Voting Rights on the Docket

Ohio A. Philip Randolph Institute (APRI) et al. v. Smith et al.

Status:
Active
Case Dates:
Wednesday, 23 May, 2018 - ongoing
Facts:

The maps defining Ohio’s Congressional districts drawn after the 2010 census have resulted in severe and consistent partisan skewing in favor of one party’s candidates. The severity and entrenchedness of this partisan gerrymandering has been widely acknowledged. Although the number of Democrat and Republican voters in Ohio is roughly even, the gerrymandering of the districts has allowed the Republican Party to secure 75% of the seats in the in the U.S. House of Representatives in every election since the map was drawn. When election results are predetermined before even the first ballot is cast, voters are discouraged from participating in the process.

Legal Theory:

Ohio’s gerrymandered Congressional map violates Democratic Ohio voters’ rights to freedom of speech and association under the First Amendment, Democratic Ohio voters’ right to vote and guarantee of equal protection under the Fourteenth Amendment, and Article I of the Constitution which limits states’ power in the administration of elections.

Status:

On May 23, 2018, we filed a complaint in the U.S. District Court for the Southern District of Ohio. Plaintiffs were the Ohio A. Philip Randolph Institute, the League of Women Voters of Ohio, and a Democratic voter from each of Ohio’s 16 Congressional districts: Linda Goldenhar, Douglas Burks, Sarah Inskeep, Cynthia Libster, Kathryn Deitsch, LuAnn Boothe, Mark John Griffiths, Lawrence Nadler, Chitra Walker, Ria Megnin, Andrew Harris, Aaron Dagres, Elizabeth Myer, Erin Mullins, Teresa Thobaben, and Constance Rubin. Defendants were Ohio Governor John Kasich, Secretary of State Jon Husted, President of the Ohio Senate Larry Obhof, and Speaker Pro Tempore of the Ohio House of Representatives Kirk Schuring. Judge Timothy Black was assigned to the case. On June 1, pursuant to federal law requiring redistricting cases to be heard by a three-judge panel, Circuit Judge Karen Nelson Moore and District Judge Michael Watson were assigned to be on our panel along with Judge Black.

On June 11 we and Defendants each filed position statements regarding the case schedule. On June 12 the Court held an initial telephone conference to discuss the schedule. The Court held that Defendants were entitled to an extension of time to respond to the Complaint until July 13, after the Supreme Court’s anticipated ruled on Gill v. Whitford and Benesek v. Lamone partisan gerrymandering cases from Wisconsin and Maryland. The Court also ordered expedited discovery so that the case can be resolved before the 2020 election. We were ordered to serve our initial discovery requests by June 15, and Defendants to respond to the requests by July 13. Finally, the Court ordered the parties to have a Rule 26(f) conference among counsel and file our Rule 26(f) report with the court as soon as possible after the Gill and Benesek decisions.

On June 18, the United States Supreme Court issued decisions in Gill and Benesek. The Court did not rule on the merits, but did provide guidance relevant to our claims, especially as to standing (i.e. identification of the appropriate parties to assert gerrymander claims and corresponding ways to show injury). On June 26 we filed an amended complaint, substituting plaintiff Beth Hutton for plaintiff Erin Mullins (for reasons unrelated to standing) and, consistent with the guidance provided by the Supreme Court, adding plaintiffs Tristan Rader, The Ohio State University College Democrats, Northeast Ohio Young Black Democrats, and Hamilton County Young Democrats to strengthen standing in our case. We also substituted the newly-elected Speaker of the Ohio House of Representatives Ryan Smith as a defendant. On July 11 we filed a Second Amended Complaint removing Governor John Kasich as a Defendant.

Our 26(f) conference occurred on July 3 and we filed our 26(f) report on July 6. On July 17 the Court set a case schedule, which will culminate in a two-week trial beginning March 4, 2019. The case schedule is as follows:

• Initial disclosures: July 13, 2018
• Defendants’ responses to the Second Amended Complaint: July 20, 2018
• Defendants’ deadline to serve answers to Plaintiffs’ discovery requests: July 20, 2018
• Discovery status conference by telephone: July 25, 2018
• Settlement Demand: August 15, 2018
• Response to Settlement Demand: August 22, 2018
• Disclosure of Plaintiffs’ proposed remedial map: September 28, 2018
• Plaintiffs’ expert disclosure(s) and report(s): October 5, 2018
• Defendants’ expert disclosure(s) and report(s): November 8, 2018
• Lay witness disclosures: November 15, 2018
• Plaintiffs’ rebuttal expert disclosure(s) and report(s): November 22, 2018
• Secretary of State to provide preliminary statewide precinct level election data from November 2018 election: No later than November 30, 2018
• Secretary of State to provide all data from November 2018 election: No later than December 7, 2018
• Fact discovery deadline: December 19, 2018
• Deadline for expert depositions, except as to November 2018 election results: December 19, 2018
• Supplemental expert reports (by either side) to address the impact of the November 2018 congressional election results: December 28, 2018
• Dispositive motion deadline: January 8, 2019
• Deadline for supplemental expert depositions as to the November 2018 election results: January 15, 2019
• Motions in limine: January 18, 2019
• Daubert motions: January 18, 2019
• Lists of trial exhibit lists to be filed: January 18, 2019
• Joint proposed final pretrial conference statement to be filed:4 January 18, 2019
• Supplements to dispositive motion briefs from discovery related to November 2018 elections: January 18, 2019
• Memoranda in opposition to motions in limine, Daubert motions: January 25, 2019
• Objections to documents on trial exhibit lists: January 25, 2019
• Memoranda in opposition to dispositive motions: January 25, 2019
• Replies to dispositive motions: February 1, 2019
• Exhibits submitted to Court: February 1, 2019
• Final Pretrial Conference and hearing on dispositive motions (if necessary): February 11, 2019
• Trial: March 4, 2019

