Summary
criticizing Map 3 for including 19 districts where "the Democratic vote share is between 50 and 52 percent"
Summary of this case from Gonidakis v. LaRoseOpinion
2021-1193 2021-1198 2021-1210
03-16-2022
League of Women Voters of Ohio et al. v. Ohio Redistricting Commission et al. Bennett et al. v. Ohio Redistricting Commission et al. Ohio Organizing Collaborative et al. v. Ohio Redistricting Commission et al.
ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey; American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González, Juliana Goldrosen, David Denuyl, Alexander Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1193. McTigue, Colombo & Clinger, L.L.C., Donald J. McTigue, and Derek S. Clinger; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Jyoti Jasrasaria, and Spencer W. Klein, for petitioners in case No. 2021-1198. Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A. Sutherland, Ben R. Fliegel, Brad A. Funari, and Danielle L. Stewart; and Brennan Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij Rudensky, Michael Li, Harry Black, and Ethan Herenstein, for petitioners in case No. 2021-1210. Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, and Ashley T. Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission. Dave Yost, Attorney General, and Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Christopher J. Hogan, special counsel to Attorney General Dave Yost, for respondent Ohio Governor Mike DeWine. Dave Yost, Attorney General, and Bridget C. Coontz, Julie M. Pfeiffer, and Michael A. Walton, Assistant Attorneys General, and Michael J. Hendershot, Deputy Solicitor, for respondent Ohio Secretary of State Frank LaRose. Taft, Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson; and Nelson Mullins Riley & Scarborough, L.L.P., Phillip J. Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp Cooper & Elliott, L.L.C., C. Benjamin Cooper, Charles H. Cooper Jr., and Chelsea C. Weaver, for respondents Senator Vernon Sykes and House Minority Leader Allison Russo.
Submitted March 9, 2022
Original Actions filed pursuant to Ohio Constitution, Article XI, Section 9.
ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey; American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González, Juliana Goldrosen, David Denuyl, Alexander Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1193.
McTigue, Colombo & Clinger, L.L.C., Donald J. McTigue, and Derek S. Clinger; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Jyoti Jasrasaria, and Spencer W. Klein, for petitioners in case No. 2021-1198.
Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A. Sutherland, Ben R. Fliegel, Brad A. Funari, and Danielle L. Stewart; and Brennan Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij Rudensky, Michael Li, Harry Black, and Ethan Herenstein, for petitioners in case No. 2021-1210.
Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, and Ashley T. Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission.
Dave Yost, Attorney General, and Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Christopher J. Hogan, special counsel to Attorney General Dave Yost, for respondent Ohio Governor Mike DeWine.
Dave Yost, Attorney General, and Bridget C. Coontz, Julie M. Pfeiffer, and Michael A. Walton, Assistant Attorneys General, and Michael J. Hendershot, Deputy Solicitor, for respondent Ohio Secretary of State Frank LaRose.
Taft, Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson; and Nelson Mullins Riley & Scarborough, L.L.P., Phillip J. Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp.
Cooper & Elliott, L.L.C., C. Benjamin Cooper, Charles H. Cooper Jr., and Chelsea C. Weaver, for respondents Senator Vernon Sykes and House Minority Leader Allison Russo.
Per Curiam.
I. INTRODUCTION
{¶ 1} This is now the third time we are called upon to consider the validity of a General Assembly-district plan adopted by respondent Ohio Redistricting Commission. In League of Women Voters of Ohio v. Ohio Redistricting Comm., ___Ohio St.3d___, 2022-Ohio-65, __N.E.3d, ___, ¶ 2 ("League I "), we held that the commission's original plan was invalid because the commission had not attempted to meet the standards set forth in Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. The commission then adopted a revised plan, but in League of Women Voters of Ohio v. Ohio Redistricting Comm., __Ohio St.3d__, 2022-Ohio-342, __N.E.3d___, ¶ 67-68 ("League II "), we invalidated that plan because the commission again had not satisfied Sections 6(A) and 6(B). We now consider petitioners' objections to the commission's second revised plan, which the commission adopted on February 24, 2022.
{¶ 2} We hold that petitioners have shown beyond a reasonable doubt that the second revised plan violates Article XI, Sections 6(A) and 6(B). We do not reach the additional argument raised by some of the petitioners that the commission violated Article XI, Section 1(C). We again order the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution.
II. BACKGROUND
A. The commission failed to adopt a new plan by February 17
{¶ 3} In League II , we ordered the commission to adopt a new district plan no later than February 17, 2022. League II at ¶ 68. On February 9-two days after the release of League II -respondent Senator Vernon Sykes, a Democratic member and cochair of the commission, sent respondent Speaker of the House Robert Cupp, a Republican member and the other cochair, a letter requesting that the commission reconvene as soon as possible. Senator Sykes noted that this court had "directed the Commission to attempt to draw district plans" and that "[i]n order to do so, the Commission, rather than individual Commissioners, must meet and give direction to our staff and consultants." (Emphasis sic.) Senator Sykes also pointed out that in January 2022, he and the only other Democratic member of the commission, respondent House Minority Leader Allison Russo, had proposed their own General Assembly-district plan (the "Sykes-Russo plan"), which he believed could be used as a starting point for the commission's deliberations. Senator Sykes claims that in response to his letter, House Speaker Cupp indicated that he was having difficulty scheduling a commission meeting due to the limited availability of the Republican commission members.
{¶ 4} On February 11, Senator Sykes and House Minority Leader Russo sent a letter to all commission members urging them to meet as soon as possible to comply with the February 17 deadline. They also noted that they were awaiting feedback on the Sykes-Russo plan, and they asked other commission members to share any map proposals so that the commission could "work cooperatively."
