Ohio A. Philip Randolph Inst. v. Householder

• Decision Date: 15 February 2019
• Docket Number: No. 1:18-cv-357,1:18-cv-357
• Citation: 367 F.Supp.3d 697
• Parties: OHIO A. PHILIP RANDOLPH INSTITUTE, et al., Plaintiffs, v. Larry HOUSEHOLDER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

367 F.Supp.3d 697

OHIO A. PHILIP RANDOLPH INSTITUTE, et al., Plaintiffs,

v.Larry HOUSEHOLDER,¹ et al., Defendants.

No. 1:18-cv-357

United States District Court, S.D. Ohio, Western Division.

Signed February 15, 2019

Paul Frederick Moke, Paul Moke, Attorney at Law, Wilmington, OH, Alexia Romero, Jeremy Michael Purkey Goldstein, Pro Hac Vice, Nitin Subhedar, Pro Hac Vice, Robert D. Fram, Pro Hac Vice, Covington & Burling LLP, San Francisco, CA, Dale E. Ho, Pro Hac Vice, Emily R. Zhang, Pro Hac Vice, Theresa J. Lee, Pro Hac Vice, Tiffany Alora Thomas, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, David J. Carey, American Civil Liberties Union of Ohio Foundation, Columbus, OH, Elizabeth Bonham, Freda J. Levenson, ACLU of Ohio, Cleveland, OH, Isaac Taylor Wood, Pro Hac Vice, Jacob Canter, Pro Hac Vice, Kaitlyn H. Demers, Pro Hac Vice, Michael C. Baker, Pro Hac Vice, Peter James Rechter, Pro Hac Vice, Robert Sunderland Day, Pro Hac Vice, Thomas Perrin Cooke, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Kyunghoon John Woo, Pro Hac Vice, Covington & Burling LLP, Los Angeles, CA, Lindsey Catherine Barnhart, Pro Hac Vice, Covington & Burling LLP, Palo Alto, CA, for Plaintiffs Ohio A. Philip Randolph Institute, League of Women Voters of Ohio, Linda Goldenhar, Douglas Burks, Sarah Inskeep, Cynthia Libster, Kathryn Deitsch, LuAnn Boothe, Mark John Griffiths, Lawrence Nadler, Chitra Walker, Ria Megnin, Andrew Harris, Aaron Dagres, Elizabeth Myer, Teresa Thobaben, Constance Rubin.

Alexia Romero, Jeremy Michael Purkey Goldstein, Covington & Burling LLP, San Francisco, CA, David J. Carey, American Civil Liberties Union of Ohio Foundation, Columbus, OH, Elizabeth Bonham, Freda J. Levenson, ACLU of Ohio, Cleveland, OH, Jacob Canter, Pro Hac Vice, Kaitlyn H. Demers, Pro Hac Vice, Michael C. Baker, Robert Sunderland Day, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Kyunghoon John Woo, Pro Hac Vice, Covington & Burling LLP, Los Angeles, CA, Lindsey Catherine Barnhart, Pro Hac Vice, Covington & Burling LLP, Palo Alto, CA, Theresa J. Lee, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs Hamilton County Young Democrats, Tristan Rader, Northeast Ohio Young Black Democrats, Beth Hutton, the Ohio State University College Democrats.

Steven T. Voigt, Nicole M. Koppitch, Ann Yackshaw, Ohio Attorney General's Office Constitutional Offices Section, Columbus, OH, Brodie Erwin, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, NC, for Defendant Governor John R. Kasich.

Steven T. Voigt, Ohio Attorney General's Office Constitutional Offices Section, Columbus, OH, Alyssa M. Riggins, Pro Hac Vice, Brodie Erwin, Pro Hac Vice, Michael Douglas McKnight, Pro Hac Vice, Phillip J. Strach, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, NC, for Defendant Larry Obhof.

Michael Douglas McKnight, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, NC, for Defendants Larry Householder, Frank LaRose.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

HONORABLE KAREN NELSON MOORE, United States Circuit Judge, HONORABLE TIMOTHY S. BLACK, United States District Judge, HONORABLE MICHAEL H. WATSON, United States District JudgeOn August 15, 2018, this Court denied the Defendants' motion to dismiss the Plaintiffs' Second Amended Complaint (Dkt. 37). See Ohio A. Philip Randolph Inst. v. Smith ("OAPRI "), 335 F.Supp.3d 988 (S.D. Ohio 2018). The case has then proceeded through discovery. On January 8, 2019, the Defendants moved for summary judgment and filed a brief in support of their motion. Dkt. 136 (Mot. for Summ. J.). The Intervenors joined that motion and filed their own supplemental brief. Dkt. 140, 140-1 (Intervenors' Suppl. Mot. for Summ. J. & Mem.). The Plaintiffs filed a response. Dkt. 177 (Pls.' Opp'n to Summ. J.). Then the Defendants and Intervenors each filed a reply, completing the briefing. Dkt. 190 (Defs.' Reply); Dkt. 189 (Intervenors' Reply). For the reasons that follow, we DENY the motion for summary judgment.

