The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-
1235.]
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-1235
LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING
COMMISSION ET AL.
BENNETT ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
OHIO ORGANIZING COLLABORATIVE ET AL. v. OHIO REDISTRICTING
COMMISSION ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm.,
Slip Opinion No. 2022-Ohio-1235.]
Redistricting—Original actions under Ohio Constitution, Article XI—The Ohio
Redistricting Commission’s third revised plan violates Article XI, Sections
6(A) and 6(B) of the Ohio Constitution—Third revised plan is invalid—The
Ohio Redistricting Commission shall be reconstituted, convene, and draft
and adopt an entirely new plan in conformity with the Ohio Constitution.
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted April 8, 2022—
Decided April 14, 2022.)
ORIGINAL ACTIONS filed pursuant to Ohio Constitution, Article XI, Section 9.
SUPREME COURT OF OHIO
_________________
Per Curiam.
I. INTRODUCTION
{¶ 1} For the fourth time, we are called upon to consider the validity of a
General Assembly–district plan adopted by respondent Ohio Redistricting
Commission. The commission adopted three General Assembly–district plans
between September 2021 and February 2022. We invalidated each of those plans
because they did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio
Constitution. See League of Women Voters of Ohio v. Ohio Redistricting Comm.,
___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, ¶ 2 (“League I”); League of
Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-
342, ___ N.E.3d ___, ¶ 67-68 (“League II”); League of Women Voters of Ohio v.
Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___,
¶ 2 (“League III”). Each time, we ordered the commission to be reconstituted and to
adopt a new plan in conformity with the Ohio Constitution. League I at ¶ 138; League
II at ¶ 67; League III at ¶ 44. In League III, we ordered the commission to draft and
adopt an entirely new General Assembly–district plan by March 28, 2022. League
III at ¶ 44-45.
{¶ 2} The commission adopted its fourth plan—the “third revised plan”—on
March 28. Petitioners1 have filed objections to that plan, arguing that it violates the
standards of Article XI, Sections 6(A) and 6(B). We hold that petitioners have
shown beyond a reasonable doubt that the third revised plan violates Article XI,
1. Petitioners in Supreme Court case No. 2021-1193 are the League of Women Voters of Ohio, the
A. Philip Randolph Institute of Ohio, and six individual voters: Tom Harry, Tracy Beavers, Valerie
Lee, Iris Meltzer, Sherry Rose, and Bonnie Bishop. Petitioners in Supreme Court case No. 2021-
1198 are ten individual voters: Bria Bennett, Regina C. Adams, Kathleen M. Brinkman, Martha
Clark, Susanne L. Dyke, Carrie Kubicki, Meryl Neiman, Holly Oyster, Constance Rubin, and
Everett Totty. Petitioners in Supreme Court case No. 2021-1210 are the Ohio Organizing
Collaborative, the Ohio chapter of the Council on American-Islamic Relations, the Ohio
Environmental Council, and six individual voters: Pierrette Talley, Samuel Gresham Jr., Ahmad
Aboukar, Mikayla Lee, Prentiss Haney, and Crystal Bryant.
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Sections 6(A) and 6(B). We again order the commission to be reconstituted and to
adopt a new plan in conformity with the Ohio Constitution. We decline to order
the other remedies that petitioners seek in their objections.
II. BACKGROUND
A. The commission retains independent map drawers
{¶ 3} In League III, we noted, “The commission has adopted three plans so
far, but it still has not drafted one.” (Emphasis sic.) Id. at ¶ 25. The previous plans
had been drafted by staff members of the offices of respondents President of the
Senate Matt Huffman and Speaker of the House Robert Cupp, who controlled the
process and did not allow the Democratic members of the commission to participate
in the creation of the plans. Id. at ¶ 25, 27, 30. We said that “[t]he commission should
retain an independent map drawer—who answers to all commission members, not
only to the Republican legislative leaders—to draft a plan through a transparent
process.” Id. at ¶ 30. We also said that “the drafting should occur in public and the
commissioners should convene frequent meetings to demonstrate their bipartisan
efforts to reach a constitutional plan within the time set by this court.” Id. at ¶ 44.
{¶ 4} On March 18, two days after we decided League III, __ Ohio St.3d __,
2022-Ohio-789, __ N.E.3d __, Ohio Attorney General Dave Yost issued a
memorandum to the commission proposing a framework for complying with our
decision. In it, the attorney general noted our language in League III suggesting that
the commission “should” retain an independent map drawer. The attorney general
recognized that we “used ‘should’ and not ‘shall’ ” but nevertheless advised the
commission that “it would be wise to treat this suggestion with the degree of
deference one might pay to the suggestions of one’s spouse.” Accordingly, the
attorney general recommended hiring a “bipartisan duo” of consultants whose
“charge should be simply to produce a map that complies with the Ohio Constitution
and the orders of the Ohio Supreme Court.”
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SUPREME COURT OF OHIO
{¶ 5} In response to League III, the commission met on Saturday, March 19,
and discussed different options for going forward. Its ideas included (1) having the
map drawers for the Republican and Democratic legislative caucuses—which
included Ray DiRossi and Blake Springhetti, who are employees of the Republican
legislative caucuses, and Chris Glassburn, who is a consultant retained by the
Democratic legislative caucuses—work together to draw a new district plan, (2)
hiring mediators or independent map drawers, including the two suggested by the
attorney general,2 or (3) combining those approaches. The commission delegated to
its cochairs, respondents House Speaker Cupp, who is a Republican commission
member, and Senator Vernon Sykes, who is a Democratic commission member, the
task of recommending independent map drawers and mediators. The commission
also decided that in the interim, the map drawers for the legislative caucuses and staff
for each commission member would meet to discuss how they could work with
independent map drawers. Thus, it became clear to anyone following the
commission’s proceedings that the commission had accepted this court’s and the
attorney general’s recommendations to engage independent map drawers to craft a
General Assembly–district plan.
{¶ 6} At the commission’s next meeting, on Monday, March 21, Senator
Sykes recommended Dr. Michael McDonald, a professor at the University of Florida,
to serve as an independent map drawer. House Speaker Cupp recommended Dr.
Douglas Johnson, the president of National Demographics Corporation, to serve as
2. The attorney general’s March 18 memorandum to the commission stated that he had already
retained two consultants who had collaborated to produce maps for the state of Virginia and were
prepared “to go to work immediately” for the commission. The duo consisted of Sean Trende, a
Republican analyst with the political-news website RealClearPolitics, and Bernie Grofman, a
Democratic professor of political science at the University of California at Irvine. Respondent House
Minority Leader Allison Russo expressed concern that Trende had served as a consultant for
respondents in this litigation. But after speaking with Grofman and Trende, Leader Russo and Senator
Sykes were in favor of the commission’s engaging them, as suggested by the attorney general.
However, Senate President Huffman later indicated that the two experts either were not available or
were unwilling to travel to Ohio to complete the work.
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January Term, 2022
the other independent map drawer. Both individuals had previously consulted on
redistricting issues in other states. The commission unanimously voted to approve
the hiring of Dr. McDonald and Dr. Johnson as independent map drawers. The
commission agreed to pay Dr. McDonald and Dr. Johnson each at an hourly rate of
$450, plus their related expenses, capped at $49,000 each.
B. The commission meets daily and livestreams the map-drawing process
1. The March 22 meeting
{¶ 7} On Tuesday, March 22, the commission decided on a daily meeting
schedule through Saturday, March 27. The commission then unanimously approved
retaining two mediators employed by the United States Court of Appeals for the Sixth
Circuit. The commission members discussed instructions for the independent map
drawers—who would be arriving the following day—but could not come to an
agreement regarding the instructions and decided to continue that discussion at the
next meeting.
2. The March 23 meeting
{¶ 8} Dr. McDonald and Dr. Johnson appeared at the Wednesday, March 23
meeting and introduced themselves to the commission. The commission members
engaged in a lengthy discussion about written instructions for the independent map
drawers and adopted 24 “Ground Rules.” Among other things, the rules specified
that the independent map drawers were to draft the district plan at the commission’s
direction and in conformity with Article XI and this court’s prior decisions, draft an
entirely new plan without considering prior plan proposals or previous work product,
and provide regular updates to the commission at its scheduled meetings. The rules
also provided a process for resolving any disputes between Dr. McDonald and Dr.
Johnson, including mediation if the commission were unable to unanimously resolve
the dispute. In addition, the rules specified that all map drawing would occur in a
designated room at the statehouse and would be livestreamed by the Ohio Channel.
The commission members were expected to provide feedback and guidance to the
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map drawers at commission meetings. Also, each commission member and their
staff would have unlimited access to the map drawers, so long as the map drawers
were not separately contacted.
3. The March 24 meeting
{¶ 9} The independent map drawers began working on Thursday, March 24.
Their workroom was livestreamed so that the public could observe the process.
During the March 24 commission meeting, Dr. McDonald and Dr. Johnson updated
the commission on their progress, which, after some technical delays, had included
drafting potential House districts in Franklin County. The map drawers sought
guidance from the commission on a few issues, including how it wanted them to
define a “toss up” district. Although several commission members opined on how
they would define such a district, the commission did not reach an agreement.
Senator Sykes said that the commission would get back to the independent map
drawers on that issue. Near the end of the meeting, Senator Sykes noted that
livestreaming the map-drawing process and the commission’s open discussion about
map-drawing principles were “historic” for Ohio and the nation.
4. The March 25 meeting
{¶ 10} On Friday, March 25, the independent map drawers presented to the
commission preliminary draft maps of potential House districts in Franklin and
Union Counties; Cuyahoga, Lake, and Summit Counties; and Hamilton County. The
map drawers acknowledged that they had not yet started on Senate maps. Some of
the commission members had questions and comments for the map drawers. For
example, respondent Auditor of State Keith Faber expressed concerns about the
shapes of the districts in the maps and said that the map drawers should focus not
only on Article XI, Section 6(B)’s “mystery ratio”—i.e., the proportionality
standard—but also on Article XI’s other requirements, including Section 6(C)’s
compactness requirement. Both map drawers indicated that they hoped to have
complete drafts to the commission by Saturday afternoon.
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January Term, 2022
5. The March 26 meeting
{¶ 11} At the Saturday, March 26 meeting, the independent map drawers
reported that they had created two sketches of district plans for the commission’s
consideration. One of the sketches included both a House map and a Senate map,
while the second sketch included only a House map. Dr. McDonald said that both
sketches were proportional—meaning that the House maps had 45 Democratic-
leaning House seats and 54 Republican-leaning House seats.
{¶ 12} Senate President Huffman moved the commission to insert the
addresses of the 33 Senate members into the maps and requested that the map drawers
consider those addresses in the map-drawing process. Senate President Huffman
acknowledged that such considerations were not constitutionally required but
explained why he thought they were important. Specifically, he noted that 16 current
senators are in midterm and are therefore constitutionally entitled to serve out their
terms; the goal, he said, should be to ensure that those senators continue to reside in
the districts they represent. He further said that for the 17 remaining Senate seats, 11
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senators are seeking reelection and had already filed candidacy petitions.3 4 It should
also be a commission goal, Senate President Huffman said, to draw those senators
into a district in which they can seek reelection—i.e., not into a district currently
represented by a senator in midterm.
{¶ 13} Senator Sykes and House Minority Leader Russo objected to adding
incumbents’ addresses to the maps, and House Minority Leader Russo cited this
court’s observation in League III that protecting incumbents is not grounded in
Article XI. See ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 37-38.
But Auditor Faber said that there is value in incumbency and that although protecting
incumbents is not a “primary constitutional factor,” the map drawers should avoid
placing incumbents together “where [they] can.” House Speaker Cupp agreed that
the map drawers should make every effort to avoid drawing incumbents together
when it was possible to do so without violating other constitutional requirements.
The commission members agreed to take the issue to mediation.
3. However, by this time, respondent Secretary of State Frank LaRose had already issued Directive
No. 2022-31, dated March 23, 2022, instructing the boards of elections as follows: “Candidates’
petitions for Ohio House, Ohio Senate, or State Central Committee were certified based on the
February 24, 2022 General Assembly district plan. Due to the Supreme Court’s decision in [League
III], by operation of law, a board’s decision to certify or reject those candidates’ petitions for the
May 3, 2022 Primary Election is null and void. Board members must acknowledge this on the
record at their next board meeting.” (Emphasis added.) Secretary of State Directive No. 2022-31,
at 2, Instruction III: “Consequence for Certified Candidates for Ohio House, Ohio Senate, and State
Central Committee.”
Secretary of State directives are issued pursuant to R.C. 3501.05(B) and 3501.053, and
boards of elections are legally bound to carry out elections consistently with these directives. R.C.
3501.11(E). Thus, Senate President Huffman’s suggestion that the map drawers should aim to
protect incumbent senators who had already filed petitions was baseless. These senators’
candidacies had already been invalidated by another member of the redistricting commission—the
secretary of state—because their petitions had been filed in districts determined to be
unconstitutional by this court.
4. Further, consideration of already-filed petitions for districts deemed unconstitutional was, in
effect, a violation of the “Ground Rules” for the independent map drawers, which prohibited them
from including or considering General Assembly–district plans or proposals created before March
23, 2022.
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January Term, 2022
{¶ 14} The independent map drawers sought guidance from the commission
on several issues. They again asked for clarification about how to define a toss-up
district for purposes of determining whether there is a disparity in the number of such
districts between the two political parties. After some discussion, the commission
agreed to add that issue to the mediation list. At one point in the meeting, Dr. Johnson
said that in their “quest to get as close to symmetry” as possible, they were “kind of
blowing through compactness.” He asked what balance they were supposed to strike
between symmetry and compactness. Auditor Faber again cautioned the map
drawers not to focus solely on Article XI, Section 6(B) but to also comply with
Sections 6(A) and 6(C). In the end, the commission members expressed that it was
difficult to answer the map drawers’ questions without having a complete and
consolidated district plan before them.
6. The March 27 meeting
{¶ 15} On March 27—one day before this court’s deadline for submitting a
new plan—Dr. McDonald and Dr. Johnson presented three district plans to the
commission: two drafted by Dr. McDonald and a third drafted by Dr. Johnson. They
indicated that they had not yet had the chance to consolidate their ideas into one
unified proposal and that they were still seeking the commission’s guidance on
outstanding issues. Dr. Johnson again noted a trade-off between achieving symmetry
of toss-up districts and drawing compact districts and expressed his preliminary
belief that creating more Republican-leaning toss-up districts would lead to a less
compact plan. Dr. McDonald disagreed and said that there was no trade-off, noting
that his sketch achieved exact symmetry of toss-up districts and was more compact
than Dr. Johnson’s. But in response to questions from Auditor Faber about splitting
cities into multiple House districts, Dr. McDonald acknowledged that the “puzzle
pieces don’t fit together very well” and that “the geography is extremely challenging
in Ohio.”
