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Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 262 Filed: 05/03/19 Page: 1 of 301 PAGEID #: 23358 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION OHIO A. PHILIP RANDOLPH INSTITUTE ) et al., ) No. 1:18-cv-357 ) Plaintiffs, ) OPINION AND ORDER ) v. ) ) LARRY HOUSEHOLDER et al., ) ) Defendants. ) Before: Moore, Circuit Judge; Black and Watson, District Judges. TABLE OF CONTENTS I. BACKGROUND ……………………………………………………….………..…………….. 5 A. General Overview of the Facts ……………………………………………………...… 5 B. Procedural History ………………………………………………………………….... 28 II. SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL …………………………...… 30 A. Plaintiffs’ Fact Witnesses …………………………………………………………… 30 B. Defendants’ Fact Witnesses …………………………………………………………. 45 C. Plaintiffs’ Expert Witnesses ……………………………………………………….… 55 D. Defendants’ and Intervenors’ Expert Witnesses ………………………………...…… 93 III. STANDING ……………………………………………………………………………….. 114 A. Vote-Dilution Claims …………………………………………………………...….. 115 B. First Amendment Associational Claim ……………………………………………... 134 C. Article I Claim ………………………………………………………………...……. 139 IV. JUSTICIABILITY, THE POLITICAL QUESTION DOCTRINE, AND THE ROLE OF THE FEDERAL COURTS IN REDISTRICTING ………………………………………………..… 139 A. Justiciability and The Political Question Doctrine ……………………………….… 139 B. Evidentiary Metrics and Statistics ………………………………………………..… 149 C. Pragmatic and Historical Considerations …………………………………………… 154 V. LEGAL STANDARDS AND APPLICATION ……………………………………………. 166 A. Equal Protection Vote-Dilution Claim …………………………………………...… 167 B. First Amendment Vote-Dilution Claim ………………………………………..…… 262 C. First Amendment Associational Claim ……………………………………………... 263 1 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 262 Filed: 05/03/19 Page: 2 of 301 PAGEID #: 23359 D. Article I Claim ……………………………………………………………………… 284 VI. LACHES ………………………………………………………………………………….. 288 VII. REMEDY AND ORDER ………………………………………………………………… 293 APPENDICES OF MAPS Plaintiffs have brought this action alleging that H.B. 369, the redistricting plan enacted by the Ohio General Assembly and signed into law by the Governor in 2011, constitutes an unconstitutional partisan gerrymander under the First and Fourteenth Amendments and exceeds the powers granted to the states under Article I, § 4 of the United States Constitution. As to the First and Fourteenth Amendment district-specific claims, we find that Districts 1–16 were intended to burden Plaintiffs’ constitutional rights, had that effect, and the effect is not explained by other legitimate justifications. Moreover, we find that that the plan as a whole burdens Plaintiffs’ associational rights and that burden is not outweighed by any other legitimate justification. Finally, we find that the plan exceeds the State’s powers under Article I. Therefore, H.B. 369 is an unconstitutional partisan gerrymander. This opinion constitutes our findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). Due to the length of this opinion, we provide the reader with the following, more concise summary: “Partisan gerrymandering” occurs when the dominant party in government draws district lines to entrench itself in power and to disadvantage the disfavored party’s voters. Plaintiffs in this action are individual Democratic voters from each of Ohio’s sixteen congressional districts, two non-partisan pro-democracy organizations, and three Democratic-aligned organizations. They challenge the constitutionality of Ohio’s 2012 redistricting map. Defendants are Ohio officials, and Intervenors are Ohio Republican Congressmen; Defendants and Intervenors both argue that 2 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 262 Filed: 05/03/19 Page: 3 of 301 PAGEID #: 23360 the Plaintiffs’ claims are not properly before this Court and defend the map’s constitutionality on the merits. In 2011, when Ohio’s redistricting process began, Republican dominance in the Ohio State government meant that Republican state legislators could push through a remarkably pro- Republican redistricting bill without meaningful input from their Democratic colleagues. Ohio Republicans took advantage of that opportunity, and invidious partisan intent—the intent to disadvantage Democratic voters and entrench Republican representatives in power—dominated the map-drawing process. They designed the 2012 map using software that allowed them to predict the partisan outcomes that would result from the lines they drew based on various partisan indices that they created from historical Ohio election data. The Ohio map drawers did not work alone, but