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Charles E. Wilson et al. v. Governor John Kasich et al., Case no. 2012-0019
Original Action Under Article XI, Section 13 of the Ohio Constitution


Did 2011 Apportionment Board Violate Requirements of Ohio Constitution in Redrawing State Legislative Districts?

Charles E. Wilson et al. v. Governor John Kasich et al., Case no. 2012-0019
Original Action Under Article XI, Section 13 of the Ohio Constitution

ISSUE: In redrawing the boundaries of Ohio House and Senate districts in 2011, did the Apportionment Board  violate the requirements of Article XI of the Ohio Constitution?

BACKGROUND: Article XI of the Ohio Constitution requires that in the year following each decennial U.S. census, a five-member Apportionment Board must conduct a reapportionment of the Ohio General Assembly (redrawing of Ohio House and Senate districts) to reflect changes in the state’s population since the preceding census and redistricting. The board consists of the Governor, Auditor of State and Secretary of State, plus one member appointed jointly by the Speaker of the House and the Senate leader of the Speaker’s political party, and one member appointed jointly by the House and Senate leaders of the major political party to which the House speaker does not belong. 

To begin the redistricting process, Article XI requires that the board 1) divide the state’s total population as reported in the latest census by 99 to establish the “ratio of representation” (the ideal number of persons who would be assigned to each of the 99 Ohio House districts if all districts had equal representation); and 2) divide the total population of the state by 33 to establish the ideal number of persons to be included in each of the 33 Ohio Senate districts if all districts were exactly equal in representation. The board is then charged with amending the map of legislative districts developed by the last apportionment board to reflect population changes revealed by the most recent census. This process is subject to specific rules and guidelines set forth in Sections 3 through 10 of Article XI.

When a majority of the apportionment board has agreed on a new map setting forth the geographic boundaries of all House and Senate districts, the board files that map with the Secretary of State, and the boundaries set by the board define the districts from which members of the General Assembly will be elected for the next 10 years. Neither the overall redistricting map nor the boundaries of individual districts set by the apportionment board are subject to review or ratification by the General Assembly, or to the governor’s veto power. Under Article XI, Section 13, a party seeking to challenge the board’s conduct of the redistricting process, or the lawfulness of any of the new district boundaries established by the board, must do so by filing an original action in the Supreme Court of Ohio. 

The 2011 apportionment board consisted of Governor John Kasich, Secretary of State Jon Husted, Auditor of State David Yost and Ohio Senate President Thomas Niehaus, all Republicans, and House minority leader Armond Budish, a Democrat.  Following release of the 2010 federal census, the board developed a map setting forth new Ohio House and Senate district boundaries for the 10-year period beginning in 2012.  The reapportionment plan was adopted by a 4-1 party-line vote of the board, and it was filed with the Secretary of State in September 2011.

In January 2012, Charles Wilson and a group of other citizens residing in districts that were redrawn by the board (the “relators”) filed suit against the four Republican members of the apportionment board (the “respondents”) in the Supreme Court pursuant to Article XI, Section 13. Their complaint asked the court to declare that the board’s redistricting plan was unconstitutional based on multiple alleged violations of Article XI, Section 7, which requires that district boundaries must be drawn to keep entire counties, cities and other political subdivisions within the same district whenever it is “feasible” to do so without violating equal representation requirements. The relators also sought a court injunction barring application of the new district boundaries to future elections, including the March 2012 primary elections.

The relators’ complaint also urged the court to declare that the redistricting plan was invalid based on claims that the four Republican members of the apportionment board and board staff had violated the state’s Open Meetings Law by conducting closed-door discussions during which numerous legislative districts were redrawn in consultation with national Republican Party strategists, with the sole intent of conferring political advantage on future Republican candidates. They also alleged that the board’s final public meeting at which the plan was formally adopted was merely a staged event at which the Republican members “rubber stamped” redistricting decisions that had already been privately agreed to among themselves outside the scrutiny of the public and without the participation of the Democrat member of the board.

