Reply Brief — Steve Chabot, et al., Appellants v. Ohio A. Philip Randolph Institute, et al.

No. 18A1166

IN THE

SUPREME COURT OF THE UNITED STATES

________________________

STEVE CHABOT, et al.,

Applicants,

v.

OHIO A. PHILIP RANDOLPH INSTITUTE, et al.,

Respondents.

________________________

REPLY BRIEF IN SUPPORT OF EMERGENCY APPLICATION FOR

STAY PENDING RESOLUTION OF DIRECT APPEAL TO THIS COURT

________________________

PATRICK T. LEWIS

BAKER & HOSTETLER LLP

127 Public Square, Suite 2000

Cleveland, OH 44114

ROBERT J. TUCKER

ERIKA DACKIN PROUTY

BAKER & HOSTETLER LLP

200 Civic Center Drive,

Suite 1200

Columbus, OH 43215

EFREM M. BRADEN

Counsel of Record

KATHERINE L. MCKNIGHT

RICHARD B. RAILE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., NW

Suite 1100

Washington, DC 20036

(202) 861-1504

mbraden@bakerlaw.com

Counsel for Applicants

TABLE OF CONTENTS

Table of Authorities .................................................................................................... ii

Argument .....................................................................................................................3

I. The Court Is Likely To Note Probable Jurisdiction and

Reverse or Vacate the Decision and Injunction Below ....................................3

A.

Respondents Ignore the High Likelihood of

Summary Vacatur and Remand as a Matter of

Course .....................................................................................................4

B.

Respondents Fail To Defend the District Court’s

Many Legal Errors .................................................................................4

II. Irreparable Harm Will Result Absent This Court’s

Intervention, and the Balance of Equities Favors a Stay .............................11

Conclusion ..................................................................................................................16

i

TABLE OF AUTHORITIES

Cases

Abbott v. Perez, 138 S. Ct. 49 (2017) .........................................................................11

Abbott v. Perez, 138 S. Ct. 2305 (2018) ............................................................... 11, 14

Baker v. Carr, 369 U.S. 186 (1962) .............................................................................6

Barthuli v. Bd. of Trustees of Jefferson Elementary Sch. Dist.,

434 U.S. 1337 (1977) ............................................................................................11

Burns v. Richardson, 384 U.S. 73 (1966) ....................................................................9

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432

(1985) ......................................................................................................................7

Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ......................................8

Easley v. Cromartie (Cromartie II), 532 U.S. 234 (2001) ...........................................9

Gill v. Whitford, 137 S. Ct. 2289 (2017) ....................................................................12

Gill v. Whitford, 138 S. Ct. 1916 (2018) .............................................................. 3, 5–6

Karcher v. Daggett, 455 U.S. 1303 (1982) .................................................................12

Karcher v. Daggett, 462 U.S. 725 (1983) .....................................................................9

League of United Latin Am. Citizens v. Perry, 548 U.S. 399

(2006) ......................................................................................................................8

New York v. United States, 505 U.S. 144 (1992) ......................................................13

Reynolds v. Sims, 377 U.S. 533 (1964)......................................................................13

Vieth v. Jubelirer, 541 U.S. 267 (2004) ................................................... 1–2, 5–10, 15

Voinovich v. Quilter, 507 U.S. 146 (1993) ...................................................................9

White v. Weiser, 412 U.S. 783 (1973)...........................................................................9

ii

TO THE HONORABLE SONIA SOTOMAYOR, ASSOCIATE JUSTICE OF THE SUPREME COURT

OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT:

It is undisputed that Ohio’s 2011 congressional districting plan, which the

district court struck down as unconstitutionally discriminatory against Democratic

Party interests, passed the Ohio legislature with the support of half the Democratic

members. It is further undisputed that this plan divided the political cost of Ohio’s

loss of two congressional seats evenly between the major parties by pairing “two

Republican representatives and two Democratic representatives.” App-14. The

legislature chose to maintain district 11 as a majority-minority district as it had been

since the 1960s, App-16, and to create a new minority opportunity seat in Franklin

County, which had the largest population growth in the State, so that another African

American member might join Ohio’s congressional delegation, App-17–18. This was

a priority of the Democratic members of the legislature. Stay Mot. 7–8.

