Adams v. DeWine (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Adams v. DeWine, Slip Opinion No. 2022-Ohio-89.]

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-89

ADAMS ET AL. v. DEWINE, GOVERNOR, ET AL.

LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING

COMMISSION ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Adams v. DeWine, Slip Opinion No. 2022-Ohio-89.]

Redistricting—Original actions under Ohio Constitution, Article XIX, Section

3(A)—General Assembly did not comply with Article XIX, Section

1(C)(3)(a) and (b) of the Ohio Constitution in passing the congressional-

district plan—Plan invalid—General Assembly ordered to pass within 30

days a new congressional-district plan that complies in full with Article XIX

of the Ohio Constitution and is not dictated by partisan considerations.

(Nos. 2021-1428 and 2021-1449—Submitted December 28, 2021—Decided

January 14, 2022.)

ORIGINAL ACTIONS filed pursuant to Ohio Constitution, Article XIX,

Section 3(A).

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SUPREME COURT OF OHIO

DONNELLY, J.

{¶ 1} In our representative democracy, the power rests at all times with the

people. Their power is never more profound than when it is expressed through their

vote at the ballot box. Those whom the people elect to represent them are given

transitory authority to discharge their responsibilities under the Constitutions and

laws of the United States and the state of Ohio, but the true power is expressed by the

people when they exercise their right to vote on what Walt Whitman celebrated as

“America’s choosing day,” when the heart of it is not in the chosen but in the act of

choosing. Walt Whitman, Election Day, November, 1884, in Leaves of Grass 391

(1891-1892 Ed.).

{¶ 2} Gerrymandering is the antithetical perversion of representative

democracy. It is an abuse of power—by whichever political party has control to draw

geographic boundaries for elected state and congressional offices and engages in that

practice—that strategically exaggerates the power of voters who tend to support the

favored party while diminishing the power of voters who tend to support the

disfavored party. Its singular allure is that it locks in the controlling party’s political

power while locking out any other party or executive office from serving as a check

and balance to power. One avaricious proponent of congressional redistricting and

gerrymandering declared redistricting “a great event,” proclaiming gleefully:

“Redistricting is like an election in reverse! Usually the voters get to pick the

politicians. In redistricting, the politicians get to pick the voters!” Miles Parks,

Redistricting Guru’s Hard Drives Could Mean Legal, Political Woes for GOP

(June 7, 2019), https://www.npr.org/2019/06/06/730260511/redistricting-gurus-

hard-drives-could-mean-legal-political-woes-for-gop (accessed Jan. 3, 2022)

[https://perma.cc/Q4WS-2VK2] (statements of Thomas Hofellor).

{¶ 3} Demanding change following Ohio’s 2011 reapportionment of its state

legislative and congressional districts, Ohio voters overwhelmingly voted to impose

constraints on the government’s ability to draw districts based on partisan

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gerrymandering, amending Article XI of the Ohio Constitution in 2015 for the

drawing of state legislative districts, see Ohio Secretary of State, Statewide Issue

History, https://www.ohiosos.gov/elections/election-results-and-data/historical-

election-comparisons/statewide-issue-history/ (accessed Jan. 3, 2022)

[https://perma.cc/CK6W-2KUC], and adopting Article XIX of the Ohio Constitution

in 2018 for the drawing of congressional districts, see Ohio Secretary of State, 2018

Official Election Results, https://www.ohiosos.gov/elections/election-results-and-

data/2018-official-elections-results/ (accessed Jan. 3, 2022)

[https://perma.cc/RG5P-39FT] (follow “Summary-Level Official Results for 2018

Primary Election–Statewide Issues” hyperlink). The adoption of these amendments

to the Ohio Constitution made it unequivocally clear that more of the same was not

an option.

{¶ 4} Despite the adoption of Article XIX, the evidence in these cases makes

clear beyond all doubt that the General Assembly did not heed the clarion call sent

by Ohio voters to stop political gerrymandering. Conducting business as usual with

no apparent concern for the reforms contemplated by Article XIX, the General

Assembly enacted 2021 Sub.S.B. No. 258, which passed by a simple majority and

was signed into law by Governor Mike DeWine on November 20, 2021. The bill

resulted in districts in which undue political bias is—whether viewed through the

lens of expert statistical analysis or by application of simple common sense—at least

as if not more likely to favor Republican candidates than the 2011 reapportionment

that impelled Ohio’s constitutional reforms. The petitioners in the two cases before

us specifically allege that the congressional-district plan violates Article XIX,

Section 1(C)(3)(a) of the Ohio Constitution, which prohibits the General Assembly

from adopting by a simple majority a congressional-district plan that “unduly favors

or disfavors a political party or its incumbents,” and Section 1(C)(3)(b), which

prohibits the General Assembly from “unduly split[ting] governmental units.”

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{¶ 5} We hold that the congressional-district plan is invalid in its entirety

because it unduly favors the Republican Party and disfavors the Democratic Party in

violation of Article XIX, Section 1(C)(3)(a). We also hold that the plan unduly splits

Hamilton, Cuyahoga, and Summit Counties in violation of Section 1(C)(3)(b). We

order the General Assembly to adopt a new congressional-district plan that complies

in full with Article XIX of the Ohio Constitution.

I. BACKGROUND

A. Overview of the congressional-redistricting process

{¶ 6} In 2018, the General Assembly passed a joint resolution to amend the

Ohio Constitution and enact Article XIX, which would establish a process and

standards for congressional redistricting. 2018 Sub.S.J.R. No. 5. The General

Assembly previously had enacted congressional-district plans by bill, without any

guidance from the Ohio Constitution. When the initiative was placed on the ballot

in 2018, the ballot language informed voters that the proposed amendment would,

among other things:

 Require the General Assembly or the Ohio Redistricting

Commission to adopt new congressional districts by a bipartisan

vote for the plan to be effective for the full 10-year period[; and]

 Require that if a plan is adopted by the General Assembly without

significant bipartisan support, it cannot be effective for the entire

10-year period and must comply with explicit anti-

gerrymandering requirements.

Ohio voters overwhelmingly voted in favor of adopting the amendment. See Ohio

Secretary of State, 2018 Official Election Results.

{¶ 7} In 2019—before Article XIX became effective—a panel of federal

judges declared Ohio’s 2011 congressional-district plan an unconstitutional partisan

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gerrymandering, finding that it was designed to reliably elect 12 Republican

representatives and 4 Democratic representatives as Ohio’s 16-member delegation to

the United States House of Representatives. Ohio A. Philip Randolph Inst. v.

Householder, 373 F.Supp.3d 978, 994-995 (S.D.Ohio 2019). But later that year, the

Supreme Court of the United States held that partisan-gerrymandering claims present

political questions beyond the reach of federal courts, Rucho v. Common Cause, 588

U.S. __, __, 139 S.Ct. 2484, 2506-2507, 2014 L.Ed.2d 931 (2019), and vacated the

judgment in Ohio A. Philip Randolph Inst., see Householder v. Ohio A. Philip

Randolph Inst., __ U.S. __, 140 S.Ct. 101, 205 L.Ed.2d 1 (2019), and Chabot v. Ohio

A. Philip Randolph Inst., __ U.S. __, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019).

1. Article XIX, Section 1: A new process for congressional redistricting

{¶ 8} Article XIX, Section 1 sets forth a potential three-step process for

enacting or adopting a congressional-district plan. First, by September 30 of any year

ending in the numeral one after the release of the federal decennial census, the

General Assembly must pass a district plan in the form of a bill by a vote of at least

three-fifths of the members of each house, including the affirmative vote of at least

one-half of the members of each of the two largest political parties. Ohio

Constitution, Article XIX, Section 1(A). If the General Assembly passes such a plan,

the plan remains effective for ten years. See id.

{¶ 9} Second, if no district plan is passed by September 30, the Ohio

Redistricting Commission must adopt a plan by October 31. Id. at Section 1(B). The

plan must be approved by at least four of the seven members of the commission,

including at least two members from each of the two largest political parties. Id. If

the commission adopts a plan in this way, the plan remains effective for ten years.

Id.

{¶ 10} Third, if the commission fails to adopt a plan by October 31, the

General Assembly must pass a district plan in the form of a bill by November 30. Id.

at Section 1(C)(1). If the General Assembly passes the plan by a vote of at least

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three-fifths of each house, including at least one-third of the members of each of the

two largest political parties, the plan remains effective for ten years. Id. at Section

1(C)(2). If the General Assembly passes the plan by only a simple majority in each

house, the plan remains effective for four years. Id. at Section 1(C)(3).

{¶ 11} Of particular relevance in these cases, if the General Assembly passes

a plan by a simple majority, Article XIX, Section 1(C)(3) provides that each of the

following “shall apply”:

(a) The general assembly shall not pass a plan that unduly

favors or disfavors a political party or its incumbents[;]

(b) The general assembly shall not unduly split governmental

units, giving preference to keeping whole, in the order named,

counties, then townships and municipal corporations[; and]

(c) * * * The General Assembly shall attempt to draw districts

that are compact.1

In addition, the General Assembly must include in the plan “an explanation of the

plan’s compliance with” Section 1(C)(3)(a) through (c). Id. at Section 1(C)(3)(d).

2. Article XIX, Sections 2 and 3: New district-drawing standards

and this court’s jurisdiction

{¶ 12} Article XIX, Section 2 imposes various requirements on the entity

drawing the districts, including rules relating to the shape of the districts and the

extent to which counties, townships, and municipal corporations may be split

1. In contrast, if the General Assembly passes a ten-year plan by the affirmative vote of at least

three-fifths of the members of each house of the General Assembly, including at least one-third of

the members of the two largest political parties, “[e]very congressional district shall be compact.”

Ohio Constitution, Article XIX, Section 2(B)(2).

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between districts. Article XIX, Section 3(A) provides that this court “shall have

exclusive, original jurisdiction in all cases arising under” Article XIX.

B. Factual background and procedural history

1. No redistricting plan is adopted by September 30 or October 31

{¶ 13} Based on the results of the 2020 census, Ohio was apportioned 15

congressional seats—one fewer than it was apportioned in 2011. Although the

United States Census Bureau released Ohio’s 2020 population data on August 12,

2021, the General Assembly did not pass a congressional-district plan by its initial

September 30 deadline. On September 29, Senate Minority Leader Kenny Yuko

and Senator Vernon Sykes introduced a proposed congressional-district plan on

behalf of the Senate Democrats. See 2021 S.B. No. 237. But the record does not

indicate that any other plans were proposed in September, and the General

Assembly did not vote on any proposal during that period.

{¶ 14} Nor did the redistricting commission adopt a plan by its October 31

deadline. Senator Sykes, a cochair of the commission, sent the other cochair,

respondent Speaker of the House Robert Cupp, multiple letters in which Senator

Sykes essentially pleaded with House Speaker Cupp to schedule commission

hearings and take up the task of congressional redistricting. In one of those letters,

Senator Sykes noted that over 40 congressional-district plans had been submitted

to the commission and that he and Senator Yuko had submitted their own proposed

plan to the commission. But the record does not indicate that any other member of

the commission proposed a plan. And the commission held only one meeting—on

October 28. At the meeting, the commission heard public testimony from multiple

individuals who had submitted proposed congressional-district plans to the

commission, but it did not vote on any proposed plan.

2. The General Assembly passes a redistricting plan by a simple majority

{¶ 15} On November 3—only a few days after the redistricting commission’s

deadline for adopting a plan had expired—Senator Rob McColley introduced 2021

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S.B. No. 258, a congressional-district plan drawn primarily by Ray DiRossi, the

finance director for the Ohio Senate. DiRossi was deeply involved in Ohio’s 2001

and 2011 redistricting processes. Notably, he served as one of the Republicans’

“principal on-the-ground map drawers” during the 2011 congressional-redistricting

process, Ohio A. Philip Randolph Inst., 373 F.Supp.3d at 995, 1019—a process that

a federal court described as “rife with procedural irregularities and suspect behavior

on the part of the map drawers,” id. at 1099.

{¶ 16} Also on November 3, Representative Scott Oelslager introduced in the

House a different proposed congressional-district plan drawn primarily by Blake

Springhetti, the finance director for the Republican House majority. Over the next

week, House and Senate committees held hearings on those proposed plans and other

plans introduced by Democratic members of the House and Senate. On November

10 and 12, the Joint Committee on Congressional Redistricting held public hearings

on all the proposed plans.

{¶ 17} On November 16, Senator McColley introduced 2021 Sub.S.B. No.

258 (“S.B. 258”), a revised district plan formulated by respondents President of the

Senate Matthew Huffman and House Speaker Cupp, and Senator McColley, DiRossi,

and Springhetti. During a Senate committee hearing, Senator McColley said that

compared to the other proposed plans, S.B. 258 was the most competitive, split the

fewest counties, kept more of Ohio’s largest cities whole, and created compact

districts. He also stated that the S.B. 258 plan contained seven competitive districts.

{¶ 18} During the present litigation, DiRossi explained how he, Senate

President Huffman, and Senator McColley concluded that the S.B. 258 plan

contained seven competitive districts. The determination involved two decisions: (1)

which prior election results to use for predicting the partisan leanings of the proposed

new districts under the plan and (2) how to define a “competitive” district.

{¶ 19} Regarding the first decision, DiRossi selected the election results from

the statewide federal elections over the last ten years. Six elections fell into that

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category: the 2012, 2016, and 2020 presidential elections and the 2012, 2016, and

2018 United States Senate elections. Some of the parties in this case refer to this

“dataset” of election results as “FEDEA.” Based on the FEDEA dataset, DiRossi

estimated—using a computer program—how a candidate from each political party

might perform in the proposed new districts. Regarding the second decision, Senate

President Huffman and Senator McColley defined a “competitive” election as one in

which a candidate is expected to obtain 50 percent of the vote, plus or minus 4

percent, resulting in up to an 8-point spread between the winning and losing

candidates. They determined that the S.B. 258 plan contained seven competitive

districts because—based on the FEDEA dataset—Republican candidates would

likely receive between 46 and 54 percent of the vote in seven districts.

{¶ 20} DiRossi, however, also analyzed the proposed district plan using other

election datasets, and under those analyses, the plan had fewer competitive districts.

For example, the computer program that DiRossi used also showed the partisan

leaning of the proposed districts based on election results from statewide federal and

state elections from 2016 to 2020. Under that dataset, the S.B. 258 plan had only five

competitive districts.

{¶ 21} On November 16—the same day that Senator McColley introduced

the final version of S.B. 258 in committee—the full Senate voted along party lines to

adopt it as the congressional-district plan. Two days later, the House passed S.B. 258

without any support by its Democratic Party members. During the House and Senate

floor debates, Democratic members argued that S.B. 258 was less fair than the 2011

congressional map and that the enactment process did not comply with Article XIX.

On November 20, Governor DeWine signed the bill into law.

{¶ 22} As required by Article XIX, Section 1(C)(3)(d), the final bill included

an explanation of how it complied with Section 1(C)(3)(a) through (c). The

explanation stated:

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(A) The congressional district plan does not unduly favor or

disfavor a political party or its incumbents. The plan contains six

Republican-leaning districts, two Democratic-leaning districts, and

seven competitive districts. The number of competitive districts in

the plan significantly exceeds the number of competitive districts

contained in the congressional district plan described in the version

of section 3521.01 of the Revised Code that was in effect immediately

before the effective date of this section. Two incumbents expected to

seek office again, both Republican, are paired in one district in the

plan described in sections 3521.01 to 3521.0115 of the Revised Code,

as enacted by this act. No other incumbent, either Republican or

Democratic, expected to seek office again, is paired with another

incumbent in a congressional district in this plan.