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SUPREME COURT OF OHIO
{¶ 16} After lengthy discussion and a recess, some commission members
offered suggestions in response to the map drawers’ questions about which counties
should be paired together. But the commission did not decide any issue by a formal
vote. Several members indicated that they needed more information and did not want
to vote on how certain areas should be drawn without understanding the ramifications
for other parts of the state.
{¶ 17} In addition, House Speaker Cupp advised the map drawers that the
commission had reached a mediated resolution about the issue of considering
incumbents. Senate President Huffman read a mediation agreement that provided
the following:
Upon completion of the independent map drawers’ merger of
their independent versions of the House and Senate maps and prior to
any presentation to the Commission, the independent map drawers
shall consider the residence locations of non-term limited House and
Senate incumbents, and Senate incumbents in mid-term, in drafting a
Commission map, and where possible without violating
constitutional principles, avoid pairing incumbents and also drawing
districts such that Senators protected under Section 5 of Article 11 no
longer live in the district they represent.
Incumbents will be identified as House or Senate and no other
identifying information shall be used.
The commission unanimously adopted the mediation agreement. But later in the
meeting, Senate President Huffman and Senator Sykes disagreed about its meaning.
C. Senate President Huffman proposes an alternative plan
{¶ 18} The commission next met on the morning of Monday, March 28. Dr.
McDonald and Dr. Johnson reported that they had merged their maps to create a
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unified proposed district plan. The plan, they said, was proportional for both the
House and the Senate. With respect to the symmetry of toss-up districts, the plan had
three Democratic-leaning and three Republican-leaning House districts with vote
shares between 50 and 52 percent and two Democratic-leaning and zero Republican-
leaning Senate districts with a vote share between 50 and 52 percent. They also
reported that Dr. McDonald had started cleaning up splits of cities and townships and
that Dr. Johnson had finished importing incumbents’ addresses into their system.
They planned to consider the incumbency issues next.
{¶ 19} The commission met again in the late afternoon that day. Dr. Johnson
reported that they had adjusted most of the House map—except in northeast Ohio—
to avoid incumbent pairings. They had not yet tackled the incumbency issues in the
Senate, however, and said they would need a couple more hours. Dr. Johnson said
that they were moving as fast as they could but that it was a slow process and that
Ohio has “some of the most complicated geographic challenges, certainly the most
strict geographic rules and also the most complicated Senate rules.” Around 5:00
p.m., Dr. McDonald left the meeting—and the statehouse—so that he could return to
Florida for a professional commitment.
{¶ 20} House Speaker Cupp and Auditor Faber expressed concerns about the
independent map drawers’ plan. Auditor Faber asked several questions about the
compactness of the plan and noted that the map drawers had adopted the “hub and
spoke model” by dividing the urban core of cities into different districts and drawing
them with suburbs to create Democratic districts. Dr. Johnson acknowledged that
“to hit that magic number, it involves a lot more work to draw those Democratic
seats.”
{¶ 21} Senate President Huffman also expressed concerns about the plan,
stating that as of 5:00 p.m. on the day of the deadline, the map drawers had not yet
produced a Senate map. He noted that after the commission adopted a plan, staff
would need time to complete several administrative tasks; he said that to meet this
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court’s midnight deadline, the commission would need to adopt a plan no later than
10:30 p.m. Considering the approaching deadline, Senate President Huffman said
that the commission needed a “failsafe.” He introduced a motion that would allow
Dr. Johnson to continue working on the independent map drawers’ plan but also
permit the Republican and Democratic legislative-caucus map drawers to jointly with
Dr. Johnson or independently revise the commission’s second revised plan so that
the commission could timely comply with this court’s order. Senate President
Huffman emphasized that the commission must “have a product to vote on.” In his
words, “if we’re not going to land the plane * * * it would be nice to have a parachute.
And that’s what the motion is intended to do.”
{¶ 22} Senator Sykes and House Minority Leader Russo objected to the
motion, citing the resources the commission had invested in the independent map
drawers and noting that the map drawers were almost finished. House Minority
Leader Russo opined that this court would rather have the commission finish its job
than submit another unconstitutional plan. She suggested that the commission take
the issue to mediation. Senate President Huffman, however, did not believe that
mediation would be productive. Senator Sykes inquired about requesting an
extension of time from this court, but Senate President Huffman and House Speaker
Cupp said that League III prohibited any requests for extensions of time. The
commission approved Senate President Huffman’s motion by a vote of five to two,
along party lines. The commission agreed to meet again at 9:00 p.m.
D. The commission adopts a district plan drawn by Republican-caucus staff
{¶ 23} When the commission reconvened, Dr. Johnson reported that he had
not yet finished the Senate map. He again said that the “Senate rules are extremely
complex,” that he had hit “roadblocks” necessitating changes to the House map, and
that he needed at least another 45 minutes to finish. Senate President Huffman said
that his staff had identified some improper splits in the independent map drawers’
House map, including one in a Cleveland Heights district. Fixing the problem, Senate
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President Huffman said, would cause the district to exceed the population
requirements, which in turn would have “rippling effects” throughout northeast Ohio.
Dr. Johnson responded that he was trying to “race through and get a map” and that
he intended to run a few reports at the end of the process that would hopefully catch
those errors but that he had not yet reached that step. Dr. Johnson also indicated that
Auditor Faber had given him some larger-scale edits but that he would not have
sufficient time to incorporate those changes before the deadline.
{¶ 24} House Speaker Cupp said that it was not feasible at that point to expect
the independent map drawers to produce a complete and constitutional plan by this
court’s deadline. Therefore, he moved that the commission adopt his new proposal,
which had just been distributed to the members. He said that compared to the second
revised plan, his proposal improved the “symmetry measures” by reducing the
number of Democratic-leaning toss-up districts by two in the House and by one in
the Senate. And he said that the proposed plan was drawn in the livestreamed public
workroom earlier that day.
{¶ 25} House Minority Leader Russo and Senator Sykes opposed the motion.
House Minority Leader Russo called the motion a “farce,” noted that the plan had
again been drawn by only one party, and said that she had not been provided any
information about the partisan leanings of the districts or symmetry of the toss-up
districts. She also disputed House Speaker Cupp’s claim that Springhetti had
prepared the map in the livestreamed public workroom: “Mr. Springhetti sat in the
map room for about 45 minutes, clicked his mouse around a few times and called that
public and transparency. That’s not public and transparency. This map was drawn
long before this evening. I guarantee it.” Senator Sykes added that instead of trying
to assist the independent map drawers to cross the finish line, the “majority” had
withdrawn from the process and then hijacked it. In response to questioning from
House Minority Leader Russo, Auditor Faber, respondent Governor Mike DeWine,
respondent Secretary of State Frank LaRose, and Senator Sykes acknowledged that
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they had not seen House Speaker Cupp’s proposal before it was distributed to all the
commission members during the meeting.
{¶ 26} House Minority Leader Russo requested a recess to review House
Speaker Cupp’s proposal, but Senate President Huffman said that because it was
already after 10:00 p.m., the commission needed to pass a plan to comply with this
court’s deadline. He further noted that Dr. Johnson had not yet completed a final
Senate map and that Dr. Johnson admitted that he would not have time to include any
amendments to his proposal by the midnight deadline. House Minority Leader Russo
requested that the commission file an emergency motion in this court for a 12-hour
extension of time. The commission, however, voted four to three to adopt House
Speaker Cupp’s plan—i.e., the third revised plan—as its final General Assembly–
district plan. Because both Democratic members of the commission voted against
the plan, the plan did not have the bipartisan support required by Article XI, Section
8(B) of the Ohio Constitution to remain in effect for ten years. Therefore, the plan
would remain in effect for no more than four years. See Ohio Constitution, Article
XI, Section 8(C)(1)(a).
{¶ 27} Senate President Huffman distributed the commission statement
required by Article XI, Section 8(C)(2) of the Ohio Constitution. The statement said
that the commission had gone to great lengths to comply with this court’s decisions
but that the independent map drawers were unable to produce a plan by the court’s
deadline. The statement further noted that to comply with the court’s deadline, the
commission had instructed staff to prepare a “modification” of the second revised
plan that “more closely complies” with the court’s decisions than did the second
revised plan. The statement noted that the commission believed that the third revised
plan met “strict proportionality” and “improved upon the number of asymmetric
districts” identified in League III.
E. Senator Sykes moves to adopt the independent map drawers’ plan
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{¶ 28} The commission recessed to allow its members to review Senate
President Huffman’s Section 8(C)(2) statement and for Senator Sykes and House
Minority Leader Russo to prepare their own statement. Upon reconvening, Senator
Sykes moved the commission to adopt Dr. Johnson’s plan, which Senator Sykes
claimed had been completed. As part of his motion, Senator Sykes also requested
that the commission refrain from dissolving for up to four weeks so that it could
improve Dr. Johnson’s plan. House Minority Leader Russo acknowledged that some
commission members may have concerns about voting on a district plan without
having an opportunity to review it. But she noted that the commission had just
adopted a plan that was similarly distributed immediately before the commission’s
vote. In response, Senate President Huffman said that the third revised plan included
“only minor changes” from the second revised plan and that the commission
members were therefore familiar with “probably 97 percent” of the third revised plan.
{¶ 29} Other commission members also commented on the independent map
drawers’ work. House Speaker Cupp said that he noticed “some egregious
compactness issues” in Dr. Johnson’s plan. Governor DeWine indicated that
although the independent map drawers had established proportionality and had
created a similar number of toss-up districts, the independent map drawers’ plan had
a “compact district problem” with more split cities and fewer competitive districts.
Governor DeWine noted that competitive districts was a goal of the constitutional
amendment. Auditor Faber praised the work of the independent map drawers and
emphasized the difficulty of their task given the short amount of time that they had.
But he said that they could not incorporate his suggestions, that their plan appeared
to unnecessarily split cities, and that they had engaged in cracking and packing to
create more Democratic districts. The commission voted five to two against adopting
Dr. Johnson’s plan.
{¶ 30} Senator Sykes and House Minority Leader Russo submitted their
separate statement, which said that the third revised plan had been drawn in secret
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“in a bunker at the Bureau of Worker Compensation building,”5 that they had
received the plan only minutes before voting on it, and that it was merely a “tweaked
version” of the second revised plan, which this court had invalidated. Auditor Faber
also voted against adopting the third revised plan but did not concur in the statement
of Senator Sykes and House Minority Leader Russo.
{¶ 31} On March 29, the commission notified this court that it had adopted a
fourth General Assembly–district plan.
F. Petitioners file objections
{¶ 32} On April 1, petitioners filed objections to the third revised plan,
primarily criticizing the commission’s process in adopting the third revised plan and
arguing that the plan violates Article XI, Sections 6(A) and 6(B).6 With their
objections, petitioners collectively submitted three new expert reports. Some of the
petitioners ask this court to issue additional remedies, including ordering the
implementation of a specific General Assembly–district plan—such as the plan
prepared by the independent map drawers—for the 2022 election.
{¶ 33} Respondents filed four separate responses to petitioners’ objections.
Senate President Huffman, House Speaker Cupp, Governor DeWine, and Secretary
LaRose opposed petitioners’ objections. Senate President Huffman and House
Speaker Cupp submitted an affidavit from Dr. Johnson, who averred that his work
had been “highly constrained” by Ohio’s complex geography and constitutional rules
and the limited window of time in which to draw the maps. He further stated that
5. Earlier during the March 28 commission meeting, Senator Sykes noted the absence of the
Republican-caucus map drawers—i.e., DiRossi and Springhetti—who had been instructed to assist the
independent map drawers. In response, Senate President Huffman indicated that DiRossi was ill and
was working at the “BWC Building” on March 28. Senator Sykes and House Minority Leader Russo
believed that DiRossi had drafted the plan that the commission ultimately adopted.
6. The petitioners in all three cases also filed motions on March 29 for an order directing respondents
to show cause why they should not be held in contempt. Petitioners argue, among other things, that
the commission violated this court’s order in League III by failing to adopt an entirely new General
Assembly–district plan. We dispose of these motions in separate entries announced today.
16
January Term, 2022
although he had made every effort to comply with Article XI’s line-drawing
requirements, he had not had time to conduct a detailed review or run reports to
confirm whether the plan complied with Article XI. And he noted that his final plan
included a portion of northeast Ohio that was drawn by Glassburn prior to March 23,
2022,7 and a configuration for Mahoning County to which Republican commission
members had objected but that Dr. Johnson had run out of time to fix. Dr. Johnson
also acknowledged that he had run out of time to include revisions requested by
commission members or to even allow the commission members or their staff to
review the plan.
{¶ 34} Senator Sykes and House Minority Leader Russo filed responses to
the objections that align with petitioners’ positions. They also submitted their own
affidavits as well as an affidavit from Glassburn. Senator Sykes stated in his affidavit
that when the independent map drawers proposed maps that were proportional and
symmetrical, Republican commissioners seemed “rattle[d]” and started to impede
and discredit the process by complaining about compactness and the double-bunking
of incumbents (i.e., placing two incumbents in the same district). House Minority
Leader Russo averred that after the independent map drawers had made progress and
sought guidance from the commission, her Republican colleagues refused to give it.
She also averred that any double-bunking that had occurred in the map drawers’
initial drafts was inadvertent—because they did not have incumbent information—
all of which was the byproduct of drawing a constitutional map.
{¶ 35} Glassburn averred that in his opinion, the final plan submitted by Dr.
Johnson complies with Article XI and its proportionality and symmetry
requirements. He further averred that the independent map drawers’ plan is more
compact than the third revised plan and that to the extent that there are any technical
7. The “Ground Rules” for the independent map drawers prohibited them from including or
considering General Assembly–district plans or proposals created before March 23, 2022.
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flaws in the independently drawn plan, they could be easily remedied. Glassburn
found no reason why the commission would need “more than a single day” to review
the independent map drawers’ plan and fix any technical flaws.
III. ANALYSIS
A. The burden and standard of proof
{¶ 36} A district plan adopted by the commission is presumptively
constitutional. League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at
¶ 76. Petitioners therefore have the burden of proving that the third revised plan
violates the Constitution. Id. at ¶ 76-77. They must prove factual issues beyond a
reasonable doubt. Id. We do not defer to the commission’s legal interpretations. Id.
at ¶ 80.
B. Article XI, Section 6(A)
{¶ 37} Article XI, Section 6(A) of the Ohio Constitution provides that the
commission must attempt to meet the standard that “[n]o general assembly district
plan shall be drawn primarily to favor or disfavor a political party.” Section 6(A)
“requires this court to discern the map drawers’ intent.” League I at ¶ 116.