{¶ 5} On February 15-eight days after the release of League II -the commission announced that it would hold a meeting on February 17. Also on February 15, counsel for the petitioners in League of Women Voters of Ohio v. Ohio Redisricting Comm. and in Bennett v. Ohio Redisricting Comm. submitted to the commission an updated version of a proposed General Assembly-district plan created by Dr. Jonathan Rodden (the "Rodden III plan").
{¶ 6} At the start of the commission's February 17 meeting, House Minority Leader Russo said that except for one email from respondent Auditor of State Keith Faber's office, she and Senator Sykes had not received feedback about the Sykes-Russo plan. When House Minority Leader Russo moved the commission to adopt the Sykes-Russo plan, respondent President of the Senate Matthew Huffman-with the assistance of prepared posters and visual aids-asked her a series of questions indicating that he believed that the plan was unconstitutional. He suggested that the Sykes-Russo plan violated Article XI, Section 6(A)-which requires that no plan be drawn primarily to favor a political party-because a number of Republican incumbents would be unable to seek reelection under it, since they were either drawn into the same district as other Republicans or drawn into Democratic-leaning districts. He also said that several districts were not compact and that the plan would be struck down in federal court as a racial gerrymander.
{¶ 7} At one point during Senate President Huffman's comments, Senator Sykes stated again that neither he nor House Minority Leader Russo had received substantive feedback about their proposed Sykes-Russo plan before the meeting. Senator Sykes reminded the other members that this court had directed the commission-not the majority or minority parties-to draw a map and that the commission members would need to work together to comply with the court's order. Senate President Huffman responded by saying that in September 2021, during the first map-drawing process, he spent three days trying to reach a resolution with Senator Sykes and other commission members but "that didn't happen" and that he now was focused only on the map that was currently before the commission.
{¶ 8} The commission voted five to two against adopting the Sykes-Russo plan. No other commission member proposed a General Assembly-district plan for consideration at the February 17 meeting. Instead, after a recess, several commission members made statements. Senate President Huffman suggested that it was impossible to draw an entirely new plan within ten days as ordered by this court and that he did not believe the commission could "ascertain" a General Assembly-district plan that complies with the Ohio Constitution, as interpreted by this court, and with federal law. Respondent Secretary of State Frank LaRose said that the map drawers-Ray DiRossi and Blake Springhetti, who Secretary LaRose noted, "work for the speaker and for the president"-told him that the commission cannot "constitutionally do what the court majority has asked [the commission] to do." Respondent Governor Mike DeWine said that the commission did not have the "luxury of saying we're just quitting" and that it had an obligation to attempt to comply with the court's order "and to send a map to the court." House Speaker Cupp declared that the commission was "in an impasse."
{¶ 9} The commission adjourned its February 17 meeting without adopting a General Assembly-district plan. The commission did not specify the steps it had taken to attempt to comply with this court's order. The next day, the commission filed in this court a "Notice of Impasse."
B. Respondents are ordered to show cause
{¶ 10} On February 18, petitioners filed motions to require respondents either to explain their reasons for failing to adopt a new General Assembly-district plan or to show cause why they should not be held in contempt. Later that day, this court ordered respondents to show cause by February 23 why they should not be held in contempt for failing to comply with our order in League II. 166 Ohio St.3d 1402, 2022-Ohio-498, __N.E.3d__; 166 Ohio St.3d 1403, 2022-Ohio-498, __N.E.3d __
{¶ 11} On February 22, the commission met to discuss congressional redistricting. At that meeting, Governor DeWine reiterated his position that the commission had an obligation to follow this court's orders regarding General Assembly redistricting. Auditor Faber suggested that the commission schedule a meeting within the next two days to discuss a General Assembly-district plan that "may be being discussed and/or prepared" or to discuss, in the alternative, the Rodden III plan. House Speaker Cupp agreed to schedule a meeting for the next day to "report on any progress that may be made on a General Assembly district map." House Minority Leader Russo said that she and Senator Sykes had not been included in any discussions regarding a potential General Assembly-district plan, and she requested that other commission members' staff include the minority members in those discussions.
{¶ 12} On February 23, respondents filed five separate responses to the show-cause order. Senate President Huffman and House Speaker Cupp argued that a contempt hearing was unnecessary because they anticipated that the commission would vote on a new plan "this week." At the commission's meeting later that day, House Speaker Cupp reported that "progress [was] being made" on a proposed General Assembly-district plan and that the map would be made available soon. House Minority Leader Russo again requested that if work was being done on a map "that the majority caucuses please make their staff available" to the minority members and their staff so that they could "meet to discuss what these maps may look like."
C. The commission adopts a second revised plan on February 24
{¶ 13} On February 24, respondents were ordered to appear in this court for a March 1 hearing on the show-cause order. 166 Ohio St.3d 1407, 2022-Ohio-518, __N.E.3d ___. According to House Minority Leader Russo, also on February 24, House Speaker Cupp informed her and Senator Sykes that DiRossi and Springhetti could meet with them to show them the new proposed General Assembly-district plan. House Minority Leader Russo states that during the meeting with DiRossi and Springhetti, she and Senator Sykes asked whether they would have an opportunity to provide feedback on the proposed plan, and DiRossi responded that such decisions were "above his pay grade."
{¶ 14} About an hour later, the commission reconvened and discussed the proposed plan. Presumably referring to himself, House Speaker Cupp, and their map drawers, Senate President Huffman said, "[W]e've been working a lot of these past several days to try to resolve the General Assembly maps," and it was his understanding that "all of the Republican commissioners" had had an opportunity to review the proposed plan. Senator Sykes asked whether the other Republican commission members had participated in drafting the plan. Senate President Huffman responded: "I don't have a daily log or diary of what each of the other six members of the commission did. Everyone's had a chance to see it, make comments, suggestions, whatever it may be."