IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Ohio A. Philip Randolph Institute, et al.,

Plaintiffs,

vs.

Larry Householder, Speaker of the Ohio 

House of Representatives, et al.,

Defendants.

Case No.: 1:18-cv-00357-TSB

Judge Timothy S. Black

Judge Karen Nelson Moore

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

MEMORANDUM IN SUPPORT OF 

INTERVENORS’ EMERGENCY 

MOTION FOR STAY PENDING 

APPEAL

INTRODUCTION

There could hardly be a more clear-cut scenario where a stay pending appeal is 

warranted. In enjoining Ohio’s 2011 congressional redistricting plan, this Court “join[ed] the 

other federal courts that have held partisan gerrymandering unconstitutional and developed 

substantially similar standards for adjudicating claims.” Opinion and Order, ECF No. 262, at 5. 

In so doing, this Court adopted the test for evaluating partisan gerrymandering claims set forth in 

Common Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018), and heavily relied on Rucho’s 

analysis in its decision. See, e.g., Opinion and Order, ECF No. 262, at 150, 170, 262, 284. But 

none of those “other federal courts” include the Supreme Court, and their decisions have been 

stayed pending appeal. Furthermore, the Supreme Court’s forthcoming partisan-gerrymandering 

decisions (including in Rucho) will speak to the precise questions of this case. Accordingly, the 

Supreme Court is likely to summarily vacate this Court’s injunction and remand for further 

consideration—no matter what those forthcoming decisions hold. Vacatur, further liability 

proceedings, and (if necessary) a new remedial time frame are all but certain.

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The significant uncertainty of the law governing partisan-gerrymandering claims itself 

justifies a stay. One of the key criteria employed by the Supreme Court in considering a stay is 

whether there is a “reasonable probability” that “four Justices will consider the issue sufficiently 

meritorious to ... note probable jurisdiction.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) 

(Brennan, J., in chambers). The Sixth Circuit has deemed a similar inquiry—whether a 

preliminary injunction movant has established a likelihood of success on the merits—satisfied 

where there are, at minimum, “serious questions going to the merits” and substantial harm 

suffered by the adverse party. Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001) (quotation 

marks omitted). Here, this Court has itself acknowledged that “the nature of Plaintiffs’ rights has 

been uncertain since the Vieth case.” Opinion and Order, ECF No. 262, at 289 (citing Gill v. 

Whitford, 138 S. Ct. 1916, 1934 (2018).) The Supreme Court is currently considering the very 

test this Court applied. Consequently, there are, at a minimum, serious questions going to the 

merits, and a reasonable probability the Supreme Court will note probable jurisdiction in an 

appeal here. Moreover, both the injunction of a duly enacted statewide redistricting plan and the 

mandate for remedial proceedings amount to irreparable harm. And the balance of equities 

weighs in favor of a stay, given the federal intrusion into the state electoral process and the 

minimal threat to Plaintiffs’ interests in event of affirmance. 

There is time to let the appeals process play out and enormous advantage to waiting for 

further guidance from the Supreme Court before proceeding towards a remedy. This Court’s 

injunction is, in short, no different from the ones that have been recently stayed under nearly 

identical circumstances. A stay is plainly warranted.

Given the Court’s tight time frame for remedial proceedings, time is of the essence, and 

Intervenors request a prompt resolution of this motion so that, if necessary, they may seek a stay 

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in the Supreme Court. In all events, the Court should rule by this Friday. Toward that end, 

Intervenors will forego the right to a reply brief.