1. The process leading to the third revised plan
{¶ 38} In League III, this court found that substantial and compelling
evidence showed that the process leading to the adoption of the second revised plan
was evidence of an intent to draw a General Assembly–district plan that favored the
Republican Party at the expense of the Democratic Party. ___ Ohio St.3d ___, 2022-
Ohio-789, ___ N.E.3d ___, at ¶ 24-32. That evidence included the following: (1)
staff members of Senate President Huffman and House Speaker Cupp (rather than
the commission members) drew the second revised plan, (2) the Democratic
members of the commission had no opportunity to provide input and no meaningful
opportunity to discuss or review the second revised plan or to propose amendments
once it was presented to the commission, and (3) the map-drawing process was
controlled by the Republican-legislative staffs. Id. at ¶ 25, 27. In League II, this
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court found that the commission’s choice to start with an invalidated plan “and
change it as little as possible” was “tantamount to an intent to preserve as much
partisan favoritism as could be salvaged from the invalidated plan.” ___ Ohio St.3d
___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 38. The same could be said here.
{¶ 39} In this case, the evidence shows that the commission began to heed
our suggestions in League III, consistent with the recommendations of the attorney
general’s March 18 memorandum to the commission, and that it made significant
changes to its process. The commission retained independent map drawers and
mediators, held meetings almost daily, ensured that the map drawers had a neutral
set of written instructions, and allowed the public to observe the map-drawing
process. Senator Sykes described these efforts as “historic” for Ohio and the nation.
But what began as a “historic” process devolved into the same one-sided partisan
map-drawing process that led us to invalidate the previous three plans.
{¶ 40} Although the commission retained independent map drawers and held
frequent meetings throughout the 12-day map-redrawing period, the commission
ultimately readopted a modified version of the second revised plan that we
invalidated in League III. The evidence suggests that Springhetti, a staff member for
the Republican legislative caucus, modified the second revised plan in one afternoon
to produce the third revised plan. Neither Senator Sykes, House Minority Leader
Russo, nor their staff had an opportunity to provide input concerning the creation of
the third revised plan or a meaningful opportunity to review the proposal or provide
amendments to it once it was presented to the commission. Instead, the Democratic
commission members were forced to vote on the plan within minutes of receiving it,
even though they had not been provided any documents showing the partisan leaning
of the plan’s districts. Further, Senator Sykes’s and House Minority Leader Russo’s
requests for a recess were rebuffed, as were their requests to seek an extension of this
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court’s deadline.8 The Democratic commission members were once again excluded
from the process of creating what the commission adopted as its third revised plan.
And as in League III, the record indicates that the statewide-officeholder members of
the commission did not participate in drawing the third revised plan: they stated that
they had not seen a copy of the plan until it was distributed to all the members.
{¶ 41} Moreover, the third revised plan suffers from a similar fundamental
flaw that we found obstructed the constitutionality of the plan we invalidated in
League II. In League II, we found that the principal drawers of the first revised plan
“started with the same plan we invalidated and then merely adjusted certain districts
just enough so that they could nominally be classified as ‘Democratic-leaning.’ ” ___
Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 36. We observed that the
commission’s choice to start from an unconstitutional plan and “change it as little as
possible” was “tantamount to an intent to preserve as much partisan favoritism as
could be salvaged from the invalidated plan.” Id. at ¶ 38.
{¶ 42} Despite our admonition in League II, the commission’s self-described
“parachute” was to have Springhetti use an invalidated plan and tweak it a bit. The
third revised plan is no more than a modification of the second revised plan and, as
admitted by Senate President Huffman, includes “only minor changes” from its
predecessor. As before, the commission did not adopt a plan using a process that
Article XI and this court’s prior decisions require.
{¶ 43} We also discern intent of partisan favoritism from the timeline that led
to the commission’s decision to scrap the work of the independent map drawers in
8. Senate President Huffman and House Speaker Cupp took the position that our decision in League
III forbade the commission from seeking an extension of time for adopting a plan and filing it with
the secretary of state. They cited language in League III indicating that “the clerk of this court shall
refuse to file any requests or stipulations for extension of time.” League III at ¶ 47. In isolation,
paragraph 47 of League III supported the refusal to seek an extension of time to allow Dr. McDonald
and Dr. Johnson to complete their work. However, it is not proper to read paragraph 47 in isolation;
it should be read in context. And in the paragraph prior to paragraph 47, we stated that untimely
filings “under this paragraph” were prohibited. Id. at ¶ 46. Paragraphs 46 and 47 refer to only the
timeline for objections to the plan and responses to the objections. See id.
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favor of a plan that included minimal changes to one already invalidated as
unconstitutional. Particularly, the evidence shows that on the final day before the
commission adopted its third revised plan, some members of the commission
blocked, rather than facilitated, Dr. McDonald’s and Dr. Johnson’s efforts to finish
their work. The timeline of events demonstrates convincingly that the commission—
or at least some members of the commission—when faced with one or more plans
that closely matched constitutional requirements in the form of Dr. McDonald’s and
Dr. Johnson’s plans, reverted to partisan considerations when time was running short,
even though the potential for successful completion was high.
{¶ 44} In Dr. Johnson’s words, it became clear on March 28 that he and Dr.
McDonald “were not going to finish a map before the Court’s midnight deadline
without more direct guidance from the Commission members’ staff.” This became
apparent despite the fact that on March 27, Dr. McDonald and Dr. Johnson presented
three district plans to the commission and sought the commission’s guidance on
outstanding issues to enable them to merge their ideas with the commission’s into a
final plan. As time for completion grew shorter, the commission failed to provide
the guidance that Dr. McDonald and Dr. Johnson needed, hindering their ability to
complete their work.
{¶ 45} Particularly problematic was Senate President Huffman’s last-minute
insistence that the independent map drawers consider the residence locations of non-
term-limited and mid-term House and Senate incumbents in drafting a plan. The
commission instructed the independent map drawers to consider incumbent
residences “and where possible without violating constitutional principles, avoid
pairing incumbents.” Although this instruction was not necessarily inconsistent with
this court’s admonitions in League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___
N.E.3d ___, at ¶ 37, because it required the map drawers to consider incumbency
only “where possible,” the timing of it pulled the rug out from under the independent
map drawers. Rather than including the instruction in the March 23 “Ground Rules,”
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this new criterion was imposed on March 27—one day before the deadline and after
the independent map drawers had already completed separate drafts of potential
district plans without consideration of incumbents’ addresses. This belated
instruction added to the map drawers’ difficulty in finalizing their work in sufficient
time for the commission to review it and file it with the secretary of state. Contrary
to our admonitions in League III, the commission’s last-minute incumbency-
protection instruction to the independent map drawers effectively prioritized
protecting incumbents over the requirements of Article XI, Section 6.
{¶ 46} Although the commission appeared to be engaging in a more
collaborative process in drafting a legislative map, the final day leading up to the
adoption of the third revised plan revealed anything but that. Rather than helping the
independent map drawers finish their work on a plan, the commission instead chose
to modify a previously invalidated plan. That plan was prepared by a member of the
Republican legislative caucus’s staff, and the Democratic commission members and
the statewide-officeholder commission members were effectively prevented from
participating in preparing the plan. These facts indicate beyond a reasonable doubt
an intent to favor the Republican Party at the expense of the Democratic Party in the
commission’s fourth try at drafting the General Assembly–district plan.
2. The third revised plan’s substantive noncompliance with Article XI, Section 6(A)
{¶ 47} In League III, we noted that the second revised plan contained 19
districts in which the Democratic vote share was between 50 and 52 percent with no
comparably competitive Republican-leaning districts, resulting in the conclusion that
“the 54 percent seat share for Republicans is a floor while the 46 percent share for
Democrats is a ceiling—an observation similar to the one [this court] found
persuasive in League II.” League III at ¶ 32. We found that “[t]he remarkably one-
sided distribution of toss-up districts is evidence of an intentionally biased map
* * *.” Id. at ¶ 33.
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{¶ 48} In League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___,
we found that this unequal distribution of highly competitive or “toss up” districts
led to partisan asymmetry such that with a 50 percent statewide vote share,
Republicans would win 53 percent of the House seats and that with the same share,
Democrats would win approximately 44 percent of the House seats. Id. at ¶ 33. We
noted Dr. Rodden’s calculation that a 5 percent uniform swing in Republicans’ favor
would net them up to 23 additional seats, while a 5 percent uniform swing in
Democrats’ favor would net them, at most, two additional seats. Id. As we did in
League II, this court in League III found that the “monolithically disparate” quality
of partisan favoritism in the second revised plan overwhelmingly demonstrated that
the plan’s drafters intended to favor the Republican Party and disfavor the
Democratic Party. Id. at ¶ 34.
{¶ 49} As discussed above, the third revised plan is merely the second revised
plan with just a few alterations. Even Senate President Huffman described it as
“probably 97 percent” of the previous map. Two of petitioners’ experts, Dr. Michael
Latner and Dr. Christopher Warshaw, calculate that regarding the House, only 451
census blocks out of more than 276,000 were assigned to a different district in the
third revised plan, affecting only 0.265 percent of the total population. As Dr. Latner
explains, “[o]therwise, the Second and Third Revised Plans are identical, which
explains their similar performance.” Dr. Warshaw calculates that regarding the
Senate, only 270 census blocks out of more than 276,000 were assigned to a different
district in the third revised plan, affecting only 0.2 percent of the total population.
Thus, 31 of 33 Senate districts and 92 of 99 House districts are the same in the third
revised plan as they were in the second revised plan. Another of petitioners’ experts,
Dr. Jonathan Rodden, explains that only a few district boundaries were moved in the
Worthington/Upper Arlington area and in the Canton area, which shifted a few
Democratic districts from just under a 52 percent Democratic vote share to just over
a 52 percent Democratic vote share.
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{¶ 50} The third revised plan is materially identical to the invalidated second
revised plan on the measures this court looked to in League III. The two plans contain
a nearly identical one-sided distribution of toss-up districts. The overall number of
toss-up districts has been reduced from 26 to 23, but all those districts are
Democratic-leaning districts and there are no similarly competitive Republican-
leaning districts. The third revised plan is also asymmetrical in the same way that
the second revised plan was. Dr. Latner calculates that with a 50 percent statewide
vote share, Republicans would win 53 percent of the House seats while Democrats
would win 44 percent—the same as his analysis of the second revised plan, see
League III at ¶ 33.
{¶ 51} Dr. Latner further observed:
A small two percentage point shift in the electorate in favor of
Republicans would be expected to wipe out 17 Democratic House
seats and 6 Democratic Senate seats, giving Republicans 72% percent
of House seats and 73% percent of Senate seats—a supermajority in
both chambers. Equivalent shifts among voters in favor of Democrats
would not yield any additional seats * * *.”
(Emphasis deleted.) He further opined that, as before, the plan is structured to create
a floor for Republicans and a ceiling for Democrats: “[S]imilar to the First and
Second Revised Plans, the Third Revised Plan performs like a ‘winner-take-all’
gerrymander but with only a one-way ratchet in favor of Republicans.” In League
III, this court found such a structure to be persuasive evidence of an Article XI,
Section 6(A) violation. __ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __, at ¶ 32.
{¶ 52} Senate President Huffman and House Speaker Cupp point out that the
third revised plan improves upon the second revised plan. While this may be true,
the improvement falls short of landing in constitutional territory. Dr. Latner notes,
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“Compared to the Second Revised Plan, the number of seats where Democrats win 5
percent or more than their statewide vote average has increased by one, slightly
improving symmetry, but consistent with each of the Commission’s plans,
Republicans maintain a substantial, and statistically significant, advantage.”
Similarly, regarding the Senate, the results mirror those of the second revised plan,
with no more than marginal improvement in some sectors. The aggregate asymmetry
in the assignment of toss-up districts remains strong evidence of an intentionally
biased plan, as does the partisan asymmetry of the plan itself.
{¶ 53} Senate President Huffman and House Speaker Cupp argue that the
third revised plan performs similarly to the rejected independent map drawers’ plan
in the event of a hypothetical 5 percent swing in either party’s favor. They further
argue that the independent map drawers’ plan was not a commission-drawn plan,
because the commission members did not have the opportunity to propose
amendments. But they fail to explain how their assertions about the independent map
drawers’ plan relates to a Section 6(A) analysis or even how their actions and
arguments negate the evidence of partisan intent with respect to the plan the
commission actually adopted. Indeed, we found a Section 6(A) violation in League
III without reference to or comparison with any of the proposed alternative plans.
See id. at ¶ 24-37.
{¶ 54} Senate President Huffman and House Speaker Cupp also criticize the
independent map drawers’ plan for what they call “hub and spoke” districts, “where
the map drawer slices into an urban core and ‘spokes’ the district out of the urban
core into a rural or suburban area.” They assert that these districts are noncompact
and demonstrate that the third revised plan’s “supposed asymmetry * * * is not
unreasonable and that to achieve ‘better’ symmetry cities must be carved up like a
pizza.” But they cite no evidence or authority for the proposition that the “hub and
spoke” districts they describe are not compact. And petitioners have submitted
evidence showing that the independent map drawers’ plan has better scores for
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compactness under three different measures (Reock, Polsby-Popper, and
Area/Convex Hull) than the third revised plan. Further, the independent map
drawers’ plan splits the same number of counties and fewer voting precincts than the
third revised plan. Thus, petitioners have offered unrebutted evidence that the third
revised plan is less compact than the independent map drawers’ plan.
{¶ 55} In sum, the third revised plan has not materially changed from the
invalidated second revised plan. The evidence supports the finding that the third
revised plan violates Article XI, Section 6(A), just as we found with regard to the
second revised plan in League III.
C. Article XI, Section 6(B)
{¶ 56} Article XI, Section 6(B) of the Ohio Constitution requires the
commission to attempt to draw a district plan to meet the constitutional requirement
that “[t]he statewide proportion of districts whose voters, based on statewide state
and federal partisan general election results during the last ten years, favor each
political party shall correspond closely to the statewide preferences of the voters of
Ohio.” The statewide preferences of Ohio’s voters “are 54 percent in favor of the
Republican Party and 46 percent in favor of the Democratic Party.” League II, __
Ohio St.3d __, 2022-Ohio-342, __ N.E.3d __, at ¶ 64.
{¶ 57} In League II, this court held that if the term “favor” is to be applied
equally to both parties, “the quality and degree of favoritism in each party’s allocated
districts” may not be “grossly disparate.” Id. at ¶ 61. We explained that while
Section 6(B) does not “prohibit[] the creation of competitive districts,” to give effect
to the term “favor,” such districts “must either be excluded from the proportionality
assessment or be allocated to each party in close proportion to its statewide vote
share.” Id. at ¶ 62. We held that the revised plan at issue in League II violated Section
6(B), in part because that plan contained 12 competitive House districts with
Democratic vote shares between 50 and 51 percent that the commission had counted
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as Democratic districts, id. at ¶ 61, yet the plan contained zero such districts with
similar Republican vote shares that were counted as Republican districts, id.
