Gonidakis v. LaRose
| Decision Date | 20 April 2022 |
| Docket Number | 2:22-cv-0773 |
| Parties | MICHAEL GONIDAKIS, et al., Plaintiffs, v. FRANK LAROSE, in his capacity as Ohio Secretary of State, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
BEFORE: THAPAR, Circuit Judge; MARBLEY, Chief District Judge and BEATON, District Judge.
The court delivered a PER CURIAM opinion in which THAPAR and BEATON, JJ., joined, and MARBLEY, C.J., joined in part. MARBLEY, C.J. (pp. 59-82), delivered a separate opinion dissenting in part.
State officials, not federal courts, draw state electoral districts. But what happens if states fail to do so-no elections? The U.S. Supreme Court has given a clear answer Federal courts must impose new maps to protect the right to vote. See Branch v. Smith, 538 U.S. 254, 260-62 (2003). But they must do so only as a last resort, after giving states every opportunity to carry out elections consistent with state law. See Growe v. Emison, 507 U.S. 25, 34 (1993).
That is where we find ourselves today. An Ohio statute mandates that primary elections occur in less than two weeks. And early voting has already begun for congressional and statewide primaries. But state-legislative candidates are not on those ballots because the State has not adopted a map of their districts.
Ohio's Constitution assigns responsibility for mapmaking to the Ohio Redistricting Commission, a body of seven executive and legislative officials. The Commission has approved four state-legislative maps. But the Ohio Supreme Court has rejected all of them as inconsistent with state constitutional requirements regarding proportionality and partisan favoritism. Each time, that court-constitutionally barred from imposing a map itself-has ordered the Commission to try again. And each time, the Commission's effort has failed to survive judicial review.
By now everyone agrees that legal and practical requirements preclude Ohio from holding a primary election for its state legislature on May 3, the date provided by statute. And the Ohio Supreme Court's most recent deadline for the Commission to craft a fifth map (which would be subject to a fifth round of litigation) falls after the so-called “drop dead” date of April 20. That is when every party to this litigation agrees a map would have to be in place for the state to conduct a primary that both complies with state election law and allows for an orderly general election in November.
Fearful that this time loop would nix the primary election entirely, a group of voters came to federal court and asked that we intervene to protect their right to vote in a primary election for state legislators. All parties agree federal law protects the right to vote in an election that is mandated by state law, and all parties agree that right would be violated if Ohio didn't hold a statelegislative primary. But we were summoned too late to ensure a May 3 primary for those seats. And the Commission was still drawing a fourth map when we were asked to intervene.
At that time, federalism and comity counseled that we sit tight and allow the state process to play out. And even today, we hope that the State can resolve the deadlock. But the Supreme Court has told us that at some point we must intervene to protect the right to vote.
To determine when that would be, this three-judge district court heard undisputed testimony that Ohio law requires 90 days for pre-election steps (candidate filings, residency requirements, overseas ballot distribution, early voting, and the like) plus another two weeks for county boards to reprogram the system with a new map. That is the minimum amount of time the State needs, under current federal and state regulations, between adopting a new map and holding a primary election. We also heard testimony making clear that August 2-the date when Ohio holds special elections-is the last practicable date on which to conduct a primary election without disrupting the general election scheduled for November 8.
Putting these facts together, all parties agree that April 20 is the drop-dead date to choose a new map that can be implemented in time for a primary and general election. That date has come, but a new map has not. So now this court must select a map to ensure Ohioans may vote in a state-legislative election this year.
Among the options presented to us, the Commission's third map has one significant advantage over the others-a shorter timeline between selection and election. That is because the counties had already begun implementing that map when the Secretary of State told them to “press pause” after the Ohio Supreme Court rejected it on March 16. Because 80 of the 88 counties implemented Map 3 and “maintain a backup in their voter registration system, ” its drop-dead date is May 28-more than a month later than the others. See LaRose's Resp. to Second Mot. for Prelim. Inj. (DN 103) 11. Consistent with the U.S. Supreme Court's holdings in Growe and Branch, this remedy vindicates the federal right to vote while maximizing the time available to the State to exercise its responsibility to draw voting districts.
The Ohio Supreme Court's latest opinion also asked us to wait a bit longer. It surmised that either the Ohio legislature or this court could change Ohio's election laws to allow for a primary even later than August 2. That is only half right: Ohio's elected leaders might still approve a lawful map or change Ohio election laws and deadlines, and our choice of remedy is designed to give them still another chance to do so. But the record evidence makes clear that this court cannot wait any later than May 28 without jeopardizing the right to vote, overriding a host of state election laws and deadlines, and inviting the electoral chaos and confusion that the U.S. Supreme Court has repeatedly instructed lower courts to avoid. See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam). As of today, no map exists, uncertainty persists, and nothing ensures that a state-legislative election will happen at all. This court's intervention, however, can restore a lawful and orderly election by ensuring Ohio voters, candidates, and officials know the districts that will apply-at least as a last resort.
So we stay our hand until May 28. But if the State remains unable to implement its own valid map that satisfies federal law, then we must implement Map 3 to safeguard the rights of Ohio's voters. Handed a menu of unappetizing options, we defer ordering Map 3 as long as possible-a final pause in hope that Ohio finally approves a map that complies with federal and state law.
If the State fails to act, however, this timeline will ensure Ohioans can vote in the election that state law requires:
If there is any good news to come out of this litigation, it is this: The three judges on this panel agree on almost everything. We agree that the plaintiffs have standing, that Ohioans are entitled to have a primary, and that plaintiffs are entitled to a preliminary injunction. But most importantly, we all agree that the federal courts should serve as a last resort, not a first stop.
We only respectfully part ways on the ultimate remedy. Our colleague supports a map that the Commission rejected, and thus the Supreme Court never ruled on. We, on the other hand, choose a map that the Commission approved but the Ohio Supreme Court rejected. Admittedly, neither checks every box.
But on two dimensions-time and democratic accountability-we see Map 3 as the best option available. Start with time. Map 3 gives Ohio the best odds of resolving this crisis through its own processes. The dissent might view these additional five-and-a-half weeks as unlikely to bear fruit. But we remain optimistic that the Commission and the Ohio Supreme Court can set aside their differences and work together to find a solution. After all, a State-made solution, unlike ours, would last four or even ten years. And we are confident that not a single member of the Commission or the Ohio Supreme Court wants to run through this gauntlet again next spring.
Map 3 also is the better option when it comes to democratic accountability. Ohio's voters put the pen in the Commission's hands. Only they are authorized by Ohio's constitutional charter to draft an electoral map. By picking Map 3, we come closest to respecting that delegation of power.
In explaining our order, we divide the opinion in four parts. First, we trace the unusual and winding path that...
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