Ohio A. Philip Randolph Inst. v. Smith

• Decision Date: 15 August 2018
• Docket Number: No. 1:18cv357,1:18cv357
• Citation: 335 F.Supp.3d 988
• Parties: OHIO A. PHILIP RANDOLPH INSTITUTE, et al., Plaintiffs, v. Ryan SMITH,et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

335 F.Supp.3d 988

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

v.Ryan SMITH,et al., Defendants.

No. 1:18cv357

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

Signed August 15, 2018

Paul Frederick Moke, Paul Moke, Attorney at Law, Wilmington, OH, Alexia Romero, Law Clerk, Sixth Circuit Court of Appeals, Columbus, OH, Dale E. Ho, Emily R. Zhang, Theresa J. Lee, Tiffany Alora Thomas, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Elizabeth Bonham, Freda J. Levenson, ACLU of Ohio, Cleveland, OH, Isaac Taylor Wood, Michael C. Baker, Peter James Rechter, Thomas Perrin Cooke, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Jeremy Michael Purkey Goldstein, Nitin Subhedar, Robert D. Fram, Pro Hac Vice, Covington & Burling LLP, San Francisco, CA, for Plaintiffs.

Steven T. Voigt, Nicole M. Koppitch, Ohio Attorney General's Office Constitutional Offices Section, Columbus, OH, Michael Douglas McKnight, Pro Hac Vice, Phillip J. Strach, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, NC, for Defendants.

ORDER DENYING MOTION TO DISMISS (DKT. 46)

Before: Moore, Circuit Judge; Black and Watson, District Judges.

On July 11, 2018, the plaintiffs filed their Second Amended Complaint alleging that Ohio's U.S. congressional districts violate the First Amendment, the Fourteenth Amendment, and Article I of the U.S. Constitution. Dkt. 37 (2d Amend. Compl. ("Compl.") at ¶ 1) (Page ID # 287). Now pending before this Court is the defendants' motion to dismiss (Dkt. 46). For the ensuing reasons, we DENY the motion.

I. BACKGROUND

Following the 2010 Census, the Ohio General Assembly began the process of redrawing Ohio's congressional districts.¹ Dkt. 37 (Compl. at ¶ 50–51) (Page ID # 302). Under then-applicable law, the Republican-controlled General Assembly had "primary authority" over redistricting, with advice provided by the six-person, bipartisan Joint Legislative Task Force on Redistricting, Reapportionment, and Demographic Research ("Task Force"). Id. at ¶¶ 42, 46 (Page ID # 300–01).

The Republican members of the Task Force and other Republican officials responsible for drafting the 2011 map allegedly worked in a partisan way during the redistricting process, deliberately excluding non-Republicans from much of the drafting process. Id. at ¶¶ 44–58, 62–84 (Page ID # 300–03, 305–09). The plaintiffs further allege that the Republicans who worked on the 2011 redistricting process aimed to draw a congressional map that "provide[d] for and maintain[ed] Republican control." Id. at ¶ 59 (Page ID # 304). They therefore crafted a congressional map that "would virtually guarantee" that Republicans won twelve districts and Democrats won four districts. Id. at ¶ 61. To do so, the Republican drafters purportedly "packed" Democratic voters into four districts, and then "cracked" Democratic voters across the district lines of the twelve remaining districts. Id. at ¶ 60.

The 2011 map has now been used for three congressional elections: 2012, 2014, and 2016. Id. at ¶ 86 (Page ID # 310). In each election, the Republicans have won the same twelve districts and the Democrats have won the same four districts. Id. at ¶¶ 86–87 (Page ID # 310). Although each party's number of seats has remained constant across the three elections, the statewide vote share for each party has fluctuated. Id. at ¶ 86 (Page ID # 310). The plaintiffs allege that these electoral results are the product of partisan gerrymandering. Id. at ¶ 85 (Page ID # 309). The 2011 map will be in use for two more election cycles: 2018 and 2020. Id. at ¶ 42 n.1 (Page ID # 300).

In May 2018, the plaintiffs filed suit against Ryan Smith, the Speaker of the Ohio House of Representatives; Larry Obhof, the President of the Ohio Senate; and Jon Husted, the Secretary of State of Ohio, in their official capacities.² Dkt. 1 (Initial Compl.) (Page ID # 1–44). The plaintiffs can be categorized into two groups. First, there are five organizational plaintiffs: the Ohio A. Philip Randolph Institute ("APRI"), the League of Women Voters of Ohio ("LWVO"), the College Democrats at the Ohio State University ("OSU College Democrats"), the Northeast Ohio Young Black Democrats ("NEOYBD"); and the Hamilton County Young Democrats ("HCYD"). Dkt. 37 (Compl. at ¶¶ 17–21) (Page ID # 292–94).

