IN THE SUPREME COURT OF OHIO SUPPLEMENTAL MERIT BRIEF OF RESPONDENTS GOVERNOR JOHN KASICH, SENATE PRESIDENT THOMAS E. NIEHAUS, AND AUDITOR DAVID YOST

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1 IGiNAL IN THE SUPREME COURT OF OHIO CHARLES E. WILSON, et al., V. Relators, Case No Original Action GOVERNOR JOHN KASICH, et al., Respondents. SUPPLEMENTAL MERIT BRIEF OF RESPONDENTS GOVERNOR JOHN KASICH, SENATE PRESIDENT THOMAS E. NIEHAUS, AND AUDITOR DAVID YOST LLOYD PIERRE-LOUIS ( ) *Counsel of Record Wesp/Barwell/Pierre-Louis Co., LLC 6400 Riverside Drive, Suite D Dublin, Ohio (614) (ext. 4) (614) fax lpl@wesplaw.com DENNIS E. MURRAY, JR. ( ) Murray & Murray Co., LPA 111 E st Sharel:ne Dr. Sandusky, Ohio (419) (419) fax DMJ@murrayandmurray.com Counsel for Relators RICHARD N. COGLIANESE ( ) *Counsel of Record MICHAEL J. SCHULER ( ) ERIN BUTCHER-LYDEN ( ) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio (614) MICHAEL DeWINE Ohio Attorney General JOHN H. BURTCH ( ) *Counsel of Record E. MARK BRADEN ( ) ROBERT J. TUCKER ( ) Baker & Hostetler, LLP 65 East State Street, Suite 2100 Columbus, Ohio (614) ^ LIE LJ (614) fax jburtch@bakerlaw.com MAR ebraden@bakerlaw.com CLERK OF COURT rtucker@bakerlaw.com SUPREME COURT Of OHIO Outside Counselfor Respondents Governor John Kasich, Senate President Thomas E. Niehaus, and Auditor David Yost PEARL M. CHIN ( ) Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio pearl.chin@ohioattorneygencral.gov

2 (614) fax richard. ohioattorneygeneral. gov michael.schuler@ohioattorneygeneral.gov ohioattorneygeneral. gov Counsel for Respondent Ohio Secretary of State Jon Husted (614) (614) fax Counsel for Respondent Ohio Governor John Kasich JEANNINE R. LESPERANCE ( ) RENATA STAFF ( ) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio j ohioattorneygeneral. gov renata.staff@ohioattomeygeneral.gov (614) (614) fax Counsel for Respondent Ohio Auditor of State Dave Yost JEANNINE R. LESPERANCE ( ) SARAH PIERCE ( ) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio j ohioattorneygeneral. gov ohioattorneygeneral. gov (614) (614) fax Counsel for Respondent President of the Ohio Senate Thomas E. Niehaus ii

3 TABLE OF CONTENTS TABLE OF AUTHORITIES...:. iv 1. INTRODUCTION...1 H. ARGUMENT...:...3 Page A. Responses to the Ohio Supreme Court's Questions....3 Question No. 1: Does the Supreme Court of Ohio have jurisdiction over this case when only four of the five members of the Apportionment Board have been named as Respondents and the Board has not been named as a party?...:...:...3 Question No. 2: Does the Ohio Constitution mandate political neutrality in the reapportionment of house and senate districts?...8 Question No. 3: What is relators' burden in showing that a reapportionment plan is unconstitutional?...17 Question No. 4: Does tension exist among sections 3, 7 and 10 of Article XI of the Ohio Constitution, and if so, how are these sections to be harmonized?...24 I. There are sometimes tensions among and within some of the provisions of Article XI, as well as tensions among the provisions of Article XI and other federal requirements...25 (a) Tensions between and among the provisions of Article XI...25 (b) Tensions between provisions of Article XI and other federal requirements It is the responsibility of the Apportionment Board to resolve the tensions between and amonq the provisions of Article XI and other federally mandated requirements The discretionary decisions made by the Apportionment Board cannot be analyzed in isolation...38 B. Application of Responses to Questions from the Ohio Supreme Court to Merits of the Case Relators' claims all relate solely to the discretionary decisions made by the Apportionment Board and they have failed to meet their burden of proving beyond a reasonable doubt that the 2012 Plan violates the Ohio Constitution Whether Relators can propose a "better" plan is irrelevant to their burden of demonstrating the 2012 Plan is unconstitutional...44 III. CONCLUSION...46 CERTIFICATE OF SERVICE...48 iii

4 TABLE OF AUTHORITIES Cases Page Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d Badham v. Eu, 594 F.Supp. 664 (N.D.Ca1.1988)...13 Central Motors Corp. v. City of Pepper Pike, 73 Ohio St.3d 581, 1995-Ohio-289, 653 N.E.2d Cincinnati v. Whitman, 44 Ohio St.2d 58, 337 N.E.2d 773 (1975)...6 Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986)...1, 11, 12, 15, 16 Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 56 Ohio Op. 2d 58, 271 N.E.2d :...25 Eppley v. Tri-Valley Local Sch. Dist. Bd. of Educ., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d Erfer v. Commonwealth of Pennsylvania, 568 Pa. 128, 794 A.2d 325 (2002)...21 Fonfara v. Reapportionment Comm., 222 Conn. 166, 610 A.2d 153 (1992)... 21, 32, Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1964)...11, 14 Helms v. City of Green, 102 Ohio St.3d 295, 2004-Ohio-2951, 809 N.E.2d Hlava v. Nelson, 247 Neb. 482, 528 N.W.2d 205 (1995)...45 In re 1983 Legislative Apportionment of House, Senate, and Congressional Dist., 469 A.2d 819 (Me. 1983)...45 In re 1983 Legislative Apportionment of House, Senate, and Congressional Dists., 469 A.2d , 37, 38 In re A.Z., 4th Dist. No. 1 1CA3, Ohio In re Reapportionment of Towns ofhartland, Windsor & West Windsor, 160 Vt. 9, 624 A.2d 323 (1993)...22, 37 In re: Senate Joint Resolution of Legislative Apportionment, SC12-1, 2012 Fla. LEXIS 507 (Fla.Mar. 9, 2012)...34 iv

