Quilter v. Voinovich, 5:91 CV 2219.

• Decision Date: 10 March 1992
• Docket Number: No. 5:91 CV 2219.,5:91 CV 2219.
• Parties: Barney QUILTER, et al., Plaintiffs, v. George V. VOINOVICH, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

794 F. Supp. 756

Barney QUILTER, et al., Plaintiffs, v. George V. VOINOVICH, et al., Defendants.

No. 5:91 CV 2219.

United States District Court, N.D. Ohio, E.D.

March 10, 1992.

Timothy F. Scanlon, Scanlon & Gearinger, Akron, Ohio, Armistead W. Gilliam, Jr., Ann Wightman, Faruki, Gilliam & Ireland, Dayton, Ohio, for plaintiffs.

Timothy F. Scanlon, Scanlon & Gearinger, Akron, Ohio, Thomas I. Atkins, Sr., Brooklyn, N.Y., Armistead W. Gilliam, Jr., Ann Wightman, Laura A. Sanom, Faruki, Gilliam & Ireland, Dayton, Ohio, for plaintiff William L. Mallory.

Orla Ellis Collier, III, Norton Victor Goodman, James F. DeLeone, Mark D. Tucker, Benesch, Friedlander, Coplan & Aronoff, Columbus, Ohio, Charles M. Rosenberg, Maynard A. Buck, III, Jeremy Gilman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for defendants.

Armistead W. Gilliam, Jr., Ann Wightman, Faruki, Gilliam & Ireland, Dayton, Ohio, for intervenors-plaintiffs.

Before NATHANIEL R. JONES, Circuit Judge, PECK, Senior Circuit Judge, and DOWD, District Judge.

ORDER

On January 31, 1992, this Court filed its opinion and order holding that there is no legal mandate requiring the creation of majority-minority districts wherever possible in the 1991 Apportionment Plan for the Ohio General Assembly (the Plan). Furthermore, this Court found that the Apportionment Board had not conducted a totality of the circumstances analysis sufficient to establish a violation of the Voting Rights Act and justify the majority-minority districts delineated in the Plan. The Board was ordered to reconsider the Plan and either show justification under the totality of the circumstances test for the majority-minority districts or submit a revised plan.

On February 19, 1992, the Defendants submitted, inter alia, the Board's Findings and Conclusions and what they termed a revised apportionment plan which, however, is identical to the Plan except for correction of "technical errors." The Board's Findings include a totality of the circumstances analysis.

After careful review, we find that the Board's totality of the circumstances analysis contains only meager information that was not previously before this Court. Furthermore, the information is not of assistance in answering the "question whether the political processes are `equally open'", nor does the analysis constitute the "searching practical evaluation of the `past and present reality'" contemplated by the legislative history of the 1982 amendments to the Voting Rights Act. S.Rep. No. 417, 97th Cong.2d Sess. 30, U.S.Code Cong. & Admin.News 1982, pp. 177, 208. Accordingly, the Board fails once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965. As noted in the Conclusion of our January 31, 1992 order and opinion, it has heretofore been unnecessary in these proceedings to reach the constitutional issues present, but we now proceed to decide that the plan as submitted is also violative of the Fifteenth Amendment of the United States Constitution. "Once a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan." Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964). It is therefore incumbent on this court to enjoin any election for the Ohio General Assembly until a constitutional plan is submitted by the Special Master and approved by this court.¹ Accordingly, the date of May 5, 1992 for the holding of the Ohio primary election is vacated to the extent that candidates for election to the General Assembly are concerned, and the appropriate election officials are enjoined and directed to cause such primary election to be held on June 2, 1992, provided, however, that on proper showing the court may provide an alternate date.

The plan herein above referenced marks the second time that the Apportionment Board has failed to meet the standards mandated by federal law even in the face of clear and unambiguous legal direction from this Court. In this situation it is concluded that exceptional circumstances exist which require the appointment of a Special Master to prepare an acceptable apportionment plan. The Court therefore hereby appoints Lawrence A. Kane, Jr., 1900 Chemed Center, 255 E. 5th St., Cincinnati, Ohio 45202, as such Special Master, for the purpose of submitting a plan which complies with federal and state law and this Court's January 31 order and opinion. This appointment is made pursuant to Rule 53 of the Federal Rules of Civil Procedure and the master herein appointed is to be sworn to accept the responsibilities and obligations established therein. In addition, the special master is specifically authorized and empowered to employ an expert or experts versed in the subject area and such other expert and lay assistance as may be appropriate in the circumstances. Costs incurred shall be assessed against the State of Ohio.

IT IS SO ORDERED.

DOWD, District Judge, dissenting:

I find that the defendants have complied with the order of my colleagues published on January 31, 1992. The defendants were instructed to reconsider the 1991 apportionment plan and submit a revised plan unless the defendants were able to show a justification for the creation of additional majority-minority districts in the State of Ohio. In response the defendants filed an exhaustive set of fact findings¹ and engaged in a slight modification of the majority-minority districts.²

The basis for the creation of the majority-minority districts has been dismissed with the criticism that the justification is on a state-wide basis and does not include an analysis or justification on a district by district basis. I read the latest opinion of my colleagues to establish the proposition that an apportionment body, be it a legislative body or, as in Ohio, a constitutionally created body, is not permitted to take into consideration the Voting Rights Act in the apportionment process unless the body, be it the legislature or the specifically designated body such as the governor, auditor of state, secretary of state and the two representatives from the General Assembly conduct a judicial like proceeding such as the case that gave rise to the Armour decision.³ I again reject that proposition as unsound and not in keeping with precedent⁴ or the legislative history of the Voting Rights Act.

Moreover, in this case, despite the sweeping language of the majority opinion, the recently filed fact findings of the defendants do address the creation on a specific basis the proposed majority-minority districts contained in the 1991 Apportionment Plan.

I commend my colleagues for the order to the extent it identifies for the citizens of Ohio the ramifications of its order today appointing a special master. As indicated, the May primary will not take place as scheduled unless a higher court should see fit to stay the majority's order. The General Assembly is now faced with the need to consider whether to move back the May primary until the designated date of June 2. However, the majority's opinion fails to address whether prospective candidates will be given an opportunity to file nominating petitions after the legislative boundaries are finally determined. Despite my commendation, I am apprehensive that the work of the master and considerations of the challenges that are certain to flow from his recommendations place in jeopardy the revised date of June 2 for holding the primary for the General Assembly candidates.

I believe the order to the master also suffers from a lack of comprehensive instructions. The master is given no directions on the following issues.

1. What data base is the master to consider in responding to the reference? Is he to consider or ignore the extensive testimony received by the Apportionment Board as it conducted public hearings across the State of Ohio in 1991 before the 1991 apportionment plan was adopted? Is the master to ignore the Voting Rights Act in arriving at his recommendation? Is the master to conduct public hearings before making his recommendation?

2. The 1981 Apportionment Plan created four majority-minority districts. The plan advanced in the 1991 Apportionment Plan as adopted calls for eight majority-minority districts. The plan advanced by the plaintiffs Quilter and Ferguson, also members of the Apportionment Board, proposed the creation of an additional two majority-minority districts. The rejection by the majority of this panel of the 1991 Apportionment Plan is anchored in the creation of the additional four districts without the requisite...