eCases

, in which the Supreme Court of the
United States held that partisan-gerrymandering claims arising under the federal
Constitution present political questions that are not justiciable in federal courts. The
Rucho court explained that to avoid “ ‘assuming political, not legal, responsibility,’ ”
federal courts must “act only in accord with especially clear standards.”

 at __,

139 S.Ct. at 2498

, quoting Vieth v. Jubelirer,

541 U.S. 267

, 307,

 (2004) (Kennedy, J., concurring). The court held that “[a]ny standard
for resolving such claims must be grounded in a ‘limited and precise rationale’ and
13
SUPREME COURT OF OHIO
be ‘clear, manageable, and politically neutral.’ ”

Id.,

 quoting Vieth at 306-308
(Kennedy, J., concurring).
{¶ 32} Two main factors underlie the Rucho holding: (1) the federal
Constitution does not include a “plausible grant of authority” to federal courts to
review partisan-gerrymandering claims, and (2) there are no “legal standards to limit
and direct” the decision-making of federal judges in such claims.

 at __,

139 S.Ct. at 2507

. The first factor is not present in these cases. The people of Ohio have
prohibited the General Assembly from passing, by a simple majority, a
congressional-district plan that unduly favors or disfavors political parties or their
incumbents. Ohio Constitution, Article XIX, Section 1(C)(3)(a). And the people
have granted this court “exclusive, original jurisdiction in all cases arising under”
Article XIX.

 at Section 3(A). That is more than a plausible grant of authority.
{¶ 33} Moreover, the fact that the Ohio Constitution expressly forbids
partisan gerrymandering and grants authority to this court lessens the degree to which
a manageable standard is necessary:
[C]ourts might be justified in accepting a modest degree of
unmanageability to enforce a constitutional command which (like the
Fourteenth    Amendment        obligation   to   refrain   from   racial
discrimination) is clear; whereas they are not justified in inferring a
judicially enforceable constitutional obligation (the obligation not to
apply too much partisanship in districting) which is both dubious and
severely unmanageable.
(Emphasis sic.) Vieth at 286 (plurality opinion). Indeed, in Rucho, the court
suggested that state constitutional and statutory provisions similar to Section
1(C)(3)(a) provide standards and guidance that state courts can apply. Rucho at __,

139 S.Ct. at 2507-2508

, citing, inter alia, Florida Constitution, Article III, Section
14
January Term, 2022
20(a) (“No apportionment plan or individual district shall be drawn with the intent to
favor or disfavor a political party or an incumbent”) and Del.Code Ann., Title xxix,
Section 804 (providing that no state legislative district shall “be created so as to
unduly favor any person or political party”). Chief Justice John Roberts, writing for
the majority, noted: “We do not understand how the dissent can maintain that a
provision saying that no districting plan ‘shall be drawn with the intent to favor or
disfavor a political party’ provides little guidance on the question.”

 at __,

139 S.Ct. at 2507

.
{¶ 34} Contrary to what Senate President Huffman and House Speaker Cupp
argue, Ohio voters intended that the anti-gerrymandering requirements in Article
XIX, Section 1(C)(3) have teeth. Section 1(C)(3)(a) articulates a standard that is
“grounded in a ‘limited and precise rationale’ and [that is] ‘clear, manageable, and
politically neutral,’ ” Rucho, 588 U.S. at __,

139 S.Ct. at 2498

2014 L.Ed.2d 931

,
quoting Vieth,

541 U.S. at 306-308

 (Kennedy, J.,
concurring).
{¶ 35} Article XIX, Section 1(C)(3)(a) prohibits the General Assembly from
passing, by a simple majority, a congressional-district plan that “unduly favors or
disfavors a political party or its incumbents.” In interpreting this language, we apply
the rules that govern the interpretation of statutes. See Toledo City School Dist. Bd.
of Edn. v. State Bd. of Edn.,

146 Ohio St.3d 356

2016-Ohio-2806

56 N.E.3d 950

,
¶ 16. That is, we must begin with the language of the provision itself,

id.,

 and
consider “how the words and phrases would be understood by the voters in their
normal and ordinary usage,” Centerville v. Knab,

162 Ohio St.3d 623

, 2020-Ohio-
5219,

166 N.E.3d 1167

, ¶ 22, citing District of Columbia v. Heller,

554 U.S. 570

,
576-577,

128 S.Ct. 2783

171 L.Ed.2d 637

 (2008). In other words, “[i]n construing
constitutional text that was ratified by direct vote, we consider how the language
would have been understood by the voters who adopted the amendment.” Centerville
at ¶ 22.
15
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{¶ 36} Article XIX does not define “unduly.” But “[i]n determining the
‘common and ordinary meaning’ of words, courts may look to dictionaries.” Athens
v. McClain,

163 Ohio St.3d 61

2020-Ohio-5146

168 N.E.3d 411

, ¶ 30. The
dictionary definition of “undue” is “[e]xcessive or unwarranted.” Black’s Law
Dictionary 1838 (11th Ed.2019); see also Webster’s Third New International
Dictionary 2492 (defining “unduly” as “in an undue manner, esp : EXCESSIVELY” and
defining “undue” as “exceeding or violating propriety or fitness:                     EXCESSIVE,
IMMODERATE, UNWARRANTED”              [italics and small caps sic]). This, of course, raises
questions: In excess of what? Or, unwarranted by what?
{¶ 37} Senate President Huffman and House Speaker Cupp assert that
petitioners’ benchmark is proportionality. And they note that Article XIX lacks any
explicit proportionality standard like the one for General Assembly–district plans set
forth in Article XI, Section 6(B).5 But Senate President Huffman and House Speaker
Cupp mischaracterize petitioners’ argument. Although petitioners look to partisan
proportionality as one metric in some aspects of their analysis, their claims do not
rest on a demand for proportionality. Rather, petitioners assert that the General
Assembly passed a plan with a partisan advantage that “is unwarranted by valid
considerations, namely, the redistricting criteria set forth in Article XIX.” (Emphasis
added.)
{¶ 38} Those redistricting criteria are mainly set forth in Article XIX, Section
2. They include requirements that a congressional-district plan comply with all
applicable state and federal constitutional provisions and with federal law protecting
racial-minority voting rights and that a plan be composed of contiguous territory,
with a single, nonintersecting boundary line. They also include guidelines on
5. Article XI, Section 6(B) of the Ohio Constitution requires the Ohio Redistricting Commission to
attempt to draw a General Assembly–district plan in which “[t]he statewide proportion of districts
whose voters, based on statewide state and federal partisan general election results during the last
ten years, favor each political party shall correspond closely to the statewide preferences of the
voters of Ohio.”
16
January Term, 2022
splitting or not splitting municipalities of various sizes and locations; limitations on
the number of counties that may be split not more than once and the number that may
be split not more than twice; a requirement that in districts containing only part of a
particular county, the portion of the county within the district be contiguous with the
boundaries of the county; a requirement that no two districts may share portions of
more than one county, unless the county’s population exceeds 400,000; and a
requirement that the General Assembly attempt to include at least one whole county
in each district. Ohio Constitution, Article XIX, Section 2(B)(1) through (8). Also,
Section 1(C)(3)(c) requires the General Assembly to attempt to draw districts that are
compact.
{¶ 39} “Where provisions of the Constitution address the same subject
matter, they must be read in pari materia and harmonized if possible.” Toledo Edison
Co. v. Bryan,

90 Ohio St.3d 288

, 292,

737 N.E.2d 529

 (2000). That is, when possible,
we must construe provisions to give each provision reasonable and operable effect.
State ex rel. Toledo v. Lucas Cty. Bd. of Elections,