5 In the Matter of Wolpoff, 80 N.Y.2d 70, 600 N.E.2d 191 (1992)...20, 45 Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180 (1993) Larios v. Cox, 300 F.Supp.2d (N.D.Ga.2004)... 31, 32 League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006)... 13, Logan v. O'Neill, 187 Conn. 721, 448 A.2d 1306 (1982)...20 McClure v. Secy of the Commonwealth, 436 Mass. 614, 766 N.E.2d 847 (2002)...20, 22, 23, 37, 43 Nadler v. Schwarzenegger, 137 Ca1.App.4th 1327 (Ca1.Ct.App.2006)...21, 36, 45 Parella v. Irons, C.A. No , 2003 R.I. Super. LEXIS 126 (R.I.Super.Ct.Oct. 8, 2003)...22, 23 Parella v. Montalbano, 899 A.2d 1226 (R.I. 1996)... 20, Perrysburg Twp. v. City of Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d Portage County Bd. of Commrs. v. City ofakron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d Radogno v. Ill. State Bd. of Elects., No. 1: 1 1-cv-04884, 2011 U.S. Dist. LEXIS (N.D.Il1.Dec. 7, 2011)...17 Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)...10, 31, 42 Rice v. English, 835 So.2d 157 (Ala. 2002)...21, 36 Setter v. R.J. Connan Derailment Services, L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d Sorrell v. Thevenir, 69 Ohio St. 3d 415, 1994-Ohio-38, 633 N.E.2d 504 (1994)...15 State ex rel. v. Jones, 51 Ohio St. 492 (1894)...19 State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 537 N.E.2d 641 (1989)...6 State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d v

6 State ex rel. Cooper v. Tennant, Nos , , , , , 2012 W.Va. LEXIS 77 (W.Va.Feb. 13, 2012)...21, 38, 45 State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955)...18 State ex rel. Governor v. Taft, 71 Ohio St.3d 1, 640 N.E.2d 1136 (1994)...6 State ex rel. Herbert v. Bricker, 139 Ohio St. 499, 41 N.E.2d 377 (1942)...10 State ex rel. King v. Rhodes, 11 Ohio St.2d 95, 228 N.E.2d 653 (1967)...8 State ex rel. Lehman v. DiSalle, 173 Ohio St. 361, 182 N.E.2d 564 (1962)...8 State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, Ohio Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)...14 U.S. v. City of Euclid, 580 F.Supp.2d 584 (N.D.Ohio 2008)...43 Vieth v. Jubelierer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004)...11, 13, 15, 17 Voinovich v. Ferguson, 62 Ohio St.3d 1224, 584 N.E.2d 737 (1992) Voinovich v. Ferguson, 63 Ohio St.3d 198, , 586 N.E.2d 1020 (1992)... 7, 8, 11, 19, 20, 27, 33, 34, Wilkins v. West, 572 S.E.2d 100 (Va.2002)...35 Statutes. Rules and Constitutional Provisions 42 U.S.C Arizona Constitution, Article 4, Part 2, Section California Constitution, Article XXI, Section Califomia Constitution, Article XXI, Section Cal. Gov't Code Civ.R. 12(B)(7)...5 Civ.R Civ.R vi

7 Connecticut Constitution, Article III, Section 6....:...:...9 Florida Constitution, Article III, Section Hawaii Constitution, Article IV...9 Iowa Code 42.4(5)...9 Or.Rev. Stat (2) Montana Constitution, Article V, Section R.C , 7 R.C :...6 Ohio Constitution, Article I, Section 2 (1802)...17 Ohio Constitution, Article I, Section Ohio Constitution, Article XI, Section Ohio Constitution, Article XI, Section passim Ohio Constitution, Article XI, Section passim Ohio Constitution, Article XI, Section , Ohio Constitution, Article XI, Section 11 ( 1851)... 8, 11, 17-18, 42 Ohio Constitution, Article XI, Section , 34 S.Ct.Prac.R Washington Constitution, Article II, Section 43...:...9 Wash.Rev.Code (5)...:...10 Other Authorities Bernard Grofman, Political Gerrymandering and the Courts, Agathon Publishing (1990)...13 vii

8 Daniel H. Lowenstein & Jonathan Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory?, 33 UCLA LRev. 1, 4 (1985)...16 Proposed Constitutional Amendments, Initiated Legislation, and Laws Challenged by Referendum, Submitted to the Electors, compiled through 1954 by Arthur A. Schwartz, Director, Legislative Reference Bureau and brought up to date through 2011 by Jon Husted, Secretary of State, available at (accessed March 20, 2012) Redistricting Law 2010 by the National Conference of State Legislatures...:...18 Robert G. Dixon, Representation and Redistricting Issues (B. Grofman, A. Lijphart, R. McKay, & H Scarrow eds.) (1982)...:...:...:...16 viii

