw districts that are exactly proportional to the partisan preferences of
Ohio voters without also violating the neutral map-drawing requirements of
Sections 2, 3, 4, 5, and 7. Section 6(B) states that the commission shall “attempt”
to achieve a proportion of districts that “closely” corresponds to the partisan
preferences of Ohio voters—it does not require that proportion to perfectly match
those preferences.
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d. The Revised Plan Does Not Improperly Favor a Political Party
{¶ 122} Lastly, the majority rejects the commission’s methodology for
determining how many districts favor Republicans and how may favor Democrats.
It concludes that the commission’s revised plan would result in more Republican
election victories than the plan purports to have because Republicans might win in
some districts where Democrats have only a narrow demographic advantage.
However, nothing in Article XI, Section 6(B) requires the commission to allocate
guaranteed victories to any party. Rather, Section 6(B) directs the commission to
adopt a plan in which “[t]he statewide proportion of districts whose voters * * *
favor each political party shall correspond closely to the statewide preferences of
the voters of Ohio.” (Emphasis added.) Article XI, Section 6(B), Ohio
Constitution. It does not give a margin by which the district’s voters should favor
one party or the other. And although the margins may be narrow in some districts,
those districts nonetheless favor Democrats based on the partisan preference of
voters there. The Constitution’s words control: a district that narrowly favors the
Democratic Party nevertheless favors it.
{¶ 123} To require these districts to favor Democrats enough to guarantee
that Democrats will always be elected—i.e., to significantly favor a party by more
than 52 percent—would require adding words to the Constitution; however, a court
may not “add to or subtract from the plain and usual meaning of [a] constitutional
provision,” State v. Billotto, 104 Ohio St. 13, 15-16, 135 N.E. 285 (1922).
e. The Majority’s Holding Requires Intentional Gerrymandering
{¶ 124} The result of the majority’s decision today is to require the
commission to intentionally gerrymander the General Assembly-district plan in
order to overcome the political geography of Ohio in which Democrats are more
concentrated in urban areas while Republican voters dominate the suburban and
rural areas of the state. To draw five more safe Democratic-leaning districts, the
commission will have to crack the areas in which Democrats live and pack them
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into new districts containing far-flung Republican voters in the suburbs and rural
areas. Dr. Barber, an associate professor of political science at Brigham Young
University, indicated that this could be accomplished by drawing districts that
radiate from the urban core and then extend them “like slices of pizza,” which
would capture large numbers of Democrats in cities as well as Republican voters in
the suburbs and rural areas. He also suggested that districts could be drawn like a
“snake” through the rural, heavily Republican areas by stringing together smaller
cities where Democrats live to create a majority Democratic-leaning district in what
would otherwise be a Republican-leaning district.
{¶ 125} The problem, Dr. Barber notes, is that creating these districts
requires intentional gerrymandering and violates Article XI’s neutral map-making
requirements. The “slice” districts would violate Section 3(D)(3) by dividing too
many municipalities and townships, while the “snake” districts would violate
Section 3(C)’s prohibition of excessive divisions of counties. Creating “snake”
districts would also require the commission to violate the directory duty imposed
by Section 6(C) to draw compact districts. Complying with this court’s apparent
order to create exactly proportional districts improperly elevates Section 6(B) over
Sections 2, 3, 4, 5, and 7, which the Constitution expressly prioritizes, and over
Section 6(C), which is coequal to Section (6)(B). See Article XI, Section 6, Ohio
Constitution (“Nothing in this section permits the commission to violate the district
standards described in Section 2, 3, 4, 5, or 7 of this article”).
{¶ 126} It also will require the commission to go to absurd lengths to dilute
Republican votes in urban counties. For example, Dr. Rodden’s plan divides 11
districts in Franklin County in such a way that all 11 districts would skew in favor
of Democrats. So, while the partisan divide of Franklin County is approximately
63 percent Democrats and 37 percent Republicans, Dr. Rodden’s plan would give
100 percent of the districts to the Democrats. Similarly, Hamilton County is 55
percent Democrats and 45 percent Republicans. Dr. Rodden’s plan, however,
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would provide six out of seven House districts (or approximately 85 percent) to
Democrats by cracking Republican-leaning areas of the county and packing them
with urban areas where Democrats predominate. This intentional gerrymandering
therefore unnecessarily dilutes the votes of Republican voters in the areas
surrounding cities.