(B) The congressional district plan does not unduly split

governmental units and gives preference to keeping whole, in the

order named, counties, then townships and municipal corporations.

The plan splits only twelve counties and only fourteen townships and

municipal corporations. The congressional district plan described in

the version of section 3521.01 of the Revised Code that was in effect

immediately before the effective date of this section split twenty-three

counties and over thirty townships and municipal corporations.

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3. Petitioners2 file two actions in this court

{¶ 23} Within ten days of the governor’s signing the bill, two lawsuits were

filed in this court challenging the congressional-district plan. First, in case No. 2021-

1428, 12 individual voters3 filed a complaint alleging that the plan violates Article

XIX, Section 1(C)(3)(a) and (b) of the Ohio Constitution. Second, in case No. 2021-

1449, the League of Women Voters of Ohio, the A. Philip Randolph Institute of

Ohio, and eight individual voters4 filed a similar complaint alleging that the district

plan violates Section 1(C)(3)(a) and (b).

{¶ 24} In either one or both of the lawsuits, the petitioners named as

respondents the redistricting commission, the seven individual members of the

commission, Governor DeWine in his official capacity as governor and a member of

the redistricting commission, Secretary of State Frank LaRose in his official capacity

as secretary of state and a member of the redistricting commission, House Speaker

Cupp in his official capacity as speaker of the House and a member of the redistricting

commission, and Senate President Huffman in his official capacity as president of

the Senate and a member of the redistricting commission. We dismissed as

respondents the commission, the seven members of the commission in their official

capacities, and Governor DeWine in his official capacity as governor. __ Ohio St.3d

__, 2021-Ohio-4237, __ N.E.3d __; __ Ohio St.3d __, 2021-Ohio-4267, __ N.E.3d

__. The cases have proceeded against Secretary LaRose in his official capacity as

secretary of state, House Speaker Cupp in his official capacity as speaker of the

2. Although the parties refer to themselves as relators and respondents, 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 refers

to the parties bringing the actions as “petitioners.”

3. The 12 voters in case No. 2021-1428 are Regina C. Adams, Bria Bennett, Kathleen M. Brinkman,

Martha Clark, Susanne L. Dyke, Carrie Kubicki, Dana Miller, Meryl Neiman, Holly Oyster,

Constance Rubin, Solveig Spjeldnes, and Everett Totty.

4. The eight voters in case No. 2021-1449 are Bette Evanshine, Janice Patterson, Barbara Brothers,

John Fitzpatrick, Janet Underwood, Stephanie White, Renee Ruchotzke, and Tiffany Rumbalski.

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House, and Senate President Huffman in his official capacity as president of the

Senate.

{¶ 25} Pursuant to our scheduling orders, the parties in these cases conducted

discovery and submitted evidence and merit briefs. As evidence, the parties filed six

expert reports, numerous deposition transcripts, multiple affidavits, and voluminous

documents. This court held oral argument in both cases on December 28, 2021.

II. ANALYSIS

A. The burden and standard of proof

{¶ 26} Districting and apportionment are primarily legislative tasks that are

subject to judicial review for constitutional compliance. See Ely v. Klahr, 403 U.S.

108, 114, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971), citing Reynolds v. Sims, 377 U.S.

533, 586, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); see also Ohio Constitution, Article

XIX, Section 3. As with any other legislation, the plan is “entitled to a strong

presumption of constitutionality,” 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, ¶ 20.

{¶ 27} When a legislative act is challenged on its face, we require proof

beyond a reasonable doubt that no set of circumstances exists under which the statute

would be valid, while an as-applied challenge requires clear and convincing evidence

of the statute’s constitutional defect. See Ohio Renal Assn. v. Kidney Dialysis Patient

Protection Amendment Commt., 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d

1139, ¶ 26; Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970

N.E.2d 898, ¶ 20. We may not override the General Assembly’s judgment on policy

questions that are committed exclusively to the legislative branch. See Ohio

Congress of Parents & Teachers at ¶ 20.

{¶ 28} But that does not mean that we must defer to the General Assembly

on questions of law. “It is emphatically the province and duty of the judicial

department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed.

60 (1803). Our function here is to determine whether the act “ ‘transcends the limits

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of legislative power.’ ” Ohio Congress of Parents & Teachers at ¶ 20, quoting State

ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn., 139 Ohio St. 427, 438,

40 N.E.2d 913 (1942).

{¶ 29} While petitioners’ challenge here perhaps more closely resembles an

as-applied challenge to S.B. 258’s application to the particular set of facts existing

at the time of this reapportionment as opposed to a frontal assault on the act’s

validity under any given set of facts, we will nevertheless assume without deciding

that petitioners’ challenge here is subject to the highest standard of proof; evidence

that proves unconstitutionality beyond a reasonable doubt will necessarily satisfy

the lesser standard of clear and convincing evidence.

B. Section 1(C)(3)(a)

1. Section 1(C)(3)(a) establishes a judicially manageable standard

{¶ 30} Article XIX, Section 1(C)(3)(a) prohibits the General Assembly from

passing a congressional-district plan “that unduly favors or disfavors a political party

or its incumbents.” Senate President Huffman and House Speaker Cupp argue that

this provision does not establish a judicially manageable standard, because it does

not indicate how much favoring or disfavoring of a political party is too much. They

contend that in the absence of a clear legal standard, the General Assembly alone

has the discretion to determine whether a plan unduly favors a political party.

{¶ 31} Senate President Huffman and House Speaker Cupp rely on Rucho,

588 U.S. __, 139 S.Ct. 2484, 204 L.Ed.2d 931, in which the Supreme Court of the

United States held that partisan-gerrymandering claims arising under the federal

Constitution present political questions that are not justiciable in federal courts. The

Rucho court explained that to avoid “ ‘assuming political, not legal, responsibility,’ ”

federal courts must “act only in accord with especially clear standards.” Id. at __,

139 S.Ct. at 2498, quoting Vieth v. Jubelirer, 541 U.S. 267, 307, 124 S.Ct. 1769, 158

L.Ed.2d 546 (2004) (Kennedy, J., concurring). The court held that “[a]ny standard

for resolving such claims must be grounded in a ‘limited and precise rationale’ and

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be ‘clear, manageable, and politically neutral.’ ” Id., quoting Vieth at 306-308

(Kennedy, J., concurring).

{¶ 32} Two main factors underlie the Rucho holding: (1) the federal

Constitution does not include a “plausible grant of authority” to federal courts to

review partisan-gerrymandering claims, and (2) there are no “legal standards to limit

and direct” the decision-making of federal judges in such claims. Id. at __, 139 S.Ct.

at 2507. The first factor is not present in these cases. The people of Ohio have

prohibited the General Assembly from passing, by a simple majority, a

congressional-district plan that unduly favors or disfavors political parties or their

incumbents. Ohio Constitution, Article XIX, Section 1(C)(3)(a). And the people

have granted this court “exclusive, original jurisdiction in all cases arising under”

Article XIX. Id. at Section 3(A). That is more than a plausible grant of authority.

{¶ 33} Moreover, the fact that the Ohio Constitution expressly forbids

partisan gerrymandering and grants authority to this court lessens the degree to which

a manageable standard is necessary:

[C]ourts might be justified in accepting a modest degree of

unmanageability to enforce a constitutional command which (like the

Fourteenth Amendment obligation to refrain from racial

discrimination) is clear; whereas they are not justified in inferring a

judicially enforceable constitutional obligation (the obligation not to

apply too much partisanship in districting) which is both dubious and

severely unmanageable.

(Emphasis sic.) Vieth at 286 (plurality opinion). Indeed, in Rucho, the court

suggested that state constitutional and statutory provisions similar to Section

1(C)(3)(a) provide standards and guidance that state courts can apply. Rucho at __,

139 S.Ct. at 2507-2508, citing, inter alia, Florida Constitution, Article III, Section

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20(a) (“No apportionment plan or individual district shall be drawn with the intent to

favor or disfavor a political party or an incumbent”) and Del.Code Ann., Title xxix,

Section 804 (providing that no state legislative district shall “be created so as to

unduly favor any person or political party”). Chief Justice John Roberts, writing for

the majority, noted: “We do not understand how the dissent can maintain that a

provision saying that no districting plan ‘shall be drawn with the intent to favor or

disfavor a political party’ provides little guidance on the question.” Id. at __, 139

S.Ct. at 2507.

{¶ 34} Contrary to what Senate President Huffman and House Speaker Cupp

argue, Ohio voters intended that the anti-gerrymandering requirements in Article

XIX, Section 1(C)(3) have teeth. Section 1(C)(3)(a) articulates a standard that is

“grounded in a ‘limited and precise rationale’ and [that is] ‘clear, manageable, and

politically neutral,’ ” Rucho, 588 U.S. at __, 139 S.Ct. at 2498, 2014 L.Ed.2d 931,

quoting Vieth, 541 U.S. at 306-308, 124 S.Ct. 1769, 158 L.Ed.2d 546 (Kennedy, J.,

concurring).

{¶ 35} Article XIX, Section 1(C)(3)(a) prohibits the General Assembly from

passing, by a simple majority, a congressional-district plan that “unduly favors or

disfavors a political party or its incumbents.” In interpreting this language, we apply

the rules 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. That is, we must begin with the language of the provision itself, id., and

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 District 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.” Centerville

at ¶ 22.

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{¶ 36} Article XIX does not define “unduly.” But “[i]n determining the

‘common and ordinary meaning’ of words, courts may look to dictionaries.” Athens

v. McClain, 163 Ohio St.3d 61, 2020-Ohio-5146, 168 N.E.3d 411, ¶ 30. The

dictionary definition of “undue” is “[e]xcessive or unwarranted.” Black’s Law

Dictionary 1838 (11th Ed.2019); see also Webster’s Third New International

Dictionary 2492 (defining “unduly” as “in an undue manner, esp : EXCESSIVELY” and

defining “undue” as “exceeding or violating propriety or fitness: EXCESSIVE,

IMMODERATE, UNWARRANTED” [italics and small caps sic]). This, of course, raises

questions: In excess of what? Or, unwarranted by what?

{¶ 37} Senate President Huffman and House Speaker Cupp assert that

petitioners’ benchmark is proportionality. And they note that Article XIX lacks any

explicit proportionality standard like the one for General Assembly–district plans set

forth in Article XI, Section 6(B).5 But Senate President Huffman and House Speaker

Cupp mischaracterize petitioners’ argument. Although petitioners look to partisan

proportionality as one metric in some aspects of their analysis, their claims do not

rest on a demand for proportionality. Rather, petitioners assert that the General

Assembly passed a plan with a partisan advantage that “is unwarranted by valid

considerations, namely, the redistricting criteria set forth in Article XIX.” (Emphasis

added.)

{¶ 38} Those redistricting criteria are mainly set forth in Article XIX, Section

2. They include requirements that a congressional-district plan comply with all

applicable state and federal constitutional provisions and with federal law protecting

racial-minority voting rights and that a plan be composed of contiguous territory,

with a single, nonintersecting boundary line. They also include guidelines on

5. Article XI, Section 6(B) of the Ohio Constitution requires the Ohio Redistricting Commission to

attempt to draw a General Assembly–district plan in which “[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.”

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splitting or not splitting municipalities of various sizes and locations; limitations on

the number of counties that may be split not more than once and the number that may

be split not more than twice; a requirement that in districts containing only part of a

particular county, the portion of the county within the district be contiguous with the

boundaries of the county; a requirement that no two districts may share portions of

more than one county, unless the county’s population exceeds 400,000; and a

requirement that the General Assembly attempt to include at least one whole county

in each district. Ohio Constitution, Article XIX, Section 2(B)(1) through (8). Also,

Section 1(C)(3)(c) requires the General Assembly to attempt to draw districts that are

compact.

{¶ 39} “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 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).

{¶ 40} Reading Article XIX, Sections 1 and 2 together, we conclude that

Section 1(C)(3)(a) prohibits the General Assembly from passing by a simple majority

a plan that favors or disfavors a political party or its incumbents to a degree that is in

excess of, or unwarranted by, the application of Section 2’s and Section 1(C)(3)(c)’s

specific line-drawing requirements to Ohio’s natural political geography. In other

words, Section 1(C)(3)(a) does not prohibit a plan from favoring or disfavoring a

political party or its incumbents to the degree that inherently results from the

application of neutral criteria, but it does bar plans that embody partisan favoritism

or disfavoritism in excess of that degree—i.e., favoritism not warranted by legitimate,

neutral criteria.

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2. The enacted plan unduly favors the Republican Party and unduly disfavors the

Democratic Party

{¶ 41} The evidence overwhelmingly shows that the enacted plan favors the

Republican Party and disfavors the Democratic Party to a degree far exceeding what

is warranted by Article XIX’s line-drawing requirements and Ohio’s political

geography.

a. The enacted plan’s expected performance

{¶ 42} Although Ohio has not yet held any congressional elections under

the enacted plan, the parties agree that, in general, voting history in prior elections

can predict future voting patterns. As a starting point, we examine how the two

major political parties are expected to perform under the enacted plan. The parties

have submitted the reports of several experts to aid in this analysis.

{¶ 43} To start, Senate President Huffman and House Speaker Cupp argue

that the enacted plan does not allocate each of Ohio’s 15 congressional districts to

one party or another but instead maximizes the number of competitive districts. They

rely on the report of their only expert, Dr. Michael Barber, who is an associate

professor of political science at Brigham Young University with significant

experience in evaluating political and elections-related data. Dr. Barber explained

that in Ohio, Democratic voters are heavily clustered in urban areas and Republican

voters are more evenly distributed throughout the state. This political geography, he

concluded, constrains map drawers. Indeed, using the FEDEA dataset, he found that

the enacted plan is “quite similar” to the plans proposed by the House and Senate

Democrats: they all include six districts that are solidly Republican and two districts

that are solidly Democratic.

{¶ 44} Citing Dr. Barber’s report, Senate President Huffman and House

Speaker Cupp assert that 8 out of Ohio’s 15 congressional districts must be drawn as

“safe” districts for either Democrats or Republicans. Given that asserted reality, they

decided to draw the remaining seven districts as competitive ones. Dr. Barber

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confirmed that under the FEDEA dataset, the enacted plan includes seven

competitive districts. He also evaluated the enacted plan’s competitiveness by

determining whether a Democratic and Republican candidate for statewide federal

office had won a majority of the two-party vote share in the district from 2012 to

2020. He again found seven competitive districts under the enacted plan.

{¶ 45} But “competitiveness” is not a prescribed standard under Article XIX

of the Ohio Constitution. That term does not appear within Article XIX, and rules of

statutory construction forbid us from adding to the text of Article XIX. While

supposed district competitiveness was offered here as a post hoc rationalization for

the mapped districts in the enacted plan, Article XIX itself does not require it and

does not provide any calculable measure for it.

{¶ 46} Beyond that, petitioners submitted multiple expert reports showing

that the enacted plan is not nearly as competitive as Senate President Huffman and

House Speaker Cupp claim that it is. Dr. Jonathan Rodden is a professor of political

science at Stanford University with expertise in the analysis of fine-grained

geospatial data sets, including election results. He concluded that state statewide

election results have more reliably tracked how Ohioans have voted in

congressional elections. Dr. Rodden therefore concluded that by relying on only

the FEDEA dataset, respondents exclude the most relevant data to predict the

partisan outcomes of the enacted plan. Dr. Rodden claimed that by using a more

comprehensive dataset and considering an incumbency advantage, the enacted plan

has only two or three competitive districts.

