1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

OHIO A. PHILIP RANDOLPH INSTITUTE, 

et al., 

Plaintiffs, 

v. 

LARRY HOUSEHOLDER, Speaker of the 

Ohio House of Representatives, et al., 

Defendants. 

No. 1:18-cv-00357-TSB-KNM-MHW 

Judge Timothy S. Black 

Judge Karen Nelson Moore 

Judge Michael H. Watson 

Magistrate Judge Karen L. Litkovitz 

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO 

DEFENDANTS’ MOTION TO STAY TRIAL 

Defendants seek to preserve their unconstitutional gerrymander by simply running out the 

clock. Granting Defendants’ request for a stay would uphold their unconstitutional gerrymander 

of Ohio’s congressional districts. Such a result will inflict severe prejudice on Plaintiffs and the 

citizens of Ohio. It will create a substantial risk that relief will not be granted in time to obtain 

constitutional congressional district lines for use in the 2020 election. Defendants overstate how 

quickly the case can move through the judicial system. Unless they have determined to waive all 

appeals of this Court’s judgment, Defendants’ suggestion that a trial this summer can provide 

relief in time for their purported September 2019 administrative deadline is not credible. In 

order for this Court to provide Plaintiffs relief from severe constitutional violations, it must deny 

the stay. 

The decision of the Supreme Court to hear arguments on the merits of the Maryland and 

North Carolina cases does not come close to justifying Defendants’ eleventh-hour attempt to 

block the trial of this action. This development does not constitute a remarkable or unforeseen 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 1 of 11 PAGEID #: 11318
2 

turn of events. Because all merits decisions from three judge panels constituted pursuant to 28 

U.S.C. § 2284 are subject to appeal to the Supreme Court as of right, Defendants were aware that 

the decisions of the North Carolina and Maryland district courts would very likely be heard by 

the Supreme Court. The three judge panel decision in North Carolina was handed down over 

five months ago, and Maryland was handed down nearly three months ago. This case has been 

litigated from the start with full awareness that there were other partisan gerrymandering cases 

that would likely reach the Supreme Court before this case did so. Only now, on the eve of trial, 

and more than three weeks after the Supreme Court indicated that it would consider the appeals, 

do Defendants seek to alter the trial schedule. 

Courts “must tread carefully in granting a stay of proceedings, since a party has a right to 

a determination of its rights and liabilities without undue delay.” Ohio Envtl. Council v. U.S. 

Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir. 1977). The party seeking a stay 

has the burden of establishing both the “pressing need for delay” and “that neither the other party 

nor the public will suffer harm from entry of the order.” Id. “[T]he suppliant for a stay [of 

proceedings] must make out a clear case of hardship or inequity in being required to go forward, 

if there is even a fair possibility that the stay for which he prays will work damage to [someone] 

else.” Landis v. N. American Co., 299 U.S. 248, 255 (1936). The Supreme Court’s standard is 

met “[o]nly in rare circumstances.” Id; see also Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 

(W.D. Mich. 2007) (“A stay of a civil case is an extraordinary remedy that should be granted 

only when justice so requires.”). 

Where, as here, a stay diminishes the ability of Plaintiffs to obtain relief and the 

Defendants have failed to meet their burden, courts deny requests for a stay. Kirby Devs., LLC v. 

XPO Global Forwarding, Inc., No. 2:18-cv-500, 2018 WL 6075071, at *6 (S.D. Ohio Nov. 20, 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 2 of 11 PAGEID #: 11319
3 

2018). Granting a stay here would send the message that there is no downside to discriminatory 

redistricting practices because “the federal courts are powerless to effectively redress [voters’] 

grievances.” Coal. for Educ. in Dist. One v. Bd. of Elections, 370 F. Supp. 42, 58 (S.D.N.Y. 

1974). The motion should be denied. 