Those points of agreement on what the district court called the “major features”

of the 2011 plan, App-14 (cleaned up), indicate that, even if political redistricting

violated the Constitution, the district court’s test has identified a false positive—a

case where, the merits of the political choices aside, federal judicial relief is

inappropriate. After all, “[t]he use of purely political considerations in drawing

district boundaries is not a ‘necessary evil’ that, for lack of judicially manageable

standards, the Constitution inevitably must tolerate. Rather, pure politics often helps

to secure constitutionally important democratic objectives.” Vieth v. Jubelirer, 541

U.S. 267, 355 (2004) (Breyer, J., dissenting). As such, “boundaries are not, and should

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not be, ‘politics free.’” Id. at 360. But “politics free” is the rule applied below, and

Respondents do not suggest otherwise.

Instead, Respondents ask this Court to deny a stay because the district court

was “closer to the facts.” Opp. 11 (quotations omitted). This is too clever by half. The

federal courts’ quest for manageable standards to distinguish constitutional from

unconstitutional partisan redistricting cannot be resolved by recharacterizing the

question as one of fact. Here, the critical facts are as plain as day, and most are

undisputed. The question is whether they rise to the level of a constitutional

violation—and what standard applies to that question. Respondents, for example, do

not dispute that half of the Democratic legislators voted for the plan, but ask the

Court to afford this fact no legal significance. Opp. 8. The Court is unlikely to agree

with this and the many other legal premises of the decision below, which upset the

“series of compromises” and the “truce”—however “uneasy”—between the “parties

seeking political advantage.” Vieth, 541 U.S. at 360 (Breyer, J., dissenting).

This Court is therefore likely to reverse—if not vacate as a matter of course

once it issues its decisions in Rucho and Benisek—and that matters because

irreparable harm is certain without a stay. Respondents ask this Court to ignore its

own precedent of staying partisan-gerrymandering actions on markedly similar time

frames and to overlook the reality of what the district court’s remedial process entails.

The district court gave the legislature one, and only one, chance to redistrict, and it

must do so by June 14 or lose its opportunity. Asking it to do so now, before this

appeal is decided, is asking it to fly blind as to the applicable law; to risk prejudicing

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its appeal; to potentially hamstring its ability to return to the 2011 plan if it is

victorious; and, if nothing else, to waste its time on a difficult legislative activity likely

to prove entirely unnecessary.

And Respondents are likely to experience no counterbalancing harm since they

concede no plan will be implemented until after Rucho and Benisek are issued. Once

that occurs, the district court’s injunction will likely be vacated as a matter of course,

and the court will be required to return to the question of liability. Thus, it is unlikely

that Respondents will see any of their desired relief until later this summer at the

earliest, so the hurry they advocate is likely to prove futile. The Court should stay

the injunction below pending appeal. 1

ARGUMENT

I.

The Court Is Likely To Note Probable Jurisdiction and Reverse or

Vacate the Decision and Injunction Below

Respondents’ decision to leave the first element, probability of success, for last

is no accident. Opp. 20–28. Their task in defending the district court is a tall one. This

Court is currently considering the most fundamental aspects of this area of law—

including whether a partisan-gerrymandering claim even exists. Gill v. Whitford, 138

S. Ct. 1916, 1929 (2018). Thus, Respondents’ assertion (at 20) that the district court

1 As the Applicants’ stay briefing explained (at 4, 19), this Court can treat their stay

application as a jurisdictional statement and vacate the injunction below to swiftly

resolve this appeal once Benisek and Rucho are issued. Respondents lodge no

objection to that approach, and their demand for urgency suggests agreement in

principle.

