League of Women Voters of Ohio v. Ohio Redistricting Comm'n

• Decision Date: 14 April 2022
• Docket Number: s. 2021-1193, 2021-1198, , 2021-1210
• Citation: 168 Ohio St.3d 374,199 N.E.3d 485
• Parties: 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.
• Court: Ohio Supreme Court

168 Ohio St.3d 374

199 N.E.3d 485

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.

Submitted April 8, 2022

Decided April 14, 2022.

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, Cambridge, Joshua González, Juliana Goldrosen, David Denuyl, Alexander Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1193.

McTigue, Colombo & Clinger, L.L.C., Donald J. McTigue, and Derek S. Clinger, Columbus; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Jyoti Jasrasaria, Spencer W. Klein, Harleen K. Gambhir, and Raisa M. Cramer, 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, and Harry Isaiah Black, for petitioners in case No. 2021-1210.

Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, and Ashley T. Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission.

Dave Yost, Attorney General, and Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Christopher J. Hogan, special counsel to Attorney General Dave Yost, for respondent Ohio Governor Mike DeWine.

Dave Yost, Attorney General, Jonathan D. Blanton, Deputy Attorney General, Michael J. Hendershot, Deputy Solicitor, and Julie M. Pfeiffer and Michael A. Walton, Assistant Attorneys General; and Dickinson Wright, P.L.L.C., David A. Lockshaw Jr., Terrence O'Donnell, and Manuel D. Cardona, for respondent Ohio Secretary of State Frank LaRose.

Bricker & Eckler, L.L.P., Brodi J. Conover, Lebanon, and Anne Marie Sferra, Columbus, for respondent Auditor of State Keith Faber.

Dave Yost, Ohio Attorney General, and 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, special counsel to Attorney General Dave Yost, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp.

Cooper & Elliott, L.L.C., C. Benjamin Cooper, Charles H. Cooper Jr., Columbus, and Chelsea C. Weaver, for respondents Senator Vernon Sykes and House Minority Leader Allison Russo.

Per Curiam.

I. INTRODUCTION

{¶ 1} For the fourth time, we are called upon to consider the validity of a General Assembly–district plan adopted by respondent Ohio Redistricting Commission. The commission adopted three General Assembly–district plans between September 2021 and February 2022. We invalidated each of those plans because they did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. See League of Women Voters of Ohio v. Ohio Redistricting Comm. , 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 2 (" League I "); League of Women Voters of Ohio v. Ohio Redistricting Comm. , 168 Ohio St.3d 28, 2022-Ohio-342, 195 N.E.3d 974, ¶ 67-68 (" League II "); League of Women Voters of Ohio v. Ohio Redistricting Comm. , 168 Ohio St.3d 309, 2022-Ohio-789, 198 N.E.3d 812, ¶ 2 (" League III "). Each time, we ordered the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution. League I at ¶ 138 ; League II at ¶ 67 ; League III at ¶ 44. In League III , we ordered the commission to draft and adopt an entirely new General Assembly–district plan by March 28, 2022. League III at ¶ 44-45.

{¶ 2} The commission adopted its fourth plan—the "third revised plan"—on March 28. Petitioners¹ have filed objections to that plan, arguing that it violates the standards of Article XI, Sections 6(A) and 6(B). We hold that petitioners have shown beyond a reasonable doubt that the third revised plan violates Article XI, Sections 6(A) and 6(B). We again order the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution. We decline to order the other remedies that petitioners seek in their objections.

II. BACKGROUND

A. The commission retains independent map drawers

{¶ 3} In League III , we noted, "The commission has adopted three plans so far, but it still has not drafted one." (Emphasis sic.) Id. at ¶ 25. The previous plans had been drafted by staff members of the offices of respondents President of the Senate Matt Huffman and Speaker of the House Robert Cupp, who controlled the process and did not allow the Democratic members of the commission to participate in the creation of the plans. Id. at ¶ 25, 27, 30. We said that "[t]he commission should retain an independent map drawer—who answers to all commission members, not only to the Republican legislative leaders—to draft a plan through a transparent process." Id. at ¶ 30. We also said that "the drafting should occur in public and the commissioners should convene frequent meetings to demonstrate their bipartisan efforts to reach a constitutional plan within the time set by this court." Id. at ¶ 44.

