# Simon v. DeWine

> District Court, N.D. Ohio · July 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10664346

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** July 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10664346

## How later opinions describe it (automated extraction)

- holding unconstitutional Oklahoma’s grandfather clause
- describing Tuskegee, Alabama as having been altered by the State legislature “from a square to an uncouth twenty-eight sided figure,” resulting in a change from a majority-Black district to one that contained only a few Blacks
- holding unconstitutional white primaries in Texas
- recognizing that the Gingles preconditions apply to claims challenging single-member districts

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

)
Reverend Kenneth L. Simon, et al., )
)
Plaintiffs, )
)
Case No.: 4:22-cv-612
v. )

)
Three-Judge Court
Mike DeWine, et al., )
)
Defendants. )
)

Opinion and Order
Decided and Filed: July 1, 2024
BEFORE: LARSEN, Circuit Judge, OLIVER, and ADAMS, District Judges.
PER CURIAM. The plaintiffs in this case are Black voters from Mahoning County, Ohio.
They allege that the defendants, the Ohio Redistricting Commission and certain Commission
members, intentionally disregarded race in redrawing Ohio’s congressional districts and drew
districts that dilute Black voting strength. Plaintiffs argue that these actions violated § 2 of the
Voting Rights Act and the First, Fourteenth, and Fifteenth Amendments. Plaintiffs seek a
temporary restraining order, a preliminary injunction, and partial summary judgment. Defendants
move to dismiss. For the reasons below, we GRANT the defendants’ motion and DENY the
plaintiffs’ motions as moot.
I.
Ohio’s most-recent attempt to draw congressional districts generated substantial litigation.
See, e.g., Adams v. DeWine, 195 N.E.3d 74 (Ohio 2022). This case concerns Ohio’s operative
redistricting plan, adopted on March 2, 2022. On April 15, 2022, Black voters from Mahoning
County sued the Redistricting Commission and certain Commission members, alleging that the
redistricting plan violated their rights. Plaintiffs allege that defendants intentionally disregarded
race in redrawing Ohio’s congressional districts and drew districts that dilute Black voting
strength. In support of their claims, plaintiffs present a proposed alternative district with what they

label as a “determinative”—though not majority—Black vote. R. 1, PageID 19; R. 1-5. Plaintiffs
make four claims premised on these allegations: one under § 2 of the Voting Rights Act, 52 U.S.C.
§ 10301, and three under 42 U.S.C. § 1983 based on alleged violations of their First, Fourteenth,
and Fifteenth Amendment rights.
Plaintiffs also moved for appointment of a three-judge court, class certification, a
temporary restraining order, a preliminary injunction, appointment of a special master, and partial
summary judgment. Defendants moved to dismiss for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). The district judge assigned to the case referred the defendants’
motions to dismiss to a magistrate judge. The magistrate judge recommended granting the motions
but noted that the court first had to resolve the plaintiffs’ motion for appointment of a three-judge

panel. See 28 U.S.C. § 2284. The court granted the defendants’ motions to dismiss and denied
the plaintiffs’ motions, including the motion for a three-judge panel, concluding that plaintiffs had
failed to present a substantial federal question over which the court had jurisdiction. See Shapiro
v. McManus, 577 U.S. 39, 45–46 (2015). Plaintiffs appealed. The Sixth Circuit reversed the denial
of the motion for a three-judge panel, vacated the other orders, and remanded. Simon v. DeWine,
98 F.4th 661, 666 (6th Cir. 2024). This case is now before a three-judge court. Plaintiffs have
filed renewed motions for a temporary restraining order, a preliminary injunction, and partial
summary judgment. Defendants responded with a renewed motion to dismiss.
II.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Fed. R.

Civ. P. 12(b)(6). A claim is plausible when a court could “draw the reasonable inference that the
defendant is liable.” Iqbal, 556 U.S. at 678. While the plaintiffs’ allegations must be taken as
true, it is not enough to present “labels and conclusions,” “naked assertion[s],” and “formulaic
recitation[s] of the elements of a cause of action.” Id. (quoting Twombly, 550 U.S. at 555, 557).
A.
Plaintiffs first claim that defendants violated their rights under § 2 of the Voting Rights
Act. Section 2 prohibits any voting standard, practice, or procedure that “results in a denial or
abridgment of the right of any citizen of the United States to vote on account of race or color.” 52
U.S.C. § 10301(a). A violation is established when, “based on the totality of the circumstances,”
the “political processes” are “not equally open” to members of a class of protected citizens such