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“followed this Court’s precedent” carries no substance. It could not have done so

because there is precious little precedent to follow. And what does exist—e.g., Vieth’s

rejection of a predominance test—the district court either ignored or declined to

honor. See, e.g., App-167–73. Similarly, Respondents’ assertion (at 20) that the

district court’s opinion enjoys the support of “sister three-judge panels” means even

less when those opinions are currently stayed; two are under review in this Court;

and none, of course, are binding here. This element is satisfied.

A.

Respondents Ignore the High Likelihood of Summary Vacatur

and Remand as a Matter of Course

Respondents have nothing to say of the clearest reason the Applicants are

likely to succeed, which is that this Court will likely, as a matter of course, vacate

and remand the district court’s injunction after its Rucho and Benisek decisions are

issued. That will require the district court to return to the drawing board on the

question of liability, make new findings as necessary, and apply what this Court

declares to be the law to this case in the first instance. That would be success on the

merits, and the first element is met on this basis alone. Respondents’ failure to

respond to this point is telling.

B.

Respondents Fail To Defend the District Court’s Many Legal

Errors

Respondents defend the district court’s decision simply by reciting (at 22–27)

the legal tests it adopted and calling (at 27) everything else a challenge to “factual

conclusions,” which they say command this Court’s deference. But whether a

standard is the right standard, whether it is manageable, and how it applies are all

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quintessential legal questions. It cannot be that whether or not the district court

acted “in the manner traditional for English and American courts,” Vieth v. Jubelirer,

541 U.S. 267, 278 (2004) (plurality opinion), is beyond this Court’s ability to review.

But that is the implication of Respondents’ approach.

1.

As to standing, Respondents assert vaguely (at 26–27) that they

established standing because of a showing of “packing and cracking.” But

Respondents do not explain how “packed” Respondents have suffered a redressable

injury from having too easy a time electing their preferred representatives. Stay Mot.

19–20. Nor do they dispute that their own remedial map places many Respondents in

safe Republican districts where they are unlikely to be able to elect their preferred

candidates of choice (i.e., Democratic candidates). Stay Mot. 19–22. That is no

different from the scenario this Court addressed in Gill, where one plaintiff’s “own

demonstration map resulted in a virtually identical district for him,” since it “has not

affected [his] individual vote for his Assembly representative.” 138 S. Ct. at 1933.

The district court made no contrary factual findings, and Respondents sidestep

this by asserting (at 27) that “the Panel determined that the packing and cracking

demonstrated by Plaintiffs was not caused by the natural political geography of the

state.” This is misleading. The pages Respondents cite, App-258–61, are pages where

the district court had shifted the burden to the defense. That is, it did not find that

“packing and cracking…was not caused by the natural political geography of the

state.” Rather, it found that the State and the Applicants had not shouldered the

burden of disproving this presumption of causation. But it was Respondents’ burden

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to establish standing, not the Applicants’ burden to disprove standing. Moreover, the

other pages Respondents cite, App-190–92, involve statewide showings of harm,

which are precisely the types of evidence found insufficient in Gill. This analysis is

unlikely to survive this Court’s scrutiny.

2.

As to justiciability, Respondents simply parrot (at 20–21) the standards

discussed in Baker v. Carr, 369 U.S. 186, 217 (1962), and call them met. But, as the

Applicants’ stay application explains (at 24), a test of “intent,” “effect,” and “lack of

justification” answers none of the questions raised in Vieth—in particular, the

question of when partisan intent goes too far. And, indeed, the test looks suspiciously

like at least one test Vieth expressly rejected. See, e.g., Vieth, 541 U.S. at 295–98

(plurality opinion) (rejecting intent-effect-justification standard); id. at 308

(Kennedy, J., concurring) (“The plurality demonstrates the shortcomings of the other

standards that have been considered to date.”). Respondents have no response.

