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

168 Ohio St.3d 309

198 N.E.3d 812

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 March 9, 2022

Decided March 16, 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, Alexander Thomson, Anupam Sharma, and Yale Fu, for petitioners in case No. 2021-1193.

McTigue, Colombo & Clinger, L.L.C., 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, and Ashley T. Merino, special counsel to Attorney General Dave Yost, for respondent Ohio Redistricting Commission.

[168 Ohio St.3d 368]

Dave Yost, Attorney General, and Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Christopher J. Hogan, special counsel to Attorney General Dave Yost, for respondent Ohio Governor Mike DeWine.

Dave Yost, Attorney General, and Bridget C. Coontz, Julie M. Pfeiffer, and Michael A. Walton, Assistant Attorneys General, and Michael J. Hendershot, Deputy Solicitor, for respondent Ohio Secretary of State Frank LaRose.

Taft, Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and Philip D. Williamson, Cincinnati; and Nelson Mullins Riley & Scarborough, L.L.P., Phillip J. Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins, for respondents Senate President Matt Huffman and Speaker of the House Robert Cupp.

Cooper & Elliott, L.L.C., C. Benjamin Cooper, Charles H. Cooper Jr., Columbus, and Chelsea C. Weaver, for respondents Senator Vernon Sykes and House Minority Leader Allison Russo.

Per Curiam.

I. INTRODUCTION

{¶ 1} This is now the third time we are called upon to consider the validity of a General Assembly–district plan adopted by respondent Ohio Redistricting Commission. In League of Women Voters of Ohio v. Ohio Redistricting Comm. , 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 2 (" League I "), we held that the commission's original plan was invalid because the commission had not attempted to meet the standards set forth in Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. The commission then adopted a revised plan, but in League of Women Voters of Ohio v. Ohio Redistricting Comm. , 168 Ohio St.3d 28, 2022-Ohio-342, 195 N.E.3d 974, ¶ 67-68 (" League II "), we invalidated that plan because the commission again had not satisfied Sections 6(A) and 6(B). We now consider petitioners’¹ objections to the commission's second revised plan, which the commission adopted on February 24, 2022.

{¶ 2} We hold that petitioners have shown beyond a reasonable doubt that the second revised plan violates Article XI, Sections 6(A) and 6(B). We do not reach the additional argument raised by some of the petitioners that the commission violated Article XI, Section 1(C). 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 failed to adopt a new plan by February 17

{¶ 3} In League II , we ordered the commission to adopt a new district plan no later than February 17, 2022. League II at ¶ 68. On February 9—two days after the release of League II —respondent Senator Vernon Sykes, a Democratic member and cochair of the commission, sent respondent Speaker of the House Robert Cupp, a Republican member and the other cochair, a letter requesting that the commission reconvene as soon as possible. Senator Sykes noted that this court had "directed the Commission to attempt to draw district plans" and that "[i]n order to do so, the Commission , rather than individual Commissioners, must meet and give direction to our staff and consultants." (Emphasis sic.) Senator Sykes also pointed out that in January 2022, he and the only other Democratic member of the commission, respondent House Minority Leader Allison Russo, had proposed their own General Assembly–district plan (the "Sykes-Russo plan"), which he believed could be used as a starting point for the commission's deliberations.² Senator Sykes claims that in response to his letter, House Speaker Cupp indicated that he was having difficulty scheduling a commission meeting due to the limited availability of the Republican commission members.

{¶ 4} On February 11, Senator Sykes and House Minority Leader Russo sent a letter to all commission members urging them to meet as soon as possible to comply with the February 17 deadline. They also noted that they were awaiting feedback on the Sykes-Russo plan, and they asked other commission members to share any map proposals so that the commission could "work cooperatively."

{¶ 5} On February 15—eight days after the release of League II —the commission announced that it would hold a meeting on February 17. Also on February 15, counsel for the petitioners in League of Women Voters of Ohio v. Ohio Redistricting Comm. and in Bennett v. Ohio Redistricting Comm. submitted to the commission an updated version of a proposed General Assembly–district plan created by Dr. Jonathan Rodden (the "Rodden III plan").³

{¶ 6} At the start of the commission's February 17 meeting, House Minority Leader Russo said that except for one email from respondent Auditor of State Keith Faber's office, she and Senator Sykes had not received feedback about the Sykes-Russo plan. When House Minority Leader Russo moved the commission to adopt the Sykes-Russo plan, respondent President of the Senate Matthew Huffman—with the assistance of prepared posters and visual aids—asked her a series of questions indicating that he believed that the plan was unconstitutional. He suggested that the Sykes-Russo plan violated Article XI, Section 6(A) —which requires that no plan be drawn primarily to favor a political party—because a number of Republican incumbents would be unable to seek reelection under it, since they were either drawn into the same district as other Republicans or drawn into Democratic-leaning districts. He also said that several districts were not compact and that the plan would be struck down in federal court as a racial gerrymander.⁴

{¶ 7} At one point during Senate President Huffman's comments, Senator Sykes stated again that neither he nor House Minority Leader Russo had received substantive feedback about their proposed Sykes-Russo plan before the meeting. Senator Sykes reminded the other members that this court had directed the commission—not the majority or minority parties—to draw a map and that the commission members would need to work together to comply with the court's order. Senate President Huffman responded by saying that in September 2021, during the first map-drawing process, he spent three days trying to reach a resolution with Senator Sykes and other commission members but "that didn't happen" and that he now was focused only on the map that was currently before the commission.

{¶ 8} The commission voted five to two against adopting the Sykes-Russo plan. No other commission member proposed a General Assembly–district plan for consideration at the February 17 meeting. Instead, after a recess, several commission members made statements. Senate President Huffman suggested that it was impossible to draw an entirely new plan within ten days as ordered by this court and that he did not believe the commission could "ascertain" a General Assembly–district plan that complies with the Ohio Constitution, as interpreted by this court, and with federal law. Respondent Secretary of State Frank LaRose said that the map drawers—Ray DiRossi and Blake Springhetti, who Secretary LaRose noted, "work for the speaker and for the president"—told him that the commission cannot "constitutionally do what the court majority has asked [the commission] to do." Respondent Governor Mike DeWine said that the commission did not have the "luxury of saying we're just quitting" and that it had an obligation to attempt to comply with the court's order "and to send a map to the court." House Speaker Cupp declared that the commission was "in an impasse."

{¶ 9} The commission adjourned its February 17 meeting without adopting a General Assembly–district plan. The commission did not specify the steps it had taken to attempt to comply with this court's order. The next day, the commission filed in this court a "Notice of Impasse."

B. Respondents are ordered to show cause

{¶ 10} On February 18, petitioners filed motions to require respondents either to explain their reasons for failing to adopt a new General Assembly–district plan or to show cause why they should not be held in contempt. Later that day, this court ordered respondents to show cause by February 23 why they should not be held in contempt for failing to comply with our order in League II . 166 Ohio St.3d 1402, 2022-Ohio-498, 181 N.E.3d 1185 ; 166 Ohio St.3d 1403, 2022-Ohio-498, 181 N.E.3d 1186.

{¶ 11} On February 22, the commission met to discuss congressional redistricting. At that meeting, Governor DeWine reiterated his position that the commission had an obligation to follow this court's orders regarding General Assembly redistricting. Auditor Faber suggested that the commission schedule a meeting within the next two days to discuss a General Assembly–district plan that "may be being discussed and/or...