that “its members have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice.” Id. § 10301(b).
In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court announced three
preconditions to stating a § 2 claim: “(1) the minority group must be ‘sufficiently large and
geographically compact to constitute a majority in a single-member district;’ (2) the minority
group must be ‘politically cohesive;’ and (3) the majority must vote ‘sufficiently as a bloc to enable
it . . . usually to defeat the minority’s preferred candidate.’” Bartlett v. Strickland, 556 U.S. 1, 11
(2009) (cleaned up) (quoting Gingles, 478 U.S. at 50–51); see also Allen v. Milligan, 599 U.S. 1,
38 (2023) (recognizing that the Gingles preconditions apply to claims challenging single-member
districts). “[U]nless each of the three Gingles prerequisites is established, ‘there neither has been
a wrong nor can be a remedy.’” Cooper v. Harris, 581 U.S. 285, 287 (2017) (quoting Growe v.
Emison, 507 U.S. 25, 41 (1993)).
In support of their challenge, plaintiffs present a proposed alternative district, which they

concede does not have a majority-Black voting-age population. That is fatal to their claim because
the first Gingles precondition requires the ability to form a majority-minority alternative district.
See 478 U.S. at 50–51; see also Allen, 599 U.S. at 18 (explaining that the first Gingles precondition
is “needed to establish that the minority has the potential to elect a representative of its own choice
in some single-member district” (citation omitted)).
Plaintiffs contend, however, that the Gingles preconditions do not apply to their claim.
They rest this assertion on Armour v. Ohio, 775 F. Supp. 1044 (N.D. Ohio 1991). In that case, a
three-judge district court declined to apply the Gingles preconditions to a claim involving a
proposed alternative district that, like this one, lacked a majority-minority voting-age population.
Id. at 1051–52, 1059–60. We are not bound by Armour. See Wright & Miller, 17A Fed. Prac. &

Proc. Juris. § 4235 (3d ed.) (“The decision of [a] three-judge [district] court itself carries no greater
weight as precedent than any other decision of a district court.”). But, like the opinions of other
district courts, we consider it for its persuasive value.
The district court in Armour offered two reasons why it was not required to apply the
Gingles preconditions. First, the Supreme Court had not yet decided whether the Gingles
preconditions applied to challenges to single-member districts. Armour, 775 F. Supp. at 1051
(quoting Gingles, 478 U.S. at 46 n.12). But that door has since closed. The Supreme Court has
made clear that “Gingles ‘certainly’” governs “claims challenging single-member districts.” Allen,
599 U.S. at 38 (cleaned up). So plaintiffs’ reliance on this aspect of Armour’s reasoning is no
longer viable.
Second, the court in Armour noted that the Supreme Court had, at the time, “suggested that
a dilution of minority influence” over an election “may be sufficient to sustain” a § 2 claim, even

if the minority group lacked sufficient strength to determine the outcome. 775 F. Supp. at 1052
(citing Chisom v. Roemer, 501 U.S. 380, 397 n.24 (1991)). That reasoning has also since been
undermined. See Bartlett, 556 U.S. at 13 (“This Court has held that § 2 does not require the
creation of influence districts.”). So this aspect of Armour likewise cannot support the plaintiffs’
attempt to avoid the Gingles preconditions.
To see this clearly, it is worth a refresher on two perennially puzzling legal concepts. First,
“the terminology often used to describe various features of election districts in relation to the
requirements of the Voting Rights Act.” Bartlett, 556 U.S. at 13. And second, the rules for reading
Supreme Court opinions in which no one position garners majority support. See Marks v. United
States, 430 U.S. 188 (1977).

