The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-65.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-65
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.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm.,
Slip Opinion No. 2022-Ohio-65.]
Redistricting—Original actions under Ohio Constitution, Article XI—The Ohio
Redistricting Commission did not attempt to meet the standards set forth in
Article XI, Section 6 of the Ohio Constitution in passing the General
Assembly–district plan—Plan invalid—The Ohio Redistricting Commission
shall be reconstituted, convene, and adopt a plan in conformity with the
Ohio Constitution.
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted December 8, 2021—
Decided January 12, 2022.)
SUPREME COURT OF OHIO
ORIGINAL ACTIONS filed pursuant to Ohio Constitution, Article XI, Section 9.
__________________
STEWART, J.
{¶ 1} Respondent Ohio Redistricting Commission adopted a General
Assembly–district plan in September 2021 to be effective for the next four years.
The complaints in these three cases allege that the plan is invalid because the
commission did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio
Constitution, which require the commission to attempt to draw a plan that meets
standards of partisan fairness and proportionality. In one case, the challengers also
allege that the plan violates the Ohio Constitution’s guarantees of equal protection,
assembly, and free speech.
{¶ 2} We hold that the plan is invalid because the commission did not
attempt to draw a plan that meets the proportionality standard in Article XI, Section
6(B). We also conclude that the commission did not attempt to draw a plan that
meets the standard in Section 6(A)—that no plan shall be drawn primarily to favor
a political party. Because we declare the plan invalid under these sections, we do
not decide whether the plan also violates the rights to equal protection, assembly,
and free speech guaranteed under the Ohio Constitution. We order the commission
to be reconstituted and, within ten days of this judgment, to adopt a new plan in
conformity with the Ohio Constitution.
I. BACKGROUND
A. Overview of Article XI of the Ohio Constitution
{¶ 3} In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981
N.E.2d 814, we rejected a challenge to the 2011 apportionment of General
Assembly districts adopted under a former version of Article XI of the Ohio
Constitution. We stated that former Article XI did not require political neutrality,
politically competitive districts, or representational fairness in the creation of state
legislative districts. Id. at ¶ 14. Accordingly, we held that there was nothing
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unconstitutional about the apportionment board—the body then responsible for
drawing the state legislative-district maps—considering partisan factors in its
apportionment. Id. at ¶ 13-14. The General Assembly–district map that we upheld
in Wilson was in effect through the 2020 general election.
{¶ 4} In November 2015, Ohio voters overwhelmingly approved an
amendment to the Ohio Constitution that repealed former Article XI and replaced
it with a new version, which established a new process for creating General
Assembly districts. The amendment provided for the creation of a seven-member
Ohio Redistricting Commission, composed of the governor, the auditor of state, the
secretary of state, one person appointed by the speaker of the House of
Representatives, one person appointed by the House minority leader, one person
appointed by the Senate president, and one person appointed by the Senate minority
leader. Ohio Constitution, Article XI, Section 1(A). The commission is responsible
for redistricting the boundaries of the 99 districts of the House of Representatives
and the 33 Senate districts in any year ending in the numeral one—after the release
of the federal decennial census.1 Id. at Section 1(C). The commission “shall draft
the proposed plan in the manner prescribed in” Article XI. Id.
{¶ 5} Article XI of the Ohio Constitution imposes various requirements for
a General Assembly–district plan. For example, Section 3(A) provides that the
state’s population is to be divided by 99 and by 33 and that those “quotients shall
be the ratio of representation in the house of representatives and in the senate,
respectively.” Section 3(B)(1) specifies that no district shall contain a population
of less than 95 percent or more than 105 percent of the applicable ratio of
representation set forth in Section 3(A). Section 3(B)(2) provides that a General
Assembly–district plan “shall comply with all applicable provisions of the
1. If the federal decennial census “is unavailable,” Article XI, Section 3(A) of the Ohio Constitution
provides an alternative way to determine the state’s population by “such other basis as the general
assembly may direct.”
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constitutions of Ohio and the United States and of federal law.” Sections 3(C), (D),
and (E) control the complex process for creating and numbering House districts,
with rules relating to the splitting of counties, municipal corporations, and
townships. Section 4 controls the process for drawing Senate districts, and Section
5 relates to senators whose district boundaries change due to redistricting under
Article XI before their terms expire.
{¶ 6} Of particular relevance to this litigation, Section 6 provides:
The Ohio redistricting commission shall attempt to draw a
general assembly district plan that meets all of the following
standards:
(A) No general assembly district plan shall be drawn
primarily to favor or disfavor a political party.
(B) The statewide proportion of districts whose voters, based
on statewide state and federal partisan general election results
during the last ten years, favor each political party shall correspond
closely to the statewide preferences of the voters of Ohio.
(C) General assembly districts shall be compact.
Nothing in this section permits the commission to violate the
district standards described in Section 2, 3, 4, 5, or 7 of this article.
Ohio Constitution, Article XI, Section 6.
{¶ 7} The commission must adopt a final plan under Section 1(C) by
September 1 of any year ending in the numeral one. To adopt a plan under Section
1(C), at least two members of each of the two largest political parties represented
in the General Assembly must be in the majority voting for the plan. Ohio
Constitution, Article XI, Section 1(B)(3). A plan adopted under Section 1(C) is
effective for ten years. See Ohio Constitution, Article XI, Section 1(C) (the
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governor must convene the commission only in a year ending in the numeral one,
a plan is effective upon filing with the secretary of state, and the commission is
automatically dissolved four weeks after adoption of a General Assembly–district
plan or congressional-district plan, whichever is later). But if the commission does
not meet the September 1 deadline to adopt a plan by the requisite bipartisan vote,
Section 8 provides an alternative route for adopting a final plan—what the parties
here refer to as an “impasse procedure.”
{¶ 8} Under the impasse procedure, the commission must introduce a
district plan proposed by a simple majority vote of the commission, hold a public
hearing on the proposed plan, and adopt a final plan no later than September 15.
Ohio Constitution, Article XI, Section 8(A)(1) through (3). If the majority adopting
the plan includes at least two members of each political party, the plan will remain
in effect for ten years. Id. at Section 8(B). Without that level of bipartisan support,
the plan will remain in effect “until two general elections for the house of
representatives have occurred under the plan”—i.e., four years. Id. at Section
8(C)(1)(a). If the commission adopts a four-year plan, the plan must include a
statement explaining
what the commission determined to be the statewide preferences of
the voters of Ohio and the manner in which the statewide proportion
of districts in the plan whose voters, based on statewide state and
federal partisan general election results during the last ten years,
favor each political party corresponds closely to those preferences,
as described in division (B) of Section 6 of this article.
Id. at Section 8(C)(2).
{¶ 9} Under Section 9(A), this court has “exclusive, original jurisdiction in
all cases arising under” Article XI.
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B. Factual background and procedural history
1. The commission, the map-drawing process, and the September 1 deadline
{¶ 10} On August 6, 2021, the governor convened the first meeting of the
Ohio Redistricting Commission. See Ohio Constitution, Article XI, Section 1(C).
The commission consisted of respondents Governor Mike DeWine, Secretary of
State Frank LaRose, Auditor of State Keith Faber, Speaker of the House Robert
Cupp, and President of the Senate Matthew Huffman—who are members of the
Republican party—and House Minority Leader Emilia Sykes and Senator Vernon
Sykes—who are members of the Democratic party. House Speaker Cupp and
Senator Sykes were appointed as commission cochairs. Other than administering
oaths of office and announcing that the commission would schedule public
hearings, the commission did not conduct any business on August 6.
{¶ 11} Between August 23 and August 27, the commission held multiple
hearings during which members of the public gave input about the redistricting
process.
{¶ 12} The commission held its second meeting on August 31—one day
before the deadline to adopt a final district plan. See Ohio Constitution, Article XI,
Section 1(C). Senator Sykes presented a proposed district plan drafted by the
Senate Democratic Caucus. After a presentation by a map drawer from the caucus,
the commission members had a discussion that suggested that they had not yet
agreed on a process for drafting a district plan. House Minority Leader Sykes asked
when the commission intended to present a proposed plan for public comment.
House Speaker Cupp replied that a district plan was “being developed” but would
not be available by the September 1 deadline due to a delay in receiving census
data. Leader Sykes asked who was participating in drafting that plan and when she
could expect to participate in the process. She also quoted the portion of Section
1(C) stating that the “commission shall draft the proposed plan.”
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{¶ 13} House Speaker Cupp explained that the commission itself would not
be drafting a plan, that anyone may present a plan for consideration, and that he did
not know when other maps would be presented but that the commission had a
September 15 deadline. Senate President Huffman stated that the Republican
members of the Senate were working on a proposal. He also expressed his
expectation that each of the legislative caucuses would present a proposed plan and
that the commission would then consider those proposals along with plans
submitted by the public. The commission adjourned without adopting a plan by the
September 1 deadline.
2. The commission adopts a proposed plan on September 9
{¶ 14} On September 8, the commission announced that it would meet at
10:00 a.m. and 2:00 p.m. the following day.
{¶ 15} At the 10:00 a.m. meeting, Senate President Huffman offered a
proposed plan and introduced Ray DiRossi and Blake Springhetti, who worked for
the Senate and House Republican Caucuses, respectively, to talk about the
proposal. Senator Sykes asked DiRossi how the plan satisfied the requirements of
Article XI, Section 6(B), the standard regarding whether the partisan proportion of
the plan closely corresponds to the statewide preference of voters. DiRossi stated
that their proposal complied with all constitutional requirements but also noted that
their analysis of election data was not yet complete and was “ongoing.” Leader
Sykes asked how the proposal complied with the Voting Rights Act. DiRossi
indicated that the legislative leaders had instructed them not to use racial or
demographic data and that therefore, they did not do so.
{¶ 16} At the 2:00 p.m. meeting, Senate President Huffman moved the
commission to select the plan introduced by the Republican caucuses as the
commission’s proposed plan. Senator Sykes and House Minority Leader Sykes
expressed concerns, including that the map drawers had not considered the
proportionality provision in Article XI, Section 6(B). Other members expressed
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their beliefs that Senate President Huffman’s plan was merely a “first draft” and
that the commission members could now start negotiations. The commission voted
five to two, along party lines, to introduce Senate President Huffman’s plan as the
commission’s proposed plan.
3. The commission adopts a four-year plan on September 16
{¶ 17} On September 12, 13, and 14, the commission held lengthy public
hearings regarding its proposed plan. During the September 13 hearing, Senator
Sykes and House Minority Leader Sykes offered an amendment that they believed
would move the plan closer to the proportionality standard articulated in Article XI,
Section 6(B).
{¶ 18} On the morning of September 15, the commission commenced its
final meeting. Senate President Huffman immediately moved for a recess until 3:00
p.m. so that the members could continue consulting with each other. The
commission, however, did not reconvene until approximately 11:15 p.m.
{¶ 19} Upon reconvening, Senate President Huffman introduced an
amendment to the commission’s proposed plan. He stated that the changes were
based on conversations between commission members and feedback from the public
hearings. He also noted that his amendment would move the commission’s proposed
plan closer to the amended plan offered by the Sykeses on September 13. Senate
President Huffman opined that the commission’s proposed plan, with his
amendment, was the only submitted plan that met Article XI’s requirements.
{¶ 20} The commission voted five to two, along party lines, to adopt the
amendment. Senate President Huffman then moved the commission to adopt his
amendment as the final plan. Senator Sykes and House Minority Leader Sykes
gave lengthy statements explaining why they would be voting against the plan.
{¶ 21} Secretary LaRose expressed disappointment in the commission’s
failure to reach a ten-year plan. He stated:
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I’m casting my yes vote with great unease. I fear, I fear we’re going
to be back in this room very soon. This map has many shortcomings,
but they pale in comparison to the shortcomings of this process. It
didn’t have to be this way. It didn’t have to be this way. Some of
us worked in good faith, in a bipartisan way, to try to get a
compromise. There are members of this committee who I do not
believe worked in good faith to try to reach that compromise, but
here we are.
{¶ 22} Governor DeWine similarly stated that he was disappointed and
“very, very sorry” about where the commission ended up. He said:
I will vote to send this matter forward. But it will not be the end of
it. We know that this matter will be in court. I’m not judging the
bill one way or another. That’s up for, up to a court to do. What I
do, what I am sure in my heart is that this committee could have
come up with a bill that was much more clearly, clearly
constitutional. I’m sorry we did not do that.
{¶ 23} Auditor Faber also expressed disappointment about the process. He
noted that “the reality is, compared to some of the other maps we’ve had a choice
to go with, this map isn’t that bad. It’s not that good either.” He intended to “vote
yes with some apprehension.”
{¶ 24} Sometime after midnight on September 16, the commission voted
five to two, along party lines, to adopt the amendment as its final General
Assembly–district plan. President Huffman estimated that under the plan, 62 seats
in the Ohio House of Representatives would lean in favor of Republican candidates
and 37 seats would lean in favor of Democratic candidates. In the Ohio Senate,
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they estimated that 23 seats would lean Republican and 10 seats would lean
Democratic.
4. The commission adopts a statement required under Article XI, Section 8(C)(2)
{¶ 25} After the vote, Senate President Huffman moved for the adoption of
a statement, required under Article XI, Section 8(C)(2), explaining what the
commission determined to be the statewide preferences of Ohio voters and how the
commission’s plan corresponded to those preferences. The statement indicated that
after considering the results of 16 statewide state and federal partisan elections in
the preceding ten years,
the Commission determined that Republican candidates won thirteen
out of sixteen of those elections resulting in a statewide proportion of
voters favoring statewide Republican candidates of 81% and a
statewide proportion of voters favoring statewide Democratic
candidates of 19%. When considering the number of votes cast in
each of those elections for Republican and Democratic candidates,
the statewide proportion of voters favoring statewide Republican
candidates is 54% and the statewide proportion of voters favoring
statewide Democratic candidates is 46%. Thus, the statewide
proportion of voters favoring statewide Republican candidates is
between 54% and 81% and the statewide proportion of voters
favoring statewide Democratic candidates is between 19% and 46%.
* * * [T]he Commission adopted the final general assembly district
plan, which contains 85 districts (64.4%) favoring Republican
candidates and 47 districts (35.6%) favoring Democratic candidates
out of a total of 132 districts. Accordingly, the statewide proportion
of districts whose voters favor each political party corresponds
closely to the statewide preferences of the voters of Ohio.
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The statement further noted that the final plan complied with all the “mandatory
requirements” in Sections 2, 3, 4, 5, and 7 and that the commission’s “attempt to
meet the aspirational standards” of Section 6 did not result in any violation of the
“mandatory requirements.”
{¶ 26} House Minority Leader Sykes submitted a statement on behalf of
herself and Senator Sykes. Among other things, their statement opined that the
commission’s final plan failed to comply with Section 6 and that the majority’s
statement laid out an “absurd description of how it allegedly meets the requirements
of Section 6(B).”
{¶ 27} The commission then accepted the majority’s Section 8(C)(2)
statement.
5. Petitioners file three actions in this court2
{¶ 28} Within 12 days of the commission’s having adopted its final plan,
three separate lawsuits were filed in this court against the commission and its
members. First, the League of Women Voters of Ohio, the A. Philip Randolph
Institute of Ohio, and six individual voters3 filed a complaint alleging that the plan
violates Sections 6(A) and 6(B) of Article XI. Second, ten individual voters4 filed a
complaint similarly alleging that the commission’s plan violates Sections 6(A) and
6(B). Third, the Ohio Organizing Collaborative (“OOC”), the Ohio chapter of the
2. The parties refer to themselves as relators and respondents. However, these actions were not
brought in the name of the state. See R.C. 2731.04; S.Ct.Prac.R. 12.03 (the party filing an action in
mandamus, prohibition, procedendo, or quo warranto is referred to as a “relator”). Therefore, this
opinion will refer to the parties bringing the actions as “petitioners.”