{¶ 127} The same majority as today recently decried the evils of partisan
gerrymandering:
Gerrymandering is the antithetical perversion of
representative democracy. It is an abuse of power—by whichever
political party has control to draw geographic boundaries for elected
state and congressional offices and engages in that practice—that
strategically exaggerates the power of voters who tend to support
the favored party while diminishing the power of voters who tend to
support the disfavored party.
Adams v. DeWine, __ Ohio St.3d __, 2022-Ohio-89, __ N.E.3d __, ¶ 2. Yet today,
it apparently orders the commission to do just that, compelling the commission to
separate political subdivisions and communities of interest and to dilute the vote of
some Ohioans to enhance the vote of others. This is the direct result of the
majority’s failing to adhere to the limits of the Constitution and elevating Article
XI, Section 6(B) by replacing the neutral map-drawing requirements with one that
is unapologetically partisan. And this is plainly not what the people of this state
had in mind when they ratified the limits on gerrymandering in Article XI.
{¶ 128} Redistricting reform was intended to reduce political polarization.
But in putting its own political objectives ahead of constitutional requirements, the
majority will undoubtedly increase political polarization. The majority ordains a
map in which urban counties effectively have representation from only one political
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party. For those who complain about a rural/urban division in Ohio, just wait until
we have a legislature in which one party exclusively represents urban centers and
the other party represents the rest of the state.
{¶ 129} Furthermore, by the majority’s decree, elections in urban counties
will not be competitive. Instead, the commission must guarantee safe Democratic
seats—taking general-election voters out of the equation and ensuring that elections
are decided by the lines that are drawn and not by the ballots cast. Under such a
regime, the most important election will often be the primary—thereby
incentivizing candidates to appeal to their political base rather than the electorate
as a whole. That is not good for voter engagement. And that is not good for
democracy.
C. This Court Has No Authority to Commandeer the Commission
{¶ 130} In addition to erroneously concluding that the commission violated
Article XI, Section 6, the majority exceeds its constitutional authority by placing
an arbitrary time limit on the work of the commission and by retaining jurisdiction
over the case. Under Section 9(B), if this court invalidates a plan, the reconstitution
of the commission is self-executing—it occurs automatically and the commission
is to “convene, and ascertain and determine” a new plan “in conformity with such
provisions of this constitution as are then valid.” Article XI, Section 9(B), Ohio
Constitution.
{¶ 131} Article XI does not authorize this court to control the work of the
commission. It does not prohibit the commission from using an invalidated plan as
a starting point as it strives to adopt a valid one. The Constitution is silent on when
the commission is to hold meetings, adopt rules, hire staff, expend funds, or propose
or adopt a new plan. Article XI, Section 9(B) contains no such time requirements,
and it does not provide this court with the authority to create one by ordering the
commission to adopt a new plan within ten days.
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{¶ 132} Likewise, the majority’s reliance on Article IV, Section 2(B)(1)(f)
as authority for retaining jurisdiction over these cases and controlling the work of
the commission is undermined by the plain, unambiguous language of the
provision. Section 2(B)(1)(f) grants this court “original jurisdiction * * * [i]n any
cause on review as may be necessary to its complete determination.” Article IV,
Section 2(B)(1)(f), Ohio Constitution. But this court’s determination of League of
Women Voters was “complete” when it declared the General Assembly-district plan
invalid. Because there was nothing left for this court to do, setting a timeline and
a drop-dead date by which the commission was to act was nothing more than an
exercise of raw judicial power. See, e.g., Doe v. Bolton, 410 U.S. 179, 222, 93 S.Ct.
762, 35 L.Ed.2d 147 (1973) (White, J., dissenting).