In Armour, the district court concluded that the plaintiffs had shown that Black voters could
elect a candidate of their choice, with the help of non-minority voters. 775 F. Supp. at 1060. The
Supreme Court has since labeled that a “crossover” claim—one in which the minority population
is “large enough to elect the candidate of its choice with help from voters who are members of the
majority and who cross over to support the minority’s preferred candidate.” Bartlett, 556 U.S. at
13. A “crossover” claim is distinct from an “influence” claim, “in which a minority group can
influence the outcome of an election even if its preferred candidate cannot be elected.” Id. Neither
claim is cognizable under current Supreme Court precedent.
The Supreme Court barred influence claims in League of United Latin American Citizens
(LULAC) v. Perry, 548 U.S. 399 (2006). In that case, Justice Kennedy authored an opinion
concluding, in Part IV, that the fact that Black voters had “influence in the district does not suffice
to state a § 2 claim” because § 2 “requires more than the ability to influence the outcome between

some candidates, none of whom is their candidate of choice.” Id. at 445 (emphasis added). Three
Justices signed on to Part IV. Id. at 408. Two Justices concurred for the reasons given in Justice
Thomas’s concurrence in Holder v. Hall, 512 U.S. 874 (1994). LULAC, 548 U.S. at 511–12
(Scalia, J., concurring). In Holder, Justice Thomas wrote that § 2 does not authorize vote-dilution
claims at all. 512 U.S. at 945 (Thomas, J., concurring). When no Supreme Court opinion garners
majority support, we treat the “position taken by [the Justice or Justices] who concurred in the
judgment[] on the narrowest grounds” as “the holding of the Court.” Marks, 430 U.S. at 193
(citation omitted); see also EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 431
(6th Cir. 2020). In LULAC, that is Part IV of Justice Kennedy’s opinion. The Supreme Court has
since recognized as much. Bartlett, 556 U.S. at 13 (2009) (“This Court has held that § 2 does not

require the creation of influence districts.”) (citing LULAC, 548 U.S. at 445).
The Supreme Court barred crossover claims in Bartlett v. Strickland, 556 U.S. 1 (2009).
In that case, Justice Kennedy authored an opinion concluding that § 2 does not permit crossover
claims because the first Gingles precondition still applies, i.e., the proposed alternative district
must be majority-minority. Id. at 14–20. Bartlett, like LULAC, generated a Marks holding. Three
Justices signed on to Justice Kennedy’s opinion. Id. at 5. Two Justices concurred—again for the
reasons given in Justice Thomas’s concurrence in Holder—that § 2 “does not authorize any vote
dilution claim, regardless of the size of the minority population in a given district.” Id. at 26
(Thomas, J., concurring). The Marks holding is Justice Kennedy’s conclusion that crossover
claims are not cognizable because § 2 vote-dilution claims must satisfy the Gingles preconditions,
including the majority-minority requirement. See, e.g., Backus v. South Carolina, 857 F. Supp. 2d
553, 566 n.2 (D.S.C. 2012), aff’d, 568 U.S. 801 (2012).
These cases foreclose plaintiffs’ § 2 claim. Plaintiffs say that their claim is an Armour

claim. The claim in Armour was what the Supreme Court would now call a “crossover” claim.
See 775 F. Supp. at 1060. And Bartlett held that crossover claims are not cognizable because the
Gingles majority-minority requirement still applies. Bartlett, 556 U.S. at 14–20. Plaintiffs must
show that they can elect the candidate of their choice “based on their own votes and without
assistance from others.” Id. at 14. They cannot do so, so their claim fails.
Plaintiffs try to escape this conclusion by saying that we misunderstand Armour, and hence
their claim as well. Armour, they say, is actually about the ability to “nominate” rather than “elect”
a candidate of choice. As they put it, “Armour was a nomination claim.” R. 20, PageID 1111–12.
The relabeling does not help. Critically, plaintiffs direct us to nothing in Armour or any other case
that suggests that the ability to nominate a candidate alone is of any § 2 significance. See Bartlett,

556 U.S. at 15 (“Nothing in § 2 grants special protection to a minority group’s right to form
political coalitions.”). Rather, in Armour, the district court concluded that the plaintiffs had shown
that Black voters could elect a candidate of their choice, with the help of non-minority voters. 775
F. Supp. at 1060. In the Supreme Court’s current nomenclature that is a “crossover” claim; and
crossover claims are not cognizable under § 2. Bartlett, 556 U.S. at 14–20. Therefore, we dismiss
this claim.1

