FACTS

Following the receipt of population data from the 2020 census, Ohio’s Redistricting Commission began working to draw and adopt maps that will define Ohio’s state legislative districts (Ohio’s State House of Representatives and State Senate) for the next decade. The establishment of the Commission, the process it follows, and the criteria for drawing the maps are the result of an Ohio constitutional amendment that was adopted in 2015 and effective for the first time this year.   

For the two previous decades, these General Assembly maps, as well as the map defining the districts for Ohio’s Congressional House of Representatives, were heavily gerrymandered, causing severe, partisan skewing consistently in favor of the Republican Party, which controlled the map-drawing process.  

This pattern of Republican gerrymandering continued even under the new rules. ust after midnight on September 16, 2021, by a 5-2 vote along strictly partisan lines, the Ohio Redistricting Commission enacted new, extremely partisan maps, to be in effect for the next four years.

LEGAL THEORY

The Senate and House maps enacted by the Redistricting Commission on September 16 constitute a partisan gerrymander in violation of Article XI, Section 6 of the Ohio Constitution, which provides that: (1) district maps may not be drawn primarily to favor one party; and, (2) the proportion of the districts favoring each political party must correspond closely to the statewide preferences of the voters of Ohio. 

STATUS

We filed our Complaint in the Supreme Court of Ohio on September 23. Relators on behalf of voting rights groups the League of Women Voters of Ohio and A. Philip Randolph Institute of Ohio, as well as six Ohio voters from impacted districts. Respondents are the Ohio Redistricting Commission and each of its seven members. In the days following our filing, two similar lawsuits were filed by other Ohio voters and civic groups, Bria Bennet, et al. v. Ohio Redistricting Commission, et al., No. 2021-1198, and Ohio Organizing Collaborative, et al. v. Ohio Redistricting Commission, et al., No. 2021-1210. On September 24 we filed a scheduling motion recommending a compressed schedule of deadlines for discovery and briefing. The Court ordered Respondents to reply to our motion by September 28. All but the Democratic commissioners opposed. On September 29, the Court adopted an even more expedited schedule than the one we suggested and denied our motion as moot. The schedule provides that evidence be filed by October 22, Relator’s brief by October 29, Respondents’ brief by November 5, and our Reply by November 10. This schedule was applied to all three cases. Our case was also scheduled for oral argument on December 8.

Following some Respondents’ refusal to agree to appear for depositions or conduct reasonable discovery, on October 4 we moved the Court to appoint a Master Commissioner to oversee disputes and a Motion to Compel Expedited Discovery. The Court declined to appoint a Commissioner but did set parameters for the exchange of written discovery and depositions. All seven commissioners have been deposed, in addition to Republican and Democratic map-drawing consultants. We have also conducted written discovery. 

The case proceeded according to the Court-ordered schedule, with evidence submitted on October 22, briefing concluded on November 11, and oral argument on December 8. On December 1, Respondents Huffman and Cupp filed a Notice of Supplemental Authority, drawing the Court’s attention to the November 30 decision in a Wisconsin redistricting lawsuit.

This case was consolidated with the two other legislative redistricting cases for purposes of oral argument only. All three Respondent teams as well as Respondents House Minority Leader Emilia Sykes and Senator Vernon Sykes were ordered by the Court to share argument time. Oral argument was broadcast on the Ohio Channel and a recording can be accessed on the Ohio Channel website. Amicus briefs in support of Relators were filed by the City of Cincinnati, Ohio elections scholar Dr. David Niven, Campaign Legal Center, We Are Ohio, Renew Ohio, and the Ohio State Conference of the NAACP.

On December 13, the Court ordered additional briefing to be submitted by all parties to address the question, “What impact, if any, does Article XI, Section 8(C)(1) of the Ohio Constitution have on the Supreme Court of Ohio’s authority to grant the relief requested by relators when the Ohio Redistricting Commission adopted the district plan by a simple majority vote of the commission?” 

On January 12, 2022, the Court delivered an order and opinion. It struck the challenged map as unconstitutional under Article XI, Sections 6(A) and 6(B) of the Ohio Constitution, finding that we proved beyond a reasonable doubt that the map was drawn primarily to favor the Republican Party and that it failed to closely correspond to the statewide partisan preferences of the voters. The Court also retained jurisdiction in order to ensure that a compliant map is enacted. It ordered that the Ohio Redistricting Commission be reconvened, and that the Commission enact a new map within 10 days of the order. Under the Court’s rules, that deadline translates to January 24, 2022.On January 18, the Commission reconvened, and we submitted proposed maps prepared by our experts.