{¶ 58} In League III, this court held that the second revised plan violated
Section 6(B) because it contained 26 districts (19 House districts and 7 Senate
districts) with Democratic vote shares between 50 and 52 percent that the
commission had counted as Democratic districts and zero such districts with similar
Republican vote shares that were counted as Republican districts. __ Ohio St.3d __,
2022-Ohio-789, __ N.E.3d __, at ¶ 39, 42. We concluded that the 26 “so-called
Democratic-leaning districts” did not “favor” the Democratic party and were instead
“competitive” districts that must be excluded from the proportionality assessment.
Id. at ¶ 41-42. In the second revised plan, 67.9 percent of the noncompetitive districts
favored Republicans and 32.1 percent favored Democrats—leading us to conclude
that the plan’s allocation of districts favoring each political party did not closely
correspond to the statewide preferences of the voters. Id. at ¶ 42.
{¶ 59} The third revised plan contains 23 districts (17 House districts and 6
Senate districts) with Democratic vote shares between 50 and 52 percent—three
fewer than did the second revised plan. As before, the third revised plan contains
zero districts with a Republican vote share between 50 and 52 percent. For the
reasons explained in League III, see id. at ¶ 40-42, these 23 competitive districts
should be excluded from the proportionality assessment. Therefore, in the third
revised plan, 66.1 percent of the noncompetitive districts favor Republicans and 33.9
percent favor Democrats. The third revised plan’s slight improvement over the
second revised plan still leaves it far short of close correspondence with the statewide
preferences of the voters. Indeed, this disproportionality is still greater than the
original plan that we invalidated in League I, in which 64.4 percent of the districts
favored the Republican Party. See __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __,
at ¶ 105.
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{¶ 60} In reaching the conclusion in League III that the second revised plan’s
Democratic-leaning districts with vote shares under 52 percent were, in reality,
“competitive districts,” we considered evidence showing that these 26 competitive
districts “represent[ed] the foundation of a politically asymmetric plan,” in that a two-
point statewide swing in the Republican Party’s favor would result in that party
winning 74 percent of the House seats and 79 percent of the Senate seats under the
second revised plan, while the same two-point swing in the Democratic Party’s favor
would result in no seat gains for that party in either chamber. League III at ¶ 41. We
find the same for the third revised plan: a statewide swing of 2 percent in the
Republican Party’s favor would sweep all the competitive districts into its column,
while a similar swing in favor of the Democratic Party would earn it no additional
seats.
{¶ 61} In their response to petitioners’ objections, Senate President Huffman
and House Speaker Cupp compare each party’s seat share in the third revised plan
and the independent map drawers’ plan in the event of a 5 percent statewide vote
swing in each party’s favor. Their argument appears to be that the numbers look
similar for both plans, so the asymmetry of the plans is similar. But Senate President
Huffman and House Speaker Cupp fail to articulate how this comparison of the
adopted plan with a nonadopted plan relates to the requirements of Article XI, Section
6(B). In other words, they do not explain how their analysis counters the conclusion
that the third revised plan’s 23 districts with Democratic vote shares between 50 and
52 percent do not actually “favor” the Democratic party in light of the plan’s
allocation of zero such districts to the Republican Party.
{¶ 62} The third revised plan violates Article XI, Section 6(B) of the Ohio
Constitution for the same reasons that the second revised plan did.
D. Remedies
{¶ 63} Because the commission and its third revised plan did not and do not
comply with Article XI, Sections 6(A) and 6(B), we declare the third revised plan
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invalid. See Ohio Constitution, Article XI, Section 9(B). We order that the
commission be reconstituted and adopt a General Assembly–district plan that
complies with the Ohio Constitution. See id. In their objections, however, petitioners
ask this court to do more than simply invalidate the third revised plan and order the
commission to adopt a new plan that complies with the Ohio Constitution. We deny
petitioners’ requests for additional or alternative relief submitted with their
objections.
1. Adoption of an alternative plan
{¶ 64} The petitioners in Bennett v. Ohio Redistricting Comm. (Supreme
Court case No. 2021-1198) and the petitioners in Ohio Organizing Collaborative v.
Ohio Redistricting Comm. (Supreme Court case No. 2021-1210) (“OOC petitioners”)
ask this court to itself adopt a plan—either the independent map drawers’ plan or Dr.
Rodden’s latest plan (referred to previously as “the Rodden III plan”). We decline
to do so because we lack the constitutional authority to grant that relief. The Ohio
Constitution expressly forbids this court from “order[ing], in any circumstance, the
implementation or enforcement of any general assembly district plan that has not
been approved by the commission in the manner prescribed by this article.” Article
XI, Section 9(D)(1); see also Article XI, Section 9(D)(2) (“No court shall order the
commission to adopt a particular general assembly district plan or to draw a particular
district”).
{¶ 65} The Bennett petitioners acknowledge that Article XI, Section 9(D)
prohibits the relief they are seeking, but they argue that “the facts have changed and
now stand far beyond what Article XI contemplates.” They argue that Section 9(D)
“must bend in this moment.” Yet they offer weak legal support for this assertion.
Instead, they assert that it would be better for an Ohio court—as opposed to a federal
court—to implement a plan and that doing so “will do the least violence to Ohio’s
constitutional structure.” But we cannot disregard Section 9(D) simply to avoid the
possibility that a federal court may take action under federal law. And as a matter of
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comity, a federal court imposing a remedy under federal law would be mindful of the
reality that we have declared that all four maps adopted by the commission violate
the Ohio Constitution.
{¶ 66} The OOC petitioners take a slightly different approach: they argue that
this court should enforce the federal Constitution by adopting a General Assembly–
district plan. Put another way, they ask us to disregard the Ohio Constitution to
vindicate the federal Constitution. But there is not a basis for this court to grant relief
under the OOC petitioners’ theory. For one thing, no petitioner has asserted a claim
arising under the federal Constitution. And further, such a claim would conflict with
the Ohio Constitution’s conferred standing in original jurisdiction that appears in
Article IV, Section 2(B)(1), which defines this court’s original jurisdiction. Our
original jurisdiction under Article XI, Section 9(A) of the Ohio Constitution applies
only to cases arising under Article XI. See Ohio Constitution, Article XI, Section
9(A) (“The supreme court of Ohio shall have exclusive, original jurisdiction in all
cases arising under this article” [emphasis added]). Finally, even if we were to
entertain such a federal claim, the OOC petitioners have failed to sufficiently
articulate the nature of the federal claim that might properly be before this court.
{¶ 67} The remedies suggested by the Bennett and OOC petitioners are
based on their belief that a three-judge panel of the United States District Court for
the Southern District of Ohio in Gonidakis v. Ohio Redistricting Comm, S.D.Ohio
case No. 2:22-cv-0773, will order the implementation of a General Assembly plan
by April 20, 2022. They are concerned that the federal court may implement a plan
that we have already found unconstitutional, at least for the 2022 election cycle.
According to the Bennett petitioners, questioning by the three-judge panel in
Gonidakis during a March 30 preliminary-injunction hearing “made clear” that if
the federal court does impose a plan, the options it is considering include the second
revised plan that we declared invalid in League III, the third revised plan that we
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declare invalid today, the district plan that was in place from 2011 to 2020, and
other plans presented to that court.
{¶ 68} We are mindful of representations made by or on behalf of the
secretary of state in the pending Gonidakis federal court proceedings that a district
plan must be in place by April 20 for the last possible primary-election date for the
2022 election, August 2, to be feasible. However, we fail to see how this contention
should motivate us—or the federal court for that matter—to adopt a plan for the 2022
state legislative elections by April 20. It is unclear as to why August 2, 2022, is the
last available date for a primary election in Ohio.9 We note that several states will
have primary elections on August 16, 2022, or later, including four states that will
have their primary elections in September. National Conference of State
Legislatures, 2022 State Primary Election Dates and Filing Deadlines (Apr. 4,
2022), https://www.ncsl.org/research/elections-and-campaigns/2022-state-
primary-election-dates-and-filing-deadlines.aspx (accessed Apr. 12, 2022)
[https://perma.cc/Y73V-2TSB]. Thus, on the record before us, the so-called April
20 “deadline” for implementing a General Assembly–district plan appears to be an
artificial deadline that is based on a speculative, potential primary-election date for
state legislative races.
{¶ 69} While the commission has yet to adopt a constitutionally valid plan
in time for the May 3 primary election,10 sufficient time remains for the commission
to perform its constitutional duty to adopt a valid General Assembly–district plan
for use in the 2022 election cycle, including a primary election. Any suggestion
that the federal court could—much less that it should—set an August 2 primary-
election date as a remedy in the federal-court litigation strikes us as a dubious
9. August 2, 2022, is a date authorized for special elections, as provided in R.C. 3501.01(D).
10. The May 3 primary is proceeding for statewide, congressional, and local offices.
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proposition at best. The authority for setting the date for a primary election belongs
to the General Assembly, not to the Ohio Supreme Court, the secretary of state, or
a federal court. See R.C. 3501.40 and 3501.01(E)(1). Principles of federalism and
comity cut against a federal court ordering the date of a primary election for purely
state offices due to a dispute over the validity of state legislative maps under the
state constitution. Even when federal constitutional questions have been at issue in
legislative-redistricting cases, the United States Supreme Court “has required
federal judges to defer consideration of disputes involving redistricting where the
State, through its legislative or judicial branch, has begun to address that highly
political task itself.” (Emphasis sic.) Growe v. Emison, 507 U.S. 25, 33, 113 S.Ct.
1075, 122 L.Ed.2d 388 (1993). In this case, the commission and this court have
been addressing the task within the framework of Article XI of the Ohio
Constitution.
{¶ 70} While the process has proved challenging for the commission, as
evidenced by four legislative plans falling short of Article XI’s requirements, the
difficulty of the task is not a reason for federal-court intervention. In this case,
there is a clear and viable path forward to having a constitutionally valid General
Assembly–district plan in place for the 2022 election cycle. As set forth in detail
below, the independent map drawers retained by the commission after League III
started the commission down what could be a viable path of a General Assembly–
district plan that complies with Article XI of the Ohio Constitution. Under these
circumstances, we think it appropriate for the federal court to “stay[] its hand” in
recognition of the principle that “[t]he power of the judiciary of a State to require
valid reapportionment * * * has not only been recognized by [the United States
Supreme] Court but appropriate action by the States in such cases has been
specifically encouraged,” Scott v. Germano, 381 U.S. 407, 409, 85 S.Ct. 1525, 14
L.Ed.2d 477 (1965).
32
January Term, 2022
{¶ 71} For these reasons, we decline to order the additional remedies that
the Bennett and OOC petitioners request.
2. Validation of an alternative plan
{¶ 72} Senator Sykes and House Minority Leader Russo ask us to declare that
the independent map drawers’ plan is presumptively constitutional. There is also no
constitutional basis for this court to grant that remedy. Article XI, Section 9(A)
grants this court jurisdiction in cases arising under Article XI, and Section 9(B)
contemplates that we may determine the constitutional validity of a “general
assembly district plan made by the Ohio redistricting commission.” (Emphasis
added.) While the independent map drawers’ plan may be the closest yet to meeting
the Ohio Constitution’s requirements, Article XI does not authorize this court to
address the validity of a district plan in the absence of it being lawfully presented to
this court for such a determination.
{¶ 73} We also note that by the admission of one of the plan’s primary
drafters, Dr. Johnson, that plan is not yet fully completed. According to Dr.
Johnson, certain potential constitutional defects cannot be identified without
running reports that he did not have time to complete before the commission’s
deadline for adopting the third revised plan.
E. Possible approach for the commission
{¶ 74} Though we do not have the power under Article XI to validate the
independent map drawers’ plan, we are also mindful of the secretary of state’s
position—taken in the federal-court litigation—that a General Assembly–district
plan must be in place by April 20 for the last possible primary-election date for the
2022 election cycle, August 2, to be feasible. No matter what the primary date is to
be, time is of the essence. With time in mind, it appears that the most efficient way
for the commission to proceed may well be to continue working with Dr. McDonald
and Dr. Johnson to complete the plan on which they have made considerable
progress—if they are willing and available and if the commission has the authority
33
SUPREME COURT OF OHIO
to timely retain them for additional work. By certain measures, their plan—though
incomplete—is on track to being constitutionally compliant.
{¶ 75} The independent map drawers acknowledge that the process of
finalizing their plan is incomplete. Although they have stated that they tried to
comply with all provisions of the Constitution, no one has yet verified that their
plan fully complies with Article XI, Sections 2, 3, 4, and 7. Nor have the
independent map drawers had an opportunity to address or incorporate any of the
commission’s requests for amendments. With that caveat, there is evidence that
the independent map drawers’ plan—in its current form—outperforms the third
revised plan on measures of partisan symmetry and on the distribution of
competitive districts. For example, the independent map drawers’ plan contains
three House districts with a Democratic vote share between 50 and 52 percent and
three House districts with a Republican vote share between 50 and 52 percent—an
equal number—whereas the third revised plan contains 17 such Democratic House
districts but zero such Republican House districts. Regarding the Senate, the
independent map drawers’ plan has two Democratic seats in that competitive range
whereas the third revised plan has six such seats. Neither plan has any Republican
Senate seats in that range.
{¶ 76} Moreover, Dr. Rodden’s analysis indicates that the independent map
drawers’ plan outperforms the third revised plan on a number of other metrics: the
plan achieves partisan proportionality that closely corresponds to statewide voter
preferences, splits fewer voting precincts, and is more compact as a whole. Dr.
Rodden’s analysis also cuts against a consistent theme of respondents throughout this
litigation—that the commission’s prior maps were necessitated by Ohio’s political
geography. Dr. Rodden explained that the independent map drawers’ plan helps to
confirm that this was not the case. In other words, the plan on which Dr. McDonald
and Dr. Johnson performed considerable work appears on track to achieve what
respondents have consistently argued is impossible due to Ohio’s political
34
January Term, 2022
“geography” by which Republican and Democratic voters are distributed throughout
the state.
{¶ 77} Regardless of the availability of Dr. McDonald and Dr. Johnson to
complete their work on the plan they were preparing, the commission should continue
the course it began when it followed our and the attorney general’s recommendations
to engage independent map drawers. Even if the commission is unable to engage Dr.
McDonald and Dr. Johnson, the commission has a head start toward a complete and
possibly constitutionally compliant plan. Dr. McDonald and Dr. Johnson produced
an almost completed set of General Assembly–district maps for which the
commission agreed to pay them nearly $100,000. To completely abandon that work
seems like a waste of resources and taxpayer dollars and could take us further away
from the constitutionally required goal of a fair district plan. Just as in League III,
when we recommended that the commission take certain steps to ensure a
constitutional process, we now likewise express the view that the commission should
use the independent map drawers’ work thus far as a starting point for the next plan.
