1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

OHIO A. PHILIP RANDOLPH INSTITUTE

et al.,

Plaintiffs,

v.

LARRY HOUSEHOLDER et al.,

Defendants.

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No. 1:18-cv-357

OPINION AND ORDER

Before: Moore, Circuit Judge; Black and Watson, District Judges.

TABLE OF CONTENTS

I. BACKGROUND ............................................................................................ 5

A. General Overview of the Facts .................................................................. 5

B. Procedural History ............................................................................... 28

II. SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL .................................... 30

A. Plaintiffs’ Fact Witnesses ..................................................................... 30

B. Defendants’ Fact Witnesses ................................................................... 45

C. Plaintiffs’ Expert Witnesses ................................................................... 55

D. Defendants’ and Intervenors’ Expert Witnesses ............................................. 93

III. STANDING ............................................................................................ 114

A. Vote-Dilution Claims .......................................................................... 115

B. First Amendment Associational Claim ...................................................... 134

C. Article I Claim .................................................................................. 139

IV. JUSTICIABILITY, THE POLITICAL QUESTION DOCTRINE, AND THE ROLE OF THE 

FEDERAL COURTS IN REDISTRICTING ........................................................... 139

A. Justiciability and The Political Question Doctrine ........................................ 139

B. Evidentiary Metrics and Statistics ........................................................... 149

C. Pragmatic and Historical Considerations ................................................... 154

V. LEGAL STANDARDS AND APPLICATION .................................................... 166

A. Equal Protection Vote-Dilution Claim ...................................................... 167

B. First Amendment Vote-Dilution Claim ..................................................... 262

C. First Amendment Associational Claim ...................................................... 263

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D. Article I Claim ................................................................................. 284

VI. LACHES ............................................................................................... 288

VII. REMEDY AND ORDER ........................................................................... 293

APPENDICES OF MAPS

Plaintiffs have brought this action alleging that H.B. 369, the redistricting plan enacted by 

the Ohio General Assembly and signed into law by the Governor in 2011, constitutes an 

unconstitutional partisan gerrymander under the First and Fourteenth Amendments and exceeds 

the powers granted to the states under Article I, § 4 of the United States Constitution. As to the 

First and Fourteenth Amendment district-specific claims, we find that Districts 1–16 were intended 

to burden Plaintiffs’ constitutional rights, had that effect, and the effect is not explained by other 

legitimate justifications. Moreover, we find that that the plan as a whole burdens Plaintiffs’ 

associational rights and that burden is not outweighed by any other legitimate justification. 

Finally, we find that the plan exceeds the State’s powers under Article I. Therefore, H.B. 369 is 

an unconstitutional partisan gerrymander. This opinion constitutes our findings of fact and 

conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1).

Due to the length of this opinion, we provide the reader with the following, more concise 

summary:

“Partisan gerrymandering” occurs when the dominant party in government draws district 

lines to entrench itself in power and to disadvantage the disfavored party’s voters. Plaintiffs in 

this action are individual Democratic voters from each of Ohio’s sixteen congressional districts, 

two non-partisan pro-democracy organizations, and three Democratic-aligned organizations. They 

challenge the constitutionality of Ohio’s 2012 redistricting map. Defendants are Ohio officials, 

and Intervenors are Ohio Republican Congressmen; Defendants and Intervenors both argue that 

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the Plaintiffs’ claims are not properly before this Court and defend the map’s constitutionality on 

the merits. 

In 2011, when Ohio’s redistricting process began, Republican dominance in the Ohio State 

government meant that Republican state legislators could push through a remarkably proRepublican redistricting bill without meaningful input from their Democratic colleagues. Ohio 

Republicans took advantage of that opportunity, and invidious partisan intent—the intent to 

disadvantage Democratic voters and entrench Republican representatives in power—dominated 

the map-drawing process. They designed the 2012 map using software that allowed them to predict 

the partisan outcomes that would result from the lines they drew based on various partisan indices 

that they created from historical Ohio election data. The Ohio map drawers did not work alone, 

but rather national Republican operatives located in Washington, D.C. collaborated with them 

throughout the process. These national Republicans generated some of the key strategic ideas for 

the map, maximizing its likely pro-Republican performance, and had the authority to approve 

changes to the map before their Ohio counterparts implemented them. Throughout the process, 

the Ohio and national map drawers made decisions based on their likely partisan effects. 

The map drawers focused on several key areas of the Ohio map where careful map design 

could eke out additional safe Republican seats. They split Hamilton County and the City of 

Cincinnati in a strange, squiggly, curving shape, dividing its Democratic voters and preventing 

them from forming a coherent voting bloc, which ensured the election of Republican 

representatives in Districts 1 and 2. They drew a new District 3 in Franklin County, efficiently 

concentrating Democratic voters together in an area sometimes referred to as the “Franklin County 

Sinkhole.” This strategy allowed them to secure healthy Republican majorities in neighboring 

Districts 12 and 15. They paired Democratic incumbent Representatives Kaptur and Kucinich to 

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create the infamous “Snake on the Lake”—a bizarre, elongated sliver of a district that severed 

numerous counties. They drew a District 11 that departed from its traditional territory to snatch 

up additional African-American Democratic voters in Summit County, allowing for the creation 

of a new District 16 in which a Republican incumbent representative could defeat a Democratic 

incumbent representative. They designed these districts with one overarching goal in mind—the 

creation of an Ohio congressional map that would reliably elect twelve Republican representatives 

and four Democratic representatives.

Ohio Republican legislators enacted the first iteration of the 2012 map, H.B. 319, in 

September 2011. Ohio voters then challenged the map, seeking to subject it to a voter referendum, 

but their efforts failed. As a result, Ohio Republicans passed a slightly different version of the 

map, H.B. 369, in December 2011. The changes they made did not materially alter the strong proRepublican partisan leaning of the map’s first iteration. Four cycles of congressional elections 

have occurred under the map embodied in H.B. 369. Each resulted in the election of twelve 

Republican representatives and four Democratic representatives. No district has been represented 

by representatives from different parties during the life of the map. 

During a two-week trial, experts testified to the extremity of the gerrymander. They 

demonstrated that levels of voter support for Democrats can and have changed, but the map’s 

partisan output remains stubbornly undisturbed. The experts used various metrics and 

methodologies to measure their findings, but several takeaways were universal: (1) the Ohio map 

sacrifices respect for traditional districting principles in order to maximize pro-Republican partisan 

advantage, (2) the Ohio map’s pro-Republican partisan bias is extreme, compared both to historical 

plans across the United States and to other possible configurations that could have been adopted 

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in Ohio, and (3) the Ohio map minimizes responsiveness and competition, rendering one consistent 

result no matter the particularities of the election cycle. 

We join the other federal courts that have held partisan gerrymandering unconstitutional 

and developed substantially similar standards for adjudicating such claims. We are convinced by 

the evidence that this partisan gerrymander was intentional and effective and that no legitimate

justification accounts for its extremity. Performing our analysis district by district, we conclude 

that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into 

districts that are so skewed toward one party that the electoral outcome is predetermined. We 

conclude that the map unconstitutionally burdens associational rights by making it more difficult 

for voters and certain organizations to advance their aims, be they pro-Democratic or prodemocracy. We conclude that by creating such a map, the State exceeded its powers under Article 

I of the Constitution. Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan 

gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally 

viable replacement. 

I. BACKGROUND

A. General Overview of the Facts

1. The redistricting process begins

Every ten years, the United States government conducts a census. The census results 

dictate the size of each state’s delegation to the United States House of Representatives because 

House seats are based on population. Following the release of the census results, state legislatures 

redraw their United States congressional districts in order to reflect population changes. In Ohio, 

the 2010 census revealed that the State’s comparative population stagnation required reducing the 

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State’s previous congressional delegation from eighteen to sixteen.1 In that same year, Ohioans 

elected a Republican Governor, elected a Republican majority in the State Senate, and flipped the 

Ohio House of Representatives to be majority Republican as well.2 In the State of Ohio, the Ohio 

General Assembly is responsible for enacting legislation that delineates the federal congressional 

districts.3 Both the State Senate and the State House of Representatives must pass such a bill by a 

simple majority and the Governor must then sign the bill into law.4 Therefore, when map-drawing 

activities commenced in 2011, the Republican Party had effective control of all bodies necessary 

to pass a redistricting bill.

In Ohio, redistricting is facilitated by the Joint Legislative Task Force on Redistricting, 

Reapportionment, and Demographic Research (“Task Force”). The Task Force is a six-person 

bipartisan committee.5 The Task Force does not actually draw the maps. Rather “it is the entity 

to which the state legislature appropriates money” so that the Task Force can then contract with 

other entities and individuals to assist in the redistricting process.6 Prior to the 2011 redistricting, 

the Task Force requisitioned from Cleveland State University (“CSU”) a dataset containing 

demographic and political data that map drawers of both parties could use in the redistricting 

process.7 The practice of the Ohio General Assembly has been to allow the Task Force to allocate 

separate funds in equal amounts to the Ohio Democratic Caucus and the Ohio Republican Caucus 

 

1 Trial Ex. P090 (Cooper Decl. at 10). 

2 OHIO SEC’Y OF STATE, 2010 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2010-elections-results/. The Court 

takes judicial notice of all the 2010 election results. FED. R. EVID. 201.

3 Dkt. 234 (Final Pretrial Order at App. A., 1) (Joint Uncontroverted Facts).

4

Id.

5

Id. at App. A., 1–2. 

6 Dkt. 243 (DiRossi Trial Test. at 147–49).

7 Dkt. 230-14 (Glassburn Dep. at 37); Dkt. 230-5 (Mann Dep. at 94–95, 103, 105). 

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and to allow the parties to conduct much of their redistricting work separately.8 This is precisely 

what occurred during the 2011 map-drawing process.9 Eventually, maps are produced that are 

then sent for the General Assembly to enact in a bill, which is then sent to the Governor. The Ohio 

Senate and House of Representatives also established committees on redistricting, chaired by 

Republicans State Senator Keith Faber and Representative Matthew Huffman, respectively.

2. Logistics of the Republican map drawing 

Republican map-drawing planning occurred at both the State and federal levels, and the 

two levels worked together, collaborated, and consulted one another throughout the process.10 At 

the State level, Ray DiRossi and Heather Mann11 served as the principal on-the-ground map 

drawers.12 DiRossi had previously been employed as a staffer for Republican members of the 

General Assembly and as a fundraiser for the Ohio Republican Senate Campaign Committee.13 

He was also deeply involved in the 2001 redistricting process following the 2000 census.14 Mann 

had been working for the Ohio House Republican Caucus since 2004, most recently as Deputy 

Legal Counsel and Redistricting Director, reporting to Speaker of the Ohio House of 

Representatives William Batchelder (“Speaker Batchelder”).

15

 It was decided that both DiRossi 

and Mann should formally cease their employment with the Ohio House Republican Caucus and 

instead conduct their map-drawing work as independent consultants.16 As a consultant, Mann 

 

8 Dkt. 243 (DiRossi Trial Test. at 148–50).

9

Id. at 149–50. 

10 Dkt. 230–28 (Kincaid Dep. at 313). 

11 Heather Mann is now Heather Blessing, but this opinion refers to her by the last name 

“Mann” because that was her name at the relevant time and to be consistent with how her name 

appears in documents and emails.

12 Dkt. 230-5 (Mann Dep. at 48). 

13 Dkt. 243 (DiRossi Trial Test. at 206–07). 

14 Id. at 147. 

15 Dkt. 230-5 (Mann Dep. at 27–28). 

16 Dkt 243 (DiRossi Trial Test. at 207–10); Dkt. 230-5 (Mann Dep. at 28). 

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reported to Speaker Batchelder,17 and DiRossi reported to State Senate President Tom Niehaus.18 

Troy Judy, Chief of Staff for Speaker Batchelder, was also deeply involved in the map drawing.19 

DiRossi secured a room at the DoubleTree Hotel in Columbus beginning in July 2011 to 

serve as the base for the map-drawing operations.20 DiRossi had the hotel move the usual 

furnishings out of the hotel room and instead had desks and three computers installed.21 Various 

Republican legislators, staff members, and operatives visited the DoubleTree room during the 

map-drawing process. They included Mann, DiRossi, Judy, Speaker Batchelder,22 President of the 

Ohio Senate Tom Niehaus, Representative Matt Huffman, State Senator Keith Faber, Chief of 

Staff in the Ohio State Senate Mike Schuler, Chief Legal Counsel to the majority in the Ohio 

House of Representatives Mike Lenzo,23 map-drawing expert John Morgan,24 head of Team 

Boehner Tom Whatman, and legal counsel Mark Braden. No Democratic legislator or staffer ever 

visited.25 

Mann, DiRossi, and Judy each used a computer equipped with a software package called 

“Maptitude.”26 Various types of demographic data as well as historical election data and 

compilations of that data can be uploaded into Maptitude. The software then allows map drawers 

to draw district lines over a map of a state. Map drawers can view and work on maps in very fine 

 

17 Dkt. 230-5 (Mann Dep. at 35, 39, 41, 53, 56). 

18 Id. at 53; Dkt. 230–12 (DiRossi Dep. at 136, 138).

19 Dkt. 230-5 (Mann Dep. at 48). 

20 Trial Ex. P109 (DoubleTree Invoice at LWVOH_00018254); Dkt. 230-12 (DiRossi Dep. 

at 144–45). 

21 Dkt. 243 (DiRossi Trial Test. at 212–13). 

22 Dkt. 230-5 (Mann Dep. at 63). 

23 Id. at 33.

24 John Morgan instructed Mann, in person in Columbus, on how to use Maptitude. Id. at 

42, 58.

25 Dkt. 230-12 (DiRossi Dep. at 149). 

26 Dkt. 230-5 (Mann Dep. at 41). 

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detail—down to the census block unit.27 As the map drawer draws or alters lines, the program will 

calculate, recalculate, and display the corresponding demographic and historical election data for 

the newly drawn districts in real time.28 Map drawers can save their draft maps both as visual 

depictions and as data files that contain the assignments of each geographical unit to a particular 

district.29 Maptitude will also export into Excel spreadsheets the political data that corresponds to 

the draft maps. 

As mentioned above, much of the data that the map drawers used had been furnished to 

them through a contract that the Ohio General Assembly entered into with CSU. CSU created and 

provided the Task Force with the Ohio Common Unified Redistricting Database (“Database” or 

“OCURD”).30 The Database included many types of geographic, demographic, and historical 

partisan election data for the State of Ohio, broken down to the split census block level.31 The 

Task Force provided this information to both the Democratic and Republican Caucuses.32 Mark 

Braden, who was retained by the Ohio Attorney General to represent and advise the General 

Assembly during the 2011 redistricting process,33 hired Clark Bensen from the company Polidata 

to do some additional work with the data sets to make the data more workable and to provide 

additional historical election data for the Republican map drawers.34

 

27 Id. at 45–46. 

28 Id. at 42–45. 

29 A block equivalency or block assignment file “is a data set that shows which census 

blocks are assigned to which districts in a redistricting plan” and is “generated by Maptitude.” Id.

at 64. A shape file is another file that Maptitude generates. Id. at 64–65. 

30 Id. at 46. 

31 Dkt. 230-14 (Glassburn Dep. at 71–73). 

32 Id. at 22–24, 38. 

33 Dkt. 230-7 (Braden Dep. at 17). 

34 Dkt. 230-5 (Mann Dep. at 46, 139–41). 

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Mann, DiRossi, and Judy were tasked by the Republican Caucuses with drawing maps that 

were favorable to Republicans. Many Republican leaders indicated their preference for a 12-4 

map.

35

 In order to gauge whether their draft maps would achieve this goal, they used partisan 

indices, created by compiling the historical partisan voting data from certain chosen elections. The

indices were then uploaded into Maptitude so that the map drawers could predict how their draft 

districts would likely perform politically in future elections. 