95 Ohio St.3d 73

, 78,

765 N.E.2d 854

(2002).
{¶ 40} Reading Article XIX, Sections 1 and 2 together, we conclude that
Section 1(C)(3)(a) prohibits the General Assembly from passing by a simple majority
a plan that favors or disfavors a political party or its incumbents to a degree that is in
excess of, or unwarranted by, the application of Section 2’s and Section 1(C)(3)(c)’s
specific line-drawing requirements to Ohio’s natural political geography. In other
words, Section 1(C)(3)(a) does not prohibit a plan from favoring or disfavoring a
political party or its incumbents to the degree that inherently results from the
application of neutral criteria, but it does bar plans that embody partisan favoritism
or disfavoritism in excess of that degree—i.e., favoritism not warranted by legitimate,
neutral criteria.
17
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2. The enacted plan unduly favors the Republican Party and unduly disfavors the
Democratic Party
{¶ 41} The evidence overwhelmingly shows that the enacted plan favors the
Republican Party and disfavors the Democratic Party to a degree far exceeding what
is warranted by Article XIX’s line-drawing requirements and Ohio’s political
geography.
a. The enacted plan’s expected performance
{¶ 42} Although Ohio has not yet held any congressional elections under
the enacted plan, the parties agree that, in general, voting history in prior elections
can predict future voting patterns. As a starting point, we examine how the two
major political parties are expected to perform under the enacted plan. The parties
have submitted the reports of several experts to aid in this analysis.
{¶ 43} To start, Senate President Huffman and House Speaker Cupp argue
that the enacted plan does not allocate each of Ohio’s 15 congressional districts to
one party or another but instead maximizes the number of competitive districts. They
rely on the report of their only expert, Dr. Michael Barber, who is an associate
professor of political science at Brigham Young University with significant
experience in evaluating political and elections-related data. Dr. Barber explained
that in Ohio, Democratic voters are heavily clustered in urban areas and Republican
voters are more evenly distributed throughout the state. This political geography, he
concluded, constrains map drawers. Indeed, using the FEDEA dataset, he found that
the enacted plan is “quite similar” to the plans proposed by the House and Senate
Democrats: they all include six districts that are solidly Republican and two districts
that are solidly Democratic.
{¶ 44} Citing Dr. Barber’s report, Senate President Huffman and House
Speaker Cupp assert that 8 out of Ohio’s 15 congressional districts must be drawn as
“safe” districts for either Democrats or Republicans. Given that asserted reality, they
decided to draw the remaining seven districts as competitive ones. Dr. Barber
18
January Term, 2022
confirmed that under the FEDEA dataset, the enacted plan includes seven
competitive districts. He also evaluated the enacted plan’s competitiveness by
determining whether a Democratic and Republican candidate for statewide federal
office had won a majority of the two-party vote share in the district from 2012 to
2020. He again found seven competitive districts under the enacted plan.
{¶ 45} But “competitiveness” is not a prescribed standard under Article XIX
of the Ohio Constitution. That term does not appear within Article XIX, and rules of
statutory construction forbid us from adding to the text of Article XIX. While
supposed district competitiveness was offered here as a post hoc rationalization for
the mapped districts in the enacted plan, Article XIX itself does not require it and
does not provide any calculable measure for it.
{¶ 46} Beyond that, petitioners submitted multiple expert reports showing
that the enacted plan is not nearly as competitive as Senate President Huffman and
House Speaker Cupp claim that it is. Dr. Jonathan Rodden is a professor of political
science at Stanford University with expertise in the analysis of fine-grained
geospatial data sets, including election results. He concluded that state statewide
election results have more reliably tracked how Ohioans have voted in
congressional elections. Dr. Rodden therefore concluded that by relying on only
the FEDEA dataset, respondents exclude the most relevant data to predict the
partisan outcomes of the enacted plan. Dr. Rodden claimed that by using a more
comprehensive dataset and considering an incumbency advantage, the enacted plan
has only two or three competitive districts.
{¶ 47} Dr. Christopher Warshaw is an associate professor of political science
at George Washington University and has written about elections and partisan
gerrymandering. He noted that the FEDEA dataset excluded “the Republican wave
year” of 2014 and heavily weighted the two federal elections in 2012, which was a
“high-water mark for Democrats in Ohio.” Dr. Warshaw found that the plan has
three competitive districts, although Republican candidates are favored in each. Dr.
19
SUPREME COURT OF OHIO
Rodden and Dr. Warshaw both found that Republicans are likely to win 80 percent
of the congressional seats (12 out of 15) under the enacted plan, even though
Republicans have received about 53 percent of the vote in recent statewide
elections.
{¶ 48} Petitioners also submitted the analysis of other experts who
compared the enacted plan to thousands of computer-simulated plans that comply
with Article XIX’s neutral districting criteria. Dr. Kosuke Imai is a professor in the
government and statistics departments at Harvard University and specializes in the
development of statistical methods for social-science research. He used the FEDEA
dataset in finding that Republicans likely will win 11 of 15 seats under the enacted
plan.6 He generated 5,000 Article XIX–compliant simulated plans, again using the
FEDEA dataset. Those simulated plans did not split any counties that the enacted
plan does not split, contained more compact districts and had fewer county splits than
the enacted plan, and were—just like the enacted plan—applied to Ohio’s particular
political geography.
{¶ 49} Dr. Imai found that Republicans would win 8 seats in 80 percent of
those plans and 9 seats in the other 20 percent of those plans. None of Dr. Imai’s
simulated plans awarded Republicans 11 or more seats. Dr. Imai therefore found—
using the same dataset used by DiRossi—that Republicans are expected to win 2.8
more seats under the enacted plan than under the simulated plans. The enacted plan,
Dr. Imai concluded, is “a clear statistical outlier,” which means there is the presence
of “systemic partisan bias.” Dr. Imai concluded that the probability of the enacted
plan’s partisan favoritism resulting from the application of neutral criteria is
essentially zero.
6. Dr. Imai does not believe that the FEDEA dataset will accurately predict the partisan leaning of
the districts in the enacted plan. He used that dataset only because DiRossi and others used it for
predicting the partisan outcome of the enacted plan. Dr. Imai avers that the FEDEA dataset, if
anything, undercounts the number of likely Republican seats.
20
January Term, 2022
{¶ 50} Dr. Jowei Chen is an associate professor of political science at the
University of Michigan and has published academic papers on legislative
redistricting and political geography. He used the results of all statewide elections
from 2016 to 2020 to generate 1,000 Article XIX–compliant simulated plans to assess
whether the partisan outcome of the enacted plan is within the normal range of the
simulated district plans. Dr. Chen found that Republicans will likely win 12 of 15
congressional seats under the enacted plan. In contrast, only 1.3 percent of the
simulated plans created 12 Republican-favoring districts. Dr. Chen concluded that
the enacted plan is a “statistical outlier” and that the plan’s “extreme” partisan bias
cannot be attributable to Ohio’s political geography, which he accounted for in his
simulations.7
{¶ 51} We conclude that the body of petitioners’ various expert evidence
significantly outweighs the evidence offered by respondents as to both sufficiency
and credibility, compelling beyond any reasonable doubt the conclusion that the
enacted plan excessively and unwarrantedly favors the Republican Party and
disfavors the Democratic Party.
b. Additional comparisons focusing on particular counties
{¶ 52} Petitioners also submitted compelling evidence showing how the
enacted plan’s treatment of certain urban counties unduly favors the Republican Party
and disfavors the Democratic Party.
{¶ 53} Dr. Imai examined districts in Hamilton, Franklin, and Cuyahoga
Counties and concluded that “the enacted plan packs a disproportionately large
number of Democratic voters into some districts while cracking Democratic voters
7. The dissenting justices assert that they are unable to evaluate the simulated maps because they
were not part of the record. However, Dr. Imai and Dr. Chen submitted expert affidavits extensively
describing their methodology, data sources, and conclusions based on the 6,000 simulated plans
reviewed, and they also submitted as exhibits examples and data referenced in the affidavits. We
find that this evidence in the record sufficiently supports the conclusions cited herein.
21
SUPREME COURT OF OHIO
in other districts to create Republican-leaning seats.”8 For each of those counties, he
compared the Republican vote share of each precinct’s assigned district in the enacted
plan with the average of the Republican vote shares for each district that precinct was
assigned to in each of his 5,000 simulated plans. For example, Precinct 061031BEZ,
in Cincinnati, is in District 1 in the enacted plan, a district with an expected
Republican vote share of 51.53 percent. The average Republican vote share of the
districts to which that precinct is assigned (across Dr. Imai’s 5,000 simulated plans)
is 44.85 percent—6.68 percentage points lower than the enacted plan. This shows
that the enacted plan assigned that precinct to a more Republican-leaning district than
the average simulated plan.
{¶ 54} Dr. Imai states that performing this exercise for all the precincts in
Hamilton County reveals that “the enacted plan cracks Democratic voters, leading to
solely Republican districts.” The enacted plan does this by splitting Hamilton County
twice (placing county territory in three districts), whereas the simulated plans split it
only once. According to Dr. Imai, the additional split in the enacted plan results in
Hamilton County having no Democratic seats, “whereas the simulated plans are
expected to yield a Democratic seat. So in Hamilton County alone, cracking of
Democratic voters nets Republicans an entire seat.”
{¶ 55} Again, Dr. Imai’s analysis is particularly useful because he used the
FEDEA dataset—i.e., the dataset preferred by Senate President Huffman and House
Speaker Cupp. But petitioners presented evidence from several other experts who
also concluded, using different datasets, that the enacted plan’s treatment of urban
counties disfavors the Democratic Party to an excessive degree that is unwarranted
by Article XIX and the area’s political geography.
8. A “packed” district is one in which a party’s supporters are highly concentrated, so they win that
district by a large margin, “wasting” many votes that would improve their chances in other districts;
a “cracked” district is one in which a party’s supporters are divided among multiple districts, so that
they fall short of a majority in each. See Rucho, 588 U.S. at __,

139 S.Ct. at 2492

.
22
January Term, 2022
{¶ 56} Dr. Rodden compared the enacted plan with alternative plans
proposed by the Democratic caucuses and the Ohio Citizens Redistricting
Committee. He explained that the enacted plan carves up the Black community in
Cincinnati, splitting it into three districts and submerging it among predominantly
white, exurban, and rural voters. He concludes:
Under any method of counting splits, the Enacted Plan’s
approach involves at least two splits of Hamilton County—a line
running north-south on the east side of the county and another one
that carves out the northern suburbs. These maneuvers are clearly not
necessary for any reason other than partisan advantage. Each of the
alternative plans keeps metro Cincinnati together in a compact district
remaining within the county, avoids splitting the Black community,
and splits the county only once.
{¶ 57} Dr. Chen compared the enacted plan to his 1,000 simulated plans and
found that more than 80 percent of those plans placed Cincinnati in a district with a
45 percent Republican vote share and that the vast majority of those plans kept
Cincinnati in a compact district solely within Hamilton County, whereas the enacted
plan placed it in a noncompact district connected to Warren County by a thin strip of
territory—thereby combining the heavily Democratic city with a large rural area,
resulting in a district with a Republican vote share Dr. Chen calculates at 51.6
percent. Dr. Chen concluded that the enacted plan included a noncompact district
containing Cincinnati that was drawn to be favorable to Republicans. This resulted
in a district that was more favorable to Republicans than the Cincinnati district in
over 97 percent of his simulated plans.
{¶ 58} Petitioners’ experts similarly concluded that the districts
encompassing Franklin County were drawn to confer partisan advantages to the
23
SUPREME COURT OF OHIO
Republican Party. Dr. Imai found that the enacted plan packs Franklin County
Democratic voters into a “single, heavily Democratic” district in order to create
additional Republican-leaning districts, “leaving much of the city of Columbus in a
Republican district stretching most of the way to Cincinnati.” As a result, much of
Franklin County—including parts of Columbus—belongs to a safe Republican
district. By contrast, Dr. Imai’s 5,000 simulated plans showed that the entirety of
Franklin and Delaware Counties and a portion of Fairfield County would be
expected to belong to a Democratic-leaning district. Dr. Imai concluded that by
confining Democratic voters to a single district, the enacted plan packs voters in a
way that yields an additional seat for Republicans as compared to Dr. Imai’s
simulated plans.
{¶ 59} Similarly, Dr. Rodden opined that the enacted plan packs Democrats
into a single, very concentrated Columbus district, then “reaches around the city to
extract its outer reaches and suburbs, connecting them with far-flung rural
communities to the southwest—an arrangement that prevents the emergence of a
second Democratic district by removing Democratic Columbus-area neighborhoods
from their context and submerging them in rural Republican areas.” The following
figure from Dr. Rodden’s report illustrates his point:
24
January Term, 2022
Alternative plans, Dr. Rodden notes, split Franklin County with a line that runs
from east to west to create a compact southern district and a relatively compact
northern district that crosses over into Delaware County, which would keep
Columbus’s northern suburbs together.
{¶ 60} Regarding Columbus and Franklin County, Dr. Chen opined:
[T]he Enacted Plan’s two Columbus-area districts are clear partisan
outliers: CD-3, which contains most of Columbus’ population, is
more heavily Democratic than all 1,000 of the simulated plans’
districts with the most Columbus population. Consequently, the
Enacted Plan’s CD-15, which contains the second-most of Columbus’
25
SUPREME COURT OF OHIO
population, is more heavily Republican than 98% of the simulated
plans’ districts with the second-most Columbus population.
And according to Dr. Chen, Districts 3 and 15 are also “less geographically
compact” than nearly every simulated plan’s districts containing the most and
second most Columbus residents—which is not a result “one could reasonably
expect from a districting process that follows the districting requirements of the
Ohio Constitution.” For these reasons, we conclude that the enacted plan divided
Franklin County into noncompact districts to confer a partisan advantage on the
party drawing the plan.
{¶ 61} Finally, Dr. Imai’s examination of Cuyahoga and Summit Counties
yielded a similar conclusion: “While under the simulated plans, the suburbs of
Cleveland are expected to belong to either Democratic districts or highly competitive
districts, the enacted plan packs urban Democratic voters, leaving the remainder of
Cuyahoga County and nearby areas in Republican districts.” This results in territory
that would be expected to be in Democratic-leaning districts based on the simulated
plans being divided to support the population needed for three Republican districts
and one competitive district in the enacted plan. Dr. Rodden and Dr. Chen again
concur. Dr. Rodden noted that the enacted plan splits Cuyahoga County into three
districts and contains a district that would be noncontiguous except for a narrow
corridor that is one precinct wide, and it also carves up Democratic-leaning areas
around Akron. Dr. Chen concluded that the enacted plan engages in unnatural
packing around Cleveland “to an extent that is not explained by Cuyahoga County’s
political geography.”
{¶ 62} This expert analysis demonstrates that in each of Ohio’s three largest
metropolitan areas, the enacted plan contains districts that are not shaped according
to Article XIX’s neutral districting criteria or Ohio’s political geography; instead, the
inescapable conclusion is that they are the product of an effort to pack and crack
26
January Term, 2022
Democratic voters, which results in more safe Republican districts or competitive
districts favoring the Republican Party’s candidates. Not only are such oddly shaped
districts not required by the criteria set forth in Article XIX, but they are in tension,
if not in conflict, with Section 1(C)(3)(c)’s exhortation that the General Assembly
“shall attempt to draw districts that are compact.” Ohio Constitution, Article XIX,
Section 1(C)(3)(c). And they split communities of interest, such as the Black
community in Hamilton County. See Rucho, 588 U.S. at __,