{¶ 47} Dr. Christopher Warshaw is an associate professor of political science

at George Washington University and has written about elections and partisan

gerrymandering. He noted that the FEDEA dataset excluded “the Republican wave

year” of 2014 and heavily weighted the two federal elections in 2012, which was a

“high-water mark for Democrats in Ohio.” Dr. Warshaw found that the plan has

three competitive districts, although Republican candidates are favored in each. Dr.

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Rodden and Dr. Warshaw both found that Republicans are likely to win 80 percent

of the congressional seats (12 out of 15) under the enacted plan, even though

Republicans have received about 53 percent of the vote in recent statewide

elections.

{¶ 48} Petitioners also submitted the analysis of other experts who

compared the enacted plan to thousands of computer-simulated plans that comply

with Article XIX’s neutral districting criteria. Dr. Kosuke Imai is a professor in the

government and statistics departments at Harvard University and specializes in the

development of statistical methods for social-science research. He used the FEDEA

dataset in finding that Republicans likely will win 11 of 15 seats under the enacted

plan.6 He generated 5,000 Article XIX–compliant simulated plans, again using the

FEDEA dataset. Those simulated plans did not split any counties that the enacted

plan does not split, contained more compact districts and had fewer county splits than

the enacted plan, and were—just like the enacted plan—applied to Ohio’s particular

political geography.

{¶ 49} Dr. Imai found that Republicans would win 8 seats in 80 percent of

those plans and 9 seats in the other 20 percent of those plans. None of Dr. Imai’s

simulated plans awarded Republicans 11 or more seats. Dr. Imai therefore found—

using the same dataset used by DiRossi—that Republicans are expected to win 2.8

more seats under the enacted plan than under the simulated plans. The enacted plan,

Dr. Imai concluded, is “a clear statistical outlier,” which means there is the presence

of “systemic partisan bias.” Dr. Imai concluded that the probability of the enacted

plan’s partisan favoritism resulting from the application of neutral criteria is

essentially zero.

6. Dr. Imai does not believe that the FEDEA dataset will accurately predict the partisan leaning of

the districts in the enacted plan. He used that dataset only because DiRossi and others used it for

predicting the partisan outcome of the enacted plan. Dr. Imai avers that the FEDEA dataset, if

anything, undercounts the number of likely Republican seats.

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{¶ 50} Dr. Jowei Chen is an associate professor of political science at the

University of Michigan and has published academic papers on legislative

redistricting and political geography. He used the results of all statewide elections

from 2016 to 2020 to generate 1,000 Article XIX–compliant simulated plans to assess

whether the partisan outcome of the enacted plan is within the normal range of the

simulated district plans. Dr. Chen found that Republicans will likely win 12 of 15

congressional seats under the enacted plan. In contrast, only 1.3 percent of the

simulated plans created 12 Republican-favoring districts. Dr. Chen concluded that

the enacted plan is a “statistical outlier” and that the plan’s “extreme” partisan bias

cannot be attributable to Ohio’s political geography, which he accounted for in his

simulations.7

{¶ 51} We conclude that the body of petitioners’ various expert evidence

significantly outweighs the evidence offered by respondents as to both sufficiency

and credibility, compelling beyond any reasonable doubt the conclusion that the

enacted plan excessively and unwarrantedly favors the Republican Party and

disfavors the Democratic Party.

b. Additional comparisons focusing on particular counties

{¶ 52} Petitioners also submitted compelling evidence showing how the

enacted plan’s treatment of certain urban counties unduly favors the Republican Party

and disfavors the Democratic Party.

{¶ 53} Dr. Imai examined districts in Hamilton, Franklin, and Cuyahoga

Counties and concluded that “the enacted plan packs a disproportionately large

number of Democratic voters into some districts while cracking Democratic voters

7. The dissenting justices assert that they are unable to evaluate the simulated maps because they

were not part of the record. However, Dr. Imai and Dr. Chen submitted expert affidavits extensively

describing their methodology, data sources, and conclusions based on the 6,000 simulated plans

reviewed, and they also submitted as exhibits examples and data referenced in the affidavits. We

find that this evidence in the record sufficiently supports the conclusions cited herein.

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in other districts to create Republican-leaning seats.”8 For each of those counties, he

compared the Republican vote share of each precinct’s assigned district in the enacted

plan with the average of the Republican vote shares for each district that precinct was

assigned to in each of his 5,000 simulated plans. For example, Precinct 061031BEZ,

in Cincinnati, is in District 1 in the enacted plan, a district with an expected

Republican vote share of 51.53 percent. The average Republican vote share of the

districts to which that precinct is assigned (across Dr. Imai’s 5,000 simulated plans)

is 44.85 percent—6.68 percentage points lower than the enacted plan. This shows

that the enacted plan assigned that precinct to a more Republican-leaning district than

the average simulated plan.

{¶ 54} Dr. Imai states that performing this exercise for all the precincts in

Hamilton County reveals that “the enacted plan cracks Democratic voters, leading to

solely Republican districts.” The enacted plan does this by splitting Hamilton County

twice (placing county territory in three districts), whereas the simulated plans split it

only once. According to Dr. Imai, the additional split in the enacted plan results in

Hamilton County having no Democratic seats, “whereas the simulated plans are

expected to yield a Democratic seat. So in Hamilton County alone, cracking of

Democratic voters nets Republicans an entire seat.”

{¶ 55} Again, Dr. Imai’s analysis is particularly useful because he used the

FEDEA dataset—i.e., the dataset preferred by Senate President Huffman and House

Speaker Cupp. But petitioners presented evidence from several other experts who

also concluded, using different datasets, that the enacted plan’s treatment of urban

counties disfavors the Democratic Party to an excessive degree that is unwarranted

by Article XIX and the area’s political geography.

8. 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 other districts;

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. See Rucho, 588 U.S. at __, 139 S.Ct. at 2492, 204 L.Ed.2d 931.

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{¶ 56} Dr. Rodden compared the enacted plan with alternative plans

proposed by the Democratic caucuses and the Ohio Citizens Redistricting

Committee. He explained that the enacted plan carves up the Black community in

Cincinnati, splitting it into three districts and submerging it among predominantly

white, exurban, and rural voters. He concludes:

Under any method of counting splits, the Enacted Plan’s

approach involves at least two splits of Hamilton County—a line

running north-south on the east side of the county and another one

that carves out the northern suburbs. These maneuvers are clearly not

necessary for any reason other than partisan advantage. Each of the

alternative plans keeps metro Cincinnati together in a compact district

remaining within the county, avoids splitting the Black community,

and splits the county only once.

{¶ 57} Dr. Chen compared the enacted plan to his 1,000 simulated plans and

found that more than 80 percent of those plans placed Cincinnati in a district with a

45 percent Republican vote share and that the vast majority of those plans kept

Cincinnati in a compact district solely within Hamilton County, whereas the enacted

plan placed it in a noncompact district connected to Warren County by a thin strip of

territory—thereby combining the heavily Democratic city with a large rural area,

resulting in a district with a Republican vote share Dr. Chen calculates at 51.6

percent. Dr. Chen concluded that the enacted plan included a noncompact district

containing Cincinnati that was drawn to be favorable to Republicans. This resulted

in a district that was more favorable to Republicans than the Cincinnati district in

over 97 percent of his simulated plans.

{¶ 58} Petitioners’ experts similarly concluded that the districts

encompassing Franklin County were drawn to confer partisan advantages to the

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Republican Party. Dr. Imai found that the enacted plan packs Franklin County

Democratic voters into a “single, heavily Democratic” district in order to create

additional Republican-leaning districts, “leaving much of the city of Columbus in a

Republican district stretching most of the way to Cincinnati.” As a result, much of

Franklin County—including parts of Columbus—belongs to a safe Republican

district. By contrast, Dr. Imai’s 5,000 simulated plans showed that the entirety of

Franklin and Delaware Counties and a portion of Fairfield County would be

expected to belong to a Democratic-leaning district. Dr. Imai concluded that by

confining Democratic voters to a single district, the enacted plan packs voters in a

way that yields an additional seat for Republicans as compared to Dr. Imai’s

simulated plans.

{¶ 59} Similarly, Dr. Rodden opined that the enacted plan packs Democrats

into a single, very concentrated Columbus district, then “reaches around the city to

extract its outer reaches and suburbs, connecting them with far-flung rural

communities to the southwest—an arrangement that prevents the emergence of a

second Democratic district by removing Democratic Columbus-area neighborhoods

from their context and submerging them in rural Republican areas.” The following

figure from Dr. Rodden’s report illustrates his point:

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Alternative plans, Dr. Rodden notes, split Franklin County with a line that runs

from east to west to create a compact southern district and a relatively compact

northern district that crosses over into Delaware County, which would keep

Columbus’s northern suburbs together.

{¶ 60} Regarding Columbus and Franklin County, Dr. Chen opined:

[T]he Enacted Plan’s two Columbus-area districts are clear partisan

outliers: CD-3, which contains most of Columbus’ population, is

more heavily Democratic than all 1,000 of the simulated plans’

districts with the most Columbus population. Consequently, the

Enacted Plan’s CD-15, which contains the second-most of Columbus’

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population, is more heavily Republican than 98% of the simulated

plans’ districts with the second-most Columbus population.

And according to Dr. Chen, Districts 3 and 15 are also “less geographically

compact” than nearly every simulated plan’s districts containing the most and

second most Columbus residents—which is not a result “one could reasonably

expect from a districting process that follows the districting requirements of the

Ohio Constitution.” For these reasons, we conclude that the enacted plan divided

Franklin County into noncompact districts to confer a partisan advantage on the

party drawing the plan.

{¶ 61} Finally, Dr. Imai’s examination of Cuyahoga and Summit Counties

yielded a similar conclusion: “While under the simulated plans, the suburbs of

Cleveland are expected to belong to either Democratic districts or highly competitive

districts, the enacted plan packs urban Democratic voters, leaving the remainder of

Cuyahoga County and nearby areas in Republican districts.” This results in territory

that would be expected to be in Democratic-leaning districts based on the simulated

plans being divided to support the population needed for three Republican districts

and one competitive district in the enacted plan. Dr. Rodden and Dr. Chen again

concur. Dr. Rodden noted that the enacted plan splits Cuyahoga County into three

districts and contains a district that would be noncontiguous except for a narrow

corridor that is one precinct wide, and it also carves up Democratic-leaning areas

around Akron. Dr. Chen concluded that the enacted plan engages in unnatural

packing around Cleveland “to an extent that is not explained by Cuyahoga County’s

political geography.”

{¶ 62} This expert analysis demonstrates that in each of Ohio’s three largest

metropolitan areas, the enacted plan contains districts that are not shaped according

to Article XIX’s neutral districting criteria or Ohio’s political geography; instead, the

inescapable conclusion is that they are the product of an effort to pack and crack

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Democratic voters, which results in more safe Republican districts or competitive

districts favoring the Republican Party’s candidates. Not only are such oddly shaped

districts not required by the criteria set forth in Article XIX, but they are in tension,

if not in conflict, with Section 1(C)(3)(c)’s exhortation that the General Assembly

“shall attempt to draw districts that are compact.” Ohio Constitution, Article XIX,

Section 1(C)(3)(c). And they split communities of interest, such as the Black

community in Hamilton County. See Rucho, 588 U.S. at __, 139 S.Ct. at 2500, 204

L.Ed.2d 931 (“keeping communities of interest together” is a traditional redistricting

criterion).

c. Other measures of partisan bias

{¶ 63} Petitioners’ experts also found that the enacted plan unduly favors the

Republican Party when considered under other analytical methods created by

political scientists to measure partisanship in redistricting:

 The “efficiency gap,” which measures the difference between the parties’

respective “wasted votes” (i.e., the number of votes above the 50 percent plus

1 that a party needs to win an election), divided by the total number of votes

cast.

 The “mean-median gap,” which measures the difference between a party’s

vote share in the median district and its average vote share across all districts.

If a party wins more votes in the median district than in the average district,

then the mean-median gap indicates that the plan gives that party an

advantage in the translation of votes to legislative seats.

 “Declination,” which measures the asymmetry in the distribution of votes

across districts. For example, if the Democratic Party’s average vote share in

districts it won is significantly higher than the Republican Party’s average

vote share in the districts it won, the Democratic Party’s districts are

considered to be packed.

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 “Partisan symmetry,” which measures whether each party would receive the

same share of seats under the plan assuming they had identical shares of

votes. For example, if the Democratic Party would win 51 percent of the

seats if it received 55 percent of the votes, but the Republican Party would

win 66 percent of the seats if it received 55 percent of the votes, then the

partisan-symmetry metric indicates that the map favors the Republican Party.

{¶ 64} Dr. Warshaw analyzed the enacted plan under each of these metrics

using three different election datasets. He then compared the results to congressional

elections across the nation from 1972 to 2020. He concluded that regardless of the

approach used, “the enacted map has an extreme level of bias in favor of the

Republican [P]arty.” For example, using the election results from all statewide

elections from 2012 to 2020, Dr. Warshaw found that the enacted plan is more

extremely biased than 70 percent of previous plans and “more pro-Republican” than

85 percent of previous plans.

{¶ 65} Dr. Imai similarly considered the four partisan-bias metrics when

comparing the enacted plan to his 5,000 simulated plans. He concluded that the

enacted plan is a “clear outlier” favoring the Republican Party and is more biased

than any of the 5,000 simulated plans under all four metrics. Dr. Rodden found that

the enacted plan’s efficiency gap—the difference in the number of “wasted votes”

between Democratic and Republican candidates—was higher than the efficiency

gaps in almost every other comparable state. Dr. Chen found that the enacted plan’s

efficiency gap is larger than 99.5 percent of his simulated plans.

{¶ 66} These various expert analyses further confirm beyond any

reasonable doubt that the enacted plan excessively and unnecessarily favors the

Republican Party and unduly disfavors the Democratic Party.

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d. Senate President Huffman and House Speaker Cupp

did not effectively rebut petitioners’ evidence

{¶ 67} Senate President Huffman and House Speaker Cupp argue that the

analyses of Dr. Rodden and Dr. Chen are flawed because they did not use the FEDEA

dataset to predict election outcomes. Although Dr. Rodden and Dr. Chen used

different datasets, they applied the same datasets to the enacted plan that they applied

to the simulated or alternative plans and then compared partisan outcomes. Their

analyses therefore are relevant to the question whether the enacted plan favors a party

in a way unwarranted by the neutral factors in Article XIX. Moreover, Dr. Imai did

use the FEDEA dataset, and Senate President Huffman and House Speaker Cupp’s

brief does not even mention Dr. Imai.

{¶ 68} Senate President Huffman and House Speaker Cupp also argue that

we have previously “discounted the usefulness” of analyzing an enacted plan using

alternative plans that were not presented to the General Assembly prior to its adoption

of the enacted plan, citing Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367,

981 N.E.2d 814, ¶ 43-46. But Wilson does not prohibit consideration of alternative

plans; it merely cites the fact that the two alternative plans presented by the expert

witness in that case had not been before the apportionment board as one reason

(among many others, including flawed methodology) that we did not find the

evidence sufficient to carry the burden of proof in that case. Id. In Wilson, this court

determined at ¶ 2, 14-16 that Article XI’s provisions, as then written, did not mandate

political neutrality in an apportionment plan—in contrast to other states that

prohibited drawing plans that favored or disfavored a political party—and thereafter

rejected the relators’ claims that Sections 7 and 11 of former Article XI had been

violated. Here, by contrast, the simulated plans go to the very question we held was

not at issue in Wilson. The simulated plans are relevant evidence that the enacted

plan unduly favors the Republican Party, which is proscribed by the very provision

we are considering—Article XIX, Section 1(C)(3)(a).