GOVERNING STANDARD

By statute, the Supreme Court has jurisdiction over the appeal from this Court’s 

injunction. 28 U.S.C. § 1253. The Supreme Court deems a stay pending appeal appropriate 

where there is: (1) “a ‘reasonable probability’ that four Justices will consider the issue 

sufficiently meritorious to grant certiorari or to note probable jurisdiction”; (2) “a fair prospect 

that a majority of the Court will conclude that the decision below was erroneous”; and, (3) “a 

demonstration that irreparable harm is likely to result from the denial of a stay.” Rostker, 448 

U.S. at 1308 (Brennan, J., in chambers); accord Hollingsworth v. Perry, 558 U.S. 183, 190 

(2010) (per curiam). These are not materially different from the factors the Sixth Circuit applies 

to stay motions: “(1) the likelihood that the party seeking the stay will prevail on the merits of 

the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) 

the prospect that others will be harmed if the court grants the stay; and (4) the public interest in 

granting the stay.” Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th 

Cir. 2016). These factors “are interconnected considerations that must be balanced together.” Id.

ARGUMENT

A. There Is a Reasonable Probability That the Supreme Court Will Note Probable 

Jurisdiction and Reverse

As set forth above, in the related context of preliminary injunctions, the Sixth Circuit has 

observed that a party seeking relief need not show a certainty of success; it is enough that there 

are “serious questions going to the merits.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 

119 F.3d 393, 400 (6th Cir. 1997); see also Rostker, 448 U.S. at 1308 (requiring only a “fair 

prospect” of success). That the questions here are serious is proven by the Supreme Court’s 

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current consideration of them and its orders granting stay motions in nearly identical 

circumstances. Gill v. Whitford, 137 S. Ct. 2289 (2017); Rucho v. Common Cause, 138 S. Ct. 

923 (2018) (granting stay by a 7–2 vote). Indeed, stays were issued as to those lower-court 

decisions this Court relied on that reached the stay-briefing stage of litigation. Benisek v. Lamon, 

1:13-cv-3233-JKB, ECF No. 230 (D. Md. filed Nov. 16, 2018) (staying the case pending appeal); 

Common Cause v. Rucho, 2018 WL 4214334, at *1 (M.D.N.C. Sept. 4, 2018); see also Common 

Cause v. Rucho, 1:16-cv-1026, ECF No. 155 (M.D.N.C. Sept. 12, 2018).

As shown below, there is room for substantial doubt on the merits of the Court’s ruling. 

But it bears emphasizing as a threshold matter that the injunction is likely destined for a prompt 

vacatur for the simple reason that the Supreme Court routinely vacates orders touching upon 

issues addressed in intervening decisions it hands down. Eugene Gresseman et al., Supreme 

Court Practice 251 & n.31 (9th ed. 2008) (referring to the practice of issuing grant-vacatereverse, or “GVR,” orders as an “expansive” procedure in current Supreme Court practice). See 

Rucho v. Common Cause, 138 S. Ct. 2679 (2018) (vacating and remanding in light of Gill v. 

Whitford, 138 S. Ct. 1916 (2018))1

; Cantor v. Personhuballah, 135 S. Ct. 1699 (2015) (vacating 

and remanding in light of Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1272 

(2015)). Because this Court relied so heavily on the Rucho and Benisek decisions currently under 

review, see, e.g., Opinion and Order, ECF No. 262, at 132, 133, 137, 138, 145, 148, 150, the 

Supreme Court is likely to vacate this Court’s injunction for reconsideration in light of its 

decisions in those cases—no matter how they come out. Such a vacatur will deprive the 

 1

The appellees in Rucho argued in a supplemental brief that “[t]here is no need to remand” in 

light of Whitford given evidence on the Rucho record that was not on the record in Whitford. 

Supplemental Brief of League of Women Voters of North Carolina et al., at 1, No. 17-1295 (filed 

June 20, 2018). The arguments were unavailing, and the first Rucho injunction was unanimously 

vacated and remanded.

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injunction of ongoing impact or effect. Thus, once Rucho comes out, the likely order summarily 

vacating this Court’s injunction will bring to a halt the remedial proceedings, wherever they 

stand, and require further proceedings on liability, which might include anything from additional 

briefing, a new trial, or even renewed discovery. The likelihood of vacatur alone counsels in 

favor of a stay.