IV. CONCLUSION
{¶ 78} We sustain petitioners’ objections to the third revised plan under
Article XI, Sections 6(A) and 6(B) of the Ohio Constitution and invalidate the third
revised plan in its entirety. We further order the commission to be reconstituted, to
convene, and to draft and adopt an entirely new General Assembly–district plan
that meets the requirements of the Ohio Constitution, including Article XI, Sections
6(A) and 6(B) as we have explained those provisions in each of our four decisions
in these cases. As we suggested in League III, to promote transparency and increase
public trust, the drafting of the plan is best accomplished in public view with
frequent meetings to demonstrate the commission’s bipartisan efforts to reach a
constitutional plan. See __ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __, at ¶ 44.
35
SUPREME COURT OF OHIO
{¶ 79} We further order the commission to file the district plan with the
secretary of state by 9:00 a.m. on May 6, 2022, and to file it with this court by noon
on the same date. We retain jurisdiction for the purpose of reviewing the new plan.
{¶ 80} Petitioners shall file objections, if any, to the new plan by 9:00 a.m.,
three days after the new plan is filed in this court. Respondents shall file responses
by 9:00 a.m., three days after the objections are filed. If the deadline for objections
or responses falls on a Saturday, Sunday, or holiday, then the objections or
responses shall be filed by 9:00 a.m. on the next business day. Petitioners shall not
file a reply or any motion for leave to file a reply. The clerk of the court shall refuse
to accept any filings under this paragraph that are untimely or prohibited.
{¶ 81} No requests or stipulations for extension of time for the objections
or responses shall be filed, and the clerk shall refuse to file any requests or
stipulations for extension of time. For good cause shown, the commission may file
a motion for extension of time to file the district plan with the secretary of state.
And for the reasons explained above, we deny petitioners’ requests for additional
relief.
Objections sustained
and alternative or additional relief denied.
O’CONNOR, C.J., and STEWART and BRUNNER, JJ., concur.
DONNELLY, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion.
FISCHER, J., dissents, with an opinion and joins paragraphs 151-152 and
157-158 of Justice DeWine’s dissenting opinion.
DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
_________________
DONNELLY, J., concurring.
{¶ 82} I join the majority opinion in full. I write separately only to make
some additional observations.
36
January Term, 2022
{¶ 83} In League of Women Voters of Ohio v. Ohio Redistricting Comm.,
__ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __, ¶ 30, we suggested that “[t]he
[Ohio Redistricting Commission] should retain an independent map drawer—who
answers to all commission members, not only to the Republican legislative
leaders—to draft a plan through a transparent process.” The commission
commendably seemed to heed our suggestion by retaining two independent map
drawers, at public expense, whose map drawing was viewable by livestream to
promote transparency and increase public trust in the redistricting process.
{¶ 84} But just when the independent map drawers were perilously close to
showing that the difficult was achievable by drawing a General Assembly–district
plan that satisfied the proportionality requirements of Article XI, Section 6(B) of
the Ohio Constitution without partisan asymmetry that violated Article XI, Section
6(A), the commission’s majority-party members summarily pulled the plug on that
process. Discarding the independent map drawers’ work product, and to the shock
of many, commission member and respondent President of the Senate Matt
Huffman revealed a plan that had been prepared by majority-party staffers within
days of the deadline that cosmetically tweaked the invalidated second revised plan.
He then laid the third revised plan before the commission less than two hours before
the expiration of its deadline for adopting a new plan.
{¶ 85} The independent map drawers’ efforts were apparently little more
than a sideshow—yet more fodder in this political sport. In 2018, commission
member and respondent Secretary of State Frank LaRose, who was then a state
senator, co-authored an article calling for substantive changes to the way that state-
and federal-legislative districts are drawn. He was correct when he acknowledged
at that time that “[a]lthough both parties have been guilty of unfairly reconfiguring
districts to their benefit, Republicans have taken the heat in recent years for
prominent gerrymandering cases.” LaRose & Olsen, The Supreme Court didn’t act
on gerrymandering, so it’s up to state legislators to stop doing it, NBC News (June
37
SUPREME COURT OF OHIO
18, 2018), https://www.nbcnews.com/think/opinion/supreme-court-didn-t-act-
gerrymandering-so-it-s-state-ncna884501 [https://perma.cc/M7U7-2NUP].11 He
further stated, “Take it from us two Republican state legislators: Even if our party
benefitted, it’s still wrong. By gerrymandering districts, we send the message that
winning elections is more important than finding effective policy solutions for all
citizens. And when that happens, we lose the trust and confidence of the people we
were elected to represent.” Id. And he concluded the article by stating, “It’s time
to end gerrymandering—which protects party politics at the expense of the
American people—and allow true democracy to flourish.” Id.
{¶ 86} Yet, since the adoption of the constitutional reforms mandated by
Article XI, these cases have regrettably confirmed that relatively little has changed
in how legislative-district plans are drawn. The design of legislative districts
remains firmly in the grip of the majority party’s legislative politicians to the
exclusion of all others. The Ohio Redistricting Commission is independent in
theory only. Indeed, the commission’s plans in these cases have consistently been
drafted by the majority party’s political staffers to the exclusion of the minority
party and at times even to the virtual exclusion of the majority-party commission
members in order to maintain dominance by the majority party. The revised plans
were based largely on plans that we previously declared invalid and were withheld
until the majority party’s then-newest plan was revealed and perfunctorily adopted
at the 11th hour with no time for review or discussion. Yet Secretary of State
LaRose’s current stance is not to reexamine the flawed process used to generate
district plans but to remain open to the prospect of impeaching a judicial officer
who dared to have the temerity to support and defend the constitutional reforms
11. Indeed, as we said in Adams v. DeWine, __ Ohio St.3d __, 2022-Ohio-89, __ N.E.3d __, ¶ 2,
partisan gerrymandering, “by whichever political party has control to draw geographic boundaries
for elected state and congressional offices” to strategically exaggerate the power of the majority
party’s voters while diminishing the power of the minority party’s voters, perverts representative
democracy.
38
January Term, 2022
that Ohioans—like LaRose when he was a state senator—celebrated over partisan
tribal politics that value political power over all else. See Schladen, LaRose would
“be fine with” chief justice’s impeachment over redistricting rulings (Apr. 1, 2022),
https://ohiocapitaljournal.com/2022/04/01/larose-would-be-fine-with-chief-
justices-impeachment-over-redistricting-rulings/ [https://perma.cc/YXC8-JBLY].
{¶ 87} What appeared to be the start of a transparent redistricting process
when the two independent map drawers were engaged by the commission became
transparent only in the sense that it exposed the falsehood that some of the
commission members had fulfilled their obligations under the Ohio Constitution.
As to that, Ohioans are still watching and waiting.
_________________
KENNEDY, J., dissenting.
{¶ 88} The measure of power is its limits. Respecting the limits of power
is essential to our American form of government. Anything less is an affront to it.
{¶ 89} The essential characteristic of our government—the separation of
powers—is part of the woven fabric of the Ohio Constitution. See S. Euclid v.
Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). At their core, the
issues in these cases concern that basic concept.
{¶ 90} In yet another wiping-egg-from-its-face moment, the majority
retreats from its edicts in League of Women Voters of Ohio v. Ohio Redistricting
Comm., __ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __ (“League III”), to explain
that when it set out the steps the commission “should” take, it did not mean that the
commission must take those steps, and it now admits to petitioners in these cases
that this court does not have the power to tell the commission how to perform its
constitutional duties. All the majority can do is “suggest” steps the commission
could take. I agree that the Ohio Constitution does not give this court the power to
tell respondent Ohio Redistricting Commission, an independent constitutional
body, whom to hire, how to do its work, or who should draw a redistricting plan.
39
SUPREME COURT OF OHIO
Article XI, Section 9(B) of the Ohio Constitution merely provides that if a map is
invalidated, the redistricting commission is reconstituted pursuant to Article XI,
Section 1. And nothing in Section 9(B) or Section 1 gives this court power to
control the work of the commission.
{¶ 91} By recognizing this limitation, the majority takes one step forward
but two steps back, because it continues to ignore the limitations of its power by
redefining its power under Section 9. The plain, limiting language of Section
9(D)(3) provides that this court cannot invalidate a plan without a predicate
violation of the objective map-drawing requirements of Sections 2, 3, 4, 5, or 7. By
adhering to its view of unlimited power, the majority keeps bringing us back to
September 2021—the time when these redistricting cases were first filed; we are
stuck in a time loop, like the characters in the movie Groundhog Day. The movie,
of course, was comedic entertainment, but the outcome of these cases is anything
but that for the people of this state. The majority’s continued denial of the limitation
of this court’s power may end up costing the taxpayers millions of dollars—money
that is being consumed by the never-ending cycle of map drawing, litigation, and
now, two primaries, one on May 3 and the other perhaps on August 2, all ordained
by the majority’s overreach. The state is still without functional House and Senate
districts, and its voters have no idea when a primary will take place for General
Assembly offices.
{¶ 92} Because the Ohio Constitution does not give this court the power to
tell the commission how it “should” exercise its power and perform its work, I agree
with the majority that this court cannot hold it in contempt. I disagree, however,
with the majority’s determination that this court may continue to exercise judicial
power over these redistricting cases pursuant to Article XI, Sections 6(A) and 6(B),
and I dissent from its judgment invalidating yet another plan.
40
January Term, 2022
The Commission Cannot Be Held in Contempt
{¶ 93} The majority tries to walk back the imperative language it used in its
March 16 decision, which stated that the commission “should” hire an independent
map-drawing expert, convene frequent meetings to draw the maps in public, and
adopt a plan prepared by the commission as a whole. League III, __ Ohio St.3d __,
2022-Ohio-789, __ N.E.3d __ at ¶ 30, 44. It now frames these directives as mere
suggestions or recommendations, even though the word “should” expresses a duty
or obligation, Webster’s Third New International Dictionary 2104 (2002). The
majority also attempts to shift responsibility for its overreach onto Ohio Attorney
General Dave Yost, noting that he suggested treating the court’s directions “with
the degree of deference one might pay to the suggestions of one’s spouse.”
{¶ 94} But regardless of how the majority characterizes its prior opinion,
this court does not have the power to hold the commission or its members in
contempt. This court recently explained in Toledo v. State, 154 Ohio St.3d 41,
2018-Ohio-2358, 110 N.E.3d 1257, that “ ‘[t]he power of contempt is inherent in a
court, such power being necessary to the exercise of judicial functions.’ ” Id. at ¶
22, quoting Denovchek v. Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 15, 520
N.E.2d 1362 (1988). The primary interest at stake in a contempt proceeding is the
court’s “ ‘authority and proper functioning,’ ” id., quoting Denovchek at 16, so a
litigant may be held in contempt of court for conduct that “ ‘ “brings the
administration of justice into disrespect, or which tends to embarrass, impede or
obstruct a court in the performance of its functions,” ’ ” id., quoting Denovchek at
15, quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815
(1971), paragraph one of the syllabus.
{¶ 95} Our decision in Toledo continued, stating that “ ‘[i]f a valid
restrictive order has been issued, a court has the statutory and inherent power to
entertain contempt proceedings and punish disobedience of that order.’ ” Id. at ¶
23, quoting Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52
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SUPREME COURT OF OHIO
Ohio St.3d 56, 61, 556 N.E.2d 157 (1990). “But a court order cannot be enforced
in contempt unless the order was ‘clear and definite, unambiguous, and not subject
to dual interpretations.’ ” Id., quoting State ex rel. Cincinnati Enquirer v. Hunter,
138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, at ¶ 25.
{¶ 96} This court had no authority to tell the commission whom to hire or
how to do its work; therefore, it follows that the court cannot hold the commission
in contempt. Redistricting is a legislative process, Wilson v. Kasich, 134 Ohio St.3d
221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 20, and “the great heritage of the common
law and the principles of free government” provide the basis for legislative
immunity and, by extension, immunity to others when exercising a legislative
function, Bigelow v. Brumley, 138 Ohio St. 574, 582, 37 N.E.2d 584 (1941). Article
XI gives the responsibility for drafting and adopting a General Assembly–district
plan to the Ohio Redistricting Commission, an independent constitutional body, so
its members are not subject to personal liability or personal incarceration as
punishment for contempt for actions taken while engaged in the legislative process
of redistricting, see id. at 583-584. As we explained in Hicksville v. Blakeslee,
“[t]hat legislative officers are not liable personally for their legislative acts is so
elementary, so fundamentally sound, and has been so universally accepted, that but
few cases can be found where the doctrine has been questioned and judicially
declared.” 103 Ohio St. 508, 517, 134 N.E. 445 (1921).
{¶ 97} Adherence to the defined roles of each branch is essential to the
functioning of our representative democracy. Therefore, maintaining respect for
the enumerated powers granted expressly to the commission precludes this court
from interfering with the exercise of those powers or attempting to supervise the
commission’s work through the threat of contempt. In DeRolph v. State, the court’s
reasoning that “it is not the function of the judiciary to supervise or participate in
the legislative and executive process” applies equally to the commission, an
independent constitutional body exercising the legislative power. 78 Ohio St.3d
42
January Term, 2022
419, 420, 678 N.E.2d 886 (1997). It is therefore only after the commission has
completed its work and adopted a General Assembly–district plan that this court
has any power to review it. See Toledo at ¶ 29. Even then, the court may not
invalidate the plan unless it is inconsistent with the Constitution. See id. “The
separation-of-powers doctrine * * * precludes the judiciary from asserting control
over ‘the performance of duties that are purely legislative in character and over
which such legislative bodies have exclusive control.’ ” Toledo, 154 Ohio St.3d
41, 2018-Ohio-2358, 110 N.E.3d 1257, at ¶ 27, quoting State ex rel. Grendell v.
Davidson, 86 Ohio St.3d 629, 633, 716 N.E.2d 704 (1999).
{¶ 98} For these reasons, the commission cannot be held in contempt for
submitting a redistricting plan that did not come from the independent map drawers,
because this court had no power to order the commission to hire the independent
map drawers and to yield its constitutional power to them.
A Standalone Violation of Section 6 Is Not Actionable
{¶ 99} Seemingly, the majority eschews the limitations on this court’s
power established in Article XI, Section 9, because since the beginning of these
cases, the majority has construed Article XI broadly as granting this court the power
to invalidate a General Assembly plan for any reason.
{¶ 100} No one disputes that this court’s authority to review a General
Assembly–district plan comes from Section 9. However, Section 9(A) says only
that this court has subject-matter jurisdiction over all cases arising under Article
XI, and Section 9(B) does not contain any additional grant of power. And contrary
to its declaration in League I that it may invalidate a district plan for any reason,
the majority now recognizes that the court’s power of review is not unlimited,
because Sections 9(D)(1) and (D)(2) “expressly forbid,” majority opinion at ¶ 64,
this court from adopting the plans drawn by the commission’s independent map
drawers or by experts who have prepared alternative plans.