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{¶ 69} Senate President Huffman and House Speaker Cupp’s expert, Dr.

Barber, points out potential flaws in the plans submitted by the Democratic caucuses,

but that evidence does not go to the relevant question: whether the plan passed by the

General Assembly unduly favors or disfavors a political party. Based on the evidence

discussed previously, we conclude that it does.

{¶ 70} Contrary to the insistence by the dissent9 that our decision today is

based on some amorphous notion of “proportional representation,” Article XIX

contains no such standard. And to be clear, our judgment here rests not on

“proportional representation” but rather on the Constitution’s explicit text stating that

a plan cannot unduly favor or disfavor a political party or unduly split governmental

units for partisan advantage.

{¶ 71} Finally, as noted above, Senate President Huffman and House Speaker

Cupp claim that the General Assembly prioritized crafting competitive districts in

areas where doing so was possible. Article XIX does not require, prohibit, or even

mention competitive districts. But it does require the General Assembly to attempt

to draw districts that are compact. Ohio Constitution, Article XIX, Section

1(C)(3)(c). And most importantly, Article XIX prohibits undue partisan favoritism.

Id. at Section 1(C)(3)(a). The above evidence, particularly Dr. Imai’s conclusion that

the enacted plan will result in, on average, 2.8 more Republican seats than are

warranted, shows that the General Assembly’s decision to shift what could have

been—under a neutral application of Article XIX—Democratic-leaning areas into

competitive districts, i.e., districts that give the Republican Party’s candidates a better

chance of winning than they would otherwise have had in a more compactly drawn

district, resulted in a plan that unduly favors the Republican Party and unduly

disfavors the Democratic Party.

9. The dissent has chosen to use the unprecedented format of a “joint dissent.” This authorship

label has never been used by this court. Its use now, without explanation by the dissent, is unusual

and inexplicable.

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3. Respondents’ Fourteenth Amendment warning is unfounded

{¶ 72} As an additional argument for rejecting petitioners’ claims that the

plan unduly favors the Republican Party at the expense of the Democratic Party,

Senate President Huffman and House Speaker Cupp warn that imposing a

proportionality requirement would itself be reverse partisan gerrymandering. They

argue that remedying respondents’ violations would run afoul of the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution.

{¶ 73} Senate President Huffman and House Speaker Cupp’s argument that

the court’s invalidation of the congressional-district plan in favor of strict

proportionality is an “absurd” idea that would discriminate against Republican

voters and minor-party voters mischaracterizes the issue in this case. For again,

petitioners do not argue for strict proportionality. Petitioners’ claims are based on

Article XIX of the Ohio Constitution, which forbids the General Assembly from

passing by a simple majority a plan that unduly favors or disfavors a political party.

Because Section 1(C)(3)(a) does not require a strictly proportional plan, the General

Assembly need not necessarily enact one.

{¶ 74} Moreover, Senate President Huffman and House Speaker Cupp’s

argument is at odds with Rucho’s holding that partisan-gerrymandering claims

under the Fourteenth Amendment are not justiciable in federal courts. See Rucho,

588 U.S. at __, 139 S.Ct. at 2506-2507, 204 L.Ed.2d 931. Senate President

Huffman and House Speaker Cupp offer no reason why, after Rucho, any court

would entertain a claim alleging partisan gerrymandering in violation of the

Fourteenth Amendment.

C. Section 1(C)(3)(b)

{¶ 75} Article XIX, Section 1(C)(3)(b) provides: “The General Assembly

shall not unduly split governmental units, giving preference to keeping whole, in the

order named, counties, then townships and municipal corporations.” Petitioners

argue that the enacted plan violates Section 1(C)(3)(b) because it unduly splits urban

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counties in ways that are not required by Ohio’s political geography, equal

population, or any other redistricting requirements in Article XIX. Rather, petitioners

contend that the splits were drawn purely for partisan advantage.

{¶ 76} Senate President Huffman and House Speaker Cupp argue that this

court may “easily reject[]” this argument because it is undisputed that the plan

“divides fewer governmental units than the 2011 Congressional Plan as well as the

two Democratic proposed congressional plans.” They also note that the plan

complies with the limits on splitting counties, townships, and municipal corporations,

as provided in Article XIX, Section 2(B). For example, they note that under Section

2(B)(5), 23 counties may be split into different congressional districts but that the

enacted plan splits only 12 counties.

{¶ 77} For the reasons explained below, we conclude that the enacted plan

unduly splits three counties in violation of Section 1(C)(3)(b). Those splits result in

noncompact districts that cannot be explained by any neutral factor and serve no

purpose other than to confer partisan advantage to the political party that drew the

plan.

1. Permissive splitting under Section 2(B) does not authorize partisan splitting

{¶ 78} Senate President Huffman and House Speaker Cupp’s arguments can

be easily rejected. First, the fact that the enacted plan divides fewer governmental

units than the 2011 congressional-district plan or the plans proposed by the House

and Senate Democrats is immaterial. Showing that other plans would split more

governmental units does not validate the enacted plan. Moreover, the 2011

congressional-district plan is an improper comparator because Article XIX was not

part of the Ohio Constitution when the General Assembly passed that plan and no

other provision of the Ohio Constitution addressed the undue splitting of

governmental units with regard to congressional redistricting prior to its enactment.

See 2018 Sub.S.J.R. No. 5.

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{¶ 79} Second, the enacted plan’s compliance with Article XIX, Section 2(B)

does not foreclose a claim that the plan unduly splits governmental units under

Section 1(C)(3)(b). No part of the Constitution “should be treated as superfluous

unless that is manifestly required,” and this court 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). If

compliance with the county-, township-, and municipal-corporation-splitting rules in

Section 2(B) were sufficient for any plan enacted under Article XIX, there would be

no need for the Constitution to contain a separate provision precluding the General

Assembly from unduly splitting governmental units. To give meaning to Section

1(C)(3)(b), the provision must be interpreted to contemplate that a congressional-

district plan could unduly split governmental units even though the splits are not

otherwise prohibited under Section 2(B).

{¶ 80} For example, a district plan may violate Article XIX, Section

1(C)(3)(b) by splitting governmental units as a means to confer an undue partisan

advantage—even if the district plan otherwise complies with Section 2(B). As

discussed above, the ordinary meaning of “undue” is “[e]xcessive or unwarranted.”

Black’s at 1838; see also Webster’s at 2492. A split may be unwarranted if it confers

an undue partisan advantage on the political party that drew the map and if it cannot

otherwise be explained by neutral redistricting criteria.

{¶ 81} If there were any doubt as to that interpretation of Section 1(C)(3)(b),

the structure of Article XIX and the purpose of the amendment also lead to that

conclusion. In construing constitutional text that was ratified by direct vote, “our

inquiry must often include more than a mere analysis of the words found in the

amendment.” Centerville, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167,

at ¶ 22. If the meaning of constitutional text is unclear, we “may review the history

of the amendment and the circumstances surrounding its adoption, the reason and

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necessity of the amendment, the goal the amendment seeks to achieve, and the

remedy it seeks to provide to assist the court in its analysis.” Id.

{¶ 82} Here, the General Assembly is prevented from unduly splitting

governmental units only when the district plan is passed by a simple majority—that

is, when the political party in power enacted the plan without sufficient bipartisan

support. When the amendment was placed on the 2018 ballot, the language

specifically informed voters that if the General Assembly adopted a plan without

significant bipartisan support, the plan “must comply with explicit anti-

gerrymandering requirements.” See Statewide Issue Ballot Language for the

Primary Election Occurring May 8, 2018, available at

https://www.ohiosos.gov/globalassets/ballotboard/2018/2018_primary_issuesrepo

rt.pdf#page=1 (accessed Jan. 4, 2022) [https://perma.cc/7E9V-Q3B]. Black’s Law

Dictionary defines “gerrymandering” as “[t]he practice of dividing a geographical

area into electoral districts, often of highly irregular shape, to give one political

party an unfair advantage by diluting the opposition’s voting strength.” Id. at 830.

{¶ 83} Therefore, the splitting of a governmental unit may be “undue” if it

is excessive or unwarranted. A split may be unwarranted if it cannot be explained

by any neutral redistricting criteria but instead confers a partisan advantage on the

party that drew the map—regardless of whether the plan complies with Article XIX,

Section 2(B). In other words, permissive splitting under Section 2(B) does not

authorize partisan splitting.

2. The district plan unduly splits Hamilton County

{¶ 84} The enacted plan splits Hamilton County into three districts for no

apparent reason other than to confer an undue partisan advantage on the Republican

Party. In the 2020 presidential election, the Democratic candidate received 58

percent of the vote in Hamilton County and the Republican candidate received 42

percent of the vote. But under the enacted plan, two of Hamilton County’s new

districts (Districts 2 and 8) would be safe Republican districts and the third new

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district (District 1) would lean slightly Republican—even using the FEDEA

dataset. None of those districts are entirely within Hamilton County.

{¶ 85} Dr. Imai found that Hamilton County’s “Democratic areas are

cracked to yield three Republican-leaning districts, despite a significant

concentration of Democratic voters in and around Cincinnati.” The result of the

“manipulations and additional splits of Hamilton County,” he concluded, “nets

Republicans an entire seat,” while the simulated plans are expected to yield a

Democratic seat.

{¶ 86} Dr. Rodden similarly found that any attempt to “minimize splits and

keep Cincinnati-area communities together would produce a majority-Democratic

district.” The enacted plan, he concluded, carves out Hamilton County’s northern

Black population from its surroundings neighborhoods and combines it with a mostly

rural district that ends 85 miles to the north, extracts Cincinnati from its immediate

inner-ring suburbs and combines the city proper with Warren County via a narrow

corridor, and extracts Cincinnati’s eastern suburbs and combines them with

“extremely rural” counties to the east. The following map from Dr. Rodden’s report

illustrates his point:

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Alternative plans submitted to the General Assembly, Dr. Rodden noted, kept metro

Cincinnati together in a compact district within Hamilton County, avoided splitting

the Black community, and split the county only once. Dr. Rodden concluded that

the splits in Hamilton County “are clearly not necessary for any reason other than

partisan advantage.”

{¶ 87} Dr. Chen concluded that splitting Hamilton County into three

districts is “statistically anomalous” and that only 1.3 percent of his simulated plans

similarly split the county into three districts. He further found that one Cincinnati

district in the enacted plan—District 1—has a higher Republican vote share than

98 percent of the computer-simulated Cincinnati districts. According to Dr. Chen,

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the enacted plan achieves this “unnaturally high” Republican-vote share by

“splitting Hamilton County into three districts and combining the Cincinnati

portion of Hamilton County with Warren County”; the result is a “very non-

compact shape[d]” District 1, with a compactness score that is much lower than the

Cincinnati-based districts in virtually all the computer-simulated districts. The

enacted plan, Dr. Chen concluded, creates “an extreme partisan outcome” in

District 1 “by splitting Hamilton County excessively and sacrificing geographic

compactness in this district.”

{¶ 88} In their brief, Senate President Huffman and House Speaker Cupp

do not adequately explain why the enacted plan splits Hamilton County into three

districts. Based on this record, we find that the two splits in Hamilton County were

excessive and unwarranted. The evidence overwhelmingly shows that the effect of

those splits was to confer significant partisan advantage on the party that drew the

districts.

3. The district plan unduly splits Summit and Cuyahoga Counties

{¶ 89} The evidence also demonstrates that the enacted plan splits Summit

and Cuyahoga Counties to confer partisan advantages on the Republican Party.

{¶ 90} Dr. Rodden concluded that the enacted plan splits Summit County by

cutting Akron off from its eastern Democratic-leaning suburbs, placing those suburbs

in a “long, narrow north-south corridor that is, in one spot, less than one mile wide”

and connecting those areas with highly Republican rural areas up to 70 miles away.

Dr. Rodden further noted that rather than combining Akron with its own suburbs, the

enacted plan combines the city with Medina County in District 13 and “the most

Republican outer exurbs of Cleveland.” Alternative plans, he noted, mostly kept

Summit County together. Dr. Rodden concluded that District 13 “appears to have

been crafted as part of an effort to make sure there is only one very Democratic

district in Northeast Ohio.” What would have otherwise been a comfortable

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Democratic, Akron-based district, he concludes, is instead a “toss up.” The following

illustration from Dr. Rodden’s report demonstrates his points:

{¶ 91} As it does with Hamilton County, the enacted plan splits Cuyahoga

County into three districts—although Dr. Imai found that only 8 of his 5,000

simulated plans split two counties twice. One of those Cuyahoga County districts—

District 14—includes a narrow corridor jutting into the county that, according to Dr.

Rodden, is “in one spot, the width of one census block, with no road connecting” the

two portions of the district. The result, according to Dr. Rodden, is that District 14

extracts large numbers of Democrats in suburban Cuyahoga County and places them

in a district that is far more Republican.

{¶ 92} Dr. Imai concluded that the enacted plan overly packs Democratic

voters into District 11—the district that includes Cleveland—and that the

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surrounding districts were drawn to “crack the remaining Democratic voters outside

of Cleveland and in the cities of Lorain and Akron.” As a result, in northeast Ohio,

the enacted plan creates three Republican-leaning districts and one competitive

district, even though Dr. Imai’s simulated plans generally show that the areas south

and west of Cleveland would otherwise belong to a competitive or Democratic-

leaning district. Dr. Chen similarly found that the Cleveland-based district was “less

geographically compact than is reasonable for a Cleveland-based district” and instead

appears “to have been drawn in order to create an extreme packing of Democratic

voters that would not have naturally emerged from drawing a more compact

Cleveland-based district.”

{¶ 93} Senate President Huffman and House Speaker Cupp do not explain

the basis for the splits in Summit or Cuyahoga Counties, nor do they attempt to

explain the irregular shapes of the districts resulting from those splits. Under these

circumstances, we conclude that the evidence shows that the enacted plan splits

Summit and Cuyahoga Counties in ways that cannot be explained by any neutral

criteria and instead confers a partisan advantage on the political party that drew the

map.

D. Systemic defects require the passage of a new plan

that complies with Article XIX

{¶ 94} Article XIX, Section 3(B)(1) authorizes this court to determine that

a congressional-district plan, or any congressional district or group of congressional

districts, is invalid. It further provides that a corrective plan “shall remedy any legal

defects in the previous plan identified by the court but shall include no changes to

the previous plan other than those made in order to remedy those defects.” Id.

{¶ 95} Article XIX, Section 3(B)(1) thus recognizes that in some

circumstances, congressional plans that contain isolated defects may be subject to

remediation by simply correcting the defects in the affected district or districts. But

when a congressional-district plan contains systemic flaws such that constitutional

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defects in the drawing of some district boundaries have a consequential effect on

the district boundaries of other contiguous districts, such a plan is incapable of

being remediated with the surgical precision necessary to correct only isolated

districts while leaving the rest of the plan intact.

{¶ 96} In this case, the partisan gerrymandering used to generate the 2021

congressional-district plan, through undue party favoritism and/or undue

governmental-unit splits, extends from one end of the state to the other. This plan

defies correction on a simple district-by-district basis, if only as a consequence of

the equal-population requirement prescribed by Article XIX, Section 2 and

governing law. We therefore see no recourse but to invalidate the entire

congressional-district plan.

{¶ 97} Article XIX, Section 3(B)(1) and (2) describe what happens next.

Section 3(B)(1) provides that if any congressional-district plan is determined to be

invalid by an unappealed final court order, the general assembly “shall pass” a

congressional-district plan that complies with the Constitution. Section 3(B)(1)

mandates both the timing and substance of any plan so passed. The plan shall be

passed “not later than the thirtieth day after the last day on which an appeal of the

court order could have been filed or, if the order is not appealable, the thirtieth day

after the day on which the order is issued.” Id. And the plan “shall remedy any

legal defects in the previous plan identified by the court but shall include no

changes to the previous plan other than those made in order to remedy those

defects.” Id.