The respondents filed an answer in which they denied the alleged violations of Article XI, Section 7, and the Open Meetings Act, and moved the court to dismiss the relators’ complaint in its entirety based on the legal doctrine of “laches,” which bars courts from considering claims that are asserted after an unreasonable delay. The respondents noted that the board adopted its reapportionment plan and filed it with the Secretary of State in September 2011, but the relators had waited until January 2012, only a few weeks before the deadline for legislative candidates to file their 2012 election petitions in the newly drawn districts, to challenge the plan’s validity.

On February 17, 2012, the Supreme Court issued an order in which it: 1) dismissed the relators’ claims based on alleged violations of the Open Meetings Act because the court lacked jurisdiction to consider them;  2)  granted dismissal of the relators’ challenge to the use of the redrawn legislative districts for the 2012 election cycle based on their delay in initiating that challenge; and 3) held that the relators’ challenge to the reapportionment plan for future election cycles beyond 2012 was not barred by laches, and agreed to consider written briefs and hear oral arguments by the parties on the issues raised in the complaint.

On March 2, 2012, the Court issued an order setting March dates for the parties to file their merit briefs and scheduling oral argument in the case for April 24. In addition to briefing the constitutional issues raised in the relators’ complaint, the court ordered both sides to file supplemental briefs responding to four questions of law raised by the court sua sponte (on its own initiative). Those questions were:

  1. Does the Supreme Court have jurisdiction over the case in light of the fact that the relators’ complaint named four of the five Apportionment Board members as respondents, but did not name the board itself?
  2. Does the Ohio Constitution mandate political neutrality in the reapportionment process?
  3. What is the relators’ burden of proof in showing that a reapportionment plan is unconstitutional?
  4. Is there a tension among the requirements imposed by Sections 3, 7 and 10 of Article XI,  and if so, how should those sections be harmonized?

RELATORS’ ARGUMENTS:

Jurisdiction of Supreme Court:  The relators assert that Article XI, Section 13 confers “exclusive and original jurisdiction” on the Supreme Court in “all cases arising under this Article,” and imposes no requirement that the Apportionment Board as an entity or all of its individual members be named as respondents in the complaint. 

Are political considerations barred? Respondents point out that no language in Article XI or any of its subsections authorizes the Apportionment Board to base any of its decisions in drawing district boundaries on political considerations. They point out that when Article XI was added to the state constitution in 1851, its declared purpose was to “prevent gerrymandering,” (the practice of drawing legislative district boundaries based on political considerations in order to confer a partisan advantage on one political party at the expense of the other.)  Based on the plain language of the constitution and the history of Article XI, they argue that boundaries based on partisan political considerations should be declared invalid.

What is the burden of proof? The relators assert that because their challenge to the 2011 reapportionment plan is not a “facial” challenge to the constitutional apportionment scheme itself, but is rather an “as applied” challenge to specific boundaries drawn by the 2011 board members, the relators should bear the initial burden of showing by a preponderance of the evidence that one or more of the new districts’ boundaries do not conform to the requirements of Article XI.  If the relators establish that a district is non-compliant, they contend, respondents must then assume the burden of showing that each identified  failure of compliance was necessary in order to meet the requirements of some other Section of Article XI, or to comply with a specific state or federal election law.

Tension between Sections 3, 7 and 10 of Article XI: The relators argue that there is no tension or contradiction among the requirements of the three Sections. They say:

Alleged Constitutional Violations: The relators’ complaint alleges that the 2011 reapportionment plan adopted by the Republican majority of the apportionment board violates Article XI, Section 7 of the Ohio Constitution by unnecessarily dividing counties and other political subdivisions into different legislative districts for political purposes when it was demonstrably possible for the board to have designed districts that avoided such divisions. As evidence that these divisions were unnecessary, relators submitted two alternative redistricting maps developed by their expert, Professor Michael McDonald, that they say reduced the number of divided counties from more than 50 in the board-approved plan to 30, and reduced the number of townships, cities and city wards separated into different legislative districts from 256 in the board-approved plan to less than 100, without violating any other requirements of Article XI or of state or federal election laws.