The Commission adopted a new pair of maps on January 22. These maps were still significantly gerrymandered, deviating further from proportionality than necessary to conform to other constitutional provisions. We filed objections supported by additional expert reports on January 25. The Court provided Respondents the opportunity to respond to our objections, which were filed on January 28. On February 7, the Court upheld our objections and ordered the Commission to adopt a new plan by midnight on February 17 and file it with the Court the next morning. The Commission did not adopt a new plan, and on February 18 notified the Court it was “at an impasse.” We filed a motion requesting the court to require the Respondents to explain why they could not adopt a new plan.  The Court issued an order that Respondents show cause by noon on February 23 why they should not be held in contempt of court. All Respondents submitted how-cause briefs, most indicating that the Commission was in fact continuing to work on the maps. The next day the Court ordered all Respondents to personally appear on March 1 at 10AM. Justice DeWine recused himself from this contempt hearing, and Justices Kennedy and Fischer announced their dissent to the hearing order. On the afternoon on February 24, the Commission adopted a new pair of maps. On February 25, the Court continued the contempt hearing. On February 28, we filed objections to the Commission’s new maps supported by additional expert reports. The Respondents filed their responses on March 3.

Late on Wednesday, March 16, the Ohio Supreme Court struck the third General Assembly map, noting that it had an extreme asymmetry of competitive districts allocated between the two parties—meaning that in a “red wave” year, the Democrats would have major losses, but even in an extreme “blue wave” year, the Republicans would not. The Court urged the Commission to work as a whole, and to hire an independent map-drawer, rather than the majority simply imposing a map without any input from the minority. It also firmly rejected Sen. Huffman’s interpretation of the law, where he had argued that protection of incumbents justified failing to rebalance the map proportionally.  The court ordered the Commission to draw a new plan and imposed a deadline of March 28.

At the 11th hour on the due date for Plan 4, March 28, just as the independent map-drawers were closing in on a completed set of legislative maps, the Republicans on the Commission jettisoned the joint project, and voted instead that for a “backup” option, they would have their Republican legislative staff (who had drawn the previously rejected maps) prepare a new plan by slightly revising the unconstitutional Plan 3. Though the independent map-drawers did complete their work before the midnight deadline, the Republicans rejected the independents’ plan and instead adopted the partisan-drawn Plan 4. On Tuesday evening, March 29, we filed a motion asking the Ohio Supreme Court to require the four Republicans who voted for those maps to show cause why they should not be held in contempt, for violating the Supreme Court’s directives to draw maps publicly and transparently. The Court ordered the commissioners to respond to our motion by the morning of Monday, April 4.  Then, on Friday morning, we filed objections to the Plan 3 itself, asking the court to strike it.  On Monday, April 4, the commissioners filed responses to our contempt motion.  Some of the commissioners also filed responses to our objections to Plan 4.  

After making us wait an excruciatingly long 10 days, the Ohio Supreme Court ruled on April 14.  It agreed with our objections to Plan 4 and struck the map.  It ordered the commission to draw a new map by May 6 and set a schedule for briefing any objections.  On May 5, the Commission re-passed “Map 3,” which had already been stricken as unconstitutional by the Ohio Supreme court.  We filed objections to that map the next day, Friday.  The commissioners filed their responses.  On Tuesday, May 10, we filed a motion for sanctions in the Ohio Supreme Court.  The Court ordered responses from the Commissioners by Thursday, May 12, which were filed. On May 25, the Court struck the re-enacted Map 3, and ordered the Commission to pass a constitutional map and file it with the SOS by 9 a.m. on June 3.  The majority opinion, and a separate concurrence by Chief Justice O’Connor, powerfully (and angrily) denounced the federal court’s decision, for providing the Republican commissioners with incentives and a road map to securing their preferred Map 3 for 2022 by blatantly ignoring the Ohio Constitution, and similarly denounced the Republican commissioners for flagrantly disregarding their duty to follow the Constitution. Despite these strong statements, the Court denied our motion for contempt, without any explanation from the majority, and with no dissenting opinions (but no breakdown given of who voted in what direction). Separate concurring opinions from Republican Justices Kennedy and Fischer suggested that the Court does not have the power to hold the Commission or individual Commissioners in contempt, but no others openly joined those views. On May 27, the federal court entered an order providing that, unless the commission enacted a new legislative map by midnight on Saturday night, May 28, it was ordering Map 3 to be imposed for the 2022 election cycle. Unsurprisingly, Saturday night came and went with no new action by the Commission, and the Secretary of State began steps to implement Map 3.

The Commission is still under an obligation to draw a map for 2024 and successive years, and despite its Friday, June 3, 9:00 am deadline, it failed to schedule a meeting or enact a map. On Wednesday, June 8 we filed a motion in the Ohio Supreme Court asking the Court to require the commission to explain its failure to comply with the order to enact a map.  Respondents filed responses to that motion on June 17.
 

Attorney(s)

Freda Levenson, David Carey; ACLU VRP's Alora Thomas, Julie A. Ebenstein, Kelsey MIller

Pro Bono Law Firm(s)

Covington and Burling, LLP

Date filed

September 23, 2021

Court

Ohio Supreme Court

Status

Open

Case number

2021-1193