139 S.Ct. at 2500

 (“keeping communities of interest together” is a traditional redistricting
criterion).
c. Other measures of partisan bias
{¶ 63} Petitioners’ experts also found that the enacted plan unduly favors the
Republican Party when considered under other analytical methods created by
political scientists to measure partisanship in redistricting:
   The “efficiency gap,” which measures the difference between the parties’
respective “wasted votes” (i.e., the number of votes above the 50 percent plus
1 that a party needs to win an election), divided by the total number of votes
cast.
   The “mean-median gap,” which measures the difference between a party’s
vote share in the median district and its average vote share across all districts.
If a party wins more votes in the median district than in the average district,
then the mean-median gap indicates that the plan gives that party an
advantage in the translation of votes to legislative seats.
   “Declination,” which measures the asymmetry in the distribution of votes
across districts. For example, if the Democratic Party’s average vote share in
districts it won is significantly higher than the Republican Party’s average
vote share in the districts it won, the Democratic Party’s districts are
considered to be packed.
27
SUPREME COURT OF OHIO
   “Partisan symmetry,” which measures whether each party would receive the
same share of seats under the plan assuming they had identical shares of
votes. For example, if the Democratic Party would win 51 percent of the
seats if it received 55 percent of the votes, but the Republican Party would
win 66 percent of the seats if it received 55 percent of the votes, then the
partisan-symmetry metric indicates that the map favors the Republican Party.
{¶ 64} Dr. Warshaw analyzed the enacted plan under each of these metrics
using three different election datasets. He then compared the results to congressional
elections across the nation from 1972 to 2020. He concluded that regardless of the
approach used, “the enacted map has an extreme level of bias in favor of the
Republican [P]arty.” For example, using the election results from all statewide
elections from 2012 to 2020, Dr. Warshaw found that the enacted plan is more
extremely biased than 70 percent of previous plans and “more pro-Republican” than
85 percent of previous plans.
{¶ 65} Dr. Imai similarly considered the four partisan-bias metrics when
comparing the enacted plan to his 5,000 simulated plans. He concluded that the
enacted plan is a “clear outlier” favoring the Republican Party and is more biased
than any of the 5,000 simulated plans under all four metrics. Dr. Rodden found that
the enacted plan’s efficiency gap—the difference in the number of “wasted votes”
between Democratic and Republican candidates—was higher than the efficiency
gaps in almost every other comparable state. Dr. Chen found that the enacted plan’s
efficiency gap is larger than 99.5 percent of his simulated plans.
{¶ 66} These various expert analyses further confirm beyond any
reasonable doubt that the enacted plan excessively and unnecessarily favors the
Republican Party and unduly disfavors the Democratic Party.
28
January Term, 2022
d. Senate President Huffman and House Speaker Cupp
did not effectively rebut petitioners’ evidence
{¶ 67} Senate President Huffman and House Speaker Cupp argue that the
analyses of Dr. Rodden and Dr. Chen are flawed because they did not use the FEDEA
dataset to predict election outcomes. Although Dr. Rodden and Dr. Chen used
different datasets, they applied the same datasets to the enacted plan that they applied
to the simulated or alternative plans and then compared partisan outcomes. Their
analyses therefore are relevant to the question whether the enacted plan favors a party
in a way unwarranted by the neutral factors in Article XIX. Moreover, Dr. Imai did
use the FEDEA dataset, and Senate President Huffman and House Speaker Cupp’s
brief does not even mention Dr. Imai.
{¶ 68} Senate President Huffman and House Speaker Cupp also argue that
we have previously “discounted the usefulness” of analyzing an enacted plan using
alternative plans that were not presented to the General Assembly prior to its adoption
of the enacted plan, citing Wilson v. Kasich,

134 Ohio St.3d 221

2012-Ohio-5367

981 N.E.2d 814

, ¶ 43-46. But Wilson does not prohibit consideration of alternative
plans; it merely cites the fact that the two alternative plans presented by the expert
witness in that case had not been before the apportionment board as one reason
(among many others, including flawed methodology) that we did not find the
evidence sufficient to carry the burden of proof in that case.

Id.

In Wilson, this court
determined at ¶ 2, 14-16 that Article XI’s provisions, as then written, did not mandate
political neutrality in an apportionment plan—in contrast to other states that
prohibited drawing plans that favored or disfavored a political party—and thereafter
rejected the relators’ claims that Sections 7 and 11 of former Article XI had been
violated. Here, by contrast, the simulated plans go to the very question we held was
not at issue in Wilson. The simulated plans are relevant evidence that the enacted
plan unduly favors the Republican Party, which is proscribed by the very provision
we are considering—Article XIX, Section 1(C)(3)(a).
29
SUPREME COURT OF OHIO
{¶ 69} Senate President Huffman and House Speaker Cupp’s expert, Dr.
Barber, points out potential flaws in the plans submitted by the Democratic caucuses,
but that evidence does not go to the relevant question: whether the plan passed by the
General Assembly unduly favors or disfavors a political party. Based on the evidence
discussed previously, we conclude that it does.
{¶ 70} Contrary to the insistence by the dissent9 that our decision today is
based on some amorphous notion of “proportional representation,” Article XIX
contains no such standard. And to be clear, our judgment here rests not on
“proportional representation” but rather on the Constitution’s explicit text stating that
a plan cannot unduly favor or disfavor a political party or unduly split governmental
units for partisan advantage.
{¶ 71} Finally, as noted above, Senate President Huffman and House Speaker
Cupp claim that the General Assembly prioritized crafting competitive districts in
areas where doing so was possible. Article XIX does not require, prohibit, or even
mention competitive districts. But it does require the General Assembly to attempt
to draw districts that are compact. Ohio Constitution, Article XIX, Section
1(C)(3)(c). And most importantly, Article XIX prohibits undue partisan favoritism.

Id.

at Section 1(C)(3)(a). The above evidence, particularly Dr. Imai’s conclusion that
the enacted plan will result in, on average, 2.8 more Republican seats than are
warranted, shows that the General Assembly’s decision to shift what could have
been—under a neutral application of Article XIX—Democratic-leaning areas into
competitive districts, i.e., districts that give the Republican Party’s candidates a better
chance of winning than they would otherwise have had in a more compactly drawn
district, resulted in a plan that unduly favors the Republican Party and unduly
disfavors the Democratic Party.
9. The dissent has chosen to use the unprecedented format of a “joint dissent.” This authorship
label has never been used by this court. Its use now, without explanation by the dissent, is unusual
and inexplicable.
30
January Term, 2022
3. Respondents’ Fourteenth Amendment warning is unfounded
{¶ 72} As an additional argument for rejecting petitioners’ claims that the
plan unduly favors the Republican Party at the expense of the Democratic Party,
Senate President Huffman and House Speaker Cupp warn that imposing a
proportionality requirement would itself be reverse partisan gerrymandering. They
argue that remedying respondents’ violations would run afoul of the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution.
{¶ 73} Senate President Huffman and House Speaker Cupp’s argument that
the court’s invalidation of the congressional-district plan in favor of strict
proportionality is an “absurd” idea that would discriminate against Republican
voters and minor-party voters mischaracterizes the issue in this case. For again,
petitioners do not argue for strict proportionality. Petitioners’ claims are based on
Article XIX of the Ohio Constitution, which forbids the General Assembly from
passing by a simple majority a plan that unduly favors or disfavors a political party.
Because Section 1(C)(3)(a) does not require a strictly proportional plan, the General
Assembly need not necessarily enact one.
{¶ 74} Moreover, Senate President Huffman and House Speaker Cupp’s
argument is at odds with Rucho’s holding that partisan-gerrymandering claims
under the Fourteenth Amendment are not justiciable in federal courts. See Rucho,
588 U.S. at __,

139 S.Ct. at 2506-2507

. Senate President
Huffman and House Speaker Cupp offer no reason why, after Rucho, any court
would entertain a claim alleging partisan gerrymandering in violation of the
Fourteenth Amendment.
C. Section 1(C)(3)(b)
{¶ 75} Article XIX, Section 1(C)(3)(b) provides: “The General Assembly
shall not unduly split governmental units, giving preference to keeping whole, in the
order named, counties, then townships and municipal corporations.” Petitioners
argue that the enacted plan violates Section 1(C)(3)(b) because it unduly splits urban
31
SUPREME COURT OF OHIO
counties in ways that are not required by Ohio’s political geography, equal
population, or any other redistricting requirements in Article XIX. Rather, petitioners
contend that the splits were drawn purely for partisan advantage.
{¶ 76} Senate President Huffman and House Speaker Cupp argue that this
court may “easily reject[]” this argument because it is undisputed that the plan
“divides fewer governmental units than the 2011 Congressional Plan as well as the
two Democratic proposed congressional plans.”         They also note that the plan
complies with the limits on splitting counties, townships, and municipal corporations,
as provided in Article XIX, Section 2(B). For example, they note that under Section
2(B)(5), 23 counties may be split into different congressional districts but that the
enacted plan splits only 12 counties.
{¶ 77} For the reasons explained below, we conclude that the enacted plan
unduly splits three counties in violation of Section 1(C)(3)(b). Those splits result in
noncompact districts that cannot be explained by any neutral factor and serve no
purpose other than to confer partisan advantage to the political party that drew the
plan.
1. Permissive splitting under Section 2(B) does not authorize partisan splitting
{¶ 78} Senate President Huffman and House Speaker Cupp’s arguments can
be easily rejected. First, the fact that the enacted plan divides fewer governmental
units than the 2011 congressional-district plan or the plans proposed by the House
and Senate Democrats is immaterial. Showing that other plans would split more
governmental units does not validate the enacted plan.          Moreover, the 2011
congressional-district plan is an improper comparator because Article XIX was not
part of the Ohio Constitution when the General Assembly passed that plan and no
other provision of the Ohio Constitution addressed the undue splitting of
governmental units with regard to congressional redistricting prior to its enactment.
See 2018 Sub.S.J.R. No. 5.
32
January Term, 2022
{¶ 79} Second, the enacted plan’s compliance with Article XIX, Section 2(B)
does not foreclose a claim that the plan unduly splits governmental units under
Section 1(C)(3)(b). No part of the Constitution “should be treated as superfluous
unless that is manifestly required,” and this court should avoid any construction that
makes a provision “meaningless or inoperative.” State ex rel. Myers v. Spencer Twp.
Rural School Dist. Bd. of Edn.,

95 Ohio St. 367

, 373,

116 N.E. 516

 (1917). If
compliance with the county-, township-, and municipal-corporation-splitting rules in
Section 2(B) were sufficient for any plan enacted under Article XIX, there would be
no need for the Constitution to contain a separate provision precluding the General
Assembly from unduly splitting governmental units. To give meaning to Section
1(C)(3)(b), the provision must be interpreted to contemplate that a congressional-
district plan could unduly split governmental units even though the splits are not
otherwise prohibited under Section 2(B).
{¶ 80} For example, a district plan may violate Article XIX, Section
1(C)(3)(b) by splitting governmental units as a means to confer an undue partisan
advantage—even if the district plan otherwise complies with Section 2(B). As
discussed above, the ordinary meaning of “undue” is “[e]xcessive or unwarranted.”
Black’s at 1838; see also Webster’s at 2492. A split may be unwarranted if it confers
an undue partisan advantage on the political party that drew the map and if it cannot
otherwise be explained by neutral redistricting criteria.
{¶ 81} If there were any doubt as to that interpretation of Section 1(C)(3)(b),
the structure of Article XIX and the purpose of the amendment also lead to that
conclusion. In construing constitutional text that was ratified by direct vote, “our
inquiry must often include more than a mere analysis of the words found in the
amendment.” Centerville,

162 Ohio St.3d 623

2020-Ohio-5219

166 N.E.3d 1167

,
at ¶ 22. If the meaning of constitutional text is unclear, we “may review the history
of the amendment and the circumstances surrounding its adoption, the reason and
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SUPREME COURT OF OHIO
necessity of the amendment, the goal the amendment seeks to achieve, and the
remedy it seeks to provide to assist the court in its analysis.”

Id.