Various indices were used because individuals involved in the map-drawing process 

preferred different indices. At times they used an index that they created and termed the “Unified 

Index.”36 The Unified Index averaged the results of five races, overall reflecting a partisan 

landscape more favorable to the Democratic Party than an index that would have included a fuller 

set of elections from the decade preceding the redistricting.37 The map drawers also used the “‘08 

McCain Index,” which also reflected a strong Democratic performance.38 The map drawers used 

Maptitude to create spreadsheets by “output[ting] the numbers to show what various indexes, as 

well as other data, were for all the districts.”39 They sometimes created comparison spreadsheets 

 

35 Dkt. 230-3 (Batchelder Dep. at 71) (commenting that “Mann would . . . be looking at 

past election results” because it was “her assignment, to try to come to districts that were 

friendly”); id. at 130–31 (agreeing that “a map that would have given the Democrats a shot at five 

districts wasn’t under consideration”); see also Dkt. 230-46 (Stiver Dep. at 33) (discussing a “12 

to 4 redistricting scenario that [Husted] said we would like”); Trial Ex. P551 (Mar. 22, 2011 email 

at STIVERS_004042); Trial Ex. P407 (Sept. 9, 2011 email chain at LWVOH_00524131) (email

from Whatman to President Niehaus stating that the Republicans were “trying to lock down 12 

Republican seats”). Defendants object to the admissibility of Trial Ex. P407 on hearsay grounds. 

This objection is overruled. The Court finds that this statement falls under the hearsay exception 

for then-existing mental state because it is a “statement of the declarant’s then-existing state of 

mind (such as motive, intent, or plan).” See FED. R. EVID. 803(3). 

36 Dkt. 230-5 (Mann Dep. at 44, 75, 88, 91, 119); Dkt. 230-12 (DiRossi Dep. at 113). 

37 Dkt. 247 (Hood Trial Test. at 222–24). 

38 Trial Ex. P127 (Sept. 12, 2011 email at LWVOH_00018320) (relating partisan scores 

using the “08 Pres” index); Dkt. 230-12 (DiRossi Dep. at 243). 

39 Dkt. 230-5 (Mann Dep. at 122). 

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to allow them to compare the political index scores of different draft maps to one another. 

Individuals involved in the map-drawing process also used the Partisan Voter Index (“PVI”), 

which is used in the well-known Cook Political Report. PVI scores classify districts as either 

Republican leaning (R+) or Democratic leaning (D+). These classifications are accompanied by 

a score quantifying the strength of such a leaning. 

Individuals not involved in the day-to-day map drawing were sometimes shown the draft 

districts’ predicted partisan proclivities as assessed with various indices.40 The map drawers would 

also print out spreadsheets that contained the draft districts’ predicted partisan leanings using 

various indices and share them with Republican Party leaders at redistricting meetings.41 Judy 

regularly checked in on DiRossi and Mann as they worked, received updates, reviewed draft maps, 

and relayed information between Batchelder, DiRossi, and Mann.42 DiRossi and Mann regularly 

reported developments to and received feedback from Speaker Batchelder and President Niehaus. 

They also kept Senator Faber and Republican Chief of Staff in the Ohio State Senate Matt Schuler 

informed as changes were made.

3. National Republican involvement 

National Republican operatives supported the State-level map drawers in their work from 

beginning to end. This collaboration started prior to the map drawing itself, when Ohio Republican 

staffers such as DiRossi, Mann, Judy, Schuler, and Chief Legal Counsel for the Ohio House 

Republican Caucus Michael Lenzo, as well as Representative Huffman attended a redistricting 

 

40 Dkt. 230-3 (Batchelder Dep. at 22–25). 

41 Dkt. 230-5 (Mann Dep. at 84) (“We created a lot of spreadsheets with different data like 

set on population deviations, on absolute population, on indexes, on racial data, on voting data.”); 

id. at 85 (stating that the map drawers’ principals “wanted to know what the districts look like. 

They wanted to know how they changed from the prior redistricting.”). 

42 Id. at 49–51 (stating that Mann was in regular contact with Judy about the maps and that 

she knew that Judy communicated her updates to Speaker Batchelder). 

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conference hosted by the National Conference of State Legislatures (“NCSL”) in Washington, 

D.C.43 Lenzo had also attended a Redistricting and Election Law Seminar hosted by the 

Republican National Committee (“RNC”) in Washington, D.C., in Spring 2010. At these 

meetings, the Ohio Republican staffers made contact with national Republican operatives such as 

Mark Braden, Tom Hofeller, and John Morgan, who later advised them and collaborated with them 

during the map-drawing process. 

At the Spring 2010 seminar, Morgan gave a presentation on map drawing, advising map 

drawers to keep the process secret and to score the maps to determine the likely partisan outcome.44 

In 2011, Morgan conducted a follow-up visit to Ohio, where he presented on map-drawing tactics 

to DiRossi, Mann, and Judy.45 Speaker Batchelder and President Niehaus also attended a 

redistricting meeting in Washington, D.C. in the spring of 2011 with Whatman and Republican 

members of the U.S. congressional delegation.46

At the time of the census and redistricting, Congressman John Boehner of Ohio was the 

Speaker of the United States House of Representatives. Ohio Republicans understood that Speaker 

Boehner would have considerable input in the 2012 map and were committed to enacting a map 

that he supported.47 Batchelder spoke with Boehner about once each month during the creation of 

the 2012 map and met with Boehner twice.48 Boehner employed Tom Whatman as the head of his 

 

43 Id. at 155–56. 

44 Dkt. 230-34 (Morgan Dep. at 132); Trial Ex. P346 (Morgan 2010 Presentation at 

LENZO_0002550–75); Dkt. 230-29 (Lenzo Dep. at 99–106). 

45 Dkt. 230-29 (Lenzo Dep. at 73, 76, 99). 

46 Dkt. 230-52 (Whatman Dep. at 41–42).

47 Dkt. 230-12 (DiRossi Dep. at 271); Dkt. 230-52 (Whatman Dep. at 131); Trial Ex. P584 

(Sept. 11, 2011 “Redistricting ‘tweaks’” email at LWVOH_00018297) (President Niehaus stating 

that he was “still committed to ending up with a map that Speaker Boehner fully supports, with or 

without votes from two members of leadership”). 

48 Dkt. 230-3 (Batchelder Dep. at 27, 46–47). 

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“Team Boehner.” Boehner tasked Whatman with liaising between Republican members of the 

congressional delegation and the Ohio map drawers;

49 Whatman began working on the 

redistricting process at the federal level in December 2010 or January 2011.50 

Whatman employed Adam Kincaid, the Redistricting Coordinator of the National 

Republican Congressional Committee (“NRCC”), to assist in the redistricting efforts. Kincaid 

drafted proposed maps and district lines that incorporated Whatman’s requests and sent them to 

DiRossi and Mann and, on occasion, Braden.51 Kincaid also met repeatedly with members of 

Ohio’s congressional delegation throughout the redistricting process to hear their concerns and 

keep them abreast of developments.52 As the districts were drawn, Kincaid updated Whatman and 

the Republican congressmen about the political leanings of their new districts based on the 

historical election data, producing spreadsheets with partisan index information for the various 

draft districts.53 In the final days of the drafting, state and national Republicans tweaked the map, 

mindful of the partisan consequences of very minor tweaks.54 In some cases, it was clear that 

 

49 Dkt. 230–52 (Whatman Dep. at 29–30). 

50 Id. at 31. 

51 Id. at 30–31; Trial Ex. P128 (Sept. 12, 2011 email at LWVOH_00018322) (Kincaid 

sending last-minute changes in the map design to DiRossi, Mann, and Whatman); Dkt. 230-28 

(Kincaid Dep. at 276–77). 

52 Dkt. 230-28 (Kincaid Dep. at 273–74) (“As the redistricting coordinator in 2010 and 

2011, my job was to facilitate the development of proposed maps with members of Congress, 

specifically in Ohio, so that they would have a proposal that they could bring back to the state 

legislators for their consideration.”); Dkt. 230-27 (Kincaid Dep. at 89–92, 94–97, 103–05). 

53 Dkt. 230-52 (Whatman Dep. at 55–56). 

54 See Trial Ex. P124 (Sept. 10, 2011 email at LWVOH_00018310) (DiRossi implementing 

a last-minute change requested by Senator Faber, including its impact on partisan index scores, 

and stating that “DC is increasingly pushing to put the lid on this”); Trial Ex. P125 (Sept. 11, 2011 

email at LWVOH_0001829) (Whatman apologizing to DiRossi for having to deal with a lastminute “tweak” request from Senators Faber and Widener); Trial Ex. P581 (Sept. 11, 2011 email 

at LWVOH_00018311) (DiRossi informing Whatman of the partisan index impact of 

accommodating Senator Widener’s requested changes to the map and Whatman asking DiRossi if 

there was “some other change you guys wanted to run by me” because he “[g]ot that impression 

from [M]att’s [voicemail]”); Trial Ex. P126 (Sept. 12, 2011 emails at LWVOH_00018298–301) 

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national Republican operatives had the authority to “sign off” on changes before they were 

implemented by the State-level team.55

4. Major features of H.B. 319

Because of the stagnation in Ohio’s population compared to other states, two districts had 

to be eliminated. This meant that if all incumbents were to run for office, at least two sets of 

incumbents would have to be paired. The Republicans decided to pair two Republican 

representatives and two Democratic representatives.56 Whatman made the decision to pair 

Republican Congressmen Turner and Austria; Speaker Boehner approved the pairing.57 Whatman 

also spoke to both Austria and Turner about the decision.58 Speaker Batchelder was not involved 

in the decision to pair those two Republican congressmen.59

 

(updating various map drawers of the impact that changes to the map had on the partisan index 

score of Representative Latta’s district and noting that “a good part of Lucas [County] he is picking 

up is [R]epublican territory”); Trial Ex. P127 (Sept. 12, 2011 email at LWVOH_00018320) 

(DiRossi updating Whatman on the partisan impact of a map change on Representative Stivers’s 

district as measured by two different partisan indices); Trial Ex. P128 (Sept. 12, 2011 email at 

LWVOH_00018322) (Kincaid sending last-minute changes in the map design to DiRossi, Mann, 

and Whatman); Dkt. 243 (DiRossi Trial Test. at 260). 

55 Trial Ex. P126 (Sept. 12, 2011 email at LWVOH_00018298) (Senate President Niehaus 

asking DiRossi: “Did Whatman sign off?” after changes were proposed and DiRossi confirming 

that Whatman signed off on them). Heather Mann testified that Whatman “never needed to 

approve of any maps” that she had drawn because “[h]e wasn’t [her] principal.” Dkt. 230-5 (Mann 

Dep. at 59). However, the email correspondence between the Ohio map drawers reveals that 

although Mann may not have technically been required to secure Whatman’s approval of changes 

to the map, such approval and input was regularly sought, particularly when such changes involved 

hot spots on the map that were especially important to the map’s partisan outcome. See also Trial 

Ex. P581 (Sept. 11, 2011 email at LWVOH_00018311) (Whatman asking DiRossi if there was 

“some other change you guys wanted to run by me”).

56 Speaker Batchelder testified that that decision was made “early on as we negotiated 

between the two caucuses.” Dkt. 246 (Batchelder Trial Test. at 47). 

57 Dkt. 230-52 (Whatman Dep. at 35, 37–39). 

58 Id. at 35–36. 

59 Dkt. 246 (Batchelder Trial Test. at 48–49). 

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As for the Democratic pairing, the map drawers paired Representative Marcy Kaptur of 

former District 9 and Representative Dennis Kucinich of former District 10; Kaptur won the 

Democratic primary that ensued. Kaptur testified that she did not want to be paired with 

Kucinich,60 but she was not consulted by the Republican map drawers on the matter.61 She saw 

the map embodied in H.B. 319 for the first time in media reports around the time of the bill’s 

introduction. Kaptur was “astonish[ed],” upset, and offended by the map, which she understood 

to break up communities of interest and involve unnatural groupings of communities with 

diverging interests.62 

The map drawers also paired Republican Representative Jim Renacci of the former District 

16 and Democratic Representative Betty Sutton of the former District 13 to run against each other 

 

60 Dkt. 249 (Kaptur Trial Test. at 76). DiRossi testified that Representatives Kucinich and 

Kaptur were paired because “[t]here was a lot of—a lot of conversations that were happening, but 

it was very clear that the Democrats wanted Dennis Kucinich to be the one that was out . . . I was 

getting feedback from a number of mechanisms, a number of people that were having 

conversations with the Democrats or with other party leaders. . . . I was talking to a number of 

people. I was talking to Bob Bennett, the former chairman of the Ohio Republican Party, who had 

been the chairman twice and had some incredible relationships with former Democratic chairs and 

also some of the county chairs and individual members.” Dkt. 243 (DiRossi Trial Test. at 159–

60). DiRossi stated that Bob Bennett “then discuss[ed] these things with [him] personally” and 

“Bennett’s conversations that he was relaying to [DiRossi] impact[ed] how [DiRossi] drew the

lines.” Id. at 160. Plaintiffs object to DiRossi’s testimony regarding out-of-court statements, but 

the Court considers those statements only for the effect DiRossi claims they had on his mapdrawing decisions and not for the purported truth of the assertions (i.e., which incumbents 

Democrats actually wanted paired). 

61 Dkt. 249 (Kaptur Trial Test. at 69–70). Kincaid, however, testified that “Ms. Kaptur and 

Mr. Kucinich who had been drawn together in a district were interested in the makeup of their 

parts of those districts, specifically the DMA’s which are the designated market areas of Toledo 

and Cleveland and how much of each was inside their districts—their district.” Dkt. 230-27 

(Kincaid Dep. at 99). He testified that this information came from Congressman LaTourette’s 

communications with Democratic representatives during the map-drawing process. Id. at 98. 

Again, the Court considers Kincaid’s testimony only for the effect that Congresswoman Kaptur’s 

and Congressman Kucinich’s out-of-court statements had on the map drawers and not for the 

purported truth of the assertions.

62 Dkt. 249 (Kaptur Trial Test. at 70–71). 

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in the new District 16. DiRossi testified that the third pairing was necessitated by: drawing District 

11 to include portions of Akron, population loss in Northeast Ohio, “two congresspeople who were 

living very close together,” and the creation of the new District 3 in Franklin County.63

The map drawers drew District 11 to include some portions of the City of Cleveland in 

Cuyahoga County and a thin strip dropping southward into Summit County where it incorporated 

sections of the City of Akron. Representative Marcia Fudge, who had represented District 11 

under the previous map prior to the 2011 redistricting, was not consulted by Republican map 

drawers and did not learn of District 11’s new boundaries until around the time that H.B. 319 was 

introduced in the legislature.64 She was displeased with the new shape of the district, particularly 

the extension of the district into Summit County and Akron, areas with which she was not familiar 

and that she had not previously represented.65 District 11 had historically been a majority-minority 

district that elected African-American congressional representatives by large margins. Some map 

drawers expressed that it “was a consideration for us in a proposed map to make sure it remained 

a majority-minority district.”66

 

63 Dkt. 243 (DiRossi Trial Test. at 176–77). 

64 Dkt. 239 (Fudge Trial Test. at 83) (testifying that she “didn’t have a role” in the 2011 

redistricting). Kincaid testified, however, that “I know Congresswoman Fudge was interested in 

the precincts and communities that were included in her district . . . . Ms. Fudge wanted a district 

that ran from Cleveland to Akron.” Dkt. 230-27 (Kincaid Dep. at 99). Kincaid testified that his 

“understanding [was] that [Fudge’s desire for such a district] was communicated multiple ways 

through multiple avenues” both “to the state legislature as well as to Mr. LaTourette.” Id. at 100. 

