Parker v. Ohio

• Decision Date: 23 May 2003
• Docket Number: No. C2-01-1132.,C2-01-1132.
• Citation: 263 F.Supp.2d 1100
• Parties: Fred PARKER, et al, Plaintiffs, v. The State of OHIO, Ohio Apportionment Board, et al, Defendants.
• Court: U.S. District Court — Southern District of Ohio

263 F.Supp.2d 1100

Fred PARKER, et al, Plaintiffs, v. The State of OHIO, Ohio Apportionment Board, et al, Defendants.

No. C2-01-1132.

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

May 23, 2003.

Donald Joseph McTigue, Esq., Percy Squire, Esq., Columbus, for Plaintiffs.

Norton Victor Goodman, Esq., Benesch, Friedlander, Coplan & Aronoff, Columbus, for Defendants.

Before BOYCE F. MARTIN, Jr., Chief Circuit Judge, GRAHAM, and GWIN, United States District Judges.

OPINION AND ORDER

BOYCE F. MARTIN, Jr., Chief Circuit Judge.

Plaintiffs bring an action for declaratory and injunctive relief. They seek the invalidation of the 2001 apportionment plan for election of the Ohio General Assembly. They allege violations of Section 2 of the Voting Rights Act (as amended, at 42 U.S.C. § 1973) and of the Fourteenth and Fifteenth Amendments to the United States Constitution. These plaintiffs allege that minority voters, specifically African-Americans, were precluded from achieving political efficacy by the new apportionment plan.

The plaintiffs are voters residing in the challenged districts and are generally those persons protected under the Voting Rights Act. Defendants Taft, Blackwell, Petro, and Householder are elected officials of the State of Ohio and members of the Ohio Apportionment Board, by virtue of their elected positions.¹ Plaintiffs claim that the Apportionment Board drafted an apportionment plan diluting the ability of Ohio's African-Americans to elect candidates of their choice. Specifically, the plaintiffs challenge House Districts 19, 20, 21, 25, 26, 27, 28, 29, 31, 32, 33, and 60. Plaintiffs also challenge Senate Districts 5 and 15.

Under the Ohio Constitution, decennially, after the federal census, Ohio is subdivided into ninety-nine state House of Representatives districts. According to the ratio of Ohio's population to those ninetynine districts, the ideal legislative district size is 114,678. A variance of five percent, or 5,733, is permissible. As a result, districts vary from 120,411 to 108,945.

According to the 2000 census, Ohio is the seventh most populous state in the Union with 11,353,140 people. African-Americans comprise eleven and a half percent of the population, at 1,305,611 people. The African-American population of Ohio lives predominantly in the state's most urban counties, including those at issue in this litigation.

The legislative provisions governing the Apportionment Board are found in Article X of the Ohio Constitution. The Apportionment Board consists of the Governor (Taft), the Secretary of State (Blackwell), the Auditor of State (Petro), and two persons chosen by legislative leaders. In this instance, Ohio Speaker of the House Householder was chosen, as was State Senator Herington, who is a plaintiff in this case.

Following an initial meeting, at which the Board appointed Taft as Chairman and Scott P. Borgemenke as Secretary, the "Majority Members" of the Board directed Borgemenke to draft and submit a new apportionment plan on their behalf. The Majority Members (Taft, Blackwell, Petro and Householder) were those from the party holding a majority in the state houses, the Republican party. Borgemenke was directed to submit a plan that complied with the Ohio Constitution, the United States Constitution, and the Voting Rights Act. Defendants maintain that the Ohio Constitution was the predominant basis for Borgemenke's plan. He submitted the plan to the Board, as required by the rules, on September 24, 2001. The Ohio Republican Party, Plaintiffs Senator Leigh Herington and Ohio House Minority Leader Dean E. DePiero, and the NAACP also timely submitted plans for reapportionment.

The Board reconvened on both September 26 and October 1 to consider the plans and to hear testimony and other evidence on the respective plans. At the October 1 meeting, the Board adopted a series of technical changes to the Borgemenke plan, as well as a series of changes requested by Democratic members of the General Assembly. The Apportionment Board then adopted the Borgemenke plan as amended.

This suit arises out of that plan. Plaintiffs claim that the African-American vote, in Ohio as a whole and more specifically in Franklin, Hamilton, Mahoning, and Montgomery counties, has been diluted by the new apportionment plan.

In making the case against the defendants, plaintiffs must first show that they have standing to sue. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations, quotation marks, and footnote omitted), the Supreme Court held that the

irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical ... Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... tracef[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

In United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995), the Supreme Court had an opportunity to revisit the standing issue in a way instructive to the question before us today. The Court said, "we have repeatedly refused to recognize a generalized grievance against allegedly illegal governmental conduct as sufficient for standing to invoke the federal judicial power." Id. at 743, 115 S.Ct. 2431. The Court went on to say, "The rule against generalized grievances applies with as much force in the equal protection context as in any other." Id.

Because of this rule, plaintiffs, in cases such as this one, who challenge a state's reapportionment plan on equal protection grounds claiming the plan has been racially gerrymandered, must show that they live in a district so affected. The Hays Court recognized that "Demonstrating the individualized harm our standing doctrine requires may not be easy in the racial gerrymandering context, as it will frequently be difficult to discern why a particular citizen was put in one district or another." Id. at 744, 115 S.Ct. 2431. If a plaintiff can argue that he resides in a district created in violation of his rights to equal protection and on the basis of race, then that plaintiff clearly has standing. See id. at 745, 115 S.Ct. 2431. The Court went on, however, to say, "On the other hand, where a plaintiff does not live in such a district, ... any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference .... [T]hat plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve." Id; see also Bush v. Vera, 517 U.S. 952, 957-58, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996).

The defendants assert that some of the plaintiffs lack standing to sue, arguing that there is a problem with standing in House Districts 19, 21, 26, 32, and 33. The defendants argue that, respectively, plaintiffs Stearns, Parker, Beatty, Mallory, and Yates, do not actually challenge the constitutionality of the reapportionment plan as to their own districts. Because the purpose of this litigation is to resolve as fully as possible the question of the constitutionality of the 1991 Ohio reapportionment plan, for the purpose of this decision, we presume that all of the plaintiffs have standing to challenge the plan.

We turn now to the heart of the claim of vote dilution. The first of the plaintiffs' claims arises from the Voting Rights Act. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25, (1986), the Supreme Court articulated three preconditions to a cognizable votedilution claim under Section 2 of the Voting Rights Act. The Sixth Circuit has described these preconditions as "a set of three necessary, but not sufficient, conditions for a plaintiff to succeed in a Voting Rights Act claim." Mallory v. Ohio, 173 F.3d 377, 380 (6th Cir.1999). Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752 (internal citations omitted), states

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.... Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate. These preconditions have been used since Gingles to inform and drive the debate about racially-motivated redistricting. Although Gingles pertained to multi-member districts, the Supreme Court extended its reasoning and holding to single-member districts in Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) ("It would be peculiar to conclude that a vote-dilution challenge to the (more dangerous) multimember district requires a higher threshold showing than a vote-fragmentation challenge to a single-member district.").

The defendants first argue that the plaintiffs have failed to carry their burden on the first Gingles precondition: showing that African-American populations in the districts at issue are sufficiently large and geographically compact to constitute a majority. As the defendants point out, the plaintiffs have failed to show in any challenged district that the district might be redrawn to constitute a majority/minority district, in a way consistent with Article XI of the Ohio...