9 I. INTRODUCTION This Court directed the parties to file supplemental briefs addressing four questions and invited the parties to address any other issues necessary to the Court's review. This supplemental brief addresses each of the four questions and, in addition, highlights the import of the answers to those questions on the merits of this case. First, this Court is not divested of jurisdiction because all five members of the Apportionment Board, or the Apportionment Board itself, were not named as parties. This Court has exclusive jurisdiction over claims brought under Article XI of the Ohio Constitution, which contemplates that not all members of the Apportionment Board need be named. Additionally, the failure to name a party is an affirmative defense under Civ.R. 19 that, to the extent applicable, Respondents Kasich, Niehaus and Yost (collectively referred to as "Respondents") agree to waive in this case. Second, nothing in either the Ohio Constitution or the United States Constitution requires political neutrality in the apportionment process. On the contrary, that the Apportionment Board is comprised of five politically elected officials and requires only a majority vote to adopt a plan underscores the fact that apportionment is a political process by design. To say that the process of drawing the lines by which Ohio citizens will elect their state representatives is not political is not only naazve, it ignores the point recognized by the United States Supreme Court: "[p]olitics and political considerations are inseparable from districting and apportionment." Davis v. Bandemer, 478 U.S. 109, , 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). The Ohio Constitution could have included a number of different provisions that would require, or at least lean towards, political neutrality, but it does not. In fact, such provisions have twice been proposed to the voters of Ohio, and twice been rejected. 1

10 Third, while it is obvious that Relators are not satisfied with the most recent apportionment plan ("2012 Plan") adopted by the Apportionment Board, Relators' unhappiness does not equate to a demonstration that the plan is unconstitutional. The Apportionment Board, in enacting a plan, is performing what is and has always been a legislative function. Thus, like any statute enacted by the General Assembly, there is a strong presumption that the plan is constitutional, and Relators have the burden of demonstrating a violation of Article XI beyond a reasonable doubt. But even if Relators have met such burden, they must also demonstrate beyond a reasonable doubt that the district found to be in violation of Article XI was drawn without any rational basis. The rational basis for such a violation could simply be compliance with another provision of Article XI, or other federal requirements. Finally, while there are sometimes tensions among the various provisions of Article XI, or among those provisions and other federal requirements, Article XI leaves it to the discretion of the Apportionment Board to resolve those tensions. An adopted plan is not unconstitutional merely because the Apportionment Board made discretionary choices different from those preferred by Relators. That is not to say that this Court plays no role in the review of an adopted plan. If the adopted plan violated a mandatory provision of Article XI without any rational basis, this Court could and should find that particular portion of the plan unconstitutional. But, the 2012 Plan violates no mandatory provisions, and Article XI leaves it to the discretion of the Apportionment Board to weigh the competing interests involved in designating district boundaries. This Court has not in the past, and should not now, begin to substitute its preferences, or the preferences of litigating parties, for choices made by the Apportionment Board as they considered all the options before them. Applying this standard, Relators have 2

11 failed to meet their high burden of demonstrating beyond a reasonable doubt that the 2012 Plan is unconstitutional. II. ARGUMENT A. Responses to the Ohio Supreme Court's Questions. Question No. 1: Does the Supreme Court of Ohio have jurisdiction over this case when only four of the five members of the Apportionment Board have been named as Respondents and the Board has not been named as a party? Resgonse: The failure to name all five Apportionment Board members as Respondents is not a jurisdictional defect. The joinder of all five Apportionment Board members is not a jurisdictional prerequisite to cases arising under Article XI. Article XI, Section 13, which confers exclusive, original jurisdiction on the Ohio Supreme Court over all apportionment cases arising under Article XI, states in relevant part as follows: The supreme court of Ohio shall have exclusive, original jurisdiction in all cases arising under this Article. In the event that any section of this Constitution relating to apportionment or any plan of apportionment made by the persons responsible for apportionment, by a majority of their number, is determined to be invalid by either the supreme court of Ohio, or the supreme court of the United States, then notwithstanding any other provisions of this Constitution, the persons responsible for apportionment by a majority of their number shall ascertain and determine a plan of apportionment in conformity with such provisions of this Constitution as are then valid, including establishing terms of office and election of members of the general assembly from districts designated in the plan, to be used until the next regular apportionment in conformity with such provisions of this Constitution as are then valid. 3

12 Ohio Constitution, Article XI, Section 13. In the absence of a specific provision requiring all five members of the Apportionment Board to be named as defendants, no such jurisdictional requirement should be added or implied to exist. State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, 9[45 ("We cannot generally add a requirement that does not exist in the Constitution or a statute."); Perrysburg Twp. v. City of Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, 17("[I]t is the duty of this court to give effect to the words used, not to delete words used or to insert words not used."); compare Helms v. City of Green, 102 Ohio St.3d 295, 2004-Ohio-2951, 809 N.E.2d 1141, 17(compliance with 30 day rule for filing election contests in common pleas court under R.C is "[an] express conditio[n] precedent which must be complied with before the hearing of the contest can be had") (citations omitted). Article XI contains no language that could be interpreted to require the joinder of all five members of the Apportionment Board as a jurisdictional prerequisite to this action. To the extent that Article XI, Section 13 does say anything about who should be parties, it suggests that, at least absent the affirmative defense of failure to join an indispensable party, an action may proceed against a majority of the Apportionment Board members who adopted the challenged apportionment plan. Article XI, Section 13 states in part: In the event that any section of this constitution relating to apportionment or any plan of apportionment made by the persons responsible for apportionment, by a majority of their number, is determined to be invalid by either the supreme court of Ohio * * * the persons responsible for apportionment by a majority of their number shall ascertain and determine a plan of apportionment in conformity with such provisions of this Constitution as are then valid ***. 4