1 Defendants requested permission to provide additional briefing on whether § 2 creates a private
cause of action. We decline to address that question here. The issue is not one that goes to our
jurisdiction, so we need not decide it, as we have instead dismissed the claim on other grounds.
See Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 86 F.4th 1204, 1217–18 (8th
Cir. 2023).
B.
In addition to their claim under § 2 of the Voting Rights Act, plaintiffs bring three claims
under 42 U.S.C. § 1983 based on alleged violations of the First, Fourteenth, and Fifteenth
Amendments. Section 1983 creates a right of action to sue state officers for “deprivation of any

rights, privileges, or immunities secured by the Constitution and laws” of the United States. Id.
In other words, § 1983 “provides a mechanism for enforcing individual rights ‘secured’ elsewhere,
i.e., rights independently ‘secured by the Constitution and laws’ of the United States.” Gonzaga
Univ. v. Doe, 536 U.S. 273, 285 (2002).
1.
Plaintiffs first claim that defendants deprived them of their rights under § 2 of the
Fourteenth Amendment through intentional racial discrimination. Section 2 provides:
Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the choice of
electors for President and Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in such
State.

U.S. Const. amend. XIV § 2.

Some of this section’s provisions have obviously been superseded by subsequent
amendments. See U.S. Const. amends. XIX, XXVI. But the thrust of this section is that when a
state denies or abridges the right of its citizens to vote, the basis of that state’s representation is to
be proportionally reduced. Assuming that § 2 secures an individual right that can be enforced
through § 1983, which is not at all clear, the plaintiffs lack standing to bring this claim.
In order for a federal court to adjudicate a claim, a plaintiff must have standing. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). That requires (1) an injury-in-fact to the plaintiff,
(2) that the defendant caused, and (3) that a judicial decree can redress. Id. at 560–61. Here, we
need only address redressability. See Ames v. LaRose, 86 F.4th 729, 732 (6th Cir. 2023).

In connection with this claim, plaintiffs seek the relief contemplated by § 2: a proportional
reduction in a state’s representation. U.S. Const. amend. XIV § 2. Specifically, they ask that “as
a result of the intentional violation of Section 2 of the 14th Amendment by defendants the number
of representatives in Ohio should be reduced to the same extent that defendants caused Ohio Black
voting power to be debased.” R. 1, PageID 24. But the defendants in this case are state officials
who are not involved in the congressional apportionment process. See 2 U.S.C. § 2a; Sharrow v.
Brown, 447 F.2d 94, 97–98 (2d Cir. 1971) (identifying the relevant actors as the Secretary of
Commerce, the President, and the Clerk of the House of Representatives). The relief plaintiffs
seek is beyond the defendants’ ability to provide. And this court can “accord relief only against
the [defendants],” so we cannot issue an order that would redress the plaintiffs’ alleged harm. See

Lujan, 504 U.S. at 568. That being so, we must dismiss this claim for lack of standing.
2.
Plaintiffs next claim that defendants deprived them of their rights under § 1 of the Fifteenth
Amendment through intentional racial discrimination. Section 1 prohibits the denial or
abridgement of the right to vote on account of race, color, or previous condition of servitude. U.S.
Const. amend. XV § 1. It is not clear whether plaintiffs mean to assert a vote-dilution claim or a
racial-gerrymandering claim under the Fifteenth Amendment. Nor is it clear “whether vote
dilution claims are cognizable under the Fifteenth Amendment.” Backus, 857 F. Supp. 2d at 569.
Regardless, the plaintiffs’ claim fails on its own terms.
Plaintiffs assert that defendants enacted the redistricting plan with the intent to deny them
the right to vote on account of race. But that conclusory assertion is at odds with the plaintiffs’
factual allegations. Plaintiffs allege that defendants “intentionally decided to ignore race” and
“did not use demographic or racial data in the production of [their] maps.” R. 1, Complaint,

PageID 8–9 (emphasis added). Those allegations contradict, rather than plausibly support, a claim
of intentional racial discrimination. Iqbal, 556 U.S. at 678. Thus, we dismiss this claim.
3.
Lastly, plaintiffs claim that defendants deprived them of their rights under the First and
Fourteenth Amendments by placing an undue burden on their right to vote.
The plaintiffs’ Fourteenth Amendment claim—presumably brought under the Equal
Protection Clause—fails for the same reason as their Fifteenth Amendment claim. Here, plaintiffs
do not even mention intentional racial discrimination. Instead, they argue that defendants placed
an “undue burden” on their right to vote through “redistricting procedures that result in
denial . . . of the opportunity to elect representatives of choice.” R. 1, PageID 25.