What’s worse, they fail to indicate what plan will ever survive the district

court’s test. As the Applicants’ stay motion observes (at 24), no plan to date has been

upheld under the district court’s test. The apparent result in application is that no

consideration of politics is permissible. That view has gained little traction in this

Court. See, e.g., Vieth, 541 U.S. at 360 (Breyer, J., dissenting). Moreover, Respondents

ignore the necessary implication of their legal theory as applied to this case—that the

Ohio legislature, which sought to split the apportionment burden evenly among the

parties, was constitutionally required to burden only Republican political interests,

pairing or otherwise harming only Republican incumbents—since its choice of an

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even split of incumbents was deemed unconstitutional. That proposed rule is patently

untenable. Stay Mot. 26. All of this gives cold comfort to anyone concerned that

partisan-gerrymandering claims, if recognized, “would commit federal and state

courts to unprecedented intervention in the American political process” and “risk

assuming political, not legal, responsibility for a process that often produces ill will

and distrust.” Vieth, 541 U.S. at 306–07 (Kennedy, J., concurring). Thus,

Respondents’ assertion (at 21) that this is no different from other federal-court review

of state election laws rings hollow. See Vieth, 541 U.S. at 290 (plurality opinion) (“Our

one-person, one-vote cases have no bearing upon this question, neither in principle

nor in practicality.”).

3.

On the merits, Respondents have no answer to the Applicants’

observation that the district court’s predominance test has been rejected. Stay Mot.

29–30. Respondents concede (at 23) that the district court applied a predominance

test but fail to explain how that was an option when five Justices in Vieth rejected it.

Respondents simply recite the test and call it justified because the district court

“looked to this Court’s equal protection jurisprudence.” Opp. 23. It may have, but it

misinterpreted that jurisprudence. For strict scrutiny to apply as it does in racialdiscrimination cases, a suspect classification must be identified, City of Cleburne, Tex.

v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985), and at least six Justices held in

Vieth that political considerations are not inherently suspect, Vieth, 541 U.S. at 285

(plurality opinion); id. at 313–14 (Kennedy, J., concurring); id. at 360 (Breyer, J.,

dissenting). Applying what amounted to strict scrutiny here was legal error.

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Equally unavailing is Respondents’ reliance on free-speech, free-association,

and Article I principles. For one thing, these provisions were before the Court in

Vieth, see 541 U.S. at 305–06 (plurality opinion), id. at 314 (Kennedy, J., concurring),

so the tests Vieth definitively rejected are no more available under these provisions

than under the Equal Protection Clause. See also League of United Latin Am. Citizens

v. Perry, 548 U.S. 399, 409 (2006). That all these arguments rise or (more likely) fall

together is implicit in the district court’s application of materially identical standards

to all claims. App-262, App-270.

Besides, Respondents identify no burden on the right to speak or associate, and

the district court found that “[t]here is no serious dispute that nothing about the

current map categorically prohibits Plaintiffs from engaging in these activities.” App135. The right to succeed in elections is not like the right of a voter to access a ballot

or of a party to control its internal affairs, so there is no burden requiring justification

under the Anderson/Burdick framework. See Crawford v. Marion Cty. Election Bd.,

553 U.S. 181, 203–04 (2008) (holding partisan motive does not amount to a burden

the right to vote). Every eligible voter in Ohio can cast a ballot, every vote is counted,

and parties are free to advocate and organize as they please. Neither Respondents

nor the district court has cited any case even hinting that the right to elect one’s

preferred candidates is incorporated in these provisions.

4.

Respondents’ characterization (at 26–27) of all other aspects of this

appeal as factual is unpersuasive. They ignore the fact that the district court made

most of the critical factual determinations after it shifted the burden to the defense

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to justify the supposed burden on constitutional rights. But this Court’s precedent

has required redistricting challengers to establish that an impermissible motive or

effect explains the district lines as part of their prima facie case. See Easley v.

Cromartie (Cromartie II), 532 U.S. 234, 243 (2001). The district court here erred in

demanding justification with the burden on the defense—requiring in effect that the

defense prove that the district lines resulted from only permissible motives and

imposed only permissible effects. That error was a legal error unlikely to withstand

scrutiny on appeal.

