League of Women Voters of Ohio v. Ohio Redistricting Comm'n

168 Ohio St.3d 28

195 N.E.3d 974

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.

Nos. 2021-1193, 2021-1198,

2021-1210

Supreme Court of Ohio.

Submitted February 1, 2022

Decided February 7, 2022.

ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey ; American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein ; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González, Juliana Goldrosen, David Denuyl, L. Brady Bender, Alex Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1193.

McTigue, Colombo & Clinger, L.L.C., Columbus, Donald J. McTigue, and Derek S. Clinger ; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Jyoti Jasrasaria, and Spencer W. Klein, for petitioners in case No. 2021-1198.

Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A. Sutherland, Ben R. Fliegel, Brad A. Funari, and Danielle L. Stewart ; and Brennan Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij Rudensky, Michael Li, Harry Black, and Ethan Herenstein, for petitioners in case No. 2021-1210.

Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, Columbus, and Ashley Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission.

Senator Vernon Sykes and House Minority Leader Allison Russo, pro se.

Per Curiam.

I. INTRODUCTION

{¶ 1} On January 12, 2022, this court held that the General Assembly–district plan adopted by respondent Ohio Redistricting Commission in September 2021 was invalid. League of Women Voters of Ohio v. Ohio Redistricting Comm. , 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 2, 138. We held that petitioners¹ had proved beyond a reasonable doubt that the commission had not attempted to draw a district plan that met the standard in Article XI, Section 6(A) of the Ohio Constitution —which requires that no plan be drawn primarily to favor a political party—or the proportionality standard in Article XI, Section 6(B) —which requires that the statewide proportion of districts whose voters favor each political party correspond closely to the statewide preferences of the voters of Ohio. Id. at ¶ 2, 114, 131, 138. We ordered the commission to be reconstituted and to adopt a new plan in conformity with the standards set forth in Sections 6(A) and 6 (B) within ten days of our judgment. Id. at ¶ 137-139. We retained jurisdiction for the purpose of reviewing the new plan and authorized petitioners to file objections to the new plan within three days of the plan's adoption. Id. at ¶ 139.

{¶ 2} The commission adopted a plan on January 22. Petitioners timely objected, arguing that the plan does not meet the standards set forth in Sections 6(A) and 6 (B). Some of the petitioners also argue that the plan improperly splits municipalities and townships in violation of Article XI, Section 3(D)(3) and that the commission violated certain procedural requirements in Article XI, Section 1(C). The commission timely responded to the objections.

{¶ 3} We hold that petitioners have shown beyond a reasonable doubt that the plan adopted by the commission on January 22 violates Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. We do not reach the alleged violations of Article XI, Section 1(C) and Section 3(D)(3). As explained in more detail below, we again order the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution.

II. BACKGROUND

A. The commission reconvenes

{¶ 4} On January 16, 2022—four days after we issued our decision invalidating the original district plan—the commission announced that it would reconvene on January 18. The commission's announcement stated that individual commission members were instructing their respective staff members to "begin identifying possible areas to address the court's ruling regarding Section 6 of the Ohio Constitution" and that commission members would "have access to other commission members’ relevant staff and contractors."

{¶ 5} On January 17, Ray DiRossi and Blake Springhetti, who worked for the Senate and House Republican Caucuses, respectively, and who were the map drawers for the commission's original district plan, met with staffers for the Senate and House Democratic Caucuses and Chris Glassburn, a consultant retained by the Democratic legislative caucuses for map-drawing purposes. Among other things, they all seem to have agreed that they would use election data from all statewide federal and state partisan elections from 2016 to 2020.²

{¶ 6} During the January 18 commission meeting, Governor Mike DeWine administered the oath of office to a new commission member, House Minority Leader Allison Russo, who replaced Representative Emilia Sykes.³ Some of the commission members expressed their understanding of the commission's task in light of this court's ruling. Yet the commission members did not engage in any map drawing or otherwise specifically explain how they intended to redraw the district plan.

