Neiman v. LaRose

Citation166 Ohio St.3d 1452,184 N.E.3d 138 (Table)
Decision Date29 March 2022
Docket Number2022-0298
Parties NEIMAN v. LAROSE
CourtUnited States State Supreme Court of Ohio

CASE ANNOUNCEMENT

MOTION AND PROCEDURAL RULING

On complaint invoking this court's original jurisdiction pursuant to Article XIX, Section 3 of the Ohio Constitution. On petitioners' motion for scheduling order. Sua sponte, the following schedule is set for the filing of answers, evidence, and merit briefs: Answers shall be filed in accordance with S.Ct.Prac.R. 12.04(A)(1), and dispositive motions are prohibited. The parties shall file any evidence they intend to present within 25 days; petitioners shall file a brief within 10 days of the filing of the evidence; respondents shall file a brief within 20 days after the filing of petitioners' brief; petitioners may file a reply brief within 7 days after the filing of respondents' briefs. Sua sponte, case consolidated with 2022-0303, League of Women Voters of Ohio v. LaRose. Any disputes concerning discovery shall be addressed to the court by motion. No requests or stipulations for extension of time shall be filed, and the clerk of the court shall refuse to file any requests or stipulations for extension of time. All documents filed in this case shall be served on the date of submission for filing by personal service, facsimile transmission, or email.

Kennedy, Fischer, and DeWine, JJ., concur in part and dissent in part, with an opinion.

KENNEDY, FISCHER, and DEWINE, JJ., concurring in part and dissenting in part.

{¶ 1} The court today correctly denies petitioners'1 motion for a scheduling order —a motion that sought to cabin respondents'2 opportunity for discovery and argument to mere days. We also agree with the court's order to consolidate this case with case No. 2022-0303, League of Women Voters of Ohio v. LaRose. Nevertheless, the majority still issues an unnecessarily truncated scheduling order that unduly limits the time in which the parties may conduct discovery. Because there is no need for such a rushed schedule, we dissent and would issue an order that allows for a fair presentation of this case.

{¶ 2} There is no reason to expedite this case. At this juncture, it is abundantly clear that this case will not be litigated prior to the 2022 primary election. The drafters of Article XIX of the Ohio Constitution anticipated that the time provided for the determination, adoption, and judicial review of a congressional-district plan could affect regularly scheduled elections. They therefore provided a stop-gap protection in Article XIX, Section 1(J): if a plan enacted by the General Assembly or adopted by the Ohio Redistricting Commission expires or is invalidated by the court under Article XIX, the boundaries that the congressional-district plan created shall continue to be used for holding elections until a new plan is enacted or adopted. The prior district boundaries do not lapse until new ones are in place.

{¶ 3} The May primary election is quickly approaching. Pursuant to R.C. 3509.01(B)(1) and (2) and a waiver granted to the state under the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), 52 U.S.C. 20302, the state must finalize and mail absentee ballots by April 5, 2022. In addition, in-person absentee voting starts the same day. R.C. 3509.01(B)(3) (in-person absentee voting begins on the first day after the close of voter registration). Given this time frame, it is virtually certain that Ohioans will vote for congressional representatives using the district boundaries that the commission adopted in the March 2, 2022 congressional-district plan. The outcome of the litigation before us challenging the map cannot change those boundaries. If this court upholds the plan, the district map remains in place for the next two election cycles. And if this court rejects the plan, the same district boundaries will continue nonetheless for purposes of conducting elections pursuant to Article XIX, Section (1) of the Ohio Constitution until either (1) a new plan is enacted by the General Assembly and becomes law or (2) a new plan is adopted by the commission and filed with the secretary of state. Given the logistical hurdles of enacting legislation, the possibility of it being subject to referendum, and the 30-day delay before the commission may adopt a plan if the General Assembly fails to do so, any plan adopted to replace the current plan will come too late to use for the May primary.

{¶ 4} Both Ohio law and the United States Constitution prohibit this court from moving election dates established by the General Assembly and Congress. And because the same district boundaries must be used for both the primary and general elections, it is too late for this court to enter any order that would affect the 2022 election cycle. See Wilson v. Kasich, 131 Ohio St.3d 249, 2012-Ohio-612, 963 N.E.2d 1282, ¶ 8 ("Wilson I") (denying attack on decennial apportionment plan "based on laches insofar as [petitioners] attempt to challenge the use of the apportionment plan for the 2012 election cycle").

{¶ 5} In light of this reality, it makes little sense for the majority to issue an order that unduly limits discovery. Given the need to schedule depositions for numerous fact and expert witnesses, we believe that 25 days is insufficient. This case most likely will turn on the credibility of expert testimony. The cases addressing both the General Assembly and the congressional redistricting have demonstrated the need for expert opinions to be tested, as numerous alternative plans have been submitted that did not comply with the basic map-drawing requirements imposed by the Ohio Constitution. Allowing the adversarial process time to unfold is essential to our fair review. Sometimes in election cases it is necessary to decide the case on an expedited basis, but this is not one of those cases. Therefore, we should not compress the discovery period.