But “a plaintiff bringing a constitutional vote dilution challenge, whether under the
Fourteenth or Fifteenth Amendment, [is] required to establish that the State or political subdivision
acted with a discriminatory purpose.” Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481–82 (1997)
(citing Mobile v. Bolden, 446 U.S. 55, 66 (1980)). The complaint includes a single sentence
asserting that defendants “intentional[ly] fail[ed]” to comply with the Fourteenth Amendment. R.
1, PageID 25. But a conclusory statement like that is not enough to state a plausible claim of
intentional racial discrimination. Iqbal, 556 U.S. at 678. Accordingly, we dismiss this claim.
As for the plaintiffs’ First Amendment claim, it is foreclosed by Supreme Court precedent.
In Rucho v. Common Cause, 588 U.S. 684 (2019), the Supreme Court rejected the same claim in
the context of partisan gerrymandering. Id. at 713–14. The Court emphasized that “there are no
restrictions on speech, association, or any other First Amendment activities in the districting plans
at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan
may be on their district.” Id. That is no less true here. Moreover, the Court added that it would

be inconsistent with existing precedent to permit a First Amendment claim in this context. Id. at
715 (citing Vieth v. Jubelirer, 541 U.S. 267, 294 (2004)). While Rucho involved partisan, rather
than racial, gerrymandering, that is not a meaningful distinction under the First Amendment. As
a result, we dismiss this claim.
* * *
For the reasons above, we GRANT the defendants’ renewed motion to dismiss (R. 48) and
DENY the plaintiffs’ renewed motions for a temporary restraining order, preliminary injunction,
and partial summary judgment as moot (R. 39).
Concurrence
OLIVER, District Judge, concurring. I concur in the per curiam opinion dismissing all of

plaintiffs’ claims. I write separately, however, to give context to the dismissal of plaintiffs’ claim
under § 2 of the Voting Rights Act.
* * *
Voting is one of the most important rights that citizens enjoy. As President Johnson once
said to Congress, “the first and most vital of all our rights is the right to vote” because “[i]t is from
the exercise of this right that all our other rights flow.” President Lyndon Johnson’s Speech to
Congress on Voting Rights, March 15, 1965, National Archives, https://perma.cc/FR3Y-CBCD.
At our Nation’s founding, however, “white men with property were the only Americans routinely
permitted to vote.” The Founders and the Vote, The Libr. of Cong., https://perma.cc/9NAF-SVKQ.
And while the Fifteenth Amendment changed this in theory for African-American men, see U.S.
Const. amend. XV § 1, voting discrimination persisted in practice well into the twentieth century.
Indeed, “States and localities continually contrived new rules, mostly neutral on their face but
discriminatory in operation, to keep minority voters from the polls.” Brnovich v. Democratic Nat’l

Comm., 594 U.S. 647, 691 (2021) (Kagan, J., dissenting) (internal quotation marks and brackets
omitted). These rules included grandfather clauses, white primaries, poll taxes, and literacy tests,
to name a few examples. See, e.g., Guinn v. United States, 238 U.S. 347 (1915) (holding
unconstitutional Oklahoma’s grandfather clause); Smith v. Allwright, 321 U.S. 649 (1944) (holding
unconstitutional white primaries in Texas); U.S. Const. amend. XXIV § 1 (outlawing poll taxes in
federal elections).2 Meanwhile, racial gerrymandering emerged, see Gomillion v. Lightfoot, 364
U.S. 339, 340 (1960) (describing Tuskegee, Alabama as having been altered by the State
legislature “from a square to an uncouth twenty-eight sided figure,” resulting in a change from a
majority-Black district to one that contained only a few Blacks), and Black voters regularly faced
violence and intimidation at the polls, see S. Poverty L. Ctr., Ku Klux Klan: A History of Racism

and Violence 15 (Richard Baudouin, ed., 6th ed. 2011).
Faced with this history and the ongoing reality of voter suppression, Congress in 1965
passed the Voting Rights Act, which President Lyndon B. Johnson signed into law. The Act
contains several provisions designed to bring about one goal: “the end of discrimination in voting
in America.” Brnovich, 594 U.S. at 691 (Kagan, J., dissenting) (quoting H. R. Doc. No. 120, 89th
Cong., 1st Sess., 1-2 (1965)). One such provision outlawed literacy tests as a prerequisite for
voting. 52 U.S.C. § 10101(a)(2)(C). And another provision, § 2, “guarantees that members of every