ARGUMENT 

In considering the stay of a trial, courts generally consider the following factors: “the 

need for a stay, the balance of potential hardship to the parties and the public, and the promotion 

of judicial economy.” Webber v. J-W Wireline Co., No. 2:15-cv-02084, 2015 WL 13706214, 

at *2 (S.D. Ohio Oct. 20, 2015). The “most important” of these factors is the balance of the 

hardships. F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 628 (6th Cir. 2014). The burden on 

the party seeking to stay a trial is high, and the most recent court in this Circuit to consider 

staying a gerrymandering case pending the Supreme Court’s decisions in Common Cause v. 

Rucho and Benisek v. Lamone declined to do so. League of Women Voters of Mich. v. Johnson, 

No. 2:17-cv-14148, slip op. at 1 (E.D. Mich. Feb. 1, 2019);1 see also Notation Order, In re 

Chatfield, No.18A769 (U.S. Feb. 4, 2019) (Sotomayor, J), 

https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18A769.

html (denying stay pending the filing and disposition of a petition for a writ of mandamus in 

Michigan gerrymandering case). The Court should follow this precedent and deny a stay here. 

A. Staying the trial would cause undue hardship and prejudice to Plaintiffs. 

As the Court is well aware, this case is being litigated on an extremely expedited 

schedule so that the Plaintiffs and the public can obtain relief from the unconstitutional 

 

1

 The Seventh Circuit recently granted a stay in the Wisconsin partisan gerrymandering case, Whitford v. 

Gill, No. 15-cv-421, slip op. (W.D. Wisc. Jan. 23, 2019), but that case is distinguishable as it would have 

been the second trial. Since most of the evidence was entered in the first trial the parties intend to have a 

short four day trial. 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 3 of 11 PAGEID #: 11320
4 

gerrymander of Ohio’s congressional districts in time for the 2020 elections. Plaintiffs originally 

sought a trial beginning in February. Pls.’ Case Schedule Statement, ECF No. 31; Tr. of 

7/10/2018 Status Conf. at 8:18–9:3, ECF No. 44; Rule 26(f) Report at 3, ECF No. 35. The 

parties only agreed to the later March trial date along with an order laying out quicker deadlines 

for pursuing appeal. Parties’ Joint Submission Re. Schedule, ECF No. 39 at 3; Tr. of 7/13/2018 

Status Conf. at 5:13–16, ECF No. 45. Defendants’ stay motion attempts to throw this agreement 

overboard and, thus, extinguish Plaintiffs’ chance to obtain relief. Waiting until after Rucho and 

Benisek are decided would delay this case by months. Such a long delay creates a substantial 

risk that there will not be adequate time to grant the relief that Plaintiffs seek: constitutional 

congressional district lines for use in the 2020 election. Given the responsibility of the federal 

courts “to ensure that future elections will not be conducted under unconstitutional plans,” see, 

e.g., Larios v. Cox, 305 F. Supp. 2d 1335, 1344 (N.D. Ga. 2004), this risk weighs heavily against 

granting a stay. 

Where a constitutional violation is ongoing, as it is in this case, it cannot reasonably be 

claimed that the Plaintiffs have not sought to vindicate their rights. Defs.’ Br. at 8, ECF No. 185 

(“Defs.’ Br.”). Plaintiffs do not dispute their inability to obtain relief for elections that have 

passed, but they have litigated this case expeditiously in order to obtain relief for the elections 

that are still to come in 2020. See, e.g., Garza v. Cty. of Los Angeles, 918 F.2d 763, 772 (9th Cir. 

1990) (in apportionment case, “ongoing nature of the violation” meant that plaintiffs’ injury “has 

been getting progressively worse” with each passing election cycle); Luna v. Cty. of Kern, 291 F. 

Supp. 3d 1088, 1143–44 (E.D. Cal. 2018); Smith v. Clinton, 687 F. Supp. 1310, 1312–13 (E.D. 