In particular, the district court’s order erroneously required the defense to

justify the State’s Voting Rights Act and minority-opportunity goals under a racialgerrymandering strict-scrutiny standard and to establish that its incumbencyprotection goals were “protected.” Stay Mot. 32–34. But this Court’s precedent

supports both goals, holding that drawing a majority-minority district is a legitimate

policy objective requiring no justification, Voinovich v. Quilter, 507 U.S. 146, 156

(1993), as is the goal of incumbency protection, Burns v. Richardson, 384 U.S. 73, 89

n.16 (1966); White v. Wiser, 412 U.S. 783, 791 (1973); Vieth, 541 U.S. at 358–61

(Breyer, J., dissenting) (conceding incumbency protection as legitimate purpose

distinct from partisan entrenchment); id. at 351 n.6 (Souter, J., dissenting) (similar

conclusion); see also Karcher v. Daggett, 462 U.S. 725, 740 (1983). The factual findings

on these points were rendered after an improper burden shift, which is a legal error.

Moreover, the district court’s holdings that these goals were illegitimate was nothing

more than disagreement with the legislature’s political and policy judgments.

9

Indeed, Respondents mischaracterize the district court’s factual findings and

overstate the degree to which facts are in dispute. It is not in dispute that a majority

of Democratic legislators voted for the plan, that a 13–3 map was possible and

rejected, that Democratic members had input, that the legislature intended to

preserve a majority-minority district in northeast Ohio, and so on. For the most part,

the question here is not whether some specific fact is true or not but whether the facts

have any constitutional significance.

The 2011 plan does not violate any fair and manageable standard that might

apply to partisan-gerrymandering claims. Democratic members were in the best

position to know whether a redistricting plan discriminated against their perceived

supporters or, instead, represented “an uneasy truce, sanctioned by tradition, among

different parties seeking political advantage.” Vieth, 541 U.S. at 360 (Breyer, J.,

dissenting). Because it is highly unlikely that Democratic members would vote at

high levels for a discriminatory plan, a challenger in a case like this should be

required (at a minimum) to prove with particularity how this fact is consistent with

a claim of partisan discrimination. The district court, however, gave this fact no

weight at all. Similarly, the protection of incumbents of both parties cannot be

deemed “too much partisanship” by anyone’s standard, Vieth, 541 U.S. at 344 (Souter,

J., dissenting), so a plan called biased in favor of Republicans that forced three

Republican incumbents to run against other incumbents is also highly unlikely to be

unconstitutional for partisan reasons. The 2011 plan resulted from the legislature’s

express rejection of more one-sided partisan plans proposed. Even if that choice

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contained elements of self interest, it proves that gerrymandering is self-limiting.

Stay Mot. 26. Altruism and self-sacrifice are not constitutional commands.

The district court was not entitled to delve further into the legislative process

and second-guess each and every political decision as it did. Its very approach in doing

so is the error, and it cannot be fairly characterized as an error of fact. All of the

district court’s legal principles were wrong, and a fair prospect of reversal on even

one would justify a stay.

II.

Irreparable Harm Will Result Absent This Court’s Intervention, and

the Balance of Equities Favors a Stay

A.

Respondents fail to meaningfully address the irreparable harm asserted

in this case. Their contention (at 13) that “enjoining the challenged map for use in

future elections” presents no injury ignores this Court’s express holding that “the

[State’s] inability to enforce its duly enacted plans clearly inflicts irreparable harm

on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018) (citing Maryland v.

King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)). For their contrary

argument, Respondents rely on Barthuli v. Bd. of Trustees of Jefferson Elementary

Sch. Dist., 434 U.S. 1337 (1977) (Rehnquist, J., in chambers), a case about a school

employment contract with no apparent factual relevance to this one—no reference to

redistricting, elections, or even an enjoined state law. Respondents, meanwhile,

ignore Abbott, a redistricting case where this Court, just two Terms ago, issued a stay

of an injunction over a year before the next scheduled general election. Abbott v.