He went on: “I recall that she probably stated she was thrilled by the district that was passed out 

of the Ohio legislature. She may not have used the word thrilled but that she was pleased with the 

district that she was drawn into.” Id. at 100–01. Plaintiffs object to this testimony of the ground 

that it is inadmissible hearsay. Defendants contend that it is only being offered as evidence of 

Kincaid’s understanding and belief. The Court sustains Plaintiffs’ objection and finds that this 

testimony is being offered for the truth—to prove that Congresswoman Fudge was pleased with 

the district—and therefore is inadmissible hearsay. See FED. R. EVID. 801(c)(2). 

65 Dkt. 239 (Fudge Trial Test. at 84–85). 

66 Dkt. 230-52 (Whatman Dep. at 62); see also Trial Ex. P394 (discussing BVAP goals for 

District 11). 

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The map drawers created a new district, District 3, in Franklin County, where the City of 

Columbus is located. Columbus had been experiencing population growth while metropolitan 

areas in northern Ohio had been losing population.67 It is an urban center that is the home of The 

Ohio State University, and it contains many Democratic voters. Whatman and Kincaid had the 

idea to create the new District 3 in Columbus that would concentrate many of Columbus’s 

Democratic voters into one district.68 One spreadsheet sent among those involved in the mapdrawing process referred to the new District 3 as the “Franklin County Sinkhole,” but it is unclear 

who exactly included that term.

69

 The draft map creating the new District 3 allowed for safe 

quantities of Columbus’s Democratic voter bloc to be absorbed by the neighboring Districts 12 

and 15 such that those districts could maintain or achieve safe Republican majorities.70 

 

67 Trial Ex. P090 (Cooper Decl. at 7, fig. 2). 

68 Dkt. 230-52 (Whatman Dep. at 51); Dkt. 230-28 (Kincaid Dep. at 333–37). 

69 Dkt. 230-28 (Kincaid Dep. at 121–22); id. at 420; Trial Ex. P077 (Ohio Changes 

Spreadsheet at BRADEN001387) (bearing the legend “Franklin County Sinkhole”). Defendants 

object to the admissibility of Trial Ex. P077 on authentication, foundation, and hearsay grounds. 

Each objection is overruled. First, the exhibit was produced by Braden in response to Plaintiffs’ 

document subpoena, so it is presumptively authentic. Second, Plaintiffs have properly 

demonstrated foundation as Kincaid testified that he was the author of the spreadsheet and 

explained the spreadsheet in detail. Dkt. 230-27 (Kincaid Dep. at 153); see also Dkt. 230-28 

(Kincaid Dep. at 363) (testifying that he “would have created the original version” of the 

spreadsheet, but he was unsure whether he had written the header reading “Franklin County 

Sinkhole”). Metadata further confirms that Kincaid was the last person to modify Trial Ex. P077. 

Third, the Court finds that Plaintiffs cite this document to demonstrate the map drawers’ partisan 

intent, not for the truth that Franklin County was a “sinkhole.” See FED. R. EVID. 801(c)(2).

Kincaid sent the spreadsheet to DiRossi, Mann, and Whatman on September 2, 2011. Dkt. 

230-28 (Kincaid Dep. at 366–67); Trial Ex. P119 (at LWVOH_00018302). Mann forwarded the 

spreadsheet to Braden and Bensen on September 3, 2011. Trial Ex. P119 (at LWVOH_00018308). 

On September 6, 2011, Braden sent the spreadsheet to Hofeller in an email that stated: “please 

keep this secret but would like your and Dale’s views.” Trial Ex. P393 at REV_00023176–79. 

Dale Oldham worked as the redistricting counsel for the RNC. Dkt. 230-27 (Kincaid Dep. at 55). 

Kincaid testified that he had a memory of the term “Franklin County Sinkhole” “being used 

in a conversation with Mr. Whatman” prior to the introduction of H.B. 319, but he did not recall 

who was present or who used the phrase. Dkt. 230-28 (Kincaid Dep. at 370–71). 

70 Trial Ex. P499 (Ohio Changes Spreadsheet at REV_00023431) (reflecting a changed 

PVI score in District 12 from D+1 to R+8); Dkt. 230-28 (Kincaid Dep. at 353–54).

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State-level and national Republican operatives emailed back and forth sharing and 

consulting on plans for this new district. Kincaid created a proposed map that included such a 

district, which scored as D+15 using his PVI metric, and shared the draft map with DiRossi and 

Mann.71 Braden asked Hofeller to consult on one draft of the map created by Kincaid, including 

the new district. Hofeller approved it after removing from District 15 some territory that Kincaid 

had allocated to it. Hofeller noted that this “‘downtown’ area” was “‘dog meat’ voting territory” 

and “awful” in explaining why it should not be included in the Republican-assigned District 15.72 

Kincaid followed up with minor tweaks of the Columbus area division, but the general contours, 

as tweaked by Hofeller, remained the same. The 2012 map, which placed downtown Columbus 

in District 3, uses irregular lines to divide Franklin County and Columbus into three districts—3, 

12, and 15. In every election under the 2012 map, the Democratic candidate has won District 3 

while Districts 12 and 15 have elected Republican representatives.73 

 

71 Trial Ex. P313 (Ohio Changes Spreadsheet at NRCC000012) (listing the newly created 

district termed “10-open” with a PVI of D+15); Dkt. 230-27 (Kincaid Dep. at 135–36); id. at 145; 

Trial Ex. P119 (Sept. 3, 2011 email at LWOV_00018302).

72 Trial Ex. P394 (Sept. 8, 2011 email at REV_00023234). Defendants object to Trial Ex. 

P394 as containing inadmissible hearsay. This objection is overruled. The Court finds that 

Plaintiffs have offered this document to show the map drawers’ state of mind and partisan intent, 

not for the truth that these territories were “dog meat.” See FED. R. EVID. 801(c)(2). 

73 OHIO SEC’Y OF STATE, 2012 ELECTION RESULTS, 

https://www.sos.state.oh.us/elections/election-results-and-data/2012-elections-results/

(Democratic Representative Beatty winning District 3 with 68.29% of the vote and Republican 

Representatives Tiberi and Stivers winning Districts 12 and 15 with 63.47% and 61.56% of the 

vote, respectively); OHIO SEC’Y OF STATE, 2014 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2014-elections-results/

(Democratic Representative Beatty winning District 3 with 64.06% of the vote and Republican 

Representatives Tiberi and Stivers winning Districts 12 and 15 with 68.11% and 66.02% of the 

vote, respectively); OHIO SEC’Y OF STATE, 2016 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2016-official-elections-results/

(Democratic Representative Beatty winning District 3 with 68.57% of the vote and Republican 

Representatives Tiberi and Stivers winning Districts 12 and 15 with 66.55% and 66.16% of the 

vote, respectively); OHIO SEC’Y OF STATE, 2018 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2018-official-elections-results/

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For a time, the Republicans considered drawing a map that would include “13 ‘safe’ seats” 

for their party rather than twelve.

74

 In order to accomplish this, Franklin County and the City of 

Columbus would be split into four different districts rather than the three they were split into under 

the 2012 map.75 Kincaid developed such a map and calculated the PVI scores of the resulting 

districts. Although such a map could have secured the election of thirteen Republican 

representatives, the map drawers believed that the margins of victory would have been tighter, as 

evidenced by lower R+ PVI scores.76 The Republicans eventually opted for the map that promised 

one less Republican seat, but in which those twelve Republican seats were safer. 

The map drawers sometimes rejected specific requests from Republican members of the 

Ohio General Assembly, instead prioritizing maintaining the partisan balance of the draft map. 

For example, State Senator Christopher Widener requested that the map keep Clark County 

 

(Democratic Representative Beatty winning District 3 with 73.61% of the vote and Republican 

Representatives Balderson and Stivers winning Districts 12 and 15 with 51.42% and 58.33% of 

the vote, respectively). The Court takes judicial notice of all the 2012-2018 election results. FED.

R. EVID. 201.

74 Trial Ex. P385 (Congressional Redistricting Talking Points at LWVOH_0052438) 

(“Given the fact that the overall index for the State of Ohio is 49.5% on a measure of five recent 

races, it is a tall order to draw 13 ‘safe’ seats. Speaker’s [sic] Boehner’s team worked on several 

concepts but this map is the one they felt put the most number of seats in the safety zone.”). 

75 Dkt. 230-28 (Kincaid Dep. at 421). 

76 Trial Ex. P078 (PVI Scores for the “4-Way Split as of September 6” map at 

OHCF0001438). Defendants object to the admissibility of Trial Ex. P078 on authentication, 

foundation, and hearsay grounds. Each objection is overruled. First, the exhibit was produced by

Braden in response to Plaintiffs’ document subpoena, so it is presumptively authentic. Second, 

Plaintiffs have properly demonstrated foundation as Kincaid testified that he likely authored the 

spreadsheet and explained the spreadsheet, including the meaning of “4-Way Split[,]” in detail. 

Dkt. 230-28 (Kincaid Dep. at 381–82). Third, the Court finds that to the extent this evidence is 

offered to prove the intent and beliefs of the map drawers, it is not offered for the truth of the PVI 

scores. See FED.R. EVID. 801(c)(2). To the extent that it is offered to prove the truth of the partisan 

leanings of the contemplated districts created by the four-way split, it is admissible as the 

admission of the agent of a party-opponent. See FED. R. EVID. 801(d)(2)(D). 

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whole.77 DiRossi and the other map drawers rejected Widener’s request in part because unifying 

Clark County would have negative consequences for the partisan scores of District 15—making 

the Republican seat there less secure.78

The resulting map featured twelve districts likely to elect a Republican representative 

(Districts 1, 2, 4, 5, 6, 7, 8, 10, 12, 14, 15, and 16) and four districts likely to elect a Democratic 

Representative (Districts 3, 9, 11, and 13).

5. Secrecy surrounding the map

The Republican map drawers did not share plans for the map with either the public or

Democratic legislators or staffers prior to introducing it in the Ohio House of Representatives.79 

Although the State Senate’s and State House’s committees on redistricting, chaired by Senator 

Faber and Representative Huffman, respectively, held five public hearings in different locations 

across Ohio in July and August of 2011 while the maps were being drafted, their members did not 

share drafts of the maps or political indices at the hearings.80 The Republican map drawers shared 

the map with Representative Armond Budish, the Democratic Minority Leader in the Ohio State 

 

77 Dkt. 243 (DiRossi Trial Test. at 246); Trial Ex. P581 (Sept. 11, 2011 email at 

LWVOH_00018311) (discussing the partisan consequences of Senator Widener’s request); Dkt. 

243 (DiRossi Trial Test. at 244–45). 

78 Trial Ex. P581 (Sept. 11, 2011 email at LWVOH_00018311); Dkt. 243 (DiRossi Trial 

Test. at 247–48).

79 Kincaid, however, testified that Republican Congressman LaTourette “would meet with 

Democrat members of the Ohio [congressional] delegation and get their input on the Ohio 

congressional map and would communicate information back to them as well.” Dkt. 230-27 

(Kincaid Dep. at 98). Kincaid’s testimony is unclear as to when Congressman LaTourette’s 

discussions with Democratic members of Congress occurred. Congresswoman Fudge testified that 

she spoke to Congressman LaTourette about the shape of her district after the introduction of H.B. 

319 in the General Assembly. Dkt. 239 (Fudge Trial Test. at 100). Moreover, to the extent it is 

offered for the truth of what any particular Democrat wanted in the redistricting, it is based on 

hearsay. 

80 Dkt. 230-19 (Huffman Dep. at 33–34, 45–46); Dkt. 230-5 (Mann Dep. at 159–60). 

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House of Representatives, only just immediately before the bill was introduced.81 The map 

drawers even declined to share information with other Republican members of the Ohio General 

Assembly prior to the formal introduction of the bill. For example, State Senator Faber saw the 

map just shortly before its introduction as a bill.82

6. Passage of H.B. 319

The Ohio Republicans first introduced a 2012 redistricting map in the form of H.B. 319 on

September 13, 2011 in the House State Government and Elections Committee. The Committee 

referred the bill to the House, and it was debated on the floor of the House on September 15, 

2011.83 Representative Huffman, the sponsor of the bill, spoke on the House floor about the mapdrawing process and the factors that the map drawers had considered in drawing the new district 

lines.84 Democratic Minority Leader Budish spoke on the floor of the House, criticizing the 

secrecy of the map-drawing process and the Republicans’ failure to take outside input into 

account.85 House Democrats also complained that the bill was being rushed through the General 

Assembly and that the accelerated timeframe for its passage prevented serious scrutiny and 

critique.86 The bill passed in the House of Representatives that same day by a vote of fifty-six to 

thirty-six.

87

 

 

81 Dkt. 230-3 (Batchelder Dep. at 57); Dkt. 230-5 (Mann Dep. at 57). 

82 Dkt. 230-13 (Faber Dep. at 57–58) (recalling seeing “the map for the first time at the 

same time that everyone else did” and “right before the weekend before we were going to vote it 

on the floor”); id. at 175 (“We were given at the last minute a map that we were being asked to 

support . . . You know, we haven’t had any input in this process per se.”).

83 Dkt. 234 (Final Pretrial Order at App. A., 2) (Joint Uncontroverted Facts).

84 See Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 13–23) (statement of Rep. 

Huffman); Dkt. 230-5 (Mann Dep. at 160–61).

85 Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 67–68) (statement of Rep. Budish). 

86 Id. at 38–39 (statement of Rep. Gerberry); id. at 46 (statement of Rep. Letson). 

87 Trial Ex. J07 (Ohio House of Representatives Journal, Sept. 15, 2011 at 12–13). 

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On September 19, 2011, H.B. 319 was introduced in the Ohio State Senate. The Senate 

Committee on Government Oversight and Reform, chaired by Senator Faber, then held hearings 

on the bill.88 The Committee amended the bill to include a $2.75 million appropriation for local 

boards of elections in an attempt to make the bill immediately effective and shield it from a voter 

referendum.89 The Committee referred the amended bill to the Ohio Senate.90 On the floor of the 

Senate, some Democratic State Senators, including Senator Nina Turner, a member of the Black 

Caucus, opposed the bill and argued that it “lays out 12 Republican districts and four Democratic 

districts.”91 The bill passed in the Senate by a vote of twenty-four to seven on the same day it was 

referred. The amended H.B. 319 then returned to the House of Representatives where it passed by 

a vote of sixty to thirty-five.

92

 It was signed into law on September 26, 2011, by Republican 

Governor John Kasich.

7. Referendum and negotiations 

Despite the appropriation amendment intended to insulate the map from a voter 

referendum, Ohio voters sought to mount such a referendum. A group of Ohio voters filed a 

petition for a writ of mandamus with the Supreme Court of Ohio. They sought an order declaring 

that H.B. 319 could indeed be subjected to a voter referendum. State ex rel. Ohioans for Fair 

Dists. v. Husted, 957 N.E.2d 277 (Ohio 2011). The Ohio Supreme Court granted the writ of 

mandamus on October 14, 2011; voters could seek a referendum and the bill could not immediately 

 

88 Trial Ex. J28 (Senate Government Oversight and Reform Committee File at 1, 4).

89 Trial Ex. J28 (Senate Government Oversight and Reform Committee File at 2); Trial Ex. 

J03 (Ohio Senate Session, Sept. 21, 2011 at 30–31) (statement of Sen. Faber). 

90 Dkt. 234 (Final Pretrial Order at App. A., 2) (Joint Uncontroverted Facts). 

91 Trial Ex. J03 (Ohio Senate Session, Sept. 21, 2011 at 32–33) (statement of Sen. Brown); 

id. at 53 (statement of Sen. Turner); Dkt. 240 (Turner Trial Test. at 9, 16–17).

