Adams v. DeWine

• Decision Date: 14 January 2022
• Docket Number: s. 2021-1428,2021-1449
• Citation: 167 Ohio St.3d 499,195 N.E.3d 74
• Parties: ADAMS et al. v. DEWINE, Governor, et al. League of Women Voters of Ohio et al. v. Ohio Redistricting Commission et al.
• Court: Ohio Supreme Court

167 Ohio St.3d 499
195 N.E.3d 74

ADAMS et al.
v.
DEWINE, Governor, et al.

League of Women Voters of Ohio et al.
v.
Ohio Redistricting Commission et al.

Nos. 2021-1428
2021-1449

Supreme Court of Ohio.

Submitted December 28, 2021
Decided January 14, 2022.

McTigue & Colombo, L.L.C., Donald J. McTigue, and Derek S. Clinger, Columbus; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Aria C. Branch, Jyoti Jasrasaria, Spencer W. Klein, and Harleen K. Gambhir, for petitioners in case No. 2021-1428.

ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey ; American Civil Liberties Union, and Julie A. Ebenstein ; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Cambridge, David Denuyl, Joshua González, Juliana Goldrosen, James Smith, L. Brady Bender, Alex Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1449.

Dave Yost, Attorney General, and Bridget C. Coontz, Michael A. Walton, and Julie M. Pfeiffer, Assistant Attorneys General, for respondent Ohio Secretary of State Frank LaRose.

Nelson Mullins Riley & Scarborough, L.L.P., Phillip J. Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins ; and Taft Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson, Cincinnati, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp.

Chris Tavenor, urging granting of relief for amicus curiae, Ohio Environmental Council.

Donnelly, J.

195 N.E.3d 76

167 Ohio St.3d 499

{¶ 1} In our representative democracy, the power rests at all times with the people. Their power is never more profound than when it is expressed through their vote at the ballot box. Those whom the people elect to represent them are given transitory authority to discharge their responsibilities under the Constitutions and laws of the United States and the state of Ohio, but the true power is expressed by the people when they exercise their right to vote on what Walt Whitman celebrated as "America's choosing day," when the heart of it is not in the chosen but in the act of choosing. Walt Whitman, Election Day, November, 1884 , in Leaves of Grass 391 (1891-1892 Ed.).

{¶ 2} 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. Its singular allure is that it locks in the controlling party's political power while locking out any other party or executive office from serving as a check and balance to power. One avaricious proponent of congressional redistricting and gerrymandering declared redistricting "a great event," proclaiming gleefully: "Redistricting is like an election in reverse! Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters!" Miles Parks, Redistricting Guru's Hard Drives Could Mean Legal, Political Woes for GOP (June 7, 2019), https://www.npr.org/2019/06/06/730260511/redistricting-gurus-hard-drives-could-mean-legal-political-woes-for-gop (accessed Jan. 3, 2022) [https://perma.cc/Q4WS-2VK2] (statements of Thomas Hofellor).

167 Ohio St.3d 500

{¶ 3} Demanding change following Ohio's 2011 reapportionment of its state legislative and congressional districts, Ohio voters overwhelmingly voted to impose constraints on the government's ability to draw districts based on partisan gerrymandering, amending Article XI of the Ohio Constitution in 2015 for the drawing of state legislative districts, see Ohio Secretary

195 N.E.3d 77

of State, Statewide Issue History , https://www.ohiosos.gov/elections/election-results-and-data/historical-election-comparisons/statewide-issue-history/ (accessed Jan. 3, 2022), and adopting Article XIX of the Ohio Constitution in 2018 for the drawing of congressional districts, see Ohio Secretary of State, 2018 Official Election Results , https://www.ohiosos.gov/elections/election-results-and-data/2018-official-elections-results/ (accessed Jan. 3, 2022) (follow "Summary-Level Official Results for 2018 Primary Election–Statewide Issues" hyperlink). The adoption of these amendments to the Ohio Constitution made it unequivocally clear that more of the same was not an option.

{¶ 4} Despite the adoption of Article XIX, the evidence in these cases makes clear beyond all doubt that the General Assembly did not heed the clarion call sent by Ohio voters to stop political gerrymandering. Conducting business as usual with no apparent concern for the reforms contemplated by Article XIX, the General Assembly enacted 2021 Sub.S.B. No. 258, which passed by a simple majority and was signed into law by Governor Mike DeWine on November 20, 2021. The bill resulted in congressional districts in which undue political bias is—whether viewed through the lens of expert statistical analysis or by application of simple common sense—at least as if not more likely to favor Republican candidates than the 2011 reapportionment that impelled Ohio's constitutional reforms. The petitioners in the two cases before us specifically allege that the congressional-district plan violates Article XIX, Section 1(C)(3)(a) of the Ohio Constitution, which prohibits the General Assembly from adopting by a simple majority a congressional-district plan that "unduly favors or disfavors a political party or its incumbents," and Section 1 (C)(3)(b), which prohibits the General Assembly from "unduly split[ting] governmental units."