I. BACKGROUND

The Plaintiffs in this litigation include seventeen individual Ohio residents and five organizations based in Ohio. The individual Plaintiffs are Linda Goldenhar, Douglas Burks, Sarah Inskeep, Cynthia Libster, Kathryn Deitsch, LuAnn Boothe, Mark John Griffiths, Lawrence Nadler, Chitra Walker, Tristan Rader, Ria Megnin, Andrew Harris, Aaron Dagres, Elizabeth Myer, Beth Hutton, Teresa Thobaben, and Constance Rubin. All the individual Plaintiffs affiliate with the Democratic Party and vote for Democratic candidates. The organizational Plaintiffs, which include nonpartisan groups as well as groups affiliated with the Democratic Party, are: the Ohio A. Philip Randolph Institute ("OAPRI"), the League of Women Voters of Ohio ("LWVO"), The Ohio State University College Democrats ("OSU College Democrats"), the Northeast Ohio Young Black Democrats ("NEOYBD"), and the Hamilton County Young Democrats ("HCYD").

Under Ohio law, the State General Assembly has the primary authority for drawing the State's U.S. congressional districts. A bipartisan "legislative task force on redistricting, reapportionment, and demographic research" ("Task Force") has the role of advising the General Assembly in this task. See OHIO REV. CODE § 103.51. A version of the 2012 redistricting plan (the plan at issue here) first passed as H.B. 319. Later, that bill was updated slightly in H.B. 369. H.B. 369 passed both houses of the General Assembly, and Governor Kasich signed the bill into law on December 15, 2011. The map approved in H.B. 369 has been used in the 2012, 2014, 2016, and 2018 elections of U.S. congressional representatives from Ohio.

The Plaintiffs allege that the bipartisan Task Force did not actually draw the 2012 map. Rather, according to the Plaintiffs, the 2012 redistricting plan was drawn by both state-level and national Republican operatives. These operatives and other Republican staffers conducted much of the map drawing in a hotel room in the Columbus DoubleTree Hotel that was converted into an office, which they called the "Bunker," from July 2011 to October 2011. These individuals analyzed different versions of the map for their likely partisan outcomes based on indices created from historical election data. The Plaintiffs maintain that "Ohio's congressional districts were drawn for the purpose of locking in a Republican supermajority impervious to normal electoral swings." Dkt. 177 (Pls.' Opp'n to Summ. J. at 1) (Page ID # 8277). Specifically, the districts were drawn so that Ohio would consistently elect twelve Republican representatives and four Democratic representatives (and, in fact, such results have been accomplished in every election held under the 2012 redistricting plan). At trial, the Plaintiffs aim to support their version of the facts, and thus their claims, through a combination of lay witness testimony, documentary evidence, expert testimony and reports, and an alternative map called the Proposed Remedial Plan. In their opposition to the motion for summary judgment, the Plaintiffs point to specific pieces of record evidence that support their allegations. At this stage, we draw reasonable inferences from this evidence in the Plaintiffs' favor, but we form no opinion on the credibility or weight of the evidence.

The Defendants and Intervenors, in turn, either entirely dispute the facts and evidence offered by the Plaintiffs or contest their relevance. The Defendants and Intervenors move for summary judgment, raising two arguments: (1) the Plaintiffs' claims are nonjusticiable; and (2) the Plaintiffs have failed to produce sufficient evidence to establish standing, an argument that, at times, seems to blend with an argument against the Plaintiffs' claims on the merits. Dkt. 136 (Mot. for Summ. J. at 1) (Page ID # 3546). The Intervenors focus their supplemental brief on the issue of justiciability. Dkt. 140-1 (Intervenors' Suppl. Mem. at 1) (Page ID # 4590).

II. ANALYSIS

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At this stage, the Court draws all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If, after reviewing the record as a whole, "a rational trier of fact [could] find for the non-moving party," then there is a genuine issue for trial. Id. at 587, 106 S.Ct. 1348. But if a trier of fact could not find for the nonmoving party, or if the nonmoving party cannot show more than "some metaphysical doubt as to the material facts[,]" then there is no genuine issue for trial and the moving party is entitled to judgment as a matter of law. Id. at 586–87, 106 S.Ct. 1348.

A. Justiciability & The Substantive Standards

The Supreme Court has recognized that partisan gerrymandering is incompatible with democratic principles. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n , ––– U.S. ––––, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704 (2015) ; Vieth v. Jubelirer , 541 U.S. 267, 292, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality); Vieth , 541 U.S. at 316, 124 S.Ct. 1769 (Kennedy, J., concurring in the judgment); see also id. at 331, 124 S.Ct. 1769 (Stevens, J., dissenting) ("The problem, simply put, is that the will of the cartographers rather than the will of the people will govern."); id. at 345–46, 124 S.Ct. 1769 (Souter, J., dissenting) ("[T]he increasing efficiency of partisan...