{¶ 82} Here, the General Assembly is prevented from unduly splitting
governmental units only when the district plan is passed by a simple majority—that
is, when the political party in power enacted the plan without sufficient bipartisan
support. When the amendment was placed on the 2018 ballot, the language
specifically informed voters that if the General Assembly adopted a plan without
significant bipartisan support, the plan “must comply with explicit anti-
gerrymandering requirements.” See Statewide Issue Ballot Language for the
Primary Election Occurring May 8, 2018, available at
https://www.ohiosos.gov/globalassets/ballotboard/2018/2018_primary_issuesrepo
rt.pdf#page=1 (accessed Jan. 4, 2022) [https://perma.cc/7E9V-Q3B]. Black’s Law
Dictionary defines “gerrymandering” as “[t]he practice of dividing a geographical
area into electoral districts, often of highly irregular shape, to give one political
party an unfair advantage by diluting the opposition’s voting strength.” Id. at 830.
{¶ 83} Therefore, the splitting of a governmental unit may be “undue” if it
is excessive or unwarranted. A split may be unwarranted if it cannot be explained
by any neutral redistricting criteria but instead confers a partisan advantage on the
party that drew the map—regardless of whether the plan complies with Article XIX,
Section 2(B). In other words, permissive splitting under Section 2(B) does not
authorize partisan splitting.
2. The district plan unduly splits Hamilton County
{¶ 84} The enacted plan splits Hamilton County into three districts for no
apparent reason other than to confer an undue partisan advantage on the Republican
Party. In the 2020 presidential election, the Democratic candidate received 58
percent of the vote in Hamilton County and the Republican candidate received 42
percent of the vote. But under the enacted plan, two of Hamilton County’s new
districts (Districts 2 and 8) would be safe Republican districts and the third new
34
January Term, 2022
district (District 1) would lean slightly Republican—even using the FEDEA
dataset. None of those districts are entirely within Hamilton County.
{¶ 85} Dr. Imai found that Hamilton County’s “Democratic areas are
cracked to yield three Republican-leaning districts, despite a significant
concentration of Democratic voters in and around Cincinnati.” The result of the
“manipulations and additional splits of Hamilton County,” he concluded, “nets
Republicans an entire seat,” while the simulated plans are expected to yield a
Democratic seat.
{¶ 86} Dr. Rodden similarly found that any attempt to “minimize splits and
keep Cincinnati-area communities together would produce a majority-Democratic
district.” The enacted plan, he concluded, carves out Hamilton County’s northern
Black population from its surroundings neighborhoods and combines it with a mostly
rural district that ends 85 miles to the north, extracts Cincinnati from its immediate
inner-ring suburbs and combines the city proper with Warren County via a narrow
corridor, and extracts Cincinnati’s eastern suburbs and combines them with
“extremely rural” counties to the east. The following map from Dr. Rodden’s report
illustrates his point:
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SUPREME COURT OF OHIO
Alternative plans submitted to the General Assembly, Dr. Rodden noted, kept metro
Cincinnati together in a compact district within Hamilton County, avoided splitting
the Black community, and split the county only once. Dr. Rodden concluded that
the splits in Hamilton County “are clearly not necessary for any reason other than
partisan advantage.”
{¶ 87} Dr. Chen concluded that splitting Hamilton County into three
districts is “statistically anomalous” and that only 1.3 percent of his simulated plans
similarly split the county into three districts. He further found that one Cincinnati
district in the enacted plan—District 1—has a higher Republican vote share than
98 percent of the computer-simulated Cincinnati districts. According to Dr. Chen,
36
January Term, 2022
the enacted plan achieves this “unnaturally high” Republican-vote share by
“splitting Hamilton County into three districts and combining the Cincinnati
portion of Hamilton County with Warren County”; the result is a “very non-
compact shape[d]” District 1, with a compactness score that is much lower than the
Cincinnati-based districts in virtually all the computer-simulated districts. The
enacted plan, Dr. Chen concluded, creates “an extreme partisan outcome” in
District 1 “by splitting Hamilton County excessively and sacrificing geographic
compactness in this district.”
{¶ 88} In their brief, Senate President Huffman and House Speaker Cupp
do not adequately explain why the enacted plan splits Hamilton County into three
districts. Based on this record, we find that the two splits in Hamilton County were
excessive and unwarranted. The evidence overwhelmingly shows that the effect of
those splits was to confer significant partisan advantage on the party that drew the
districts.
3. The district plan unduly splits Summit and Cuyahoga Counties
{¶ 89} The evidence also demonstrates that the enacted plan splits Summit
and Cuyahoga Counties to confer partisan advantages on the Republican Party.
{¶ 90} Dr. Rodden concluded that the enacted plan splits Summit County by
cutting Akron off from its eastern Democratic-leaning suburbs, placing those suburbs
in a “long, narrow north-south corridor that is, in one spot, less than one mile wide”
and connecting those areas with highly Republican rural areas up to 70 miles away.
Dr. Rodden further noted that rather than combining Akron with its own suburbs, the
enacted plan combines the city with Medina County in District 13 and “the most
Republican outer exurbs of Cleveland.” Alternative plans, he noted, mostly kept
Summit County together. Dr. Rodden concluded that District 13 “appears to have
been crafted as part of an effort to make sure there is only one very Democratic
district in Northeast Ohio.” What would have otherwise been a comfortable
37
SUPREME COURT OF OHIO
Democratic, Akron-based district, he concludes, is instead a “toss up.” The following
illustration from Dr. Rodden’s report demonstrates his points:
{¶ 91} As it does with Hamilton County, the enacted plan splits Cuyahoga
County into three districts—although Dr. Imai found that only 8 of his 5,000
simulated plans split two counties twice. One of those Cuyahoga County districts—
District 14—includes a narrow corridor jutting into the county that, according to Dr.
Rodden, is “in one spot, the width of one census block, with no road connecting” the
two portions of the district. The result, according to Dr. Rodden, is that District 14
extracts large numbers of Democrats in suburban Cuyahoga County and places them
in a district that is far more Republican.
{¶ 92} Dr. Imai concluded that the enacted plan overly packs Democratic
voters into District 11—the district that includes Cleveland—and that the
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January Term, 2022
surrounding districts were drawn to “crack the remaining Democratic voters outside
of Cleveland and in the cities of Lorain and Akron.” As a result, in northeast Ohio,
the enacted plan creates three Republican-leaning districts and one competitive
district, even though Dr. Imai’s simulated plans generally show that the areas south
and west of Cleveland would otherwise belong to a competitive or Democratic-
leaning district. Dr. Chen similarly found that the Cleveland-based district was “less
geographically compact than is reasonable for a Cleveland-based district” and instead
appears “to have been drawn in order to create an extreme packing of Democratic
voters that would not have naturally emerged from drawing a more compact
Cleveland-based district.”
{¶ 93} Senate President Huffman and House Speaker Cupp do not explain
the basis for the splits in Summit or Cuyahoga Counties, nor do they attempt to
explain the irregular shapes of the districts resulting from those splits. Under these
circumstances, we conclude that the evidence shows that the enacted plan splits
Summit and Cuyahoga Counties in ways that cannot be explained by any neutral
criteria and instead confers a partisan advantage on the political party that drew the
map.
D. Systemic defects require the passage of a new plan
that complies with Article XIX
{¶ 94} Article XIX, Section 3(B)(1) authorizes this court to determine that
a congressional-district plan, or any congressional district or group of congressional
districts, is invalid. It further provides that a corrective plan “shall remedy any legal
defects in the previous plan identified by the court but shall include no changes to
the previous plan other than those made in order to remedy those defects.” Id.
{¶ 95} Article XIX, Section 3(B)(1) thus recognizes that in some
circumstances, congressional plans that contain isolated defects may be subject to
remediation by simply correcting the defects in the affected district or districts. But
when a congressional-district plan contains systemic flaws such that constitutional
39
SUPREME COURT OF OHIO
defects in the drawing of some district boundaries have a consequential effect on
the district boundaries of other contiguous districts, such a plan is incapable of
being remediated with the surgical precision necessary to correct only isolated
districts while leaving the rest of the plan intact.
{¶ 96} In this case, the partisan gerrymandering used to generate the 2021
congressional-district plan, through undue party favoritism and/or undue
governmental-unit splits, extends from one end of the state to the other. This plan
defies correction on a simple district-by-district basis, if only as a consequence of
the equal-population requirement prescribed by Article XIX, Section 2 and
governing law. We therefore see no recourse but to invalidate the entire
congressional-district plan.
{¶ 97} Article XIX, Section 3(B)(1) and (2) describe what happens next.
Section 3(B)(1) provides that if any congressional-district plan is determined to be
invalid by an unappealed final court order, the general assembly “shall pass” a
congressional-district plan that complies with the Constitution. Section 3(B)(1)
mandates both the timing and substance of any plan so passed. The plan shall be
passed “not later than the thirtieth day after the last day on which an appeal of the
court order could have been filed or, if the order is not appealable, the thirtieth day
after the day on which the order is issued.” Id. And the plan “shall remedy any
legal defects in the previous plan identified by the court but shall include no
changes to the previous plan other than those made in order to remedy those
defects.” Id.
{¶ 98} If the new congressional-district plan is not passed as Section
3(B)(1) describes, “the Ohio redistricting commission shall be reconstituted and
reconvene and shall adopt a congressional district plan” in accordance with the
Constitution. Article XIX, Section 3(B)(2). Again, this provision mandates both
the timing and substance of the commission’s actions. “The commission shall
adopt that plan not later than the thirtieth day after the deadline described in division
40
January Term, 2022
(B)(1) of this section,” and such plan “shall remedy any legal defects in the previous
plan identified by the court but shall include no other changes to the previous plan
other than those made in order to remedy those defects.” Article XIX, Section
3(B)(2).
{¶ 99} By the plain language of Article XIX, Section 3(B), both the General
Assembly and the reconstituted commission, should that be necessary, are
mandated to draw a map that comports with the directives of this opinion.
III. Conclusion
{¶ 100} When the dealer stacks the deck in advance, the house usually wins.
That perhaps explains how a party that generally musters no more than 55 percent
of the statewide popular vote is positioned to reliably win anywhere from 75 percent
to 80 percent of the seats in the Ohio congressional delegation. By any rational
measure, that skewed result just does not add up.
{¶ 101} The incontrovertible evidence in these cases establishes that the
plan passed by the General Assembly fails to honor the constitutional process set
out in Article XIX to reapportion Ohio’s congressional districts. The General
Assembly produced a plan that is infused with undue partisan bias and that is
incomprehensibly more extremely biased than the 2011 plan that it replaced. This
is not what Ohio voters wanted or expected when they approved Article XIX as a
means to end partisan gerrymandering in Ohio for good. The time has now come
for the General Assembly to faithfully discharge the constitutional responsibilities
imposed by Article XIX and by oath of office.
{¶ 102} We hold that the General Assembly did not comply with Article
XIX, Sections 1(C)(3)(a) and (b) of the Ohio Constitution in passing the
congressional-district plan. We therefore declare the plan invalid and we order the
General Assembly to pass a new congressional-district plan, as Article XIX, Section
3(B)(1) requires, that complies in full with Article XIX of the Ohio Constitution and
is not dictated by partisan considerations.
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SUPREME COURT OF OHIO
Relief granted.
STEWART and BRUNNER, JJ., concur.
O’CONNOR, C.J., concurs, with an opinion joined by BRUNNER, J.
KENNEDY, FISCHER, and DEWINE, JJ., dissent, with an opinion.
_________________
O’CONNOR, C.J., concurring.
{¶ 103} I fully concur in the majority opinion. I write separately to
emphasize the following point from the reply brief of petitioners in case No. 2021-
1449: “[Petitioners] have never advocated that strict proportionality is required by
Article XIX, Section 1(C)(3)(a). Indeed, it is not. But it goes too far in the other
direction to suggest that in considering whether a plan is unduly partisan, the
Supreme Court should simply ignore a gross departure from proportionality.”
{¶ 104} The dissenting opinion’s dismissive characterization of all the
metrics used by petitioners’ experts as simply being measures of “proportional
representation” is sleight of hand. No magician’s trick can hide what the evidence
overwhelmingly demonstrates: the map statistically presents such a partisan
advantage that it unduly favors the Republican Party.
{¶ 105} The “competitiveness” standard that respondents offer—a standard
absent from the constitutional language—is another illusion. It asks that voters be
satisfied by a “coin toss” without acknowledging the significant partisan advantage
created across the state.
{¶ 106} For these reasons, I am not persuaded that the dissenting opinion
offers a framework supported by the language of Article XIX of the Ohio
Constitution or reflective of the evidence presented.
BRUNNER, J., concurs in the foregoing opinion.
_________________
42
January Term, 2022
KENNEDY, FISCHER, and DEWINE, JJ., dissenting.
{¶ 107} The majority today declares the congressional-district plan enacted
by the legislature to be unconstitutional on the basis that it “unduly” favors a
political party and “unduly” splits governmental units. It does so without
presenting any workable standard about what it means to unduly favor a political
party or divide a county.
{¶ 108} To the extent that one can find a guiding legal principle in what the
majority does, it is that results under a district-based election system should roughly
equate to what would happen under a system of proportional representation. But,
of course, this country has never adopted a system of proportional representation,
and nothing in Article XIX, Ohio’s congressional-redistricting amendment,
imposes one as a standard against which a legislative-redistricting plan must be
measured. In stark contrast to Article XI, which establishes the standards for
adopting a General Assembly-district plan, Article XIX does not require a
congressional-district plan to even attempt to provide proportionately
representative districts. See Article XI, Section 6(B), Ohio Constitution.
{¶ 109} Equally suspect is the majority’s conclusion that the map unduly
divides counties. Its analysis addresses only four of Ohio’s 88 counties and wholly
disregards the divisions of townships and municipalities. Moreover, Article XIX,
Section 2(B)(5) expressly authorizes the congressional-district plan to split 18
counties one time and five counties two times. The plan not only complies with
that provision, it also splits counties the bare mathematical minimum number of
times: 14. It is impossible to draw a map with equally populated districts that
contains fewer county splits and still meets the other criteria of the amendment. So
what the majority is essentially saying is: we don’t like the legislature’s choices of
counties to divide; it should have divided different ones. But that’s a matter of
policy preference—it has nothing to do with the law.
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SUPREME COURT OF OHIO
{¶ 110} No doubt, there are those who will be quite happy about the policy
choices that the majority makes today. But no one should lose sight of the fact that
what the majority does today is make policy, not apply the law. While none of us
question that the majority sincerely believes that what it is crafting constitutes good
policy, we have grave concerns about the majority’s untethered-by-law eagerness
to wrest from the political branches of our government the authority that rightly
belongs to them. “The document that the Court releases is in the form of a judicial
opinion,” Bostock v. Clayton Cty., __ U.S. __, __,