Additionally, the Court’s order is vulnerable to numerous challenges on appeal—which 

was inevitable given the lack of clarity surrounding Plaintiffs’ claims. The Supreme Court itself 

has called the “justiciability” of the claims “unresolved,” along with their “contours.” Gill, 138 

S. Ct. at 1934. Although Intervenors respect that the Court views its approach to the problem as 

the best one in light of these circumstances, they respectfully submit that there are “serious 

questions going to the merits,” Six Clinics Holding, 119 F.3d at 400, that will necessitate 

eventual Supreme Court review and a likelihood of reversal, Hollingsworth, 558 U.S. at 190. The 

Court is familiar with Intervenors’ arguments from their prior briefing in this case, so they will 

only summarize here.

First, the Court’s conclusion that Plaintiffs have standing does not follow from precedent. 

Plaintiffs did not show particularized harm from the configurations in their districts, but only 

identified generalized grievances “about government.” Lance v. Coffman, 549 U.S. 437, 439 

(2007) (per curiam); Def’s and Int’s Post-Trial Br. 64–72. It remains unknown how a district’s 

having a higher or lower chance of electing a Democratic or Republican candidate results in a 

particularized harm, especially given the overwhelming presumption, and evidence presented in 

this case, that all citizens receive representation from their representative, regardless of partisan 

affiliation. And the Court’s opinion does not distinguish the “packed” from the “cracked” 

districts or those districts where a Republican or Democratic candidate are likely to prevail in all 

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events, given geography and demographics. Further, Plaintiffs’ reliance on some of the same 

measures identified in Gill as inadequate to show individualized harm, see Gill, 138 S. Ct. at 

1933, underscores the dubious nature of the Court’s holding. Moreover, the Court’s rulings on 

organizational statewide standing have no support in precedent, and Gill disclaimed any 

endorsement of these positions. 138 S. Ct. at 1934.

Second, the Court’s conclusion that Plaintiffs’ claims are justiciable cut against the 

Supreme Court’s warning that courts are “not responsible for vindicating generalized partisan

preferences.” Id. at 1933. The Court’s test suffers from the flaws plaguing the very similar tests 

rejected by five votes in Vieth. Def’s and Int’s Post-Trial Br. 46–52. The intent factor does not 

provide a manageable standard for identifying how much partisan intent is too much, the effect 

factor does not provide a manageable standard for identifying how much partisan effect is too 

much, and the justification factor does not identify what justifications are proper and how much 

justification is needed (a point underscored by the need to shift the burden to avoid these 

problems). The analogy to racial cases has been rejected in Supreme Court precedent, and the 

reliability of social-science metrics to predict future voting patterns has been called into doubt.

The Court’s three-part burden-shifting test does not address the problem of identifying a “model 

of fair representation,” Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (opinion of Kennedy, J.), 

necessary for identifying manageable standards for discrete judicial intervention in the state 

legislatures’ constitutionally defined roles. See, e.g., Chapman v. Meier, 420 U.S. 1, 27 (1975). 

That, if nothing else, renders a partisan-gerrymandering claim distinct from a one-person, onevote claim, which is founded on an established theory of individual equality in representation. 

The Court’s intrusion on a function defined in the Constitution as the prerogative of state 

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legislatures and Congress creates profound separation-of-powers problems. Def’s and Int’s PostTrial Br. 44–46.

Third, justiciability concerns aside, Plaintiffs’ rights are not grounded in the Constitution. 

They have identified no suspect classification, rendering rational-basis review applicable to their 

equal-protection claim, City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985), 

and all redistricting plans satisfy that standard. Def’s and Int’s Post-Trial Br. 53–55. Partisan 

motive does not burden the right to vote, Crawford v. Marion Cty. Election Board, 553 U.S. 181, 

203–04 (2008), and no independent burden has been identified, since the right to vote does not 

include the right to elect an individual’s preferred candidates. Def’s and Int’s Post-Trial Br. 54–

58. Nor is there a burden on expression or association, since it is undisputed that Plaintiffs can 

speak and organize, and no retaliation that would deter a person of reasonable firmness from 

engaging in speech or association has been identified. Id. at 58–61. And the Elections Clause, 

which delegates affirmative power over congressional redistricting to the state legislature and to 

Congress, cannot be violated when they duly enact facially valid time, place or manner rules. No 

ultra vires act exists where a congressional districting plan identifies the place and manner of 

elections. Id. at 61–64.