{¶ 98} If the new congressional-district plan is not passed as Section

3(B)(1) describes, “the Ohio redistricting commission shall be reconstituted and

reconvene and shall adopt a congressional district plan” in accordance with the

Constitution. Article XIX, Section 3(B)(2). Again, this provision mandates both

the timing and substance of the commission’s actions. “The commission shall

adopt that plan not later than the thirtieth day after the deadline described in division

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January Term, 2022

(B)(1) of this section,” and such plan “shall remedy any legal defects in the previous

plan identified by the court but shall include no other changes to the previous plan

other than those made in order to remedy those defects.” Article XIX, Section

3(B)(2).

{¶ 99} By the plain language of Article XIX, Section 3(B), both the General

Assembly and the reconstituted commission, should that be necessary, are

mandated to draw a map that comports with the directives of this opinion.

III. Conclusion

{¶ 100} When the dealer stacks the deck in advance, the house usually wins.

That perhaps explains how a party that generally musters no more than 55 percent

of the statewide popular vote is positioned to reliably win anywhere from 75 percent

to 80 percent of the seats in the Ohio congressional delegation. By any rational

measure, that skewed result just does not add up.

{¶ 101} The incontrovertible evidence in these cases establishes that the

plan passed by the General Assembly fails to honor the constitutional process set

out in Article XIX to reapportion Ohio’s congressional districts. The General

Assembly produced a plan that is infused with undue partisan bias and that is

incomprehensibly more extremely biased than the 2011 plan that it replaced. This

is not what Ohio voters wanted or expected when they approved Article XIX as a

means to end partisan gerrymandering in Ohio for good. The time has now come

for the General Assembly to faithfully discharge the constitutional responsibilities

imposed by Article XIX and by oath of office.

{¶ 102} We hold that the General Assembly did not comply with Article

XIX, Sections 1(C)(3)(a) and (b) of the Ohio Constitution in passing the

congressional-district plan. We therefore declare the plan invalid and we order the

General Assembly to pass a new congressional-district plan, as Article XIX, Section

3(B)(1) requires, that complies in full with Article XIX of the Ohio Constitution and

is not dictated by partisan considerations.

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Relief granted.

STEWART and BRUNNER, JJ., concur.

O’CONNOR, C.J., concurs, with an opinion joined by BRUNNER, J.

KENNEDY, FISCHER, and DEWINE, JJ., dissent, with an opinion.

_________________

O’CONNOR, C.J., concurring.

{¶ 103} I fully concur in the majority opinion. I write separately to

emphasize the following point from the reply brief of petitioners in case No. 2021-

1449: “[Petitioners] have never advocated that strict proportionality is required by

Article XIX, Section 1(C)(3)(a). Indeed, it is not. But it goes too far in the other

direction to suggest that in considering whether a plan is unduly partisan, the

Supreme Court should simply ignore a gross departure from proportionality.”

{¶ 104} The dissenting opinion’s dismissive characterization of all the

metrics used by petitioners’ experts as simply being measures of “proportional

representation” is sleight of hand. No magician’s trick can hide what the evidence

overwhelmingly demonstrates: the map statistically presents such a partisan

advantage that it unduly favors the Republican Party.

{¶ 105} The “competitiveness” standard that respondents offer—a standard

absent from the constitutional language—is another illusion. It asks that voters be

satisfied by a “coin toss” without acknowledging the significant partisan advantage

created across the state.

{¶ 106} For these reasons, I am not persuaded that the dissenting opinion

offers a framework supported by the language of Article XIX of the Ohio

Constitution or reflective of the evidence presented.

BRUNNER, J., concurs in the foregoing opinion.

_________________

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KENNEDY, FISCHER, and DEWINE, JJ., dissenting.

{¶ 107} The majority today declares the congressional-district plan enacted

by the legislature to be unconstitutional on the basis that it “unduly” favors a

political party and “unduly” splits governmental units. It does so without

presenting any workable standard about what it means to unduly favor a political

party or divide a county.

{¶ 108} To the extent that one can find a guiding legal principle in what the

majority does, it is that results under a district-based election system should roughly

equate to what would happen under a system of proportional representation. But,

of course, this country has never adopted a system of proportional representation,

and nothing in Article XIX, Ohio’s congressional-redistricting amendment,

imposes one as a standard against which a legislative-redistricting plan must be

measured. In stark contrast to Article XI, which establishes the standards for

adopting a General Assembly-district plan, Article XIX does not require a

congressional-district plan to even attempt to provide proportionately

representative districts. See Article XI, Section 6(B), Ohio Constitution.

{¶ 109} Equally suspect is the majority’s conclusion that the map unduly

divides counties. Its analysis addresses only four of Ohio’s 88 counties and wholly

disregards the divisions of townships and municipalities. Moreover, Article XIX,

Section 2(B)(5) expressly authorizes the congressional-district plan to split 18

counties one time and five counties two times. The plan not only complies with

that provision, it also splits counties the bare mathematical minimum number of

times: 14. It is impossible to draw a map with equally populated districts that

contains fewer county splits and still meets the other criteria of the amendment. So

what the majority is essentially saying is: we don’t like the legislature’s choices of

counties to divide; it should have divided different ones. But that’s a matter of

policy preference—it has nothing to do with the law.

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{¶ 110} No doubt, there are those who will be quite happy about the policy

choices that the majority makes today. But no one should lose sight of the fact that

what the majority does today is make policy, not apply the law. While none of us

question that the majority sincerely believes that what it is crafting constitutes good

policy, we have grave concerns about the majority’s untethered-by-law eagerness

to wrest from the political branches of our government the authority that rightly

belongs to them. “The document that the Court releases is in the form of a judicial

opinion,” Bostock v. Clayton Cty., __ U.S. __, __, 140 S.Ct. 1731, __, 207 L.Ed.2d

218 (2020) (Alito, J., dissenting), but the majority exercises political “will,” not

legal “judgment,” see Alexander Hamilton, The Federalist No. 78.

{¶ 111} We believe that our authority is limited by the text of Article XIX

and the constitutional restraints on the judicial power. Because the majority strays

well beyond both, we respectfully dissent.10

I. BACKGROUND

A. The congressional-redistricting process

{¶ 112} In February 2018, the General Assembly enacted legislation to

place on the ballot an amendment to the Ohio Constitution providing a new process

for drawing congressional districts. The people of Ohio ratified the amendment in

May 2018 with an effective date of January 1, 2021.

{¶ 113} Article XIX is designed to incentivize the political branches to

reach bipartisan compromise on redistricting plans. It does this by providing that a

plan that garners bipartisan, supermajority support lasts ten years while a plan

passed by only a simple majority lasts four years. Article XIX, Sections 1(A),

1(C)(2), and 1(C)(3), Ohio Constitution. The amendment places primary

10. The majority says the joint authorship of a dissent is “unusual and inexplicable.” Majority

opinion at ¶ 70, fn. 9. It’s not. See, e.g., Natl. Fedn. of Indep. Business v. Dept. of Labor,

Occupational Safety & Health Administration, __ U.S. __, __ S.Ct. __, __ L.Ed.2d __, Nos. 21A244

and 21A247, Slip Opinion, 2022 WL 120952, *8 (Jan. 13, 2022) (joint dissent of Breyer, Sotomayor,

and Kagan, JJ.).

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responsibility for congressional redistricting on the General Assembly. See Section

1(A). Section 1(A) requires the General Assembly to pass a congressional-district

plan by the affirmative vote of three-fifths of the members of each house in the

legislature, including the affirmative vote of at least one-half of the members of

each of the two largest political parties. If the plan is enacted by the required vote,

it remains effective until the next year ending in the numeral one, i.e., ten years. Id.

{¶ 114} If the General Assembly fails to enact a plan by the requisite vote

in September of a redistricting year, then the redistricting commission established

in Article XI must adopt a congressional-district plan by a majority vote including

at least two members of the commission who represent each of the two largest

political parties. Section 1(B). If that happens, the plan remains in effect for ten

years. Id.

{¶ 115} If the commission fails to agree on a plan by October 31, then the

General Assembly must pass a congressional-district plan in the form of a bill not

later than November 30. Section 1(C)(1). The plan is effective for ten years if it is

passed by a three-fifths vote in each house, including an affirmative vote of at least

one-third of the members of each of the two largest political parties. Section

1(C)(2).

{¶ 116} Should the legislature fail to reach bipartisan consensus, Article

XIX authorizes the General Assembly to pass a congressional-district plan by a

simple majority vote of both houses. Section 1(C)(3). The penalty is that the plan

lasts just four years. See Section 1(C)(3)(e). Such a plan must not “unduly favor[

] or disfavor[ ] a political party or its incumbents,” Section 1(C)(3)(a), or “unduly

split governmental units,” Section 1(C)(3)(b).

{¶ 117} The process repeats itself once the four-year plan expires. Article

XIX, Section 1(D), (E), and (F). Further, when a congressional-district plan ceases

to be effective, “the district boundaries described in that plan shall continue in

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operation for the purpose of holding elections until a new congressional district

plan takes effect.” Section 1(J).

{¶ 118} Article XIX, Section 2 provides additional requirements for a

congressional-district plan. All plans must include single-member districts divided

by population according to the congressional ratio of representation. Section

2(A)(1) and (2). The ratio is the population of Ohio (11,799,448 according to the

2020 federal decennial census) divided by the number of House seats apportioned

to this state (15), which equals 786,629 or 786,630 people per district. Section

2(A)(2). Section 2 further states that the plan “shall comply with all applicable

provisions of the constitutions of Ohio and the United States and of federal law,”

Section 2(B)(1), that “[e]very congressional district shall be composed of

contiguous territory,” Section 2(B)(3), and that “the boundary of each district shall

be a single nonintersecting continuous line,” id. Ten-year plans must contain

compact districts, Section 2(B)(2), but a four-year plan requires only an attempt to

make districts compact, Section 1(C)(3)(c).

{¶ 119} Section 2 of Article XIX also includes requirements for dividing

counties, townships, and municipal corporations. When the county has a

municipality or township with a population that exceeds the size of a congressional

district, the authority drawing the districts “shall attempt to include a significant

portion of that municipal corporation or township in a single district and may

include in that district other [governmental units] that are located in that county and

whose residents have similar interests as the residents of the municipal corporation

or township.” Section 2(B)(4)(a). When the population of a municipality or

township falls between 100,000 and the size of a congressional district, the city or

township “shall not be split,” unless the county contains two or more such

governmental units, in which case only the most populous “shall not be split.”

Section 2(B)(4)(b).

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{¶ 120} “The authority drawing the districts may determine which counties

may be split.” Section 2(B)(5). However, “sixty-five counties shall be contained

entirely within a district, eighteen counties may be split not more than once, and

five counties may be split not more than twice.” Id. Further, “[n]o two

congressional districts shall share portions of the territory of more than one county,

except for a county whose population exceeds four hundred thousand,” Section

2(B)(7), and “[t]he authority drawing the districts shall attempt to include at least

one whole county in each congressional district,” unless compliance would violate

federal law or the district is entirely within one county, Section 2(B)(8).

{¶ 121} Article XIX, Section 3(A) vests this court with “exclusive, original

jurisdiction in all cases arising under this article.” If a court invalidates a

congressional-district plan, a congressional district, or group of districts, then the

General Assembly must pass a new district plan that remedies the legal defects the

court identified in the previous plan. Section 3(B). However, if the General

Assembly fails to enact a new plan within a 30-day period, the Ohio Redistricting

Commission is reconstituted and must adopt a compliant congressional-district plan

within 30 days. Section 3(B) and (C). Once the General Assembly or the

redistricting commission produces a new plan, it is to be used until the next time

for redistricting. Id.

B. The legislature enacts a redistricting plan that purports to maximize the

number of competitive districts

{¶ 122} Based on the most recent census, Ohio is allotted 15 seats in the

U.S. House of Representatives, one fewer than in the previous census cycle. The

census data arrived late and in unconsumable format, see Ohio v. Raimondo, 848

Fed.Appx. 187, 188 (6th Cir.2021), and the General Assembly failed to meet the

September 30 deadline to pass with bipartisan support a congressional-district plan

good for ten years, see Article XIX, Section 1(A). The redistricting commission

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then had the month of October to enact a bipartisan redistricting plan but was unable

to do so. Section 1(B).

{¶ 123} This left the General Assembly the month of November to enact a

plan “in the form of a bill.” Section 1(C)(1). After attempts to reach bipartisan

consensus in the legislature failed, both houses passed a plan with simple-majority

support. The bill was signed into law by the governor soon thereafter. See R.C.

3521.01 et seq. Because the plan was enacted by only a simple majority, the plan

is to remain in effect for four years. Section 1(C)(3)(e).

{¶ 124} The General Assembly included in the legislation “an explanation

of the plan’s compliance with” Section 1(C)(3). Section 1(C)(3)(d). The following

constitute its legislative findings: “The plan contains six Republican-leaning

districts, two Democratic-leaning districts, and seven competitive districts”; only

one district pairs incumbents, and they are members of the Republican party; “[t]he

plan splits only twelve counties and only fourteen townships and municipal

corporations”; and “visual inspection of the congressional district plan

demonstrates that it draws districts that are compact.” 2021 Sub.S.B. No. 258,

Section 3, 733-734, available at https://search-prod.lis.state.oh.us/

solarapi/v1/general_assembly_134/bills/sb258/EN/05/sb258_05_EN?format=pdf

(accessed Jan. 12, 2022) [https://perma.cc/DF75-WC9K]. The General Assembly

reports that on each score, this plan improves upon the congressional-district plan

enacted in 2011. The governor added his approval:

SB 258 makes the most progress to produce a fair, compact, and

competitive map. The SB 258 map has fewer county splits and city

splits than these recent proposals and the current congressional map.

The SB 258 map keeps Lucas and Stark counties, as well as the

Mahoning Valley, whole within single congressional districts for the

first time in decades, and also keeps the cities of Akron, Canton,

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Cincinnati, Cleveland, Dayton, and Toledo all whole within the

same congressional map for the first time since the 1840s. With

seven competitive congressional districts in the SB 258 map, this

map significantly increases the number of competitive districts

versus the current map.

Governor of Ohio News Releases, Governor DeWine Signs Senate Bill 258 (Nov.

20, 2021), https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-

media/governor-dewine-signs-senate-bill-258-11222021 (accessed Jan. 12, 2022)

[https://perma.cc/9JLS-X2W6].

{¶ 125} Here is the plan:

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{¶ 126} Start with the basics. Each of the 15 districts are virtually

equipopulous, containing either 786,629 or 786,630 people. The plan splits 12

counties, down from 23 in the 2011 plan. Two counties—Hamilton and

Cuyahoga—are split twice. Lucas and Stark counties are kept whole for the first

time in decades. The plan splits 14 townships and municipalities, down from 35 in

the 2011 plan. Of Ohio’s cities not naturally split by county lines, 98 of the largest

101 are unsplit. Columbus accounts for one split because the state and federal

Constitutions require it. See Sections 2(B)(1) (incorporating the one-person, one-

vote requirement) and 2(B)(4)(a); see also Reynolds v. Simms, 377 U.S. 533, 84

S.Ct. 1362, 12 L.Ed.2d 506 (1964) (same).