{¶ 7} After the meeting, staff representatives of each commission member met and agreed to continue meeting in the days ahead. At some point, the commission members decided to take a "regional" approach to the map-drawing process. On January 19, DiRossi and Springhetti began emailing other staff representatives possible changes to House and Senate districts in different regions of the state, requesting feedback. DiRossi and Springhetti started with proposed changes in Franklin and Hamilton Counties and later sent a proposal regarding Lorain County. On January 20, Glassburn replied with the "[D]emocratic responses" to the proposals for Franklin and Hamilton Counties.

B. The commission's January 20 meeting

{¶ 8} The commission met again on January 20. Speaker of the House Robert Cupp, who cochaired the commission with Senator Vernon Sykes, said that staff for each of the commission members—both the legislative members and the statewide-officeholder members—had been working together but that the commission had not yet reached an agreement. House Speaker Cupp further said that "[w]e"—presumably referring to himself and President of the Senate Matthew Huffman or to Republican members of the commission—had proposals for Franklin and Hamilton Counties and their surrounding areas, which had been posted to the commission's website. In an affidavit submitted to this court, Senator Sykes stated that he was "caught off guard" by that statement because he did not know that the Republican commission members would be submitting their own county maps on the commission's website before the commission had reached a consensus on how those districts would be drawn. Senator Sykes requested a recess.

{¶ 9} House Speaker Cupp's proposal included a map of the areas in and around Franklin and Hamilton Counties, the boundaries of the proposed districts in those areas, and the "index"—i.e., the partisan leaning—for each district. For example, under his proposal, Franklin and Union Counties would include 11 Democratic-leaning House districts, 1 Republican-leaning House district, 4 Democratic-leaning Senate districts, and 0 Republican-leaning Senate districts—which was one fewer Republican-leaning House district and one fewer Republican-leaning Senate district than in the same territory under the commission's original district plan. But some of the Democratic-leaning districts favored Democratic candidates by very slim margins, including a Senate district with a 50.08 Democratic index and a House district with a 50.14 Democratic index. House Speaker Cupp's proposal for Hamilton and Warren Counties included one fewer Republican-leaning House district than in the commission's original district plan. But again, one House district had a 50.14 Democratic index.

{¶ 10} After the recess, House Speaker Cupp gave a brief presentation of his proposal. He said that the maps were drawn to keep the districts compact and competitive and "to take a step towards the proportionality requirement of the Constitution, as explained by the Ohio Supreme Court." Senator Sykes introduced Glassburn to present a "counter" on behalf of the Democratic members of the commission. Glassburn distributed his own maps for Franklin and Hamilton Counties—which by that point had also been posted on the commission's website—and explained the similarities with and differences from the "Republicans’ proposal." Significantly, he noted that in the Democratic proposal, both Senate districts within Hamilton County leaned Democratic, while the Republican proposal included only one Democratic-leaning Senate district. Senator Sykes repeatedly said that reconfiguring those Hamilton County Senate districts would be a simple way for the commission to move toward proportionality. Glassburn also cautioned that if one political party had a disproportionate number of districts in which the party was favored by just over 50 percent, the "court's concerns regarding the asymmetry of districts * * * will come into play."

{¶ 11} In response to a question from Auditor of State Keith Faber, Glassburn said it was "more than possible" to comply with Article XI, Sections 2, 3, 4, 5, and 7 of the Ohio Constitution, to draw compact districts, and to "meet the ratio established by the court" under Section 6 (B).⁴ Auditor Faber noted that in League of Women Voters of Ohio , see 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, at ¶ 112, we had cited a proposed plan submitted by one of petitioners’ experts, Dr. Jonathan Rodden, that purportedly complied with all of Article XI's requirements and was more proportional to statewide voter preferences than the plan originally adopted by the commission. But that plan, Auditor Faber said, "was not a 54 or 55 map" but a "57 or 58 map."

{¶ 12} After questioning Glassburn, Senator Sykes said that instead of...