13 (Emphasis added.) The 2012 Plan was adopted on September 28, 2011 by a 4-1 vote. The affirmative votes were cast by the four Respondents in this action. The sole opposing vote was cast by House Minority Leader Armond Budish, who is not a party to this action. (See Respondents' Evid. Vol. VI, Ex. Q). Subsequent amendments were adopted on September 30, 2011 on a 4-0 vote, with Leader Budish unable to attend the meeting. (See Budish Absence Letter, Respondents' Evid. Vol. II, Ex. B. 11). It is therefore consistent with Article XI, Section 13 and with the underlying proceedings for this action to continue against those members of the Apportionment Board who adopted and voted on the final apportionment plan. The joinder of all five Apportionment Board members is also not required under Civ.R. 19. While Article XI is silent as to who shall be named parties in such actions, the Ohio Civil Rules apply to original actions in the Ohio Supreme Court. S.Ct.Prac.R Civ.R. 19 provides that an indispensable party shall be joined if: (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (a) as a practical matter impair or impede his ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Civ.R. 19(A). The failure to join an indispensable party is an affirmafive defense under Civ.R. 12(B)(7). But, it is not necessary to decide whether Leader Budish is an indispensable party to this action under Civ.R. 19 because Respondents will agree to waive the affirmative defense in this case. 5

14 Nonetheless, even if all five members of the Apportionment Board are necessary parties, the failure to name all of them is not a jurisdictional defect requiring dismissal of the action. See Civ.R. 21 ("Misjoinder of parties is not ground for dismissal of an action."); State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 81, 537 N.E.2d 641 (1989) ("Ohio courts have eschewed the harsh result of dismissing an action because an indispensableparty was not joined, electing instead to order that the party be joined pursuant to Civ.R. 19(A) joinder if feasible."). Dismissal for failure to join a necessary party is warranted only when the defect cannot be cured. Id. Although Ohio courts have interpreted the joinder of all necessary parties to be a jurisdictional prerequisite in actions brought under Ohio's Declaratory Judgment Act, R.C , et seq., that rule does not apply to actions arising under Article XI. The Declaratory Judgment Act states that "when declaratory relief is sought under this chapter in an action or proceeding, all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding." (Emphasis added.) R.C (A). Courts construing this provision have concluded that the failure to include interested and necessary persons under the Act "constitutes a jurisdictional defect which precludes a court from properly rendering a declaratory judgment." (Quotation and citation omitted.) Cincinnati v. Whitman, 44 Ohio St.2d 58, 59, 337 N.E.2d 773 (1975); see also Portage County Bd. of Commrs. v. City of Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, 9[99 (same) (collecting cases). The jurisdictional requirement in R.C is specific to the Declaratory Judgment Act and does not apply to Article XI. The Ohio Supreme Court has acknowledged that it may issue declaratory relief in Article XI apportionment cases. See State ex rel. Governor v. Taft, 71 Ohio St.3d 1, 640 N.E.2d 1136 (1994), citing Voinovich v. Ferguson, 62 Ohio St.3d 1224, 584 N.E.2d 737 (Jan. 13, 1992) 6

15 ("Voinovich P') (denying motions to dismiss arguing that the Court lacked jurisdiction to issue declaratory relief) and Voinovich v. Ferguson, 63 Ohio St.3d 198, , 586 N.E.2d 1020 (Feb. 14, 1992) ("Voinovich IP) (explaining that the Court's jurisdiction under Article XI, Section 13 to hear "all cases" arising under Article XI includes the authority to issue declaratory relief) (Resnick, J., dissenting on other grounds). The Court's subject matter jurisdiction arises from Article XI in apportionment cases (and from Article IV in original actions), not from the Declaratory Judgment Act. Thus, while R.C , et seq. creates a procedure for declaratory judgment actions, it does not create or govern the Court's subject matter jurisdiction: Statutes which create a declaratory judgment procedure do not extend the jurisdiction of the subject matter of a court but rather extend the power of the court to grant declaratory relief within its respective jurisdiction. In other words, declaratory judgment statutes provide an additional remedy which may be granted by a court but they do not extend the jurisdiction as to the subject matter upon which a court may act. Voinovich II at 216, citing State ex rel. Foreman v. Bellefontaine Municipal Court, 12 Ohio St.2d 26, 231 N.E.2d 70 (1967). There is no language in Article XI similar to R.C requiring the joinder of all legally affected parties as a jurisdictional prerequisite. Because the Court's jurisdiction arises out of Article XI and not Chapter 2712, the failure to name all five members of the Apportionment Board-even if found to be necessary parties-does not divest the Court of its jurisdiction under Article XI. Finally, the Apportionment Board need not be named as a party for this action to continue. There is no language in Article XI requiring that the Apportionment Board itself must be sued. Further, this Court previously has heard Article XI apportionment cases where the 7