{¶ 127} The seven competitive districts are District 1, District 6, District 9,

District 10, District 13, District 14, and District 15. Those districts respectively

encompass greater Cincinnati, Ohio’s eastern corridor, Toledo and surrounding

counties, greater Dayton, greater Akron, northeast Ohio, and central Ohio between

Cincinnati and Columbus. District 6, notably, was adjusted to keep the entire

Mahoning Valley (all of Mahoning, Trumbull, and Columbiana counties) in a

single district.

{¶ 128} By any measure, several of the districts are hypercompetitive. In

the Cincinnati-area District 1, for example, statewide federal-election data from

2012 through 2020 (“FEDEA”) show a district with a 51.5 percent Republican

advantage; yet in the most recent election, the Democratic presidential candidate

won the district. The Toledo-area District 9, in contrast, shows only a 47.7 percent

Republican average, yet the Republican presidential candidate carried the district

in the most recent election. The Dayton-area District 10 has a 52.2 percent

Republican federal average and gave the Republican presidential candidate 51.8

percent of the vote in the last election. The Akron-area District 13 may be the most

competitive of all, manifesting a 48.6 percent Republican average and giving the

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Democratic presidential candidate a razor-thin 50.4 percent majority in the last

presidential election.

{¶ 129} Each of the seven competitive districts, whether it leans left or

right, is more competitive than it was in the 2011 plan. That leaves as

noncompetitive the eight districts encompassing Cleveland, Columbus, Canton,

and Ohio’s rural regions. More than 46 percent of Ohioans live in competitive

districts where candidate strength and voter turnout will dictate results; the rest are

overwhelmingly likely to live in districts where their party has a decided advantage.

{¶ 130} Two groups of petitioners filed complaints in this court asserting

that the enacted plan violates Article XIX of the Ohio Constitution. Petitioners

assert the same two causes of action: first, the plan “unduly favors or disfavors a

political party or its incumbents” in contravention of Section 1(C)(3)(a); second,

the plan “unduly split[s] governmental units,” contravening Section 1(C)(3)(b).

The primary thrust of their claims is that under the plan, Democratic candidates will

fail to win what they consider to be a fair number of seats in Ohio and the plan thus

“unduly” favors the Republican party. They also claim that the plan unduly splits

governmental units in Hamilton, Cuyahoga, and Summit Counties, creating

competitive seats in those areas rather than seats where Democrats have an electoral

advantage.

II. ANALYSIS

{¶ 131} The two questions before this court—whether the enacted

congressional-district plan “unduly favors or disfavors a political party or its

incumbents” or “unduly split[s] governmental units,” Article XIX, Section

1(C)(3)(a) and (b), Ohio Constitution—are questions of first impression. Words in

the Ohio Constitution mean what they meant to the layperson at the time of

enactment. We are to accord Article XIX its original public meaning, free from

policy-oriented gloss. Accord Rutherford v. M’Faddon (1807) (unpublished),

available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2001/2001-Ohio-

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56.pdf (jury-trial right has the meaning it had “at the time of the framing [of] the

constitution”).

A. The applicable standard

{¶ 132} The questions in these cases are the same for both claims: Is it

“undu[e]”? Does the enacted congressional-district plan “unduly favor or

disfavor”? Does the plan “unduly split”?

{¶ 133} We first discern what we can about the adverb “unduly”—which is

an “amorphous” word, Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 985, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Scalia, J.,

concurring in the judgment in part and dissenting in part)—and then apply those

insights to analyze the alleged partisan favoritism and governmental-unit splits at

issue.

{¶ 134} The Constitution does not define “unduly,” see contra Article XIX,

Section 2(C)(1) (defining “split”), so we turn first to the dictionary, see Centerville

v. Knab, 162 Ohio 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 24. “Undue” means

“[e]xcessive or unwarranted,” Black’s Law Dictionary 1838 (11th Ed.2019),

“exceeding or violating propriety or fitness,” Webster’s Third New International

Dictionary 2491 (2002), and “contrary to justice, right, or law,” id. (with “archaic”

status label). The parties agree on these definitions.

{¶ 135} With these definitions come two basic ideas. Something can be

undue simply because it is excessive or too much. Thus, Webster’s provides the

example, “ ‘his sartorial equipment stops just short of undue elegance.’ ” Id.,

quoting Philip Hamburger. But “undue” also connotes the sense of being

unwarranted by valid considerations. Thus, when we talk about exercising “undue

influence,” we don’t simply mean that one had too much influence over another;

we also mean that there was something improper about the influence. See West v.

Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962).

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{¶ 136} Under either sense, “undue” is a comparison word. Whether

something is undue depends on how much of something is “due” or appropriate.

So before we can say whether a plan “unduly” favors a political party, we must

have some baseline understanding of what a fair plan that does not favor one

political party would look like. As the United States Supreme Court explained in

Rucho v. Common Cause, “it is only after determining how to define fairness”—

that is, determining a baseline—“that you can even begin to answer the

determinative question: ‘How much is too much?’ At what point does permissible

partisanship become unconstitutional?” 588 U.S. __, __, 139 S.Ct. 2484, 2501, 204

L.Ed.2d 931 (2019). Only with some understanding of what the baseline is can one

answer the question whether favoritism is excessive or exists for an improper

reason.

{¶ 137} Indeed, by prohibiting only “undu[e]” favoritism, Section

1(C)(3)(a) presupposes that some degree of partisan favoritism and some amount

of governmental-unit splitting is permissible. Only that which is “undu[e]” is

impermissible. See State ex rel. Carmean v. Hardin Cty. Bd. of Edn., 170 Ohio St.

415, 422, 165 N.E.2d 918 (1960) (“It is axiomatic in statutory construction that

words are not inserted into an act without some purpose”); compare Article XIX,

Section 1(C)(3)(a) and (b), Ohio Constitution with Article III, Section 20(a), Florida

Constitution (proscribing partisan “intent” in redistricting).

{¶ 138} So what is the benchmark against which “unduly” is to be

measured? It cannot be whether one party is likely to win more seats than the other

in Congress. Imagine, for example, that every precinct in Ohio is a perfect

microcosm of the state with each precinct having 54.5 percent of voters who tend

to vote for a generic Republican candidate and 45.5 percent for a generic

Democratic candidate.11 In such a scenario, no matter how one draws the districts,

11. These figures derive from the measure provided in Article XI, Section 6(B).

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in a typical year Republicans could win every last district. But no one could

seriously say that the redistricting map “unduly” favored the Republican party.

{¶ 139} The majority thinks that it has a way to fill in this blank spot in the

constitutional text. It announces that although the Constitution “does not prohibit a

plan from favoring or disfavoring a political party or its incumbents to the degree that

inherently results from the application of neutral criteria, * * * it does bar plans that

embody partisan favoritism or disfavoritism in excess of that degree—i.e., favoritism

not warranted by legitimate, neutral criteria.” Majority opinion at ¶ 40. The problem,

though, is that this rule still fails to establish a benchmark. Saying “not warranted by

legitimate, neutral criteria” cannot be the solution in itself, because there are a lot of

ways a plan could comply with “legitimate, neutral criteria.” Indeed, no one disputes

that the current plan complies with all the neutral criteria in the Constitution

(population equality, division of political subdivisions, etc.), as, no doubt, might a

good many different plans. So to engage in the majority’s exercise, one still needs

some idea of the baseline that the favoritism is to be measured against. See Rucho,

588 U.S. at __, 139 S.Ct. at 2505, 204 L.Ed.2d 931.

{¶ 140} Though the majority does not plainly state its baseline, its analysis

makes clear the baseline that it is using: the results that would be obtained under a

system of proportional representation. Popular in Europe, proportional

representation is a system of apportionment “designed to represent in a legislative

body each political group or party in optimum proportion to its actual voting strength

in a community.” Webster’s at 1819. So what the majority is really saying is that a

plan unduly favors a political party if it fails to achieve proportional representation

for reasons other than the application of neutral redistricting criteria.

{¶ 141} The majority opinion leaves little doubt that a proportional-

representation system is its baseline. It begins its application of the standard it has

adopted by telling us, “As a starting point, we examine how the two major political

parties are expected to perform under the enacted plan.” Majority opinion at ¶ 42. It

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then supplies an answer: “Dr. Rodden and Dr. Warshaw both found that Republicans

are likely to win 80 percent of the congressional seats (12 out of 15) under the enacted

plan, even though Republicans have received about 53 percent of the vote in recent

statewide elections.” Id. at ¶ 47. It next looks to testimony from petitioners’ experts

about metrics that measure the extent to which a plan achieves proportional

representation—the “efficiency gap,” the “mean-median gap,” “declination,” and

“partisan symmetry”—and uses these proportional-representation metrics to

conclude that the plan violates constitutional standards. Id. at ¶ 63. The majority

wraps up by decrying the plan’s failure to meet its proportional-representation

standard: a stacked deck “perhaps explains how a party that generally musters no

more than 55 percent of the statewide popular vote is positioned to reliably win

anywhere from 75 percent to 80 percent of the seats in the Ohio congressional

delegation.” Id. at ¶ 100.

{¶ 142} The problem, though, is that nothing in Article XIX mandates this

proportional-representation standard. While Article XI directs the Ohio

Redistricting Commission to attempt to draw a General Assembly–district plan in

which the statewide proportion of districts that favors each political party

“correspond[s] closely to the statewide preferences of the voters of Ohio” based on

a proportionality formula, there is no similar language in Article XIX.

{¶ 143} Thus, what the majority does is completely untethered from the text

of Article XIX. When it says that the plan unduly favors the Republican Party,

what it means is that the plan unduly favors the Republican Party as compared to

the results that would be obtained if we followed a system of proportional

representation.

{¶ 144} So where does that leave us? What the majority does has no

relation to the Constitution; the majority simply substitutes its own sense of fairness

for the text of Article XIX. That’s obviously wrong, but what is the proper course?

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{¶ 145} Respondents Cupp and Huffman argue that it is impossible to

derive from “unduly favors” any judicially manageable standard and that as a result,

we should declare the case to be nonjusticiable. Unwittingly, the majority opinion

makes a strong case that they are right. Indeed, the majority offers no principled,

judicially manageable standard that can be neutrally applied without respect to the

interests of the parties in the case. See Rucho, 588 U.S. at __, 139 S.Ct. at 2498,

204 L.Ed.2d 931.

{¶ 146} “[T]he judicial responsibility to avoid standardless decisionmaking

is at its apex in ‘ “the most heated partisan issues.” ’ ” June Med. Servs., L.L.C. v.

Russo, 591 U.S. __, __, 140 S.Ct. 2103, 2179, 207 L.Ed.2d 566 (2020) (Gorsuch,

J., dissenting), quoting Rucho at __, 139 S.Ct. at 2499, quoting Davis v. Bandemer,

478 U.S. 109, 145, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). In Rucho, after

struggling “without success over the past several decades to discern judicially

manageable standards for deciding” partisan-gerrymandering claims, the United

States Supreme Court held that federal courts would no longer entertain such

claims. Rucho at __, 139 S.Ct. at 2508. Just recently, our sister court in the Badger

State reached a similar conclusion, pronouncing certain gerrymandering claims

arising under the Wisconsin Constitution to be nonjusticiable. Johnson v.

Wisconsin Elections Comm., 399 Wis.2d 623, 2021 WI 87, __ N.W.2d __, ¶ 80-81.

“Claims of political unfairness in the maps present political questions,” the court

held, “not legal ones.” Id. at ¶ 4.

{¶ 147} Nonetheless, we are loath to simply declare that this court may

never consider a claim that a plan unduly favors a political party or unduly divides

political subdivisions. For three reasons, we decline to reach the same

nonjusticiability holding as our sister and federal high courts. The first reason is

that we need not: as we shall make clear below, even assuming arguendo the

justiciability of petitioners’ claims, their claims fail under any reasonable measure.

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{¶ 148} Our second reason follows from the Supreme Court’s example.

Rucho was not the first case in its line. It was only after “considerable efforts” over

decades and no fewer than one dozen justices’ opinions on the topic that the court

ultimately deemed the question a political one. Gill v. Whitford, __ U.S. __, __,

138 S.Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (citing cases); Rucho, 588 U.S. at

__, 139 S.Ct. at 2496-2498, 204 L.Ed.2d 931. This court, by contrast, is asked to

adjudicate gerrymandering for the first time. Although the majority comes up short

today, we do not rule out that “in another case a standard might emerge,” Vieth v.

Jubelirer, 541 U.S. 267, 312, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy,

J., concurring).

{¶ 149} Lastly, and most fundamentally, the Ohio Constitution provides

more guidance than does the United States Constitution. The Ohio Constitution

expressly confers on this court “exclusive, original jurisdiction in all cases arising

under this article.” Article XIX, Section 3(A). Article XIX says that a plan shall

neither “unduly favor[ ] or disfavor[ ] a political party” nor “unduly split

governmental units,” Section 1(C)(3)(a) and (b), and that it is this court’s job to

identify “legal defects,” Section 3(B)(1). “At no point” did the Framers of the

federal Constitution “suggest[ ] that the federal courts had a role to play.” Rucho,

588 U.S. at __, 139 S.Ct. at 2496, citing Hamilton, The Federalist No. 59. Ohio’s

story is different. The Ohio Constitution assigns this court a role to play in

congressional districting.

{¶ 150} Although we are not willing to say such claims are never

justiciable, we are cognizant that by failing to provide any type of baseline by which

the partisan tilt of a plan is to be measured, the Ohio Constitution vests considerable

discretion in the political branches. This follows for several reasons. First, Article

XIX explicitly vests the primary responsibility for drawing district lines in the

General Assembly. See Section 1(A) (“Except as otherwise provided in this

section, the general assembly shall be responsible for the redistricting of this state

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for congress based on the prescribed number of congressional districts apportioned

to the state pursuant to Section 2 of Article I of the Constitution of the United

States”). Second, our precedent in redistricting cases applies a strong presumption

that a plan is constitutional. Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-

5367, 981 N.E.2d 814, ¶ 22. Indeed, we have even said that “[i]n the absence of

evidence to the contrary, we presume that the [redistricting authority] properly

performed its duties in a lawful manner.” Id. at ¶ 24. Third, the Ohio Constitution

entrusts to us only the “judicial power.” Article IV, Section 1. The legislative

power is reserved to the legislature and to the people through the initiative and the

referendum. Article II, Section 1, Ohio Constitution. Only the people have the

authority to amend our Constitution. Id. at Section 1a. We have no authority to

add terms and requirements to Article XIX that the people have not put there.

{¶ 151} With these principles in mind, we now turn to the question whether

petitioners have met their burden to show that the congressional-redistricting plan

violates Article XIX’s requirement that a plan not “unduly favor[ ] or disfavor[ ] a

political party,” Section 1(C)(3)(a), or “unduly split governmental units,” Section

1(C)(3)(b). Petitioners have failed to establish that the plan violates either provision

under any standard of review, much less the beyond-a-reasonable-doubt standard

that the majority opinion holds is applicable in this case.

B. Undue partisan favoritism

{¶ 152} By any measure, petitioners have failed to meet their burden to

establish a violation of the Constitution’s requirement that a plan not unduly favor

a political party.

{¶ 153} Begin with a point of agreement by all: of Ohio’s 15-seat allotment,

six districts will be “solidly Republican” and two will be “solidly Democratic,”

majority opinion at ¶ 43. The two blue districts encompass Cleveland and

Columbus. The six red districts occupy more rural regions of the state. These eight

nonnegotiable districts are the result of political geography—Republican voters

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disperse more uniformly about the state while Democratic voters cluster in urban

centers—and only an extreme gerrymander could alter this arrangement.