140 S.Ct. 1731

, __,

207 L.Ed.2d 218

 (2020) (Alito, J., dissenting), but the majority exercises political “will,” not
legal “judgment,” see Alexander Hamilton, The Federalist No. 78.
{¶ 111} We believe that our authority is limited by the text of Article XIX
and the constitutional restraints on the judicial power. Because the majority strays
well beyond both, we respectfully dissent.10
I. BACKGROUND
A. The congressional-redistricting process
{¶ 112} In February 2018, the General Assembly enacted legislation to
place on the ballot an amendment to the Ohio Constitution providing a new process
for drawing congressional districts. The people of Ohio ratified the amendment in
May 2018 with an effective date of January 1, 2021.
{¶ 113} Article XIX is designed to incentivize the political branches to
reach bipartisan compromise on redistricting plans. It does this by providing that a
plan that garners bipartisan, supermajority support lasts ten years while a plan
passed by only a simple majority lasts four years. Article XIX, Sections 1(A),
1(C)(2), and 1(C)(3), Ohio Constitution.                The amendment places primary
10. The majority says the joint authorship of a dissent is “unusual and inexplicable.” Majority
opinion at ¶ 70, fn. 9. It’s not. See, e.g., Natl. Fedn. of Indep. Business v. Dept. of Labor,
Occupational Safety & Health Administration, __ U.S. __, __ S.Ct. __, __ L.Ed.2d __, Nos. 21A244
and 21A247, Slip Opinion,

2022 WL 120952

, *8 (Jan. 13, 2022) (joint dissent of Breyer, Sotomayor,
and Kagan, JJ.).
44
January Term, 2022
responsibility for congressional redistricting on the General Assembly. See Section
1(A). Section 1(A) requires the General Assembly to pass a congressional-district
plan by the affirmative vote of three-fifths of the members of each house in the
legislature, including the affirmative vote of at least one-half of the members of
each of the two largest political parties. If the plan is enacted by the required vote,
it remains effective until the next year ending in the numeral one, i.e., ten years.

Id.

{¶ 114} If the General Assembly fails to enact a plan by the requisite vote
in September of a redistricting year, then the redistricting commission established
in Article XI must adopt a congressional-district plan by a majority vote including
at least two members of the commission who represent each of the two largest
political parties. Section 1(B). If that happens, the plan remains in effect for ten
years.

Id.

{¶ 115} If the commission fails to agree on a plan by October 31, then the
General Assembly must pass a congressional-district plan in the form of a bill not
later than November 30. Section 1(C)(1). The plan is effective for ten years if it is
passed by a three-fifths vote in each house, including an affirmative vote of at least
one-third of the members of each of the two largest political parties. Section
1(C)(2).
{¶ 116} Should the legislature fail to reach bipartisan consensus, Article
XIX authorizes the General Assembly to pass a congressional-district plan by a
simple majority vote of both houses. Section 1(C)(3). The penalty is that the plan
lasts just four years. See Section 1(C)(3)(e). Such a plan must not “unduly favor[
] or disfavor[ ] a political party or its incumbents,” Section 1(C)(3)(a), or “unduly
split governmental units,” Section 1(C)(3)(b).
{¶ 117} The process repeats itself once the four-year plan expires. Article
XIX, Section 1(D), (E), and (F). Further, when a congressional-district plan ceases
to be effective, “the district boundaries described in that plan shall continue in
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SUPREME COURT OF OHIO
operation for the purpose of holding elections until a new congressional district
plan takes effect.” Section 1(J).
{¶ 118} Article XIX, Section 2 provides additional requirements for a
congressional-district plan. All plans must include single-member districts divided
by population according to the congressional ratio of representation. Section
2(A)(1) and (2). The ratio is the population of Ohio (11,799,448 according to the
2020 federal decennial census) divided by the number of House seats apportioned
to this state (15), which equals 786,629 or 786,630 people per district. Section
2(A)(2). Section 2 further states that the plan “shall comply with all applicable
provisions of the constitutions of Ohio and the United States and of federal law,”
Section 2(B)(1), that “[e]very congressional district shall be composed of
contiguous territory,” Section 2(B)(3), and that “the boundary of each district shall
be a single nonintersecting continuous line,”

id.

 Ten-year plans must contain
compact districts, Section 2(B)(2), but a four-year plan requires only an attempt to
make districts compact, Section 1(C)(3)(c).
{¶ 119} Section 2 of Article XIX also includes requirements for dividing
counties, townships, and municipal corporations.          When the county has a
municipality or township with a population that exceeds the size of a congressional
district, the authority drawing the districts “shall attempt to include a significant
portion of that municipal corporation or township in a single district and may
include in that district other [governmental units] that are located in that county and
whose residents have similar interests as the residents of the municipal corporation
or township.” Section 2(B)(4)(a). When the population of a municipality or
township falls between 100,000 and the size of a congressional district, the city or
township “shall not be split,” unless the county contains two or more such
governmental units, in which case only the most populous “shall not be split.”
Section 2(B)(4)(b).
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January Term, 2022
{¶ 120} “The authority drawing the districts may determine which counties
may be split.” Section 2(B)(5). However, “sixty-five counties shall be contained
entirely within a district, eighteen counties may be split not more than once, and
five counties may be split not more than twice.”

Id.

   Further, “[n]o two
congressional districts shall share portions of the territory of more than one county,
except for a county whose population exceeds four hundred thousand,” Section
2(B)(7), and “[t]he authority drawing the districts shall attempt to include at least
one whole county in each congressional district,” unless compliance would violate
federal law or the district is entirely within one county, Section 2(B)(8).
{¶ 121} Article XIX, Section 3(A) vests this court with “exclusive, original
jurisdiction in all cases arising under this article.”     If a court invalidates a
congressional-district plan, a congressional district, or group of districts, then the
General Assembly must pass a new district plan that remedies the legal defects the
court identified in the previous plan. Section 3(B). However, if the General
Assembly fails to enact a new plan within a 30-day period, the Ohio Redistricting
Commission is reconstituted and must adopt a compliant congressional-district plan
within 30 days. Section 3(B) and (C). Once the General Assembly or the
redistricting commission produces a new plan, it is to be used until the next time
for redistricting.

Id.

B. The legislature enacts a redistricting plan that purports to maximize the
number of competitive districts
{¶ 122} Based on the most recent census, Ohio is allotted 15 seats in the
U.S. House of Representatives, one fewer than in the previous census cycle. The
census data arrived late and in unconsumable format, see Ohio v. Raimondo,

848 Fed.Appx. 187

, 188 (6th Cir.2021), and the General Assembly failed to meet the
September 30 deadline to pass with bipartisan support a congressional-district plan
good for ten years, see Article XIX, Section 1(A). The redistricting commission
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SUPREME COURT OF OHIO
then had the month of October to enact a bipartisan redistricting plan but was unable
to do so. Section 1(B).
{¶ 123} This left the General Assembly the month of November to enact a
plan “in the form of a bill.” Section 1(C)(1). After attempts to reach bipartisan
consensus in the legislature failed, both houses passed a plan with simple-majority
support. The bill was signed into law by the governor soon thereafter. See R.C.
3521.01 et seq. Because the plan was enacted by only a simple majority, the plan
is to remain in effect for four years. Section 1(C)(3)(e).
{¶ 124} The General Assembly included in the legislation “an explanation
of the plan’s compliance with” Section 1(C)(3). Section 1(C)(3)(d). The following
constitute its legislative findings: “The plan contains six Republican-leaning
districts, two Democratic-leaning districts, and seven competitive districts”; only
one district pairs incumbents, and they are members of the Republican party; “[t]he
plan splits only twelve counties and only fourteen townships and municipal
corporations”; and “visual inspection of the congressional district plan
demonstrates that it draws districts that are compact.” 2021 Sub.S.B. No. 258,
Section       3,   733-734,      available        at   https://search-prod.lis.state.oh.us/
solarapi/v1/general_assembly_134/bills/sb258/EN/05/sb258_05_EN?format=pdf
(accessed Jan. 12, 2022) [https://perma.cc/DF75-WC9K]. The General Assembly
reports that on each score, this plan improves upon the congressional-district plan
enacted in 2011. The governor added his approval:
SB 258 makes the most progress to produce a fair, compact, and
competitive map. The SB 258 map has fewer county splits and city
splits than these recent proposals and the current congressional map.
The SB 258 map keeps Lucas and Stark counties, as well as the
Mahoning Valley, whole within single congressional districts for the
first time in decades, and also keeps the cities of Akron, Canton,
48
January Term, 2022
Cincinnati, Cleveland, Dayton, and Toledo all whole within the
same congressional map for the first time since the 1840s. With
seven competitive congressional districts in the SB 258 map, this
map significantly increases the number of competitive districts
versus the current map.
Governor of Ohio News Releases, Governor DeWine Signs Senate Bill 258 (Nov.
20, 2021), https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-
media/governor-dewine-signs-senate-bill-258-11222021 (accessed Jan. 12, 2022)
[https://perma.cc/9JLS-X2W6].
{¶ 125} Here is the plan:
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SUPREME COURT OF OHIO
{¶ 126} Start with the basics.      Each of the 15 districts are virtually
equipopulous, containing either 786,629 or 786,630 people. The plan splits 12
counties, down from 23 in the 2011 plan.             Two counties—Hamilton and
Cuyahoga—are split twice. Lucas and Stark counties are kept whole for the first
time in decades. The plan splits 14 townships and municipalities, down from 35 in
the 2011 plan. Of Ohio’s cities not naturally split by county lines, 98 of the largest
101 are unsplit. Columbus accounts for one split because the state and federal
Constitutions require it. See Sections 2(B)(1) (incorporating the one-person, one-
vote requirement) and 2(B)(4)(a); see also Reynolds v. Simms,