3. The six voters in case No. 2021-1193 are Tom Harry, Tracy Beavers, Valerie Lee, Iris Meltzer,
Sherry Rose, and Bonnie Bishop.
4. The ten voters in case No. 2021-1198 are Bria Bennett, Regina C. Adams, Kathleen M. Brinkman,
Martha Clark, Susanne L. Dyke, Carrie Kubicki, Meryl Neiman, Holly Oyster, Constance Rubin,
and Everett Totty.
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Council on American-Islamic Relations, the Ohio Environmental Council, and six
individual voters5 filed a complaint, also alleging that the commission’s plan violates
Sections 6(A) and 6(B). The third group further alleges that the plan violates Section
3(B)(2), which requires the plan to “comply with all applicable provisions of the
constitutions of Ohio and the United States and of federal law.”
{¶ 29} Pursuant to a court-ordered schedule, the parties conducted discovery
and submitted evidence and merit briefing. See 164 Ohio St.3d 1450, 2021-Ohio-
3424, 173 N.E.3d 1248; 164 Ohio St.3d 1457, 2021-Ohio-3607, 174 N.E.3d 805.
This court heard oral arguments in the cases on December 8, 2021. Following oral
arguments, we sua sponte ordered the parties to file supplemental briefs on the
question whether Article XI, Section 8(C)(1) of the Ohio Constitution has any effect
on this court’s authority to grant the relief requested by petitioners. 165 Ohio St.3d
1476, 2021-Ohio-4381, 177 N.E.3d 986; 165 Ohio St.3d 1476, 2021-Ohio-4381, 177
N.E.3d 986; 165 Ohio St.3d 1476, 2021-Ohio-4381, 177 N.E.3d 987. The parties
filed their supplemental briefs on December 16 and 17.
C. Evidence
{¶ 30} As evidence, the parties filed ten depositions, nine expert reports,
multiple fact affidavits, and a voluminous number of additional documents. This
evidence elucidates the activity that took place both before and in between the
commission meetings.
1. The commission’s role in drawing a plan
{¶ 31} The commission had no employees and did not itself engage in any
map drawing. Instead, each pair of legislative caucuses was allocated $150,000 for
redistricting purposes. Later, the Democratic caucuses requested and received an
additional $200,000. No funds were allocated to the governor, the secretary of
state, or the auditor.
5. The six voters in case No. 2021-1210 are Pierrette Talley, Samuel Gresham Jr., Ahmad Aboukar,
Mikayla Lee, Prentiss Haney, and Crystal Bryant.
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{¶ 32} The expectation—at least for the majority of the commission
members—was that the legislative caucuses would draft and propose maps and that
the commission members would thereafter negotiate and adopt a final plan. For
example, Governor DeWine believed that the best way to adopt a ten-year plan was
for the Democratic and Republican members of the commission to each come
forward with their own maps “and then see where everybody was and then [he would]
be a person that could try and pull this together.” Senator Sykes and House Minority
Leader Sykes, however, believed that the commission itself, not the political
caucuses, should draw the maps. Secretary LaRose and Auditor Faber expected the
caucuses to draw the initial maps, but they also assumed that they would have access
to map-drawing software. Secretary LaRose also expected that he would have access
to the map drawers.
2. Delays in receiving census data
{¶ 33} Although the United States Census Bureau was required to release
Ohio’s population data by April 1, 2021, it did not do so until August 12. The delay
required the commission to adopt a plan under a significantly shortened timeframe.
In June 2021, House Minority Leader Sykes and Senate Minority Leader Kenny
Yuko asked Governor DeWine to convene the commission—despite the census
delays—in order to address preliminary issues such as staffing and the adoption of
procedural rules. The governor did not do so, because he did not see a reason to
convene the commission long before the receipt of the census data.
3. The map drawers: DiRossi and Springhetti
{¶ 34} Senate President Huffman and House Speaker Cupp oversaw the
process of drawing the district plan that the commission ultimately adopted. Senate
President Huffman assigned DiRossi, the finance director for the Ohio Senate, and
House Speaker Cupp assigned Springhetti, the finance director for the Ohio House
of Representatives, as the map drawers. Springhetti had no prior map-drawing
experience, but DiRossi was actively involved in drawing the maps for the 2001
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and 2011 apportionment processes. Senate President Huffman did not think that
hiring outside consultants was necessary, because according to him, DiRossi
“might be the most qualified person in the United States.”
{¶ 35} Before receiving the census data for their work on the map,
Springhetti and DiRossi obtained licenses for Maptitude, mapping software that
would help them design and draw districts. After receiving the census data, they
began the map-drawing process.
4. Instructions to the map drawers
{¶ 36} Senate President Huffman and House Speaker Cupp instructed
DiRossi and Springhetti to comply with certain provisions of the Constitution, but
they did not instruct the map drawers to comply with Article XI, Section 6.
{¶ 37} Senate President Huffman testified during his deposition that
because Article XI, Section 6 “is not mandatory” but is “aspirational,” he did not
have any specific conversations with DiRossi about that section. In distinguishing
between mandatory and aspirational provisions in Article XI, Senate President
Huffman explained: “Mandatory means you have to do it; aspirational means you
don’t. And of course that’s why the word ‘attempt’ is in [Section 6].” When asked
whether he “understood that as a commissioner [he] had a mandatory obligation to
attempt to do the items that are listed in 6(A), (B), and (C),” Senate President
Huffman responded, “No, I don’t think that’s correct.” He believed that his “job
was to attempt to draw a ten-year map through sincere and active negotiations with
the other side.” DiRossi testified that he did not know how to interpret Section 6,
that Senate President Huffman told him not to focus on it, and that it was not
DiRossi’s “responsibility.”
{¶ 38} According to Springhetti, House Speaker Cupp identified the
mandatory sections of Article XI as Sections 2, 3, 4, 5, and 7. Springhetti did not
have any communications with House Speaker Cupp about the meaning of
“attempt” in Section 6. House Speaker Cupp testified that he was focused on the
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“line drawing part” and the population requirements; he acknowledged that he did
not specifically instruct Springhetti to follow or “look at Section 6.” House Speaker
Cupp believed that he had complied with Section 6 by attempting to negotiate with
the Democratic members of the commission after the Republican-drawn plan was
introduced on September 9.
5. Access to the map drawers
{¶ 39} Throughout the process, DiRossi and Springhetti reported their
progress to Senate President Huffman and House Speaker Cupp, who occasionally
visited the map drawers’ office to view information on their computer screens.
Other commission members had no direct access to DiRossi and Springhetti and
had no role in drafting or creating the maps adopted by the commission. This
frustrated some of the commission members, especially Secretary LaRose, who
testified that he repeatedly asked to collaborate with, and have access to, the
Republican-designated map drawers but was excluded from the process.
6. Consideration of partisan data
{¶ 40} In their depositions, DiRossi and Springhetti explained that when
using Maptitude to draw district boundaries, a display window appeared on the
computer screen showing information about the proposed district, including the
partisan leaning of the district. When they changed the district’s lines, that
information also would change.
{¶ 41} DiRossi claims that he had not yet completed a partisan analysis of
the Republicans’ proposed plan before it was introduced at the commission’s
September 9 meeting. Therefore, when Senator Sykes inquired about the plan’s
compliance with Article XI, Section 6(B) on September 9, DiRossi answered that
the analysis was “ongoing.” DiRossi testified that he was unsure whether he ever
completed that analysis; after the September 9 meeting, his focus shifted to
supporting Senate President Huffman in his negotiations with the other commission
members.
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{¶ 42} Senate President Huffman testified that when the commission met
on September 9, he was unaware of the proportion of districts that favored each
political party and had not conducted his own analysis regarding whether the plan
complied with Article XI, Section 6(B). The partisan breakdown of the plan
became more important, Senate President Huffman said, when negotiating with the
Democratic members of the commission. After September 9, Senate President
Huffman asked DiRossi to change some Senate districts from Republican-leaning
to Democratic-leaning and some competitive districts to Democrat-leaning in his
effort to obtain a ten-year map.
{¶ 43} House Speaker Cupp and Springhetti similarly testified that before
the September 9 plan was introduced, they had some conversations about the
political leanings of certain House districts, but Springhetti had not yet analyzed—
and they had not discussed—the overall partisan makeup of the plan. After
September 9, Springhetti determined the number of seats favoring each political
party. House Speaker Cupp testified that after receiving the expected partisan
breakdown, he was surprised by the number of Republican-leaning House districts
and was concerned that it would be unacceptable to the Democratic commission
members. Out of 99 House districts, 67 leaned Republican.6
7. The Democratic caucuses also draw plans
{¶ 44} The Senate Democratic Caucus contracted with Project Govern—
owned by Christopher Glassburn—to provide redistricting services. The House
Democratic Caucus contracted with HaystaqDNA. According to Glassburn, very
few of HaystaqDNA’s suggestions were incorporated in the final maps proposed
by the Democratic caucuses. The Democratic caucuses’ maps were proposed to the
other commission members on August 31, September 1, September 13, and
6. Currently, the Ohio House of Representatives consists of 64 Republican members and 35
Democratic members. See Ohio House of Representatives, 134th General Assembly, available at
https://ohiohouse.gov/members/directory (accessed Dec. 21, 2021) [https://perma.cc/5ABV-TQ43].
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September 15. After the Democratic commission members proposed their initial
map, Secretary LaRose and Auditor Faber met with Glassburn and Democratic
staffers. Senator Yuko and Senator Sykes asked Glassburn to integrate as many of
Secretary LaRose’s and Auditor Faber’s requested changes as possible.
8. The commission members’ final negotiations
{¶ 45} Although accounts vary about the sincerity of the negotiations, most
commission members testified that between September 9 and 15, they met with
other members of the commission with the goal of compromising to adopt a ten-
year bipartisan map. The negotiations centered mostly around the acceptable
number of Democratic- and Republican-leaning seats in the House of
Representatives.
{¶ 46} All parties agreed that in statewide partisan elections over the past
decade, Republican candidates had won 54 percent of the vote share and
Democratic candidates had won 46 percent of the vote share. The Democrats’
August 31 proposed plan almost exactly mirrored those percentages, with 44 out of
99 House seats leaning Democratic and 55 out of 99 House seats leaning
Republican. By contrast, the Republicans’ proposed plan—which the commission
adopted as its proposed plan—predicted 32 Democratic-leaning House seats and 67
Republican-leaning House seats. The Sykeses’ September 13 proposal decreased
the number of Democratic-leaning House seats from their initial plan of 44 to 42
and increased the number of Republican-leaning House seats from 55 to 57.7
{¶ 47} At some point on September 14 or 15, House Speaker Cupp and
Senate President Huffman circulated a proposed amendment reducing the number
of Republican-leaning House seats from 67 to 62 and increasing the number of
7. The Sykeses also circulated a proposal on September 15, incorporating changes to certain district
lines suggested by Secretary LaRose and Auditor Faber. But the partisan percentage breakdown did
not change from the Sykeses’ September 13 proposed plan. The Sykeses’ September 15 proposal
was not formally submitted during a commission meeting.
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Democratic-leaning House seats from 32 to 37. According to House Speaker Cupp,
they were prepared to go even further, but the Sykeses stopped negotiating. Senate
President Huffman testified that they waited all day on September 15 for a
counteroffer, but Senator Sykes and House Minority Leader Sykes refused to
participate—even though Huffman’s amendment had moved closer to the
Democrats’ proposal.
{¶ 48} Secretary LaRose, Auditor Faber, and Governor DeWine testified
that in those final days, they attempted to mediate between the Republican and
Democratic legislative camps but eventually concluded that neither side would
budge from their positions. Secretary LaRose believed that the four legislative
leaders were the least open to compromise. Auditor Faber believed that some
commission members were posturing for litigation. He also testified that House
Minority Leader Sykes had essentially shut down the negotiations by the night of
September 14.
{¶ 49} For their part, both Senator Sykes and House Minority Leader Sykes
believed that they had already compromised by accepting less than the Democratic-
leaning proportion of the statewide voter share and that to agree to even fewer seats
might be contrary to Article XI, Section 6. Leader Sykes testified that Governor
DeWine had asked her if there was a specific number of seats that she would be
willing to vote for but that she told him that her goal was to comply with Article
XI, Section 6. Leader Sykes inquired whether Governor DeWine, Secretary
LaRose, and Auditor Faber would be willing to “break ranks” with the Republican
legislative leaders to join the Democratic commission members and adopt a ten-
year plan. Auditor Faber acknowledged that Leader Sykes had suggested that idea,
but he did not believe that such a deal was possible; he believed that the better
approach was for Senate President Huffman, House Speaker Cupp, Leader Sykes,
and Senator Sykes—the commission’s legislative-branch members—to
compromise.
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{¶ 50} Senator Sykes was particularly frustrated with Secretary LaRose.
According to the senator, the secretary admitted that Senate President Huffman’s
plan was unfair but said that he would not vote against his Republican colleagues.
When the Sykeses realized that the statewide officeholders were unwilling to vote
contrary to the Republican legislative leaders, they saw no reason to continue
negotiating.
9. The Article XI, Section 8(C)(2) statement
{¶ 51} According to Senate President Huffman, when it became clear that
the commission likely would be passing a four-year map, someone on his staff—it
is unclear who—drafted the statement required under Article XI, Section 8(C)(2).
Regardless of who drafted the statement, Senate President Huffman acknowledged
that at some point, he suggested the idea of using the number of statewide elections
won by Republican candidates over the last ten years—i.e., the 81 percent figure—
as a way of determining the statewide preference of voters under Section 6(B). But
he stated that he did not know that this idea would be included in the Section 8(C)(2)
statement until the afternoon of September 15. Senate President Huffman also
testified that September 15 was when he first learned what percentages of seats
favoring each political party’s candidates would be included in the statement.
{¶ 52} Governor DeWine had no role in drafting the Section 8(C)(2)
statement and although he agreed with some of the statement’s rationale, he did not
believe that 81 percent was “any kind of mark that would indicate statewide
preferences.” But the governor voted for the statement because, he said, “it was the
rationale that had been put forward by [the] [R]epublican legislative leaders.”
Secretary LaRose did not see the statement until one minute before voting on it and
was not involved in drafting it. He voted in favor of the statement, he noted, merely
to accept it into the record—not because he agreed with it. In a text-message
exchange with his chief of staff before the vote, Secretary LaRose called the
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statement “asinine,” adding that it was the “second asinine thing I’m voting for
tonight.”
D. Legislative history of Issue 1
{¶ 53} In addition to evidence relating to the commission’s adoption of the
plan, the parties also included evidence relating to the passage of Issue 1, the 2015
ballot issue approving the amendment of Article XI of the Ohio Constitution. Many
of the current commission members were involved in that effort. Senate President
Huffman and Senator Sykes—while they were members of the House of
Representatives—sponsored the House joint resolution that placed the
constitutional amendment on the ballot. Auditor Faber and Secretary LaRose—
while they served as senators—were cosponsors in the Ohio Senate.
{¶ 54} During House debates, representatives stated that some portions of
the new constitutional language were mandatory and some were “aspirational.”
Then-Representative Huffman stated:
And so, again, the purpose of this is to clarify the rules.
