Quilter v. Voinovich

• Decision Date: 31 March 1994
• Docket Number: No. 5:91 CV 2219.,5:91 CV 2219.
• Citation: 857 F. Supp. 579
• Parties: Barney QUILTER, et al., Plaintiffs, v. George V. VOINOVICH, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

857 F. Supp. 579

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

No. 5:91 CV 2219.

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

March 31, 1994.

Timothy F. Scanlon, Scanlon & Gearinger, Akron, OH, Armistead W. Gilliam, Jr., Ann Wightman, Faruki, Gilliam & Ireland, Dayton, OH, for plaintiffs Barney Quilter, Thomas E. Ferguson, Glen Achtermann, Sam Barone, Sandra Guy, Robert McLaughlin, James B. McCarthy, Gladys Henson, Tom Kilbane, Robert H. Trainer, A. Wayne Bussler, James P. Speros, Kenneth Thorne, Charles Walker, William Shanklin, Clarence Lumpkin, Tyrone Riley.

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

Orla Ellis Collier, III, Norton Victor Goodman, James F. DeLeone, Mark D. Tucker, Benesch, Friedlander, Coplan & Aronoff, Columbus, OH, Charles M. Rosenberg, Maynard A. Buck, III, Jeremy Gilman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, OH, for defendants George V. Voinovich, Stanley J. Aronoff, Robert A. Taft, II.

Charles M. Rosenberg, Maynard A. Buck, III, Jeremy Gilman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, OH, for defendant James R. Tilling.

Jack Gregg Haught, Andrew S. Bergman, Office of Atty. Gen., Columbus, OH, for real party in interest State of OH.

Lawrence A. Kane, Jr., Dinsmore & Shohl, Cincinnati, OH, special master.

Armistead W. Gilliam, Jr., Ann Wightman, Faruki, Gilliam & Ireland, Dayton, OH, for intervenors-plaintiffs Paul Mechling, Mary Abel, Ronald Gerberry, Richard Cordray.

OPINION AND ORDER

Before: JONES, Circuit Judge, CELEBREZZE, Senior Circuit Judge, and DOWD, District Judge.

NATHANIEL R. JONES, Circuit Judge.

The plaintiffs filed this action to challenge the apportionment of Ohio's state legislative districts performed pursuant to 1990 census data. In Voinovich v. Quilter, ____ U.S. ____, ____, 113 S.Ct. 1149, 1159, 122 L.Ed.2d 500 (1993), the United States Supreme Court determined that the plaintiffs had established a prima facie case that the population disparity among districts violates the Equal Protection Clause of the Fourteenth Amendment. The Court remanded the case to this court, instructing it to determine whether the disparity is justified. After consideration of this issue, we find that the population variations are justified under established constitutional standards.

I

Pursuant to the Constitution of the State of Ohio, state house districts and state senate districts are drawn by a board of five individuals every ten years.¹ Such a five-member board was established following the 1990 federal census. The majority of the apportionment board² appointed Defendant James R. Tilling to draft an apportionment plan on their behalf. After Tilling submitted his plan, the board made various amendments to it, and the plaintiffs in this case challenged the plan that eventually was adopted. On February 18, 1992, in response to the Plaintiffs' constitutional attacks upon the plan, the board made its last changes, resulting in what has been denominated "Amendment D." The plaintiffs maintained their challenge to Amendment D, claiming, inter alia, that the populations of some of the districts depart too greatly from the ideal size.

A. The House Districts at Issue

After the 1990 census, the ideal Ohio house district included 109,567 individuals.³ Amendment D designates as house districts seven counties whose population fall within ± 10% of the ideal house district size. The populations of four of these counties fall between 95% and 105% of the ideal.⁴ The populations of the three others fell between 90%-95% or 105%-110% of the ideal: House District 5 (Ashtabula County — population 99,821, or 91.10% of the ideal district size); House District 6 (Fairfield County — population 103,461, or 94.43% of the ideal district size); and House District 7 (Wayne County — population 101,461, or 92.60% of the ideal district size).

Under Amendment D, the largest district (House District 20 — a portion of Cuyahoga County) has a population of 114,943, or 104.91% of the ideal district size. As the majority plan stands then, the total deviation⁵ between the most populous and least populous state house districts is 13.81% (or the 104.91% of House District 20 minus the 91.10% of House District 5).