D. Article XI, Section 1 Is Not Judicially Enforceable
{¶ 133} Because petitioners’ Article XI, Sections 6(A) and 6(B) arguments
fail, it is necessary to address the Bennett petitioners’ remaining objections.
{¶ 134} In objecting to the revised plan, the Bennett petitioners argue that
the commission violated Article XI, Section 1(C) by failing to release the proposed
plan to the public before adopting it, failing to allow members of the public and the
commission an adequate opportunity to provide input on the proposed plan, and
failing to hold three public meetings before adopting a plan. However, a violation
of Section 1(C) does not provide a basis for this court to invalidate a General
Assembly-district plan.
{¶ 135} Article XI, Section 9(D)(3) authorizes this court to invalidate a
General Assembly-district plan only if it determines that the plan violates Article
XI, Section 2, 3, 4, 5, or 7. Absent from that list is Section 1. The exclusion of a
violation of Section 1 from the remedy expressly provided by Section 9(D)(3)
shows that Section 1 is not judicially enforceable. See Scalia & Garner at 107 (the
inclusion of one is the exclusion of others). As is the case with Section 6, because
Article XI, Section 9(D)(3) provides no mechanism by which to enforce
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compliance with Section 1(C), it is a directory requirement that is not judicially
enforceable.
{¶ 136} Moreover, to accept the Bennett petitioners’ position would mean
that this court has the power to strike down a plan for a technical violation of
Section 1 even if that violation had no palpable effect on the plan itself and did not
violate any constitutional or federal voter-rights protections. But even the majority
in League of Women Voters did not go to that extreme. Although it recognized that
the commission had not complied with Article XI, Section 8(C)(1)(a) because it
had adopted the original plan a day late, that violation was not a basis for the
majority to invalidate the plan. __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at
¶ 64, fn. 9.
{¶ 137} For these reasons, the Bennett petitioners’ objection asserting that
the revised General Assembly-district plan violates Article XI, Section 1(C) should
be rejected.
E. The Commission Concedes that There Are Isolated Violations
of Article XI, Section 3(D)(3)
{¶ 138} The only actionable claim that the General Assembly-district plan
is invalid is the Bennett petitioners’ objection that it violates Article XI, Section
3(D)(3). That provision states that “not more than one municipal corporation or
township may be split per representative district.” Article XI, Section 3(D)(3),
Ohio Constitution.
{¶ 139} The commission concedes that the General Assembly-district plan
splits multiple municipalities in four separate districts. The only relevant evidence
shows these violations to be minor and to impact only four districts. Revising the
plan to keep Grove City, Jackson Township, and Copley Township intact would
affect fewer than 200 residents and would not cause any of these districts to be
overpopulated or underpopulated. This means that the commission can repair these
defects in isolation, without affecting any other districts.
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{¶ 140} Having found a technical violation in the revised plan, we turn to
Article XI’s remedies provision. Section 9(D)(3)(a) provides that for “isolated”
violations of Section 2, 3, 4, 5, or 7, “the court shall order the commission to amend
the plan to correct the violation[s].” Article XI, Section 9(D)(3)(a), Ohio
Constitution. As a consequence, rather than invalidate the revised General
Assembly-district plan in its entirety, we would order the commission to amend the
revised plan to correct the improper division of municipalities and townships in
Districts 5, 10, 31, and 33.
F. Effects of Unmooring Review from the Plain Language of the Ohio
Constitution
{¶ 141} The parties ask this court to intervene in varying ways in the 2022
election process. The Bennett petitioners ask this court to stay or postpone the
deadline for filing candidacy petitions and declarations of candidacy for legislative
offices. The petitioners in League of Women Voters of Ohio v. Ohio Redistricting
Comm. (Supreme Court case No. 2021-1193) ask this court to direct the legislature
to adjust the election schedule. The commission requests that the court issue a
decision by February 11, 2022, or, alternatively, stay the issuance of a decision until
the 2022 general-election cycle is complete using the revised plan.
