League of Women Voters of Ohio v. Ohio Redistricting Comm'n, 2021-1193

CourtUnited States State Supreme Court of Ohio
Writing for the CourtStewart, J.
Citation2022 Ohio 65
PartiesLeague 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.
Docket Number2021-1198,2021-1210,2021-1193
Decision Date12 January 2022

2022-Ohio-65

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.

Nos. 2021-1193, 2021-1198, 2021-1210

Supreme Court of Ohio

January 12, 2022


Submitted December 8, 2021

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Original Actions filed pursuant to Ohio Constitution, Article XI, Section 9.

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, Alexander Thomson, Anupam Sharma, James Hovard, and Yale Fu, for petitioners in case No. 2021-1193.

McTigue & Colombo, L.L.C., Donald J. McTigue, and Derek S. Clinger; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Aria C. Branch, 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.

Dave Yost, Attorney General, and Bridget C. Coontz, Julie M. Pfeiffer, and Michael A. Walton, Assistant Attorneys General, and Michael J. Hendershot, Deputy Solicitor, for respondents Ohio Governor Mike DeWine, Ohio Secretary of State Frank LaRose, and Ohio Auditor Keith Faber.

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

Ice Miller, L.L.P., Diane Menashe, and John Gilligan, for respondents Senator Vernon Sykes and House Minority Leader Emilia Sykes.

Thompson Hine, L.L.P., Stephanie M. Chmiel, and Mary E. Csarny, urging granting of relief for amicus curiae David Niven, Ph.D.

Andrew W. Garth, City Solicitor, Emily Smart Woerner, Deputy City Solicitor, and Shannon Price, Assistant City Solicitor, urging granting of relief for amicus curiae city of Cincinnati.

Ulmer & Berne, Steven S. Kaufman, Dolores P. Garcia Prignitz, and Sara S. Dorland; and Rob Weiner, Chris Lamar, and Valencia Richardson, urging granting of relief for amicus curiae Campaign Legal Center, in case No. 2021-1193.

The Chandra Law Firm, L.L.C., Subodh Chandra, and Donald Screen; and NAACP Office of the General Counsel, Janette McCarthy Wallace, urging granting of relief for amicus curiae Ohio State Conference of the NAACP, in case Nos. 2021-1193 and 2021-1210.

John M. Haseley, urging granting of relief for amicus curiae We Are Ohio, in case No. 2021-1193.

Isaac, Wiles & Burkholder, L.L.C., Donald C. Brey, and Ryan C. Spitzer, urging denial of relief for amicus curiae Renew Ohio.

Stewart, J.

{¶ 1} Respondent Ohio Redisricting Commission adopted a General Assembly-district plan in September 2021 to be effective for the next four years. The complaints in these three cases allege that the plan is invalid because the commission did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio Constitution, which require the commission to attempt to draw a plan that meets standards of partisan fairness and proportionality. In one case, the challengers also allege that the plan violates the Ohio Constitution's guarantees of equal protection, assembly, and free speech.

{¶ 2} We hold that the plan is invalid because the commission did not attempt to draw a plan that meets the proportionality standard in Article XI, Section 6(B). We also conclude that the commission did not attempt to draw a plan that meets the standard in Section 6(A)-that no plan shall be drawn primarily to favor a political party. Because we declare the plan invalid under these sections, we do not decide whether the plan also violates the rights to equal protection, assembly, and free speech guaranteed under the Ohio Constitution. We order the commission to be reconstituted and, within ten days of this judgment, to adopt a new plan in conformity with the Ohio Constitution.

I. BACKGROUND

A. Overview of Article XI of the Ohio Constitution

{¶ 3} In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, we rejected a challenge to the 2011 apportionment of General Assembly districts adopted under a former version of Article XI of the Ohio Constitution. We stated that former Article XI did not require political neutrality, politically competitive districts, or representational fairness in the creation of state legislative districts. Id. at ¶ 14. Accordingly, we held that there was nothing

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unconstitutional about the apportionment board-the body then responsible for drawing the state legislative-district maps-considering partisan factors in its apportionment. Id. at ¶ 13-14. The General Assembly-district map that we upheld in Wilson was in effect through the 2020 general election.

{¶ 4} In November 2015, Ohio voters overwhelmingly approved an amendment to the Ohio Constitution that repealed former Article XI and replaced it with a new version, which established a new process for creating General Assembly districts. The amendment provided for the creation of a seven-member Ohio Redistricting Commission, composed of the governor, the auditor of state, the secretary of state, one person appointed by the speaker of the House of Representatives, one person appointed by the House minority leader, one person appointed by the Senate president, and one person appointed by the Senate minority leader. Ohio Constitution, Article XI, Section 1(A). The commission is responsible for redistricting the boundaries of the 99 districts of the House of Representatives and the 33 Senate districts in any year ending in the numeral one-after the release of the federal decennial census.[1] Id. at Section 1(C). The commission "shall draft the proposed plan in the manner prescribed in" Article XI. Id.

{¶ 5} Article XI of the Ohio Constitution imposes various requirements for a General Assembly-district plan. For example, Section 3(A) provides that the state's population is to be divided by 99 and by 33 and that those "quotients shall be the ratio of representation in the house of representatives and in the senate, respectively." Section 3(B)(1) specifies that no district shall contain a population of less than 95 percent or more than 105 percent of the applicable ratio of representation set forth in Section 3(A). Section 3(B)(2) provides that a General Assembly-district plan "shall comply with all applicable provisions of the

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constitutions of Ohio and the United States and of federal law." Sections 3(C), (D), and (E) control the complex process for creating and numbering House districts, with rules relating to the splitting of counties, municipal corporations, and townships. Section 4 controls the process for drawing Senate districts, and Section 5 relates to senators whose district boundaries change due to redistricting under Article XI before their terms expire.

{¶ 6} Of particular relevance to this litigation, Section 6 provides:

The Ohio redistricting commission shall attempt to draw a general assembly district plan that meets all of the following standards:
(A) No general assembly district plan shall be drawn primarily to favor or disfavor a political party.
(B) 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.
(C) General assembly districts shall be compact. Nothing in this section permits the commission to violate the district standards described in Section 2, 3, 4, 5, or 7 of this article.

Ohio Constitution, Article XI, Section 6.

{¶ 7} The commission must adopt a final plan under Section 1(C) by September 1 of any year ending in the numeral one. To adopt a plan under Section 1(C), at least two members of each of the two largest political parties represented in the General Assembly must be in the majority voting for the plan. Ohio Constitution, Article XI, Section 1(B)(3). A plan adopted under Section 1(C) is effective for ten years. See Ohio Constitution, Article XI, Section 1(C) (the

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governor must convene the commission only in a year ending in the numeral one, a plan is effective upon filing with the secretary of state, and the commission is automatically dissolved four weeks after adoption of a General Assembly-district plan or congressional-district plan, whichever is later). But if the commission does not meet the September 1 deadline to adopt a plan by the requisite bipartisan vote, Section 8 provides an alternative route for adopting a final plan-what the parties here refer to as an "impasse procedure."

{¶ 8} Under the impasse procedure, the commission must introduce a district plan proposed by a simple majority vote of the commission, hold a public hearing on the proposed plan, and adopt a final plan no later than September 15. Ohio Constitution, Article XI, Section 8(A)(1) through (3). If the majority adopting the plan includes at least two members of each political party, the plan will remain in effect for ten years. Id. at Section 8(B). Without that level of bipartisan support, the plan will remain in effect "until two general elections for the house of representatives have occurred under the plan"-i.e., four...

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