{¶ 4} On March 18, two days after we decided League III , Ohio Attorney General Dave Yost issued a memorandum to the commission proposing a framework for complying with our decision. In it, the attorney general noted our language in League III suggesting that the commission "should" retain an independent map drawer. The attorney general recognized that we "used ‘should’ and not ‘shall’ " but nevertheless advised the commission that "it would be wise to treat this suggestion with the degree of deference one might pay to the suggestions of one's spouse." Accordingly, the attorney general recommended hiring a "bipartisan duo" of consultants whose "charge should be simply to produce a map that complies with the Ohio Constitution and the orders of the Ohio Supreme Court."

{¶ 5} In response to League III , the commission met on Saturday, March 19, and discussed different options for going forward. Its ideas included (1) having the map drawers for the Republican and Democratic legislative caucuses—which included Ray DiRossi and Blake Springhetti, who are employees of the Republican legislative caucuses, and Chris Glassburn, who is a consultant retained by the Democratic legislative caucuses—work together to draw a new district plan, (2) hiring mediators or independent map drawers, including the two suggested by the attorney general,² or (3) combining those approaches. The commission delegated to its cochairs, respondents House Speaker Cupp, who is a Republican commission member, and Senator Vernon Sykes, who is a Democratic commission member, the task of recommending independent map drawers and mediators. The commission also decided that in the interim, the map drawers for the legislative caucuses and staff for each commission member would meet to discuss how they could work with independent map drawers. Thus, it became clear to anyone following the commission's proceedings that the commission had accepted this court's and the attorney general's recommendations to engage independent map drawers to craft a General Assembly–district plan.

{¶ 6} At the commission's next meeting, on Monday, March 21, Senator Sykes recommended Dr. Michael McDonald, a professor at the University of Florida, to serve as an independent map drawer. House Speaker Cupp recommended Dr. Douglas Johnson, the president of National Demographics Corporation, to serve as the other independent map drawer. Both individuals had previously consulted on redistricting issues in other states. The commission unanimously voted to approve the hiring of Dr. McDonald and Dr. Johnson as independent map drawers. The commission agreed to pay Dr. McDonald and Dr. Johnson each at an hourly rate of $450, plus their related expenses, capped at $49,000 each.

B. The commission meets daily and livestreams the map-drawing process

1. The March 22 meeting

{¶ 7} On Tuesday, March 22, the commission decided on a daily meeting schedule through Saturday, March 27. The commission then unanimously approved retaining two mediators employed by the United States Court of Appeals for the Sixth Circuit. The commission members discussed instructions for the independent map drawers—who would be arriving the following day—but could not come to an agreement regarding the instructions and decided to continue that discussion at the next meeting.

2. The March 23 meeting

{¶ 8} Dr. McDonald and Dr. Johnson appeared at the Wednesday, March 23 meeting and introduced themselves to the commission. The commission members engaged in a lengthy discussion about written instructions for the independent map drawers and adopted 24 "Ground Rules." Among other things, the rules specified that the independent map drawers were to draft the district plan at the commission's direction and in conformity with Article XI and this court's prior decisions, draft an entirely new plan without considering prior plan proposals or previous work product, and provide regular updates to the commission at its scheduled meetings. The rules also provided a process for resolving any disputes between Dr. McDonald and Dr. Johnson, including mediation if the commission were unable to unanimously resolve the dispute. In addition, the rules specified that all map drawing would occur in a designated room at the statehouse and would be livestreamed by the Ohio Channel. The commission members were expected to provide feedback and guidance to the map drawers at commission meetings. Also, each commission member and each member's staff would have unlimited access to the map drawers, so long as the map drawers were not separately contacted.

3. The March 24 meeting

{¶ 9} The independent...