92 Dkt. 234 (Final Pretrial Order at App. A., 2) (Joint Uncontroverted Facts). 

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go into effect. Id. In order to put the referendum on the ballot, Ohio voters would have to gather 

the signatures of 6% of state electors in slightly over two months.93 

This also meant that H.B. 319 would not take effect until December 25, 2011, after the 

December 7, 2011 candidate filing deadline set for the March 2012 primaries.94 In response, 

Republican legislators passed H.B. 318, which split the Ohio primaries. The local, state, and U.S. 

Senate primaries would still occur in March 2012, but the U.S. presidential and U.S. House of 

Representatives primaries were pushed back to June 2012.95 This split primary would cost the 

State of Ohio $15 million.96

In the shadow of the possible referendum and split primaries, Ohio Republican and 

Democratic legislators attempted to negotiate some alterations to H.B. 319 that could be enacted 

as a new bill—H.B. 369.97 This openness to feedback from the Democrats had not been present 

in the drawing of H.B. 319.98 Some Republican map drawers testified that Bob Bennett, the 

chairman of the Ohio Republican Party and a member of the RNC,99 served as a go-between for

 

93 Dkt. 234 (Final Pretrial Order at App. A., 3) (Joint Uncontroverted Facts).

94 See OHIO REV. CODE § 3513.05; Trial Ex. J03 (Ohio Senate Session, Sept. 21, 2011 at 

15–16) (statement of Sen. Faber). 

95 Dkt. 246 (Judy Trial Test. at 72–73); Trial Ex. J06 (Ohio House Session, Dec. 14, 2011 

at 5) (statement of Rep. Huffman); Trial Ex. J05 (Ohio Senate Session, Dec. 14, 2011 at 7). 

96 Trial Ex. J04 (Ohio House Session, Nov. 3, 2011 at 9–10) (statement of Rep. Huffman); 

Trial Ex. J22 (Rep. Huffman Sponsor Test. at 001). 

97 Dkt. 230-3 (Batchelder Dep. at 120–21) (acknowledging that “negotiations began around 

mid to late October” and that “the referendum might have played some role in the negotiation 

about the second map”); Dkt. 246 (Judy Trial Test. at 78, 82) (“There were negotiations leading 

up to 369. This is after 319 was passed, and, due to the referendum, the confusion . . . and the 

chaos and pressure that came out of the signature collections, negotiations began.”); Dkt. 230-31 

(McCarthy Dep. at 74) (“[T]here was a threat of a citizen’s referendum on 319 and that—that was 

the primary reason [for H.B. 369].”); id. at 75–77.

98 Dkt. 230-12 (DiRossi Dep. at 185) (stating that the Democratic feedback was “inherent 

in 369” because “the legislative Democrats approached the leadership and said this is what it’s 

going to take for us to provide votes to approve this map, and so that was all post 319 and 369”). 

99 Dkt. 230-52 (Whatman Dep. at 40) (identifying Bob Bennett’s roles). 

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the Republicans and Democrats during this period, communicating Democratic requests to the 

Republican map drawers.100 The Republicans, although making small concessions and alterations 

to their original map to cater to Democratic desires,101 refused to make changes that would alter 

the likely partisan outcome of the map.102 Speaker Batchelder commented that the Democratic 

legislators’ “theory was somehow or another that they could overcome a majority of people who 

were in the other party, and I don’t know how that would have happened.”103

DiRossi, Mann, and Judy worked with Maptitude at their office at the Ohio House of 

Representatives to draw minor changes into the redistricting map in the period between the passage 

of H.B. 319 and H.B. 369.104 For example, DiRossi testified that he made changes based on his 

belief that Representative Kaptur and others had requested that additional territory in Lucas County 

and Toledo be added and territory in Cleveland be removed from District 9 so that Kaptur would 

have a better chance of defeating Kucinich.105 The changes also included the unification of Clark 

County.106

 

100 Dkt. 230-12 (DiRossi Dep. at 184). DiRossi testified that he himself did not “have 

conversations directly with anyone who could be termed a Democrat” during that period. Id. 

Rather, he “was getting that information from other people.” Id. He further stated that Bob Bennett 

“was an intermediary to Democrats and Republicans all over the state.” Id. at 189. 

101 Dkt. 246 (Judy Trial Test. at 78–79) (stating that Democratic members of the Ohio 

House of Representatives had “a small list of changes that they wanted to see” that were “given to 

the staffer or consultants that we hired on our side to incorporate in”). 

102 Dkt. 230-3 (Batchelder Dep. at 130–31); Dkt. 230-14 (Glassburn Dep. at 203–04); Dkt. 

230-41 (Routt Dep. at 193–95). 

103 Dkt. 230-3 (Batchelder Dep. at 115–16). 

104 Dkt. 230-5 (Mann Dep. at 48–49, 92). 

105 Dkt. 243 (DiRossi Trial Test. at 162). DiRossi testified that Bennett (who has since 

died), Niehaus, and Batchelder all informed him that such changes had to be made between the 

two iterations of the map. Id. at 162–63. 

106 Dkt. 243 (DiRossi Trial Test. at 246). Even though Clark County was unified in the 

new map, the map drawers believed that they were able to do so while maintaining District 15’s 

strong pro-Republican lean. Kincaid believed H.B. 369’s PVI to be R+6. Trial Ex. P498 (H.B. 

369 Partisan Data Spreadsheet at REV_00023430). He believed H.B. 319’s PVI to be R+7. Trial

Ex. P590 (Ohio Changes Spreadsheet). 

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On November 3, 2011 Representative Huffman introduced the new Republican 

redistricting bill, H.B. 369, in the House Rules and Reference Committee; he gave sponsor 

testimony in the committee on November 9. H.B. 369 would eliminate the newly split primary.107 

Republican State Representative Lou Blessing sought to push H.B. 369 through the General 

Assembly by suspending the normal rules mandating that bills be considered by each legislative 

house on three separate days.108 Representative Blessing did not have sufficient votes to achieve 

this result.109 Around this time it became clear that the Ohio voter referendum challenging H.B. 

319 would not be successful; the required votes would not be collected in time. This meant that 

Democrats had a weaker bargaining position in their efforts to convince Republicans to make 

further changes to H.B. 369. 

8. Passage of H.B. 369

On December 14, 2011, both the Ohio House of Representatives and the Ohio Senate 

passed an amended version of H.B. 369, over vigorous opposition from some Democrats.110 The 

bill passed in the House by a margin of seventy-seven to seventeen (including twenty-one 

Democratic votes in favor) and in the Senate by a margin of twenty-seven to six (including four 

Democratic votes in favor).

111

 Not only was the amended H.B. 369 nearly identical in terms of 

partisan leanings to H.B. 369 as it was first introduced,

112 but it was also highly similar to H.B. 

 

107 Dkt. 234 (Final Pretrial Order at App. A., 3) (Joint Uncontroverted Facts). 

108 Trial Ex. J04 (Ohio House Session, Nov. 3, 2011 at 9) (statement of Rep. Blessing). 

109 Id.

110 See, e.g., Trial Ex. J06 (Ohio House Session, Dec. 14, 2011 at 22–24) (statement of 

Rep. Ramos); id. at 28–29 (statement of Rep. Foley); id. at 33–35 (statement of Rep. Lundy); id.

at 36–38 (statement of Rep. O’Brien). 

111 Dkt. 234 (Final Pretrial Order at App. A., 3) (Joint Uncontroverted Facts). 

112 Trial Ex. P042 (Comparison Spreadsheet); Dkt. 230-5 (Mann Dep. at 91–92); Dkt. 246 

(Judy Trial Test. at 83) (stating that the H.B. 369 as introduced and as passed “look substantially 

similar”). Representative Huffman stated: “This House Bill 369 retains the map that was presented 

to the Rules Committee six weeks ago, with one very minor change.” Trial Ex. J06 (Ohio House 

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319, the first redistricting plan that the General Assembly had passed.113 It was signed into law by 

Governor Kasich the following day. Because the partisan metrics of the map did not change, the 

new congressional districting map passed as H.B. 369 was just as likely as H.B. 319 to result in 

the election of twelve Republican representatives and four Democratic representatives. 

Following the passage of H.B. 369, Kincaid created a spreadsheet that documented his 

analysis of the partisan outcomes of the newly enacted map.114 The spreadsheet featured four D+ 

districts, with their numerical scores ranging from D+12 to D+29. It also featured twelve R+ 

districts, with all but one of their numerical scores ranging from R+2 to R+9, and the outlier 

measuring at R+14.115 Kincaid prepared a presentation in which he showed how the redistricting 

efforts had shored up Republican support in three previously competitive districts—Districts 1, 

12, and 15, rendering them safe for Republican Representatives Chabot, Tiberi, and Stivers, 

thereby taking them “out of play.”116 By Kincaid’s calculations, District 1 had moved seven PVI 

points in favor of Republicans by including Warren County and removing portions of Democratic 

Hamilton County. District 12 had moved nine PVI points in favor of Republicans because portions 

 

Session, Dec. 14, 2011 at 5) (statement of Rep. Huffman). The “very minor change” appears to 

have been the accommodation of a request from the Democratic leadership in the Ohio House to 

draw former Democratic Representative Mary Jo Kilroy out of District 3 while not decreasing the 

African-American voting population of that district. Dkt. 230-5 (Mann Dep. at 171–72). 

113 Dkt. 230-26 (Judy Dep. at 178). 

114 Trial Ex. P498 (H.B. 369 Partisan Data Spreadsheet); Dkt. 230-28 (Kincaid Dep. at 

468–69). Defendants object to the admissibility of Trial Ex. P498 as containing inadmissible 

hearsay. This objection is overruled. The Court finds that the document is offered to demonstrate 

the intent, mindset, and belief of the map drawers and not being offered for the truth of the matter 

asserted—that these changes in PVI had occurred or that the districts were actually taken “out of 

play.” 

115 Trial Ex. P498 (H.B. 369 Partisan Data Spreadsheet). 

116 Trial Ex. P310 (NRCC Presentation at 5); Dkt. 230-27 (Kincaid Dep. at 115–16). 

Defendants object to the admission of Trial Ex. P310 on hearsay grounds. This objection is 

overruled. The Court finds that the document is admissible to prove Kincaid’s intent, belief, and 

state of mind, not for the truth of the matter asserted—that the districts had actually been taken out 

of play. See FED. R. EVID. 801(c)(2). 

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of Democratic Columbus had been removed from the district and into District 3. Similarly, District 

15 had moved seven PVI points in favor of Republicans, as the new District 3 now also contained 

many of District 15’s former Democratic constituents. Kincaid’s presentation also noted that 

Districts 6 and 16 were “Competitive R Seats Improved” because their PVI scores had become 

more pronouncedly pro-Republican as a result of the redistricting, District 6 by three points and 

District 16 by one point.117 Kincaid continued to praise the results of his map-drawing 

collaboration with the Ohio Republicans, representing that the “new [Ohio] map should be a 12-4 

map,” that it “eliminat[ed] Ms. Sutton’s seat,” and that it “created a new Democrat seat in Franklin 

County.”118 He stated elsewhere that the Ohio “Republican map shored up multiple seats for the 

decade.”119 

U.S. Representative Stivers’s communications with his staff reflected his similar belief that 

various previously competitive districts had been made solidly Republican as a result of the 

redistricting. For example, he stated that “[t]he redistricting in Ohio did shore up some of the tossup districts” based on the changes in the PVI scores for Districts 1, 6, and 15.120

 He acknowledged 

that U.S. Representative Chabot of District 1 “probably won’t have a close race for the next 

decade” based on the changes the redistricting wrought on that district’s PVI score and the fact 

that his district contained many more Republican voters following the redistricting.121

 

117 Trial Ex. P310 (NRCC Presentation at 6). 

118 Trial Ex. P414 (State-by-State Redistricting Summary at REV_00000001); Dkt. 230-28 

(Kincaid Dep. at 519). Defendants object to the admission of Trial Ex. P414 on hearsay grounds. 

This objection is overruled. The Court finds that the document is admissible to prove Kincaid’s 

intent and state of mind. See FED. R. EVID. 801(c)(2). 

119 Dkt. 230-28 (Kincaid Dep. at 512–13). 

120 Trial Ex. P556 (Stivers Email at STIVERS_007519); Dkt. 230-46 (Stivers Dep. at 77–

78). 

121 Trial Ex. P556 (Stivers Email at STIVERS_007519–20). 

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9. Congressional elections under the 2012 Map

As predicted by Kincaid, the same four Ohio congressional districts (Districts 3, 9, 11, and 

13) have elected Democratic representatives, and the same twelve districts (Districts 1, 2, 4, 5, 6, 

7, 8, 10, 12, 14, 15, and 16) have elected Republican representatives in every election since the 

enactment of the 2012 map.

B. Procedural History

Plaintiffs include seventeen individual Ohio residents, who collectively reside and vote in 

each of Ohio’s sixteen congressional districts, and five organizations based in Ohio. The 

individual Plaintiffs are: Linda Goldenhar, Douglas Burks, Sarah Inskeep, Cynthia Libster, 

Kathryn Deitsch, LuAnn Boothe, Mark John Griffiths, Lawrence Nadler, Chitra Walker, Tristan 

Rader, Ria Megnin, Andrew Harris, Aaron Dagres, Elizabeth Myer, Beth Hutton, Teresa 

Thobaben, and Constance Rubin. The organizational Plaintiffs, which include nonpartisan groups 

as well as groups affiliated with the Democratic Party, are: the Ohio A. Philip Randolph Institute 

(“APRI”), the League of Women Voters of Ohio (“The League”), The Ohio State University 

College Democrats (“OSU College Democrats”), the Northeast Ohio Young Black Democrats 

(“NEOYBD”), and the Hamilton County Young Democrats (“HCYD”). 

Defendants are State Representative Larry Householder, Speaker of the Ohio House of 

Representatives; State Senator Larry Obhof, President of the Ohio State Senate; and Ohio’s 

Secretary of State, Frank LaRose. All Defendants are sued in their official capacities. 

Plaintiffs filed this lawsuit on May 23, 2018. Dkt. 1 (First Compl.). This three-judge panel 

was then convened pursuant to 28 U.S.C. § 2284. See Dkt. 28. Plaintiffs twice amended their 

complaint and, as relevant here, filed their second amended complaint on July 11, 2018, seeking 

declaratory and injunctive relief and the enactment of a new congressional districting plan. See

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Dkt. 37 (Second Am. Compl. at 50–52). On August 15, 2018, we denied Defendants’ motion to 

dismiss. See Ohio A. Philip Randolph Inst. v. Smith, 335 F. Supp. 3d 988 (S.D. Ohio 2018). After 

that, we granted the Intervenors’ motion to intervene, and they joined the litigation. See Dkt. 64.122

The case then proceeded through discovery, and on January 8, 2019, Defendants moved 

for summary judgment. See Dkt. 136 (Mot. for Summ. J.); Dkt. 140, 140-1 (Intervenors’ Suppl. 

Mot. for Summ. J. & Mem.). After a round of briefing, we denied the motion for summary 

judgment. See Ohio A. Philip Randolph Inst. v. Householder, --- F. Supp. 3d ---, 2019 WL 652980 

(S.D. Ohio Feb. 15, 2019).123 Trial commenced on March 4, 2019 and lasted eight days, 

concluding on March 13.124

Since the trial, the parties have filed post-trial briefs with proposed conclusions of law, and 

separately, proposed findings of fact. The parties have also finalized their objections to the other 

side’s evidence, responded to each other’s objections, and submitted additional briefs on those 

objections.125 This briefing schedule concluded on April 7, 2019. 