16 Apportionment Board as an entity was not named as a defendant. See Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992) (three of five board members were plaintiffs; the remaining two members were defendants, along with others); State ex rel. Lehman v. DiSalle, 173 Ohio St. 361, 182 N.E.2d 564 (1962) (all three Board Members,l but not Board, named as respondents); State ex rel. King v. Rhodes, 11 Ohio St.2d 95, 228 N.E.2d 653 (1967) (same). Thus, the Court may continue to exercise jurisdiction over this action. The failure to name the Apportionment Board or all five of its members does not divest the Court of its subject matter jurisdiction under Article XI. Ouestion No. 2: Does the Ohio Constitution mandate political neutrality in the reapportionment of house and senate districts? Response: The Ohio Constitution does not require political neutrality in the reapportionment process. Nothing in the Ohio Constitution mandates political neutrality in the reapportionment of house and senate districts. By the specific identity of the five individuals tasked with apportioning the General Assembly, the Ohio Constitution effectively mandates that political considerations will be an integral part of the process. Each member of the Apportionment Board is a partisaniy-eiected political off'iciai. The Ohio Constitution proviaes that there wiii be members from each of the two major political parties; however, the odd number ensures that it will not be partisan-balanced. Its actions require only a majority vote of the members, not a super majority, or a bi-partisan majority. The Apportionment Board is not an administrative or judicial body. The Ohio apportionment process is a political process by design. It is contemplated as neither a non-partisan nor a politically-neutral procedure. 1 Before Article XI was amended in November 1967, the Apportionment Board consisted of three members: the Governor, Auditor of State, and Secretary of State. Ohio Constitution, Article XI, Section I1 (1851). 8

17 In contrast to the Ohio Constitution, a number of state constitutions and statutes have specific language requiring partisan neutrality in the drafting of legislative districts.2 Several of these mandate partisan equality on conunissions or a super majority vote for the adoption of plans.3 Some states provide for the appointment of tie-breakers through judicial processes.4 A few states also prohibit the usage of political data or giving preference to considerations relevant to political parties' interests in the redistricting map-drawing process.5 Such "neutral" processes 2 See Arizona Constitution, Article, 4, Part 2, Section 1("The conunission on appellate court appointees creates a pool of 25 nominees, 10 from each of the largest parties and five not from either of the two largest parties * * *."); California Constitution, Article XXI, Section 2 and Cal. Gov't Code (establishing selection requirements of "five registered with largest political party, five registered with second largest political party, and four not registered with either of the two largest political parties"); Hawaii Constitution, Article IV (establishing that majority party selects four members and minority selects four members); Montana Constitution, Article V, Section 14 ("Majority and minority leaders of both Houses of the Legislature each select one member"); Washington Constitution, Article II, Section 43 ("Majority and minority leaders of the House and Senate each select one"); Connecticut Constitution, Article IIi, Section 6 ("President pro tem of the Senate, Senate minority leader, speaker of the House and House minority leader each select two"). 3 Id. 4 See Montana Constitution, Article V, Section 14 (providing that if members of redistricting commission cannot select a chairman via majority vote, the state Supreme Court wiii seiect the chair); Washington Constitution, Article II, Section 43 (if redistricting commission members fail to choose nonvoting fifth member, the state Supreme Court will make the selection); Washington Constitution, Article II, Section 43 (if redistricting commission members fail to choose nonvoting fifth member, the state Supreme Court will make the selection). 5 See, e.g., Arizona Constitution, Article 4, Part 2, Section 1("Party registration and voting history data shall be excluded from the initial phase of the mapping process..."); Florida Constitution, Article III, Section 21 ("No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent"); California Constitution, Article XXI, Section 1 ("Districts shall not be drawn for the purpose of favoring or discriminating against an incumbent, political candidate, or political party"); Hawaii Constitution, Article IV, Section 6 ("No district shall be drawn as to unduly favor a person or political faction"); Idaho Code ("Counties shall not be divided to protect a particular political party or a particular incumbent"); Iowa Code 42.4(5) ("No district shall be drawn for the purpose of favoring a political party" and "no use shall be made of [certain political data]"); Or.Rev.Stat. 9

18 have been proposed to the citizens of Ohio. Twice constitutional amendments to create a commission for reapportionment were proposed to Ohio voters; twice the proposed amendments were overwhelmmingly defeated (2005, Issue 4-30% yes/70% no) (1981, Issue 2-42% yes/58% no). See Proposed Constitutional Amendments, Initiated Legislation, and Laws Challenged by Referendum, Submitted to the Electors, compiled through 1954 by Arthur A. Schwartz, Director, Legislative Reference Bureau and brought up to date through 2011 by Jon Husted, Secretary of State, available at (accessed March 20, 2012). In their original merit brief, Relators repeatedly refer to State ex rel. Herbert v. Bricker, 139 Ohio St. 499, 41 N.E.2d 377 (1942), in which the Ohio Supreme Court said that the political advantage was rejected when Article XI was incorporated into the Ohio Constitution, correcting "the evils of former days." However, the Relators fail to point out the obvious fact that this 1942 decision refers to the 1851 version of Article XI in the Ohio Constitution, and that this county apportionment process in place at that time was rendered invalid by the U.S. Supreme Court's one-person one-vote revolution, starting with Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). This 19th century version of Article XI, touted by Relators, was repealed effectively in total by the 1967 amendments to the Ohio Constitution. The changes made in the Ohio Constitution in 1851 transferred the process of apportioning from the General Assembly to three statewide partisanly-elected officials, but the provisions were "self-acting." Bricker at 508. The manner of apportioning representatives to whole counties under the 1851 version of Article XI is totally disconnected from the present redistricting process that was put in place, and is (2) ("No district shall be drawn for the purpose of favoring any political party"); Wash.Rev.Code (5) ("The commission's plan shall not be drawn to purposely favor or discriminate against any political party or group"). 10