Ark. 1988); Dotson v. City of Indianola, 514 F. Supp. 397, 401 (N.D. Miss. 1981). 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 4 of 11 PAGEID #: 11321
5 

Plaintiffs have identified a very real hardship that would be caused by staying the trial—

one known to all of the parties since the very beginning of this case. See Pls.’ Case Schedule 

Statement, ECF No. 31. Even more minimal burdens are enough to deny a motion for a stay. 

See, e.g., Hickman v. First Am. Title Ins. Co., No. 1:07-CV-1543, 2010 WL 11565405, at *4 

(N.D. Ohio Aug. 4, 2010) (“the degree of hardship [to the non-moving party] need not be 

substantial” to deny the motion). The Court and all parties to this case know that expedition is 

critical to the relief Plaintiffs seek, and a stay should be denied on this grounds. 

B. Public welfare weighs in favor of denying a stay. 

The public is also injured by an unconstitutional districting plan remaining in place for 

another election cycle. Where constitutional rights are at issue, “the public interest also counsels 

against a stay,” as “the public interest is always served by robust protection of constitutional 

guarantees.” Caspar v. Snyder, 77 F. Supp. 3d 616, 644 (E.D. Mich. 2015). Defendants argue 

that the monetary cost of the trial counsels in favor of granting the stay. Defs.’ Br. at 7. The cost 

of the trial is only a fraction of the taxpayer resources spent by Defendants in first drawing and 

now defending this unconstitutional redistricting plan. Moreover, courts in other redistricting 

cases have held that “mere injuries, however substantial, in terms of money, time and energy 

necessarily expended in the absence of a stay, are not enough.” Conkright v. Frommert, 556 

U.S. 1401, 1403 (2009) (Ginsburg, J. in chambers) (quotation marks omitted); see also Cane v. 

Worcester Cty., 874 F. Supp. 695, 698 (D. Md. 1995); Johnson v. Mortham, 926 F. Supp. 1540, 

1542 (N.D. Fla. 1996). 

Moreover, Defendants have suggested nothing other than the monetary cost as weighing 

against proceeding to trial. They have identified no hardship that would befall them if the case 

proceeds. On this ground alone the stay should be denied. The party seeking a stay “must make 

out a clear case of hardship or inequity in being required to go forward,” where, as here, there is 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 5 of 11 PAGEID #: 11322
6 

even the risk of the stay burdening the other party. Landis, 299 U.S. at 255 (emphasis added). 

Defendants have not made out such a case, so the stay should be denied. 

C. Judicial economy does not require staying the trial. 

Granting a stay would only minimally advance the interests of judicial economy while 

exposing the Plaintiffs to substantial prejudice. Defendants waited until the eve of trial to file 

this motion to stay, even though the North Carolina court issued its opinion in August and the 

defendants in that case noticed their right of appeal over four months ago. Well before the 

Defendants moved to stay the proceedings, the parties completed discovery, submitted motions 

in limine, submitted their pre-trial order, designated exhibits, and had begun final preparations 

for trial. As the parties have already devoted substantial time and effort preparing this case for 

trial, a stay now would, at best, only minimally advance the interests of judicial economy and the 

prevention of hardship to the Defendants. See Common Cause v. Rucho, Nos. 1:16-CV-1026, 

1:16-CV-11644, 2017 WL 3981300, at *7 (M.D.N.C. Sept. 8, 2017) (holding that the defendants 

would be “minimally harmed” by denying a stay since “[t]he parties completed discovery, 

submitted motions in limine, and prepared for trial before Legislative Defendants moved to stay 

these proceedings”). 