There have been a variety of rules in the Constitution that were
unclear. * * *
So now we have a clear order of things that are mandatory.
We have other things that are aspirational in nature. And it’s really
the clarity in this, I think that will make sure that the majority must
follow these rules or, of course, suffer a variety of penalties.
Democratic Representative Kathleen Clyde, while urging other representatives to
vote in favor of the resolution, noted the concessions that the Democratic side of
the General Assembly had made. She said: “Another concession by our side is that
the fairness criteria are not required but are aspirational.”
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{¶ 55} After the legislature placed the issue on the ballot, Senate President
Huffman and Senator Sykes formed Fair Districts for Ohio, an organization
supporting Issue 1. The organization issued literature, including a flyer stating that
the amendment would bring about the following reforms:
Fairness
Protects against gerrymandering by prohibiting any district from
primarily favoring one political party.
Requires districts to closely follow the statewide preferences of
the voters.
Accountable
Creates a process for the Ohio Supreme court to order the
commission to redraw the map if the plan favors one political
party.
(Boldface and italics sic.) Although his name was on the flyer, Senate President
Huffman testified that he had no recollection of being involved with the
organization’s literature and that some portions were factually inaccurate. Senator
Sykes did not recall Senate President Huffman disputing the contents of the flyer
at the time.
{¶ 56} The official ballot language, appearing as Issue 1 on the 2015
statewide general-election ballot, stated the following:
Issue 1
Creates a bipartisan, public process for drawing
legislative districts
Proposed Constitutional Amendment
Proposed by Joint Resolution of the General Assembly
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To enact new Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of
Article XI and to repeal Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, and 15 of Article XI of the Constitution of the State of
Ohio.
***
The proposed amendment would:
End the partisan process for drawing Ohio House and Senate
districts, and replace it with a bipartisan process with the goal of
having district boundaries that are more compact and politically
competitive.
Ensure a transparent process by requiring public meetings,
public display of maps, and a public letter explaining any plan the
Commission adopts by a simple majority vote.
Establish the bipartisan Ohio Redistricting Commission,
composed of 7 members including the Governor, the Auditor of the
State, the Secretary of State, and 4 members appointed by the
majority and minority leaders of the General Assembly.
Require a bipartisan majority vote of 4 members in order to
adopt any final district plan, and prevent deadlock by limiting the
length of time any plan adopted without bipartisan support is
effective.
(Boldface sic.)
II. ANALYSIS
A. Threshold matters
{¶ 57} Before analyzing the validity of the General Assembly–district plan
under the Ohio Constitution, we address two threshold matters. First, the statewide
officeholders question whether they are proper parties in an action brought under
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Article XI, Section 9 of the Ohio Constitution challenging the validity of a plan
adopted by the redistricting commission. And second, as ordered by this court, the
parties have submitted supplemental briefing on the question whether Article XI,
Section 8(C)(1) has any effect on this court’s authority to review a plan adopted by
a simple majority of the commission.
1. The statewide officeholders as proper parties
{¶ 58} Governor DeWine, Secretary LaRose, and Auditor Faber argue that
they should be dismissed from these cases because they are not proper parties. These
statewide officeholders contend that only the commission may be sued in cases
arising under Article XI because provisions within Article XI require the
commission—not its individual members—to adopt a district plan.8
{¶ 59} We addressed a similar issue in Wilson, 134 Ohio St.3d 221, 2012-
Ohio-5367, 981 N.E.2d 814. Under former Article XI, a group of five individuals—
referred to in Wilson as “the apportionment board”—were responsible for
establishing General Assembly districts. See former Article XI, Section 1, Ohio
Constitution (effective Nov. 7, 1967, to Jan. 1, 2021). The relators in Wilson had
named as the respondents only the four individual board members who had voted to
approve a new district plan. Wilson at ¶ 5, 7. The apportionment board itself and the
dissenting board member were not named as parties. Id.
{¶ 60} We held that the apportionment board and the dissenting board
member were not “necessary and indispensable” parties under Civ.R. 19. Id. at ¶ 10.
But we suggested that the board and all the board members were proper parties,
explaining that “it remains better practice in this type of action to name the board and
all its members as parties.” Id. We noted that former Article XI, Section 13 would
have required “the persons responsible for apportionment by a majority of their
number” to establish a new district plan if the existing plan were declared invalid. Id.
8. None of the legislative members of the commission argues that he or she is not a proper party to
these actions.
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{¶ 61} Wilson is instructive here, although the amendment of Article XI
changes which parties are necessary and which are merely proper. In Wilson, the
four individuals named as the respondents were necessary parties because a
declaration that the existing plan was invalid would have required a majority of those
responsible for apportionment to adopt a new plan. Id.; see also former Article XI,
Section 13, Ohio Constitution. Article XI, Section 9(B) now requires the
commission—not its individual members—to adopt a new district plan if this court
declares the existing plan invalid. Following the logic of Wilson, the current scheme
makes the commission the only necessary respondent, but the “better practice,”
Wilson at ¶ 10, is to name the commission’s members as respondents, too.
{¶ 62} This litigation demonstrates why the individual respondents are
proper parties. Although the commission is a respondent in these cases, its one-page
merit brief merely “adopts and incorporates” the statements and arguments that the
Republican commission members made in their briefs. And in its response to the
various discovery motions filed by petitioners, the commission represented to this
court that it “is not in possession, custody, or control of any document or any
information potentially responsive to discovery requests served in any of these
matters that is not in the possession, custody, and control of one or more of its
individual members.”
{¶ 63} We therefore hold that individual commission members are proper
parties in these cases. Therefore, we do not dismiss the statewide officeholders as
respondents.
2. Article XI, Section 8(C)(1)(a) does not bar this court’s review of the plan
{¶ 64} Article XI, Section 8(C)(1)(a) of the Ohio Constitution provides:
Except as otherwise provided in division (C)(1)(b) of this
section, if the commission adopts a final general assembly district
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plan in accordance with division (A)(3) of this section9 by a simple
majority vote of the commission, and not by the vote required to
adopt a plan under division (B)(3) of Section 1 of this article, the
plan shall take effect upon filing with the secretary of state and shall
remain effective until two general elections for the house of
representatives have occurred under the plan.
{¶ 65} All the respondents acknowledged in their initial merit briefs that
this court has authority to invalidate a four-year district plan passed by a simple
majority vote under Section 8(C)(1)(a) and order the commission to adopt a new
plan. After oral argument in these cases, we ordered supplemental briefing on the
following issue: “What impact, if any, does Article XI, Section 8(C)(1) of the Ohio
Constitution have on the Supreme Court of Ohio’s authority to grant the relief
requested by relators when the Ohio Redistricting Commission adopted the district
plan by a simple majority vote of the commission?” See 165 Ohio St.3d 1476,
2021-Ohio-4381, 177 N.E.3d 986.
{¶ 66} In their supplemental brief, Senate President Huffman and House
Speaker Cupp argue that Article XI, Section 8(C)(1) “could” be reasonably
construed to divest this court of any authority to review a four-year plan passed
under Section 8(C)(1)(a). But they concede that other language in Section 9 could
be reasonably interpreted to authorize this court to review a four-year plan, albeit
in limited circumstances. The remaining respondents, along with all the petitioners,
argue that Section 8(C)(1) does not limit this court’s remedial authority to review a
four-year plan passed under Section 8(C)(1)(a).
9. One could argue that the district plan was not adopted “in accordance with division (A)(3)” of
Article XI, Section 8, because division (A)(3) requires that any Section 8(C)(1)(a) plan be adopted
“not later than the fifteenth day of September of a year ending in the numeral one.” As noted above,
the plan was adopted on September 16, 2021.
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{¶ 67} The second dissenting opinion seizes on the argument raised by
Senate President Huffman and House Speaker Cupp that this court could conclude
that it may not review the district plan, because Article XI, Section 8(C)(1)(a) does
not state that a four-year plan adopted under that section shall remain effective
“except as provided in Section 9 of this article.” In contrast, the “except as provided
in Section 9” language is included in Sections 8(B) and 8(C)(1)(b), which relate to
ten- and six-year plans adopted by the commission, respectively. The second
dissenting opinion concludes that the absence of a cross-reference to Section 9 in
Section 8(C)(1)(a) means that four-year plans are insulated from this court’s
review.
{¶ 68} The second dissenting opinion’s interpretation, however, requires
readers of Article XI to ignore certain parts of it. We must read Article XI as a
whole. See State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d
690, ¶ 12. And several features of Article XI cut against the second dissenting
opinion’s conclusion that we lack authority to review a four-year plan adopted
under Section 8(C)(1)(a).
{¶ 69} For starters, Article XI, Section 8 does not address this court’s
authority to order remedies. Section 9 addresses that topic. Section 9(A) confers
on this court “exclusive, original jurisdiction in all cases arising under” Article XI
of the Ohio Constitution, and Section 9(B) refers to this court’s authority to
invalidate “any general assembly district plan made by the Ohio redistricting
commission.” (Emphasis added.) Section 8(C)(1)(a) does not expressly remove
this court’s authority to consider the validity of “any” plan that the commission
adopts. And if this court determines that a General Assembly–district plan or “any
district” within the plan is invalid, then “notwithstanding any other provisions of
this constitution,” the commission must be reconstituted as provided in Article XI,
Section 1 to adopt a new plan “to be used until the next time for redistricting”
occurs. (Emphasis added.) Ohio Constitution, Article XI, Section 9(B).
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January Term, 2022
{¶ 70} The term “notwithstanding” means “ ‘without prevention or
obstruction from or by; in spite of.’ ” State ex rel. Carmean v. Hardin County Bd.
of Edn., 170 Ohio St. 415, 422, 165 N.E.2d 918 (1960), quoting Webster’s Second
New International Dictionary 1669 (1954). Provisions included in a clause
invoking that term override any conflicting provisions. See Ohio Neighborhood
Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 35.
Thus, Article XI, Section 9(B) overrides other sections of Article XI that “could”
be construed as conflicting with this court’s remedial authority under that section,
despite both dissenting opinions’ protestations to the contrary.
{¶ 71} Second, Article XI, Section 8(C)(1)(a) must be read together with
Section 9(D)(3)(c), which refers to this court’s “considering a plan adopted under
division (C) of Section 8 of this article” and speaks to remedies that this court “shall
order” if it determines that such a plan violates the provisions specified in Section
9(D)(3)(c). (Emphasis added). Section 9(D)(3)(c) thus contemplates judicial
review of four-year plans. Indeed, the statewide-officeholder respondents point to
Section 9(D)(3) as the reason that we “should not read Section 8(C)(1) as an
absolute barrier to judicial relief against a four-year map.” To do so would run
afoul of our duty to construe the Ohio Constitution in a manner that makes it
internally consistent and gives effect to all of its provisions. See Smith v. Leis, 106
Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 59.
{¶ 72} Third, even if the second dissenting opinion were correct that a
conflict exists between Article XI, Section 8(C)(1) and Section 9, the latter section
prevails: Section 9 more specifically addresses this court’s jurisdiction and
remedial authority. See MacDonald v. Cleveland Income Tax Bd. of Review, 151
Ohio St.3d 114, 2017-Ohio-7798, 86 N.E.3d 314, ¶ 27 (“when there is a conflict
between a general provision and a more specific provision in a statute, the specific
provision controls”). The second dissenting opinion seizes on this canon of
construction, contending that Section 8(C)(1)(a) is the specific provision applicable
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to four-year plans while Section 9 is a general provision applicable to our
jurisdictional and remedial authority. But the second dissenting opinion misapplies
the canon: Section 9 is the specific provision, because it governs this court’s
jurisdictional and remedial authority while Section 8(C) governs a different matter,
namely, the duration of a district plan.
{¶ 73} Moreover, Article XI, Section 9(D)(3)(c) specifically contemplates
review of a plan adopted under Section 8(C), so it cannot be the case that voters (or
the General Assembly) intended to foreclose review of plans adopted under Section
8(C)(1)(a). The axiom that one does not “hide elephants in mouseholes” is apt here.
See Whitman v. Am. Trucking Assns., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.E.2d
1 (2001). That is, the omission of the phrase “except as provided in Section 9” in
a section concerning a four-year plan’s duration is not a logical way to curtail this
court’s jurisdiction granted under Section 9. If it had been intended that this court
not have jurisdiction to review a four-year plan, it would have been more logical
for that limitation to appear in Section 9, the section that specifically deals with this
court’s jurisdiction and remedial authority. It is little wonder, then, that until we
ordered supplemental briefing, none of the parties took the position that Section
8(C)(1)(a) forecloses judicial review of a four-year plan’s validity. (And even then,
only one set of respondents has made that argument—and in equivocal fashion at
that.)
{¶ 74} Finally, it is difficult to overlook the absurd result that would arise
from the second dissenting opinion’s interpretation of Article XI, Section
8(C)(1)(a) as a limitation on this court’s jurisdiction. It would mean that a four-
year plan could violate any of Article XI’s requirements (e.g., by drawing
multimember districts or noncontiguous districts or by violating any of the other
neutral map-drawing requirements) and still not be subject to a court challenge.
Further, as the second dissenting opinion notes, Article XI, Section 1(C) provides
for the commission’s adoption of a ten-year plan by September 1 (i.e., before the
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impasse procedures are triggered under Section 8), but like Section 8(C)(1)(a),
Section 1(C) does not include the limiting phrase “except as provided in Section 9
of this article.” The second dissenting opinion embraces the notion that a plan
passed with bipartisan support under Section 1(C) would not be reviewable either,
regardless of any defects that run afoul of Article XI’s requirements. That is, a ten-
year plan adopted with bipartisan support by September 1 would not be subject to
judicial review, but a ten-year plan adopted with bipartisan support by September
15 would be reviewable—a result with no plausible justification. Likewise, there
is no reason why a four-year plan passed by a partisan majority under Section
8(C)(1)(a) should escape judicial review while a plan that replaces it for the
remaining six years under Section 8(C)(1)(b)—perhaps even the same plan passed
again by a partisan majority—could be reviewed.
{¶ 75} For these reasons, we hold that this court has authority under Article
XI, Section 9 to review a four-year district plan passed by the commission under
Article XI, Section 8(C)(1)(a).
B. The burden and standard of proof
{¶ 76} In Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at
¶ 18-24, we noted that apportionment is a legislative task and that an adopted
apportionment plan—like enacted legislation—is presumptively constitutional.
We therefore held that “[t]he burden of proof on one challenging the constitutionality
of an apportionment plan is to establish that the plan is unconstitutional beyond a
reasonable doubt. In the absence of evidence to the contrary, we presume that the
apportionment board properly performed its duties in a lawful manner.” Id. at
paragraph two of the syllabus.
{¶ 77} Several distinct concepts are embedded within that holding.
Fundamentally, the standard allocates the burden of proof, which itself “is a
composite burden that ‘encompasses two different aspects of proof: the burden of
going forward with evidence (or burden of production) and the burden of
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persuasion.’ ” Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d
337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 20, quoting Chari v. Vore, 91 Ohio St.3d
323, 326, 744 N.E.2d 763 (2001). The standard also defines the burden of proof for
factual issues as beyond a reasonable doubt.
{¶ 78} Petitioners argue that they should not be required to prove factual
issues beyond a reasonable doubt, because these cases arise under the original
jurisdiction of this court and the rule in ordinary civil cases is that facts must be
proved by a preponderance of the evidence. But these are not ordinary civil cases.