Fourth, Plaintiffs failed to satisfy even the test the Court adopted. Incumbents of both 

parties were protected, and the even-handed protection of both parties’ incumbents presents the 

type of political consideration supported in precedent. Gaffney v. Cummings, 412 U.S. 735, 753 

(1973). That the considerations were not perfectly identical with those approved in Gaffney does 

not render them beyond the reach of that decision’s reasoning. Plaintiffs failed to prove intent or 

effect, and the Court’s shifting of the burden was improper. There was no obligation for the 

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influence district, and the Court’s intrusion on these questions presents yet another improper 

judicial second-guessing of state policy decisions. Voinovich v. Quilter, 507 U.S. 146, 152–56 

(1993). Placing the burden on the state to justify disparate partisan impact is legally improper.

Fifth, the Court’s ruling on laches makes the remarkable assertion that an equitable 

defense does not apply to equitable claims, a proposition that cannot square with precedent. See, 

e.g., Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980). Intervenors’ prejudiced from Plaintiffs’ 

delay is evident from the Court’s hearsay rulings, finding information inadmissible (or of limited 

admissible value) where Intervenors could have overcome these objections with testimony from 

persons who passed away during Plaintiffs’ long period of delay. Plaintiffs’ mass destruction of 

documents also presents a prejudice from their delay.

Intervenors recognize the Court’s disagreement with these points, but disagreement on 

matters entirely unresolved in binding precedent does not negate the likelihood of success for 

Intervenors on at least some of these issues on appeal. It is likely that the Supreme Court will 

note probable jurisdiction, and there is at least a fair prospect of reversal or vacatur.

B. The Equitable Factors Favor a Stay

Without a stay of the Court’s order and the remedial proceedings, irreparable injury is 

certain. As the Supreme Court recently held, “the [State’s] inability to enforce its duly enacted 

plans clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 

(2018) (citing Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)); see also 

Miller v. Johnson, 515 U.S. 900, 915 (1995) (“Federal-court review of districting legislation 

represents a serious intrusion on the most vital of local functions.”). Accordingly, the Supreme 

Court’s “ordinary practice is to suspend ... injunctions from taking effect pending appellate 

review” “[w]hen courts declare state laws unconstitutional and enjoin state officials from 

enforcing them.” Strange v. Searcy, 135 S. Ct. 940, 940 (2015) (Thomas, J., dissenting) (citing 

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Herbert v. Kitchen, 134 S. Ct. 893 (2014), and San Diegans for Mt. Soledad Nat. War Mem’l v. 

Paulson, 548 U.S. 1301 (2006) (Kennedy, J., in chambers)).

The irreparable harm here is compounded because the Ohio legislature “must either adopt 

an alternative redistricting plan...or face the prospect that the District Court will implement its 

own redistricting plan.” Karcher v. Daggett, 455 U.S. 1303, 1306 (1982) (Brennan, J., in 

chambers) (granting a stay on this basis). That in itself is irreparable harm. The Court’s June 14 

deadline for a new plan underscores this harm by declaring a date certain for its contemplated 

usurpation of Ohio’s legislative power—a power that finds its origin in the federal Constitution. 

The June 14 deadline may pass prior to the Supreme Court’s issuance of the forthcoming Rucho

decision, so the legislative effort may conclude and then turn out to be a waste in light of Rucho. 

What’s more, if the state legislature were to pass new legislation on the Court’s timeline that 

eventually turned out to be unnecessary, it would be required to pass new legislation to re-enact 

the 2011 districts into law for the 2020 elections. It makes little sense to proceed with a remedial 

process before the inevitable remand for further consideration in light of Rucho.

