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

• Docket Number: 2021-1193,2021-1198,2021-1210
• Decision Date: 27 November 2023
• 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

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2023-Ohio-4271

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

November 27, 2023

Submitted November 17, 2023

On Motions for Leave to File Instanter Objections and Motions to Dismiss and to Vacate.

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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, and Yale Fu, for petitioners in case No. 2021-1193.

McTigue & Colombo, L.L.C., and Donald J. McTigue; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, and Jyoti Jasrasaria, for petitioners in case No. 2021-1198.

Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A. Sutherland, and Danielle L. Stewart; and Brennan Center for Justice at New York University School of Law, Alicia L. Bannon, and Yurij Rudensky, for petitioners in case No. 2021-1210.

Dave Yost, Attorney General, and Taft Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson, special counsel to Attorney General Dave Yost, for respondents Senator Robert McColley and Representative Jeffrey LaRe.

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

Cooper Elliott, C. Benjamin Cooper, Charles H. Cooper Jr., and Chelsea C. Weaver, for respondents Senate Minority Nickie J. Antonio and House Minority Leader Allison Russo.

Per Curiam.

{¶ 1} On September 29, 2023, respondent Ohio Redistricting Commission adopted a General Assembly-districting plan ("the September 2023 plan"). The September 2023 plan was passed with bipartisan support and is therefore effective through the 2030 election cycle. See Article XI, Section 8(B), Ohio Constitution. Despite the bipartisan support for the September 2023 plan, petitioners in these cases have filed motions for leave to file objections instanter to the plan.^[1]

{¶ 2} In addition to opposing petitioners' motions for leave to file objections, three respondents, Senator Robert McColley, Representative Jeffrey LaRe, and Secretary of State Frank LaRose, all members of the commission, filed motions to dismiss these cases and to vacate this court's orders declaring unconstitutional the General Assembly-districting plan adopted in September 2021 and the four plans subsequently adopted.

{¶ 3} For the reasons that follow, we grant the motions to dismiss, deny the motions to vacate as moot, and deny the motions for leave to file objections to the September 2023 plan.

I. BACKGROUND

A. The Complaints and Previous Decisions

{¶ 4} These cases originated with complaints alleging that the General Assembly-districting plan adopted in September 2021 was unconstitutional. Petitioners alleged that the commission did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio Constitution, which require the commission to attempt

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to draw a plan that meets certain standards of partisan fairness.^[2] Respondents contended that this court lacks the constitutional authority to adjudicate independent claims for violations of Article XI, Section 6 of the Ohio Constitution.

{¶ 5} The September 2021 plan was adopted by a five-to-two vote of the commission, with both Democratic members of the commission opposed to it. See League of Women Voters of Ohio v. Ohio Redisricting Comm., 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 24 ("League I "). This court invalidated the September 2021 plan, finding that it did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. Id. at ¶ 2, 135, 138. In addition, we ordered the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution. Id. at ¶ 138. We also retained jurisdiction for the purpose of reviewing the new plan. Id. at ¶ 139.

{¶ 6} In four subsequent cases, this court invalidated plans adopted by the commission in response to this court's decisions. League of Women Voters of Ohio v. Ohio Redisricting Comm., 168 Ohio St.3d 28, 2022-Ohio-342, 195 N.E.3d 974, ¶ 67 ("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 "); League of Women Voters of Ohio v. Ohio Redistricting Comm., 168 Ohio St.3d 374, 2022-Ohio-1235, 199 N.E.3d 485, ¶ 2 ("League IV); League of Women Voters of Ohio v. Ohio Redistricting Comm.,

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168 Ohio St.3d 522, 2022-Ohio-1727, 200 N.E.3d 197, ¶ 5 ("League V "). Each time, the plan that this court reviewed had not been passed with bipartisan support. In each case, we ordered the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution. League II at ¶ 67; League III at ¶ 44; League IV at ¶ 78; League V at ¶ 5. As in League I, we retained jurisdiction for the limited purpose of reviewing the new plans adopted by the commission. See League II at ¶ 68; League III at ¶ 45; League IV at ¶ 79; League V at ¶ 6.