When legislative action is the subject of a facial constitutional challenge, it is well
settled that the challenging party faces “the highest standard of proof, which is also
used in criminal cases, proof beyond a reasonable doubt,” State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-
Ohio-5512, 857 N.E.2d 1148, ¶ 21.
{¶ 79} Petitioners dispute the premise that these cases should be treated as
facial constitutional challenges. But in doing so, petitioners do not attack the
primary reasons for the Wilson court’s holding—i.e., that apportionment is a
legislative task (albeit now delegated by the Ohio Constitution to the redistricting
commission) and that the public officers are presumed to have properly carried out
their duties. See Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at
¶ 20-21. Petitioners therefore must prove factual issues beyond a reasonable doubt.
{¶ 80} Application of this standard of proof on factual issues does not
prevent us from independently assessing the constitutionality of the commission’s
plan. In emphasizing the “strong presumption of constitutionality” of legislation,
we typically invoke the rule that “a statute will be upheld unless proven beyond a
reasonable doubt to be unconstitutional.” State v. Romage, 138 Ohio St.3d 390,
2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. This rule borrows terminology usually
associated with the proof of facts, referring to the quantum of evidence needed to
convict a defendant in a criminal case. But the ultimate question here remains a
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legal one: does the commission’s adoption of its plan “ ‘clear[ly] and
irreconcilabl[y] conflict with some express provision of the constitution’ ”? Ohio
Congress of Parents & Teachers at ¶ 20, quoting Spivey v. Ohio, 999 F.Supp. 987,
999 (N.D.Ohio 1998). Petitioners express concern that we will consider that
question with a rubber-stamp form of review, but that concern is misplaced. And
contrary to the suggestion of Senate President Huffman and House Speaker Cupp,
the presumption and high burden of proof do not require us to defer to the
commission’s interpretation of Article XI. The presumption of constitutionality
and the application of a high standard of proof do not prevent this court from
“say[ing] what the law is,” Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803),
or from “conduct[ing] an independent review,” Ohio Congress of Parents &
Teachers at ¶ 20.
C. Article XI, Section 6
{¶ 81} Petitioners in all three cases argue that the adopted plan is invalid
because it fails to comply with Article XI, Section 6 of the Ohio Constitution.
Petitioners contend that the adopted plan was drawn primarily to favor the majority
party of the General Assembly and disfavor the minority party, in violation of Article
XI, Section 6(A), and that the proportional political leaning of the districts within the
plan does not correspond closely to the statewide preferences of Ohio voters, in
violation of Article XI, Section 6(B). Petitioners argue that the commission did not
even attempt to comply with Sections 6(A) and 6(B) despite the mandatory language
in Section 6 stating that it must do so.
{¶ 82} Senate President Huffman, House Speaker Cupp, and the statewide
officeholders respond to petitioners’ challenge to the adopted plan with three
arguments. They first argue that Article XI, Section 6 is not mandatory but merely
“aspirational.” They next argue that a district plan may not be challenged based
solely on an alleged violation of Section 6, because the remedies provided in Article
XI, Section 9(D)(3) require a predicate violation of Section 2, 3, 4, 5, or 7 before
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this court may evaluate compliance with Section 6. And finally, they argue that
they attempted to comply with Section 6 by negotiating with Senator Sykes and
House Minority Leader Sykes to try to adopt a ten-year bipartisan plan.
{¶ 83} As explained below, the evidence—much of which is undisputed—
shows that the commission did not attempt to comply with the standards stated in
Article XI, Section 6(A) or 6(B). Moreover, respondents’ arguments are
unpersuasive. Section 6 imposes enforceable duties on the commission. And the
inclusion of specific remedies in Section 9(D)(3) if a plan fails to comply with other
sections does not preclude us from declaring a plan invalid if it fails to comply with
Section 6.
1. Article XI, Section 6 requires an attempt
{¶ 84} When interpreting constitutional language, we generally apply the
same rules of construction that govern the interpretation of statutes. See Toledo
City School Dist. Bd. of Edn. v. State Bd. of Edn., 146 Ohio St.3d 356, 2016-Ohio-
2806, 56 N.E.3d 950, ¶ 16. We must begin by looking at the language of the
provision itself. Id. We consider “how the words and phrases would be understood
by the voters in their normal and ordinary usage.” Centerville v. Knab, 162 Ohio
St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 22, citing Dist. of Columbia v.
Heller, 554 U.S. 570, 576-577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In other
words, “[i]n construing constitutional text that was ratified by direct vote, we
consider how the language would have been understood by the voters who adopted
the amendment.” Knab at ¶ 22.
{¶ 85} The opening sentence of Section 6 states that the commission “shall
attempt” to draw a district plan that complies with the standards set forth in
divisions (A) through (C) of that section. Ohio Constitution, Article XI, Section 6.
We have interpreted similar language as imposing mandatory obligations. In State
ex rel. Republic Steel Corp. v. Ohio Civ. Rights Comm., 44 Ohio St.2d 178, 339
N.E.2d 658 (1975), this court interpreted a former version of R.C. 4112.05(B),
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which stated that the Ohio Civil Rights Commission, after finding that an unlawful
discriminatory practice had occurred, “shall endeavor to eliminate such practices
by informal methods of conference, conciliation, and persuasion.” Am.Sub.H.B.
No. 610, 135 Ohio Laws, Part I, 1884, 1892. We held that this language required
“a completed and unsuccessful attempt by the Ohio Civil Rights Commission to
eliminate unlawful discriminatory practices by conference, conciliation, or
persuasion” as “a jurisdictional prerequisite” to the commission’s issuance of a
complaint. Republic Steel at syllabus. In other words, we determined that the
phrase “[s]hall endeavor” was mandatory language: it required the Ohio Civil
Rights Commission to exhaust other means of eliminating an unlawful practice
before it could initiate legal proceedings. Id. at 184.
{¶ 86} The phrase” in Article XI, Section 6 also has a plain meaning: it
directs the commission to take affirmative steps to comply with the standards stated
in divisions (A) through (C). See State ex rel. Cincinnati Enquirer v. Lyons, 140
Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28 (“We have repeatedly
recognized that use of the term ‘shall’ in a statute or rule connotes a mandatory
obligation unless other language evidences a clear and unequivocal intent to the
contrary”); Webster’s Third New International Dictionary 140 (2002) (“attempt”
means “to make an effort to do, accomplish, solve, or effect”). Thus, when drawing
a district plan, the commission must attempt to meet the standards set forth in
Section 6.
{¶ 87} This of course raises the question: What constitutes an “attempt” to
meet the standards provided in Article XI, Section 6(A) through 6(C)? And could
the commission comply with Section 6 without achieving a plan that meets that
section’s standards?
{¶ 88} The final sentence of Article XI, Section 6 provides the answer. It
states, “Nothing in this section permits the commission to violate the district
standards described in Section 2, 3, 4, 5, or 7 of this article.” This sentence
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acknowledges that there might be circumstances that make it impossible for the
commission to meet the standards of Section 6 while also following the map-
drawing requirements of Sections 2, 3, 4, 5, and 7. Read together, the first and last
sentences of Section 6 clarify that the standards of Section 6 are subordinate to the
map-drawing requirements in Sections 2, 3, 4, 5, and 7. If it is possible for a district
plan to comply with Section 6 and Sections 2, 3, 4, 5, and 7, the commission must
adopt a plan that does so.10
{¶ 89} Senate President Huffman and House Speaker Cupp make much of
the legislative debate that preceded the amendment of Article XI. They point to a
statement made by Democratic Representative Kathleen Clyde, who advocated for
the constitutional amendment during a legislative debate, that described the criteria
in Article XI, Section 6 as “aspirational.” Senate President Huffman, who was then
a House member, agreed with that characterization during the debate, stating that
there is “a clear order of things that are mandatory [and] other things that are
aspirational in nature.” Senate President Huffman and House Speaker Cupp argue
that this confirms that the fairness criteria in Sections 6(A) and 6(B) are aspirational.
{¶ 90} But legislative debate does not inform a proper reading of Article
XI, Section 6. For one thing, views of individual legislators do not determine what
a provision means. See State v. Toney, 81 Ohio St. 130, 140, 90 N.E. 142 (1909)
(“the enactment receives its vigor and force as law by reason of its enactment by
the general assembly, no matter from what source the inspiration came”); see also
Nichols v. Villareal, 113 Ohio App.3d 343, 349, 680 N.E.2d 1259 (4th Dist.1996)
10. The first dissenting opinion accuses us of ignoring the “attempt” language in Section 6 and
rewriting the provision to mean: “The Ohio redistricting commission shall, attempt to if it is possible,
F.” Dissenting opinion of Kennedy, J., at ¶ 248. We are doing no such thing. Rather, we are giving
effect to both (1) the “shall attempt” language in the beginning of Section 6 and (2) the expression
in the final sentence of Section 6 that those provisions are subordinate to Sections 2, 3, 4, 5, and 7.
The latter gives meaning to the former. The attempt to comply with Section 6 might be unsuccessful
if to do so would run afoul of Section 2, 3, 4, 5, or 7.
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(courts “must determine the intent of the Ohio General Assembly not from the
expressions of a single legislator, but from the expression of the legislative body as
a whole”). But more importantly, we will not use legislative debate “to muddy
clear statutory language.” Milner v. Dept. of the Navy, 562 U.S. 562, 572, 131 S.Ct.
1259, 179 L.Ed.2d 268 (2011). And here, clear language in Section 6 establishes
that the section’s standards are not merely aspirational. “Aspirational” denotes a
desire to achieve something. See Webster’s Third New International Dictionary at
130 (defining “aspirational” as “of relating to aspiration,” which itself is defined as
“a strong desire for realization,” id.). Section 6 speaks not of desire but of direction:
the commission shall attempt to achieve the standards of that section. While
Section 6 contemplates that the standards set forth in it may not come to fruition, it
nevertheless requires the commission to try to achieve them.
2. Article XI, Section 6 claims are actionable
{¶ 91} Senate President Huffman, House Speaker Cupp, and the statewide
officeholders also argue that the claims based on Section 6 must be dismissed
because Article XI does not provide a specific remedy for the commission’s failure
to comply with Section 6. They focus on Section 9(D)(3), which prescribes the
scope of this court’s remedial power for certain violations of Article XI:
If the supreme court of Ohio determines that a general
assembly district plan adopted by the commission does not comply
with the requirements of Section 2, 3, 4, 5, or 7 of this article, the
available remedies shall be as follows:
(a) If the court finds that the plan contains one or more
isolated violations of those requirements, the court shall order the
commission to amend the plan to correct the violation.
(b) If the court finds that it is necessary to amend not fewer
than six house of representatives districts to correct violations of
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those requirements, to amend not fewer than two senate districts to
correct violations of those requirements, or both, the court shall
declare the plan invalid and shall order the commission to adopt a
new general assembly district plan in accordance with this article.
(c) If, in considering a plan adopted under division (C) of
Section 8 of this article, the court determines that both of the
following are true, the court shall order the commission to adopt a
new general assembly district plan in accordance with this article:
(i) The plan significantly violates those requirements in a
manner that materially affects the ability of the plan to contain
districts whose voters favor political parties in an overall proportion
that corresponds closely to the statewide political party preferences
of the voters of Ohio, as described in division (B) of Section 6 of
this article.
(ii) The statewide proportion of districts in the plan whose
voters, based on statewide state and federal partisan general election
results during the last ten years, favor each political party does not
correspond closely to the statewide preferences of the voters of
Ohio.
(Emphasis added.)
{¶ 92} Senate President Huffman, House Speaker Cupp, and the statewide
officeholders argue that Article XI, Section 9(D)(3) limits our jurisdiction and
remedial power by permitting us to invalidate a plan only when the plan violates
Section 2, 3, 4, 5, or 7. Section 6, they contend, comes into play only if we are
reviewing a four-year plan adopted under Section 8(C). And they argue that even
then, we may review only whether the plan complies with Section 6(B)—and still
only if there was a predicate violation of Section 2, 3, 4, 5, or 7. Thus, they contend
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that Article XI does not allow this court to invalidate a plan when the challengers
allege only a failure to comply with Section 6.
{¶ 93} This argument misunderstands the scope of our jurisdiction and
general remedial power under Article XI, Section 9. Section 9(A) grants this court
“exclusive, original jurisdiction” in all cases arising under Article XI. This broad
grant of jurisdiction is not limited to claims alleging violations of certain sections
of Article XI. Indeed, Section 9(B) identifies the general remedy that is available
when this court determines that a district plan is invalid:
In the event that any section of this constitution relating to
redistricting, any general assembly district plan made by the Ohio
redistricting commission, or any district is determined to be invalid
by an unappealed final order of a court of competent jurisdiction
then, notwithstanding any other provisions of this constitution, the
commission shall be reconstituted as provided in Section 1 of this
article, convene, and ascertain and determine a general assembly
district plan in conformity with such provisions of this constitution
as are then valid, including establishing terms of office and election
of members of the general assembly from districts designated in the
plan, to be used until the next time for redistricting under this article
in conformity with such provisions of this constitution as are then
valid.
(Emphasis added.) Section 9(B) contemplates that this court may declare a district
plan invalid in the exercise of Section 9(A) jurisdiction.
{¶ 94} Because neither Section 9(A) nor Section 9(B) limits the bases on
which this court may declare a plan invalid, Section 9(A) allows review of a district
plan for compliance with any provision in Article XI, including Section 6. This
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conclusion—which gives meaning to the mandatory language in Section 6—is
consistent with the settled principles that no part of the Constitution “should be
treated as superfluous unless that is manifestly required” and that we should avoid
any construction that makes a provision “meaningless or inoperative,” State ex rel.
Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116
N.E. 516 (1917).
{¶ 95} We further reject the notion that Article XI, Section 9(D)(3) is a
specific remedial provision that precludes us from invoking Section 9(B) to declare
a plan invalid for failure to comply with Section 6. “Where provisions of the
Constitution address the same subject matter, they must be read in pari materia and
harmonized if possible.” Toledo Edison Co. v. Bryan, 90 Ohio St.3d 288, 292, 737
N.E.2d 529 (2000). That is, when possible, we must construe constitutional
provisions to give each provision reasonable and operable effect. State ex rel.
Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio St.3d 73, 78, 765 N.E.2d 854 (2002).
{¶ 96} It is not difficult to harmonize Section 9(B) and Section 9(D)(3).
Section 9(B) contemplates that this court may declare a plan invalid and order the
commission to adopt an entirely new plan. Section 9(D)(3) speaks to certain
violations of Article XI and gives this court remedial options other than declaring
a plan entirely invalid. According to Section 9(D)(3)(a) and (b), we do not have to
declare a plan entirely invalid if violations of Section 2, 3, 4, 5 or 7 are isolated or
would require amendments regarding relatively few districts.11 And for a four-year
11. The first dissenting opinion argues that we mischaracterize Section 9(D)(3) and that under our
“reading of these provisions, Section 9(B) adds nothing to the remedies afforded by Section
9(D)(3).” Dissenting opinion of Kennedy, J., at ¶ 229. It is that opinion, however, that
mischaracterizes Section 9. Section 9(A) grants this court jurisdiction over all cases arising under
Article XI. In the exercise of that jurisdiction, Section 9(B) authorizes the court to declare a plan
invalid. Section 9(D)(3) begins with the phrase, “If the supreme court of Ohio determines that a
general assembly district plan adopted by the commission does not comply with the requirements
of Section 2, 3, 4, 5, or 7 of this article, the available remedies shall be as follows.” Ohio
Constitution, Article XI, Section 9(D)(3). Section 9(D)(3) therefore instructs us to take specific
courses of action in the event that we find a violation of Section 2, 3, 4, 5, or 7. Section 9(D)(3)
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plan that might not otherwise be declared invalid under Section 9(D)(3)(a) or (b),
this court may still order the commission to adopt a new plan if the adopted plan
violates Section 2, 3, 4, 5, or 7 in a manner that causes it to run afoul of the partisan-
proportionality standard set forth in Section 6(B). Ohio Constitution, Article XI,
Section 9(D)(3)(c). Section 9(D)(3) covers these specific circumstances. It says
nothing of this court’s authority to examine whether the commission has complied
with some other section of Article XI or of what remedy this court may provide if
it determines that a plan is invalid for violating another section.