{¶ 142} The majority, as if existing in a vacuum, asserts that the General
Assembly has the “authority to ease the pressure * * * by moving the primary
election.” Majority opinion at ¶ 66. But such a response belies how the 2022 Ohio
election cycle got to this chaotic state; four members of the Supreme Court of Ohio
brought us to this juncture—and no one else.
{¶ 143} Unmoored from the plain language of the Ohio Constitution, the
majority has now cast uncertainty and confusion into the 2022 election cycle. By
distorting and misrepresenting the plain language of Article XI, Section 9(B), the
majority uses a provision that is not judicially enforceable to embolden and
empower itself to strike down any redistricting map that the commission adopts. It
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is now what suits the majority’s fancy that determines what is an “attempt” to
“primarily * * * favor or disfavor a political party,” Section 6(A), and to
“correspond closely to the statewide preferences of the voters of Ohio,” Section
6(B). And the path of standardless judging that the majority has chosen for Ohio
leads to its decision today—shifting sands rather than the rule of law, a morass
surely to follow. Detached from constitutional limitations, the majority uses ad hoc
rules to usurp the authority of an independent constitutional body.
{¶ 144} The guidepost of judicial modesty should be recognizing that the
text of a constitutional provision is supreme. When legislative, executive, or
administrative bodies ignore the text of the Constitution that sets the limitation of
their powers, the judiciary stands at the ready to apply the text of the Constitution
to restore balance. But when it is the judiciary that unmoors itself from the text of
the Constitution, the rule of law itself is at stake.
G. History Repeats Itself
{¶ 145} It bears repeating that four members of this court believe it
reasonable to commandeer the work of the redistricting commission, and they will
continue to reject any General Assembly-district plan until they get the plan they
want. The majority stops just short of drawing the new map themselves or directing
the commission to adopt one of the plans that has been placed in evidence only
because even they recognize that that is expressly forbidden by Article XI, Section
9(C)(1) and (2). Nonetheless, one could not blame the commission for wanting to
yield the map-drawing software to the majority and to let them draw the map,
because that is what is happening here, albeit by way of a series of orders saying to
try again.
{¶ 146} One would also think that after the DeRolph debacle, this court
would have learned its lesson not to demand that independent constitutional bodies
heed this court’s ill-defined favor. In DeRolph v. State, 78 Ohio St.3d 193, 677
N.E.2d 733 (1997) (“DeRolph I”), this court declared Ohio’s system of public-
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school funding unconstitutional. In DeRolph I, this court required the General
Assembly to create a new public-school-funding system, but it provided no specific
guidance on how to achieve a constitutional system. Three years later, after several
changes by the General Assembly, this court declared that the system was still
unconstitutional. See DeRolph v. State, 89 Ohio St.3d 1, 728 N.E.2d 993 (2000)
(“DeRolph II”). Again, without giving any specific guidance, this court concluded
that “even more is required” to create a constitutional public-school-funding
system. Id. at 36. By the third DeRolph case, this court had decided that saying
“not good enough” was not good enough, and it attempted to institute some
parameters for the legislature to follow. See DeRolph v. State, 93 Ohio St.3d 309,
754 N.E.2d 1184 (2001) (“DeRolph III”). One parameter required the removal of
wealth screens from the basic funding formula. What some justices expected to
have a price tag of approximately $400 million actually would have cost the state
$1.2 billion. See Candisky, Keep funding fix, group says, Columbus Dispatch
(Sept. 25, 2001) 1B. On reconsideration, the court explained that it had relied on
faulty information contained in a brief: “Both sides acknowledge in their
memoranda in support of and opposition to the motion for reconsideration that the
evidence and one of the briefs filed in DeRolph III contained inaccurate analysis
regarding the cost of funding the base cost formula with wealth screens eliminated.”
DeRolph v. State, 93 Ohio St.3d 628, 631, 758 N.E.2d 1113 (2001).