{¶ 6} This case presents a question of importance to all Ohioans, and there is no reasonable basis to expedite this case and decide it without the discovery, argument, deliberation, and adversarial testing that it deserves. In addition, we would schedule a date for oral argument now. Because the majority does not, we dissent from that part of the scheduling order.

Background

{¶ 7} The General Assembly enacted the first congressional-district plan on November 18, 2021, and Ohio's governor signed it into law two days later. Adams v. DeWine, ___ Ohio St.3d ___, 2022-Ohio-89, ___ N.E.3d ___, ¶ 21. However, on January 12, 2022, a majority of this court held that "the General Assembly did not comply with Article XIX, Sections 1(C)(3)(a) and (b) of the Ohio Constitution in passing the congressional-district plan," "declar[ed] the plan invalid," and "order[ed] the General Assembly to pass a new congressional-district plan." Id. at ¶ 102.

{¶ 8} After the General Assembly failed to pass a revised plan within the 30-day period provided by Article XIX, Section 3(B)(1), the commission convened and adopted a congressional-district plan on March 2, 2022. The petitioners in Adams moved to enforce the January 12 order, but we unanimously denied the motions as "procedurally improper." 166 Ohio St.3d 1431, 2022-Ohio-871, 184 N.E.3d 111.

{¶ 9} On March 21, 2022, petitioners filed this case to invalidate the March 2 plan. Petitioners also moved this court for an expedited scheduling order, proposing an abbreviated schedule that would allow the case to be fully briefed by March 30, 2022, mere days before April 5, the deadline for mailing absentee ballots under UOCAVA and R.C. 3509.01(B)(1) and (2) as well as the first day of in-person absentee voting, R.C. 3509.01(B)(3). Although petitioners contend that discovery will not be needed beyond expert disclosures, they admit that their proposed scheduling order contemplates this court's rescheduling the primary election. Secretary of State LaRose responds that it is now too late to change the election processes for the May primary. And Senate President Huffman and House Speaker Cupp argue that petitioners' claims are barred by laches and that discovery, including depositions and cross-examination of petitioners' experts, is needed to contest petitioners' challenge on the merits. They therefore urge this court to deny petitioners' motion for a scheduling order and to allow the 2022 election cycle to continue under the March 2 plan.

Expedited Briefing Is Wholly Unnecessary

{¶ 10} Conducting an election requires election officials to comply with federal and state laws that establish the dates of elections as well as deadlines for filing candidate petitions and preparing ballots that are tied to the dates of each election.

{¶ 11} Article I, Section 4, cl. 1 of the United States Constitution provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Exercising its authority under the Elections Clause, Congress has provided that election day for federal offices is the first Tuesday after the first Monday in November in even numbered years. 2 U.S.C. 1; 2 U.S.C. 7; 3 U.S.C. 1. The General Assembly has followed suit. R.C. 3501.01(A). No one asserts that this court has the authority to move the date of the general election in contravention of these statutes. See United States Constitution, Article VI, cl. 2.

{¶ 12} Article V, Section 7 of the Ohio Constitution states, "All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law * * *." The General Assembly has provided that primary elections shall be "held for the purpose of nominating persons as candidates of political parties for election to offices" and "shall be held on the first Tuesday after the first Monday in May of each year except in years in which a presidential...

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2 cases
  • Neiman v. LaRose
    • United States
    • United States State Supreme Court of Ohio
    • 19 Julio 2022
    ...and "25 days is insufficient" time for discovery, given the need to schedule depositions for numerous fact and expert witnesses. 166 Ohio St.3d 1452, 2022-Ohio-1016, 184 N.E.3d 138, ¶ (Kennedy, Fischer, and DeWine, JJ., concurring in part and dissenting in part). Each side filed its evidenc......
  • League of Women Voters of Ohio v. LaRose
    • United States
    • United States State Supreme Court of Ohio
    • 29 Marzo 2022
    ...and DeWine, JJ., concur in part and dissent in part for the reasons stated in the concurring-and-dissenting opinion in Neiman v. LaRose, 166 Ohio St.3d 1452, 2022-Ohio-1016, 184 N.E.3d 138. ...
1 books & journal articles
  • UNPRECEDENTED PRECEDENT: THE CASE AGAINST UNREASONED 'SHADOW DOCKET' PRECEDENT.
    • United States
    • Constitutional Commentary Vol. 37 No. 2, June 2022
    • 22 Junio 2022
    ...allow the congressional election to proceed under the duly adopted and presumptively constitutional plan..." Neiman v. LaRose, 166 Ohio St.3d 1452, 145 (105.) See Information About Opinions, SUPREME COURT OF THE UNITED STATES, (Dec. 12, 2021) https://www.supremecourt.gov/opinions/info_opini......

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