{¶ 97} Further, the language and structure of former Article XI cut against
the reading of Article XI, Section 9(D)(3) proposed by Senate President Huffman,
House Speaker Cupp, and the statewide officeholders. Much of the language of
Sections 9(A) and 9(B) was imported from former Article XI, Section 13.12 Before
Article XI was amended, former Section 13 was the only provision that referred to
this court’s jurisdiction and remedial power in apportionment cases. In Wilson, this
court never suggested that Article XI did not authorize it to declare a plan invalid
or to order an appropriate remedy. See 134 Ohio St.3d 221, 2012-Ohio-5367, 981
limits our otherwise broad authority to invalidate plans. Importantly, that limitation does not apply
here, because no violation of Section 2, 3, 4, 5, or 7 has been alleged or found.
12. Former Article XI, Section 13, Ohio Constitution (effective Nov. 7, 1967, to Jan. 1, 2021),
provided:
The supreme court of Ohio shall have exclusive, original jurisdiction in
all cases arising under this Article. In the event that any section of this
Constitution relating to apportionment or any plan of apportionment made by the
persons responsible for apportionment, by a majority of their number, is
determined to be invalid by either the supreme court of Ohio, or the supreme court
of the United States, then notwithstanding any other provisions of this
Constitution, the persons responsible for apportionment by a majority of their
number shall ascertain and determine a plan of apportionment in conformity with
such provisions of this Constitution as are then valid, including establishing terms
of office and election of members of the general assembly from districts
designated in the plan, to be used until the next regular apportionment in
conformity with such provisions of this Constitution as are then valid.
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N.E.2d 814, at ¶ 10. Section 9(A) gives this court jurisdiction, and Section 9(B)
provides for a remedy, just as former Section 13 did. The fact that Section 9(D)
provides specific remedies for some violations of Article XI does not remove this
court’s remedial power to declare a plan invalid for violations not specified there.
Were this court’s remedial power limited in such a fashion, Section 9 would have
spelled it out expressly, as it did in Section 9(D)(1) and (2), which expressly state
what this court shall not do.
{¶ 98} Article XI, Section 9(B) recognizes this court’s authority to
determine whether a plan is invalid for any reason and specifies what must happen
if it does. This general power to invalidate a plan is limited by Section 9(D)(3) but
only as to violations of Section 2, 3, 4, 5, or 7. Section 9(D)(3) does nothing more.
{¶ 99} The first dissenting opinion argues that Article XI contains no
specific enforcement mechanism for Section 6 and that Section 6 therefore is
merely a direction to the commission’s members that they are “duty bound to
comply with,” dissenting opinion of Kennedy, J., at ¶ 240, not a mandate that can
be enforced by this court. However, as just explained, Article XI does contain a
mechanism for enforcing compliance with Section 6. Moreover, in support of its
argument that this court cannot enforce compliance with the section, the first
dissenting opinion relies on In re Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777,
820 N.E.2d 335, ¶ 37-38—a case that undermines the dissent’s own argument. In
Nowak, we held that manifestly gross and fraudulent violations of the “one subject”
rule in Article II, Section 15(D) of the Ohio Constitution can be enforced in a court
of law and that because the provision was capable of invalidating an enactment, it
was not directory in nature. Nowak at paragraph one of the syllabus. Similarly,
here, Senate President Huffman, House Speaker Cupp, and the first dissenting
opinion all concede that a redistricting plan can be invalidated under Section 6(B)
in some circumstances—specifically, they allow that a violation of Section 6(B) is
actionable if there is also a violation of Section 2, 3, 4, 5, or 7. Accordingly, under
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Nowak—and even setting aside the application of Article XI, Sections 9(A) and
9(B)—Section 6 is not merely directory.
{¶ 100} Despite Article XI, Sections 9(A) and 9(B)’s clear grant of
authority to review and invalidate a redistricting plan, both dissenting opinions
suggest that there is no judicial remedy for a violation of Section 6. The second
dissenting opinion goes so far as to assert that if the commission adopts a plan
contrary to the anti-gerrymandering provisions that Ohio voters included in the
revised Article XI, Ohio voters must continue to live with the gerrymandered
districts unless and until the statewide electorate replaces the governor, secretary of
state, or auditor of state at the ballot box or the voters in the home districts of the
commission’s legislative members choose to replace those members.
{¶ 101} The suggestion that the solution to unconstitutional partisan
gerrymandering is simply to vote out its perpetrators is disingenuous. Partisan
gerrymandering entrenches the party in power. See, e.g., Gill v. Whitford, ___ U.S.
___, ___, 138 S.Ct. 1916, 1935, 201 L.Ed.2d 313 (2018) (Kagan, J., concurring).
If the legislative members of the commission that adopted the instant plan are voted
out of office, the party that appointed them will simply appoint different partisans.
And common sense dictates that notwithstanding attrition based on term limits or
any other reasons, the officeholders will stand for reelection primarily on the basis
of their performance in those offices, not as members of the redistricting
commission. The notion that the voters who overwhelmingly approved the
amendment of Article XI meant to hinge the eradication of partisan gerrymandering
on the election of various officeholders simply holds no water. This is so
particularly in light of the fact that Fair Districts for Ohio—the organization formed
by the amendment’s sponsors, including Senate President Huffman—told Ohio
voters that Article XI would “[p]rotec[t] against gerrymandering,” “[r]equir[e]
districts to closely follow the statewide preferences of voters,” and “[c]reat[e] a
process for the Ohio Supreme Court to order the commission to redraw the map if
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the plan favors one political party.” (Emphasis added.) Similarly, the official ballot
language informed voters that the amendment would “[e]nd the partisan process for
drawing Ohio House and Senate districts,” yet the dissenting opinions would make
the process partisan again by requiring voters to change the party controlling the
majority of seats on the commission in order to effect any real change. We reject
the notion that Ohio voters rallied so strongly behind an anti-gerrymandering
amendment to the Ohio Constitution yet believed at the time that the amendment
was toothless. As explained above, that conclusion is not supported by the plain
text of Article XI. It is also supported neither by the information given to voters in
2015 nor by common sense.
3. The commission did not attempt to meet the standard set forth in
Article XI, Section 6(B)
{¶ 102} Petitioners have shown beyond a reasonable doubt that the
commission did not attempt to draw a district plan that meets the standard
articulated in Article XI, Section 6(B). Undisputed evidence shows not only that
the individuals who drew the plan did not try to comply with the Section 6(B)
standard but also that they did not have the right target in mind.
{¶ 103} To start, funding for redistricting was allocated only to the
legislative caucuses involved, and the commission members from the executive
branch were not given access to the mapping programs that would have allowed
them to meaningfully participate in the drawing of the maps. Even under this
arrangement, only two commission members—Senate President Huffman and
House Speaker Cupp—were involved when the plan that was ultimately adopted
was drawn. Thus, the commission did not demonstrate a correct understanding of
what was required in drawing the maps.
{¶ 104} As to the specific requirement of Section 6(B), the commission
must attempt to draw a plan that corresponds to the statewide preferences of Ohio
voters: “The statewide proportion of districts whose voters, based on statewide state
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and federal partisan general election results during the last ten years, favor each
political party shall correspond closely to the statewide preferences of the voters of
Ohio.” Ohio Constitution, Article XI, Section 6(B).
{¶ 105} This standard requires the calculation—and then the comparison—
of two things. The commission must first calculate the statewide proportion of
districts whose voters favor each political party. In making this calculation, the
commission must determine how voters in the proposed districts are likely to vote
in future elections by examining the statewide federal and state partisan election
results from the previous ten years. The evidence submitted shows that map-
drawing software performed this calculation for the map drawers recruited by the
Republican legislative members of the commission. The commission
acknowledged in its Article XI, Section 8(C)(2) statement that 64.4 percent of all
districts in the adopted plan favored Republican candidates during the specified
period. Depending on the measures used, Senate President Huffman and House
Speaker Cupp’s expert concluded, the number of districts in the plan favoring
Republican House seats is between 61 and 68 percent.
{¶ 106} The second calculation that must be made by the commission is the
statewide preferences of the voters of Ohio. Senate President Huffman and House
Speaker Cupp argue that one way to determine statewide voter preferences is to
calculate the percentage of statewide partisan races won by candidates from each
party during the last ten years. That method leads to the conclusion that 81 percent
of Ohio voters prefer Republican candidates, because Republican candidates won
13 of 16 statewide partisan contests during the last ten years. Using this approach
in conjunction with a measure of the proportional number of votes cast for each
party in those elections, Senate President Huffman and House Speaker Cupp assert
that the proportion of Ohio voters favoring Republican candidates is between 54
and 81 percent. This is the methodology that the commission adopted in its Article
XI, Section 8(C)(2) statement.
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{¶ 107} This methodology, however, does not tell us the “statewide
preferences of the voters of Ohio.” Calculating the percentage of statewide election
victories over the last ten years does not indicate the preferences of individual Ohio
voters. The “statewide preferences of the voters of Ohio” must be determined by
examining how the voters voted—i.e., by totaling the votes cast in statewide
partisan elections and calculating the percentages of votes received by candidates
of each political party. Senate President Huffman and House Speaker Cupp’s
approach looks not to votes cast but to statewide offices won, which is a measure
that does not comport with Article XI, Section 6(B).
{¶ 108} As used in Article XI, Section 6(B) of the Ohio Constitution, the
term “statewide preferences of the voters of Ohio” means the percentages of votes
received by the candidates of each political party based on the total votes cast in
statewide state and federal partisan elections during the preceding ten years. In this
case, there is no dispute that under this methodology, which looks at votes cast in
statewide elections over the relevant period, about 54 percent of Ohio voters
preferred Republican candidates and about 46 percent of Ohio voters preferred
Democratic candidates. Accordingly, under Section 6(B), the commission is
required to attempt to draw a plan in which the statewide proportion of Republican-
leaning districts to Democratic-leaning districts closely corresponds to those
percentages.
{¶ 109} The misunderstanding of what Article XI, Section 6(B) requires, as
expressed in the commission’s Section 8(C)(2) statement, demonstrates that the
commission did not attempt to comply with the standard set forth in that section. But
even if Senate President Huffman and House Speaker Cupp had had the right target
in mind, the evidence shows that they never asked the principal map drawers—
DiRossi and Springhetti—to try to comply with Section 6. DiRossi and Springhetti
testified that they had access to partisan data during the map-drawing process by
using a computer program that allowed them to see the anticipated Republican and
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Democratic voting percentages for each district they drew. The program allowed
them to see how the percentages changed as they changed the district lines. Yet
DiRossi and Springhetti testified that they were never told to attempt to comply with
Section 6. Senate President Huffman and House Speaker Cupp confirmed that they
instructed DiRossi and Springhetti to focus on complying with other provisions of
Article XI but not on those in Section 6.
{¶ 110} Senate President Huffman and House Speaker Cupp nevertheless
argue that they did attempt to satisfy Article XI, Section 6(B)—after their plan was
first introduced on September 9—by negotiating with the Democratic members of
the commission and modifying their original proposal. Governor DeWine,
Secretary LaRose, and Auditor Faber also argue that they “attempted to achieve a
bipartisan ten-year plan” before September 15. But when the evidence offered to
show that an “attempt” had been made under Section 6 is nothing more than the
political negotiations between commission members, the evidence falls short in
demonstrating that the commission has drawn a plan that complies with the
requirements of the section.
{¶ 111} Article XI, Section 6(B) does not require the majority-party
members of the commission to try to draw a plan that is acceptable to the minority-
party members of the commission or vice versa. It requires all members of the
commission to attempt to draw a plan in which the proportional favor to each
political party’s candidates “correspond[s] closely” to statewide voter preferences
over a defined period. In fact, even if commission members of the minority party
agreed to a proposed plan, this does not necessarily mean that the agreed-upon plan
would comply with Section 6.
{¶ 112} Moreover, petitioners have introduced substantial expert evidence
showing that the commission could have drawn a more proportional plan. One
expert, Dr. Kosuke Imai, a professor in Harvard University’s departments of
government and of statistics, who has expertise in developing simulation
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algorithms for evaluating legislative redistricting, employed a redistricting
simulation algorithm using the Article XI criteria to generate 5,000 possible district
plans, none of which favored a party as strongly as the plan adopted by the
commission. Dr. Imai’s analysis showed that the plan adopted by the commission
was an outlier, displaying a greater degree of disproportionality than any of the
simulated maps he generated. Petitioners have also offered the expert report of Dr.
Jonathan Rodden, a professor of political science at Stanford University with
expertise in the analysis of geospatial data, including research on the relationship
between the patterns of political representation, geographic location of
demographic and partisan groups, and the drawing of electoral districts. Dr.
Rodden drew a plan that was compliant with Article XI and that is more
proportional to the statewide voter preferences than the plan adopted by the
commission.
{¶ 113} Respondents offer little to dispute this evidence. In fact, Senate
President Huffman and House Speaker Cupp respond to it in their brief by
conceding that “[Petitioners’] experts can easily draw simulated maps after the fact
that provide exact proportionality by making exact proportionality one of their
criteria for drawing maps.” They argue that there are no manageable standards for
this court to apply in determining how “fair” a plan must be. But Article XI, Section
6(B) recognizes that fairness is measured by efforts taken to achieve close
proportionality; it requires the commission to attempt to draw a plan in which the
statewide proportion of districts corresponds closely with the statewide preferences
of Ohio voters “based on statewide state and federal partisan general election results
during the last ten years,” Ohio Constitution, Article XI, Section 6(B). Petitioners’
expert evidence further supports the conclusion that the commission did not attempt
to meet the standard set forth in Section 6(B).
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{¶ 114} Based on the evidence presented, we conclude beyond a reasonable
doubt that the commission did not attempt to draw a district plan that meets the
standard articulated in Article XI, Section 6(B) of the Ohio Constitution.
4. The commission did not attempt to meet the Article XI, Section 6(A) standard
{¶ 115} Under Article XI, Section 6(A), the commission must attempt to
meet the standard that “[n]o general assembly district plan shall be drawn primarily
to favor or disfavor a political party.” To understand what Section 6(A) requires, it
is again helpful to look to this court’s decision in Wilson.
The words used in [former] Article XI do not explicitly
require political neutrality, or for that matter, politically competitive
districts or representational fairness, in the apportionment board’s
creation of state legislative districts. Unlike Ohio, some states
specify in either constitutional or statutory language that no
apportionment plan shall be drawn with the intent of favoring or
disfavoring a political party. * * * Therefore, Article XI does not
prevent the board from considering partisan factors in its
apportionment decision.
(Emphasis added.) Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814,
at ¶ 14.