19 well-established, post Reynolds. Prior to the 1967 amendments, no house districts were created; rather, house seats were apportioned to counties by mathematic formula for at-large elections. The process under the 1851 Constitution was a true "apportionment;" no lines were drawn, the then Apportionment Board merely calculated the ratio of representation, the number of representatives each county or district was entitled to, and for what years. See Ohio Constitution, Article XI, Section 11 (1851). In this Court's most recent review of an apportionment plan pursuant to the current version of Article XI as amended in 1967, none of the Justices' opinions-per curiam, concurring or dissenting-contains even a suggestion of a constitutional mandate for political neutrality. See Voinovich, 63 Ohio St.3d at 200, 586 N.E.2d Neither the Ohio Constitution nor the U.S. Constitution requires Respondents to prove that the plans adopted are politically neutral because neither constitution requires political neutrality in reapportionment. Ohio citizens understood that politics would likely be taken into consideration when they adopted the 1967 amendments to Article XI. The use of partisan considerations is inevitable, and, as a matter of law, the practice is constitutionally acceptable. See Vieth v. Jubelierer, 541 U.S. 267, , 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004); id. at 313 (Kennedy, J., concurring in the judgment). As the U.S. Supreme Court first said in Gaffney v. Cummings, 412 U.S. 735, , 93 S.Ct. 2321, 37 L.Ed.2d 298 (1964), and repeated in Bandemer, 478 U.S. at , 106 S.Ct. 2797, 92 L.Ed.2d 85: Politics and political considerations are inseparable from districting and apportionment. The political profile of a State, its party registration, and voting records are available precinct by precinct, ward by ward. These subdivisions may not be identical with census tracts, but, when overlaid on a census map, it requires 11

20 no special genius to recognize the political consequences of drawing a district line along one street rather than another. It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the pohtical complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences. (Emphasis added.). In fact, the Court in Bandemer went on to further state that "[t]hese holdings rest on a conviction that the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm." Bandemer at 131. It held that "even if a state legislature redistricts with the specific intention of disadvantaging one political party's election prospects, we do not believe that there has been an unconstitutional discrimination against members of that party unless the redistricting does in fact disadvantage it at the polls." Id. at 139. And, "a mere lack of proportionate results in one election cannot suffice." Id. There must be a history of disproportionate results "in conjunction with strong indicia of lack of political power and the denial of fair representation." Id. Notably, there was a challenge to the plan adopted in 2001, which likewise was drafted by an Apportionment Board with a majority of Republican members, but the Democratic Party regained control of the Ohio House of Representatives in 2008 under that plan. Even if, as Relators suggest, the districts were drawn to advantage Republicans under 12

21 the 2012 Plan, history tell us that what will happen in future elections under the plan is speculation. In the opening sentence of their original merit brief, Relators described the 2012 Plan as "blatantly partisan gerrymandering." (Relators' Merit Br. at 1). No support is offered for this claim. There is a substantial difference between a plan that may exhibit a lack of political neutrality and a partisan gerrymander. No court has ever found a legislative reapportionment plan to be so politically biased as to be in violation of the 14th Amendment Equal Protection Clause. Nevertheless, the parties involved in redistricting litigation in other states have at least proposed and courts have discussed numerous tests and statistical analyses that might be used to identify those apportionment plans which were so politically unfair as to constitute unconstitutional partisan gerrymanders. Vieth v. Jubelierer, 541 U.S. at , 124 S.Ct. 1769, 158 L.Ed.2d 546; League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); Badham v. Eu, 694 F.Supp. 664 (N.D.Cal.1988); Bernard Grofman, Political Gerrymandering and the Courts, Agathon Publishing (1990). No court has ever found a legislative reapportionment plan to be constitutionally infirm based on supposed political bias, although the parties to some of those cases have at least proposed various tests or statistical analyses purporting to show bias. But here, Relators have not even proposed any test or mode of analysis to support their assertion that the 2012 Plan is an unconstitutional partisan gerrymander. In fact, the only apparent evidence offered by the Relators that the Ohio plans are politically unfair is the use of election data in the line-drawing process. (Relators' Merit Br. at 6). Relators lose sight of the fact that election data generally must be consulted to ensure compliance with the requirements of the Voting Rights Act. Indeed, all standard computer software used to facilitate the mapping process is designed to integrate 13