377 U.S. 533

84 S.Ct. 1362

12 L.Ed.2d 506

 (1964) (same).
{¶ 127} The seven competitive districts are District 1, District 6, District 9,
District 10, District 13, District 14, and District 15. Those districts respectively
encompass greater Cincinnati, Ohio’s eastern corridor, Toledo and surrounding
counties, greater Dayton, greater Akron, northeast Ohio, and central Ohio between
Cincinnati and Columbus. District 6, notably, was adjusted to keep the entire
Mahoning Valley (all of Mahoning, Trumbull, and Columbiana counties) in a
single district.
{¶ 128} By any measure, several of the districts are hypercompetitive. In
the Cincinnati-area District 1, for example, statewide federal-election data from
2012 through 2020 (“FEDEA”) show a district with a 51.5 percent Republican
advantage; yet in the most recent election, the Democratic presidential candidate
won the district. The Toledo-area District 9, in contrast, shows only a 47.7 percent
Republican average, yet the Republican presidential candidate carried the district
in the most recent election. The Dayton-area District 10 has a 52.2 percent
Republican federal average and gave the Republican presidential candidate 51.8
percent of the vote in the last election. The Akron-area District 13 may be the most
competitive of all, manifesting a 48.6 percent Republican average and giving the
50
January Term, 2022
Democratic presidential candidate a razor-thin 50.4 percent majority in the last
presidential election.
{¶ 129} Each of the seven competitive districts, whether it leans left or
right, is more competitive than it was in the 2011 plan.              That leaves as
noncompetitive the eight districts encompassing Cleveland, Columbus, Canton,
and Ohio’s rural regions. More than 46 percent of Ohioans live in competitive
districts where candidate strength and voter turnout will dictate results; the rest are
overwhelmingly likely to live in districts where their party has a decided advantage.
{¶ 130} Two groups of petitioners filed complaints in this court asserting
that the enacted plan violates Article XIX of the Ohio Constitution. Petitioners
assert the same two causes of action: first, the plan “unduly favors or disfavors a
political party or its incumbents” in contravention of Section 1(C)(3)(a); second,
the plan “unduly split[s] governmental units,” contravening Section 1(C)(3)(b).
The primary thrust of their claims is that under the plan, Democratic candidates will
fail to win what they consider to be a fair number of seats in Ohio and the plan thus
“unduly” favors the Republican party. They also claim that the plan unduly splits
governmental units in Hamilton, Cuyahoga, and Summit Counties, creating
competitive seats in those areas rather than seats where Democrats have an electoral
advantage.
II. ANALYSIS
{¶ 131} The two questions before this court—whether the enacted
congressional-district plan “unduly favors or disfavors a political party or its
incumbents” or “unduly split[s] governmental units,” Article XIX, Section
1(C)(3)(a) and (b), Ohio Constitution—are questions of first impression. Words in
the Ohio Constitution mean what they meant to the layperson at the time of
enactment. We are to accord Article XIX its original public meaning, free from
policy-oriented gloss. Accord Rutherford v. M’Faddon (1807) (unpublished),
available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2001/2001-Ohio-
51
SUPREME COURT OF OHIO
56.pdf (jury-trial right has the meaning it had “at the time of the framing [of] the
constitution”).
A. The applicable standard
{¶ 132} The questions in these cases are the same for both claims: Is it
“undu[e]”?     Does the enacted congressional-district plan “unduly favor or
disfavor”? Does the plan “unduly split”?
{¶ 133} We first discern what we can about the adverb “unduly”—which is
an “amorphous” word, Planned Parenthood of Southeastern Pennsylvania v.
Casey,

505 U.S. 833

, 985,

112 S.Ct. 2791

120 L.Ed.2d 674

 (1992) (Scalia, J.,
concurring in the judgment in part and dissenting in part)—and then apply those
insights to analyze the alleged partisan favoritism and governmental-unit splits at
issue.
{¶ 134} The Constitution does not define “unduly,” see contra Article XIX,
Section 2(C)(1) (defining “split”), so we turn first to the dictionary, see Centerville
v. Knab,

162 Ohio 623

2020-Ohio-5219

166 N.E.3d 1167

, ¶ 24. “Undue” means
“[e]xcessive or unwarranted,” Black’s Law Dictionary 1838 (11th Ed.2019),
“exceeding or violating propriety or fitness,” Webster’s Third New International
Dictionary 2491 (2002), and “contrary to justice, right, or law,”

id.

 (with “archaic”
status label). The parties agree on these definitions.
{¶ 135} With these definitions come two basic ideas. Something can be
undue simply because it is excessive or too much. Thus, Webster’s provides the
example, “ ‘his sartorial equipment stops just short of undue elegance.’ ”

Id.,

quoting Philip Hamburger.        But “undue” also connotes the sense of being
unwarranted by valid considerations. Thus, when we talk about exercising “undue
influence,” we don’t simply mean that one had too much influence over another;
we also mean that there was something improper about the influence. See West v.
Henry,

173 Ohio St. 498

, 501,

184 N.E.2d 200

 (1962).
52
January Term, 2022
{¶ 136} Under either sense, “undue” is a comparison word.               Whether
something is undue depends on how much of something is “due” or appropriate.
So before we can say whether a plan “unduly” favors a political party, we must
have some baseline understanding of what a fair plan that does not favor one
political party would look like. As the United States Supreme Court explained in
Rucho v. Common Cause, “it is only after determining how to define fairness”—
that is, determining a baseline—“that you can even begin to answer the
determinative question: ‘How much is too much?’ At what point does permissible
partisanship become unconstitutional?” 588 U.S. __, __,

139 S.Ct. 2484

, 2501,

 (2019). Only with some understanding of what the baseline is can one
answer the question whether favoritism is excessive or exists for an improper
reason.
{¶ 137} Indeed, by prohibiting only “undu[e]” favoritism, Section
1(C)(3)(a) presupposes that some degree of partisan favoritism and some amount
of governmental-unit splitting is permissible. Only that which is “undu[e]” is
impermissible. See State ex rel. Carmean v. Hardin Cty. Bd. of Edn.,

170 Ohio St. 415

, 422,

165 N.E.2d 918

(1960) (“It is axiomatic in statutory construction that
words are not inserted into an act without some purpose”); compare Article XIX,
Section 1(C)(3)(a) and (b), Ohio Constitution with Article III, Section 20(a), Florida
Constitution (proscribing partisan “intent” in redistricting).
{¶ 138} So what is the benchmark against which “unduly” is to be
measured? It cannot be whether one party is likely to win more seats than the other
in Congress. Imagine, for example, that every precinct in Ohio is a perfect
microcosm of the state with each precinct having 54.5 percent of voters who tend
to vote for a generic Republican candidate and 45.5 percent for a generic
Democratic candidate.11 In such a scenario, no matter how one draws the districts,
11. These figures derive from the measure provided in Article XI, Section 6(B).
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SUPREME COURT OF OHIO
in a typical year Republicans could win every last district. But no one could
seriously say that the redistricting map “unduly” favored the Republican party.
{¶ 139} The majority thinks that it has a way to fill in this blank spot in the
constitutional text. It announces that although the Constitution “does not prohibit a
plan from favoring or disfavoring a political party or its incumbents to the degree that
inherently results from the application of neutral criteria, * * * it does bar plans that
embody partisan favoritism or disfavoritism in excess of that degree—i.e., favoritism
not warranted by legitimate, neutral criteria.” Majority opinion at ¶ 40. The problem,
though, is that this rule still fails to establish a benchmark. Saying “not warranted by
legitimate, neutral criteria” cannot be the solution in itself, because there are a lot of
ways a plan could comply with “legitimate, neutral criteria.” Indeed, no one disputes
that the current plan complies with all the neutral criteria in the Constitution
(population equality, division of political subdivisions, etc.), as, no doubt, might a
good many different plans. So to engage in the majority’s exercise, one still needs
some idea of the baseline that the favoritism is to be measured against. See Rucho,
588 U.S. at __,

139 S.Ct. at 2505

.
{¶ 140} Though the majority does not plainly state its baseline, its analysis
makes clear the baseline that it is using: the results that would be obtained under a
system of proportional representation. Popular in Europe, proportional
representation is a system of apportionment “designed to represent in a legislative
body each political group or party in optimum proportion to its actual voting strength
in a community.” Webster’s at 1819. So what the majority is really saying is that a
plan unduly favors a political party if it fails to achieve proportional representation
for reasons other than the application of neutral redistricting criteria.
{¶ 141} The majority opinion leaves little doubt that a proportional-
representation system is its baseline. It begins its application of the standard it has
adopted by telling us, “As a starting point, we examine how the two major political
parties are expected to perform under the enacted plan.” Majority opinion at ¶ 42. It
54
January Term, 2022
then supplies an answer: “Dr. Rodden and Dr. Warshaw both found that Republicans
are likely to win 80 percent of the congressional seats (12 out of 15) under the enacted
plan, even though Republicans have received about 53 percent of the vote in recent
statewide elections.” Id. at ¶ 47. It next looks to testimony from petitioners’ experts
about metrics that measure the extent to which a plan achieves proportional
representation—the “efficiency gap,” the “mean-median gap,” “declination,” and
“partisan symmetry”—and uses these proportional-representation metrics to
conclude that the plan violates constitutional standards. Id. at ¶ 63. The majority
wraps up by decrying the plan’s failure to meet its proportional-representation
standard: a stacked deck “perhaps explains how a party that generally musters no
more than 55 percent of the statewide popular vote is positioned to reliably win
anywhere from 75 percent to 80 percent of the seats in the Ohio congressional
delegation.” Id. at ¶ 100.
{¶ 142} The problem, though, is that nothing in Article XIX mandates this
proportional-representation standard. While Article XI directs the Ohio
Redistricting Commission to attempt to draw a General Assembly–district plan in
which the statewide proportion of districts that favors each political party
“correspond[s] closely to the statewide preferences of the voters of Ohio” based on
a proportionality formula, there is no similar language in Article XIX.
{¶ 143} Thus, what the majority does is completely untethered from the text
of Article XIX. When it says that the plan unduly favors the Republican Party,
what it means is that the plan unduly favors the Republican Party as compared to
the results that would be obtained if we followed a system of proportional
representation.
{¶ 144} So where does that leave us? What the majority does has no
relation to the Constitution; the majority simply substitutes its own sense of fairness
for the text of Article XIX. That’s obviously wrong, but what is the proper course?
55
SUPREME COURT OF OHIO
{¶ 145} Respondents Cupp and Huffman argue that it is impossible to
derive from “unduly favors” any judicially manageable standard and that as a result,
we should declare the case to be nonjusticiable. Unwittingly, the majority opinion
makes a strong case that they are right. Indeed, the majority offers no principled,
judicially manageable standard that can be neutrally applied without respect to the
interests of the parties in the case. See Rucho, 588 U.S. at __,

139 S.Ct. at 2498

204 L.Ed.2d 931

.
{¶ 146} “[T]he judicial responsibility to avoid standardless decisionmaking
is at its apex in ‘ “the most heated partisan issues.” ’ ” June Med. Servs., L.L.C. v.
Russo, 591 U.S. __, __,