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SUPREME COURT OF OHIO
{¶ 101} Under Article XI, Section 9(D)(3), “[i]f the supreme court of Ohio
determines that a general assembly district plan adopted by the commission does
not comply with the requirements of Section 2, 3, 4, 5, or 7 of this article,” it may
invalidate a district plan in whole or in part, depending on the violation. And
because Article XI, Section 9(D) limits the available remedies to a plan that fails to
comply with Article XI, Sections 2, 3, 4, 5, or 7, petitioners’ claims asserted in this
litigation—that the plans adopted by the commission violate Sections 6(A) and
6(B)—have failed to state a claim for relief. This court has no power to invalidate
a plan simply because it violates Section 6.
Alternative Remedies
{¶ 102} Petitioners ask this court to adopt the incomplete redistricting plan
drawn by the commission’s independent map drawers. However, this plan has not
yet been judged in the crucible of cross-examination, and the majority admits that
“no one has yet verified that their plan fully complies with Article XI, Sections 2,
3, 4, and 7,” majority opinion at ¶ 75. The majority dismisses respondents Senate
President Matthew Huffman and Speaker of the House Robert Cupp’s concern that
the independent map drawers achieved a more proportional division by slicing
heavily Democratic urban areas and joining (or “spoking”) those slices with
Republican-leaning areas in rural or suburban areas. The majority then contends
that there is “no evidence” that this method of drawing districts results in less
compact districts. Id. at ¶ __. However, Dr. Michael Barber, an associate professor
of political science at Brigham Young University, explained early on in this
litigation that this method of drawing districts “requires intentional gerrymandering
and violates Article XI’s neutral map-making requirements” by dividing more
government units than allowed by Article XI, Section 3(D)(3). League of Women
Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-342,
___ N.E.3d ___ (“League II”), ¶ 124-127 (Kennedy and DeWine, JJ., dissenting).
Sections 6(A) and 6(B) provide that the commission must attempt to adopt a plan
44
January Term, 2022
that neither favors nor disfavors a political party and that corresponds closely to the
statewide preferences of Ohio voters. However, as Dr. Barber’s report explains,
Ohio’s political geography makes that practically impossible.
How Did We Get Here?
{¶ 103} This is the fourth time that petitioners have challenged the validity
of a General Assembly–district plan adopted by the commission, and a majority of
this court has invalidated each plan for not complying with Article XI, Sections
6(A) and 6(B) of the Ohio Constitution. See League of Women Voters of Ohio v.
Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___,
¶ 2 (“League I”); League II at ¶ 68; League III, ___ Ohio St.3d ___, 2022-Ohio-
789, ___ N.E.3d ___, at ¶ 2.
{¶ 104} This history is summarized in the following charts:
League I, __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __
January 12, 2022
Commission’s Redistricting Petitioners’ Challenges Majority’s Holding Majority’s Order
Plan
Plan favors Republicans: Court may invalidate a plan Commission did not “attempt” to Reconstitute
House: 62-to-37 margin for stand-alone violations of comply with Section 6(A) or 6(B) commission to adopt
Senate: 23-to-10 margin Section 6 The statewide preference of Ohio a plan in conformity
Plan violates Section 6(B) voters over the prior ten years was with the Ohio
because proportional political such that 54 percent of Ohio voters Constitution within
leaning of the districts within voted in favor of Republican ten days
the plan does not correspond candidates and 46 percent in favor Court retains
closely to the statewide of Democratic candidates, and the jurisdiction to review
preferences of Ohio voters plan did not closely correspond with the plan for
Plan violates Section 6(A) those preferences compliance with the
because it was drawn Plan violates Section 6(B) because majority’s order
primarily to favor the the commission had not shown that
majority party of the General a more proportionate plan was not
Assembly and disfavor the possible
minority party Plan violates Section 6(A) because
the commission as a whole had not
drafted the plan, it had not hired
independent map drawers, and one
party had controlled the map-
drawing software
45
SUPREME COURT OF OHIO
League II, __ Ohio St.3d __, 2022-Ohio-342, __ N.E.3d __
February 7, 2022
Commission’s Redistricting Petitioners’ Challenges Majority’s Holding Majority’s Order
Plan
Plan favors Republicans: Revised plan violates Sections To closely correspond with the Court orders the
House: 57-to-42 margin 6(A) and 6(B) statewide preferences of Ohio voters commission to draft a
Senate: 20-to-13 margin Commission violated Section under Section 6(B), a plan must new map from scratch
6(A) by drawing nominally match a 54-46 ratio, which is a Toss-up districts must
Democratic-leaning districts “foundational ratio created not by be excluded from the
The process the commission this court or by any particular proportionality
followed created the political party but instead etched by assessment or allocated
appearance of partisanship: the voters of Ohio into our to each party in close
(1) the commission did not Constitution,” League II at ¶ 64 proportionality to its
draw the maps as a body; Plan violates Section 6(B) because statewide vote share
instead, the maps were drawn it achieved proportionality by Commission must
by the same Republican drawing all close seats in adopt a plan by
staffers; and (2) the Democratic-leaning areas and not in February 17, 2022
commission failed to hold Republican-leaning ones, resulting Clerk of this court to
public hearings in partisan asymmetry “refuse to file any
Commission violated Section Districts with 51 percent or less requests or stipulations
6(B) because the number of Democratic lean are not districts for extension of time”
toss-up districts favors that favor Democrats
Republicans Plan violates Section 6(A) because
the drawing process showed the
intent to favor the Republican party:
(1) the commission did not redraw
the map from scratch, (2) the
commission failed to hold frequent
public meetings, and (3) the plan
was drafted by partisan staffers
46
January Term, 2022
League III, __ Ohio St.3d __, 2022-Ohio-789, __ N.E.3d __
March 16, 2022
Commission’s Redistricting Petitioners’ Challenges Majority’s Holding Majority’s Order
Plan
Plan favors Republicans: Commission failed to adopt a Plan violates Section 6(A) because Commission should
House: 54-to-45 margin new plan by February 17, 2022, the commission did not follow the retain an independent
Senate: 18-to-15 margin and petitioners request that it be process that Article XI requires map drawer
ordered to show cause why it Commission did not draft the plan; answerable to all
should not be held in contempt. instead, the plan was drawn by commission members
Republican staffers Drafting should occur
After the commission filed its Majority-party members of the in public
plan, the chief justice continues commission excluded the minority- Commission should
the hearing on the show-cause party members from participating convene frequent
order. in the plan’s creation meetings
Districts with a sub-52-percent Plan must be filed by
Petitioners argue that the third Democratic lean allocated to the March 28
revised plan violates Section Democratic Party under the second Clerk of this court
6(A) because revised plan are “competitive” “shall refuse to file any
19 Democratic-leaning House districts and, under the court’s requests or stipulations
districts favor Democrats by holding in League II, must be for extension of time,”
two points or less excluded when assessing the plan’s League III at ¶ 47
plan was drafted in private by overall proportionality
Republican staffers
.
Petitioners contend that the plan
violates Section 6(B) because the
26 competitive Democratic-
leaning districts could be won by
Republicans if the election
favored them by two points.
League of Women Voters of Ohio v. Ohio Redistricting Comm., __ Ohio St.3d __ 2022-Ohio-__, __ N.E.3d
__
April 14, 2022
Commission’s Redistricting Petitioners’ Challenges Majority’s Holding Majority’s Order
Plan
Plan favors Republicans: Petitioners renew their motions Plan violates Section 6(A) because Adopt a new plan by
House: 54-to-45 margin to hold the commission in it was not drafted and adopted by May 6
Senate: 18-to-15 margin contempt and object to the third the commission but, rather, Suggests drafting best
Number of sub-52-percent revised plan: modified the prior invalid plan; the accomplished in
Democratic-leaning Plan fails to comply with the plan remains disproportional frequent public
districts reduced by two in court’s order to hire an because all districts labeled as meetings to promote
House and by one in independent map drawer, to competitive lean Democratic transparency and
Senate draw the map in public as the There remains an aggregate increase public trust
commission, and to draw a asymmetry in the assignment of Recommends that
proportional map without toss-up districts, demonstrating commission use the
seeking to favor a party partisan bias under Section 6(A) independent map
Plan violates Section 6(A) for Too many districts that were makers’ work from
the same reasons plan in counted as Democratic districts are latest attempt as
League III did instead tossups, and that lack of starting point
Plan also violates Section proportionality violates Section Court retains
6(B), because all competitive 6(B) jurisdiction
seats have been drawn to lean “For good cause
Democratic shown, the
commission may file a
motion for extension
of time to file the
district plan with the
secretary of state,”
majority opinion, ¶ 81
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{¶ 105} These charts show how we have gotten to this point, but this flow
chart shows how the Constitution envisioned the redistricting process:
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{¶ 106} We are far afield from this roadmap, and Ohio is now stuck in a
proverbial “time loop” because the Constitution does not contemplate the outsized
role in redistricting that the majority has assumed for itself. Article XI includes an
impasse procedure that governs when the partisan officeholders who make up the
commission are at a stalemate. The result is a map that stays in place for four years.
The Constitution did not anticipate the majority’s claim to power under Article XI,
Section 9, and therefore, no procedure applies when a majority of this court and the
commission are at loggerheads. Instead, the process endlessly repeats itself. That
is where we are.
Conclusion
{¶ 107} The complaints in these cases allege that the General Assembly–
district plan adopted by the commission is unconstitutional, because the
commission failed to comply with Article XI, Sections 6(A) and 6(B) of the Ohio
Constitution. The majority continues relying on its overreach of power to invalidate
the plan based solely on a stand-alone violation of Section 6(A) or 6(B). Now, after
months have passed and thousands of taxpayer dollars have been spent, we are right
back to where we were on September 21, 2021, without any end in sight. With two
separate primaries looming, the taxpayers are looking at spending millions more.
Had we adhered to this court’s power to invalidate a district plan only if it violates
Sections 2, 3, 4, 5, or 7, the complaints would have been dismissed and the people
of Ohio would have been able to vote in all races on May 3, 2022.
_________________
FISCHER, J., dissenting.
{¶ 108} I respectfully dissent from the majority opinion’s decision to
sustain petitioners’ objections to the latest General Assembly–district plan.
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I. The majority opinion’s approach creates problems by running afoul of the
Ohio Constitution
{¶ 109} As noted in my previous separate opinions, all three complaints in
these cases allege that this matter is governed by the impasse procedures set forth
in Article XI, Section 8 of the Ohio Constitution. See League of Women Voters of
Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d
___, ¶ 280 (“League I”) (Fischer, J., dissenting); League of Women Voters of Ohio
v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___,
¶ 152 (“League II”) (Fischer, J., dissenting); League of Women Voters of Ohio v.
Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___,
¶ 195 (“League III”) (Fischer, J., dissenting). This court can neither ignore nor
change those allegations, and these are the same allegations that form the basis of
the challenges to the current plan in these cases. But, yet again, the majority opinion
does not take those uncontradicted allegations into account—all to the detriment of
Ohio and its citizens.
{¶ 110} Accordingly, once again, the majority opinion fails to follow the
words of the Ohio Constitution. See League III at ¶ 151 (Fischer, J., dissenting).
In doing so, as more fully explained below, the majority opinion undermines,
undercuts, and guts the entire structure of Article XI. See League II at ¶ 151
(Fischer, J., dissenting). And it is this subversion of the wording of Article XI that
is the reason the majority opinion today continues to create more and more
problems for Ohio.
{¶ 111} By eliminating the “stick” of a possible four-year plan, as specified
in the Ohio Constitution in Article XI, Section 8(C)(1)(a), while maintaining only
the “carrot” of a ten-year plan, today’s majority opinion tells, as it effectively has
repeatedly told, the minority-party members of respondent Ohio Redistricting
Commission to never agree, i.e., never, ever reach a compromise with the majority-
party members, because if the minority party does not get everything that it desires,
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then the minority group can just go back to court again and again and again until
the minority party gets exactly what it desires. And that is exactly what is
happening here.
{¶ 112} Without the continuing “threat” of the four-year plan as a “stick”
to prod compromise, the majority opinion destroys Article XI’s very foundation
and makes it mere dust. And the essence of that “dust” is then the “whims” or
current “feelings” of what a plan should be in the mind of a majority of this court.
The Ohio Constitution, and Article XI in particular, do not support this type of
decision.
{¶ 113} Thus, we have yet another majority opinion declaring a plan of the
commission unconstitutional—as there is no reason for any minority-party member
of the commission to come to a compromise with the majority-party members of
the commission, contrary to what Article XI, Section 8 of the Ohio Constitution
specified when it was approved by more than 70 percent of Ohio voters in 2015.
See League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 313
(Fischer, J., dissenting), citing Ohio Secretary of State, Statewide Issue History,
https://www.ohiosos.gov/elections/election-results-and-data/historical-election-
comparisons/statewide-issue-history/ (accessed Jan. 2, 2022)
[https://perma.cc/CK6W-2KUC]. If the majority opinions in these cases had not
undercut the Ohio Constitution by ignoring the constitutional text of Section 8, as
explained again below and in my prior separate opinions in these cases, then the
state of Ohio would have had a four-year General Assembly–district plan months
ago, no problems setting election dates, no threat of a federal court taking over the
drawing of Ohio’s House and Senate district lines, no extraconstitutional orders in
majority opinions in these cases, no motions for show-cause orders, and certainly
no continuing constitutional crisis.
{¶ 114} One might argue that I overreached when using the word
“generations” in my first dissent in these cases, League I at ¶ 351 (Fischer, J.,
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dissenting) (“[t]he resulting lack of the citizens’ support will harm the judicial
branch of Ohio’s government for generations”), and that perhaps I should have used
the phrase “for many years to come” instead. Nevertheless, my prediction of
problems to come to Ohio because of the majority opinions disregarding the text of
Article XI, Section 8, unfortunately has come true, although I wish I had been
wrong. But the list of problems set forth in the paragraph above is directly—and
undeniably—caused by the majority opinions not following the wording of the
Constitution.
II. The structure of Article XI, Section 8
{¶ 115} As I have said before, see id. at ¶ 282-286 (Fischer, J., dissenting);
League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 152 (Fischer,
J., dissenting), Article XI, Section 8(C)(1)(a) specifies that a four-year plan—and
all the adopted plans have been four-year plans—is in effect for two election cycles
(four years), without exception, unlike the six-year plan in the same part of Article
XI and the ten-year plan in Article XI, Section 8(B):
(B) If the commission adopts a final general assembly
district plan in accordance with division (A)(3) of this section by the
vote required to adopt a plan under division (B)(3) of Section 1 of
this article, the plan shall take effect upon filing with the secretary
of state and shall remain effective until the next year ending in the
numeral one, except as provided in Section 9 of this article.
(C)(1)(a) Except as otherwise provided in division (C)(1)(b)
of this section, if the commission adopts a final general assembly
district plan in accordance with division (A)(3) of this section by a
simple majority vote of the commission, and not by the vote required
to adopt a plan under division (B)(3) of Section 1 of this article, the
plan shall take effect upon filing with the secretary of state and shall
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remain effective until two general elections for the house of
representatives have occurred under the plan.
