Neiman v. LaRose

169 Ohio St.3d 565

207 N.E.3d 607

NEIMAN et al.

v.LAROSE, Secy. of State, et al.

League of Women Voters of Ohio et al.

v.LaRose, Secy. of State, et al.

Nos. 2022-0298

2022-0303

Supreme Court of Ohio.

Submitted June 14, 2022

Decided July 19, 2022

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 Cramer, for petitioners in case No. 2022-0298.

ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey ; American Civil Liberties Union Foundation, Alora Thomas, and Julie A. Ebenstein ; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, David Denuyl, Janelle Lamb, James Smith, Sarah Suwanda, Alex Thomson, Kimberly Plumer, Rishi Gupta, Alexandra Widas, Anupam Sharma, and Yale Fu, for petitioners in case No. 2022-0303.

Dave Yost, Attorney General, and Julie M. Pfeiffer, Jonathan D. Blanton, Michael A. Walton, and Allison D. Daniel, Assistant Attorneys General, for respondent Ohio Secretary of State Frank LaRose.

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

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.

Chris Tavenor; and Hubay Dougherty, L.L.C., and Trent Dougherty, urging granting of relief for amici curiae, Ohio Environmental Council, Ohio Organizing Collaborative, Ohio Farmers Union, LEAD Ohio, Red Wine & Blue, OPAWL–Building AAPI Feminist Leadership, Innovation Ohio, Ohio Coalition on Black Civic Participation/Ohio Unity Coalition, and Ohio Citizen Action.

Per Curiam.

I. INTRODUCTION

{¶ 1} On January 14, 2022, this court held that the congressional-district plan passed by the General Assembly and signed by the governor in November 2021 was invalid in its entirety. Adams v. DeWine , 167 Ohio St.3d 499, 2022-Ohio-89, 195 N.E.3d 74, ¶ 5, 102. We held that the plan unduly favored the Republican Party and disfavored the Democratic Party in violation of Article XIX, Section 1(C)(3)(a) of the Ohio Constitution and that it unduly split Hamilton, Cuyahoga, and Summit Counties in violation of Article XIX, Section 1(C)(3)(b). Adams at ¶ 5, 102. We ordered the General Assembly to adopt a new plan that complied with Article XIX and that "[was] not dictated by partisan considerations." Adams at ¶ 102.

{¶ 2} Under Article XIX, Section 3(B)(1), the General Assembly had 30 days in which to pass a new plan. The General Assembly failed to pass a plan within that time, so under Section 3 (B)(2), respondent Ohio Redistricting Commission was required to adopt a new plan. The redistricting commission adopted a new plan on March 2, 2022. For purposes of this opinion, we call that plan the "March 2 plan."

{¶ 3} Two sets of petitioners have filed original actions challenging the March 2 plan.¹ We hold that the March 2 plan unduly favors the Republican Party and disfavors the Democratic Party in violation of Article XIX, Section 1(C)(3)(a). We order the General Assembly to pass a new congressional-district plan that complies with the Ohio Constitution, as required under Article XIX, Section 3(B)(1).

II. BACKGROUND

A. Article XIX's remediation process

{¶ 4} Article XIX, Section 3 (B)(1) provides that if this court determines that any congressional-district plan is invalid, the General Assembly "shall pass" a congressional-district plan that complies with the Constitution. As we noted in Adams , 167 Ohio St.3d 499, 2022-Ohio-89, 195 N.E.3d 74, at ¶ 97, Section 3 (B)(1) mandates both the timing and substance of any new plan. Section 3 (B)(1) provides that the General Assembly must pass a plan "not later than the thirtieth day after the last day on which an appeal of the court order could have been filed or, if the order is not appealable, the thirtieth day after the day on which the order is issued." And the plan "shall remedy any legal defects in the previous plan identified by the court but shall include no changes to the previous plan other than those made in order to remedy those defects." Id.

{¶ 5} If the General Assembly does not timely pass a remedial plan, "the Ohio redistricting commission shall be reconstituted and reconvene and shall adopt a congressional district plan" in accordance with the Constitution. Id. at Section 3(B)(2). Again, the Constitution "mandates both the timing and substance of the commission's actions." Adams at ¶ 98. Section 3 (B)(2) states, "The commission shall adopt that plan not later than the thirtieth day after the deadline described [in Section 3 (B)(1)]," and such plan "shall remedy any legal defects in the previous plan identified by the court but shall include no other changes to the previous plan other than those made in order to remedy those defects."

