Parker v. Ohio

*1102OPINION AND ORDER

BOYCE F. MARTIN, Jr., Chief Circuit Judge.

Plaintiffs bring an action for declaratory and injunctive relief. They seek the invalidation of the 2001 apportionment plan for election of the Ohio General Assembly. They allege violations of Section 2 of the Voting Rights Act (as amended, at 42 U.S.C. § 1973) and of the Fourteenth and Fifteenth Amendments to the United States Constitution. These plaintiffs allege that minority voters, specifically African-Americans, were precluded from achieving political efficacy by the new apportionment plan.

The plaintiffs' are voters residing in the challenged districts and are generally those persons protected under the Voting Rights Act. Defendants Taft, Blackwell, Petro, and Householder are elected officials of the State of Ohio and members of the Ohio Apportionment Board, by virtue of their elected positions.1 Plaintiffs claim that the Apportionment Board drafted an apportionment plan diluting the ability of Ohio’s African-Americans to elect candidates of their choice. Specifically, the plaintiffs challenge House Districts 19, 20, 21, 25, 26, 27, 28, 29, 31, 82, 33, and 60. Plaintiffs also challenge Senate Districts 5 and 15.

Under the Ohio Constitution, decennially, after the federal census, Ohio is subdivided into ninety-nine state House of Representatives districts. According to the ratio of Ohio’s population to those ninety-nine districts, the ideal legislative district size is 114,678. A variance of five percent, or 5,733, is permissible. As a result, districts vary from 120,411 to 108,945.

According to the 2000 census, Ohio is the seventh most populous state in the Union with 11,353,140 people. African-Americans comprise eleven and a half percent of the population, at 1,305,611 people. The African-American population of Ohio lives predominantly in the state’s most urban counties, including those at issue in this litigation.

The legislative provisions governing the Apportionment Board are found in Article X of the Ohio Constitution. The Apportionment Board consists of the Governor (Taft), the Secretary of State (Blackwell), the Auditor of State (Petro), and two persons chosen by legislative leaders. In this instance, Ohio Speaker of the House Householder was chosen, as was State Senator Herington, who is a plaintiff in this case.

Following an initial meeting, at which the Board appointed Taft as Chairman and Scott P. Borgemenke as Secretary, the “Majority Members” of the Board directed Borgemenke to draft and submit a new apportionment plan on their behalf. The Majority Members (Taft, Blackwell, Petro and Householder) were those from the party holding a majority in the state houses, the Republican party. Borgemenke was directed to submit a plan that complied with the Ohio Constitution, the United States Constitution, and the Voting Rights Act. Defendants maintain that the Ohio Constitution was the predominant basis for Borgemenke’s plan. He submitted the plan to the Board, as required by the rules, on September 24, 2001. The Ohio Republican Party, Plaintiffs Senator Leigh Herington and Ohio House Minority Leader Dean E. DePiero, and the NAACP also timely submitted plans for reapportionment.

The Board reconvened on both September 26 and October 1 to consider the plans *1103and to hear testimony and other evidence on the respective plans. At the October 1 meeting, the Board adopted a series of technical changes to the Borgemenke plan, as well as a series of changes requested by Democratic members of the General Assembly. The Apportionment Board then adopted the Borgemenke plan as amended.

This suit arises out of that plan. Plaintiffs claim that the African-American vote, in Ohio as a whole and more specifically in Franklin, Hamilton, Mahoning, and Montgomery counties, has been diluted by the new apportionment plan.

In making the case against the defendants, plaintiffs must first show that they have standing to sue. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations, quotation marks, and footnote omitted), the Supreme Court held that the

irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical ... Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... traee[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

In United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995), the Supreme Court had an opportunity to revisit the standing issue in a way instructive to the question before us today. The Comb said, “we have repeatedly refused to recognize a generalized grievance against allegedly illegal governmental conduct as sufficient for standing to invoke the federal judicial power.” Id. at 743, 115 S.Ct. 2431. The Court went on to say, “The rule against generalized grievances applies with as much force in the equal protection context as in any other.” Id.

Because of this rule, plaintiffs, in cases such as this one, who challenge a state’s reapportionment plan on equal protection grounds claiming the plan has been racially gerrymandered, must show that they live in a district so affected. The Hays Court recognized that “Demonstrating the individualized harm our standing doctrine requires may not be easy in the racial gerrymandering context, as it will frequently be difficult to discern why a particular citizen was put in one district or another.” Id. at 744, 115 S.Ct. 2431. If a plaintiff can argue that he resides in a district created in violation of his rights to equal protection and on the basis of race, then that plaintiff clearly has standing. See id. at 745, 115 S.Ct. 2431. The Court went on, however, to say, “On the other hand, where a plaintiff does not live in such a district, ... any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference .... [T]hat plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.” Id.; see also Bush v. Vera, 517 U.S. 952, 957-58, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996).