{¶ 147} How soon the majority forgets that it relied on Dr. Rodden’s plan
in the first iteration of these cases, when the expert admitted that his plan was
unconstitutional after this court’s opinion had been published. That plan that the
majority called “good enough” had predicate violations of Sections 2, 3, 4, 5, and
7 and, even then, did not meet the majority’s new concept of proportionality. But
the majority nonetheless bets the ranch on its reliance on its chosen experts—or at
least what it cherry-picks from their evidence—even though there seems to be little
proof that adopting a General Assembly-district plan in accord with its holdings in
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League of Women Voters and today is remotely possible given the realities of
Ohio’s political geography. With only ten days to adopt a new plan, there will not
be time for a DeRolph-type motion for reconsideration to set the majority straight.
III. CONCLUSION
{¶ 148} The objections filed in this court are, for the most part, not well
taken. The directory requirements of Article XI, Sections 1 and 6 are not judicially
enforceable. Regardless, the Ohio Redistricting Commission complied with
Sections 6(A) and 6(B) in adopting the revised plan, and any failure to comply with
Section 1(C) was caused by this court’s improper order directing the commission
to adopt a new plan within ten days. The revised plan does not comply with Section
3(D)(3), but those isolated violations may be corrected by directing the commission
to amend the revised plan without affecting its overall validity. For these reasons,
we dissent from the majority’s decision to invalidate the revised plan.
_________________
FISCHER, J., dissenting.
{¶ 149} I must respectfully dissent. Like the previous majority opinion in
these cases, this second majority opinion does not follow the text of the Ohio
Constitution. As stated in my previous dissent, I would not reach the merits of the
cases. The majority opinion again attempts to exercise authority not granted to this
court by the state Constitution. See League of Women Voters of Ohio v. Ohio
Redistricting Comm., __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, ¶ 279
(Fischer, J., dissenting).
{¶ 150} Because, pursuant to Article XI, Section 8(C)(1)(a) of the Ohio
Constitution, at least two commission members representing each of the two largest
political parties did not vote for the General Assembly–district plan currently before
this court, we are once again faced with a four-year plan, which, as petitioners have
repeatedly conceded, see id. at ¶ 280 (Fischer, J., dissenting), is subject to the
impasse provisions of Article XI, Section 8. By not following the wording of the
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Ohio Constitution in Article XI, Section 8(C)(1)(a), the majority opinion impinges
upon the citizens’ right to vote in two General Assembly elections according to the
terms of Article XI.
{¶ 151} Article XI, Section 8 sets forth a precise constitutional roadmap for
how this state shall proceed in redistricting Ohio House and Ohio Senate districts
when the Ohio Redistricting Commission sets forth a four-year plan. By not
following these constitutionally required “directions,” the first majority opinion in
these cases led this state the wrong way down a one-way street, undermining and
subverting the purpose of the constitutional roadmap. Today, instead of turning
around and heading back in the proper constitutional direction imposed by 71
percent of Ohio’s voters in 2015, the majority opinion doubles down and continues
driving the state unconstitutionally in the wrong direction, toward a brick wall
comprising both a panoply of election-related deadlines and a potential
constitutional crisis.
{¶ 152} The parties all acknowledge that Article XI, Section 8 applies
because the redistricting commission has adopted a four-year plan upon an impasse.
The applicable provision, Section 8(C)(1)(a), makes clear that Section 9 does not
apply. In fact, Section 9 is not mentioned in that provision, unlike in the provision
addressing a ten-year plan, Section 8(B), or in the provision addressing a six-year
plan, Section 8(C)(1)(b):
(B) If the commission adopts a final general assembly
district plan in accordance with division (A)(3) of this section by the
vote required to adopt a plan under division (B)(3) of Section 1 of
this article, the plan shall take effect upon filing with the secretary
of state and shall remain effective until the next year ending in the
numeral one, except as provided in Section 9 of this article.
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(C)(1)(a) Except as otherwise provided in division (C)(1)(b)
of this section, if the commission adopts a final general assembly
district plan in accordance with division (A)(3) of this section by a
simple majority vote of the commission, and not by the vote required
to adopt a plan under division (B)(3) of Section 1 of this article, the
plan shall take effect upon filing with the secretary of state and shall
remain effective until two general elections for the house of
representatives have occurred under the plan.
