Ohio Org. Collaborative v. Ohio Redistricting Comm., 2021-1210

CourtUnited States State Supreme Court of Ohio
Docket Number2021-1210
Decision Date25 May 2022

166 Ohio St.3d 1514
187 N.E.3d 573 (Table)



Supreme Court of Ohio.

May 25, 2022



On complaint invoking this court's original jurisdiction pursuant to Article XI, Section 9 of the Ohio Constitution. On petitioners’ motion for an order directing respondents to show cause why they should not be held in contempt. Motion denied.

Kennedy, J., concurs, with an opinion.

Fischer, J., concurs, with an opinion.

DeWine, J., not participating.

KENNEDY, J., concurring.

{¶ 1} I agree with the majority's decision to deny petitioners’ motions for orders directing respondents, the Ohio Redistricting Commission and its individual members, Governor Mike DeWine, Secretary of State Frank LaRose, Auditor of State Keith Faber, Senator Robert McColley, Representative Jeffrey LaRe, Senator Vernon Sykes, and House Minority Leader Allison Russo, to show cause why they should not be held in contempt of this court's April 14 order in League of Women Voters of Ohio v. Ohio Redistricting Comm., ––– Ohio St.3d ––––, 2022-Ohio-1235, ––– N.E.3d –––– ("League IV"). I write to explain why.

{¶ 2} In League IV, a majority of this court invalidated the commission's fourth General Assembly–district plan and ordered the commission "to be reconstituted, to convene, and to draft and adopt an entirely new General Assembly–district plan that meets the requirements of the Ohio Constitution, including Article XI, Sections 6(A) and 6(B) as [the majority had] explained those provisions in each of [its] four decisions in these cases." Id. at ¶ 78. The majority further ordered the commission to file the new district plan with the secretary of state by 9:00 a.m. on May 6, 2022, and to file it with this court by noon on the same date. Id. at ¶ 79.

{¶ 3} In a parallel matter in a federal district court, a three-judge panel announced on April 20, 2022, that if the commission did not adopt a plan by May 28, 2022, the federal court would order a primary election to be held on August 2, 2022, and would order that a map previously rejected by a majority of this court be used to define the districts of members of the Ohio House of Representatives and the Ohio Senate for the 2022 election cycle. See Gonidakis v. LaRose, S.D.Ohio No. 2:22-cv-0773, 2022 WL 1175617, *30 (Apr. 20, 2022). The map the district court would impose is the General Assembly–district plan adopted on February 24, 2022 ("Map 3"), id., which is the same plan a majority of this court found unconstitutional in League of Women Voters of Ohio v. Ohio Redistricting Comm., ––– Ohio St.3d ––––, 2022-Ohio-789, ––– N.E.3d –––– ("League III").

{¶ 4} On May 5, 2022, the commission voted four to three to readopt Map 3. The four members in favor of readoption of Map 3 were Governor DeWine, Secretary LaRose, Senator McColley, and Representative LaRe. Auditor Faber, Senator Sykes, and House Minority Leader Russo voted against it. Petitioners in all three

187 N.E.3d 574

cases have filed objections to the readopted plan, and those objections have been addressed in a separate opinion, see League of Women Voters of Ohio v. Ohio Redistricting Comm., ––– Ohio St.3d ––––, 2022-Ohio-1727, ––– N.E.3d –––– ("League V"). In each of the three cases, the petitioners have also filed a motion for orders directing respondents to show cause why they should not be held in contempt of this court's April 14 order in League IV based on the commission's readoption of Map 3. The Bennett petitioners also seek an award of attorney fees for what they allege is respondents’ "bad faith" and "frivolous conduct" under R.C. 2323.51. Respondents oppose the motions.

This court lacks the power to declare the commission to be in contempt

{¶ 5} This court does not have the power to hold the commission or its members in contempt. "The separation-of-powers doctrine * * * precludes the judiciary from asserting control over ‘the performance of duties that are purely legislative in character and over which such legislative bodies have exclusive control.’ " Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 27, quoting State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 633, 716 N.E.2d 704 (1999). In Toledo, this court held that "separation-of-powers principles prevent the judiciary from enjoining the legislative branch of government from enacting laws." Id. at ¶ 25.

{¶ 6} Respondents argue that Toledo applies here because granting petitioners’ requested relief would be tantamount to exercising authority over the performance of legislative duties over which the commission has exclusive control under Article XI of the Ohio Constitution. Petitioners argue, however, that separation-of-powers principles support finding the commission in contempt because of the commission's "flagrant disregard" of this court's rulings in these cases. Moreover, petitioners argue that Article XI, Section 9(B) contemplates the exercise of judicial power over the commission, undermining the notion that legislative redistricting is within the commission's "exclusive" control.

{¶ 7} Although Article XI, Section 9 contemplates a role for this court in the redistricting process, that role is limited to a judicial one: reviewing the plan adopted by the commission and determining whether it is constitutional, see Article XI, Section 9(B) and (D). If a majority of this court determines (as it has four times before in these cases) that the commission's plan does not comply with Article XI, then the remedy is for the commission to be reconstituted and to try again. See Article XI, Section 9(B) and (D)(3). And Article XI does not provide a mechanism to end the process of redistricting other than the commission's adoption of a plan and, if challenged, this court's upholding of the plan as constitutional. Accelerating the process through the imposition of contempt sanctions is not a course of action that Article XI, Section 9 contemplates.

{¶ 8} "Adherence to the defined roles of each branch is essential to the functioning of our representative democracy. Therefore, maintaining respect for the enumerated powers granted expressly to the commission precludes this court from interfering with the exercise of those powers or attempting to supervise the commission's work through the threat of contempt." League IV, ––– Ohio St.3d ––––, 2022-Ohio-1235, ––– N.E.3d ––––, at ¶ 97 (Kennedy, J., dissenting). A majority of this court has set deadlines for the commission to perform its duties following the invalidation of the previous plans in these cases, and I have disagreed with the majority's determination that this court retains jurisdiction after invalidating a plan. See

187 N.E.3d 575

League of Women Voters of Ohio v. Ohio Redistricting Comm., ––– Ohio St.3d ––––, 2022-Ohio-342, ––– N.E.3d ––––, ¶ 130 ("League II") (Kennedy, J., dissenting). The setting of deadlines for the commission's performance of acts that it is constitutionally committed to perform under Article XI, Section 9(B) is a far cry from what petitioners’ motions seek. Petitioners’ motions to show cause go far beyond what Article XI empowers...

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