{¶ 116} Thus, in holding that former Article XI did not require partisan
fairness in the drawing of state legislative districts, this court found it significant
that the Ohio Constitution did not include language forbidding a plan from being
drawn with the intent to favor or disfavor a political party. The Ohio Constitution
now contains language that is almost identical to the language that this court found
to be missing from former Article XI. This language does not prohibit a district
plan from favoring or disfavoring a political party. It prohibits a plan from being
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drawn primarily to favor or disfavor a political party. The language, by necessity,
requires this court to discern the map drawers’ intent.
{¶ 117} Courts have found that direct or circumstantial evidence may
establish that a districting plan was drawn primarily to favor one political party over
another. See League of Women Voters of Florida v. Detzner, 172 So.3d 363, 375-
376 (Fla.2015); see also Ohio A. Philip Randolph Inst. v. Householder, 373
F.Supp.3d 978, 1096 (S.D.Ohio 2019), vacated on other grounds sub nom. Chabot
v. Ohio A. Philip Randolph Inst., __ U.S. __, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019),
by Rucho v. Common Cause, __ U.S. __, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019),
quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597
(1976) (“Plaintiffs may prove discriminatory partisan intent using a combination of
direct and indirect evidence because ‘invidious discriminatory purpose may often
be inferred from the totality of the relevant facts’ ”).
{¶ 118} A map-drawing process may support an inference of predominant
partisan intent. The evidence here demonstrates that Senate President Huffman and
House Speaker Cupp controlled the process of drawing the maps that the
commission ultimately adopted. No other commission members had access to
DiRossi and Springhetti; nor did other commission members have any role in
drawing the plan. Senate President Huffman and House Speaker Cupp did not
instruct DiRossi and Springhetti to comply with Article XI, Section 6. Indeed,
Senate President Huffman and House Speaker Cupp do not view Section 6 as
mandatory. Although DiRossi and Springhetti testified that they were focused on
Article XI’s technical line-drawing requirements, they acknowledged that while
drafting the proposed plan, a window on their computer screens displayed the
partisan leanings of potential districts.
{¶ 119} This is not the process that Article XI contemplates. Section 1(C)
provides that the commission “shall draft the proposed plan in the manner
prescribed in” Article XI, and Section 1(B)(2) allows the commission to hire its
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own staff to do so. Despite this language, the commission itself did not engage in
any map drawing or hire independent staff to do so. Instead, the legislative
caucuses of the two major political parties—i.e., the groups with the most self-
interest in protecting their own members—drew maps for the commission to
consider.
{¶ 120} At bottom, the process that culminated in the adopted plan, having
been directed and controlled by one political party’s legislative leaders, was not an
attempt to comply with Section 6(A) or 6(B) standards. When a single party
exclusively controls the redistricting process, “it should not be difficult to prove
that the likely political consequences of the reapportionment were intended.” Davis
v. Bandemer, 478 U.S. 109, 129, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plurality
opinion), abrogated on other grounds by Rucho, __ U.S. __, 139 S.Ct. 2484, 204
L.Ed.2d 931.
{¶ 121} Further, the expert evidence supports the conclusion that the adopted
plan’s partisan skew cannot be explained solely by nondiscriminatory factors. Under
the adopted plan, Republicans are favored to win between 61 and 68 House seats
and between 20 and 24 Senate seats. The expert report of Dr. Michael Latner, a
professor of political science at California Polytechnic State University with
expertise in electoral-system design and statistical methods in elections and in
designing electoral districts, shows that the plan substantially favors Republican
voters through targeted “cracking” and “packing” of Democratic voters that “did
not occur by chance or accident.”13 Using a partisan-symmetry analysis, a metric
that is broadly accepted by political scientists to measure partisan bias, Dr. Latner
13. “A ‘cracked’ district is one in which a party’s supporters are divided among multiple districts,
so that they fall short of a majority in each; a ‘packed’ district is one in which a party’s supporters
are highly concentrated, so they win that district by a large margin, ‘wasting’ many votes that would
improve their chances in others.” Rucho, __ U.S. at ___, 139 S.Ct. at 2492, 204 L.Ed.2d 931.
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concluded that the plan adopted by the commission significantly discriminates
against Democratic voters to the advantage of Republican voters.
{¶ 122} “Partisan symmetry” measures whether each party would receive the
same share of legislative seats assuming that each had identical percentage vote
shares. Dr. Latner’s analysis showed that if Republican candidates won 54 percent
of the statewide vote under the adopted plan, they would win 64 House seats (a
supermajority). In contrast, with the same statewide vote-share percentage,
Democratic candidates would not win even a bare majority of the House seats under
the adopted plan. Similarly, for statewide vote shares ranging from 45 percent to 55
percent—within the swing of actual Ohio voting patterns—Dr. Latner projected that
under the Senate map that was adopted, the Republican candidates would win an
average of 17 percent more seats than Democratic candidates for the same vote share.
{¶ 123} Dr. Latner further opined that “discretionary choices,” as opposed to
the necessity of complying with Article XI’s objective map-drawing criteria, were
the reasons for the asymmetry. His analysis showed that many district boundaries in
the plan conform to partisan precincts in a precise manner, which supports the
conclusion that the drawers of the plan relied on the partisan makeup of the districts
and attempted to draw districts to favor one political party over the other. Dr. Latner
identified counties throughout the state (Cuyahoga, Lucas, Summit, Hamilton, and
Montgomery) where boundaries were unnecessarily drawn to create “safe seats” for
Republican candidates.
{¶ 124} Dr. Imai’s work also supports the conclusion that the adopted
plan’s partisan skew is not due to Ohio’s political geography. Using Article XI’s
map-drawing criteria, Dr. Imai generated 5,000 possible district plans. Of those
simulated plans, none was as favorable to Republicans as the adopted plan. The
fact that the adopted plan is an outlier among 5,000 simulated plans is strong
evidence that the plan’s result was by design.
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{¶ 125} Dr. Imai also performed a detailed analysis of districts in Hamilton,
Franklin, and Cuyahoga-Summit-Geauga counties.14 Using data from 13 statewide
elections from 2012 to 2020, Dr. Imai found that the adopted plan had a pattern of
packing disproportionately large numbers of Democratic voters into some districts
while turning other districts into Republican safe seats. This targeted packing and
cracking of Democratic voters allowed the adopted plan to gain Republican House
seats in these counties. And among all possible compliant Senate plans that
included these counties, the adopted plan was an outlier: none of the simulations
projected as many legislative seats being won by Republican candidates.
{¶ 126} Dr. Rodden’s expert report similarly demonstrates that the adopted
plan was drawn primarily to favor Republican candidates and to disfavor
Democratic candidates. Dr. Rodden compared the adopted plan to other plans,
including a plan that he created. Though Dr. Rodden acknowledged the challenges
presented by Ohio’s political geography, he concluded that the partisan skew of the
adopted plan was not a product of those challenges. In his view, the adopted plan
resulted from (1) strategic packing and cracking of Democratic voters in
metropolitan areas, (2) splitting proximate groups of Democratic voters to scatter
them across majority-Republican rural and exurban districts (e.g., the Cincinnati
and Dayton metropolitan areas), and (3) keeping proximate groups of Democratic
voters apart to carve out majority-Republican districts within urban counties.15
Indeed, when Dr. Rodden drew his district plan that adhered to traditional
redistricting principles, complied with Article XI, and did not endeavor to help or
harm any political party, the result was much different: a plan with more compact
14. Dr. Imai analyzed Cuyahoga, Summit, and Geauga counties as a “cluster.” Multiple House
districts in the adopted plan stretched across county lines in this area.
15. As examples, Dr. Rodden cited District 10 in southwest Franklin County, District 27 in eastern
Hamilton County, District 39 outside Dayton, and District 17 in southern Cuyahoga County. He
discerned a strategy to configure districts with “long, narrow strips hugging the county boundary in
sparsely populated exurban areas.”
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districts and in which the partisan split in Republican candidates’ favor was 57
percent to 43 percent in the House and 55 percent to 45 percent in the Senate.
{¶ 127} Senate President Huffman and House Speaker Cupp argue that the
Republican advantage in the adopted plan results from the changing voting and
residential patterns of Ohioans. They cite both Dr. Rodden—one of petitioners’
experts—and their own experts to show that Democratic voters are highly clustered
in urban areas while Republican voters are scattered more evenly throughout the
state. This clustering, they say, creates a “natural disadvantage” for Democratic
candidates when legislative districts are drawn, with the result being that
Democratic candidates have far fewer counties in which they can be competitive.
{¶ 128} There is no dispute among the experts that Ohio’s political
geography poses challenges in the drawing of overall Article XI-compliant
districts. But the testimony of respondents’ experts does not rebut the key point
established by petitioners’ experts: it is possible to draw a plan that is compliant
with Article XI and that does not favor the majority party to the overwhelming
extent that the adopted plan does.
{¶ 129} To show that the adopted plan’s partisan skew was due to the
political geography of the state, Senate President Huffman and House Speaker
Cupp submitted expert testimony from Dr. Michael Barber, a professor of political
science at Brigham Young University with expertise in advanced statistical
methods for analyzing election data, and Sean P. Trende, a doctoral candidate in
political science at the Ohio State University and an analyst with RealClearPolitics.
Dr. Barber and Trende mainly compared the adopted plan to plans introduced by
Senator Sykes on September 1 and September 15. They point out the various ways
in which Senator Sykes’s plans are pro-Democratic gerrymanders. Similarly, an
affidavit submitted by DiRossi details the ways in which Senator Sykes’s
September 15 plan and a plan offered by a citizen group do not comply with Article
XI. But showing that other plans are pro-Democratic gerrymanders or
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noncompliant with Article XI does not validate the adopted plan. Nor does it show
that the commission attempted to comply with Article XI, Section 6(A) when it
drew the adopted plan.
{¶ 130} Senate President Huffman and House Speaker Cupp offer
additional expert testimony addressing whether the adopted plan has a partisan bias.
Trende questions the metrics used by petitioners’ experts to measure partisan bias,
opining that it is not clear what this court must infer from those metrics. Trende
does not, however, offer an alternative way to measure partisan bias. More
importantly, he does not offer testimony rebutting Dr. Rodden’s or Dr. Imai’s
evidence that it is possible for the commission to draw a district plan that is
compliant with Article XI and that does not favor Republican candidates so heavily.
{¶ 131} Although respondents have presented evidence showing that Ohio’s
political geography and the map-drawing requirements of Article XI, Sections 3 and
4 may naturally lead to a district map’s favoring the Republican candidates, the
evidence shows that these factors did not dictate as heavy a partisan skew as there is
in the adopted plan. Petitioners have shown beyond a reasonable doubt that the
commission did not attempt to draw a districting plan that meets the standard
articulated in Section 6(A).16
16. The second dissenting opinion concedes that our analysis of what constitutes an attempt to
comply with Article XI, Section 6 is plausible but also takes the position that the commission
members’ efforts to comply with that provision, as chronicled in the first dissenting opinion, is also
plausible. The plausibility of these competing interpretations, according to the second dissenting
opinion, means that petitioners cannot satisfy their burden of proving beyond a reasonable doubt
that the plan is unconstitutional. For this proposition, the second dissenting opinion relies on Ohio
Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872, 916 N.E.2d 446, ¶ 24, in which we
held that “it is not enough to show that one plausible reading requires [a] statute to be stricken as
unconstitutional, when another plausible reading permits it to survive.” See also Harrold v. Collier,
107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37 (“The fact that a statute might operate
unconstitutionally under some plausible set of circumstances is insufficient to render it wholly
invalid”). The second dissenting opinion’s reliance on the analysis applicable to facial challenges
to the constitutionality of statutes is misplaced. We do not have before us two competing
interpretations of a statute, one of which would make it unconstitutional and the other constitutional.
Rather, we have (as the second dissenting opinion highlights) competing interpretations of the
constitutional provision itself, i.e., what the term “shall attempt” means as used in Section 6. To
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D. Article XI, Section 3(B)(2)
{¶ 132} Article XI, Section 3(B)(2) of the Ohio Constitution provides, “Any
general assembly district plan adopted by the commission shall comply with all
applicable provisions of the constitutions of Ohio and the United States and of federal
law.” Petitioners OOC et al. argue that the adopted district plan violates this
provision because it does not comply with the Ohio Constitution’s guarantees of
equal protection (Article I, Section 2), assembly (Article I, Section 3), and free speech
(Article I, Section 11). They argue that the plan violates the Equal Protection Clause
by diluting the weight of Democratic votes and that it violates the Assembly and Free
Speech Clauses by burdening Democrats’ political and associational activities.
{¶ 133} Because we invalidate the plan under Article XI, Sections 6(A) and
6(B), we do not reach these claims. We express no opinion on whether a plan could
comply with the requirements of Article XI yet still violate the Equal Protection,
Assembly, or Free Speech Clauses of the Ohio Constitution.
{¶ 134} A final note. Our analysis and conclusion in these cases would be
the same regardless of which political party makes up the majority of the
commission or drives the map-drawing process. And any disagreement between
the members of this court about the legal interpretation of words in the Ohio
Constitution does not undermine the integrity of the court or Ohioans’ confidence
in it, as the second dissenting opinion fears. It is a hallmark of an independent
judiciary, made up here of seven jurists, that principled legal disagreements may
arise. When disagreements do arise and are addressed intelligently and truthfully
by the justices, confidence in the judicial branch of our government is strengthened.
prevail on their challenge in these cases, petitioners must prove beyond a reasonable doubt that the
plan violates Section 6 as we definitively interpret it; they do not have to prove that the plan is
unconstitutional under some other interpretation of Section 6 not adopted by this court. See Wilson,
134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 48 (“we consider the plan against the
requirements of the United States and Ohio Constitutions, as interpreted by federal and state
decisional law” [emphasis added]).
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But when they are addressed with dire predictions and what appears to be
unreasonable characterizations, we cannot help but wonder whether such
aspersions will shake the public’s confidence in our court.
E. Remedy
{¶ 135} For the reasons set forth above, we hold that the redistricting
commission did not comply with Article XI, Section 6. We therefore declare the
plan invalid and order the commission to be reconstituted and to adopt a plan in
conformity with the Ohio Constitution.
{¶ 136} We are mindful of the imminent 2022 election cycle, which starts
with the February 2, 2022 deadline for candidates for legislative offices to submit
petitions and declarations of candidacy. See R.C. 3513.05. And because the
election cycle should not proceed with a General Assembly–district map that we
have declared invalid, it is appropriate to issue further remedial orders in an effort
to have the redistricting commission adopt a plan that complies with Article XI in
time for the plan to be effective for the 2022 election cycle. See Ohio Constitution,
Article IV, Section 2(B)(1)(f); State v. Steffen, 70 Ohio St.3d 399, 407, 639 N.E.2d
67 (1994) (interpreting Section 2(B)(1)(f) “to authorize judgments in this court that
are necessary to achieve closure and complete relief in actions pending before the
court”).
{¶ 137} Therefore, in addition to declaring the plan invalid and ordering the
commission to reconvene to adopt a new plan, we direct the commission to adopt a
new plan within ten days of this judgment. We also retain jurisdiction to review
the plan that the commission adopts for compliance with our order.
III. CONCLUSION
{¶ 138} Because the commission did not attempt to meet the standards set
forth in Article XI, Sections 6(A) and 6(B) of the Ohio Constitution, we declare
invalid the General Assembly–district plan adopted on September 16, 2021. Pursuant
to Article XI, Section 9(B), we order the commission to be reconstituted under
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Article XI, Section 1, to convene, and to ascertain and adopt a General Assembly–
district plan in conformity with the Ohio Constitution. The commission’s plan shall
comply with the standards set forth in Sections 6(A) and 6(B) as we have explained
them above.