{¶ 5} We hold that the congressional-district plan is invalid in its entirety because it unduly favors the Republican Party and disfavors the Democratic Party in violation of Article XIX, Section 1(C)(3)(a). We also hold that the plan unduly splits Hamilton, Cuyahoga, and Summit Counties in violation of Section 1 (C)(3)(b). We order the General Assembly to adopt a new congressional-district plan that complies in full with Article XIX of the Ohio Constitution.

I. BACKGROUND

A. Overview of the congressional-redistricting process

{¶ 6} In 2018, the General Assembly passed a joint resolution to amend the Ohio Constitution and enact Article XIX, which would establish a process and

167 Ohio St.3d 501

standards for congressional redistricting. 2018 Sub.S.J.R. No. 5. The General Assembly previously had enacted congressional-district plans by bill, without any guidance from the Ohio Constitution. When the initiative was placed on the ballot in 2018, the ballot language informed voters that the proposed amendment would, among other things:

• Require the General Assembly or the Ohio Redistricting Commission to adopt new congressional districts by a bipartisan vote for the plan to be effective for the full 10-year period[; and]

• Require that if a plan is adopted by the General Assembly without significant bipartisan support, it cannot be effective for the entire 10-year period and must comply with explicit anti-gerrymandering requirements.

195 N.E.3d 78

Ohio voters overwhelmingly voted in favor of adopting the amendment. See Ohio Secretary of State, 2018 Official Election Results.

{¶ 7} In 2019—before Article XIX became effective—a panel of federal judges declared Ohio's 2011 congressional-district plan an unconstitutional partisan gerrymandering, finding that it was designed to reliably elect 12 Republican representatives and 4 Democratic representatives as Ohio's 16-member delegation to the United States House of Representatives. Ohio A. Philip Randolph Inst. v. Householder , 373 F.Supp.3d 978, 994-995 (S.D.Ohio 2019). But later that year, the Supreme Court of the United States held that partisan-gerrymandering claims present political questions beyond the reach of federal courts, Rucho v. Common Cause , 588 U.S. ––––, ––––, 139 S.Ct. 2484, 2506-2507, 204 L.Ed.2d 931 (2019), and vacated the judgment in Ohio A. Philip Randolph Inst. , see Householder v. Ohio A. Philip Randolph Inst. , ––– U.S. ––––, 140 S.Ct. 101, 205 L.Ed.2d 1 (2019), and Chabot v. Ohio A. Philip Randolph Inst. , ––– U.S. ––––, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019).

1. Article XIX, Section 1 : A new process for congressional redistricting

{¶ 8} Article XIX, Section 1 sets forth a potential three-step process for enacting or adopting a congressional-district plan. First, by September 30 of any year ending in the numeral one after the release of the federal decennial census, the General Assembly must pass a district plan in the form of a bill by a vote of at least three-fifths of the members of each house, including the affirmative vote of at least one-half of the members of each of the two largest political parties. Ohio Constitution, Article XIX, Section 1 (A). If the General Assembly passes such a plan, the plan remains effective for ten years. See id.

{¶ 9} Second, if no district plan is passed by September 30, the Ohio Redistricting Commission must adopt a plan by October 31. Id. at Section 1 (B).

167 Ohio St.3d 502

The plan must be approved by at least four of the seven members of the commission, including at least two members from each of the two largest political parties. Id. If the commission adopts a plan in this way, the plan remains effective for ten years. Id.

{¶ 10} Third, if the commission fails to adopt a plan by October 31, the General Assembly must pass a district plan in the form of a bill by November 30. Id. at Section 1 (C)(1). If the General Assembly passes the plan by a vote of at least three-fifths of each house, including at least one-third of the members of each of the two largest political parties, the plan remains effective for ten years. Id. at Section 1 (C)(2). If the General Assembly passes the plan by only a simple majority in each house, the plan remains effective for four years. Id. at Section 1 (C)(3).

{¶ 11} Of particular relevance in these cases, if the General Assembly passes a plan...