Relators also cite emails and other communications between and among the Republican board members, board staff and political operatives obtained through the discovery process that they say show that the respondents understood the difference between a handful of counties that “must” be divided into separate districts  to comply with equal representation, and a much larger number that the board divided unnecessarily for the purpose of partisan political advantage.  Even if the court should find that Article XI does not prohibit any political considerations in the reapportionment process, relators argue that the language of the constitution clearly does not allow such concerns to take precedence over the expressly stated mandates of 1) equal representation, and 2) avoiding the division of counties and other political subdivisions into separate legislative districts whenever it is “feasible” to draw representative districts without such divisions.

RESPONDENTS’ ARGUMENTS:

Jurisdiction of Supreme Court:
The respondents agree that the Supreme Court has jurisdiction to consider the relators’ complaint
whether or not the apportionment board as an entity or all of its individual members were named as respondents in the complaint.

Are political considerations barred?
The respondents assert that nothing in the Ohio or U.S. constitutions prohibits factoring political considerations into the redrawing of legislative districts, and they argue that by assigning exclusive authority to reapportion the legislature to a board made up of five politically elected officials, and allowing a simple majority of the board to set new district boundaries, Article XI clearly envisions that political considerations will play a significant role in that process.  They point to U.S. Supreme Court decisions holding that political considerations are “inseparable from districting and apportionment” decisions, and note that Ohio voters have twice rejected proposed constitutional amendments that would have mandated the use of a politically balanced commission and expressly barred political considerations in the reapportionment process.

What is the burden of proof? The respondents argue that reapportionment is a quasi-legislative process, and the plan adopted by an apportionment board is therefore entitled to the same strong presumption of constitutionality as laws enacted by the legislature. They assert that in order to overturn as unconstitutional districts drawn by the 2011 board, relators must first prove beyond a reasonable doubt that district boundaries do not fall within the requirements of Article XI, and if a district is shown to be noncompliant, relators must further prove beyond a reasonable doubt that the board “acted without a rational basis” in adopting the non-compliant district dividing lines.

Tension between Sections 3, 7 and 10 of Article XI:  Respondents argue that competing requirements of the various sections of Article XI, along with additional requirements of state and federal election laws, make the redistricting process a complex undertaking in which the apportionment board must be permitted to exercise broad discretion in reconciling the mandate of equal representation with many other requirements, of which the requirement to keep counties and political subdivisions intact when possible is only one.

Alleged Constitutional Violations: Respondents argue that the court should begin its review of the relators’ complaint with a strong presumption that the redistricting map drawn by the 2011 apportionment board is valid and constitutional, and an understanding that Article XI does not bar political considerations, or subordinate all of its other requirements to keeping whole counties and local government units in the same district. They say the court should require relators to prove beyond a reasonable doubt that  in each of the specific districts challenged as unconstitutional, the board acted without a rational basis in exercising its discretion to divide a county or local government unit as it did to achieve substantially equal representation and/or to meet other constitutional and statutory requirements. 

Respondents also assert that the alternative apportionment maps developed by relators’ expert are not proof that the board’s plan is unconstitutional, but merely illustrate that different parties can devise different maps based on different applications of the constitutional and statutory criteria. The important point, they say, is that the reapportionment map adopted by the five elected officials entrusted by law to perform that task in 2011 must be presumed valid unless proved otherwise beyond a reasonable doubt.

Contacts
Lloyd Pierre-Louis, 614.946.3816, for Charles Wilson and other Relators.

John H. Burtch, 614.228.1541, for Governor John Kasich, State Auditor David Yost, and Senate President Thomas Niehaus.

Richard N. Coglianese, 614.466.2872, for Secretary of State Jon Husted.

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