Perez, 138 S. Ct. 49 (Sept. 12, 2017). Nor do they address this Court’s issuance of a

11

stay in Gill on June 19, 2017. Gill v. Whitford, 137 S. Ct. 2289 (2017). These cases

demonstrate in practice what this Court has expressly held: an injunction against a

state statute is irreparable harm, justifying a stay.

The reliance interests of the entire general public on this type of state law

render that harm particularly acute. The district court has not shown “respect for the

time that election administrators, candidates, and voters need to adapt to new district

lines,” Opp. 18, when it has chosen to demand a new redistricting (either by the

legislature or under its own powers) before learning whether its injunction will be

upheld on appeal. Respondents’ argument for immediate action is self-defeating,

since the irreparable-harm inquiry assumes the Applicants will succeed on appeal,

not that they will fail (as Respondents assume). By implementing a plan before the

case is concluded, the district court has chosen to place the voters in a position where

they will likely see one plan (the 2011 plan) then another (the 2019 plan) then another

(the 2011 plan) and yet another (the 2021 plan) within a two-year period. This makes

no practical sense and undermines the orderly elections process.

B.

Respondents also ignore the independent harm resulting from the state

legislature’s choice “either [to] adopt an alternative redistricting plan…or face the

prospect that the District Court will implement its own redistricting plan.” Karcher

v. Daggett, 455 U.S. 1303, 1306 (1982) (Brennan, J., in chambers). That, too, is

irreparable harm. And it is imminent because the district court set a June 14, 2019,

deadline for the state legislature to choose its poison. Immediate relief is essential to

allow the legislature to defer legislative action (or inaction, as the case may be) until

12

after this Court has addressed the merits of the district court’s decision—or at least

until its forthcoming Rucho and Benisek opinions are issued.

Respondents cite nothing for their position (at 13–14) that no irreparable harm

will result from this legislative dilemma, and they mischaracterize the choice the

legislature faces. It is simply not true that “[b]eing given an option to act is no injury

at all,” Opp. 14, when the options presented are (1) undertaking the sovereign and

entirely discretionary act of passing a law, see New York v. United States, 505 U.S.

144, 178 (1992), or (2) stepping aside to watch the court seize the sovereign power

over that act for itself.

That is not an “option” in the ordinary sense of that term; it is fundamentally

coercive, like the proverbial gun to the head. Redistricting is “primarily a matter for

legislative consideration and determination.” Reynolds v. Sims, 377 U.S. 533, 586

(1964). The district court was required to afford the Ohio legislature the first

opportunity to craft a remedy because federal district courts must always “refrain[]

from acting further until the…Legislature ha[s] been given an opportunity to remedy

the” violation. Id. The legislature, then, is not merely faced with “[t]he mere

exploration of remedial possibilities,” Opp. 14, but with the task of enacting a plan to

comply with an order whose validity it vehemently contests or to hand over its

authority to a federal court to seize that task for itself. An “opportunity to set the

agenda for the remedial process,” Opp. 15, is indeed irreparable harm if failure to act

results in federal-court seizure over that agenda.

13

Moreover, the legislature’s choice is necessarily constrained and impacted by

the outcome of the appeal, but the June 14 deadline does not allow the legislature to

wait until the appeal has concluded to assess whether and how to exercise its

redistricting “option.” Accordingly, the legislature faces a strong incentive not to

exercise its “option” at all, since doing so would create new legislation to govern future

elections. See Abbott, 138 S. Ct. at 2324–30 (applying the ordinary good-faith

standard applicable to all legislation to redistricting plan enacted to remedy violation

of law). Respondents seem to believe that new legislation does not become law until

the district court approves it. Not true. Although the district court maintains the

power to review any new plan the legislature adopts, the new legislation will be the

law setting new congressional districts for Ohio unless and until the district court

finds that plan unconstitutional as well (and likely without any new trial over the

new districts).