The defendants assert that some of the plaintiffs lack standing to sue, arguing that there is a problem with standing in House Districts 19, 21, 26, 32, and 33. The defendants argue that, respectively, plaintiffs Stearns, Parker, Beatty, Mallory, and Yates, do not actually challenge the constitutionality of the reapportionment plan as to their own districts. Because the pur*1104pose of this litigation is to resolve as fully as possible the question of the constitutionality of the 1991 Ohio reapportionment plan, for the purpose of this decision, we presume that all of the plaintiffs have standing to challenge the plan.

We turn now to the heart of the claim of vote dilution. The first of the plaintiffs’ claims arises from the Voting Rights Act. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25, (1986), the Supreme Court articulated three preconditions to a cognizable vote-dilution claim under Section 2 of the Voting Rights Act. The Sixth Circuit has described these preconditions as “a set of three necessary, but not sufficient, conditions for a plaintiff to succeed in a Voting Rights Act claim.” Mallory v. Ohio, 173 F.3d 377, 380 (6th Cir.1999). Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752 (internal citations omitted), states

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.... Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.

These preconditions have been used since Gingles to inform and drive the debate about racially-motivated redistricting. Although Gingles pertained to multi-member districts, the Supreme Court extended its reasoning and holding to single-member districts in Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (“It would be peculiar to conclude that a vote-dilution challenge to the (more dangerous) multimember district requires a higher threshold showing than a vote-fragmentation challenge to a single-member district.”).

The defendants first argue that the plaintiffs have failed to carry their burden on the first Gingles precondition: showing that African-American populations in the districts at issue are sufficiently large and geographically compact to constitute a majority. As the defendants point out, the plaintiffs have failed to show in any challenged district that the district might be redrawn to constitute a majority/minority district, in a way consistent with Article XI of the Ohio Constitution.

The plaintiffs argue that the first Gingles precondition is not fully applicable here because they are merely seeking “influence districts” and the prevention of influence-dilution. An influence district is one where a distinct group cannot form a majority, but they are sufficiently large and cohesive to effectively influence elections, getting their candidate of choice elected. The plaintiffs cite to Footnote 2 of Uno v. City of Holyoke, 72 F.3d 973, 979 (1st Cir.1995) (parallel citations omitted), as support for their argument that the first Gingles precondition is inapplicable to influence claims:

This precondition will have to be reconfigured to the extent that the courts eventually validate so-called influence dilution claims. See Voinovich v. Quilter, 507 U.S. 146, 156-160, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (discussing treatment of claims brought on behalf of persons who constitute a potentially influential bloc, but less than the majority, within the relevant electorate, and raising prospect that the first Gingles precondition may have to be “modified or eliminated”). The lower courts are divided on the subject, compare Armour v. Ohio, 775 F.Supp. 1044, 1052 *1105(N.D.Ohio 1991) (three-judge panel) (recognizing influence dilution claim) with McNeil v. Springfield Park Dist., 851 F.2d 937, 947 (7th Cir.1988) (rejecting influence dilution claim), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204, (1989), and the Supreme Court has declined on four occasions to decide whether such claims are cognizable under VRA § 2. See [Johnson v.] De Grandy, 512 U.S. [997, 1008-9, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) ] ...; Voinovich, 507 U.S. at 156-160, 113 S.Ct. 1149 ...; Growe v. Emison, 507 U.S. 25, 41 n. 5, 113 S.Ct. 1075, 122 L.Ed.2d 388 ..., Gingles, 478 U.S. at 46-47 n. 12, 106 S.Ct. 2752.

While plaintiffs are correct that the First Circuit and the Supreme Court have not yet ruled on influence districts, we are bound by precedent in this circuit. In Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir.1998), the Sixth Circuit held, “[W]e do not feel that an ‘influence’ claim is permitted under the Voting Rights Act.” See also O’Lear v. Miller, 222 F.Supp.2d 862 (E.D.Mich.2002). Because influence claims are not cognizable in our circuit and the plaintiffs have failed to establish the first Gingles precondition, we see no need to discuss whether or not plaintiffs satisfy the second and third preconditions. The plaintiffs’ claim under Section 2 of the Voting Rights Act must fail.