 

122 The Intervenors are the Republican Congressmen from Ohio, the Republican Party of 

Cuyahoga County, the Franklin County Republican Party, and four individuals. The four 

individuals are Robert Bodi, Roy Palmer III, Charles Drake, and Nathan Aichele, who live in 

District 16, District 9, District 11, and District 3, respectively. None of the Intervenors testified 

live at trial. Only Representatives Chabot, Johnson, Jordan, and Stivers testified via deposition. 

See Dkt. 234 (Final Pretrial Order at App. P.). For the purposes of this opinion, we generally refer 

to Defendants and Intervenors collectively as “Defendants,” reflecting their collaborative efforts 

in litigating the case. 

123 Representative Householder became the Speaker of the Ohio House of Representatives 

on January 7, 2019, and Mr. LaRose became Ohio’s Secretary of State on January 12, 2019. 

Householder was substituted for Ryan Smith as a Defendant, and LaRose was substituted for Jon 

Husted as a Defendant. See FED. R. CIV. P. 25(d); see also Dkt. 218.

124 The parties offer some of their witnesses’ testimony via their depositions. See Dkt. 234 

(Final Pretrial Order at 7, Apps. O. & P.).

125 The parties raised hundreds of objections to evidence in this case. The Court has 

considered objections lodged against any piece of evidence ultimately cited in this opinion. To 

the extent the Court relies on any piece of evidence, objections against the same are 

OVERRULED. The Court offers a more detailed explanation for several particular evidentiary 

rulings throughout the opinion.

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II. SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

A. Plaintiffs’ Fact Witnesses 

1. Individual Plaintiffs

Individual Plaintiffs Douglas Burks, Mark Griffiths, Aaron Dagres, and Elizabeth Myer 

testified at trial. They live in District 2, District 7, District 12, and District 13, respectively. The 

remainder of the individual Plaintiffs, who reside in the rest of the congressional districts, testified 

via deposition. All individual Plaintiffs testified to their affiliation with the Democratic Party 

and/or that they consistently vote for Democratic candidates. See infra Sections III.A.1.–16. In 

addition to being Democratic voters, the individual Plaintiffs are politically active in supporting, 

volunteering for, and working for Democratic candidates and causes.126 Collectively, they have 

engaged in a variety of activities, including door-to-door canvassing, calling other voters to support 

candidates, writing campaign postcards, fundraising for and donating to candidates, writing letters 

to representatives and opinion pieces, and protesting. Several of the Plaintiffs have also worked 

on Democratic campaigns and served on boards of groups or political committees affiliated with 

the Democratic Party. Finally, the individual Plaintiffs testified, based on their direct lay 

experiences of engaging in political activity, to the burdens that they themselves have experienced 

in translating their Party’s political efforts in the electorate into political power in the U.S. House 

 

126 Plaintiffs collect the trial and deposition testimony to this effect in their Proposed 

Findings of Fact (“PFOF”). In many instances, Defendants at least acknowledge that the 

individual Plaintiffs are politically active in support of the Democratic Party. See generally Dkt. 

251 (Pls.’ PFOF at ¶¶ 313–14, 324–27, 334–37, 350, 363, 373, 389–97, 419–20, 432–46, 459–66, 

478, 489–90, 512–15, 529–30, 546–48. 550, 556–57, 570–72); Dkt. 253 (Defs.’ & Intervenors’ 

PFOF at ¶¶ 1139, 1149, 1152–53, 1170, 1174, 1230–37, 1267, 1289, 1292, 1302, 1305–08, 1329, 

1380, 1382). To the extent that Defendants contest the veracity of Plaintiffs’ support of the 

Democratic Party and Democratic candidates, we find Plaintiffs’ testimony credible and that the 

overwhelming weight of the evidence shows that the individual Plaintiffs consistently vote for and 

politically support the Democratic Party. 

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of Representatives.127 The individual Plaintiffs testified that their efforts included candidate 

recruitment, fundraising, and get-out-the-vote activities.

2. Organizational Plaintiffs

APRI, the League, and HCYD each testified at trial through a representative, and some 

additional members of the organizations supplemented the testimony. Several themes ran 

throughout this testimony. First, the organizations actively engage in politics by encouraging 

citizens to vote, registering and educating voters, and in the case of HCYD, advocating on behalf 

of Democratic candidates. Second, in their experience, voter outreach and engagement work was 

made more difficult by continuously encountering significant voter apathy. They heard voters 

state their beliefs that their votes did not matter; voters believed that the outcome of any given

election was preordained and that the same Republican or Democrat would be elected regardless 

of whether they voted. Third, the organizational plaintiffs encountered voter confusion—voters 

did not know to which district they belonged, who represented them, or who was running for office 

in their districts. Fourth, the organizational plaintiffs testified that they were forced to divert 

resources from their other work to address this voter apathy and confusion. Individual members 

of the organizations testified about their involvement with their organizations and their own 

political work supporting the elections of Democratic candidates. They testified that in their 

 

127 See Dkt. 230-15 (Goldenhar Dep. at 26–27); Dkt. 239 (Burks Trial Test. at 231–32, 

235); Dkt. 230-21 (Inskeep Dep. at 88–89); Dkt. 230-30 (Libster Dep. at 39, 60, 62–63, 75–76); 

Dkt. 230-11 (Deitsch Dep. at 48, 90–91); Dkt. 230-6 (Boothe Dep. at 51–52, 88); Dkt. 240 

(Griffiths Trial Test. at 51–53); Dkt. 230-36 (Nadler Dep. at 27–28, 91); Dkt. 230-40 (Rader Dep. 

at 121–23); Dkt. 230-50 (Walker Dep. at 45, 87, 91); Dkt. 230-32 (Megnin Dep. at, 88–89, 106);

Dkt. 240 (Dagres Trial Test. at 97–98); Dkt. 240 (Myer Trial Test. at 119–21); Dkt. 230-20 (Hutton 

Dep. at 46–47); Dkt. 230-48 (Thobaben Dep. at 46–47); Dkt. 230-42 (Rubin Dep. at 40–41, 78).

To clarify, nothing about H.B. 369 categorically prohibits Plaintiffs from engaging in these 

activities. The point is simply that Plaintiffs are, in fact, politically engaged individuals who 

support the Democratic Party in its effort to elect candidates.

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experience, they found their Republican congressional representatives unresponsive to them and 

not engaged in their communities. They also explained how their communities had been split into 

different districts under the 2012 map. 

Andre Washington, the president of APRI, testified at trial on the organization’s behalf.128 

Washington is a Democrat who votes regularly and resides in District 12.129 Under Plaintiffs’ 

Proposed Remedial Plan, Washington would reside in the reconfigured District 12.130 APRI is a 

nonpartisan organization but supports civil rights and labor issues.131 Its activities center around 

voter education, registration, and outreach.132 APRI has eight chapters across Ohio, seven of 

which are currently active, and has between 150 and 200 members spread throughout nearly every 

congressional district in Ohio.133 It is a volunteer-run organization, funded by membership dues.134 

Washington testified that he has personally witnessed voter apathy—people feeling like 

their vote does not matter—while attempting to engage voters in his own district.135 He testified 

that because of the way the lines are drawn, voters do not know where to vote or who is running 

in their district.136 Washington testified that APRI must deploy some of its limited resources to 

combat voter apathy and confusion rather than spending these resources on its other work.137 

 

128 Dkt. 239 (Washington Trial Test. at 44). 

129 Id. at 55–56.

130 Id. at 54; Trial Ex. P090 (Cooper Decl.). 

131 Dkt. 239 (Washington Trial Test. at 45). 

132 Id. at 46, 52. 

133 Id. at 48–50. 

134 Id. at 48, 52. 

135 Id. at 61–62. 

136 Id. at 52. 

137 Id. at 52–53.

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Stephanie White, the vice president of APRI’s Toledo chapter, also testified at trial.138 

White is a Democrat who votes regularly and resides in District 5.139 White believes that District 

5 “is not part of the Lucas County community,” but rather that “it’s part of the Fulton County, 

Defiance, Williams County area, which is predominantly Republican.”140 She is represented by 

Republican Congressman Bob Latta.141 White testified that she has spent time in her political 

work with ARPI addressing Toledo voters’ confusion about their assigned congressional 

districts.

142

 She also conducts partisan political activities such as door-to-door canvassing, phone

banking, voter registration drives, and get-out-the-vote (“GOTV”) work to help elect Democratic 

candidates such as James Neu and John Galbraith, who ran for Congress against Representative

Latta in the 2016 and 2018 elections, respectively.143 

Jennifer Miller, the Executive Director of the League testified at trial on the organization’s 

behalf.144 The League is a nonpartisan organization that hosts candidate forums, publishes voter 

education materials, registers voters, and participates in GOTV activities.145 It has around 2,800 

members across Ohio, living in all of Ohio’s congressional districts.146 The League has a long 

history of attempting to reform the districting process and Ohio’s district lines.147 For example, it 

commissioned and published a report criticizing the process through which the 2012 map was 

 

138 Dkt. 239 (White Trial Test. at 111). 

139 Id. at 109–10. 

140 Id. at 115. 

141 Id. at 112.

142 Id. at 119. 

143 Id. at 116, 118

144 Dkt 239 (Miller Trial Test. at 129).

145 Id. at 130–31. 

146 Id. at 133–34.

147 Id. at 138. 

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drawn, and in 2011 it hosted a competition in which members of the public could submit 

redistricting map drafts that comported with non-partisan traditional redistricting principles.148

Miller testified that the League spends resources combating voter apathy and confusion 

due to the 2012 map that it then cannot spend on its other initiatives such as voter registration and 

education.149 For example, during the 2018 special election in District 12, the League had to divert 

significant resources to fielding voters’ calls inquiring about their assigned congressional districts. 

Miller has also observed political candidates’ unresponsiveness to the League’s attempts to plan 

candidate forums, particularly in Republican-dominated areas. She testified that Congressmen 

Jordan, Stivers, and Joyce have all been unresponsive to the League’s requests that they participate 

in candidate forums.150 The League cannot hold a candidate forum in which only one party is 

represented, and therefore must cancel the planned forums if the candidate from one party declines 

to participate.151 

John Fitzpatrick, a member of the League and a voter in District 14 also testified at trial.152 

Fitzpatrick lives in Stow, Ohio, which is a northern suburb located about ten minutes from 

downtown Akron.153 Under Plaintiffs’ Proposed Remedial Plan, Fitzpatrick would live in the new 

District 16.154 He is a Democrat who votes regularly, has informal conversations with friends to 

encourage them to vote and vote for particular candidates, has contributed financially to 

Democratic candidate Betsy Rader’s congressional campaign, and has canvassed and phone 

 

148 Id. at 154–55, 156–57. 

149 Id. at 144. 

150 Id. at 148. 

151 Id. at 147–49. 

152 Dkt. 239 (Fitzpatrick Trial Test. at 196–97). 

153 Id. at 197. 

154 Trial Ex. P090 (Cooper Decl.). 

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banked in other elections.155 Fitzpatrick is currently represented by Republican Congressman 

David Joyce.156 Fitzpatrick considers himself a part of the Akron community because he and his 

wife spend most of their time, recreate, and are involved in the community there.157 He has been 

involved in League activities such as planning candidate nights, voter education, and antigerrymandering activities such as working to get Ballot Initiative 1 on the Ohio ballot.158

 

Fitzpatrick stated that in the year and a half prior to the passage of Initiative 1, 80% of his work 

with the League was dedicated to anti-gerrymandering work.159 

Fitzpatrick also testified about voters in the Akron area being confused about the district 

in which they live. He himself attempted to use a “congressional house finder” tool to determine 

his congressional district, but typing in his zip code produced two possible districts.160 He stated 

that because Summit County encompasses four different congressional districts, “before [he] got 

super-involved in [his] district, there [were] more than a few times when [he] had to look it up 

because [he] had a hard time just remembering exactly which district [he] was in.”161 

Nathaniel Simon, the outgoing president of the HCYD, testified on the organization’s 

behalf.162 Simon lives and votes in District 2 and is represented by Republican Congressman Brad 

Wenstrup.163 Under Plaintiffs’ Proposed Remedial Plan, Simon would live in the new District 

1.164 HCYD is a volunteer organization that educates and registers voters and supports Democratic 

 

155 Dkt. 239 (Fitzpatrick Trial Test. at 201–03). 

156 Id. at 197.

157 Id. at 198–99.

158 Id. at 200–01, 206–07.

159 Id. at 207.

160 Id. at 208. 

161 Id. at 209. 

162 Dkt. 240 (Simon Trial Test. at 64). 

163 Id. at 63, 67. 

164 Id. at 63; Trial Ex. P090 (Cooper Decl.). 

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candidates by canvassing and conducting GOTV efforts on their behalf.165 HCYD has between 

100 and 150 members who vote, identify as Democrats, and live in Districts 1 and 2.166 Simon 

testified that HCYD has to expend additional resources fighting voter apathy and confusion.167 He 

testified that he felt voters were apathetic because, while canvassing for Democratic candidates 

Aftab Pureval and Jill Schiller, he encountered voters who “refuse[d] to engage in politics because 

they felt like there was no point, just being that a Republican is always going to win with the way 

the lines are drawn.”168 Simon testified that the voter confusion in Hamilton County was due in 

large part to the current map, in particular the manner in which Districts 1 and 2 “wrap[] around 

each other” and the splitting of the City of Cincinnati itself into two districts.169 For example, 

Simon testified that he worked at a polling place in Silverton and that: 

many people who came out of the polling booth asked why wasn’t Aftab Pureval 

on my ballot . . . I had to explain to them that they are in the 2nd Congressional 

District, but to the east and west of Silverton is the 1st Congressional District. Also, 

in my neighborhood, which is in the 2nd Congressional District, there were Aftab 

Pureval signs, and he is the candidate for the 1st district.170 

Simon also testified that the district lines have made it more difficult for HCYD to attract 

and retain members.171 

NEOYBD and OSU College Democrats’ testimony was introduced through designated 

depositions. NEOYBD is a Democratic group that “looks to mentor, empower and recruit the next 

generation of young people of color who want to be involved in the political process.”172 It has 

 

165 Dkt. 240 (Simon Trial Test. at 64–66). 

166 Id. at 65, 67.

167 Id. at 68, 73.

168 Id. at 68. 

169 Id. at 63, 68, 69–70. 

170 Id. at 69–70. 

171 Id. at 69–70.

172 Dkt. 230-22 (Jackson Dep. at 8, 14). 

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around sixty Democratic members who vote regularly and live in Districts 9, 11, 13, and 14.173 

Gabrielle Jackson, the president of the organization, was its Rule 30(b)(6) representative.174 The 

organization canvasses, runs phone banks, educates people on “why [their] vote matters, why 

[they] should be voting,” and “concrete issues that are on the ballot,” and advocates on behalf of 

the candidates that the organization supports.175 Jackson testified that her group fundraises both 

for candidates and for itself.176 She stated that “it’s been challenging based on the way this map 

is currently drawn, because folks have been feeling like, you know, [their] voices aren’t being 

heard. So it’s causing us to use more of our resources, when we have a hard time bringing in 

resources.”177 Jackson testified that while canvassing and phone-banking with her organization, 

she spoke with people who expressed apathy about voting and said that they did not believe that 

their votes mattered.178

Alexis Oberdorf is the President of the OSU College Democrats and was the group’s Rule 

30(b)(6) representative.179 The OSU College Democrats “advocate, educate, and engage people 

at OSU in alignment with the Democratic Party’s platform.”180 The organization has around 55

members who regularly attend meetings but hosts events throughout the year that around 100

people attend.181 OSU College Democrats canvasses and runs phone banks in support of 

Democratic candidates and has held fundraisers for Democratic candidates such as Danny 

 

