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

168 Ohio St.3d 522

200 N.E.3d 197

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 May 17, 2022

Decided May 25, 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, 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, Columbus; and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Jyoti Jasrasaria, Spencer W. Klein, Harleen K. Gambhir, and Raisa M. Cramer, 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, and Harry Black, 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.

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, Jonathan Blanton, Deputy Attorney General, Michael J. Hendershot, Deputy Solicitor, and Julie M. Pfeiffer and Michael A. Walton, Assistant Attorneys General, 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 Senator Robert McColley and Representative Jeffrey LaRe.

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.

Mark G. Kafantaris, Columbus; and Center for Competitive Democracy and Oliver Hall, in support of petitioners’ objections for amici curiae Center for Competitive Democracy, Professor Ruth Colker, and Professor Mark Brown.

Belinda Spinosi, pro se, in support of petitioners’ objections as amicus curiae, in case No. 2021-1193.

Per Curiam.

{¶ 1} Respondent Ohio Redistricting Commission¹ adopted four General Assembly–district plans between September 2021 and March 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. , 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 2 (" League I "); 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 "); League of Women Voters of Ohio v. Ohio Redistricting Comm. , 168 Ohio St.3d 309, 2022-Ohio-789, 198 N.E.3d 812, ¶ 2 (" League III "); League of Women Voters of Ohio v. Ohio Redistricting Comm. , 168 Ohio St.3d 374, 2022-Ohio-1235, 199 N.E.3d 485, ¶ 2 (" League IV "). 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 ; League IV at ¶ 78. In League IV , issued on April 14, 2022, we ordered the commission to adopt by May 6, 2022, an entirely new district plan that complies with the Ohio Constitution. League IV at ¶ 78-79.

{¶ 2} On April 20, a federal district court found that a group of Ohio voters had shown, at least at the preliminary-injunction phase, that Ohio's failure to implement new General Assembly districts in time for the May 3, 2022 primary election likely infringes on their right to vote. Gonidakis v. LaRose , S.D.Ohio No. 2:22-cv-0773, 599 F.Supp.3d 642, 659–64 (S.D.Ohio Apr. 20, 2022). The federal court stated that if Ohio did not pass a new General Assembly–district plan that satisfies federal law by May 28, it would order the primary election for General Assembly races to be moved to August 2 and order Ohio to use, for the 2022 election cycle, the General Assembly–district plan the commission adopted on February 24, 2022—i.e., the plan we held to be unconstitutional in League III . Gonidakis at 646–49, 678–80 ; see also League III at ¶ 1-2. The federal court called that plan, and we now call it, "Map 3."

{¶ 3} On May 5, the commission readopted Map 3, purportedly for use only in the 2022 election. Petitioners² filed objections to the readoption of Map 3 the next day.

{¶ 4} The respondents who voted in favor of readopting Map 3 defend the commission's action, arguing that Map 3 is the only viable option for use in the 2022 election cycle. The fact remains that Map 3 still violates Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. See League III. We ordered the commission to adopt "an entirely new General Assembly–district plan that meets the requirements of the Ohio Constitution." League IV at ¶ 78. Neither the current election deadlines, the General Assembly's inability or unwillingness to alter those deadlines, nor the question whether the map would be a viable option for use in the 2022 election cycle prevented the commission from adopting a new, constitutional district plan. The commission's duty to draft and adopt a constitutional district plan is distinct from considerations regarding the feasibility of implementing that plan for the 2022 election.

{¶ 5} Therefore, in accord with our opinion in League III , petitioners’ objections are sustained. The plan adopted by the commission on May 5 is invalid in its entirety, including for the reason that the commission purported to limit its effectiveness for only the 2022 election even though the Ohio Constitution provides that a map adopted by the commission will remain in effect for either four or ten years, depending on whether there was bipartisan support for the map, see Ohio Constitution, Article XI, Section 8(C)(1)(a) and 8 (B). We 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).

{¶ 6} We further order the commission to file the district plan with the secretary of state no later than 9:00 a.m. on June 3, 2022, and in this court by 12:00 p.m. on the same date. This court retains jurisdiction for the purpose of reviewing the new plan.

{¶ 7} Petitioners shall file objections, if any, to the new plan, by 12:00 p.m. on June 7, 2022. Respondents shall file responses, if any, by 12:00 p.m. on June 9, 2022. 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.

{¶ 8} 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.

{¶ 9} Petitioners’ requests for additional relief are denied.

Objections sustained

and alternative or additional relief denied.

Stewart and Brunner, JJ., concur.

O'Connor, C.J., concurs, with an opinion joined by Donnelly, J.

Kennedy, J., dissents, with an opinion joined by DeWine, J.

Fischer, J., dissents, with an opinion.

O'Connor, C.J., concurring.

{¶ 10} This court has been placed in a remarkable position. With the reassurance provided by a federal district court in Gonidakis v. LaRose , S.D.Ohio No. 2:22-cv-0773, 599 F.Supp.3d 642 (S.D. Ohio Apr. 20, 2022), that continuing delays and inaction would be rewarded with the implementation of a previously rejected map, respondent Ohio Redistricting Commission has, contrary to this court's clear order, resubmitted an unconstitutional General Assembly–district plan and, in doing so, has engaged in a stunning rebuke of the rule of law.

{¶ 11} In Gonidakis , the federal court thoughtfully recognized that if it were to act, it must do so only as a last resort. Id. at 649–50, 653–54, 655–56. Indeed, it stated: "We must provide the State as much time as possible to fix its own problems * * *. But at some point, the court must step in to provide a map if the State's officials fail to discharge their duties." Id. at 668. The federal court determined that to avoid jeopardizing Ohioans’ right to vote, it would wait until May 28 before acting. Id. at 646–47. But the federal court did not "stay [its] hand until May 28," id. , as it stated it would, and leave the state to fix the crisis created by the commission's own actions, id. at 653–54. Instead, the federal court provided the Republican commission members not only a roadmap of how to avoid discharging their duties but also a green light to further delay these proceedings by stating its intention to implement "Map 3" (i.e., the plan this court held to be unconstitutional in League of Women Voters of Ohio v. Ohio Redistricting Comm. , 168 Ohio St.3d 309, 2022-Ohio-789, 198 N.E.3d 812, ¶ 2 (" League III ")), all the while acknowledging that this court had declared Map 3 to be invalid and unconstitutional. Id. at 646–47.

{¶ 12} Consider for a moment how the federal court described its decision: "So the fact that Map 3 does not comply with the Ohio Supreme Court's interpretation of state law does not prevent this court from imposing it—for one election cycle only—when faced with federal law violations, other...