(b) If the commission adopts a final general assembly district
plan in accordance with division (A)(3) of this section by a simple
majority vote of the commission, and not by the vote required to
adopt a plan under division (B) of Section 1 of this article, and that
plan is adopted to replace a plan that ceased to be effective under
division (C)(1)(a) of this section before a year ending in the numeral
one, the plan adopted under this division shall take effect upon filing
with the secretary of state and shall remain effective until a year
ending in the numeral one, except as provided in Section 9 of this
article.
(Emphasis added.) Ohio Constitution, Article XI, Section 8. A four-year plan does
not constitutionally come before this court, because there are no Section 9
exceptions in the Constitution’s text in Section 8(C)(1)(a), as Article XI was
designed to keep this court out of a four-year-plan dispute. By adjudicating this
dispute without the state Constitution’s calling upon this court to do so, the two
majority opinions have created the exact issues and problems that this court now
faces in these cases upon their return.
{¶ 153} In doing so, the majority opinion is seemingly more interested in
making policy than enforcing the Constitution’s text as written. The majority
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opinion outlines a policy preference for a specific type of plan/map that the
Constitution does not require. Under this state’s Constitution, specifically Article
XI, that policy choice must be made by the Ohio Redistricting Commission (a
constitutionally created entity), not this court (a separately created constitutional
institution).
{¶ 154} While I still conclude that we do not have the constitutional
authority to review this four-year plan, see League of Women Voters of Ohio, __
Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, ¶ 280-301 (Fischer, J., dissenting),
because the majority opinion does review the plan, I am forced to respond, to an
extent, on the merits, as I was forced to do in State v. Gonzales, 150 Ohio St.3d
276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 24, 29 (Fischer, J., concurring in part and
dissenting in part), and State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83
N.E.3d 883, ¶ 51 (Fischer, J., concurring in part and dissenting in part).
{¶ 155} Notably, Article XI, Section 6(B) of the Ohio Constitution uses the
term “favor”—not “substantially favor,” “significantly favor,” or “assuredly
favor.” The Constitution does not set forth when a plan crosses the threshold to
having been drawn “primarily to favor” a political party. See Ohio Constitution,
Article XI, Section 6(A). The majority opinion evinces a desire to create a
requirement—one not found anywhere in Article XI—that a political party be
guaranteed to have (or that a political party not be guaranteed to have) a certain
number of seats in the Ohio House and Ohio Senate. Not only does the majority
opinion seek to create a requirement regarding the number of seats, it also implies
a requirement that the plan meet certain percentage thresholds, which are also not
found in Article XI. The Ohio Supreme Court should not, and lacks any
constitutional authority to, determine winners and losers of elections, but this
majority opinion creates that authority without supporting constitutional text. In
finding the two four-year plans adopted by the commission unconstitutional for the
reasons set forth in the majority opinions, this court is attempting to do just that—
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determine winners and losers of elections—which, again, it is not permitted to do.
By effectively ordering the commission to adopt a plan meeting very specific
criteria not set forth in the Ohio Constitution, the majority opinion is effectively
and unconstitutionally usurping authority over creating a plan. In doing so, the
majority opinion once again breaches the separation-of-powers principles inherent
in the Ohio Constitution. See League of Women Voters of Ohio at ¶ 339 (Fischer,
J., dissenting).
{¶ 156} As explained in the first dissenting opinion herein, in disregarding
the separation-of-powers principles, the majority opinion sets up another de facto
DeRolph situation. Dissenting opinion of Kennedy and DeWine, JJ., ¶ 146, citing
DeRolph v. State, 78 Ohio St.3d 193, 677 N.E.2d 733 (1997); DeRolph v. State, 89
Ohio St.3d 1, 728 N.E.2d 993 (2000); and DeRolph v. State, 93 Ohio St.3d 309,
754 N.E.2d 1184 (2001). By reaching beyond this court’s authority in declaring
the two redistricting plans unconstitutional, the majority opinion creates a
constitutional crisis within the state government. The unconstitutional approach of
the majority opinion continues to undermine this court’s independence,
impartiality, and reputation for integrity.