On July 30 we filed a Stipulation and Proposed Protective Order regarding the production of sensitive documents during discovery.

On July 20 Defendants filed a Motion to Dismiss. Also on July 20, members of Ohio’s Republican Congressional Delegation, two Ohio county Republican Party Organizations, and four Republican voters filed a Motion to Intervene as Defendants. On August 3 we filed Oppositions to the Motion to Intervene and to Defendants’ Motion to Dismiss. On August 10 Defendants and Intervenor Applicants filed their respective Replies. On August 15 the Court denied Defendants’ Motion to Dismiss. On August 16 the Court granted Intervenor Applicants’ Motion to Intervene, but provided that all parties including Intervenor-Defendants will proceed on the current case schedule.

On August 28 Intervenor-Defendants filed their Answer to our Second Amended Complaint, and on August 29 Defendants filed their Answer.

On September 28 we filed our proposed remedial map.

The Parties and Intervenor-Defendants disagreed on the number of depositions each side would be allowed to take, so on September 12 all parties filed position statements regarding this. The Court ruled in favor of Intervenor-Defendants, allowing up to 35 non-expert depositions per side. In total 61 depositions were taken for all Plaintiffs, Defendants, and Intervenor-Defendants.

All parties sought documents from third party witnesses resulting in the following discovery disputes to be filed in District Court for the District of Columbia:

• In re Subpoena Served on E. Mark Braden (Motion to Quash) (No. 1:18-mc-00095), filed July 17, 2018
• In re Subpoenas Served on Edward Gillespie and John Morgan (Motion to Compel) (No. 1:18-mc-00105), filed September 6, 2018
o Supplemental Memorandum Opposing Plaintiffs’ Motion to Compel Compliance with Subpoenas, filed November 7, 2018
• In re Subpoenas Served on Republican National Committee, National Republican Congressional Committee, and Adam Kincaid (Motion to Compel) (No. 1:18-mc-140), filed October 12, 2018
o Supplemental Memorandum Opposing Plaintiff’s Motion to Compel filed by Movants Adam Kincaid, NRCC, RCF, filed November 14, 2018
• In re Subpoenas Served on Clark Bensen and Polidata LLC (Motion to Show Cause) (No. 1:18-mc-00147), filed October 19, 2018
• In re Subpoena Served on E. Mark Braden (Motion to Quash Deposition Subpoena) (No. 1:18-mc-00151), filed October 22, 2018

We moved to transfer all of these to the Southern District of Ohio where the merits case is pending, and the Court granted our motion. On November 5 the Court held a status conference on several discovery motions arising out of these disputes. All parties were given time to resolve the pending issues and agreed to meet and confer to resolve other outstanding issues.

Intervenors requested a Claw-Back Agreement for certain non-party subpoena respondents and Plaintiffs agreed to this on November 21.

Between August and December the parties and intervenors engaged in intensive and fast-paced fact discovery which included interrogatories and substantial document productions from all parties, depositions of fact and expert witnesses, and significant third party discovery. Fact discovery closed on December 19, 2018, but select items remain open.

On December 3, 2018, the Court ordered third parties Edward Gillespie and John Morgan to comply in part with subpoenas issued upon them,

The Court also set a status conference on Dec. 4 to resolve discovery disputes over the subpoena issue to third party Mark Braden. The court then ordered in-camera review of nine documents withheld by Braden. After review, the Court ordered Braden to produce the documents. The documents were produced. Plaintiffs requested the reopening of Kincaid’s deposition to examine him on these Braden documents, as well as on other later-produced documents. That deposition will take place on January 17.

On December 21, following briefing for a discovery dispute over subpoenas issued to Intervenors Republican National Committee (RNC), the National Republican Congressional Committee (NRCC), and Adam Kincaid, the Court ordered the production of the subpoenaed documents. On December 26, the RNC, NRCC, and Kincaid filed a notice of appeal to the Sixth Circuit Court of Appeals, and motion to expedite the appeal, and also requested a stay from the District Court. The District Court held a status conference on December 28, and at that time denied the motion for stay.