{¶ 139} We further order the commission to adopt a new plan within ten
days of this judgment, and we retain jurisdiction for the purpose of reviewing the
new plan adopted by the commission. Petitioners shall file any objections to the
new plan within three days of the plan’s adoption.
Relief granted.
DONNELLY, J., concurs.
O’CONNOR, C.J., concurs, with an opinion joined by BRUNNER, J.
BRUNNER, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion.
_________________
O’CONNOR, C.J., concurring.
{¶ 140} I concur fully in the majority opinion.
{¶ 141} I write separately because readers should understand they have the
power to again amend the Ohio Constitution to ensure that partisan politics is
removed from the drawing of Ohio Senate and House districts that takes place every
ten years.
{¶ 142} And, if upon reading the court’s decision today, readers determine
that Article XI of the Ohio Constitution is not living up to its promise—in light of
the map-drawing process presented to the court in these cases (or the dissenting
opinions’ assertion that Article XI has no discernable or enforceable effect to curb
gerrymandering in the state of Ohio)—and that leaving the redistricting process to
partisan-elected officials will not achieve the desired outcome, readers should know
that other models of the redistricting process exist. In other states, voters have
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elected ballot measures that strip redistricting authority from state legislatures and
partisan officeholders and place it instead with nonpartisan redistricting
commissions. Indeed, “independent redistricting commissions are increasingly
synonymous with citizen redistricting commissions, where ordinary citizens serve
as commissioners,” because staffing commissions with career politicians, including
legislators, “still permitted informal, careerist, and political interests to permeate
the redistricting process.” (Emphasis sic.) Emily Rong Zhang, Bolstering Faith
with Facts: Supporting Independent Redistricting Commissions with Redistricting
Algorithms, 109 Cal.L.Rev. 987, 989-990 (2021), citing Bruce E. Cain,
Redistricting Commissions: A Better Political Buffer?, 121 Yale L.J. 1808, 1817-
1821 (2012).
{¶ 143} While not free from their own vulnerabilities, independent
redistricting commissions have become “the premier institutional solution to the
problem of partisan gerrymandering” because they increase the degree of
separation between map-drawers and partisan politics. Zhang, 109 Cal.L.Rev. at
1000. They shift the power to redistrict away from partisan actors who have an
incentive to gerrymander in order to maintain or expand their political power.
Christopher Esposito, Gerrymandering and the Meandering of Our Democratic
Principles: Combating Partisan Gerrymandering After Rucho, 30 S.Cal.
Interdisc.L.J. 195, 211 (2021). States that have enacted citizen-led, independent
redistricting commissions include Arizona, California, Michigan, and Colorado.
Zhang, 109 Cal.L.Rev. at 990.
{¶ 144} In 2000, in an effort to end the practice of gerrymandering, Arizona
voters adopted Proposition 106, an initiative that amended the state’s constitution
to shift redistricting authority from the state legislature to the Arizona Independent
Redistricting Commission (“AIRC”). See Arizona State Legislature v. Arizona
Independent Redistricting Comm., 576 U.S. 787, 792, 135 S.Ct. 2652, 192 L.Ed.2d
704 (2015). The resulting constitutional amendment provides for a five-member
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commission, with each member chosen from a pool of nominees established by the
state’s commission on appellate-court appointments. Arizona Constitution, Article
IV, Part 2, Section 1(3) through (6). The first four members of the AIRC are chosen
by the majority and minority party leaders in the state legislature, who each select
one member from the nomination pool. Id. at Section 1(6). Those four named
commission members then choose the final member from the same nomination
pool; the final member may not be registered with any political party already
represented on the commission. Id. at Section 1(8). Except for school-board
members and officers or candidates for school board, current holders of, or
candidates for, public office may not serve on the AIRC, and no more than two of
the commission’s five members may be affiliated with the same political party. Id.
at Section 1(3). The Arizona initiative required that AIRC’s redistricting plans
“start from scratch, modifying an initial grid plan according to traditional criteria
such as compactness, contiguity, and community of interest, and to the extent
possible relying on visible geographic features and undivided census tracts,”
without considering incumbency or using political data in the construction of the
initial grid. Cain, 121 Yale L.J. at 1830.
{¶ 145} The California Redistricting Commission operates similarly to the
AIRC, but its redistricting plans take effect only if approved by public referendum.
Arizona State Legislature at 798, citing California Constitution, Article XXI,
Section 2 and Cal.Govt.Code Ann. 8251-8253.6 (West Supp.2015); see also Cain,
121 Yale L.J. at 1823. “The unstated assumption behind the California effort was
that a bipartisan panel of citizens, unconnected to incumbent legislators and relying
on neutral criteria, would create fair and competitive district boundaries without
explicit instructions to do so and without using political data. In other words,
partisan fairness and competition would be the indirect effect of the commission’s
composition and adherence to designated neutral formal criteria (e.g., compactness,
respect for city and county boundaries, following communities of interest, etc.).”
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Cain, 121 Yale L.J. at 1823-1824. The multi-step process for choosing the 14
commission members in California was “ ‘designed to be extraordinarily fair and
impartial, and lead to a group of commissioners who would meet the very high
standards of independence and would reflect the population of [the state].’ ” Id. at
1824, quoting California Citizens Redistricting Commission, Final Report on 2011
Redistricting 2 (2011).
{¶ 146} More recently, in 2018, Michigan voters passed a proposal to
amend that state’s constitution “ ‘to establish a commission of citizens with
exclusive authority to adopt district boundaries for the Michigan Senate, Michigan
House of Representatives and U.S. Congress.’ ” Daunt v. Benson, 999 F.3d 299,
303 (6th Cir.2021), quoting Michigan Board of State Canvassers, Official Ballot
Wording approved by the Board of State Canvassers, August 30, 2018, Voters Not
Politicians,
https://www.michigan.gov/documents/sos/Official_Ballot_Wording_Prop_18-
2_632052_7.pdf. The Michigan commission consists of 13 registered voters,
randomly selected by the secretary of state from eligible applicants. Id. at 304. It
must include four members who are affiliated with each of the state’s two major
political parties and five members who are unaffiliated with those parties. Id.
Partisan officeholders and candidates, their employees and certain relatives, and
lobbyists are prohibited from serving on the commission. Id. And a final decision
by the commission to adopt a redistricting plan requires a majority vote that
includes at least two commissioners who affiliate with each major political party
and two commissioners who do not affiliate with either major party. Id. at 305,
citing Michigan Constitution Article IV, Section 6(14)(c).
{¶ 147} Having now seen firsthand that the current Ohio Redistricting
Commission—comprised of statewide elected officials and partisan legislators—is
seemingly unwilling to put aside partisan concerns as directed by the people’s vote,
Ohioans may opt to pursue further constitutional amendment to replace the current
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commission with a truly independent, nonpartisan commission that more
effectively distances the redistricting process from partisan politics.
BRUNNER, J., concurs in the foregoing opinion.
_________________
BRUNNER, J., concurring.
{¶ 148} I fully join the majority opinion invalidating the 2021 redistricting
plan for the Ohio General Assembly under Article XI, Section 6(B) of the Ohio
Constitution. In addition, I would find the plan invalid under Article XI, Section
3(B)(2), as argued by petitioners Ohio Organizing Collaborative, the Ohio chapter
of the Council on American-Islamic Relations, the Ohio Environmental Council, and
six individual voters17 (collectively, “the OOC”) in Supreme Court case No. 2021-
1210. Article XI, Section 3(B)(2) provides that “[a]ny general assembly district
plan adopted by the commission shall comply with all applicable provisions of the
constitutions of Ohio and the United States and of federal law.” I agree with the
OOC that the plan violates Article I, Section 2 of the Ohio Constitution, which
concerns equal protection, and therefore violates Article XI, Section 3(B)(2). There
can be no debate about this court’s jurisdiction to review the Ohio Redistricting
Commission’s four-year plan under Article XI, Section 9 for an alleged violation
of Article XI, Section 3, see Article XI, Section 9(D)(3), and, despite the
contentions of the dissenting opinions, I concede no jurisdictional deficiency as to
the matters reviewed in the majority opinion.
{¶ 149} The OOC’s argument is that the legislative redistricting plan does not
comply with the Ohio Constitution’s guarantees of equal protection (Article I,
Section 2), freedom of assembly (Article I, Section 3), and freedom of speech (Article
I, Section 11). It contends that the plan violates the Equal Protection Clause by
diluting the weight of Democratic votes and that they violate the Assembly and Free
17. The six voters in case No. 2021-1210 are Pierrette Talley, Samuel Gresham Jr., Ahmad
Aboukar, Mikayla Lee, Prentiss Haney, and Crystal Bryant.
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Speech Clauses by burdening Democrats’ political and associational activities. I
focus solely on the OOC’s equal-protection claims regarding the dilution of
Democratic votes in reviewing the plan under Article I, Section 2.
I. The plan violates petitioners’ rights to vote on equal terms
{¶ 150} Both of the dissents in this case argue that this court has no power
to review the four-year plan for legislative redistricting that was adopted by the
Ohio Redistricting Commission in late 2021. The dissents argue that voters in
newly reconstituted, gerrymandered districts may vote out of office their elected
legislative representatives if they do not believe their leaders have honored their
oaths to the Ohio Constitution requiring fair legislative districts. While “vote them
out of office” is an oft-used, convenient mantra of political laissez-faire, Ohio
voters did not vote to “let it be.” The dissents dissect and wring from Article XI a
ban against this court’s acting to address what is our exclusive responsibility
concerning a four-year redistricting plan. By providing a remedy to petitioners
under this new Article XI of our Constitution, we are neither exercising “judicial
fiat,” dissenting opinion of Kennedy, J., at ¶ 277, nor undermining the public’s
confidence in this court nor harming the judicial branch of Ohio’s government “for
generations,” dissenting opinion of Fischer, J., at ¶ 351. Instead, we are exercising
our constitutionally required jurisdiction under Article XI, Section 9(A), to do what
we are commanded to do by the people of Ohio in their spoken word through our
state’s Constitution. The majority opinion correctly explains our authority to act
and provides a necessary remedy. This separate opinion explains another reason
why we are obliged to act—to provide for the equal protection and benefit of the
people under Article I, Section 2 of the Ohio Constitution.
{¶ 151} Gerrymandering at its core prevents voters from voting on equal
terms to alter or reform their government. Article I, Section 2 provides: “All
political power is inherent in the people. Government is instituted for their equal
protection and benefit, and they have the right to alter, reform, or abolish the same,
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whenever they may deem it necessary.” This language is broader than the language
of the Fourteenth Amendment to the United States Constitution,18 which contains
proscriptions against taking or denying benefits, especially by the states. The
OOC’s dependence on Article I, Section 2, is well-founded because that provision
builds into the Ohio Constitution foundational reasons for the existence of state
government—for the equal protection and benefit of the people. Id.
{¶ 152} The right to vote is at the core of this provision, as altering and
reforming the government is done most directly and most commonly by casting a
ballot. See Hamilton v. Fairfield Twp., 112 Ohio App.3d 255, 275, 678 N.E.2d 599
(12th Dist.1996) (“the right to vote or otherwise choose whether to form a
municipal corporation is a fundamental right that is guaranteed by Section 2, Article
I of the Ohio Constitution”); see also State ex rel. LetOhioVote.org v. Brunner, 123
Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 55 (“Ours is still a
representative democracy in which legislators derive their authority from the
citizens of our state”).
{¶ 153} When describing this right to vote, state law routinely uses the term
“elector.” An elector is a person who has “the qualifications provided by law to be
entitled to vote.” R.C. 3501.01(N). When an elector “votes at an election,” he or
she becomes a “voter.” R.C. 3501.01(O). Electors’ rights may not be interfered
with, and electors may not be harassed while registering or voting, R.C. 3501.90.
Electors sign petitions that permit candidates and issues to appear on local and
statewide ballots. R.C. 3501.38(A). Electors file election protests, because they
have standing to contest a candidacy that is the subject of the protest. See R.C.
3501.39; R.C. 3513.05 (“Protests against the candidacy of any person filing a
18. “No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” Fourteenth Amendment to the U.S. Constitution.
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declaration of candidacy for party nomination or for election to an office or
position, as provided in this section, may be filed by any qualified elector who is a
member of the same political party as the candidate and who is eligible to vote at
the primary election for the candidate whose declaration of candidacy the elector
objects to, or by the controlling committee of that political party”); State ex rel.
Bender v. Franklin Cty. Bd. of Elections, 157 Ohio St.3d 120, 2019-Ohio-2854, 132
N.E.3d 664, ¶ 8 (“only the controlling committee of a political party or a qualified
elector who is a member of the same political party as the protested candidate and
who is eligible to vote for the candidate in the primary election may protest a
candidate’s petition” [emphasis added]). Electors collectively decide taxation
issues when they vote. See, e.g., R.C. 5748.09. When they vote, electors participate
in the determination of questions involving local economic development. R.C.
715.691. Electors decide questions involving the transfer of school-district territory
and more. See, e.g., R.C. 3311.22.
{¶ 154} Article XI, Section 6(B) requires that “[t]he statewide proportion
of districts whose voters, based on statewide state and federal partisan general
election results during the last ten years, favor each political party shall correspond
closely to the statewide preferences of the voters of Ohio.” When electors are
assigned to legislative districts by a plan that does not closely correspond to the
statewide preferences of all Ohio voters, the effect of the votes for parties’
candidates is either disproportionately diminished or disproportionately
legitimized. Some electors of the disproportionately diminished party may choose
not to become voters at that election, believing that their vote in a severely
gerrymandered district is of little or no consequence. When an elector, for example,
is asked by her employer to work late on Election Day and working extra may
jeopardize her ability to arrive at the polling place before it closes at 7:30 p.m., she
may simply shrug and say, “Oh, well, my vote really doesn’t count anyway.” On
the other hand, a similarly situated voter in the disproportionally legitimized party
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in a gerrymandered district might also work late and choose not to vote, thinking,
“They do not need my vote; there are so many people already voting for the
candidate or issue I care about.” In this scenario, under the adopted redistricting
plan, there would be less impact on Republican Party candidates than on
Democratic Party candidates. And it goes without saying that legislative
representatives can use the power they have to cement their power by changing the
very laws that provide electors and voters the opportunities to participate in their
own governance through the vote.
{¶ 155} With depressed voter turnout, all electors and voters are affected.
This may result in doubt and lack of confidence in the democratic process—that is,
whether the outcome of an election by so few voters as compared to electors is truly
the will of the people.
{¶ 156} Gerrymandering and its resulting effects undermine a government
that is intended for the benefit and equal protection of the people. See Ohio
Constitution, Article I, Section 2. Gerrymandering is not beneficially foundational.
See id. Gerrymandering damages voter confidence and that fragile thing we call
democracy. Gerrymandering is unconstitutional, because it denies Ohioans equal
protection in the exercise of their voting power. See Ohio Constitution, Article I,
Section 2 and Article XI, Section 3.
{¶ 157} Undeniably, “ ‘[t]he right to vote includes the right to have one’s
vote counted on equal terms with others.’ ” State ex rel. Skaggs v. Brunner, 120
Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 58, quoting League of Women
Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir.2008). A law—and in this
case, the Ohio Redistricting Commission’s plan—that decreases the weight or
dilutes the power of a group of citizens’ votes relative to their ability to achieve
representative influence in the legislature may impermissibly burden that right
when the outcomes relating to one class of voters are not proportional to the votes
cast. See Common Cause v. Lewis, N.C.Super. No. 18 CVS 014001, 2019 WL
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4569584, *116 (Sept. 3, 2019) (“There is nothing ‘equal’ about the ‘voting power’
of [one political party’s] voters when they have a vastly less realistic chance of
winning a majority in either chamber under the enacted plans”). There is no
allowance in Article I, Section 2 to create a favored (or disfavored) class of voters.
