FACTS:
Following the receipt of population data from the 2020 census, Ohio’s Redistricting Commission began working to draw and adopt a map that will define Ohio’s Congressional districts 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 2018 and effective for the first time this year.
For the two previous decades, Ohio’s Congressional map, as well as its General Assembly maps, 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. After the Redistricting Commission missed all of its deadlines to propose or enact a Congressional District Plan, the General Assembly voted along party lines to adopt a map proposed on November 15, 2021.
LEGAL THEORY:
Under Article XIX, Section1(C)(3)(a) of the Ohio Constitution, a plan must not “unduly” favor a political party.
STATUS:
On November 20, 2021, Governor DeWine signed S.B. 258 into law, adopting a heavily gerrymandered Congressional district plan for the next four years. On November 30, on behalf of organizational Petitioners League of Women Voters of Ohio and A. Philip Randolph Institute of Ohio, and 8 individual Ohio voters, we filed suit in the Ohio Supreme Court against the Governor DeWine in his official capacity, as well as Ohio House of Representatives Speaker Cupp, Ohio Senate President Huffman, and Ohio Secretary of State LaRose also in their official capacities, for violating the Ohio Constitution with the passage of this map. On December 1, the Court issued an order imposing a highly expedited schedule.
Respondents filed a Motion to Dismiss, Stay the Case, and Stay Discovery on December 2, and Respondents Huffman and Cupp filed an Answer and Affirmative Defenses that same day. Petitioners filed their Response to the Motion to Dismiss and Stay on December 3. We also filed an Amended Complaint and a Motion to Compel Expedited Discovery. Respondents opposed the Motion to Compel on December 6. Later that day, the Motion to Compel was granted as to Secretary of State LaRose in his official capacity as Secretary. But the Court also dismissed from the case all Respondents except for Huffman in his capacity as President of the Senate, Cupp as Speaker of the House, and LaRose as Secretary of State. The Motions to Stay the Case and Stay Discovery were denied.
The parties submitted evidence on December 10. On December 13 we filed Petitioners’ brief, as well as a Motion for Oral Argument. Respondents opposed the Motion for Oral Argument on December 15. The Court granted the argument motion on December 16. Respondents brief was filed on December 17. We filed our Reply on December 20. Oral argument was held virtually on December 28, our side was once again combined with Relators from the other congressional redistricting suit. A recording is available on the Ohio Channel website.
On January 14, 2022, the Court delivered its ruling in our favor, striking the congressional map as unconstitutional under Article XIX, Section 1 of the Ohio Constitution, finding that we had proven beyond a reasonable doubt that the map “unduly favor[ed]” the Republican Party and its incumbents. The General Assembly had 30 days to enact a compliant map, but failed to so. The map drawing process went back to the Ohio Redistricting Commission. The Commission reconvened for hearings the week of February 21. We submitted a demonstration map prepared by one of our experts along with written testimony. On March 2, the Commission adopted a new map. On March 7, we filed a Motion to Enforce the Court’s January 14th Order along with supporting expert reports.
On Friday, March 11, we filed a motion to amend the complaint, along with a brief in support and a proposed amendment, to add the Commission as a defendant, since the court had previously dismissed it from the case. The Commission responded on March 15. On Friday evening, March 18, the Supreme Court of Ohio issued an opinion denying our motion to amend. It reasoned that it had not expressly retained jurisdiction over the case to enforce its order, and stated that we were free to filed a new complaint in a new challenge.
We thus filed a new action making the above-described targeted challenges to the Franklin County and Hamilton County areas. As it was well past the point in time where the court could resolve the case in any manner or order any remedy without a high risk of federal intervention—which in turn could have catastrophic consequences for the maps and the law—our case seeks relief for 2024 and forward. The court then set a case schedule providing for the case to be litigated on an expedited basis and concluded during 2022. This schedule, though expedited, does not, because it cannot, provide for the case to be resolved any time before the primary, or any possible extension of the primary.
We filed the new Complaint on March 22, 2022. This case was consolidated with similar action, Neiman, et al., v. Ohio Redistricting Commission and a scheduling order entered on March 29. Respondents filed Answers on April 15. Parties submitted evidence on April 25, we filed our Brief on May 5, and Respondents filed their Responses on May 25. We then filed a Reply on June 1. On Tuesday, July 19, the court struck the unconstitutional second map.
Although the majority opinion did not expressly say so, this decision is widely construed as applying only for future elections, meaning that the 2022 election will proceed under the map that the court just struck. The General Assembly had until August 18 to pass a new map. As a result, the Redistricting Commission had to pass one by September 17.
The Redistricting Commission has not met to adopt a new map.
On October 14, the Republican members of the Commission filed a petition for certiorari to the Supreme Court of the United States. They argue that this case should be a companion to Moore v. Harper, a case currently before the Supreme Court on appeal from North Carolina, in which the North Carolina state legislature argues for establishment of the “independent state legislature” doctrine. Proponents of that doctrine argue that the U.S. Constitution grants state legislatures plenary powers to draw congressional districts, unchecked by state court review or state constitutional restrictions. Combined with the Supreme Court’s ruling in Rucho v. Common Cause that federal courts lack jurisdiction to hear partisan gerrymandering claims, this doctrine threatens to immunize gerrymandered congressional maps from any court review.
We filed our brief in opposition on December 19. The Republican petitioners filed a reply brief on December 30. On January 4, 2023, the case was distributed for conference on January 20.
On June 27, 2023, the Supreme Court of the United States rejected the “independent state legislature theory” in Moore v. Harper. It then issued a “grant, vacate, remand” (GVR) order in this case, which is not a statement about the merits of the case, but nominally vacates the Supreme Court of Ohio’s July 19, 2022 order, and remands the case back to the Supreme Court of Ohio for further consideration in light of Moore.
On August 22, the Supreme Court of Ohio instructed the parties to file simultaneous briefs to (a) explain the impact of Moore, and (b) state what further proceedings the court should follow. Given the recent history of map-drawing in Ohio, Petitioners predicted more frustrating rounds of unfair maps, and instead chose a path of clarity for voters. On September 5 Petitioners applied for voluntarily dismissal of this case, which the Court granted on September 7, 2023.
