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 Update
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.
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 Benisek 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.
On June 18, the United States Supreme Court issued decisions in Gill and Benisek. 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.
On July 20 Defendants filed a Motion to Dismiss and members of Ohio’s Republican Congressional Delegation, two Ohio county Republican Party Organizations, and four Republican voters filed a Motion to Intervene as Defendants. We opposed both motions, and in August the Court denied Defendants’ Motion to Dismiss but granted Intervenor Applicants’ Motion to Intervene.
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.
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, significant third party discovery, and numerous disputes. In total 61 depositions were taken for all Plaintiffs, Defendants, and Intervenor-Defendants. Fact discovery closed on December 19, 2018, but select items remained open.
Defendants filed a Motion for Summary Judgment on January 18 and Intervenors joined with a memorandum in support. On January 4, 2019, the U.S. Supreme Court announced that it would hear arguments on two other partisan gerrymandering cases
: Common Cause v. Rucho out of North Carolina and Benisek v. Lamone out of Maryland. The oral arguments for these cases were scheduled for March 26, 2019. On January 28, Defendants filed a motion to stay this trial until after the decisions on the Common Cause and Benisek cases, which the Court denied.
Trial commenced as scheduled on March 4, 2019. We rested our affirmative case on March 7, and the defendants began to put on their witnesses that afternoon. Trial concluded March 13 and post-trial briefing ended April 7, 2019.
On May 3 the three judge panel issued an approximately 300 page decision, ruling in our favor on every single point of the case. The panel also ordered the state legislature to enact a new map by June 14, 2019, and denied Defendants’ request for a stay of that order. Defendants then applied to Justice Sotomayor for the stay, which she granted. Defendants also obtained an extension to file their Jurisdictional Statement until sometime after the Supreme Court announced its decisions in Common Cause and Benisek.
On June 11, 2019, third parties Adam Kincaid, the National Republican Congressional Committee, and the Republican National Committee filed a notice in the 6th Circuit court of appeals appealing the 3-judge panel’s denial of a protective order over the contents of 5 bankers boxes of documents that the appellants had been compelled to produce to the plaintiffs in the underlying case, and that appellants wished to have maintained under seal.
On June 27, 2019, the Supreme Court of the United States issued its ruling in Common Cause and Benisek. The Court held that partisan gerrymandering claims present political questions beyond reach of the federal court, and it vacated and remanded both cases.
Although the merits of our case had been resolved, litigation continued in the 6th Circuit over the privileged nature and sealing of the documents produced by third parties. Appellants Adam Kincaid, the National Republican Congressional Committee, and the Republican National Committee filed their appeal brief in the 6th Circuit on August 15. We filed our responsive brief on September 13. Appellants’ filed their Reply October 4, 2019. Appellants also filed several Additional Citations on October 7, October 30, and December 3. We filed a notice of Supplemental Authority on November 29. Oral arguments took place on January 29, 2020. Theresa Lee from the ACLU National Voting Rights Project argued for our side.
Meanwhile, at the US Supreme Court, Appellants Speaker of the Ohio House of Representatives, President of the Ohio Senate, and Ohio Secretary of State filed their jurisdictional statement on July 10. We responded on August 12 with a Motion to Dismiss. On the same day, Stephen Shapiro, a former plaintiff in Benisek, filed an amicus brief in support of Appellees.
On August 14, 2019, Appellants filed their Opposition to our Motion to Dismiss. The case was distributed for conference on October 10, 2019 and the next day the Supreme Court vacated the trial court’s decision and remanded the case for final disposition in light of Common Cause. We therefore filed a Motion to Dismiss on October 15. In our Motion we suggested that the court’s dismissal order specify that each party would pay its own fees and costs, as any dismissal would be for lack of jurisdiction only, with no “prevailing” party entitled to recover costs. Intervenors responded on October 18, objecting to our statement regarding attorneys’ fees and asking the court to leave the matter open. On October 29, the court entered an order dismissing the case for lack of jurisdiction, and did not include any language as to fees or costs. On December 9 the legislative Defendants filed a Bill of Costs, totaling $71,179.27, against us with the Court. We requested and were granted an extension to respond. Our memorandum contra was filed on January 15 and Defendants replied January 29, 2020.