{¶ 157} The bottom line is obvious. If the majority opinion had followed
the specific wording of Article XI, Section 8, which logically follows from the rest
of the text of Article XI, this court would: (1) be abiding by and respecting the
constitutional requirements and structure of Article XI, (2) not be interfering in
Ohioans’ voting rights, (3) not be creating unauthorized deadlines for the Ohio
Redistricting Commission, and (4) not be forcing the General Assembly to alter
candidate nominating laws. Moreover, this dispute would be dealt with after two
more General Assembly elections—as set forth in Article XI, Section 8(C)(1)(a)’s
requirement that four-year plans “shall remain effective until two general elections
for the house of representatives have occurred under the plan.” (Emphasis added.)
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{¶ 158} Moreover, as noted in my previous dissenting opinion in these
cases, League of Women Voters of Ohio, __ Ohio St.3d __, 2022-Ohio-65, __
N.E.3d __, at ¶ 340, and as acknowledged in the majority opinion, majority opinion
at ¶ 29, the standard of proof in these cases is beyond a reasonable doubt.
{¶ 159} Petitioners have not reached that high standard as a matter of fact
or of law. The first dissenting opinion contains a detailed analysis supporting the
conclusions that the plan currently before us was not drawn primarily to favor or
disfavor a political party under Article XI, Section 6(A) and that the commission
attempted to comply with Article XI, Section 6(B). This reasoned analysis raises
more than a reasonable doubt as to whether, under the facts currently before us, the
commission failed to comply with Article XI, Section 6. Thus, the facts before us
show a highly and closely contested case in which neither side has carried the day.
Petitioners, who have the heavy burden, could not carry a clear-and-convincing
burden nor meet a preponderance standard and thus can never reach and carry a
beyond-a-reasonable-doubt burden. Because petitioners have not satisfied the
undisputed burden of proof in these cases of beyond a reasonable doubt, this court
cannot invalidate the plan on this basis, although it purports to do so.
{¶ 160} As detailed in the first dissenting opinion, the evidence submitted
shows only a few technical problems that are within this court’s authority to
address, assuming this court has any authority at all at this time in these cases.
Those technical flaws could easily be corrected by the commission (and, notably,
by February 11, 2022, the date on which respondents assert that House and Senate
districts must be finalized in order for the election process to proceed on schedule).
By moving beyond those limited technical problems and invalidating the entire
plan, in an unconstitutional attempt to impose its policy decisions upon the Ohio
Redistricting Commission, the majority opinion directly impinges upon Ohioans’
right to vote.
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{¶ 161} The majority opinion forces its policy viewpoints on a
constitutional institution created by 71 percent of the voters of Ohio, violates the
separation-of-powers principles inherent in the Ohio Constitution, and violates
long-standing Ohio Supreme Court case law that proof of a constitutional violation
in this situation must be shown beyond a reasonable doubt; therefore, it undermines
this court’s independence, impartiality, and integrity. For these reasons, I must
respectfully dissent.
_________________
ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey;
American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and
Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González,
Juliana Goldrosen, David Denuyl, L. Brady Bender, Alex Thomson, Anupam
Sharma, and Yale Fu, for petitioners in case No. 2021-1193.
McTigue, Colombo & Clinger, L.L.C., Donald J. McTigue, and Derek S.
Clinger; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Jyoti Jasrasaria,
and Spencer W. Klein, for petitioners in case No. 2021-1198.
Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A.
Sutherland, Ben R. Fliegel, Brad A. Funari, and Danielle L. Stewart; and Brennan
Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij
Rudensky, Michael Li, Harry Black, and Ethan Herenstein, for petitioners in case
No. 2021-1210.
Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, and
Ashley Merino, special counsel to Attorney General Dave Yost, for respondent
Ohio Redistricting Commission.
Senator Vernon Sykes and House Minority Leader Allison Russo, pro se.
_________________
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