We turn to plaintiffs’ claims under the Fourteenth and Fifteenth Amendments. A Fourteenth Amendment claim is distinct from a vote dilution claim, as the Supreme Court stated in Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (internal citations omitted):

Shaw [v. Reno, 509 U.S. 630, 652, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) ] recognized a claim ‘analytically distinct’ from a vote dilution claim.... Whereas a vote dilution claim alleges that the State has enacted a particular voting scheme as a purposeful device ‘to minimize or cancel out the voting potential of racial or ethnic minorities,’an action disadvantaging voters of a particular race, the essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts.

In order to assert a successful claim under the Fourteenth Amendment, plaintiffs must show that race was a predominant factor in drawing district lines in the reapportionment process. As Justice O’Connor stated in Shaw, “The Equal Protection Clause provides that ‘[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const., Arndt. 14, § 1. Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race.” 509 U.S. at 642, 113 S.Ct. 2816. For the plaintiffs to succeed, they must carry the burden of showing, “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller, 515 U.S. at 916, 115 S.Ct. 2475. The Supreme Court clarified this showing, id. (citing Shaw):

[A] plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can ‘defeat a claim that a *1106district has been gerrymandered on racial lines.’

The defendants argue that the reapportionment plan was derived through race-neutral principles, those provided by the Ohio Constitution, specifically Article XI, which requires that political subdivisions generally may not be split. OH CONST. Art. XI, § 7. Defendant Borgemenke testified that the predominant basis for the decisions made in drafting the new apportionment plan was this article of the Ohio Constitution.

As the Supreme Court said in Miller, “Although race-based decisionmaking is inherently suspect, until a claimant makes a showing sufficient to support that allegation the good faith of a state legislature must be presumed.” 515 U.S. at 915, 115 S.Ct. 2475 (internal citations omitted). The plaintiffs maintain they have made a sufficient showing of race-based decision-making with their evidence, but the burden to establish that race was the predominant factor at work in the redistricting is high. See Easley v. Cromartie, 532 U.S. 234, 240-1, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001).

The plaintiffs have presented no evidence as to the districts’ shapes or contiguity, nor have they presented sufficient evidence of impermissible legislative purpose. The plaintiffs rest on two pieces of evidence. First, they claim that a phone conversation between the chief of staff to Defendant Speaker Householder and an unsuccessful Republican candidate for the State House demonstrates the predominance of race as a factor in the reapportionment plan. The chief of staff made a statement, unwittingly recorded, about having moved 13,000 African-Americans from House District 28 and having added 14,000 Republicans. The chief of staff was attempting to convince the unsuccessful Republican candidate to withdraw from a primary contest against the Republican Caucus-endorsed candidate. Even though there were significant geographical changes in the configuration of District 28, there was no significant change in the African-American voting age population. Defendants argue that the chief of staff lied and that changes to the House Districts at issue are explained by them populations alone. The districts were unconstitutionally “light” or “heavy” in population, and municipalities were moved into new districts, consistent with the Ohio Constitution.

Second, the plaintiffs claim that the official reapportionment plan was never properly submitted to the NAACP for approval, instead being presented by a witness in the case, Johnson, who they claim had unfair and undisclosed biases in presenting the plan, because he was hired as a consultant to the Republican members of the Legislative Task Force.

These pieces of evidence are insufficient to show that the predominant factor in devising the redistricting plan was race. Because we must presume that the state acted in good faith until a sufficient showing is made otherwise, the plaintiffs’ Fourteenth Amendment claim fails.

Finally, we turn to the plaintiffs’ claim under the Fifteenth Amendment. The Supreme Court has stated, “This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, 'we never have held any legislative apportionment inconsistent with the Fifteenth Amendment.” Voinovich, 507 U.S. at 159, 113 S.Ct. 1149. To effectively make this claim, however, the plaintiffs need to show that the redistricting and reapportionment plan was intentionally discriminatory toward African-Americans. See id. As discussed in the context of the Fourteenth Amendment claim, the plaintiffs simply have not put forth sufficient evidence to establish that the State of Ohio, by its Apportionment Board, inten*1107tionally discriminated against citizens of Ohio on the basis of race. The plaintiffs’ Fifteenth Amendment claim must fail as well.

For the foregoing reasons, we find in favor of the defendants. All the judges agree as to this outcome, although they do so for different reasons. Those reasons are stated in their concurring opinions.

The Clerk is directed to enter judgment in favor of the defendants.

. For ease of identification, we will refer throughout this opinion to the plaintiffs as those who object to the reapportionment plan and to the defendants as those who created and support the reapportionment plan.