See Lucas Cty. Bd. of Commrs. v. Waterville Twp. Bd. of Trustees, 171 Ohio App.3d
354, 2007-Ohio-2141, 870 N.E.2d 791, ¶ 25-26, 32, 41 (6th Dist.) (holding that
such favored and disfavored classes of voters are forbidden by, among other
authorities, the Ohio Constitution). In short, when legislative maps are adopted in
a manner that manipulates electoral constituencies to favor and entrench the
legislative control of one party and disfavor another, creating unequal classes of
voters, this affects the weight and power of each person’s vote and violates Article
I, Section 2.
II. Three-prong test to prove an equal-protection violation
{¶ 158} In adjudicating the OOC’s claims that the adopted legislative-
district plan violates Article XI, Section 3(B)(2) of the Ohio Constitution, it is
appropriate to employ the three-prong test developed by a federal district court and
applied to Ohio’s 2012 congressional map in finding it invalid just two years ago.
See Ohio A. Philip Randolph Inst. v. Householder, 373 F.Supp.3d 978, 1093
(S.D.Ohio 2019).19 That Ohio A. Philip Randolph Inst. was vacated on
jurisdictional grounds does not vitiate the viability of its integrity or logic for
application here. The holding of the federal trial court in Ohio A. Philip Randolph
19. In Chabot v. Ohio A. Philip Randolph Inst., __ U.S. __, __, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019),
the United States Supreme Court vacated the district court’s judgment in Ohio A. Philip Randolph
Inst. and remanded the matter to the district court for further consideration in light of its decision in
Rucho v. Common Cause, ___ U.S. ___, ___, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019), in which the
high court held that partisan-gerrymandering claims present political questions beyond the reach of
the federal courts, id. at ___, 139 S.Ct. at 2506-2507. The Supreme Court noted that these claims
may be justiciable in state courts because “[p]rovisions in state statutes and state constitutions can
provide standards and guidance for state courts to apply.” Id. at __, 139 S.Ct. at 2507. On remand,
however, the district court in Ohio A. Philip Randolph Inst. dismissed the case for lack of jurisdiction
in light of the decision in Rucho. See Ohio A. Philip Randolph Inst. v. Householder, S.D.Ohio No.
1:18-cv-357, 2019 U.S. Dist. LEXIS 186944 (Oct. 29, 2019).
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Inst. forms a persuasive, cogent basis for analyzing how our state constitutional
provisions may be used to perform an equal-protection analysis of the 2021 state
legislative maps. The federal court’s analysis was specifically applied to Ohio’s
2011 congressional redistricting map for 2012, and ten years later, the new
constitutional provisions in Article XI for state legislative redistricting now
specifically require the representational fairness discussed and sought in Ohio A.
Philip Randolph Inst. at 1092-1150.
{¶ 159} The United States Supreme Court in Rucho v. Common Cause
made clear that gerrymandering is an issue that cannot be solved by federal courts,
because there is “no plausible grant of authority in the [federal] Constitution”
allowing such an inquiry. ___ U.S. ___, ___, 139 S.Ct. 2484, 2507, 204 L.Ed.2d
931 (2019). However, the court noted that its holding did not “condemn complaints
about districting to echo into a void,” because state courts interpreting provisions
of state law that provide for fair districts were held to be capable of providing that
relief. Id. at __, 139 S.Ct. at 2507-2508 (noting constitutional amendments and
legislation in Florida, Missouri, Iowa, Delaware, Colorado, and Michigan).
{¶ 160} Thus, under the framework set forth in Ohio A. Philip Randolph
Inst., we should require that the OOC, to establish a violation of the Equal
Protection Clause of the Ohio Constitution, “demonstrate that those in charge of
the redistricting ‘acted with an intent to “subordinate adherents of one political
party and entrench a rival party in power.” ’ ” 373 F.Supp.3d at 1093, quoting
Common Cause v. Rucho, 318 F.Supp.3d 777, 862 (M.D.N.C.2018), vacated by
Rucho, __ U.S. __, ___ 139 S.Ct. 2484, 204 L.Ed.2d 931, quoting Arizona State
Legislature v. Arizona Indep. Redistricting Comm, 576 U.S. 787, 791, 135 S.Ct.
2652, 192 L.Ed.2d 704 (2015). This goes to the fundamental protection of ensuring
that state government will continue to be instituted for Ohioans’ benefit and equal
protection under Article I, Section 2, especially when relating to access to voting
and its equal import no matter where a person resides in the state.
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{¶ 161} Second, we should require that the OOC prove the plan’s
discriminatory effect, demonstrating that the plan will have the effect of “diluting
the votes of members of the disfavored party.” Ohio A. Philip Randolph Inst. at
1096. In light of Article I, Section 2, “[a]ll political power is inherent in the people”
and it must be equally so. Any plan that is proved to have the effect of “diluting
the votes of members of the disfavored party” violates Article I, Section 2.
{¶ 162} Finally, if subordination and entrenchment along with vote dilution
are proved, the burden should shift to the respondents “to present evidence that
legitimate legislative grounds provide a basis for the way in which [the map] was
drawn.” Id. at 1098. In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367,
981 N.E.2d 814, ¶ 80-82, Justice McGee Brown noted in her dissent that
[o]ther states have also shifted the burden of proof to the parties
responsible for the apportionment plan to justify their departure
from certain constitutional provisions once [the] relators established
that the plan is unconstitutional in some respect. See In re
Legislative Districting of the State, 370 Md. [312,] 368, 805 A.2d
292 [2002] (when apportionment plan raised sufficient issues with
respect to its compliance with state constitutional requirements,
court placed burden of proof on the state to justify the plan); In re
Reapportionment of Colorado Gen. Assembly, 45 P.3d 1237, 1241
(Colo.2002) (court held that if an apportionment plan does not
comply with the county-boundary requirement of the Colorado
Constitution, the reapportionment commission must make an
adequate factual showing that less drastic alternatives could not
have satisfied the equal-population constitutional requirement); In
re Legislative Districting of Gen. Assembly of Iowa, 193 N.W.2d
784, 791 (Iowa 1972) (state failed to sustain burden of proof to show
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why state legislative reapportionment plan could not comply with
state constitution’s compactness requirement).
This approach is logical. The respondents who crafted and
approved the apportionment plan are in the best position to know the
basis for any noncompliance with [former] Article XI.
Therefore, I would hold that once [the] relators make a prima
facie showing beyond a reasonable doubt that [the] respondents
have violated a provision of [former] Article XI of the Ohio
Constitution, the burden of proof shifts to [the] respondents to
justify that violation based on the avoidance of a violation of another
superior or coequal legal requirement. Id.
{¶ 163} The application of the three-part test also would be favored based
on the plain language of Article I, Section 2, which indicates that the interests of
the people are paramount and that the people have the right to abolish their
government. Moreover, this provision of the state Constitution has been interpreted
as requiring “that the government treat all similarly situated persons alike.”
Sherman v. Ohio Pub. Emps. Retirement Sys., 163 Ohio St.3d 258, 2020-Ohio-
4960, 169 N.E.3d 602, ¶ 14, citing McCrone v. Bank One Corp., 107 Ohio St.3d
272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6. “When a claim involves a fundamental
right or a suspect class, the government’s action is subject to a higher level of
scrutiny.” Id. Thus, the legislature and the Ohio Redistricting Commission should
bear the burden of explaining their actions when there is proof that they are acting
in violation of the equal protection and benefit guaranteed by the state Constitution.
Application of the Ohio A. Philip Randolph Inst. three-prong test to the evidence
and stipulations in this case follows.
{¶ 164} For the first prong, that the state acted with an intent to subordinate
adherents of one political party and entrench a rival party in power, intent “ ‘is
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rarely provable by direct evidence’ ” and “ ‘generally must be inferred from the
totality of the circumstances.’ ” Aztec Internatl. Foods, Inc. v. Duenas, 12th Dist.
Clermont No. CA2012-01-002, 2013-Ohio-450, ¶ 42, quoting Fairbanks Mobile
Wash, Inc. v. Hubbell, 12th Dist. Nos. CA2007-05-062, CA2007-05-068, 2009-
Ohio-558, ¶ 22; see, e.g., State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260,
2014-Ohio-3614, 17 N.E.3d 547, ¶ 16. In a partisan-gerrymandering case, an intent
to dilute votes to entrench a party in power may be demonstrated by
the timeline and logistics of the map-drawing process, the map
drawers’ heavy use of partisan data, contemporaneous statements
made by the map drawers about their efforts, the characteristics of
the map itself (including the irregular shape of the districts, their
lack of compactness, and the high number of county and
municipality splits), and finally, the outlier partisan effects that the
map has produced since its enactment.
Ohio A. Philip Randolph Inst., 373 F.Supp.3d at 1099. The evidence discussed by
the majority supports the conclusion that the district plan adopted by the
commission was drawn purposely to entrench one political party’s power and
control over the General Assembly by diluting the votes of the other party’s voters.
See majority opinion at ¶ 121-123 (discussing the expert report of Dr. Michael
Latner). The adopted plan indisputably makes it easier for voters favoring one
major party, the Republican Party, to transform their votes into legislative seats
than it does for voters favoring the other major party, the Democratic Party. The
objective difference between the statewide preference of voters over the last ten
years and the ratio of Republican-leaning versus Democratic-leaning districts under
the plan adopted is evidence beyond a reasonable doubt of vote dilution through
gerrymandering.
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{¶ 165} The depositions of Drs. Latner, Kosuke Imai, and Jonathan Rodden
also plainly show that the Ohio Redistricting Commission could have drawn and
adopted maps that are compliant with the Ohio Constitution and that do not
impermissibly dilute the votes of either party for either chamber of the General
Assembly. See id. at ¶ 121-126.
{¶ 166} The process followed by the commission provides evidence of an
intent to entrench one party in power at the expense of voters supporting the other
party. The commission ceded its responsibility and power to the four members of
the legislative branch, and when adopting the final plan and the statement under
Article XI, Section 8(C)(2), it acquiesced to the two Republican leaders of the
General Assembly. In none of the meetings of the commission was any provision
made or any vote held to delegate the commission’s map-drawing duties to any
particular people. The commission did not hire an independent, nonpartisan map
drawer or use any of the dozens of other publicly submitted maps as a starting point.
Instead, funds were simply allocated to the legislative members of the commission
and their respective caucuses to use as they saw fit. While the minutes of the
commission reflect the adoption of rules on August 31, 2021, the rules did not
appear on the commission’s website, https://www.redistricting.ohio.gov/assets/
organizations/redistricting-commission/events/commission-meeting-august-31-
2021-16/ohio-redistricting-commission-rules.pdf (accessed Jan. 8, 2022)
[https://perma.cc/6C3U-3AV2], until after the passage of 2021 Sub.H.B. 92, which
enacted R.C. 3521.04, a statute providing for the creation of the commission’s
website. The effective date of R.C. 3521.04 was September 29, 2021—almost two
weeks after the commission had adopted the legislative redistricting plan that is the
subject of these actions.
{¶ 167} And when the Republican legislative leaders’ map was presented
for the commission’s review on September 9, 2021, the members of the commission
used that map as a starting point to negotiate between the opposing partisan
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caucuses of the legislature a ten-year map, while the executive branch of state
government was left to stand by benignly, encouraging the two parties’ leaders to
try to come to some meeting of the minds. Basically, the commission permitted
past decades’ business as usual and mapping behind closed doors, despite new and
specific constitutional provisions requiring a more fair and transparent process that
were adopted by the voters in order to create fair legislative districts.
{¶ 168} The commission even failed to use ten years of statewide data to
reach its determination of statewide proportions of somewhere between 54 and 81
percent Republican and 19 and 46 percent Democratic. The opposing partisan
caucuses of the legislature even negotiated what data actually was used to
determine the statewide proportion of votes between the parties, unconstitutionally
settling on four years’ worth, despite the constitutional requirement of ten years of
data. See Ohio Constitution, Article XI, Section 6(B). Ray DiRossi, Senate
President Matthew Huffman’s designee who performed map drawing for that
chamber of the legislature, referred in his deposition to consultants that he used in
the map-drawing process, stating, “My data consultant was Clark Benson, and my
technical consultant from [Ma]ptitude was John Morgan.” DiRossi testified that
during the map-drawing process, Morgan and Benson provided nonpublic data for
2012 and 2014 Democratic and Republican “vote percentages.” DiRossi explained
that this nonpublic data “made Maptitude work” but that the 2012 and 2014 data
were “ultimately not used,” because negotiations had begun on the September 9,
2021 map submitted to the commission by Senate President Huffman. Eventually
the opposing partisan caucuses of the legislature negotiated and agreed that only
election-results data from 2016, 2018, and 2020 were to be used by the commission.
This affected how the “statewide preferences of the voters of Ohio” was
determined—using a period of just four years—even though the Ohio Constitution
requires that the determination be based on “statewide state and federal partisan
general election results during the last ten years” and that the proportionality of the
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districts whose voters favor each political party “correspond closely to” that
statewide preference. Ohio Constitution, Article XI, Section 6(B). The
commission could have used ten years of data, but it did not—apparently because,
according to DiRossi, “negotiations” had started on the September 9, 2021 plan for
which four years of data had been used.
{¶ 169} The record indicates that ten years of data was at least consulted in
the mapmaking process by DiRossi and that the 2012 and 2014 data not used by
the commission was needed to make Maptitude work. Necessary and reliable data
is essential to accurate results. The parties here arbitrarily “negotiated” which data
they would rely on to determine the statewide proportion of voter preferences.
While Article XI, Section 6(B) directed the members of the commission to use
statewide state and federal partisan general election results during the last ten years,
there is no objective data or evidence in the record to support why they did not use
the data they had for the entire ten-year period.
{¶ 170} Consider the Ohio Court of Claims’ resolution of a reimbursement
dispute based on data completeness and accuracy between a charter school and the
Ohio Department of Education. The dispute involved the accuracy of the
department’s calculation of the school’s full-time equivalent number of students.
Finding for the school, the Court of Claims determined that the department had
failed to gather sufficient data to perform an accurate calculation. The court held
that without complete data, the department of education could not perform an
accurate “desk review.” Harmony Community School v. Ohio Dept. of Edn., 125
Ohio Misc.2d 42, 2003-Ohio-5312, 797 N.E.2d 1058 (Ct. of Cl.), ¶ 15-16. Here,
respondents’ failure to use ten years’ worth of election results to determine the
statewide preferences of the voters of Ohio without sufficient evidence to justify a
reason not to do so violated Article XI, Section 6(B) beyond a reasonable doubt.
{¶ 171} Based on the evidence discussed in the majority opinion, the Article
XI, Section 8(C)(2) statement introduced by Senate President Huffman evidences
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beyond a reasonable doubt an aim to favor Republican voters and disfavor
Democratic voters. The statement offered the figure of 81 percent of voters
favoring Republican statewide candidates as a measure of the “statewide
preferences of the voters of Ohio,” skimming the top line or total vote of Republican
to Democrat winners by political party in partisan statewide races during the last
ten years. Thus, with Republicans having won 81 percent of statewide contests in
the last ten years, the statewide proportion of voter preference could be as much as
81 percent, according to respondents.
This text is long and has been trimmed here. Open the source document for the complete record.