140 S.Ct. 2103

, 2179,

207 L.Ed.2d 566

 (2020) (Gorsuch,
J., dissenting), quoting Rucho at __,

139 S.Ct. at 2499

, quoting Davis v. Bandemer,

478 U.S. 109

, 145,

106 S.Ct. 2797

92 L.Ed.2d 85

 (1986). In Rucho, after
struggling “without success over the past several decades to discern judicially
manageable standards for deciding” partisan-gerrymandering claims, the United
States Supreme Court held that federal courts would no longer entertain such
claims. Rucho at __,

139 S.Ct. at 2508

. Just recently, our sister court in the Badger
State reached a similar conclusion, pronouncing certain gerrymandering claims
arising under the Wisconsin Constitution to be nonjusticiable.           Johnson v.
Wisconsin Elections Comm.,

399 Wis.2d 623

2021 WI 87

, __ N.W.2d __, ¶ 80-81.
“Claims of political unfairness in the maps present political questions,” the court
held, “not legal ones.” Id. at ¶ 4.
{¶ 147} Nonetheless, we are loath to simply declare that this court may
never consider a claim that a plan unduly favors a political party or unduly divides
political subdivisions.     For three reasons, we decline to reach the same
nonjusticiability holding as our sister and federal high courts. The first reason is
that we need not: as we shall make clear below, even assuming arguendo the
justiciability of petitioners’ claims, their claims fail under any reasonable measure.
56
January Term, 2022
{¶ 148} Our second reason follows from the Supreme Court’s example.
Rucho was not the first case in its line. It was only after “considerable efforts” over
decades and no fewer than one dozen justices’ opinions on the topic that the court
ultimately deemed the question a political one. Gill v. Whitford, __ U.S. __, __,

138 S.Ct. 1916

, 1929,

201 L.Ed.2d 313

 (2018) (citing cases); Rucho, 588 U.S. at
__,

139 S.Ct. at 2496-2498

204 L.Ed.2d 931

. This court, by contrast, is asked to
adjudicate gerrymandering for the first time. Although the majority comes up short
today, we do not rule out that “in another case a standard might emerge,” Vieth v.
Jubelirer,

541 U.S. 267

, 312,

 (2004) (Kennedy,
J., concurring).
{¶ 149} Lastly, and most fundamentally, the Ohio Constitution provides
more guidance than does the United States Constitution. The Ohio Constitution
expressly confers on this court “exclusive, original jurisdiction in all cases arising
under this article.” Article XIX, Section 3(A). Article XIX says that a plan shall
neither “unduly favor[ ] or disfavor[ ] a political party” nor “unduly split
governmental units,” Section 1(C)(3)(a) and (b), and that it is this court’s job to
identify “legal defects,” Section 3(B)(1). “At no point” did the Framers of the
federal Constitution “suggest[ ] that the federal courts had a role to play.” Rucho,
588 U.S. at __,

139 S.Ct. at 2496

, citing Hamilton, The Federalist No. 59. Ohio’s
story is different. The Ohio Constitution assigns this court a role to play in
congressional districting.
{¶ 150} Although we are not willing to say such claims are never
justiciable, we are cognizant that by failing to provide any type of baseline by which
the partisan tilt of a plan is to be measured, the Ohio Constitution vests considerable
discretion in the political branches. This follows for several reasons. First, Article
XIX explicitly vests the primary responsibility for drawing district lines in the
General Assembly. See Section 1(A) (“Except as otherwise provided in this
section, the general assembly shall be responsible for the redistricting of this state
57
SUPREME COURT OF OHIO
for congress based on the prescribed number of congressional districts apportioned
to the state pursuant to Section 2 of Article I of the Constitution of the United
States”). Second, our precedent in redistricting cases applies a strong presumption
that a plan is constitutional. Wilson v. Kasich,

134 Ohio St.3d 221

, 2012-Ohio-
5367,

981 N.E.2d 814

, ¶ 22. Indeed, we have even said that “[i]n the absence of
evidence to the contrary, we presume that the [redistricting authority] properly
performed its duties in a lawful manner.” Id. at ¶ 24. Third, the Ohio Constitution
entrusts to us only the “judicial power.” Article IV, Section 1. The legislative
power is reserved to the legislature and to the people through the initiative and the
referendum. Article II, Section 1, Ohio Constitution. Only the people have the
authority to amend our Constitution. Id. at Section 1a. We have no authority to
add terms and requirements to Article XIX that the people have not put there.
{¶ 151} With these principles in mind, we now turn to the question whether
petitioners have met their burden to show that the congressional-redistricting plan
violates Article XIX’s requirement that a plan not “unduly favor[ ] or disfavor[ ] a
political party,” Section 1(C)(3)(a), or “unduly split governmental units,” Section
1(C)(3)(b). Petitioners have failed to establish that the plan violates either provision
under any standard of review, much less the beyond-a-reasonable-doubt standard
that the majority opinion holds is applicable in this case.
B. Undue partisan favoritism
{¶ 152} By any measure, petitioners have failed to meet their burden to
establish a violation of the Constitution’s requirement that a plan not unduly favor
a political party.
{¶ 153} Begin with a point of agreement by all: of Ohio’s 15-seat allotment,
six districts will be “solidly Republican” and two will be “solidly Democratic,”
majority opinion at ¶ 43.       The two blue districts encompass Cleveland and
Columbus. The six red districts occupy more rural regions of the state. These eight
nonnegotiable districts are the result of political geography—Republican voters
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January Term, 2022
disperse more uniformly about the state while Democratic voters cluster in urban
centers—and only an extreme gerrymander could alter this arrangement.
{¶ 154} The present dispute involves the seven remaining congressional
districts. Accompanying the General Assembly’s enacted plan is a statement
declaring that the seven districts in question were drawn to be “competitive.” Our
analysis proceeds as follows: (1) the maximization of competitive districts is a
permissible goal under Article XIX, (2) this plan attempts to create competitive
districts, (3) the General Assembly’s determination of competitiveness was
reasonable, and therefore, (4) the plan does not violate Section 1(C)(3)(a) of Article
XIX.
1. It is permissible to draw competitive districts
{¶ 155} Since the founding, congressional districting has been the province
of state legislatures. See Rucho, 588 U.S. at __,

139 S.Ct. at 2495-2496

. Article XIX of the Ohio Constitution provides neutral districting
guidelines in Section 2(B) and places additional restrictions on four-year maps in
Section 1(C)(3) but is largely discretion-conferring on the legislature (or
redistricting commission).
{¶ 156} Generally, those seeking to end partisan gerrymandering have
leveled two primary criticisms. First, they claim that partisan gerrymandering
unfairly entrenches one political party in power by drawing lines that maximize that
party’s political representation.
{¶ 157} Second, critics assert that partisan gerrymandering deprives voters
of meaningful elections by creating districts with lopsided majorities of voters of
one political persuasion or the other. Doing so depresses voter interest and turnout
because voters don’t feel as if their votes matter. Drawing districts in this manner
discourages political compromise and leads to increased polarization. This is
because when a district is heavily Democratic or Republican, there is no need from
an electoral standpoint for a candidate (or sitting representative) to appeal to the
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SUPREME COURT OF OHIO
minority. The most important election is often the primary. See Jeffrey S. Sutton,
Who Decides? States As Laboratories of Constitutional Experimentation 18 (2022)
(“If we make nearly 90% of congressional districts safe for one political party or
the other, that makes the party primaries nearly the only elections that matter,
elections that occur long before the first Tuesday after November 1”). Rather than
cater to the median, moderate voter, a candidate (or representative) is incentivized
to appeal only to his or her own political base.
{¶ 158} These criticisms suggest two very different objectives that one
might have in crafting a redistricting plan. To deal with the first, one could try to
create a redistricting map that would ensure something akin to proportional
representation. The idea would be to create a map that guarantees representatives
who mirror as closely as possible the partisan makeup of the state. This is the
objective sought by petitioners in these cases.
{¶ 159} To deal with the second criticism, though, mapmakers would need
to create as many closely divided (or competitive) districts as possible. This is the
objective that the General Assembly purports to have pursued.
{¶ 160} The rub is that to a large degree, the objectives are mutually
exclusive. If mapmakers want to ensure representation that looks like the partisan
makeup of the state, then they need to draw districts that are certain to favor one
side or the other. But if they want to maximize competitive districts, then they need
to draw districts that they aren’t sure which side will win. Rucho, 588 U.S. at __,

139 S.Ct. at 2500

.
{¶ 161} In this case, the legislative respondents assert that they sought to
maximize competitive districts. The first question we must answer is whether this
is permissible under Article XIX. We are convinced that it is.
{¶ 162} We begin with the obvious. In the abstract, congressional districts
that are competitive, by definition, do not unduly favor or disfavor a political party.
The entire idea behind drawing competitive districts is to afford candidates from
60
January Term, 2022
either party legitimate chances of election, to place the political power with the
electorate, where it belongs.
{¶ 163} Competitive districts are in some ways the opposite of
gerrymandered districts. The prototypical gerrymander involves “packing” certain
districts in order to “crack” others. The stratagem is to concede a few districts by
maximal margins in order to win more districts by narrower margins. In districts
drawn to be competitive, the winner won’t be known until the polls are closed and
the votes tallied. This is democracy as we know it. Competitive districts are widely
considered a laudable objective, the sort of objective voters desire; they do not
unduly favor or disfavor political parties but allow the electorate to elect.
{¶ 164} That is not to say that the text of Article XIX mandates that
mapmakers maximize competitive districts. Indeed, unlike Article XI, Section
6(B), nothing in Article XIX prescribes the General Assembly’s goal in drawing
congressional maps. The Article XIX provisions at issue impose negative
restraints—what not to do. That leaves map-drawers tremendous leeway to target
various goals in executing that function.
{¶ 165} Petitioners’ experts have introduced statistical measures designed
to approximate one concept of fairness. They all use as their baseline the idea that
a plan is fair when it achieves a result that resembles proportional representation.
One such measure is the “efficiency gap”—the comparative measure of wasted
votes, votes cast toward a losing candidate or unnecessarily toward a winning
candidate. See majority opinion at ¶ 63. In a perfectly efficient map, there would
be no wasted votes and proportional representation would be achieved—a party’s
representation in Congress would exactly match its percentage of the statewide
vote. Another measure used by petitioners’ experts is partisan symmetry, an
explicit measure of proportional representation that compares a party’s statewide
vote share to the percentage of districts it holds. We are also told about the “mean-
median gap” and “declination,” other measures that are similarly based on a
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SUPREME COURT OF OHIO
proportional-representation ideal. See id. at ¶ 63 (defining the measures). Had the
General Assembly sought to optimize any or several of these measures, we have
little doubt that such a plan would satisfy constitutional standards. And so too
would a plan that sought to maximize proportionally representative congressional
districts.
{¶ 166} But there is nothing in the Ohio Constitution that mandates any of
these things as a goal. And there is nothing in the Constitution that precludes
mapmakers from seeking to maximize competitive districts. Thus, we conclude
that the General Assembly did not violate the Constitution by prioritizing the
creation of competitive districts over other objectives, such as achieving
proportional representation.
2. The General Assembly pursued competitive districts
{¶ 167} The General Assembly found that the plan contains “seven
competitive districts.” 2021 Sub.S.B. No. 258, Section 3. When the governor
signed the bill, he stated: “With seven competitive congressional districts in the SB
258 map, this map significantly increases the number of competitive districts versus
the [2011] map.” Governor of Ohio News Releases, Governor DeWine Signs
Senate Bill 258, https://governor.ohio.gov/wps/portal/gov/governor/media/news-
and-media/governor-dewine-signs-senate-bill-258-11222021 (accessed Jan. 12,
2022) [https://perma.cc/7QFL-ZSYY]. A majority of both houses of the legislature
joined by the state’s chief executive officer thus agree that the seven districts in
question are competitive.
{¶ 168} The majority asserts that “competitiveness was offered here as a
post hoc rationalization.” Majority opinion at ¶ 45. But nothing in the record backs
that up. Before drawing up the plan, Senate President Huffman and Senators Rob
McColley, Vernon Sykes, and others heard public testimony regarding
congressional redistricting. Among the topics debated was defining “competitive.”
During that debate, a representative of Fair Districts Ohio said: “[T]here are going
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January Term, 2022
to be tradeoffs. But just because there’s a creation of a few more competitive
districts, that doesn’t mean that those districts aren’t compact, don’t keep counties
together.” Later, Senator Sykes asked another citizen what in terms of percentages
he “consider[ed] to be competitive.” House Speaker Cupp expressed concern that
championing competitive districts might lead to increased polarization within
districts.
{¶ 169} The person primarily responsible for drawing the eventually
enacted map, Raymond DiRossi, stated in a deposition: “[T]here was a tremendous
amount of public testimony about the existence of competitive districts and what
type of range would be used to determine what was a competitive district. And I
know [Senator McColley] had put a lot of thought into that.” Later he explained,
“[T]hat’s the point, that we’re trying to draw competitive districts now; whereas,
the [2011] map doesn’t have them.”
{¶ 170} All of this goes to demonstrate that competitive districts were front
of mind for the General Assembly before and during the map-drawing process. The
majority may prefer a different objective—namely, proportional representation—
but competition within districts is the valid interest respondents have always
asserted to justify the enacted plan.
3. The determination of competitiveness was reasonable
{¶ 171} Still there remains a question of fact whether the seven districts
under review actually are competitive. The majority opinion correctly observes
that Article XIX does not “prescribe[ ]” competitiveness, nor define it, and we are
“forbid[den]” from “adding to the text.” Majority opinion at ¶ 45. Because we
agree with the majority that “Article XIX itself does not * * * provide any
calculable measure for it,” id., competitiveness is not this court’s measure to define.
{¶ 172} We are guided by a “ ‘universally recognized principle’ ” by which
this court has long abided:
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SUPREME COURT OF OHIO
“[A] court has nothing to do with the policy or wisdom of a statute.
That is the exclusive concern of the legislative branch of the
government. When the validity of a statute is challenged on
constitutional grounds, the sole function of the court is to determine
whether it transcends the limits of legislative power.”
Brady v. Safety-Kleen Corp.,