2 Two years after the ratification of the Twenty-Fourth Amendment, the Supreme Court in Harper
v. Va. State Bd. of Elections, 383 U.S. 663 (1966), held that poll taxes in state elections violated
the Fourteenth Amendment’s Equal Protection Clause.
racial group will have equal voting opportunities.” Brnovich, 594 U.S. at 690 (Kagan, J.,
dissenting). It is this latter provision that underlies plaintiffs’ Voting Rights Act claim here.
* * *
When the Voting Rights Act became law in 1965, § 2 was a shell of its current self. As

originally drafted, its language largely mirrored that of the Fifteenth Amendment. Compare 89
P.L. 110, 79 Stat. 437 § 2 (prohibiting practices “imposed or applied by any State or political
subdivision to deny or abridge the right of any citizen of the United States to vote on account of
race or color”) with U.S. Const. amend. XV § 1 (“The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any state on account of race, color, or
previous condition of servitude.”). So the Supreme Court interpreted § 2 to do nothing more than
codify the Fifteenth Amendment. Mobile v. Bolden, 446 U.S. 55, 60–61 (1980).
Following Bolden, however, Congress amended § 2 to its current form. Section 2 now reads
as follows:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall
be imposed or applied by any State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United States to vote on account of
race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this
title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it
is shown that the political processes leading to nomination or election in the State or
political subdivision are not equally open to participation by members of a class of citizens
protected by subsection (a) in that its members have less opportunity than other members
of the electorate to participate in the political process and to elect representatives of their
choice. The extent to which members of a protected class have been elected to office in the
State or political subdivision is one circumstance which may be considered: Provided, That
nothing in this section establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population.

52 U.S.C. § 10301. This broad language, the Court has recognized, confirms “that § 2 turns on the
presence of discriminatory effects, not discriminatory intent.” Allen v. Milligan, 599 U.S. 1, 25
(2023). Accordingly, plaintiffs suing under § 2 may bring a claim for vote dilution, which typically
involves either “the dispersal of blacks into districts in which they constitute an ineffective
minority of voters” or “the concentration of blacks into districts where they constitute an excessive
majority.” Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986).

In this case, plaintiffs allege the former. As they see it, Ohio’s latest congressional
redistricting plan runs afoul of § 2 by diluting the strength of Black voters such as them. R. 1,
PageID 3–9. The § 2 violation is especially glaring, plaintiffs maintain, in their home district. That
district—Ohio’s sixth congressional district—encompasses the Mahoning Valley, where racial
discrimination has historically “pervaded all aspects of … life.” Armour v. Ohio, 775 F. Supp.
1044, 1054 (N.D. Ohio 1991). The effects of such discrimination are apparent to this day, as
plaintiffs maintain that no Black candidate has ever been elected to even a countywide office in
Mahoning or Trumbull Counties. R. 1, PageID 16; see also Armour, 775 F. Supp. at 1055–58
(documenting this history through 1991).
Frustrated with what they saw as yet another chapter in the “dilution of the Mahoning

Valley Black vote,” R. 1, PageID 17, plaintiffs sued the Ohio Redistricting Commission—the
entity responsible for drawing Ohio’s congressional districts—and some of its members.
According to them, the Commission diluted the strength of Black voters in the Mahoning Valley
by placing them in a district that featured several predominantly white counties. Section 2,
plaintiffs assert, required the Commission to group the Mahoning Valley counties in a district with
its “racially diverse adjacent” counties. R. 1, PageID 17. That is the crux of their claim.
To illustrate this proposed alternative district, plaintiffs attached a map to their complaint.
As they have explained, this hypothetical district “would have a Black population of 284,938 and
[a] White population of 333,776.” R. 20, PageID 1114–15. However, as the per curiam opinion
concludes, such a district is precluded by two Supreme Court decisions: Thornburg v. Gingles,
478 U.S. 30 (1986), and Bartlett v. Strickland, 556 U.S. 1 (2009).
In Gingles, the Court interpreted the amended version of § 2 to prohibit vote dilution.
Gingles, 478 U.S. at 78–80. It also identified three “necessary preconditions” that a § 2 claim must