22 election results with population data from the census, and election data are required to ensure compliance with the requirements of the Federal Voting Rights Act, 42 U.S.C (VRA). Thornburg v. Gingles, 478 U.S. 30, 52, 106 S.Ct. 2752; 92 L.Ed.2d 25 (1986) (A VRA Section 2 claim requires proof of legally significant racially polarized voting mandating a statistical analysis of election results.). A few states have provisions specifying that polltical data (election results) should not be used in the line-drawing process. See supra fn. 5. Ohio is not one of them. Therefore, as in the vast majority of states, election data were used in Ohio's 2011 reapportionment process. There is nothing unusual or illegitimate about Ohio's use of election results in its reapportionment process. Again, the U.S. Supreme Court has addressed this issue: It may be suggested that those who redistrict and reapportion should work with census, not political, data and achieve population equality without regard for political impact. But this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results; and, in any event, it is most unlikely that the political impact of such a plan would remain undiscovered by the time it was proposed or adopted. Gaffney, 412 U.S. at 753, 93 S.Ct. 2321, 37 L.Ed.2d 298. The suggestion that it is improper to use election data or political analysis of potential election results, or that doing so is proof of unconstitutional partisan gerrymandering, is disingenuous. Nothing in Article XI mandates political blindness. Since Article XI provides no support for Relators' argument, the only other plausible textual basis in the Ohio Constitution for a political neutrality claim is Article I, Section 2. This section provides that "[a]ll political power is inherent in the people. Government is instituted for 14

23 their equal protection and benefit, ***." Ohio Constitution, Article I, Section 2. "The limit placed upon governmental action by the Equal Protection Clauses of the Ohio and United States Constitutions are nearly identical." Sorrell v. Thevenir, 69 Ohio St.3d 415, 424, 1994-Ohio-38, 633 N.E.2d 504 (1994). Therefore, "the equal protection provisions of the Ohio and federal Constitutions * * * require the same analysis." Eppley v. Tri-Valley Local Sch. Dist. Bd. of Educ., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, 111, citing State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, 111; In re A.Z., 4th Dist. No. 11CA3, Ohio-6739, Since the limitations placed on governmental action by the Equal Protection Clauses of the Ohio and United States Constitutions are essentially identical, the U.S. Supreme Court's analysis on partisan gerrymander claims can guide this Court. The Equal Protection Clause of the Fourteenth Amendment has been the exclusive basis in the U.S. Constitution on which the U.S. Supreme Court has recognized the justiciability of partisan gerrymander claims. Bandemer, 478 U.S. at 143, 106 S.Ct. 2797, 92 L.Ed.2d 85. However, the U.S. Supreme Court has never once upheld such a claim. In its Vieth decision, the U.S. Supreme Court provides a footnote listing the dozens of court opinions that have rejected claims of partisan gerrymandering. 541 U.S. at 281 n.6, 124 S.Ct. 1769, 158 L.Ed.2d 546. Not a single political equal protectiori claim has been sustained against any legislative districting plan. Id. at If no court in the nation has sustained a partisan gerrymandering claim, using any proffered test to determine impermissible political bias, a court reviewing such a claim is left out at sea on how to determine when the goal of "political neutrality" has been met. Even if it were possible to imagine an interpretation of the Ohio Constitution to include a mandate of political neutrality, it would not be an achievable goal. 15

24 Daniel H. Lowenstein & Jonathan Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory?, 33 UCLA LRev. 1, 4 (1985). As quoted by the U.S. Supreme Court, Robert G. Dixon, recognized as "one of the foremost scholars of reapportionment," has stated: "[W]hether or not nonpopulation factors are expressly taken into account in shaping political districts, they are inevitably everpresent and operative. They influence all election outcomes in all sets of districts. The key concept to grasp is that there are no neutral lines for legislative districts * * * every line drawn aligns partisans and interest blocs in a particular way different from the alignment that would result from putting the line in some other place." (Citation omitted.) Bandemer, 478 U.S. at 129 n.10, 106 S.Ct. 2797, 92 L..Ed.2d 85. Also, in his book, Mr. Dixon has remarked: The key concept to grasp is that there are no "neutral" lines for legislative districts. Whether the lines are drawn by a ninth-grade civics class, a board of Ph.D.'s, or a computer, every line drawn aligns partisan and interest blocs in a particular way different from the alignment resulting from putting the line in some other place. Robert G. Dixon, Fair Criteria and Procedures for Establishing Legislative Districts 7-8, in Representation and Redistricting Issues (B. Grofman, A. Lijphart, R. McKay, & H Scarrow eds.) (1982). There are no generally recognized measurements of "political fairness." The U.S. Supreme Court most recently in Perry, 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609, declined to revisit the question of justiciability, but Justice Kennedy, announcing the judgment of the 16

25 Court, noted that the political equal protection claim must be dismissed because of "the absence of any workable test for judging partisan gerrymanders." Id. at 420. To think that this Court could bring forth "judicially discernible and manageable standards would be `fantasy."' Vieth, 541 U.S. at 281, 124 S.Ct. 1769, 158 L.Ed.2d 546 (Scalia, J., joined by Rehnquist, C.J., O'Connor, J., and Thomas, J.). There is no language in the Ohio Constitution imposing a mandate of political neutrality in the apportionment process. For this Court to now recognize some form of partisan gerrymander or political neutrality claim would be a head-first dive into a political thicket from which the U.S. Supreme Court has found no clear way out. In the years since Bandemer, the Court simply has discovered no useful path to judge the "political" versus the "unfairly political." It has been "eighteen years of judicial effort with virtually nothing, since recognizing justiciability of partisan gerrymander claim in Bandemer, to show for it ***." Vieth at 281. With no valid claims in the 2010 round of redistricting litigation, it has now been twenty-six years and the courts continue to be unable to discern a political equal protection standard. See, e.g., Radogno v. Ill. State Bd. of Elecs., No. 1:11-cv-04884, 2011 U.S. Dist. LEXIS (N.D.Il1.Dec. 7, 2011). Put simply, nothing in the Ohio Constitution requires political neutrality in the reapportionment process. Ouestion No. 3: What is relators' burden in showing that a reapportionment plan is unconstitutional? Response: Relators have the burden of proving beyond a reasonable doubt that the reapportionment plan violates Article XI, and that there is no rational basis for departing from the constitutional requirements. Originally, the responsibility for reapportioning Ohio was given to the General Assembly. Ohio Constitution, Article I, Section 2 (1802). In 1851, that process was amended and the responsibility was transferred from the General Assembly to three elected officials: the 17