Courts in this Circuit have determined that where the court and litigants have prepared for 

trial, it does not serve judicial economy to then stay that proceeding. See, e.g., Blair v. City of 

Cleveland, 148 F. Supp. 2d 919, 923–24 (N.D. Ohio 2000) (denying a stay where the “court has 

allocated sufficient time in its docket for the trial of this matter at this time and cannot predict 

that when the case comes back from the court of appeals a similar block of time will be 

immediately available” and “parties have assembled their witnesses and prepared their cases for 

trial”); Henricks v. Pickaway Corr. Inst., No. 2:08-CV-580, 2016 WL 4706030, at *2 (S.D. Ohio 

Sept. 8, 2016) (denying a stay where the “parties have prepared for trial and so has the Court”). 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 6 of 11 PAGEID #: 11323
7 

Moreover, the evidence that the parties intend to introduce at trial (laid out in their 

proposed pre-trial order and its attachments, ECF No. 157) is more than likely to remain relevant 

to resolving Plaintiffs’ claims, regardless of any further guidance the Supreme Court provides in 

other partisan gerrymandering cases. See Rucho, 2017 WL 3981300, at *6 (allowing Rucho to 

proceed despite the pendency of Gill v. Whitford at the Supreme Court because it was “unlikely 

. . . to amount to an ‘unnecessar[y]’ expense of time and resources, as the evidence and 

arguments presented by the parties will be necessary to resolve this case, regardless of the 

disposition of Whitford” (alteration in original)). 

Also of note is that Plaintiffs’ claim regarding their right to vote is analytically distinct 

from the claims that have been put forward in Rucho and Benisek. Neither case has put forward 

a right to vote claim, and its legal test and constitutional underpinnings are distinct from the 

Equal Protection and First Amendment claims presented by plaintiffs in those cases. It is 

unlikely that the Supreme Court decision will give dispositive guidance resolving this claim. Id.

at *6 (holding that where substantive gerrymandering claims differ “[i]t makes little sense ‘to 

delay consideration of this case for possibly a year or more, waiting for a decision that may not 

ultimately affect it.’” (citations omitted)). 

To the extent that Defendants’ motion is based on assumptions about the outcome in 

Rucho and Benisek, it is entirely speculative and insufficient grounds to stay the trial. As an 

initial matter, there is no basis to assume that the Supreme Court will broadly rule that all 

partisan gerrymandering cases are non-justiciable. On the contrary, under existing Supreme 

Court precedent, partisan gerrymandering cases are justiciable. See Vieth v. Jubelirer, 541 U.S. 

267, 292, 310 (2004) (Kennedy, J., concurring in the judgment) (stating that Bandemer’s holding 

that partisan gerrymandering claims are justiciable is “controlling precedent on the question of 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 7 of 11 PAGEID #: 11324
8 

justiciability.”); id at 317 (Stevens, J., dissenting) (“[F]ive Members of the Court . . . share the 

view that, even if these appellants are not entitled to prevail, it would be contrary to precedent 

and profoundly unwise to foreclose all judicial review of similar claims that might be advanced 

in the future.”); see also League of Women Voters of Mich. v. Johnson, No. 2:17-cv-14148, 2018 

WL 6257476, at *14 (E.D. Mich. Nov. 30, 2018); Common Cause v. Rucho, 318 F. Supp. 3d 

777, 838 (M.D.N.C. 2018). The Supreme Court itself could have closed the door on such claims 

in Gill v. Whitford and it did not do so. 138 S. Ct. 1916, 1929 (2018). For example, the Supreme 

Court could have dismissed the case for lack of standing, but did not do so, but rather remanded 

the case to the district court. Id. at 1934. Coupled with the Court’s recent pronouncement that 

“[p]artisan gerrymanders . . . are incompatible with democratic principles,” Ariz. State 

Legislature v. Ariz Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (internal 

alterations and citation omitted), it is highly unlikely that a trial in this case would be for naught. 

Defendants’ insistence that the Supreme Court is about to declare all partisan 

gerrymandering cases non-justiciable because the Court has delayed consideration of 

jurisdiction, Defs.’ Br. at 6, is wholly unfounded. In fact, there are many cases where the 

Supreme Court postponed consideration of the jurisdictional question, but went on to rule in 

favor of plaintiffs on the merits of the case. See, e.g., Wittman v. Personhuballah, 136 S. Ct. 