{¶ 7} In the last of this court's decisions, the commission was ordered to submit a new plan by June 3, 2022. League V at ¶ 6-7. The commission did not submit a new plan by that date. Instead, by order of the federal district court in Gonidakis v. LaRose, 599 F.Supp.3d 642 (S.D.Ohio 2022), the plan that this court had found unconstitutional in League III was used for the 2022 election. Gonidakis at 678-679; see League V at ¶ 2.

B. The Commission Adopts the September 2023 Plan

{¶ 8} The commission eventually adopted a new redistricting plan on September 26, 2023. Unlike the plans that were before us in League I, II, III, IV, and V, the September 2023 plan was adopted by a unanimous vote of the commission. On September 29, the commission approved an amendment to the plan by a six-to-zero vote, with one member not present. House Minority Leader Allison Russo proposed the amendment to the plan, and both Democratic members of the commission voted in favor of the amended plan. Because the plan received bipartisan support, it is effective until 2031-that is, through the 2030 general election for state representatives and senators. See Article XI, Section 8(B), Ohio Constitution.

{¶ 9} On October 5, petitioners in all three cases filed motions for leave to file instanter objections to the September 2023 plan. Attached to all three motions are petitioners' proposed objections to the September 2023 plan. All petitioners argue that the September 2023 plan, despite the approval of the commission's Democratic members, is a partisan gerrymander that violates Article XI, Section 6(B) of the Ohio Constitution. Senator McColley and Representative LaRe filed a memorandum in opposition to the

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motions for leave, which includes responses to petitioners' objections. Respondents Governor Mike DeWine, Auditor Keith Faber, Secretary LaRose, and the commission filed a separate opposition incorporating all arguments asserted in Senator McColley and Representative LaRe's opposition. Senate Minority Leader Nickie J. Antonio and House Minority Leader Russo also filed a response to petitioners' motions for leave, asking for a reasonable amount of time to respond to petitioners' objections if we allowed the objections to be filed.

{¶ 10} In addition to their opposition to petitioners' motions, Senator McColley and Representative LaRe filed a "motion to dismiss and vacate." The motion asks us to dismiss all of petitioners' cases and vacate the orders issued in each of the five League decisions. Petitioners timely filed oppositions to Senator McColley and Representative LaRe's motion to dismiss and vacate. On the same day that petitioners filed their responses, Secretary LaRose filed a separate motion to dismiss and vacate, joining Senator McColley and Representative LaRe's arguments. Petitioners filed responses opposing the secretary's motion.

{¶ 11} The matter is before this court for disposition of the parties' motions.

II. ANALYSIS

{¶ 12} Senator McColley, Representative LaRe, and Secretary LaRose argue that we should now dismiss these cases because there is no longer an operative complaint before us that corresponds to the September 2023 plan adopted by the commission for use in the 2024-through-2030 election cycles. We agree and grant the motions to dismiss on this basis.

{¶ 13} The allegations of the three complaints in these cases were tied specifically to the process that led to the September 2021 plan and its adoption by a party-line vote. Indeed, all three complaints contained allegations of an unduly partisan process that led to the commission's adoption of a map without bipartisan support. The unduly partisan process, according to the allegations in petitioners' complaints, led to an unduly partisan map that violated Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. And because the September 2021 plan did not receive the support of either member of the

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minority party, the plan was to remain in effect only "until two general elections for the house of representatives have occurred under the plan"-i.e., four years. Article XI, Section 8(C)(1)(a), Ohio Constitution.

{¶ 14} The September 2023 plan stands on entirely different footing than the plan challenged in the complaints and each of the plans the commission adopted in response to this court's decisions in League I, II, III, and IV. None of the plans we reviewed in last year's decisions received bipartisan support. In contrast to those plans, the September 2023 plan was adopted with bipartisan support and without resort to the impasse procedures set forth in Article XI, Section 8(C)...