26 Auditor of the State, the Secretary of State and the Governor. Ohio Constitution, Article XI, Section 11 (1851). It was again amended in 1967 with the responsibility to reapportion the state given to five elected officials: the Auditor, Secretary of State, Governor, and one person selected by the leadership of each of the two major political parties in the General Assembly. Ohio Constitution, Article XI, Section 1. In this way, the people of the State of Ohio vested in the Apportionment Board the reapportionment authority that formerly had been given to the state legislature. Thus, the Apportionment Board in drafting a reapportionment plan is performing what was and is a truly legislative function. Absent specific state constitutional delegation, state legislatures pass legislative redistricting plans as standard statutory enactments. See Redistricting Law 2010 by the National Conference of State Legislatures. Although the Ohio legislative plan is not enacted into statute like the congressional plan, it has all the semblance of legislative action and is the result of a deliberative process. Therefore, the same standards that apply to evaluating the constitutionality of a statute enacted by the legislature should logically apply to analyzing the constitutionality of an apportionment plan adopted by the Apportionment Board. See, e.g., Central Motors Corp. v. City of Pepper Pike, 73 Ohio St.3d 581, 584, Ohio-289, 653 N.E.2d 639 (zoning ordinances enacted by municipal bodies are examined under similar standard as statutes enacted by General Assembly). Ohio law has long held that lawfully enacted legislation is presumed constitutional and before it may be struck down "it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." (Emphasis added.) State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, paragraph one of the syllabus (1955). When making a facial challenge to the constitutionality of an enactment, a party must "establish there exists no set of circumstances under which the statute would be valid." State ex rel. Zeigler v. Zumbar,

27 Ohio St.3d 240, Ohio-2939, 124. "It is difficult to prove a statute is unconstitutional. All statutes have a strong presumption of constitutionality." Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, 125. "If the constitutionality of the law is involved in doubt, that doubt must be resolved in favor of legislative power." State ex rel. v. Jones, 51 Ohio St. 492, 504 (1894). "A fundamental principle of the constitutional separation of powers among the three branches of government is that the legislative branch of government is `the ultimate arbiter of public policy."' Arbino at 9[ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Infonnation Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, "It is not the role of the courts `to establish legislative policies or to second guess the General Assembly's policy choices. The General Assembly is responsible for weighing policy concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices."' Setter v. R.J. Corman Derailment Services, L.L.C., 125 Ohio St.3d 280, Ohio-1029, 927 N.E.2d 1092, 135, quoting Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, If anything, these principles are even more appropriate when analyzing the Apportionment Board's actions pursuant to express constitutional authority. See Voinovich, 63 Ohio St.3d at 203, 586 N.E.2d 1020 ("First, a constitution and its provisions are to be construed by the same rules as those employed in the construction of statutes, except that since the terms of the constitution are more general, the grants of power should be construed more liberally.") (Holmes, J., concurring). In his concurring opinion in Voinovich, Justice Holmes stated: As great deference is given branches of government in promulgating rules in accordance with statutes, this court should also give great weight and deference 19

28 to the interpretations of another entity of government, the Apportionment Board in this instance, and to the construction of its majority membership has given to constitutional provisions dealing with apportionment. (Emphasis added.) Id., citing Franklin Cty. Bd. of Elections v. State, ex rel. Schneider, 128 Ohio St. 273, 284, 191 N.E. 115 (1934); see also, e.g., Logan v. O'Neill, 187 Conn. 721, 729, 448 A.2d 1306 ( 1982) (although legislative action adopting reapportionment plan was not a statute, "it is entitled to at least the same judicial respect as statute"). Thus, the same reasonable doubt standard applied in the context of evaluating the constitutionality of a statute enacted by the General Assembly should be applied to the constitutionality of an apportionment plan adopted by the Apportionment Board. Several states have likewise applied a reasonable doubt standard in detern-iining whether an apportionment plan is unconstitutional. Logan at 729; McClure v. Secy of the Commonwealth, 436 Mass. 614, 624, 766 N.E.2d 847 (2002), quoting Merriam v. Secy of the Commonwealth, 375 Mass. 246, 263, 376 N.E.2d 838 (1978) ("they `cannot prevail in this proceeding unless they establish beyond a reasonable doubt that it is impossible by any reasonable construction to interpret the redistricting statute in harmony with art. 101 "'); In the Matter of Wolpoff, 80 N.Y.2d 70, 78, 600 N.E.2d 191 (1992) (strong presumption of constitutionality attaches to redistricting plan and the court will upset the plan only when it is shown beyond reasonable doubt that it conflicts with fundamental law); Parella v. Montalbano, 899 A.2d 1226, (R.I. 1996) (holding that "[b]ecause redistricting is a legislative function, we decline to reallocate the burden of proof to the General Assembly" and finding that the "trial justice was correct in allocating this time-honored burden of proof -- beyond a reasonable doubt -- to the plaintiffs, who were challenging the constitutionality of the Senate 20