173 Id. at 26, 40, 41. 

174 Id. at 7. 

175 Id. at 9, 13, 15–16, 18.

176 Id. at 23.

177 Id. at 23.

178 Id. at 69.

179 Dkt. 230-38 (Oberdorf Dep. at 7, 9).

180 Id. at 13. 

181 Id. at 42. 

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O’Connor.182 Oberdorf testified that OSU students who live near campus reside in Districts 3, 12, 

and 15 and that the organization must therefore “spread[] [its] capital among three different areas 

on campus.”183 The majority of OSU College Democrats vote “on campus in their district.”184 

She testified that she worked a poll in District 12 during an election and witnessed students coming 

to vote in the incorrect district “because they assumed seeing that they’re . . . in this campus area, 

they are all going to vote in the same area. So that creates confusion. And part of what we do as 

a club is aim to educate people.”185 She also testified that her organization has “done coordinated 

call campaigns for bills that [it] oppose[s]” to representatives from those districts and has found 

“it challenging especially to contact or get . . . a response from those individuals.”186 

3. Congresswoman Marcia Fudge 

Congresswoman Marcia Fudge, representative to the United States House of 

Representatives from Ohio’s Congressional District 11, testified for Plaintiffs at trial.187 She 

testified that District 11 has been represented by three different representatives in Congress: Lou 

Stokes, Stephanie Tubbs Jones, and herself.188 

Congresswoman Fudge described the historical contours of District 11. When 

Congresswoman Fudge took office in 2008, District 11 “was primarily a little better than twothirds of the city of Cleveland and most of the southeast suburbs.”189

 The district was entirely 

contained within Cuyahoga County.190 When Stephanie Tubbs Jones took office in 1999, District 

 

182 Id. at 78–80, 87–89, 113–14. 

183 Id. at 62. 

184 Id. at 66. 

185 Id. at 63–64, 69. 

186 Id. at 103. 

187 Dkt. 239 (Fudge Trial Test. at 79). 

188 Id. at 80. 

189 Id.

190 Id. 

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11 included “most of the city of Cleveland, the lower west side all the way to the east and the 

southeast suburbs of Cuyahoga County,” and was again entirely within Cuyahoga County.191 The 

district that Congressman Stokes represented was “pretty much the same,” again, entirely within 

Cuyahoga County.192 Congresswoman Fudge contrasted that historical District 11 with the version 

of District 11 that she currently represents: “[T]he first major difference is that [her district] go[es] 

from Cuyahoga down to Summit County” via a “narrow strip.”193

Congresswoman Fudge unequivocally stated that she “didn’t have any role” in the drawing 

of the new congressional map in 2011.194 She first learned that the new District 11 would extend 

into Summit County and include parts of Akron “around the time that the map was made public.”195 

Armond Budish, the Democratic minority leader of the Ohio House of Representatives, was the 

one to first show her the map “pretty much so [she] wouldn’t get caught off guard.”196 She stated 

that she was “surprise[d], obviously” by the new District 11 and had “no idea that [she] would ever 

go down into Summit County.”197 She was not “pleased” by the new design, she “would not have 

chosen it,” and she “was not happy about it.”198 Congresswoman Fudge stated that she “didn’t 

know anything about Summit County” at the time and that her lack of familiarity with the new 

 

191 Id. at 81; see also Pls.’ Demonstrative Ex. 19. 

192 Dkt. 239 (Fudge Trial Test. at 81). For part of his time as a congressman, the district 

that Stokes represented was called District 21. Id. at 88. 

193 Id. at 82. 

194 Id. at 83. 

195 Id. 

196 Id.

197 Id. 

198 Id. at 84. On cross-examination, Congresswoman Fudge admitted that in 2011 she was 

publicly quoted as saying that she was “not upset about how [her] district had been drawn.” Id. at 

98. She explained that as an elected official, she would “never insult the people that I’m going to 

represent by saying ‘I don’t want to represent you.’” She also stated that she believed that she had 

been misquoted. Id. at 98–99. 

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area made it “an uncomfortable place to be.”199 She stated that due to Ohio’s losing two 

congressional seats and the inevitable changes that that would necessitate, she thought that the new 

District 11 would most likely include the entire City of Cleveland and its southeast suburbs.

200

Congresswoman Fudge stated that after learning of the new map, the only complaint that 

she voiced was her belief that allocating “Summit County or that portion of Akron” to the new 

District 11 “would make it almost impossible” for Democratic Representative Sutton to win an 

election in the new District 16.201 Congresswoman Fudge stated that she got together with 

Congresswoman Sutton and Congresswoman Kaptur to contact Armond Budish to “ask him was 

there any way to give Betty back Akron so she would have a fighting chance at keeping her 

seat.”202 She testified that she “may have” spoken with U.S. House of Representatives Speaker 

Boehner in 2011 about the redistricting “in passing” but recalls nothing about such a 

conversation.203 She spoke to “[l]ots of people” about the shape of her district in 2011, including 

Republican Congressman Steve LaTourette, who she believed was “kind of the point person for 

John Boehner.”204 She also spoke to Representatives Sutton and Kucinich, first attempting “to see 

if we could get [the shape of the district] changed because we wanted to try to see if we could help 

protect Betty [Sutton]. We couldn’t.”205 She then “made sure they knew [she] was not pleased.”206 

Congresswoman Fudge admitted that she did not tell any of the people that she spoke with 

in 2011 about District 11 that she did not want District 11 to be a majority-minority district.207 She 

 

199 Id.

200 Id. at 85. 

201 Id. 

202 Id. at 85–86. 

203 Id. at 99. 

204 Id. at 100. 

205 Id. 

206 Id.

207 Id. at 101. 

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did not advocate the drawing of District 11 with less than 50% BVAP (“Black Voting Age 

Population”).

208

 She testified that in 2011 she did not view the new district as a violation of the 

Voting Rights Act (“VRA”).

209

 Congresswoman Fudge stated that she was not concerned about 

being paired with another incumbent in the redistricting because she “felt if they were to pair me 

with somebody, I felt that I was strong enough to win.”210 She expressed no concern to anyone 

about being paired with Congressman Kucinich.211 On cross-examination, Congresswoman Fudge 

stated that since Stokes’s time as the congressman for the district, it has been a majority-minority 

district.212 

4. State Senator Nina Turner 

State Senator Nina Turner, a former Democratic member of the Ohio State Senate, testified 

for Plaintiffs as a fact witness. Senator Turner served Ohio’s 25th State Senate District from 2008 

to 2014. At the time of the 2011 redistricting, Senator Turner testified that the State Senate was 

comprised of ten Democratic Senators, five of whom were African American, and twenty-three 

Republican Senators.213 As a result of being in the “deep minority,” Senator Turner testified that 

she had no involvement in the drawing of the current map and that the Democratic Caucus as a 

whole “didn’t have the power to draw the map” because “Republicans could hold business on the 

[Senate] floor without really having Democrats there.”214 When she first learned of the map 

presented in H.B. 319, Senator Turner testified that she was “outraged” and that her Caucus tried 

 

208 Id. at 102. 

209 Id. at 102–03. 

210 Id.

211 Id. at 102. 

212 Id. at 89. 

213 Dkt. 240 (Turner Trial Test. at 7–8).

214 Id. at 8–9.

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to “introduce a map that was a fairer reflection of the will of the people.”215 As to H.B. 319, 

Senator Turner stated that only two Democratic State Senators voted for the bill and that she voted 

no.216 Senator Turner believed that the map presented in H.B. 319 would be a 12-4 map.217

Senator Turner also gave a floor speech against H.B. 319, in part addressing the 

justification that the District 11 was drawn to comply with the VRA.218 At trial, Senator Turner 

explained her belief that the way District 11 was drawn harmed the voters the VRA sought to 

protect by “hurt[ing] the[ir] voting prowess” and decreasing their “influence that they would have 

through representative democracy by stripping or combining portions of the 11th Congressional 

District in ways that representatives could not focus purely on Cleveland and/or Cuyahoga 

County.”219 Senator Turner also noted that Congresswoman Marcia Fudge and former 

Congressman Louis Stokes “never had a problem winning elections in that district.”220 She further 

testified that the way District 11 was drawn harmed both the greater Cleveland and the greater 

Akron communities because she believed that the two communities have separate needs and 

“deserve to have a representation that can really focus in on their needs.”221

 

215 See id. at 9–10.

216 Id. at 10–11.

217 See, e.g., id. at 16–17. Defendants object to Senator Turner’s testimony as speculation 

that the Republicans “guaranteed” a 12-4 map. Plaintiffs contend that Senator Turner’s testimony 

goes to the knowledge and belief of the Democratic members of Ohio’s General Assembly 

regarding H.B. 319. Defendants’ objection is overruled. This evidence is admissible to 

demonstrate Senator Turner’s belief that it was a 12-4 map, which in turn supports why she voted 

against H.B. 319 and made a floor speech opposing the adoption of it. 

218 See generally Trial Ex. J03 (Ohio Senate Session, Sept. 21, 2011 at 50–56) (statement 

of Sen. Turner).

219 Dkt. 240 (Turner Trial Test. at 13).

220 Id.

221 Id. at 14.

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As recounted above, after H.B. 319 was enacted into law, Democratic state legislators 

sought a referendum to overturn the law, which required a certain number of signatures.222 This 

referendum failed because not enough signatures were collected, and Republican state legislators 

then went forward with H.B. 369.223 Senator Turner testified that she had no input on the map 

presented in H.B. 369, that she believed that the map was still 12-4 in favor of Republicans like 

H.B. 319, and that she and a majority of the Democratic Caucus in the State Senate (as well as a 

majority of the African-American State Senators) voted against H.B. 369.224

Senator Turner spoke against H.B. 369 in a floor speech similar to the one she made against 

H.B. 319. In this floor speech, Senator Turner stated that “[t]o say that this map is bipartisan is 

laughable” because, as she stated at trial, she believed that “the mere fact that some Democrats, 

for whatever reason, decided to vote for the bill does not make it bipartisan.”225 At bottom, Senator 

Turner maintained her belief that H.B. 369 had a clear partisan effect.226

Finally, on cross-examination, Senator Turner admitted that she considered running against 

Congresswoman Fudge in the 2012 Democratic primary, but she dropped out because she believed 

that the redistricting process was manipulated to guarantee the reelection of incumbent 

politicians.227 Senator Turner also acknowledged that it “might be possible” that she received 

proposals from Democratic map drawers that incorporated, among other things, a majority 

African-American district in northeast Ohio.228 But such a district existed previously (with 

 

222 Id. at 17–18.

223 Id. at 18.

224 Id. at 18–19, 23.

225 Id. at 20; see also Trial Ex. J05 (Ohio State Senate Session, Dec. 14, 2011 at 22–27) 

(statement of Sen. Turner).

226 Dkt. 240 (Turner Trial Test. at 20).

227 Id. at 25–26, 34; Dkt. 253 (Defs.’ & Intervenors’ PFOF at ¶ 214).

228 Dkt. 240 (Turner Trial Test. at 27–33).

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different boundaries, limited to the greater Cleveland area), and Senator Turner maintained that 

the enacted map did not contain any of the Democratic suggestions.229

5. Congresswoman Marcy Kaptur

Plaintiffs called Congresswoman Marcy Kaptur, a Democratic member of the U.S. House 

of Representatives, as a rebuttal witness. Representative Kaptur won election to Congress in 1982 

and has served Ohio’s Congressional District 9 since 1983. She is the most senior member of 

Ohio’s congressional delegation.230 Representative Kaptur testified that she did not play any part 

in creating the map that was submitted with H.B. 319, the initial redistricting bill, and she first 

learned about the shape of the new District 9 in the newspaper after H.B. 319 became public.231 

Representative Kaptur testified that, after learning about the map presented in H.B. 319, she called

then-Governor John Kasich’s office to object to the fact that her church and the cemetery where 

her family is buried were cut out of District 9;232 moreover, she had conversations with a 

Democratic state legislator after the release of H.B. 319 to “try[] to piece [Toledo] back 

together.”233 Representative Kaptur did not want to be paired with then-Congressman Kucinich, 

a Democratic colleague of Kaptur’s, because he had “run for president” and she believed that the 

proposed District 9 was drawn to favor Representative Kucinich over her if they ran against each 

other.234 On cross-examination, Representative Kaptur acknowledged that, due to population loss, 

 

229 See id. Moreover, we observe again that a majority of the Democratic Caucus, including 

the African-American members, voted against H.B. 369.

230 See Dkt. 249 (Kaptur Trial Test. at 69).

231 Id. at 69–70. Representative Kaptur’s office also had no documents related to the 2011 

redistricting process. Id. at 81.

232 Id. at 73–74.

233 Id. at 81–82.

234 Id. at 76, 89.

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her district’s geography would have to expand, but she stated that she “hop[ed] it would be in the 

economic region that [she] represented” such as Wood or Fulton Counties.235

B. Defendants’ Fact Witnesses 

1. Raymond DiRossi 

Raymond DiRossi testified at trial for Defendants as a fact witness, and he was one of the 

principal map drawers during the 2011 redistricting process. He also played a role in the 2001 

redistricting process.236 Starting in 2001, DiRossi became involved with the Task Force and “was 

very involved in the creation of [the] legislative districts and also the congressional 

districts . . . .”

237

 DiRossi testified that he worked out of the DoubleTree hotel in Columbus during 

both the 2001 and 2011 redistricting processes.

238

DiRossi testified that, in 2011, he was “very prominent” in the congressional redistricting 

process and that “basically, the process was the same” as in 2001.239 According to DiRossi, the 

main issues in the 2011 redistricting process were that Ohio lost two congressional seats, the State 

had experienced population shifts, District 11 was majority-minority in the past and in 2011 “great 

care was . . . taken to . . . make sure that [District 11] was going to be created in a way that would 

be satisfactory,” and he also understood that there was a “desire to make a new district in Franklin 

County that would have the ability to elect, for the first time ever,” a minority candidate to 

Congress.240

 

235 Id. at 78–79.

236 Dkt. 243 (DiRossi Trial Test. at 146).

237 Id. at 147.

238 Id. at 152.

239 Id. at 154.

240 Id. at 154–55.

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To deal with the loss of two incumbents (because Ohio lost two congressional seats), 

DiRossi testified that “the decision was made to pair two Republicans together and two Democrats 

together. So we would have ended up with” twelve Republicans and four Democrats.241 In terms 

of how to handle which Democratic incumbents to pair, he stated that it was his belief that “nobody 

thought it was a good idea to pair” Representative Fudge with another incumbent because she 

represented a majority-minority district.242 In the end, Representatives Kaptur and Kucinich were 

selected as the paired Democratic incumbents. DiRossi testified that he drew the current District 

9 the way it is based on what various other Republican legislators and political officials had said 

various Democrats wanted (these other Republicans were purportedly in conversation with the 

Democrats).243

 

241 Id. at 156. Going into the redistricting, Republicans held a 13-5 majority in Ohio’s 

congressional delegation. DiRossi, however, also maintained that he was not simply trying to 

draw twelve “Republican districts” in the map. Id. at 158.

242 Id. at 157. Plaintiffs object to this statement, and similar statements made by DiRossi, 

as hearsay. The statement is admissible, however, for the limited purpose to show the effect on 

DiRossi, i.e., that he did not pair Representative Fudge against another incumbent, but it cannot 

be used for the truth that various persons in fact thought it was a bad idea to pair Representative 

Fudge against another incumbent. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th 

Cir. 2009) (“A statement that is not offered to prove the truth of the matter asserted but to show its 

effect on the listener is not hearsay.”); see also United States v. Churn, 800 F.3d 768, 776 (6th Cir. 

2015) (citing United States v. Pugh, 273 F. App’x 449, 456 (6th Cir. 2008)) (“Such a statement 

may be admitted to show why the listener acted as she did.”). Moreover, DiRossi’s testimony on 

this point is unclear, specifically to whom he is referring when he uses the term “nobody.”