B. The General Assembly did not pass a remedial plan

{¶ 6} We issued our decision in Adams on January 14, 2022. On February 2, Blake Springhetti, an employee of the House Republican caucus and a drawer of the plan that we invalidated in Adams , id. at ¶ 15-17, sent an email with the subject line "Proposed Plan Information" to respondent Speaker of the House Robert Cupp. The email included attachments with what appear to be maps of proposed congressional districts. On February 5, the Senate scheduled committee hearings for congressional redistricting. Those committee hearings were canceled, and the General Assembly did not vote on or pass a new congressional-district plan by the February 13 deadline for passing a plan under Article XIX, Section 3(B)(1).

{¶ 7} House Speaker Cupp later said that because of the 90-day referendum period for new laws, he believed the legislature did not have enough time to enact a new plan before the May 3, 2022 primary election.² He pointed out that any plan adopted by the commission would instead become effective immediately and therefore allow Ohio to maintain the May 3 primary date for the election of members of Congress.

C. President of the Senate Huffman introduces a plan to the commission

{¶ 8} As a result of the General Assembly's failure to act, the responsibility for congressional redistricting transferred to the commission on February 14. On February 21, Springhetti sent an email with the subject line "Congressional Plan Information" to the office of Auditor of State Keith Faber, a commission member. The email again included attachments with what appear to be maps of proposed congressional districts.

{¶ 9} On February 22, the commission first met to discuss congressional redistricting. House Speaker Cupp said that he and the other commission cochair, Senator Vernon Sykes, had asked their staffs to begin working together to draft a proposed congressional-district plan. The commission also announced that it would schedule hearings so that members of the public could testify about proposed plans that they had submitted to the commission. The commission held those hearings on February 23 and 24. On February 22, Dr. Kosuke Imai, a statistics expert retained by the League petitioners, submitted his own plan to the commission.

{¶ 10} On February 25, respondent President of the Senate Matt Huffman sent letters to the other commission members advising them that Ray DiRossi, an employee of the Senate Republican caucus and a drawer of the plan that we invalidated in Adams , 167 Ohio St.3d 499, 2022-Ohio-89, 195 N.E.3d 74, at ¶ 15-18, was available to meet with the other commission members. House Speaker Cupp sent a similar letter inviting the other commission members to work with Springhetti. On Sunday, February 27, DiRossi and Springhetti met with the staffs of the commission's two Democratic Party members, Senator Sykes and House Minority Leader Allison Russo. Senator Sykes later described that meeting as a "one way communication" because, in his view, Democratic staffers shared their ideas at the meeting but the Republican map drawers were not as forthcoming. Senate President Huffman disagreed with Senator Sykes's characterization of the meeting.

{¶ 11} Regardless, Senator Sykes and House Minority Leader Russo both indicated that during the meeting, DiRossi and Springhetti did not share any proposed plans with the Democratic staffers. Another commission member, respondent Secretary of State Frank LaRose, acknowledged that he had first viewed a "working draft" of a new congressional-district plan on February 27—the same day as the Republican map drawers’ meeting with the Democratic staffers. And on the same date, Secretary LaRose texted Auditor Faber a screen shot of a district plan that was very similar to the plan that the commission later adopted on March 2.

{¶ 12} When the commission met again on Tuesday, March 1, Senate President Huffman introduced a proposed congressional-district plan. House Minority Leader Russo said that because she had received a copy of the proposal just a short time before the meeting, she had had only a few minutes to review it. House Minority Leader Russo had several questions about the proposal.

{¶ 13} First, she asked why the proposal combined Cincinnati with Warren County instead of keeping Cincinnati within a district entirely within Hamilton County. She also asked whether the proposal addressed this court's concern in Adams about carving out Hamilton County's Black population from surrounding neighborhoods. In response, Senate President Huffman said that pursuant to Article XIX, Section 3(B)(2), "we"—presumably referring to himself, House Speaker Cupp, and their map drawers—had tried to remedy the defects identified by this court in Adams and that the new plan comported with ...