New legislation might risk mooting the appeal. And, even if it does not have

that effect, the legislature, if successful on appeal, may still be required to enact yet

further legislation to rescind the new map and revert to the 2011 plan. Furthermore,

the legislature risks enacting a plan that satisfies one set of principles, based on its

good-faith reading of the district court’s order, only to find after appellate review that

an entirely different set of principles governs. Thus, the “option” to redistrict before,

14

rather than after, the legislature learns of the ultimate resolution of fundamental yetto-be-decided matters is not a meaningful one. 2

This harm is irreparable. The legislature has one, and only one, shot at

meeting the district court’s standard. The district court did not signal that it would

allow the legislature a second chance to redistrict after its appeal concludes; to the

contrary, it expressly stated “[n]o continuances will be granted.” App-295. The

legislature, then, is forced to make its choices once and with limited information.

C.

The balance of harms is entirely one-sided for the simple reason that

vacatur and remand is almost certain once the Rucho and Benisek decisions are

issued. Respondents offer their balance-of-harms analyses under the misimpression

that, once Rucho and Benisek are issued, the remedial proceeding will press forward

under their “guidance.” Opp. 2. That is highly unlikely. Rather, once Rucho and

Benisek are issued, this Court’s prior practice indicates that it will likely vacate the

district court’s injunction and remand to allow the district court to assess in the first

instance what parts of its 300-page liability opinion are impacted. Thus, the district

Respondents’ blithe assertion that “[n]ot drawing a partisan gerrymander is

straightforward,” Opp. 16, is empty rhetoric. “[B]oundaries are not, and should not

be, ‘politics free.’” Vieth, 541 U.S. at 360 (Breyer, J., dissenting). The legislature must

make innumerable discretionary decisions to divide Ohio’s millions of residents into

sixteen equally populated districts. And it must do so in the wake of being told that

its 2011 policy choices—such as compliance with the Voting Rights Act, creating a

majority-opportunity district in Franklin County, and protecting incumbents of both

parties—are unconstitutional because they ostensibly burdened Democratic Party

political interests. How can the legislature know what policy choices are next on the

chopping block until this Court rules?

15

2

court will be required to return to the liability question. In the meantime, the

injunction will lose all force and effect, and the remedial proceedings will terminate,

having no legal basis to proceed.

Thus, it is almost inevitable that, for any remedy to be implemented, the

district court must address the merits of the case again and (if appropriate) reach

another determination of liability and (if necessary) issue another injunction. All of

those steps must occur before Respondents’ asserted interest in a new map can be

vindicated. Their description of harm to their interests is a description of what will

occur in any event. What is causing the bottleneck here is not the remedial

proceeding; it is the forthcoming Rucho and Benisek decisions, which must be

consulted before this matter can reach a final judgment.

Accordingly, on the one side of the balance lie a set of harms Respondents will

incur in any event, and on the other lie a set of harms that can easily be avoided by a

stay. That is not a difficult choice.

CONCLUSION

The Court should stay the injunction below and remedial proceedings pending

appeal. Alternatively, the Court should stay the injunction and remedial proceedings

pending its forthcoming Rucho and Benisek decisions, treat this stay application as a

jurisdictional statement, and vacate and remand the opinion and injunction below

once those decisions are issued for further consideration.

16

Respectfully submitted,

PATRICK T. LEWIS

BAKER & HOSTETLER LLP

127 Public Square, Suite 2000

Cleveland, OH 44114

ROBERT J. TUCKER

ERIKA DACKIN PROUTY

BAKER & HOSTETLER LLP

200 Civic Center Drive,

Suite 1200

Columbus, OH 43215

EFREM M. BRADEN

Counsel of Record

KATHERINE L. MCKNIGHT

RICHARD B. RAILE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., NW,

Suite 1100

Washington, DC 20036

(202) 861-1504

mbraden@bakerlaw.com

May 21, 2019

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