243 See generally id. at 159–66. Plaintiffs again object to DiRossi’s testimony as to what 

other political officials said as hearsay. For the reasons explained in supra note 242, the statements 

are admissible for the limited purpose of showing why DiRossi drew the districts the way he did, 

but they cannot be used as evidence for what Democrats actually did or did not want or what 

Democrats said due to the multiple layers of hearsay. Again, this line of testimony from DiRossi 

was often extremely vague and unclear.

DiRossi also testified to changes to District 9 between H.B. 319 and 369—specifically that 

there “was much more Toledo in [H.B. 369 than in H.B. 319] and . . . less Cleveland.” Id. at 166. 

We observe that some portions of Lucas County were added to District 9 in H.B. 369, and the 

Cleveland side had small portions dropped and added. See Trial Ex. I-072 (Changes from H.B. 

319 to H.B. 369 at 11–14) (yellow represents geography in both plans, green represents geography 

that was added in H.B. 369, and red represents geography that was dropped in H.B. 369); Dkt. 243 

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DiRossi further testified to changes made to various other districts, purportedly at the 

request of (occasionally unspecified) Democrats, and to the effects those changes had on the map 

as a whole.244 Negotiations between state legislative Democrats and state legislative Republicans 

began around the time of the attempted petition drive (after H.B. 319).245 As to District 11, for 

example, DiRossi asserted that he “wanted to take great care to make sure the district was drawn 

the way that the incumbent [Representative Fudge] wanted it.”246 At trial, DiRossi did not mention 

any concerns about VRA compliance, but at his deposition, he stated that he was concerned about 

majority-minority districts, including District 11, because of the VRA.247 At his deposition, he 

further stated that, in 2001, District 11 was drawn with more than a 50% BVAP, so in 2011, “one 

of the first things that [DiRossi] was looking at was . . . was it possible to still draw a district that 

would be more than 50 percent non-Hispanic voting age African American population.”248 It was 

 

(DiRossi Trial Test. at 187). Ultimately, this testimony is inconsequential because there were no 

material geographic changes between H.B. 319 to H.B. 369, see Trial Ex. I-072; see also Dkt. 246 

(Judy Trial Test. at 83), and any changes between H.B. 319 and H.B. 369 to the partisan makeup 

of District 9 (or any district) were not material whatsoever. The Court also notes that Plaintiffs 

object to the admissibility of Exhibit I-072 on the basis that DiRossi lacked foundation to testify 

about the exhibit because he did not create it. The Court summarily overrules that objection 

because DiRossi, as one of the primary map drawers, was intimately familiar with the changes 

from H.B. 319 to H.B. 369. DiRossi provided sufficient testimony to establish his personal 

knowledge of the changes and indicated that Exhibit I-072 was a fair and accurate rendering of the 

changes. See e.g., Dkt 243 (DiRossi Trial Test. at 191). He does not need to create the exhibit in 

order to lay the foundation for its admittance. See FED. R. EVID. 602.

244 See generally Dkt. 243 (DiRossi Trial Test. at 166–75, 177–79, 183–84). Plaintiffs’ 

hearsay objections to this line of testimony are overruled in part for the same reasons already 

discussed. See supra note 242. In any event, for the reasons we explain later in the Opinion, we 

find, importantly, that, any changes did not alter the partisan makeup of the map, and the 

geographic changes were not very significant either. See, e.g., Trial Ex. I-072 (Changes from H.B. 

319 to H.B. 369). Furthermore, the overarching intent remained partisan in that no changes would 

be made that would put the 12-4 map in favor of Republicans at risk.

245 Dkt. 243 (DiRossi Trial Test. at 174–75).

246 Id. at 169; see also supra note 242.

247 Dkt. 230-12 (DiRossi Dep. at 193–94).

248 Id. at 194.

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DiRossi’s “understanding that the maps were going to make their way to Congresswoman Fudge,” 

but he clarified that, “obviously, [he] was not present for that.”249

With respect to District 3, DiRossi similarly testified that a “back and forth” occurred 

between Bob Bennett, Republican legislative leaders, “some other people,” and Joyce Beatty and 

her husband Otto.250 At that time, now-Congresswoman Beatty was not yet a Congresswoman 

and did not hold any position in government, though DiRossi testified that “a number of people, 

including myself who had worked with . . . Joyce Beatty . . thought that she would be an ideal 

candidate” for the new District 3.251 

Some changes did, in fact, occur between H.B. 319 and H.B. 369. DiRossi testified to 

these changes and explained an exhibit that illustrates them.252 And again, he asserted at trial that 

many of these changes were made in response to what he believed were requests of various 

Democrats.

253

 For H.B. 319, he worked out of the DoubleTree Hotel and did not work with any 

Democrats; he also admitted that he received requests from Tom Whatman (from Team 

 

249 Dkt. 243 (DiRossi Trial Test. at 172).

250 Id. at 177–78. For the reasons explained previously, supra note 242, DiRossi’s 

testimony is admissible only as evidence for why he drew District 3 a certain way. The statement 

is inadmissible for the truth that certain Republicans wanted to create a district for Joyce Beatty. 

251 Id.

252 See Dkt. 243 (DiRossi Trial Test. at 187–98); Trial Ex. I-072 (Changes from H.B. 319 

to H.B. 369). Again, in the exhibit, yellow represents geography that stayed the same in both 

plans, green represents geography that was added in H.B. 369, and red represents geography that 

was dropped in H.B. 369. Dkt, 243 (DiRossi Trial Test. at 187).

253 See Dkt. 243 (DiRossi Trial Test. at 188–93, 195) (referring mainly to District 3 and 

purported requests related to District 9). DiRossi further testified that no changes were made to 

District 11 between H.B. 319 and H.B. 369, and because there were no requests from legislative 

Democrats related to District 11, he “thought [the map drawers] got it right the first time.” Id. at 

195.

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Boehner).254 For H.B. 369, DiRossi stated that he worked out of the State House, and, for that bill, 

he asserted that Republicans “were working with the Democrats . . . .”255

As to the logistics of the actual map-drawing process, DiRossi testified to that he used

Maptitude and the Unified Index that he created.256 Along with the Unified Index that he created 

and additional political indices that others wanted him to use, his computer also displayed the 

population of each district, the African-American voting-age population, the non-Hispanic votingage population, and the Hispanic voting-age population as he drew draft maps.

257

 “[W]henever 

[he] would make a change on the . . . screen, all of that would automatically change . . . .”258 The 

other political indices included presidential election results, as well as the “D+1, D+2, R+1, R+2 

system” (often referred to as the D+1, R+1, or PVI) from “the D.C. folks.”259 

DiRossi admitted that in 2011 he worked with Adam Kincaid, from the RNC, and that 

Kincaid “was one of a number of people that would send ideas or [DiRossi] could bounce ideas 

off.”260 In a September 10, 2011 email exchange between DiRossi and State Senator Faber, 

DiRossi wrote, “DC is increasingly pushing to put the lid on this [i.e., the map].”261 DiRossi also 

 

254 See, e.g., Dkt. 243 (DiRossi Trial Test. at 184).

255 Id. at 219, 287.

256 Id. at 199.

257 Id. at 199–200

258 Id. at 200.

259 Id. at 199–200, 229.

260 Id. at 224. DiRossi further admitted that Kincaid made at least some changes to the 

maps, and DiRossi received the PVI from Kincaid. See id. at 265, 278.

261 Trial Ex. P124 (Sept. 10, 2011 email); see Dkt. 243 (DiRossi Trial Test. at 239). State 

Senator Niehaus also sent an email to DiRossi and Whatman on September 11, 2011, which stated 

that Senator Niehaus was “still committed to ending up with a map that Speaker Boehner fully 

supports, with or without votes from two members of leadership.” Trial Ex. P125 (Sept. 11, 2011 

email); Dkt. 243 (DiRossi Trial Test. at 240–43). One day later, Senator Niehaus asked DiRossi 

via email titled “Proposed map for LSC [Legislative Service Commission]”: “Did Whatman sign 

off?” DiRossi confirmed that “Whatman signed off.” Trial Ex. P126 (Sept. 12, 2011 emails); Dkt. 

243 (DiRossi Trial Test. at 255). LSC puts the maps into final bill form. See Dkt. 243 (DiRossi 

Trial Test. at 220). H.B. 319 ultimately went public on September 13, 2011. Id. at 260. The 

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admitted that the changes supposedly requested by now-Congresswoman Beatty (who, again, was 

not yet a Congresswoman) to draw a potential opponent out of District 3 affected a fairly trivial 

number of voters.262 Finally, DiRossi admitted that he did not calculate compactness scores for 

the districts in either H.B. 319 or H.B. 369.263

2. Speaker William Batchelder 

Former Speaker of the Ohio House of Representatives William Batchelder testified for 

Defendants at trial, explaining how Districts 11 and 3 came to be.264

a. District 11

Speaker Batchelder testified that he knew George Forbes, the former president of the city 

council of Cleveland “very well” and would occasionally discuss “matters that were coming before 

the house” with Forbes.265 Speaker Batchelder stated that District 11 “had changed in its nature, 

which we knew from the census, and [he and Forbes], therefore, were concerned about its 

continuance as an African-American district.”266 Therefore, Speaker Batchelder believed “[t]here 

 

individuals on the email chains leading up to this time were using their personal (rather than State 

of Ohio) email addresses. Id. at 270–71. Lastly, several of the emails entered into evidence on 

cross-examination contained political data in the text of the email but none of the other 

demographic data that DiRossi mentioned he had in Maptitude.

262 Dkt. 243 (DiRossi Trial Test. at 284); see also id. at 285 (DiRossi further stating that 

“[i]t may have been slightly less than 800 people . . . .”).

263 Id. at 284.

264 This summary discusses only Speaker Batchelder’s trial testimony from his direct 

examination as well as the portions of the cross-examination that were within the scope of the 

direct examination. See FED. R. EVID. 611(b). The Court also relies on the properly designated 

sections of Speaker Batchelder’s deposition. 

265 Dkt. 246 (Batchelder Trial Test. at 18–19). 

266 Id. at 20. The Court considers this testimony as evidence that Speaker Batchelder was 

concerned about District 11’s continuance as an African-American district. To the extent that the 

testimony is offered as evidence of Forbes’s concern, it is inadmissible hearsay. The Court does 

not, therefore, consider the testimony for the truth of whether Forbes was concerned about District 

11 but only for the ultimate purpose of showing what effect, if any, Forbes’s statements had on 

Speaker Batchelder. 

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would have to be a change in the district so that there would be a balance so that it would continue 

as an African-American district.”267 Speaker Batchelder testified that he had discussions with 

Forbes about District 11 “extending down into Summit County” because “we . . . did not have the 

makings, under the census, of a district that would be African American” and “there were 

sufficient African-Americans in Summit County to undertake that alteration.”268 Speaker 

Batchelder testified that he “asked [Forbes] what he thought of that, and he was amenable.”269 

Speaker Batchelder “ultimately approve[d] a District 11 that started in Cuyahoga County and went 

down into Summit County.”270 He agreed that he did this “in part, based on [his] understanding 

and belief of how Mr. Forbes felt about that.”271

On cross-examination, Speaker Batchelder admitted that he “never personally had 

communications with Representative Fudge” about the composition of District 11.272 Speaker 

Batchelder also stated that he and Representative Stokes “did communicate, but not on that 

issue.”273

b. District 3

Speaker Batchelder testified about the creation of the new District 3 in the Columbus area. 

He stated that he “first had consulted with the chairman of the Republican Party there, and he 

 

267 Id. Again, to the extent that Speaker Batchelder’s belief is based on out-of-court 

statements by Forbes about Forbes’s concern, those statements are considered for the effect they 

had on Speaker Batchelder and not for their truth. 

268 Id. at 22–23. 

269 Id. at 24. Plaintiffs again object to any testimony about what Mr. Forbes said as hearsay. 

For the reasons previously discussed, the Court will consider such testimony only for a limited 

purpose. 

270 Id.

271 Id.

272 Id. at 50.

273 Id.

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indicated that there was not going to be a viable candidate for his party.”274 Speaker Batchelder 

went on to explain that he was close friends with Otto Beatty and had served in the Ohio House of 

Representatives with his wife, Joyce Beatty.275 Speaker Batchelder agreed that he “intend[ed] to 

draw a district that [Joyce Beatty] could potentially win.”276 Speaker Batchelder stated that he had 

never referred to the Franklin County district as a “sinkhole” nor had he referred to voters as “dog 

meat.”277

3. Troy Judy

Troy Judy had a long history of working for the Ohio House of Representatives and served 

as the Chief of Staff to Speaker of the Ohio House of Representatives William Batchelder during 

the redistricting process.278 He testified about the various people who played a role in the 

redistricting.279 He also testified about the map-drawing process, both before and after the passage 

of H.B. 319, and offered reasons that certain congressional districts in the 2012 map were drawn 

as they are.280 

Judy testified that “[a]fter [H.B.] 319 was passed, the Democrats, of course, announced a 

referendum on the bill and began collecting signatures. . . . And with the overarching pressure of 

a referendum, it led us to begin conversations with members of the Democratic caucus.”281 

Speaker Batchelder asked Judy and Representative Huffman “to begin very quiet conversations 

with the Democrats to see what changes they would like to see in a map in order to garner bipartisan 

 

274 Id. at 25. Again, the Court does not consider this out-of-court statement by the chairman 

for the truth of the matter asserted, but rather only for its effect on Speaker Batchelder. 

275 Id.

276 Id.

277 Id.

278 Dkt. 246 (Judy Trial Test. at 67–68). 

279 Id. at 81.

280 Id. at 70–79. 

281 Id. at 72–73. 

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support of a bill, a new bill.”282 Judy testified that in this context he conversed directly with three 

Democratic members of the Ohio House of Representatives who communicated to him “some of 

the changes [they] would like to see.”283 Some of these changes were incorporated into new map 

drafts and Judy and Keary McCarthy, the minority Democratic Chief of Staff exchanged map files 

including such changes.284 Judy stated that in the back-and-forth between himself and McCarthy, 

McCarthy never proposed a District 11 or District 3 “that was materially different from the one 

proposed by the Republicans.”285 Judy testified that at this stage, the now-deceased Bob Bennett, 

“the outgoing chairman of the state Republican party,” was involved in communications between 

the Republican map drawers and Democratic players.286 

Judy testified that District 3 had been a “priorit[y]” of Speaker Batchelder’s.287 He testified 

that Speaker Batchelder’s “relationship with Congresswoman Beatty and her husband Otto Beatty 

led him to have a priority to create a central district in Franklin County encompassing Columbus 

and having representation specifically for Congressman [sic] Beatty.”288 He also testified that 

population shifts toward Franklin County and Ohio’s loss of two congressional seats following the 

2010 census were factors in the drawing of District 3.289 

 

282 Id. at 73–74. 

283 Id. at 74. 

284 Id. at 75.

285 Id. 

286 Id. at 74–75. 

287 Id. at 70. 

288 Id. at 71; see also id. at 72 (Judy confirming that it was his “understanding and belief 

that the reason for the shape and location of Congressional District 3 was based on Speaker 

Batchelder’s relationships with and conversations with the Beattys”). 

289 Id. at 70. Plaintiffs object to this testimony for lack of foundation regarding 

demographic changes in Ohio and the effect of those changes on the map-drawing process. The 

Court overrules this objection and finds that Judy is providing his personal knowledge of factors 

that accounted for the drawing of District 3, including his understanding of demographic changes.