{¶ 154} The present dispute involves the seven remaining congressional

districts. Accompanying the General Assembly’s enacted plan is a statement

declaring that the seven districts in question were drawn to be “competitive.” Our

analysis proceeds as follows: (1) the maximization of competitive districts is a

permissible goal under Article XIX, (2) this plan attempts to create competitive

districts, (3) the General Assembly’s determination of competitiveness was

reasonable, and therefore, (4) the plan does not violate Section 1(C)(3)(a) of Article

XIX.

1. It is permissible to draw competitive districts

{¶ 155} Since the founding, congressional districting has been the province

of state legislatures. See Rucho, 588 U.S. at __, 139 S.Ct. at 2495-2496, 204

L.Ed.2d 931. Article XIX of the Ohio Constitution provides neutral districting

guidelines in Section 2(B) and places additional restrictions on four-year maps in

Section 1(C)(3) but is largely discretion-conferring on the legislature (or

redistricting commission).

{¶ 156} Generally, those seeking to end partisan gerrymandering have

leveled two primary criticisms. First, they claim that partisan gerrymandering

unfairly entrenches one political party in power by drawing lines that maximize that

party’s political representation.

{¶ 157} Second, critics assert that partisan gerrymandering deprives voters

of meaningful elections by creating districts with lopsided majorities of voters of

one political persuasion or the other. Doing so depresses voter interest and turnout

because voters don’t feel as if their votes matter. Drawing districts in this manner

discourages political compromise and leads to increased polarization. This is

because when a district is heavily Democratic or Republican, there is no need from

an electoral standpoint for a candidate (or sitting representative) to appeal to the

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minority. The most important election is often the primary. See Jeffrey S. Sutton,

Who Decides? States As Laboratories of Constitutional Experimentation 18 (2022)

(“If we make nearly 90% of congressional districts safe for one political party or

the other, that makes the party primaries nearly the only elections that matter,

elections that occur long before the first Tuesday after November 1”). Rather than

cater to the median, moderate voter, a candidate (or representative) is incentivized

to appeal only to his or her own political base.

{¶ 158} These criticisms suggest two very different objectives that one

might have in crafting a redistricting plan. To deal with the first, one could try to

create a redistricting map that would ensure something akin to proportional

representation. The idea would be to create a map that guarantees representatives

who mirror as closely as possible the partisan makeup of the state. This is the

objective sought by petitioners in these cases.

{¶ 159} To deal with the second criticism, though, mapmakers would need

to create as many closely divided (or competitive) districts as possible. This is the

objective that the General Assembly purports to have pursued.

{¶ 160} The rub is that to a large degree, the objectives are mutually

exclusive. If mapmakers want to ensure representation that looks like the partisan

makeup of the state, then they need to draw districts that are certain to favor one

side or the other. But if they want to maximize competitive districts, then they need

to draw districts that they aren’t sure which side will win. Rucho, 588 U.S. at __,

139 S.Ct. at 2500, 204 L.Ed.2d 931.

{¶ 161} In this case, the legislative respondents assert that they sought to

maximize competitive districts. The first question we must answer is whether this

is permissible under Article XIX. We are convinced that it is.

{¶ 162} We begin with the obvious. In the abstract, congressional districts

that are competitive, by definition, do not unduly favor or disfavor a political party.

The entire idea behind drawing competitive districts is to afford candidates from

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either party legitimate chances of election, to place the political power with the

electorate, where it belongs.

{¶ 163} Competitive districts are in some ways the opposite of

gerrymandered districts. The prototypical gerrymander involves “packing” certain

districts in order to “crack” others. The stratagem is to concede a few districts by

maximal margins in order to win more districts by narrower margins. In districts

drawn to be competitive, the winner won’t be known until the polls are closed and

the votes tallied. This is democracy as we know it. Competitive districts are widely

considered a laudable objective, the sort of objective voters desire; they do not

unduly favor or disfavor political parties but allow the electorate to elect.

{¶ 164} That is not to say that the text of Article XIX mandates that

mapmakers maximize competitive districts. Indeed, unlike Article XI, Section

6(B), nothing in Article XIX prescribes the General Assembly’s goal in drawing

congressional maps. The Article XIX provisions at issue impose negative

restraints—what not to do. That leaves map-drawers tremendous leeway to target

various goals in executing that function.

{¶ 165} Petitioners’ experts have introduced statistical measures designed

to approximate one concept of fairness. They all use as their baseline the idea that

a plan is fair when it achieves a result that resembles proportional representation.

One such measure is the “efficiency gap”—the comparative measure of wasted

votes, votes cast toward a losing candidate or unnecessarily toward a winning

candidate. See majority opinion at ¶ 63. In a perfectly efficient map, there would

be no wasted votes and proportional representation would be achieved—a party’s

representation in Congress would exactly match its percentage of the statewide

vote. Another measure used by petitioners’ experts is partisan symmetry, an

explicit measure of proportional representation that compares a party’s statewide

vote share to the percentage of districts it holds. We are also told about the “mean-

median gap” and “declination,” other measures that are similarly based on a

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proportional-representation ideal. See id. at ¶ 63 (defining the measures). Had the

General Assembly sought to optimize any or several of these measures, we have

little doubt that such a plan would satisfy constitutional standards. And so too

would a plan that sought to maximize proportionally representative congressional

districts.

{¶ 166} But there is nothing in the Ohio Constitution that mandates any of

these things as a goal. And there is nothing in the Constitution that precludes

mapmakers from seeking to maximize competitive districts. Thus, we conclude

that the General Assembly did not violate the Constitution by prioritizing the

creation of competitive districts over other objectives, such as achieving

proportional representation.

2. The General Assembly pursued competitive districts

{¶ 167} The General Assembly found that the plan contains “seven

competitive districts.” 2021 Sub.S.B. No. 258, Section 3. When the governor

signed the bill, he stated: “With seven competitive congressional districts in the SB

258 map, this map significantly increases the number of competitive districts versus

the [2011] map.” Governor of Ohio News Releases, Governor DeWine Signs

Senate Bill 258, https://governor.ohio.gov/wps/portal/gov/governor/media/news-

and-media/governor-dewine-signs-senate-bill-258-11222021 (accessed Jan. 12,

2022) [https://perma.cc/7QFL-ZSYY]. A majority of both houses of the legislature

joined by the state’s chief executive officer thus agree that the seven districts in

question are competitive.

{¶ 168} The majority asserts that “competitiveness was offered here as a

post hoc rationalization.” Majority opinion at ¶ 45. But nothing in the record backs

that up. Before drawing up the plan, Senate President Huffman and Senators Rob

McColley, Vernon Sykes, and others heard public testimony regarding

congressional redistricting. Among the topics debated was defining “competitive.”

During that debate, a representative of Fair Districts Ohio said: “[T]here are going

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to be tradeoffs. But just because there’s a creation of a few more competitive

districts, that doesn’t mean that those districts aren’t compact, don’t keep counties

together.” Later, Senator Sykes asked another citizen what in terms of percentages

he “consider[ed] to be competitive.” House Speaker Cupp expressed concern that

championing competitive districts might lead to increased polarization within

districts.

{¶ 169} The person primarily responsible for drawing the eventually

enacted map, Raymond DiRossi, stated in a deposition: “[T]here was a tremendous

amount of public testimony about the existence of competitive districts and what

type of range would be used to determine what was a competitive district. And I

know [Senator McColley] had put a lot of thought into that.” Later he explained,

“[T]hat’s the point, that we’re trying to draw competitive districts now; whereas,

the [2011] map doesn’t have them.”

{¶ 170} All of this goes to demonstrate that competitive districts were front

of mind for the General Assembly before and during the map-drawing process. The

majority may prefer a different objective—namely, proportional representation—

but competition within districts is the valid interest respondents have always

asserted to justify the enacted plan.

3. The determination of competitiveness was reasonable

{¶ 171} Still there remains a question of fact whether the seven districts

under review actually are competitive. The majority opinion correctly observes

that Article XIX does not “prescribe[ ]” competitiveness, nor define it, and we are

“forbid[den]” from “adding to the text.” Majority opinion at ¶ 45. Because we

agree with the majority that “Article XIX itself does not * * * provide any

calculable measure for it,” id., competitiveness is not this court’s measure to define.

{¶ 172} We are guided by a “ ‘universally recognized principle’ ” by which

this court has long abided:

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“[A] court has nothing to do with the policy or wisdom of a statute.

That is the exclusive concern of the legislative branch of the

government. When the validity of a statute is challenged on

constitutional grounds, the sole function of the court is to determine

whether it transcends the limits of legislative power.”

Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624, 632, 576 N.E.2d 722 (1991)

(plurality opinion), quoting State ex rel. Bishop v. Mt. Orab Village School Dist.

Bd. of Edn., 139 Ohio St. 427, 438, 40 N.E.2d 913 (1942). Just as with

congressional redistricting, the General Assembly is “entrusted with making

complicated decisions about our state’s educational policy,” 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, ¶ 73. In that realm we have said, “[P]olicy decisions

are within the purview of [the General Assembly’s] legislative responsibilities, and

that legislation is entitled to deference.” Id. That principle of deference to

legislative prerogatives must apply with equal force to the congressional-district

plan before us today.

{¶ 173} The General Assembly chose to define a competitive district as one

within 4 percent of a coin flip. A district with a projected 53-47 partisan split, in

either direction, is considered competitive. A 55-45 split is not. Senator McColley

and Senate President Huffman, the lead sponsors of the districting plan, arrived at

this number after taking considerable public testimony. What’s important for

judicial-review purposes, though, is that plus or minus 4 percent is the range that

the General Assembly as a legislative body countenanced by enacting this map “in

the form of a bill,” Article XIX, Section 1(C)(1), Ohio Constitution.

{¶ 174} In determining the partisan propensity of a district, the drafters of

the enacted plan relied upon a data set (“the FEDEA index”) comprised of all the

statewide federal elections that occurred in the last decade: the 2012, 2016, and

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2020 presidential elections and the 2012, 2016, and 2018 senatorial contests. The

plan also took measures to, when feasible, avoid splitting counties and placing two

incumbents in the same district (“double bunking”).

{¶ 175} The result was a congressional-district plan with seven—the

maximum—competitive districts, by the General Assembly’s definition, with 14

total county splits and one doubly bunked district that contains two incumbents.12

To be thorough, the seven FEDEA competitive districts are District 1 (51.5-48.5%),

District 6 (52.9-47.1%), District 9 (47.7-52.3%), District 10 (52.2-47.8%), District

13 (48.6-51.4%), District 14 (53.2-46.8%), and District 15 (53.7-46.3%). Of the

seven competitive districts, two are plus or minus 2 percent, five are plus or minus

3 percent, and all are plus or minus 3.75 percent. And Democratic candidates have

fared well recently in these seven competitive districts. Out of the six statewide

federal elections since 2012, a Democratic candidate has won in each district, in

some districts securing more than 59 percent of the vote. Competitive indeed.

{¶ 176} For reference, the other plans presented to the legislature included

fewer competitive districts. The House and Senate minority party offered separate

plans, each with just five competitive districts.

{¶ 177} Petitioners respond that plus or minus 4 percent is an arbitrary

measure of competitiveness and that FEDEA is not the best index. On the first

score, of course the measure (like any such measure) contains a degree of

arbitrariness. That is precisely why judicial intervention is unwarranted. The

General Assembly, this state’s policymaking body, chose that range. We have no

authority or competence to monitor the dividing line between competitive and not.

Would a plus-or-minus-3-percent boundary have produced more competition? Of

course. Does the Constitution mandate that? Of course not.

12. Two congressmen currently live in the new District 1, but Congressman Brad Wenstrup has

announced that he will contend for the District 2 seat. No Democratic congressmen were double

bunked.

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{¶ 178} The General Assembly purported to draw seven competitive

districts and defined competitive as within 4 percent of 50/50. All that we as judges

can say is that based on the record before us, using plus or minus 4 percent as the

determinative measure was not unreasonable. Had the General Assembly chosen

an inflated number, say plus or minus 15 percent, then we could fairly intervene to

call it unreasonable as a matter of law to define as “competitive” a projected 65-35-

percent district. We must remember that the FEDEA index supplies ex ante

projections, not ex post results. The index does not take into account the relative

political experience and ability of the candidates running vis-à-vis the past

elections, changes to national and statewide circumstances and attitude, party

platform, control over the White House, and dozens of additional factors—all the

way down to gas prices—that can sway a given election regardless of what the data

predict. To this point, one expert reports that “in the 2020 congressional election,

the actual results in Ohio’s sixteen congressional districts varied, on average, by

5.8 percentage points from the average of the 2011-2020 partisan index,” including

variances upwards of 15 percentage points. Exhibit No. 36, Expert Report of Dr.

Michael Barber at 18.

{¶ 179} And lawmakers routinely make line-drawing decisions akin to the

plus-or-minus-4-percent line. Think budgetary decisions. The General Assembly

allocates funds. Is the decision to allocate $1 million instead of $1.2 million

“arbitrary” in one sense of the word? Yes. But is it arbitrary in the judicial-review

sense—i.e., arbitrary and capricious as a matter of law? Again, of course not. Or

think speed limits. Why 35 miles per hour and not 30? Why is 270 days the

statutory limit to conduct a speedy felony trial? See R.C. 2945.71(C)(2). Why not

250 days? The point is this: drawing policy-oriented lines is at the heart of the

legislative power. Vieth, 541 U.S. at 291, 124 S.Ct. 1769, 158 L.Ed.2d 546. Save

for unreasonableness, the judiciary is to steer clear.

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{¶ 180} The majority and petitioners do not contend, and experts have not

reported, that 4 percent is too wide a margin to qualify as competitive. Suffice it to

say that defining “competitive” as within 4 percent of dead even is not unreasonable

as a matter of law.

{¶ 181} Then comes the refrain that the FEDEA index is flawed, that other

indices provided a more accurate account of where voter sentiments lie. The chief

complaint seems to be that by using only federal elections, the index omits the

statewide elections that occurred in 2014. But we are hard-pressed as judges to say

that the legislature was wrong in choosing to use federal-election data to predict

voter tendencies in federal elections. Indeed, one might reasonably argue that

including 2014 state-election data would skew the data set. After all, that year it

was revealed that the Democratic gubernatorial candidate did not have an Ohio

driver’s license,13 leading to an election in which he received only 33 percent of the

vote.14 The down-ballot races followed suit with the Democratic candidates for

attorney general, secretary of state, treasurer, and auditor receiving 38.5, 35.5, 43.4,

and 38.3 percent, respectively. 2014 Elections Results,

https://www.ohiosos.gov/elections/election-results-and-data/2014-elections-

results/?__cf_chl_jschl_tk__=5BNyaJhQ5eJBu.i7qqj_uZJzFJrSNgYduJ.hClWxz

vA-1641919620-0-gaNycGzNCP0 (accessed Jan. 12, 2022).

{¶ 182} Importantly, in contrast to Article XI, which tells the redistricting

commission exactly what type of election data to use in drawing a General

Assembly-district plan, see Article XI, Sections 6(B) and 9(D)(3)(c)(i), Ohio

Constitution, the congressional-redistricting amendment, Article XIX, is silent on

13. See https://www.toledoblade.com/State/2014/08/06/Ohio-candidate-lacked-driver-s-license-

for-decade.html (accessed Jan. 12, 2022) [https://perma.cc/S7HM-YWVW].

14. See https://www.ohiosos.gov/elections/election-results-and-data/2014-elections-results/?

__cf_chl_jschl_tk__=5BNyaJhQ5eJBu.i7qqj_uZJzFJrSNgYduJ.hClWxzvA-1641919620-0-

gaNycGzNCP0 (accessed Jan. 12, 2022).