1732, 1736-37 (2016); Brown v. Plata, 563 U.S. 493, 510–16 (2011); Davis v. Fed. Election 

Comm’n, 554 U.S. 724, 732–34 (2008); Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 

U.S. 449, 461–64 (2007). 

Additionally, to the extent this Court applies the same or similar tests to those used by the 

three judge panels in Rucho and Benisek, this would further demonstrate that these tests are 

judicially manageable (as multiple panels of the judiciary were able to understand and apply 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 8 of 11 PAGEID #: 11325
9 

them). This would assist the Supreme Court as it considers Rucho and Benisek by demonstrating 

whether the standards are manageable.2

 At least one court has found that courts “share[]” the 

“responsibility” with the parties for the development of the law with respect to partisan 

gerrymandering. Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 853 

(E.D. Wis. 2012). It is further clear that in practice courts do share that responsibility for 

articulating the law when they are able to apply legal standards to the facts before them. 

Proceeding with this case provides further information for the Supreme Court about the 

capability of the federal courts in this context. 

Furthermore, in instances where a pending case may be dispositive, “this is not the only 

factor the court considers.” Hickman, 2010 WL 11565405, at * 4. Even in the face of a pending 

potentially dispositive case, the party seeking a stay must still carry its burden under the 

controlling case law, that is “a ‘clear case of hardship or inequity’ within the meaning of 

Landis.” Peters v. Credit Prot. Ass’n LP, No. 2:13-CV-0767, 2015 WL 5216709, at *10 (S.D. 

Ohio Sep. 8, 2015). 

CONCLUSION 

 For all of the reasons discussed above, the Court should deny Defendants’ motion to stay 

the trial. 

February 5, 2019 Respectfully submitted, 

T. Alora Thomas-Lundborg 

Dale E. Ho 

Theresa J. Lee 

Emily Rong Zhang 

/s/ Freda J. Levenson, trial attorney 

Freda J. Levenson (0045916) 

American Civil Liberties Union of Ohio Fdtn. 

4506 Chester Avenue 

Cleveland, OH 44103 

 

2

 The current state of the law stands in stark contrast to the state of the law between Davis v. Bandemer

and Vieth v. Jubelirer, where judicial intervention was refused. Vieth v. Jubelirer, 541 U.S. 267, 279 

(2004). 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 9 of 11 PAGEID #: 11326
10 

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor 

New York, NY 10004 

Tel.: (212) 549-2500 

athomas@aclu.org 

dho@aclu.org 

tlee@aclu.org 

erzhang@aclu.org 

Tel.: (216) 472-2220 

Facsimile: (216) 472-2210 

flevenson@acluohio.org 

Robert Fram 

Nitin Subhedar 

Jeremy Goldstein 

Covington & Burling LLP 

One Front Street 

San Francisco, CA 94111 

Tel.: (415) 591-6000 

rfram@cov.com 

nsubhedar@cov.com 

jgoldstein@cov.com 

Kyunghoon John Woo** 

Covington & Burling LLP 

1999 Avenue of the Stars 

Los Angeles, CA 90067 

Tel.: (424) 332-4800 

jwoo@cov.com 

Michael Baker 

Perrin Cooke 

Peter Rechter 

Robert Day 

Kaitlyn Demers 

Covington & Burling LLP 

850 Tenth Street, NW 

Washington, DC 20001 

Tel.: (202) 662-6000 

mbaker@cov.com 

pcooke@cov.com 

prechter@cov.com 

rday@cov.com 

kdemers@cov.com 

Attorneys for Plaintiffs 

 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 10 of 11 PAGEID #: 11327
11 

CERTIFICATE OF SERVICE

 I hereby certify that the foregoing document was served upon all counsel of record in this 

case via ECF. 

/s/ Freda J. Levenson 

Attorney for Plaintiffs 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 201 Filed: 02/05/19 Page: 11 of 11 PAGEID #: 11328