meet before a court can proceed to the statutorily prescribed “totality of circumstances” analysis.
Id. at 50. The first of these preconditions requires “the minority group … to demonstrate that it is
sufficiently large and geographically compact to constitute a majority in a single-member district.”
Id. Despite this proclamation, however, the Court reserved judgment on so-called “crossover”
claims, which involve proposed districts “in which minority voters make up less than a majority
of the voting-age population” but can still “elect the candidate of [their] choice with help from
voters who are members of the majority and who cross over to support the minority’s preferred
candidate.” Bartlett, 556 U.S. at 12–13.
By declining to address crossover claims, the Court paved the way for the plaintiffs’
success in Armour. Those plaintiffs—Black voters in the Mahoning Valley alleging vote dilution

in the apportionment of the Ohio House of Representatives—had proposed an alternative district
in which Blacks constituted only “one-third of the voting age population.” Armour, 775 F. Supp.
at 1059–60. So the Armour Court had to consider whether the plaintiffs’ § 2 claim could proceed,
notwithstanding the first Gingles precondition. Ultimately, it saw no reason to impose “a judicially
created limitation on the coverage of the broadly worded statute, as enacted and amended by
Congress.” Id. at 1052 (quoting Chisom v. Roemer, 501 U.S. 380, 403 (1991)). Black voters in the
Mahoning Valley, though not a majority, could still (with the help of expected white “crossover”
voters) “elect a candidate of their choosing,” and that was what mattered under § 2. Id. at 1058–
60. The court thus allowed plaintiffs’ crossover claim to proceed—and ended up ruling in their
favor upon evaluating the totality of the circumstances. Id. at 1060. Here, plaintiffs rely heavily on
Armour in pleading their § 2 claim. R. 1, PageID 6 (referring to themselves as “successor
representatives of the class of Black voters certified in” Armour). However, they—and this court—
must reckon with Bartlett.

In Bartlett, the Court held—in a plurality opinion authored by Justice Kennedy—that
crossover claims were not cognizable because they could not satisfy the first Gingles precondition.
Bartlett, 556 U.S. at 14–20. In other words, under Bartlett, § 2 plaintiffs must propose an
alternative district in which their racial group constitutes a majority of the voting-age population,
or else their claim fails. Why? Because, according to the plurality, minority racial groups “standing
alone have no better or worse opportunity to elect a candidate than does any other group of voters
with the same relative voting strength.” Id. at 14. And further, because of “the need for workable
standards and sound judicial and legislative administration.” Id. at 17.
While a blanket rule against crossover claims might “provide[] straightforward guidance
to courts and to those officials charged with drawing district lines,” id. at 18, I fear that such a rule

too severely limits the ability of courts to consider all of the factors necessary to determine whether
§ 2 has been violated. Congress, after all, instructed courts to consider § 2 claims based on the
totality of the circumstances. Bartlett’s majority-minority requirement, however, prevents even a
large minority of voters from establishing—no matter the underlying circumstances—that they
“have less opportunity than other members of the electorate to participate in the political process
and to elect representatives of their choice.” 52 U.S.C. § 10301(b). Yet there is evidence that
“minority voters in districts with minority populations under 50% routinely ‘elect representatives
of their choice.’” Bartlett, 556 U.S. at 27, 32–33 (Souter, J., dissenting) (citing “empirical
studies”). And as the Court had previously warned, “the Gingles factors cannot be applied
mechanically and without regard to the nature of the claim.” Voinovich v. Quilter, 507 U.S. 146,
158 (1993). Nevertheless, that appears to be exactly what happened in Bartlett.
Justice Souter’s Bartlett dissent raises serious concerns about the plurality opinion’s
interpretation of § 2. See Bartlett, 556 U.S. at 26–44 (Souter, J., dissenting). Among other things,

it explains that, under the Bartlett regime, “the best way to avoid suit under § 2, and the only way
to comply with § 2, is by drawing district lines in a way that packs minority voters into majority-
minority districts, probably eradicating crossover districts in the process.” Id. at 43. If Justice
Souter is correct, this could lead to a more racially polarized America—clearly not a desirable
result.
Despite these concerns, however, I concur in the per curiam opinion dismissing all of
plaintiffs’ claims, including their claim under § 2. The Bartlett Court held that crossover claims
are not permitted, and here, plaintiffs have brought such a claim. Therefore, dismissal is
appropriate. Only Congressional action—or a Supreme Court decision overruling Bartlett—can
extend § 2’s protections to plaintiffs bringing crossover claims.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664346. Public record. Not legal advice.