(b) If the commission adopts a final general assembly district
plan in accordance with division (A)(3) of this section by a simple
majority vote of the commission, and not by the vote required to
adopt a plan under division (B) of Section 1 of this article, and that
plan is adopted to replace a plan that ceased to be effective under
division (C)(1)(a) of this section before a year ending in the numeral
one, the plan adopted under this division shall take effect upon filing
with the secretary of state and shall remain effective until a year
ending in the numeral one, except as provided in Section 9 of this
article.
(Emphasis added.) I emphasize, once again, see League I at ¶ 286 (Fischer, J.,
dissenting); League II at ¶ 152 (Fischer, J., dissenting), that Section 8(C)(1)(a)
contains no exception providing that the effectiveness of a four-year plan is subject
to Article XI, Section 9.
III. The majority opinion continues to head in the wrong direction
{¶ 116} As a further “bad consequence” of ignoring this wording, the
majority opinions have either wrongfully ordered or improperly “advised” the Ohio
Redistricting Commission to take particular actions, and this court has no authority
to do either of those things. See League III, ___ Ohio St.3d ___, 2022-Ohio-789,
___ N.E.3d ___, at ¶ 30 (“[t]he commission should retain an independent map
drawer” [emphasis added]); id. at ¶ 44 (“the drafting should occur in public and the
commissioners should convene frequent meetings to demonstrate their bipartisan
efforts to reach a constitutional plan within the time set by this court” [emphasis
added]).
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SUPREME COURT OF OHIO
{¶ 117} If this “should” language of the League III majority opinion stating
that the commission should/must follow certain procedures in drafting a plan
constituted an order of this court, then it was an order of dubious enforceability, as
the Ohio Supreme Court has no authority under the Ohio Constitution to demand
another state constitutional entity, especially one acting in a legislative capacity, to
do anything. See State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476,
789 N.E.2d 195, ¶ 34, quoting DeRolph v. State, 78 Ohio St.3d 419, 422, 678
N.E.2d 886 (1997) (Moyer, C.J., concurring in part and dissenting in part)
(“ ‘Typically, when a Supreme Court declares a legislative act to be
unconstitutional it does not order the legislative body to enact new legislation. Nor
does it remand the case to a trial court with an order to retain jurisdiction over the
consequent act of the legislative authority, including jurisdiction to rule upon the
constitutionality of the new legislation’ ”); Toledo v. State, 154 Ohio St.3d 41,
2018-Ohio-2358, 110 N.E.3d 1257, ¶ 2 (a court cannot order the legislature not to
enact specific legislation, as the legislature has exclusive authority over duties that
are purely legislative in nature).
{¶ 118} And if the majority opinions’ wordings were merely
“recommendations” or “advisory,” in any way, then the majority opinions—like
today’s version—constitute unconstitutional advisory opinions, in absolute
disregard of longstanding and repeated caselaw of this court. See, e.g., State ex rel.
White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.3d 508, ¶ 18
(“Our conclusion comports with our well-settled precedent that we will not indulge
in advisory opinions”), citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of
Elections, 90 Ohio St.3d 238, 242, 736 N.E.2d 893 (2000); Egan v. Natl. Distillers
& Chem. Corp., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus (“it is well-
settled that this court will not indulge in advisory opinions”). And as today’s
majority opinion, id. at ¶ 39, and concurring opinion, id. at ¶ 83 (Donnelly, J.,
concurring), indicate, if the “should” language was advisory and/or merely
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suggestive, then this court must later consider whether petitioners’ motions for
show-cause orders/contempt violate Civ.R. 11. Members of this court have had to
spend substantial time reviewing those baseless and unnecessary motions.
{¶ 119} Either extraconstitutional action from these majority opinions is the
result—and an outward and obvious sign or symbol—of this court far exceeding its
role in Ohio’s government, violating the separation of powers inherent in the Ohio
Constitution, see Cleveland Bar Assn. v. Picklo, 96 Ohio St.3d 195, 2002-Ohio-
3995, 772 N.E.2d 1187, ¶ 4, quoting S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-
159, 503 N.E.2d 136 (1986), citing State v. Warner, 55 Ohio St.3d 31, 43-44, 564
N.E.2d 18 (1990); State ex rel. Atty. Gen. v. Harmon, 31 Ohio St. 250 (1877), and
thus undermining the rule of law in this state—a mistaken and problematic role for
this court, which must always act to support the rule of law.
{¶ 120} This latest majority opinion takes the
extraconstitutional/unconstitutional approach a step further by conducting an
approving advisory review of the independent map drawers’ incomplete plan,
which the map drawers have not even reviewed to verify whether it complies with
the Ohio Constitution, as acknowledged in the majority opinion. See majority
opinion at ¶ 70. Again, this advisory review contravenes longstanding precedent
from this court. See Egan at syllabus (“it is well-settled that this court will not
indulge in advisory opinions”); Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E.21
(1910), quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293
(1895) (“ ‘The duty of this court, as of every other judicial tribunal, is to decide
actual controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions * * *’ ”).
{¶ 121} Not only does the majority opinion conduct an advisory review, but
it also tries to “signal” to the commission what type of redistricting plan it demands,
see majority opinion at ¶ 69-74, because the court knows that it cannot directly
create a plan under Article XI. Article XI, Section 9(D)(1) and (D)(2). And this
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SUPREME COURT OF OHIO
court cannot indirectly do, via signaling, what it cannot do directly. See Suon v.
Mong, 10th Dist. Franklin No. 17AP-879, 2018-Ohio-4187, ¶ 16; State v. Jamison,
2d Dist. Montgomery No. 23211, 2010-Ohio-965, ¶ 37; Tarr v. Walter, 7th Dist.
Jefferson No. 01 JE 7, 2002-Ohio-3188, ¶ 31.
IV. Once again, the “beyond a reasonable doubt” standard has not been met
{¶ 122} I also point out that petitioners once again fail to prove anything
beyond a reasonable doubt, which is the applicable standard in these cases. League
III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 153-154 (Fischer, J.,
dissenting), citing League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___,
at ¶ 339-340 (Fischer, J., dissenting), citing Wilson v. Kasich, 134 Ohio St.3d 221,
2012-Ohio-5367, 981 N.E.2d 814, ¶ 20.
{¶ 123} As an initial example, Dr. Douglas Johnson’s affidavit, as even
today’s majority opinion notes, majority opinion at ¶ 33, shows that the independent
map drawers were constrained by Ohio’s geography, Constitution, and time
limitations. And one of the map drawers had to leave at the last minute. And the
so-called independent maps have obvious constitutional problems, which Dr.
Johnson acknowledged still needed to be resolved. It should be emphasized that
the commission members did not have an opportunity to incorporate their own
amendments into Dr. Johnson’s work. Moreover, the “independence” of this map
is dubious, as Dr. Johnson acknowledged that he used a portion of a map of
northeast Ohio that was drawn by Chris Glassburn, a consultant who had been
retained by the Democratic legislative caucuses. Thus, any evidentiary analysis in
the majority opinion as to the maps that were submitted is wrongful, improper, and
unconstitutional under our caselaw as well as Article XI.
{¶ 124} As a second example, the majority opinion attempts to rely on Dr.
Michael Latner’s concept of a “2 percentage” change in future voting. Majority
opinion at ¶ 51. This is, at best, pure speculation because the shift of 2 percentage
points may not be equally distributed as current voting patterns occur, just like the
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geographic distribution of Ohio voters is “all over the place,” as recognized by Dr.
Michael McDonald, and no one may reasonably predict how local issues, especially
local tax-increase issues and other local initiatives and referenda, can “tweak” the
whereabouts of changes in locations of voter turnout. Moreover, the record
includes contrary viewpoints on this subject, i.e., under a 5 percent future vote-
change concept.
{¶ 125} Now, both concepts are speculative, at best, and based on in futuro
concepts that are inadmissible under Ohio’s Rules of Evidence. Neither should be
accepted by this court without proper cross-examination.
{¶ 126} But even if not speculative and somehow admissible, both theories
would then apply to this court’s analysis. And if those pushing the 2 percent
concept have the burden to show unconstitutionality beyond a reasonable doubt,
then those submitting the 5 percent contrary authority negate the evidence
supposedly amounting to proof beyond a reasonable doubt. In addition, while the
majority opinion relies on the assertion that the map drawers were nearly finished
with completing a map when commission members decided to move forward with
an alternative approach, see majority opinion at ¶ 23, no one has offered an
explanation why it took until April 12 for a so-called independent map to be filed
with this court, see April 12, 2022 Notice of Filing, case No. 2021-1198. Once
again, just like the prior majority opinions, the majority opinion here touts the
proper standard of evidence but then refuses to actually enforce that standard. See
League I, ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, at ¶ 343 (Fischer,
J., dissenting); League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at
¶ 154 (Fischer, J., dissenting).
V. Conclusion
{¶ 127} The majority opinions in these cases continue to harm this court,
the Ohio Constitution, and all citizens of this great state. These opinions have
placed this state on an unconstitutional path. While this latest majority opinion asks
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the federal court to stay its hand, in reality, it may take federal intervention to place
Ohio back “enroute” because the extraconstitutional—and thus unconstitutional—
analysis embraced in the majority opinions prevents a return to Ohio’s actual
constitutional road. See League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___
N.E.3d ___, at ¶ 151 (Fischer, J., dissenting). By ignoring its constitutional
limitations, usurping authority it lacks, and violating the separation-of-powers
doctrine inherent in the Ohio Constitution, Picklo, 96 Ohio St.3d 195, 2002-Ohio-
3995, 772 N.E.2d 1187, at ¶ 4, the majority opinions in these cases have gotten this
court stuck in the mud. If the federal court does not tow this court out of that mud,
these cases may be relitigated and relitigated, over and over, all year.
{¶ 128} For these reasons, in the hope of saving this honorable court from
future misadventures like these, I respectfully dissent. See Lewis, 99 Ohio St.3d
97, 2003-Ohio-2476, 789 N.E.2d 195, at ¶ 32-33 (once a legislative act has been
declared unconstitutional, the duty lies with the legislative branch to remedy that
unconstitutional act and the courts should refrain from exercising further
jurisdiction).
_________________
DEWINE, J., dissenting.
{¶ 129} It’s déjà vu all over again.12 For the fourth time, the majority holds
that a map enacted by the Ohio Redistricting Commission violates the Ohio
Constitution. That’s what it says, anyway. But if anything is clear at this point, it
is that the majority has long ago forsaken any concern about the actual words of the
Constitution—it simply demands a General Assembly–district plan that achieves
its policy goals.
{¶ 130} With each iteration of these cases, it becomes more evident that a
rogue majority is simply exercising raw political power. No one should be
12. Yogi Berra.
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deceived. The document that the majority issues today may be in the “form of a
judicial opinion,” Bostock v. Clayton Cty., __ U.S. __, __, 140 S.Ct. 1731, 1754,
207 L.Ed.2d 218 (2020) (Alito, J., dissenting), but what the majority does today is
legislate, not adjudicate.
{¶ 131} A more comprehensive discussion of how the majority has gone
astray is provided in the dissenting opinions in the previous decisions in these cases.
See League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d
___, 2022-Ohio-65, ___ N.E.3d ___; League of Women Voters of Ohio v. Ohio
Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___
(“League II”); League of Women Voters of Ohio v. Ohio Redistricting Comm., ___
Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___ (“League III”). For today, I will
make just a few points.
I. We have a mess on our hands because this court has ignored the
constitutional limits on its authority
{¶ 132} Ohio will have two primary elections this year, costing taxpayers
an estimated extra $20 to $25 million. Candidates and voters still have no idea
which candidates will be running in which districts. And a federal court is weighing
whether it needs to step in and save us from ourselves.
{¶ 133} All of this was easily avoidable. The Ohio Constitution explicitly
provides that “if the supreme court of Ohio determines that a general assembly
district plan adopted by the commission does not comply with the requirements of
Section 2, 3, 4, 5, or 7 of this article,” this court may order the commission to
reconvene and adopt a new map. (Emphasis supplied.) Article XI, Section 9(D)(3).
The alleged violations here—related to statewide proportionality and excessive
partisanship—are all premised on Section 6. There is nothing in the Constitution
that gives this court authority to order the commission to create a new district plan
based on violations of Section 6. Rather, if Republicans and Democrats fail to
cooperate and adopt a plan that both political parties consider fair, the Ohio
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Constitution provides a nonjudicial remedy: a plan that lasts only four years instead
of ten. See id. at Section 8(C)(1)(a).
{¶ 134} It may be that the architects of the General Assembly–redistricting
amendment were overly optimistic. Perhaps the threat of a plan lasting only four
years was not the stick it was thought to be to induce partisan political actors to
cooperate. But that is the remedy provided by the Constitution—this court has no
authority to make up one of its own. And now Ohio’s citizens are paying in
electoral chaos the price of this court’s overreach.
II. The majority’s extraconstitutional hostility toward competitive districts
{¶ 135} The Constitution says that the commission “shall 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.” Article XI, Section 6(B). Without
question, the commission not only attempted to meet, but actually met, this
standard. Both the third and now the fourth enacted plans contain districts that
precisely achieve this metric, with 54 Republican-leaning House districts and 45
Democratic-leaning House districts and an 18-to-15 ratio in the Senate.
{¶ 136} The majority, though, has created a new standard—“partisan
symmetry,” majority opinion, ¶ 75—found nowhere in the Constitution. It says
that competitive districts “ ‘must either be excluded from the proportionality
assessment or be allocated to each party in close proportion to its statewide vote
share.’ ” Id. at ¶ 57, quoting League II, ___ Ohio St.3d ___, 2022-Ohio-342, ___
N.E.3d ___, at ¶ 62. But why? And how? There is certainly no basis for this
requirement in the text of the Constitution. And no one has shown that it is even
possible to meet this judge-crafted standard.
{¶ 137} Indeed, the “independent map drawers” that the commission hired
on the majority’s instructions, League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___
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N.E.3d ___, at ¶ 30 (“The commission should retain an independent map drawer”),
didn’t do much better at achieving this extraconstitutional metric than the
commission. Not only did the independent map drawers fail to complete their work
by this court’s deadline, but they made only modest gains in reducing partisan
asymmetry. For example, in finding the third enacted plan unconstitutional, the
majority relied on expert testimony that “a 5 percent uniform swing in favor of the
Republican Party across all [House] districts would result in up to 23 additional
Republican seats, while the same swing in favor of the Democratic Party would
result in a gain of, at most, two seats.” Id. at ¶ 33. Under the incomplete plan drawn
by the independent map drawers, a 5 percent Republican swing would result in 21
additional Republican seats while the same swing in favor of the Democratic Party
would result in only 6 additional Democratic seats.