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that issue. The point is not that we need to resolve the debate about whose data set

is better but, rather, that this is exactly the kind of question that is entrusted to the

General Assembly, not to the courts.

{¶ 183} Drs. Christopher Warshaw, Kosuke Imai, and Jowei Chen all say

that the plan could have been even more competitive. No doubt this is true. But

bring in any group of expert economists, and they will tell you that the tax code is

suboptimal. Environmental scientists will report that the pollution laws are

inadequate. And criminologists will demonstrate that the sentencing laws do not

minimize recidivism.

{¶ 184} Legislating is—and was designed to be—an act of give-and-take,

compromise. See Hamilton, The Federalist No. 85. The question we must answer

is not whether the plan is optimally competitive. It is whether the plan is sufficiently

competitive to avoid violating the Constitution’s prohibition of undue favoritism.

And we are guided by the principles of legislative deference this court has long

honored in policy-oriented matters.

{¶ 185} The General Assembly determined that the FEDEA data comprise

an appropriate index of district competitiveness. And it gave its reasons. The

FEDEA index (which, recall, factors in recent statewide elections to federal office)

was used because the plan is for a federal election. The General Assembly chose a

data set that is smaller but, in its determination, more precise than others available.

Electoral data including statewide elections to state offices risked incorporating

inputs irrelevant to federal elections: purely local voter motivations. Presidents and

senators face the same issues with which U.S. representatives must grapple, but that

is not the case for governors and state auditors.

{¶ 186} We cannot say that the General Assembly acted unreasonably by

enacting a plan based on the FEDEA index. The Constitution does not prohibit the

legislature from making the determination that it made. That leaves us no reason

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to quibble with the legislature’s determination that the plan creates seven

competitive districts.

4. The majority’s flawed analysis

{¶ 187} Our deferential approach looks nothing like the majority’s. This is

because the majority undertakes the legislative act of evaluating the plan from a

policy-oriented perspective, not a legal one. The majority’s approach is

undergirded by an “instinct” that proportionality is the essence of fairness, Rucho,

588 U.S. at __, 139 S.Ct. at 2499, 204 L.Ed.2d 931. But, as we have explained,

nothing within Article XIX mandates proportional representation as a standard

against which a plan should be measured. To the contrary, proportional

representation is a “ ‘norm that does not exist’ in our electoral system” generally,

id., quoting Davis v. Bandemer, 478 U.S. 109, 159, 106 S.Ct. 2797, 92 L.Ed.2d 85

(1986) (O’Connor, J., concurring), or in Article XIX specifically. In assuming that

proportional representation is the ideal, the majority ignores the fact that such a

norm “comes at the expense of competitive districts and of individuals in districts

allocated to the opposing party,” id. at __, 139 S.Ct. at 2500. The General

Assembly and respondents never proclaimed to have sought proportionality; they

pursued the alternative but equally permissible goal of competitive districts.

{¶ 188} The majority concludes that the plan favors the Republican Party

unduly—to a degree “exceeding what is warranted by Article XIX’s line-drawing

requirements and Ohio’s political geography,” majority opinion at ¶ 41—by

looking across an array of measures: expected performance, treatment of selected

counties, and statistical measures of partisanship. We are not told which one of

these considerations is conclusive but are told to trust that taken altogether, the map

is unconstitutional.

{¶ 189} As far as the plan’s expected performance, the majority highlights

expert reports submitted by petitioners that it claims show that “the enacted plan is

not nearly as competitive as Senate President Huffman and House Speaker Cupp

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claim that it is.” Id. at ¶ 46. It cites reports of three of petitioners’ experts that

predict that Republicans will win 12 seats under the plan and another report

predicting that Republicans will win 11 seats. Some experts factored in an

“incumbency advantage” in their predictions. (One has to wonder about the logic

that says a district should not be characterized as “competitive” because it contains

an incumbent who is popular with voters in a district.) Two of the experts cited by

the majority prepared simulated maps that they contend show that the enacted plan

is a statistical outlier favoring Republicans. None of these maps, however, have

been submitted as part of the record, so we are little able to evaluate them. Another

flaw, most of these experts used election results from statewide elections instead of

the FEDEA data set relied on by the legislature.

{¶ 190} The majority leans heavily on the expert report of the Harvard

statistician Dr. Imai, for his report is based on the FEDEA index. But Dr. Imai’s

report suffers a more fundamental defect. His hypothetical districts were not

equipopulous. In generating 5,000 simulated maps based on FEDEA data, Dr. Imai

allowed for up to “0.5% deviation from population parity,” or roughly a 4,000-

person variance. Expert Report of Kosuke Imai, Ph.D. In accordance with Article

XIX, Section 2(A)(2), however, the General Assembly constructed districts varying

by no more than one person—that’s a 0.00013% deviation, one ten-thousandth of

a percentage point. Achieving absolute population equality in congressional

districts is, after all, a “paramount objective of apportionment.” Karcher v.

Daggett, 462 U.S. 725, 732-733, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). To

compare Dr. Imai’s maps to the enacted plan (as is central to the majority’s

analysis) is rather like comparing watermelons to walnuts.

{¶ 191} Abruptly, the majority transitions from summarizing the expert

evidence to announcing that it “conclude[s] that the body of petitioners’ various

expert evidence significantly outweighs the evidence offered by respondents as to

both sufficiency and credibility, compelling beyond any reasonable doubt the

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conclusion that the enacted plan excessively and unwarrantedly favors the

Republican Party and disfavors the Democratic Party.” Majority opinion at ¶ 51.

This is not legal analysis; it is cherry-picking evidence from an expansive record to

meet policy preferences, crediting it, and regurgitating the language of a generic

holding based on an illegitimate legal standard. More is required.

{¶ 192} Indeed, the majority’s focus on expected performance underscores

that it is simply assessing the plan for how closely it comes to achieving

proportional representation. The expert reports pertaining to expected performance

are couched as “conclusions” but are better described as informed predictions. The

unspoken reality is that the majority clings to expected-performance reports

because they predict that statewide votes per party may not perfectly correlate with

seats elected per party. But the Constitution does not require such a correlation.

The majority also fails to account for the fact that political geography dictates the

outcome of eight out of 15 districts. Moreover, because the seven remaining

districts are competitive, there is no guarantee that even the predictions of experts

will turn out to be accurate.

{¶ 193} With respect to competitiveness, these extrapolations at most

establish that the districts could have been more competitive. Nowhere do the

reports establish that the enacted districts are uncompetitive. To do so would

require evidence that a 4 percent variance is too wide or the FEDEA data too

misleading. Even Dr. Imai’s flawed report, in which the majority is so heavily

leveraged, does not refute that seven districts are competitive; it simply suggests

that Republican candidates may win a number of these competitive districts.

{¶ 194} Next, the majority states that the splits of Cuyahoga, Franklin, and

Hamilton Counties unduly favor the Republican party. Dr. Imai reports that in

Hamilton County, the Democratic vote share is cracked across three districts. Drs.

Chen and Rodden explain that these splits are not necessary. The question,

however, is whether they are permissible. The majority’s primary complaint is that

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the strongly Democratic city of Cincinnati is in a district that contains the entirety

of Warren County. But there is a perfectly valid justification for this: the Ohio

Constitution requires an “attempt to include at least one whole county in each

congressional district.” Article XIX, Section 2(B)(8).

{¶ 195} Maybe the predictions made by petitioners’ experts will turn out to

be correct and the incumbent Republican congressman will win reelection in

District 1. The question, however, is whether the party is favored unduly. The

answer is obviously no: District 1 is “hyper” competitive, with the FEDEA data

showing a slight 51.5 to 48.5 percent Republican advantage. Indeed, President

Biden won District 1 by 0.9 percent in 2020. District 1 is up for the taking.

{¶ 196} Dr. Rodden also claims, as the majority puts it, that the plan “carves

up the Black community in Cincinnati.” Majority opinion at ¶ 56. Petitioners have

not, however, asserted a racial-gerrymandering claim under the framework required

by Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).

{¶ 197} As we consider in detail below, the majority makes similar

arguments regarding the splits of Cuyahoga and Franklin Counties. In the end, the

General Assembly explained why it split the counties the way it did: to make seven

districts competitive. The majority seems to prefer proportional representation over

competitive districts, but proportionality is not prescribed in Article XIX.

{¶ 198} Finally, and as stated above, statistical measures like efficiency

gap, mean-median gap, declination, partisan symmetry, and others are perfectly

informative data measures. They tell a useful story about how closely an enacted

plan achieves an ideal of proportional representation. But they are not in the

Constitution. The General Assembly had no obligation, only the option, to use

these fancy metrics. It chose, instead, to pursue competitive districts, which was

its prerogative.

{¶ 199} Summing all this up: competitive districts do not unduly favor or

disfavor a political party. The General Assembly enacted a plan with what it

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considers to be seven competitive districts. Its definition of competitive (plus or

minus 4 percent) is not unreasonable. Neither is the data it used to calculate

variance (FEDEA). We have no basis to pronounce that the enacted plan

“transcends the limits of legislative power,” Bishop, 139 Ohio St. at 438, 40 N.E.2d

913. Despite everything the majority says today, petitioners have not established

that the congressional-district plan unduly favors or disfavors a political party in

contravention of Article XIX, Section 1(C)(3)(a).15 The General Assembly,

therefore, is entitled to the last word on this quintessential policy matter.

C. Undue division of governmental units

{¶ 200} Article XIX, Section 1(C)(3)(b) prohibits the General Assembly

from unduly splitting governmental units when it enacts a congressional-district

plan by a simple majority vote. That provision states:

If the general assembly passes a congressional district plan

under division (C)(1) of this section by a simple majority of the

members of each house of the general assembly, and not by the vote

described in division (C)(2) of this section [i.e., three-fifths majority

with at least one-third of the members of each of the two largest

political parties in the house], all of the following apply:

***

(b) The general assembly shall not unduly split

governmental units, giving preference to keeping whole, in the order

named, counties, then townships and municipal corporations.

Section 1(C)(3).

15. The majority does not address the treatment of incumbents, so neither do we.

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{¶ 201} The majority’s reasoning that the congressional-district plan

adopted by the General Assembly unduly splits counties is flawed for several

reasons: first, it relies on evidence of partisan favoritism and lack of compactness

even though those are the subject of other provisions; second, it looks at county

splits in isolation without considering them in the context of the division of other

governmental units (townships and municipalities); third, it disregards Section

2(B)(5), which allows the General Assembly to split five counties more than once;

fourth, it ignores evidence that the congressional-district plan does not unduly split

governmental units; and lastly, the plan’s division of Hamilton, Summit, Franklin,

and Cuyahoga Counties is supported by the neutral map-making criteria of Section

2.

{¶ 202} Article XIX, Section 1(C)(3) imposes three limits on a

congressional-district plan that is not passed by a sufficiently bipartisan vote. Such

a plan may not (1) “unduly favor[ ] or disfavor a political party or its incumbents,”

Section 1(C)(3)(a), or (2) “unduly split[ ] governmental units,” Section 1(C)(3)(b),

and (3) the General Assembly must attempt to draw compact districts, Section

1(C)(3)(a). The majority, however, conflates these three limitations by concluding

that a plan unduly splits governmental units if the line drawing appears to give

undue partisan advantage and to result in noncompact districts. But undue partisan

advantage and lack of compactness cannot be the measure of whether governmental

units have been unduly split, because it would render the separate limitations

imposed by Section 1(C)(3) redundant. “[E]ffect should be given to every part of

the instrument as amended, and in the absence of a clear reason to the contrary no

portion of a written Constitution should be regarded as superfluous.” Steele,

Hopkins & Meredith Co. v. Miller, 92 Ohio St. 115, 120, 110 N.E. 648 (1915).

{¶ 203} The majority’s analysis also fails to give effect to Article XIX,

Section 2(B)(5). That provision states that “[o]f the eighty-eight counties in this

state, sixty-five counties shall be contained entirely within a district, eighteen

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counties may be split not more than once, and five counties may be split not more

than twice. The authority drawing the districts may determine which counties may

be split.” Not only does the plain language of Section 2(B)(5) vest the General

Assembly with express authority to determine which counties should be split, but

it also tells the legislature how many counties it may split once or twice.

{¶ 204} The majority claims that county splits may be undue under Section

1(C)(3)(b) even if they fall within the express authority to divide up to five counties

twice as granted by Section 2(B)(5). But this analysis is flawed. First, the majority

improperly again reads Section 1(C)(3)(a)’s prohibition on undue partisanship into

Section 1(C)(3)(b), stating that Section 1(C)(3)(b) prohibits county splits that

“confer a partisan advantage on the party drawing the plan,” majority opinion at

¶ 60. That is, under the majority’s reasoning, Section 1(C)(3)(b) means that “[t]he

general assembly shall not unduly split governmental units by unduly favoring or

disfavoring a political party or its incumbents, giving preference to keeping whole,

in the order named, counties, then townships and municipal corporations.” We lack

the power to add this italicized language to the Constitution under the guise of

judicial interpretation. See Braddock v. Pub. Util. Comm., 137 Ohio St. 59, 65, 27

N.E.2d 1016 (1940). Rather, the authority to amend the Ohio Constitution is

reserved to the people of this state under Article XVI, Section 1.

{¶ 205} Second, in purporting to harmonize Sections 1(C)(3)(b) and

2(B)(5) of Article XIX, the majority fails to appreciate that these provisions are

worded differently. Section 1(C)(3)(b) prohibits the undue division of

governmental units; a county is only one type of governmental unit. Section

1(C)(3)(b) also applies to municipal corporations and townships. Section 2(B)(5),

on the other hand, specifically addresses the division of counties. Different words,

of course, signal a different meaning. See Obetz v. McClain, 164 Ohio St.3d 529,

2021-Ohio-1706, 173 N.E.3d 1200, ¶ 21. And in the event of a conflict, a more

specific provision like Section 2(B)(5) controls over a more general provision like

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Section 1(C)(3)(b). See State ex rel. Maxcy v. Saferin, 155 Ohio St.3d 496, 2018-

Ohio-4035, 122 N.E.3d 1165, ¶ 10. For this reason alone, because the plan divides

fewer than five counties twice, it cannot violate Section 1(C)(3)(b)’s prohibition on

unduly splitting governmental units.

{¶ 206} Section 1(C)(3)(b) focuses on whether a congressional-district plan

unduly splits governmental units—counties, municipalities, and townships. It is

therefore not possible to look at individual county splits in a vacuum, as the

majority does. This provision does not say that the General Assembly shall not

unduly divide any individual county, municipality, or township, but rather, it

provides that “[t]he general assembly shall not unduly split governmental units,”

with units expressed in the plural. That means we have to consider the division of

governmental units in the context of the statewide plan as a whole to determine

whether the splits are undue, and counties are only one part of the analysis. Yet the

majority examines only 4 of the 12 county splits, and the division of townships and

municipalities does not factor into its analysis at all. How can the majority

reasonably decide that the congressional-district plan “unduly splits governmental

units,” Section 1(C)(3)(b), without considering all the governmental-unit splits

made in that plan? Plainly, it cannot.

{¶ 207} Consider for a moment that the enacted plan contains 14 splits in

relation to counties. (Twelve counties are split, with two of those being split twice.)

Now consider that there are 15 districts in the state. In order to have 15 districts

that are evenly populated (i.e., with 786,629 or 786,630 people), one must split at

least 14 counties. That is because there is no way to group whole contiguous

counties and end up with even one district that adds up to exactly 786,629 or

786,630. Each district must contain a divided county. Because one county can be

divided into two districts, the minimum possible number of splits is 14 (the total

number of districts minus one). Think of it this way: a train c

This text is long and has been trimmed here. Open the source document for the complete record.