Second, there are seventeen individual plaintiffs who are Democratic voters living in Ohio and who, collectively, reside in all sixteen congressional districts: Linda Goldenhar (1st District), Douglas J. Burks (2nd District), Sarah Inskeep (3rd District), Cynthia Rodene Libster (4th District), Kathryn Deitsch (5th District), Luann Boothe (6th District), Mark John Griffiths (7th District), Lawrence Nadler (8th District), Chitra Walker (9th District), Tristan Rader (9th District), Ria Megnin (10th District), Andrew Harris (11th District), Aaron Dagres (12th District), Elizabeth Myer (13th District), Beth Hutton (14th District), Teresa Anne Thobaben (15th District), and Constance Rubin (16th District). Id. at ¶¶ 22–38 (Page ID # 294–99).

The plaintiffs raise four claims. First, plaintiffs argue that the 2011 map burdens their First Amendment rights because the map was designed purposefully to disfavor them based on their political views. Id. at ¶¶ 136–48 (Page ID # 328–30) (Count I). Next, plaintiffs claim that the 2011 map substantially burdens their right to vote in violation of the Fourteenth Amendment. Id. at ¶¶ 149–55 (Page ID # 331–32) (Count II). Third, the plaintiffs allege that the 2011 map intentionally discriminates against them by drawing district lines to dilute their votes on the basis of political association in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at ¶¶ 156–64 (Page ID # 333–35) (Count III). Finally, the plaintiffs allege that the 2011 map exceeds the state's power under Article I of the U.S. Constitution to run elections because it is a product of partisan gerrymandering. Id. at ¶¶ 165–69 (Page ID # 335–36) (Count IV).

The defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 46 (Mot. to Dismiss) (Page ID # 448–71). They raise three arguments: (1) the plaintiffs' claims are nonjusticiable; (2) the plaintiffs have failed to allege sufficient facts to establish standing; and (3) laches bars the plaintiffs' claims. Id. at 2–3 (Page ID # 451–52).

II. ANALYSIS

The defendants have moved under Rule 12(b)(1) for dismissal for lack of subject matter jurisdiction, arguing that the plaintiffs' claims are nonjusticiable and that the plaintiffs lack standing. "A Rule 12(b)(1) motion for lack for subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Cartwright v. Garner , 751 F.3d 752, 759 (6th Cir. 2014). When, as here, the defendants raise a facial attack, "the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis." Id.

Additionally, the defendants move to dismiss the complaint pursuant to Rule 12(b)(6), arguing that the plaintiffs' claims are barred by laches. When analyzing a complaint under Rule 12(b)(6), the Court "construe[s] the complaint in the light most favorable to the plaintiff[s], accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff[s]." Bickerstaff v. Lucarelli , 830 F.3d 388, 396 (6th Cir. 2016) (quoting Directv, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) ).

A. Justiciability

The defendants argue that all of plaintiffs' claims are per se nonjusticiable. Dkt. 46 (Mot. to Dismiss at 6–11) (Page ID # 456–60). They principally rely upon the Supreme Court's recent decision in Gill v. Whitford , ––– U.S. ––––, 138 S.Ct. 1916, 201 L.Ed.2d 313 (2018), and summary affirmance in Harris v. Cooper , ––– U.S. ––––, 138 S.Ct. 2711, 201 L.Ed.2d 1091 (2018). Id. at 7–8 (Page ID # 456–57). But neither decision, nor any other Supreme Court case cited by the defendants, stands for the proposition that partisan gerrymandering claims are per se nonjusticiable.

The Supreme Court explicitly left open in Gill the question of whether partisan gerrymandering claims, brought under any theory of harm, are justiciable. 138 S.Ct. at 1929, 1931. In that decision, the Supreme Court recounted its past decisions in partisan gerrymandering cases in which it had grappled with the question of justiciability. Id. at 1926–29 (citing Gaffney v. Cummings , 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) ; Davis v. Bandemer , 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) ; Vieth v. Jubelirer , 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) ; League of United Latin Am. Citizens v. Perry ("LULAC") , 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) ). The Court noted that its "considerable efforts in Gaffney , Bandemer , Vieth , and LULAC leave unresolved whether such claims may be brought in cases involving allegations of partisan gerrymandering." Id. at 1929. But the thread that runs through these cases is that they may be justiciable if there is a "justiciable standard by which to resolve the plaintiffs' partisan gerrymandering claims." Id. at 1928 ; see also Vieth , 541 U.S. at 312, 124 S.Ct. 1769 (Kennedy, J., concurring) ("[I]n another case a standard might emerge that suitably demonstrates how an apportionment's de facto incorporation of partisan classifications burdens rights of fair and effective representation (and so establishes the classification is unrelated to the aims of apportionment and thus is used in an impermissible fashion.)"); Gill , 138 S.Ct. at 1941 (Kagan, J., concurring) ("Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that a denial of constitutionally protected rights demands judicial protection. Indeed, the need for judicial review is at its most urgent in these cases." (internal citation and quotation marks omitted) ); cf. ...