“[C]onsiderations specific to election cases” also militate in favor of a stay. Purcell v. 

Gonzalez, 549 U.S. 1, 4 (2006). The federal-court intrusion into the state election process is 

disfavored, especially as candidates and voters set their sights on the 2020 election season. For 

that reason, the Supreme Court has recently granted stays on similar timelines. Gill v. Whitford, 

137 S. Ct. 2289 (2017) (granting stay on June 19 in an odd-numbered year); Abbott v. Perez, 138 

S. Ct. 49 (2017) (granting stay on September 12 of an odd-numbered year). Generating new 

redistricting maps risks sowing chaos and undermining the public interest in an orderly election 

process. Ohio’s voters, after four elections under the 2011 plan, are acclimated to it, and there is 

no reason to disrupt the relationships between constituents and congressmembers until it is clear 

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that such disruption is necessary. The mere existence of competing congressional plans—after 

four straight election cycles under the 2011 plan—will create confusion, as it will result in 

election preparations beginning to proceed on dual tracks. And, if the Supreme Court finds

Plaintiffs’ claims nonjusticiable or otherwise reverses, the state will revert back to the 2011 plan 

causing even further confusion.

There is no comparable harm to Plaintiffs from a stay. There is ample time for the 

Court’s injunction to be appealed and decided by the Supreme Court and for remedial 

proceedings to occur, if necessary, on remand. As discussed, there will very likely be a prompt 

vacatur in any event, requiring a new round of liability proceedings before the remedial 

proceedings can even begin. Moreover, there is a possibility of affirmance on some and reversal 

on other districts, since the Court invalidated all of Ohio’s congressional districts, and the scope 

of the remedy would necessarily shift depending on the ultimate ruling. Additionally, the 

Supreme Court’s forthcoming Rucho and Benisek opinions may shed light on remedial 

considerations. So a remedial proceeding now may prove useless even if Plaintiffs are successful 

or partially successful on appeal. It is impossible to make those predictions at this time.

On balance, a stay is the optimal way to proceed with this case. The balance of harms 

weigh in favor of a stay, as the harm to the State and Intervenors is certain and the potential harm 

to Plaintiffs is speculative. Clarity from the Supreme Court is essential to knowing whether even 

the most elementary aspects of this Court’s ruling are sound, and that clarity may come as early 

as June. Then, once Rucho and Benisek are issued, the Supreme Court will most likely call on 

this Court to review in the first instance their effect on this case. There is no reason to proceed 

towards a remedy before that time, given the cost and uncertainty regarding the viability of the 

Court’s ruling.

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CONCLUSION

The Court should stay its injunction pending appeal.

Respectfully submitted,

BAKER & HOSTETLER LLP

/s/ Patrick T. Lewis

Patrick T. Lewis (0078314)

Trial Attorney

Email: plewis@bakerlaw.com

127 Public Square, Suite 2000

Cleveland, OH 44114-1214

(216) 621-0200 / Fax (216) 696-0740

Robert J. Tucker (0082205)

Email: rtucker@bakerlaw.com

Erika Dackin Prouty (0095821)

Email: eprouty@bakerlaw.com

200 Civic Center Drive, Suite 1200

Columbus, OH 43215-4138

(614) 228-1541 / Fax (614) 462-2616

E. Mark Braden(*)

Email: mbraden@bakerlaw.com

Katherine L. McKnight(*)

Email: kmcknight@bakerlaw.com

Richard B. Raile(*)

Email: rraile@bakerlaw.com

Washington Square, Suite 1100

1050 Connecticut Avenue, N.W.

Washington, DC 20036-5403

(202) 861-1500 / Fax (202) 861-1783

(*) admitted pro hac vice

Counsel for Intervenors

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CERTIFICATE OF SERVICE

I certify that on May 6, 2019, the foregoing was filed via the Court’s CM/ECF system 

and served via electronic filing upon all counsel of record in this case.

/s/ Patrick T. Lewis

Patrick T. Lewis (0078314)

Counsel for Intervenors

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