{¶ 138} And the limited progress the independent map drawers made
toward the majority’s made-up partisan-symmetry benchmark came at the expense
of constitutional requirements governing compactness and keeping political
subdivisions intact. Dr. Douglas Johnson, one of the independent map drawers,
explained that in their “quest to get as close to symmetry” as possible, they were
“kind of blowing through compactness.”
{¶ 139} As Speaker of the House Robert Cupp and President of the Senate
Matt Huffman point out, the independent map drawers used a “hub and spoke”
approach to draw districts in urban and suburban areas so that cities are carved up
like slices of a pizza. The majority doesn’t dispute this characterization. (How
could it?) Rather, it says respondents “cite no evidence or authority for the
proposition that the ‘hub and spoke’ districts they describe are not compact.”
Majority opinion at ¶ 54. No evidence? How about a simple eyeball test? Take a
gander at a few examples of the independent map drawers’ work in Cincinnati,
Akron, and Dayton:
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62
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{¶ 140} The Constitution requires that district boundaries be created “using
the boundaries of counties, municipal corporations, and townships.” Article XI,
Section 7. And the commission “shall attempt” to draw districts that are “compact.”
Section 6(C). Does anyone really believe that slicing up metropolitan areas like a
pizza with no concern for political-subdivision boundaries meets these
requirements? Of course not. But that’s exactly the process the majority has foisted
upon the commission.
{¶ 141} The work of the independent map drawers proves the lie of the
majority’s premise. As every expert in this case—including the independent map
drawers—to opine on the issue has acknowledged, the political geography of Ohio
makes it nearly impossible to meet the majority’s requirement to achieve partisan
symmetry in the makeup of competitive districts. See League III, ___ Ohio St.3d
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SUPREME COURT OF OHIO
___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 90 (Kennedy and DeWine, JJ.,
dissenting). The majority’s answer is to require the commission to reverse-
gerrymander (or hire map drawers who will)—that is, carve up Ohio’s metropolitan
areas like a pie to maximize the number of solidly Democratic districts. In doing
so, it commands exactly what the Constitution forbids: gerrymandering.
{¶ 142} The majority turns the language of Article XI, Section 6(A)—“[n]o
general assembly district plan shall be drawn primarily to disfavor or favor a
political party”—on its head. It orders the commission to draw maps with a single
objective: overcoming Ohio’s political geography through the creation of safe
districts that guarantee Democratic wins. That may meet the policy objectives of
some, but it has no basis in the text of the Ohio Constitution.
III. This court has no authority to direct the commission’s work
or to advise its duties
{¶ 143} Likely fearing that an activist court would do exactly what the
majority has done, the drafters of the redistricting amendment placed sharp limits
on this court’s authority. In its first sentence, the amendment commands that the
redistricting commission “shall be responsible for the redistricting of this state for
the general assembly.” (Emphasis supplied.) Article XI, Section 1(A). And in a
belt-and-suspenders approach, it provides further: “No court shall order, in any
circumstance, the implementation or enforcement of any general assembly district
plan that has not been approved by the commission in the manner prescribed by
this article.” (Emphasis supplied.) Id. at Section 9(D)(1). And if that weren’t
enough to get the point across, the amendment adds that “[n]o court shall order the
commission to adopt a particular general assembly district plan or to draw a
particular district.” Id. at Section 9(D)(2). Further, this court may order the
commission to revise or draw a new map only for certain violations of objective
standards. See id. at Section 9(D)(3). (The majority, of course, has long since
blown past this last restraint.)
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{¶ 144} Despite these limits, the majority has repeatedly attempted to
micromanage the commission’s work, imposing requirements found nowhere in the
Constitution. For example, one of the reasons the court gave in League III for
finding the plan unconstitutional was a purported violation of Article XI, Section
1(C), which provides: “The commission shall draft the proposed plan in the manner
prescribed in this article.” According to the majority, “the commission has adopted
three plans so far, but it still has not drafted one.” (Emphasis deleted.) League III,
___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, at ¶ 25. Thus, the majority
directed the commission to “retain an independent map drawer” and ordered the
commission to produce a new map within 12 days. Id. at ¶ 30, 45.
{¶ 145} Heeding the majority’s admonition, the commission hired two
independent map drawers. It’s hard to see how a map drafted by independent map
drawers would any more comply with the majority’s requirement that the plan be
drafted by the commission than the previous plans that were drafted by staff and
adopted by a majority vote of the commission. After all, neither would be drafted
collectively by the commission. But the commission nonetheless did what it was
told. And while the independent map drawers made substantial progress in drafting
a plan, they were not able to comply with the arbitrary 12-day deadline this court
had set.
{¶ 146} One might think that the majority would have learned a lesson
about imposing arbitrary deadlines on an independent constitutional body.
Apparently not. Instead, it engages in a remarkable bit of revisionist history. The
majority acknowledges that the independent map drawers were unable to meet this
court’s deadline. But instead of recognizing the failure of its attempt to
micromanage the commission’s work, it faults the commission for not asking for
an extension of the deadline. And it goes so far as to claim that Senate President
Huffman and House Speaker Cupp misread League III when they told the
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commission that this court had said that no requests for an extension would be
entertained.
{¶ 147} But that is exactly what League III provided. Paragraph 45 of
League III, ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, ordered the
commission to file the district plan with the secretary of state no later than March
28 and with this court by 9:00 the next morning. Paragraph 46 ordered objections
to be filed no more than three days later. And paragraph 47 provided that “[n]o
requests or stipulations for extension of time shall be filed, and the clerk of this
court shall refuse to file any requests or stipulations for extension of time.” The
majority now says that “it is not proper to read paragraph 47 in isolation; it should
be read in context. And in the paragraph prior to paragraph 47, we stated that
untimely filings ‘under this paragraph’ were prohibited.” Majority opinion at ¶ 40,
fn. 8. That’s nonsense. If paragraph 47 was meant to be a continuation of paragraph
46, there would have been no need to make it a separate paragraph at all. By making
paragraph 47’s no-extensions order into a separate paragraph and placing it
immediately after the two paragraphs setting deadlines, it is clear that the court
meant no extensions would be granted. Period.
IV. The majority’s cavalier approach to Ohio election law and the duties of Ohio’s
election officials
{¶ 148} The majority spends a good portion of its opinion practically
begging a federal court not to intervene and clean up the mess that the majority has
created. At the same time, though, the majority inspires little confidence that it will
allow the state of Ohio to conduct an orderly election. To the contrary, it cavalierly
treats Ohio’s statutory framework for elections as an unnecessary nuisance and
disregards the complexities of holding multiple elections in a short time frame.
{¶ 149} In addition to the regular May primary in non-presidential-election
years and the November general election, R.C. 3501.01(E)(1) and (A), Ohio law
provides that a special election may be held on the first Tuesday after the first
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Monday in August, R.C. 3501.01(D). The majority, though, treats the statutorily
prescribed special date as a mere suggestion:
We are mindful of representations made by or on behalf of
the secretary of state in the pending Gonidakis federal-court
proceedings that a district plan must be in place by April 20 for the
last possible primary-election date for the 2022 election, August 2, to
be feasible. However, we fail to see how this contention should
motivate us—or the federal court for that matter—to adopt a plan for
the 2022 state legislative elections by April 20. It is unclear as to
why August 2, 2022, is the last available date for a primary election
in Ohio. We note that several states have primary elections on
August 16, 2022, or later, including four states that will have their
primary elections in September. Thus, on the record before us, the
so-called April 20 “deadline” for implementing a General
Assembly–district plan appears to be an artificial deadline that is
based on a speculative, potential primary-election date for state
legislative races.
(Emphasis supplied; footnote and citation omitted.) Majority opinion at ¶ 68, citing
Gonidakis v. Ohio Redistricting Comm., S.D.Ohio case No. 2:22-cv-0773. Wow.
Take a minute to unpack what the majority has just said.
{¶ 150} Start with the majority’s assertion that this court shouldn’t be
“motivated” by deadlines based on election dates established by statute. That right
there pretty much sums up the majority’s attitude about the other—supposedly
coequal—branches of government. The legislature’s considered judgment about
when to hold elections matters not; there is no reason to bother the court with such
frivolities. But see R.C. 3501.40 (“no public official shall cause an election to be
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conducted other than in the time, place, and manner prescribed by the Revised
Code”).
{¶ 151} Next, consider the majority’s characterization of the secretary of
state’s representation that to hold an orderly election, districts must be finalized by
April 20. The majority brushes this off as “an artificial deadline that is based on a
speculative, potential primary-election date for state legislative races.” Majority
opinion at ¶ 68. What possibly is the basis for this claim by the majority? The
majority hasn’t asked for any evidence on this point from the secretary of state, the
“chief election officer of the state,” R.C. 3501.04. And the only thing the majority
points to in support of its bluster is the fact that a few other states—which
presumably have different election systems and laws—hold later elections.
{¶ 152} Indeed, the majority does not even try to account for the myriad
laws that govern elections in Ohio and the constraints that they impose on the
timing of elections. For example, under the Uniformed and Overseas Citizens
Absentee Voting Act, 52 U.S.C. 20302, overseas ballots must be printed and
prepared 46 days before the primary election. R.C. 3509.01(B)(1); R.C.
3511.04(B). After the primary election is held, there is a 20-day period in which
overseas ballots may be received. 2022 Am.Sub.S.B. No. 11, Section 5(B)(1).
Provisional ballots may not be opened until 7 days after an election, see R.C.
3505.183, and the election results are not certified until 21 days after the election.
2022 Am.Sub.S.B. No. 11, Section 5(D). And, of course, general-election ballots
cannot be prepared until the primary election results are certified and it is
determined who the candidates are. Under federal law, overseas general-election
ballots must be printed and mailed 45 days before the general election. 52 U.S.C.
20302(a)(8)(A); see also R.C. 3511.04(B) (46 days). Early voting begins 29 days
before the general election. See R.C. 3509.01(B).
{¶ 153} Then there are the practical difficulties in holding another primary
election close in time to the general election. Ohio had some 3,563 polling places
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in 2020.13 Poll workers need to be recruited, hired, and trained to staff these
locations. R.C. 3501.27(B) and (D). Ballots need to be printed. See generally R.C.
3505.08; R.C. 3505.13. Voting machines need to be programmed. See R.C.
3506.14. Presumably, a good number of localities will hold an August special
election as provided by statute. See R.C. 3501.01(D). These localities will face the
additional challenges inherent in holding three separate elections within a four-
month period.
{¶ 154} (And let’s not forget why we have elections in the first place. The
voters are entitled to the information they need to make meaningful choices. That
entails some period of time in which voters and candidates know the district lines
so candidates can campaign and voters can assess the candidates.)
{¶ 155} To be fair, I can’t say with certainty that what the majority suggests
is impossible. But the majority cannot fairly say that it is possible. We are judges,
after all, not election officials. We have no institutional expertise in the mechanics
of holding elections. And the person who does—Ohio’s secretary of state—has
made clear that he thinks April 20 is the drop-dead date for holding an orderly
election. There is nothing in the record before us that would suggest that that is
untrue. This court is no better qualified to dispute the administrative calculus of
Ohio’s chief election official than is the secretary of state to tell this court the
meaning of the Ohio Constitution. See majority opinion at ¶ 36 (“We do not defer
to the commission’s legal interpretations”).
{¶ 156} At this juncture, though, the majority’s dismissive attitude toward
the practical concerns of holding an orderly election should hardly come as a
13. See U.S. Election Assistance Commission, Election Administration and Voting Survey 2020
Comprehensive Report, available at https://www.eac.gov/sites/default/files/document_library/files
/2020_EAVS_Report_Final_508c.pdf#page=29 (accessed Apr. 14, 2022) [https://perma.cc/TN9T-
G4R2] and Election Administration and Voting Survey 2020 Datasets Version 1.1, available at
https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys (accessed Apr. 14, 2022)
[https://perma.cc/AX9A-XV6X].
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surprise. Throughout this litigation, the majority has shown little concern for the
realities facing the commission and election officials. On the first three go-rounds,
this court gave the commission ten, ten, and twelve days, respectively, to adopt a
new plan. In contrast, the court allowed itself a leisurely 111 days to review the
first enacted plan, 13 days to review the second enacted plan, 16 days to review the
third enacted plan, and now 13 days to review the fourth plan. Today, the majority
is a little more generous in the time it gives the commission to draft a new plan.
But that “generosity” comes late—perhaps too late—in the game.
{¶ 157} Furthermore, the majority has made the commission’s task
considerably more difficult by prohibiting it from using a previously invalidated
plan as a starting point. See id. at ¶ 78 (“We further order * * * that the commission
draft and adopt an entirely new General Assembly–district plan”); see also League
II, ___ Ohio St.3d ___, 2022-Ohio-342, ___ N.E.3d ___, at ¶ 38. In the eyes of the
majority, issuing a revised plan that is “no more than a modification” of a
previously invalidated plan, majority opinion at ¶ 42, is “ ‘tantamount to an intent
to preserve as much partisan favoritism as could be salvaged from the invalidated
plan,’ ” id. at ¶ 41, quoting League II at ¶ 38. Why on earth should that be the case?
Isn’t it conceivable that a few tweaks could fix a close-but-not-quite-good-enough
plan? Nonetheless, it seems that the commission has only two options that will
satisfy the majority: either try to fix the independent map drawers’ slice-and-dice
plan or start entirely from scratch. What basis for that is there in the Constitution?
{¶ 158} Indeed, it is amazing that despite prohibiting the commission from
working off its previous plan, the majority has no qualms about strongly suggesting
that the commission work from the independent map drawers’ plan—a plan that
has never been adopted or subjected to adversarial testing. The majority tells the
commission that it “appears that the most efficient” course is for the independent
map drawers to continue to work on the map and it provides various other guidance
about how the commission should proceed. Majority opinion at ¶ 74. This court,
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however, is forbidden from “order[ing] the commission to adopt a particular
general assembly district plan.” Article XI, Section 9(D)(2). In defiant disregard
of that proscription, the majority prejudges a plan yet to be adopted and strongly
implies that any alternative will be frowned upon. The majority’s insistence on
telling the commission how to do its job is simply more evidence of how far away
the majority has gotten from its own.
V. Conclusion
{¶ 159} This court’s job is to adhere to the text of the Constitution. It is not
to impose extraconstitutional standards on the commission in an attempt to achieve
political outcomes that the court finds desirable. And it is not to micromanage a
task that the Constitution entrusts solely to the commission.
{¶ 160} If it is really true that history repeats itself, first as tragedy then as
farce, we are now comfortably in the farce stage. The fourth enacted plan complies
with all constitutional standards. It is long past time for the majority to
acknowledge as much and put an end to the chaos it has created. Because the
majority does not, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
FISCHER, J., concurs in paragraphs 151-152 and paragraphs 157-158 of the
foregoing opinion.
_________________
ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey;
American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and
Covi
This text is long and has been trimmed here. Open the source document for the complete record.