B. The Senate Districts at Issue

After the 1990 census, the ideal Ohio senate district included 328,700 individuals.⁶ Pursuant to Article XI, Section 11 of the Constitution of the State of Ohio, "senate districts shall be composed of three contiguous house of representatives districts." Under Amendment D, the smallest senate district is Senate District 32 — composed of House District 66 (the southwestern quadrant of Trumbull County), House District 67 (the southeastern quadrant of Trumbull County), and House District 68 (Geauga County and the northern half of Trumbull County). Senate District 32 has a population of 308,942, or 93.99% of the ideal district size. The largest is Senate District 1 — composed of House District 82 (Williams, Fulton and Defiance Counties), House District 83 (Henry, Paulding, Putnam, and Van Wert Counties), and House District 86 (Hancock and Hardin Counties, and the northeastern quadrant of Auglaize County). Senate District 1 has a population of 343,582 individuals, or 104.53% of the ideal district size. Thus, the total deviation for the senate districts is 10.54% (or 104.53% minus 93.99%).

C. The Court's Remand

In an unpublished order filed March 19, 1992, we held that the plan's population disparities violated the equal population principles of the United States Constitution. In its opinion, the Supreme Court, inter alia, reversed this judgment and held that the plaintiffs had merely stated a prima facie case of vote dilution and that the apportionment plan's creators must be given an opportunity to explain whether the deviations are justified. ___ U.S. at ___, 113 S.Ct. at 1159. Specifically, the Court instructed that we consider whether the deviations from the ideal district size are justified using the analysis employed in Brown v. Thomson, 462 U.S. 835, 843-46, 103 S.Ct. 2690, 2696-98, 77 L.Ed.2d 214 (1983), and Mahan v. Howell, 410 U.S. 315, 325-330, 93 S.Ct. 979, 985-87, 35 L.Ed.2d 320 (1973). ___ U.S. at ___, 113 S.Ct. at 1159. In the following sections, we fully consider the defendants' justification under Brown, Mahan, and the Court's other relevant precedents.

II

The Supreme Court's decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), established the principle that the Equal Protection Clause prevents the dilution of votes that can occur when citizens are placed in overpopulated state legislative districts.

We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.

Id. at 568, 84 S.Ct. at 1385.⁷

We are to give states "somewhat more flexibility" in their establishment of state legislative districts as opposed to federal congressional districts. Reynolds, 377 U.S. at 578, 84 S.Ct. at 1390; see also Brown, 462 U.S. at 850 n. 2, 103 S.Ct. at 2693 n. 2 (O'Connor, J., concurring) ("The Court has recognized that States enjoy a somewhat greater degree of latitude as to population disparities in a state legislative scheme, which is tested under Equal Protection Clause standards, than in a congressional redistricting scheme, for which the Court has held that Art. I, § 2, of the Constitution provides the governing standard."); Mahan, 410 U.S. at 321-22, 327, 93 S.Ct. at 984, 986. The Court has given instructions as to the nature and extent of this flexibility in Mahan, Brown, and its other cases in this area.

Whether a prima facie case of a Fourteenth Amendment violation is established depends principally upon the amount of total deviation. Deviations from mathematical equality among state legislative districts are to be considered de minimis if the total deviation is between 0% and 10%. Where the deviation is de minimis, a plaintiff cannot establish a prima facie case of discrimination under the Equal Protection Clause. Brown, 462 U.S. at 842-43, 103 S.Ct. at 2696; Connor v. Finch, 431 U.S. 407, 418, 97 S.Ct. 1828, 1835, 52 L.Ed.2d 465 (1977); see generally White v. Regester, 412 U.S. 755, 763-64, 93 S.Ct. 2332, 2338, 37 L.Ed.2d 314 (1973) (state needed to provide no explanation for 9.9% total deviation); Gaffney v. Cummings, 412 U.S. 735, 750, 93 S.Ct. 2321, 2330, 37 L.Ed.2d 298 (1973) (state needed to provide no explanation for 7.83% total deviation); Abate v. Mundt, 403 U.S. 182, 184-87, 91 S.Ct. 1904, 1905-08, 29 L.Ed.2d 399 (1971) (county explanation required to uphold 11.9% total deviation).

If, as in the instant case, the total deviations exceed 10%, a prima facie case of a violation is established and the state is called upon to justify the deviations. Its justification must consist of three components: (1) articulating a "rational state policy" which may justify the deviations; (2) explaining how the apportionment plan "may reasonably be said to advance" the rational state policy; and (3) showing that the deviations resulting from the reasonable pursuit of the rational state policy do not "exceed constitutional limits." Mahan, 410 U.S. at 328, 93 S.Ct. at 987; see also Brown, 462 U.S. at 843, 103 S.Ct. at 2696.

III

We now consider the components of the justification advanced to explain the population disparity here.

A. Whether Defendants have asserted a rational state policy.

The Supreme Court has considered certain purported...