rather national Republican operatives located in Washington, D.C. collaborated with them throughout the process. These national Republicans generated some of the key strategic ideas for the map, maximizing its likely pro-Republican performance, and had the authority to approve changes to the map before their Ohio counterparts implemented them. Throughout the process, the Ohio and national map drawers made decisions based on their likely partisan effects. The map drawers focused on several key areas of the Ohio map where careful map design could eke out additional safe Republican seats. They split Hamilton County and the City of Cincinnati in a strange, squiggly, curving shape, dividing its Democratic voters and preventing them from forming a coherent voting bloc, which ensured the election of Republican representatives in Districts 1 and 2. They drew a new District 3 in Franklin County, efficiently concentrating Democratic voters together in an area sometimes referred to as the “Franklin County Sinkhole.” This strategy allowed them to secure healthy Republican majorities in neighboring Districts 12 and 15. They paired Democratic incumbent Representatives Kaptur and Kucinich to 3 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 262 Filed: 05/03/19 Page: 4 of 301 PAGEID #: 23361 create the infamous “Snake on the Lake”—a bizarre, elongated sliver of a district that severed numerous counties. They drew a District 11 that departed from its traditional territory to snatch up additional African-American Democratic voters in Summit County, allowing for the creation of a new District 16 in which a Republican incumbent representative could defeat a Democratic incumbent representative. They designed these districts with one overarching goal in mind—the creation of an Ohio congressional map that would reliably elect twelve Republican representatives and four Democratic representatives. Ohio Republican legislators enacted the first iteration of the 2012 map, H.B. 319, in September 2011. Ohio voters then challenged the map, seeking to subject it to a voter referendum, but their efforts failed. As a result, Ohio Republicans passed a slightly different version of the map, H.B. 369, in December 2011. The changes they made did not materially alter the strong pro- Republican partisan leaning of the map’s first iteration. Four cycles of congressional elections have occurred under the map embodied in H.B. 369. Each resulted in the election of twelve Republican representatives and four Democratic representatives. No district has been represented by representatives from different parties during the life of the map. During a two-week trial, experts testified to the extremity of the gerrymander. They demonstrated that levels of voter support for Democrats can and have changed, but the map’s partisan output remains stubbornly undisturbed. The experts used various metrics and methodologies to measure their findings, but several takeaways were universal: (1) the Ohio map sacrifices respect for traditional districting principles in order to maximize pro-Republican partisan advantage, (2) the Ohio map’s pro-Republican partisan bias is extreme, compared both to historical plans across the United States and to other possible configurations that could have been adopted 4 Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 262 Filed: 05/03/19 Page: 5 of 301 PAGEID #: 23362 in Ohio, and (3) the Ohio map minimizes responsiveness and competition, rendering one consistent result no matter the particularities of the election cycle. We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity. Performing our analysis district by district, we conclude that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into districts that are so skewed toward one party that the electoral outcome is predetermined. We conclude that the map unconstitutionally burdens associational rights by making it more difficult for voters and certain organizations to advance their aims, be they pro-Democratic or pro- democracy. We conclude that by creating such a map, the State exceeded its powers under Article I of the Constitution. Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally viable replacement. I. BACKGROUND A. General Overview of the Facts 1. The redistricting process begins Every ten years, the United States government conducts a census. The census results dictate the size of each state’s delegation to the United States House of Representatives because House seats are based on population. Following the release of the census results, state legislatures redraw their United States congressional districts