Quilter v. Voinovich

ORDER

On January 31, 1992, this Court filed its opinion and order holding that there is no legal mandate requiring the creation of majority-minority districts wherever possible in the 1991 Apportionment Plan for the Ohio General Assembly (the Plan). Furthermore, this Court found that the Apportionment Board had not conducted a totality of the circumstances analysis sufficient to establish a violation of the Voting Rights Act and justify the majority-minori*757ty districts delineated in the Plan. The Board was ordered to reconsider the Plan and either show justification under the totality of the circumstances test for the majority-minority districts or submit a revised plan.

On February 19, 1992, the Defendants submitted, inter alia, the Board’s Findings and Conclusions and what they termed a revised apportionment plan which, however, is identical to the Plan except for correction of “technical errors.” The Board’s Findings include a totality of the circumstances analysis.

After careful review, we find that the Board’s totality of the circumstances analysis contains only meager information that was not previously before this Court. Furthermore, the information is not of assistance in answering the “question whether the political processes are ‘equally open’ ”, nor does the analysis constitute the “searching practical evaluation of the ‘past and present reality’ ” contemplated by the legislative history of the 1982 amendments to the Voting Rights Act. S.Rep. No. 417, 97th Cong.2d Sess. 30, U.S.Code Cong. & Admin.News 1982, pp. 177, 208. Accordingly, the Board fails once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965. As noted in the Conclusion of our January 31, 1992 order and opinion, it has heretofore been unnecessary in these proceedings to reach the constitutional issues present, but we now proceed to decide that the plan as submitted is also violative of the Fifteenth Amendment of the United States Constitution. “[Ojnce a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan.” Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964). It is therefore incumbent on this court to enjoin any election for the Ohio General Assembly until a constitutional plan is submitted by the Special Master and approved by this court.1 Accordingly, the date of May 5, 1992 for the holding of the Ohio primary election is vacated to the extent that candidates for election to the General Assembly are concerned, and the appropriate election officials are enjoined and directed to cause such primary election to be held on June 2, 1992, provided, however, that on proper showing the court may provide an alternate date.

The plan herein above referenced marks the second time that the Apportionment Board has failed to meet the standards mandated by federal law even in the face of clear and unambiguous legal direction from this Court. In this situation it is concluded that exceptional circumstances exist which require the appointment of a Special Master to prepare an acceptable apportionment plan. The Court therefore hereby appoints Lawrence A. Kane, Jr., 1900 Chemed Center, 255 E. 5th St., Cincinnati, Ohio 45202, as such Special Master, for the purpose of submitting a plan which complies with federal and state law and this Court’s January 31 order and opinion. This appointment is made pursuant to Rule 53 of the Federal Rules of Civil Procedure *758and the master herein appointed is to be sworn to accept the responsibilities and obligations established therein. In addition, the special master is specifically authorized and empowered to employ an expert or experts versed in the subject area and such other expert and lay assistance as may be appropriate in the circumstances. Costs incurred shall be assessed against the State of Ohio.

IT IS SO ORDERED.

. The most explicit statement of the power to enjoin state elections appears in Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 201 n. 11, 92 S.Ct. 1477, 1486 n. 11, 32 L.Ed.2d 1 (1972). The three-judge district court found that the act apportioning the Minnesota legislature violated the Constitution, and accordingly, "enjoined the Secretary of State and the county auditors from conducting future elections under the Act, and appointed two Special Masters (a third was named later) to aid the court in formulating a new apportionment plan.” Id. at 191, 92 S.Ct. at 1481. The court-ordered plan reduced the number of state legislative districts from 67 to 35. Id. at 188, 92 S.Ct. at 1479.

Although the Court found that the district court erred in so drastically reducing the legislature’s size, id. at 199, 92 S.Ct. at 1485, the Court never questioned the power of the district court to reapportion the state legislature, id. at 195, 92 S.Ct. at 1483. The court’s opinion also never questioned the power of the district court to postpone the elections: "If time presses too seriously, the District Court has the power appropriately to extend the time limitations imposed by state law.” Id. at 201 n. 11, 92 S.Ct. at 1486 n. 11. On remand, the district court revised its court-ordered reapportionment plan and did extend the time limits. Beens v. Erdahl, 349 F.Supp. 97, 99-100 (D.Minn.1972).