61 Ohio St.3d 624

, 632,

576 N.E.2d 722

 (1991)
(plurality opinion), quoting State ex rel. Bishop v. Mt. Orab Village School Dist.
Bd. of Edn.,

139 Ohio St. 427

, 438,

40 N.E.2d 913

 (1942).               Just as with
congressional redistricting, the General Assembly is “entrusted with making
complicated decisions about our state’s educational policy,” State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn.,

111 Ohio St.3d 568

, 2006-
Ohio-5512,

857 N.E.2d 1148

, ¶ 73. In that realm we have said, “[P]olicy decisions
are within the purview of [the General Assembly’s] legislative responsibilities, and
that legislation is entitled to deference.”

Id.

That principle of deference to
legislative prerogatives must apply with equal force to the congressional-district
plan before us today.
{¶ 173} The General Assembly chose to define a competitive district as one
within 4 percent of a coin flip. A district with a projected 53-47 partisan split, in
either direction, is considered competitive. A 55-45 split is not. Senator McColley
and Senate President Huffman, the lead sponsors of the districting plan, arrived at
this number after taking considerable public testimony. What’s important for
judicial-review purposes, though, is that plus or minus 4 percent is the range that
the General Assembly as a legislative body countenanced by enacting this map “in
the form of a bill,” Article XIX, Section 1(C)(1), Ohio Constitution.
{¶ 174} In determining the partisan propensity of a district, the drafters of
the enacted plan relied upon a data set (“the FEDEA index”) comprised of all the
statewide federal elections that occurred in the last decade: the 2012, 2016, and
64
January Term, 2022
2020 presidential elections and the 2012, 2016, and 2018 senatorial contests. The
plan also took measures to, when feasible, avoid splitting counties and placing two
incumbents in the same district (“double bunking”).
{¶ 175} The result was a congressional-district plan with seven—the
maximum—competitive districts, by the General Assembly’s definition, with 14
total county splits and one doubly bunked district that contains two incumbents.12
To be thorough, the seven FEDEA competitive districts are District 1 (51.5-48.5%),
District 6 (52.9-47.1%), District 9 (47.7-52.3%), District 10 (52.2-47.8%), District
13 (48.6-51.4%), District 14 (53.2-46.8%), and District 15 (53.7-46.3%). Of the
seven competitive districts, two are plus or minus 2 percent, five are plus or minus
3 percent, and all are plus or minus 3.75 percent. And Democratic candidates have
fared well recently in these seven competitive districts. Out of the six statewide
federal elections since 2012, a Democratic candidate has won in each district, in
some districts securing more than 59 percent of the vote. Competitive indeed.
{¶ 176} For reference, the other plans presented to the legislature included
fewer competitive districts. The House and Senate minority party offered separate
plans, each with just five competitive districts.
{¶ 177} Petitioners respond that plus or minus 4 percent is an arbitrary
measure of competitiveness and that FEDEA is not the best index. On the first
score, of course the measure (like any such measure) contains a degree of
arbitrariness. That is precisely why judicial intervention is unwarranted. The
General Assembly, this state’s policymaking body, chose that range. We have no
authority or competence to monitor the dividing line between competitive and not.
Would a plus-or-minus-3-percent boundary have produced more competition? Of
course. Does the Constitution mandate that? Of course not.
12. Two congressmen currently live in the new District 1, but Congressman Brad Wenstrup has
announced that he will contend for the District 2 seat. No Democratic congressmen were double
bunked.
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SUPREME COURT OF OHIO
{¶ 178} The General Assembly purported to draw seven competitive
districts and defined competitive as within 4 percent of 50/50. All that we as judges
can say is that based on the record before us, using plus or minus 4 percent as the
determinative measure was not unreasonable. Had the General Assembly chosen
an inflated number, say plus or minus 15 percent, then we could fairly intervene to
call it unreasonable as a matter of law to define as “competitive” a projected 65-35-
percent district. We must remember that the FEDEA index supplies ex ante
projections, not ex post results. The index does not take into account the relative
political experience and ability of the candidates running vis-à-vis the past
elections, changes to national and statewide circumstances and attitude, party
platform, control over the White House, and dozens of additional factors—all the
way down to gas prices—that can sway a given election regardless of what the data
predict. To this point, one expert reports that “in the 2020 congressional election,
the actual results in Ohio’s sixteen congressional districts varied, on average, by
5.8 percentage points from the average of the 2011-2020 partisan index,” including
variances upwards of 15 percentage points. Exhibit No. 36, Expert Report of Dr.
Michael Barber at 18.
{¶ 179} And lawmakers routinely make line-drawing decisions akin to the
plus-or-minus-4-percent line. Think budgetary decisions. The General Assembly
allocates funds. Is the decision to allocate $1 million instead of $1.2 million
“arbitrary” in one sense of the word? Yes. But is it arbitrary in the judicial-review
sense—i.e., arbitrary and capricious as a matter of law? Again, of course not. Or
think speed limits. Why 35 miles per hour and not 30? Why is 270 days the
statutory limit to conduct a speedy felony trial? See R.C. 2945.71(C)(2). Why not
250 days? The point is this: drawing policy-oriented lines is at the heart of the
legislative power. Vieth,

541 U.S. at 291

. Save
for unreasonableness, the judiciary is to steer clear.
66
January Term, 2022
{¶ 180} The majority and petitioners do not contend, and experts have not
reported, that 4 percent is too wide a margin to qualify as competitive. Suffice it to
say that defining “competitive” as within 4 percent of dead even is not unreasonable
as a matter of law.
{¶ 181} Then comes the refrain that the FEDEA index is flawed, that other
indices provided a more accurate account of where voter sentiments lie. The chief
complaint seems to be that by using only federal elections, the index omits the
statewide elections that occurred in 2014. But we are hard-pressed as judges to say
that the legislature was wrong in choosing to use federal-election data to predict
voter tendencies in federal elections. Indeed, one might reasonably argue that
including 2014 state-election data would skew the data set. After all, that year it
was revealed that the Democratic gubernatorial candidate did not have an Ohio
driver’s license,13 leading to an election in which he received only 33 percent of the
vote.14 The down-ballot races followed suit with the Democratic candidates for
attorney general, secretary of state, treasurer, and auditor receiving 38.5, 35.5, 43.4,
and 38.3 percent, respectively. 2014 Elections Results,
https://www.ohiosos.gov/elections/election-results-and-data/2014-elections-
results/?__cf_chl_jschl_tk__=5BNyaJhQ5eJBu.i7qqj_uZJzFJrSNgYduJ.hClWxz
vA-1641919620-0-gaNycGzNCP0 (accessed Jan. 12, 2022).
{¶ 182} Importantly, in contrast to Article XI, which tells the redistricting
commission exactly what type of election data to use in drawing a General
Assembly-district plan, see Article XI, Sections 6(B) and 9(D)(3)(c)(i), Ohio
Constitution, the congressional-redistricting amendment, Article XIX, is silent on
13. See https://www.toledoblade.com/State/2014/08/06/Ohio-candidate-lacked-driver-s-license-
for-decade.html (accessed Jan. 12, 2022) [https://perma.cc/S7HM-YWVW].
14. See https://www.ohiosos.gov/elections/election-results-and-data/2014-elections-results/?
__cf_chl_jschl_tk__=5BNyaJhQ5eJBu.i7qqj_uZJzFJrSNgYduJ.hClWxzvA-1641919620-0-
gaNycGzNCP0 (accessed Jan. 12, 2022).
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SUPREME COURT OF OHIO
that issue. The point is not that we need to resolve the debate about whose data set
is better but, rather, that this is exactly the kind of question that is entrusted to the
General Assembly, not to the courts.
{¶ 183} Drs. Christopher Warshaw, Kosuke Imai, and Jowei Chen all say
that the plan could have been even more competitive. No doubt this is true. But
bring in any group of expert economists, and they will tell you that the tax code is
suboptimal. Environmental scientists will report that the pollution laws are
inadequate. And criminologists will demonstrate that the sentencing laws do not
minimize recidivism.
{¶ 184} Legislating is—and was designed to be—an act of give-and-take,
compromise. See Hamilton, The Federalist No. 85. The question we must answer
is not whether the plan is optimally competitive. It is whether the plan is sufficiently
competitive to avoid violating the Constitution’s prohibition of undue favoritism.
And we are guided by the principles of legislative deference this court has long
honored in policy-oriented matters.
{¶ 185} The General Assembly determined that the FEDEA data comprise
an appropriate index of district competitiveness. And it gave its reasons. The
FEDEA index (which, recall, factors in recent statewide elections to federal office)
was used because the plan is for a federal election. The General Assembly chose a
data set that is smaller but, in its determination, more precise than others available.
Electoral data including statewide elections to state offices risked incorporating
inputs irrelevant to federal elections: purely local voter motivations. Presidents and
senators face the same issues with which U.S. representatives must grapple, but that
is not the case for governors and state auditors.
{¶ 186} We cannot say that the General Assembly acted unreasonably by
enacting a plan based on the FEDEA index. The Constitution does not prohibit the
legislature from making the determination that it made. That leaves us no reason
68
January Term, 2022
to quibble with the legislature’s determination that the plan creates seven
competitive districts.
4. The majority’s flawed analysis
{¶ 187} Our deferential approach looks nothing like the majority’s. This is
because the majority undertakes the legislative act of evaluating the plan from a
policy-oriented perspective, not a legal one. The majority’s approach is
undergirded by an “instinct” that proportionality is the essence of fairness, Rucho,
588 U.S. at __,

139 S.Ct. at 2499