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Judy testified that District 9 was drawn in response to the Democratic leadership’s desire 

that Representative Marcy Kaptur and Representative Dennis Kucinich be the two Democratic 

incumbents paired.290 Judy stated that Bob Bennett “was also in contact with a Democratic leader 

from the Toledo region, Jim Ruvolo,291 who then communicated to us about what the shape of the 

Kaptur district should look like and what Democrats should be paired together, actually.”292 Judy 

stated that he was “not sure who else [Bennett] was speaking with.”293

Judy also testified about the contours of District 11. He stated that Speaker Batchelder had 

relationships with members of the African-American community in Cleveland, including George 

Forbes, and has “consulted” for many years with these individuals “with respect to any issues that 

would affect the African-American community.”294 This was the only testimony that Judy related 

regarding the involvement of leaders of Northeast Ohio’s African-American community in the 

redistricting of District 11. 

Judy testified that when the Republican map drawers began negotiations with Democratic 

individuals in an effort to pass the second iteration of the map, Bob Bennett played a key role in 

these communications, serving as a “back channel to Congresswoman Fudge . . . to communicate 

with us about the shape of [District 11].”295 Judy testified that Bennett “communicated to [Judy] 

that he was in contact with Representative Fudge” and that Fudge “was pleased with the 

 

290 Id. at 77. 

291 Judy later stated that he believed that Ruvolo was chairman of the Democratic Party. 

Id. at 77. 

292 Id. at 74; see also id. at 77 (stating that the Republicans “configured the district . . . at 

the behest of the Democratic leadership”). 

293 Id. at 77. 

294 Id. at 70. 

295 Id. at 74. 

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configuration [of District 11] that was in 369” after the Republican map drawers had “ma[d]e 

changes and incorporate[d] things that the Democrats wanted to see.”296

On cross-examination, Judy admitted that despite changes that were made to H.B. 369 prior 

to its passage, it looked “substantially similar” to the initial version of H.B. 369 introduced by the 

Republicans members of the General Assembly.297

C. Plaintiffs’ Expert Witnesses

1. Dr. Christopher Warshaw 

Dr. Christopher Warshaw testified at trial for Plaintiffs as an expert witness. Dr. Warshaw 

is a tenure-track assistant professor of political science at the George Washington University, 

teaching courses on political science, elections, public opinion, statistical methodology, and 

political representation.298 His research has been published extensively in prestigious peerreviewed publications and he has published specifically on the topic of partisan gerrymandering.299

 

Dr. Warshaw has also served as an expert witness in two other partisan-gerrymandering cases; no 

court has ever failed to credit his testimony.300 The Court qualified Dr. Warshaw as an expert in 

the fields of elections, partisan gerrymandering, polarization, and representation and found his

testimony highly credible.301

 

296 Id. at 76. 

297 Id. at 83. 

298 Dkt. 240 (Warshaw Trial Test. at 180). 

299 Id. at 184, 187.

300 Id. at 190. 

301 Id. at 190–91. 

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a. Partisan-bias metrics

Dr. Warshaw testified at length about four302 specific partisan-bias metrics that he used to 

evaluate the 2012 map. He defines partisan bias broadly as “the idea of trying to quantify whether 

one party or another has an advantage in the translation of votes to seats.”303 Successful partisan 

gerrymanders efficiently translate votes for the favored party into seats for that same party. “In 

practice, this entails drawing districts in which the supporters of the advantaged party constitute 

either a slim majority . . . or a small minority.”304 Map designers accomplish the former by 

cracking voters from the opposition party into different districts so that they are highly unlikely to 

break the 50% mark in a given district and are therefore unable to elect the candidate of their 

choice. They accomplish the latter by packing voters from the opposition party into districts such 

that they have an unnecessarily large margin of victory. 

The concept of “wasted” votes underlies both of these strategies.305 In cracked districts,

the votes of the losing disfavored party are all wasted because they were allocated to a race that 

the disfavored party did not win. The closer the margin of victory in cracked districts, the more 

disfavored party votes are wasted. In packed districts, many votes of the winning disfavored party 

are wasted because there are many excess votes beyond those needed for victory. A party 

 

302 One of these metrics, partisan symmetry in the vote-seat curve, can be measured in two 

ways. See Trial Ex. P571 (Warshaw Rep. at 10–12).

303 Dkt. 240 (Warshaw Trial Test. at 195). 

304 Trial Ex. P571 (Warshaw Rep. at 4). 

305 “Wasted” votes has a technical meaning in this context. Of course, individual votes are 

counted; thus, individuals’ votes are not “wasted” in that sense. Rather, in partisangerrymandering cases, “wasted” votes capture a party’s efficiency (or inefficiency) in translating 

the votes that it receives into legislative seats—because “the goal of a partisan gerrymander is to 

win as many seats as possible given a certain number of votes.” Nicholas O. Stephanopoulos & 

Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 850 

(2015). Accordingly, wasted or “‘inefficient’ votes are those that do not directly contribute to 

victory.” Id. at 850–51. That is, the party, not the individual voter, “wasted” the vote. 

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designing a partisan gerrymander will attempt to waste few of its own supporters’ votes and waste 

many of the opposing party’s supporters’ votes. Partisan bias, an asymmetry or advantage in the 

efficiency of vote-seat translation, results. 

Dr. Warshaw used the efficiency gap, symmetry in the vote-seat curve, the mean-median 

difference, and the declination metric to measure partisan bias in the 2012 map.

306

 

i. Efficiency Gap

The efficiency gap compares the wasted votes for each party by calculating “the difference 

between the parties’ respective wasted votes, divided by the total number of votes cast in the 

election.”307 The efficiency gap reflects “the extra seats one party wins over and above what would 

be expected if neither party were advantaged in the translation of votes to seats (i.e., if they had 

the same number of wasted votes).”308 

Dr. Warshaw surveyed historical efficiency gaps across the country and found that they 

were generally quite small. Around 75% were between -10% and 10%, and only around 4% had 

an efficiency gap of greater than 20% in either direction.309 He demonstrated that Ohio’s 2012 

efficiency gap of -22.4% was a historical outlier—“more extreme than 98% of previous plans in 

states with more than six seats over the past 45 years, and . . . more Republican-leaning than 99% 

of previous congressional redistricting plans.”

310

 It also reflected a major increase from Ohio’s 

efficiency gap prior to the 2011 redistricting efforts.311 Ohio’s efficiency gaps in 2014 and 2016 

 

306 Dkt. 240 (Warshaw Trial Test. at 196–97). 

307 Trial Ex. P571 (Warshaw Rep. at 6) (quoting Stephanopoulos & McGhee, Partisan 

Gerrymandering and the Efficiency Gap, supra). Dr. Warshaw used the version of the efficiency 

gap equation that accounts for unequal turnouts across districts. See id. at 7–8. 

308 Id. at 8. 

309 Id. 

310 Id. at 8, 19–20, 23. 

311 Id. at 23.

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were -9% and - 8.7%, respectively, “imply[ing] that Republicans in Ohio won 1-4 more seats in 

these elections than they would have won if Ohio had no partisan bias in its efficiency gap.”312 

Ohio’s efficiency gap in the 2018 election was -20%, more extreme than 96% and more proRepublican than 98% of previous comparable plans.313

ii. Partisan symmetry in the vote-seat curve

Symmetry in the vote-seat curve compares how both parties’ seat shares change as their 

vote shares increase or decrease.314 Dr. Warshaw explained that in an unbiased districting scheme, 

if Democratic candidates receive 52% of the votes and earn 60% of the seats, then when 

Republican candidates receive 52% of the votes, they should also earn 60% of the seats. One can 

measure symmetry by applying a counterfactual uniform swing in vote shares from 45% to 55% 

and measuring departures from parity in seat share between the parties.315 One applies a uniform 

swing by increasing the vote share of a given party by a fixed percentage across all districts.316 

Symmetry can also be measured simply by comparing the seat share that each party achieves when 

it receives 50% of the vote. Applying uniform swings, the level of partisan asymmetry in Ohio’s 

2012 election was “more extreme than 96% of previous elections and more pro-Republican than 

97% of previous U.S. congressional elections over the past 45 years.”317 The result was the same 

when the symmetry analysis was conducted using the method that compares seat shares when each 

 

312 Id. 

313 Trial Ex. P476 (Warshaw 2018 Update at 3). 

314 Trial Ex. P571 (Warshaw Rep. at 10). 

315 Id. 

316 Dkt. 240 (Warshaw Trial Test. at 202). 

317 Trial Ex. P571 (Warshaw Rep. at 27). Dr. Warshaw used the same elections data to 

conduct his symmetry analysis as he did with the other partisan-bias metrics. See id. at 6. 

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party earns 50% of the vote.318 With uniform swings, the 2018 elections were more asymmetric 

than 92% of previous elections and more pro-Republican than 94% of the comparison group.319

iii. Mean-median gap

The mean-median gap reflects “the difference between a party’s vote share in the median 

district and their average vote share across all districts. If the party wins more votes in the median 

district than in the average district, they have an advantage in the translation of votes to seats.”320 

Dr. Warshaw found that Ohio’s mean-median gap jumped from 1.7% in 2010 to 7.8% in 2012, 

following the redistricting.321 He also found that the 2012 mean-median gap was more extreme 

than that in 83% of prior elections and more pro-Republican than that in 92% of prior elections.322 

The 2018 mean-median gap was 5%, more extreme than in 62% of previous elections and more 

pro-Republican than in 81% of previous elections.323

iv. Declination 

Lastly, the declination metric involves graphically plotting the districts in a plan from least 

Democratic to most Democratic and then measuring and comparing the angles formed by best-fit 

lines for each party’s seats measured from the 50% Democratic vote share line.324 The calculations 

result in a score between -1 and 1, which indicates the size and direction of the partisan bias of the 

 

318 Id.

319 Trial Ex. P476 (Warshaw 2018 Update at 4). 

320 Trial Ex. P571 (Warshaw Rep. at 8) (citing Jonathan S. Krasno et al., Can Gerrymanders 

be Detected? An Examination of Wisconsin’s State Assembly, AM. POLITICS RES. (2018); Robin E. 

Best et al., Considering the Prospects for Establishing a Packing Gerrymandering Standard, 

ELECTION L.J. (2017); Samuel Wang, Three Tests for Practical Evaluation of Partisan 

Gerrymandering, 68 STAN. L. REV. 1263 (2016)) (footnote omitted). 

321 Id. at 24.

322 Id. at 25. 

323 Trial Ex. P476 (Warshaw 2018 Update at 3). 

324 See Trial Ex. 571 (Warshaw Rep. at 12–13) (explaining the exact method for calculating 

the declination metric of a given map). 

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map.325 Ohio’s 2012 declination score of -0.77 was “more extreme than 99% of previous elections 

and more pro-Republican than any previous U.S. congressional election over the past 45 years.”326 

Ohio’s 2018 declination score of -0.69 “was more extreme than 98% of previous elections and 

more pro-Republican than 99% of previous U.S. congressional elections.”327

v. Strengths and weaknesses of the metrics 

Dr. Warshaw highlighted some of the strengths and weaknesses of each partisan-bias 

metric. For example, a strength of the efficiency gap is that it “can be calculated directly from 

observed election returns even when the parties’ statewide vote shares are not equal.”328 However, 

the efficiency gap can also be a more volatile metric than some of the others, and it is not 

recommended for use in smaller states with relatively few congressional districts.329 A strength of 

the symmetry metric is that it is far less volatile over time and has been widely used and accepted 

in academic work on partisan gerrymandering.330 One weakness of both symmetry metrics is that 

they involve the calculation of counterfactual elections.331 The mean-median gap is easy to apply, 

but it is “sensitive to the outcome in the median district.”332 For its part, the declination measure 

“is somewhat unstable when a party holds a very small number of seats in the legislature.”333 Dr. 

Warshaw explained that all these metrics are “closely related both theoretically and empirically, 

but nonetheless, there’s small differences between them . . . [and] looking at a suite of different 

 

325 Id. 

326 Trial Ex. P571 (Warshaw Rep. at 26). 

327 Trial Ex. P476 (Warshaw 2018 Update at 3). 

328 Trial Ex. P571 (Warshaw Rep. at 8). 

329 Dr. Warshaw therefore included in his analysis only states with more than six 

congressional seats. Id. at 19 n.22. 

330 Id. at 12. 

331 See id. at 11–12. 

332 Id. at 8–9. 

333 Id. at 13.

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metrics in concert gives us greater confidence in any conclusion that we . . . draw.”334 Looking 

across all the metrics, Dr. Warshaw concluded that “Ohio’s recent elections [under the 2012 plan] 

display a larger partisan bias in favor of Republicans than most previous plans in Ohio or in other 

states.”335

b. Requirements of a partisan gerrymander 

Dr. Warshaw testified about how he determines in his academic work whether a 

redistricting plan is a partisan gerrymander. According to Dr. Warshaw, to qualify as a partisan 

gerrymander, a districting plan must satisfy four different elements. First, a single party must have 

controlled the redistricting process—meaning that in a state with a bicameral legislature, it must 

have had control of both houses and the governorship—and that same party must be favored by 

the map.336 Under Dr. Warshaw’s criteria, whether members of the disfavored party cast roll-call 

votes in support of the redistricting plan is meaningless in determining whether the plan was a 

gerrymander.337 Second, all partisan-bias metrics that Dr. Warshaw employs (efficiency gap,

symmetry in the vote-seat curve, mean-median gap, and declination) must “indicate [that] the same 

party that controlled the redistricting process was actually advantaged in the translation of votes 

to seats.”338 Third, the map must be an outlier in terms of its partisan-bias metrics when compared 

 

334 Dkt. 240 (Warshaw Trial Test. at 197); see also Trial Ex. P571 (Warshaw Rep. at 14) 

(demonstrating high levels of correlation between measures of partisan bias in states where the 

Democratic vote share was 40-60%). 

335 Trial Ex. P571 (Warshaw Rep. at 4). 

336 Dkt. 240 (Warshaw Trial Test. at 191, 194). Warshaw discusses how partisan control 

of the redistricting process results in measurable changes in the efficiency gap in favor of the party 

in control, both in Ohio and elsewhere. Trial Ex. P571 (Warshaw Rep. at 17–18).

337 Dkt. 240 (Warshaw Trial Test. at 194). Dr. Warshaw testified that his approach of not 

considering roll-call votes cast by the non-controlling party is the accepted one in political science. 

Id. 

338 Id. at 192. 

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to historical elections across the country in the last forty-five years.339 Fourth, all four partisanbias metrics measuring a given map must point in the same direction.340

Dr. Warshaw found that under this rubric, the 2012 plan was a partisan gerrymander 

because: (1) the Republican Party controlled the redistricting process and the map favored the 

Republican Party; (2) all four of his partisan metrics indicated that the Republicans were actually 

advantaged in the translation of votes to seats; (3) the map was an outlier when compared to the 

dataset of hundreds of historical maps; and (4) all four partisan metrics pointed in the same 

direction—toward a pro-Republican bias.

c. Responsiveness, competitiveness, and durability

Dr. Warshaw also evaluated the responsiveness and competitiveness of the 2012 map. 

Responsiveness measures “how insulated a plan is from changes in voter preferences” or,

conversely, “how likely the election results are to change due to changes in voter preferences.”341 

A map is more responsive if it yields different seat shares when there are swings in voter 

preferences from year to year. Dr. Warshaw measures responsiveness in two ways: (1) 

determining how many districts with competitive seats exist and (2) applying a uniform swing of 

vote shares between 45% and 55% across all districts and measuring how the seat-share outcome 

changes.342 

 

339 Id. Dr. Warshaw examines the years since 1972 because all states were in compliance 

with the one-person, one-vote principle announced in Baker v. Carr, 369 U.S. 186 (1962) at that 

point. Id. at 195, 198–99; Trial Ex. P571 (Warshaw Rep. at 6 n.3). This dataset encompasses over 

500 elections. Dkt. 240 (Warshaw Trial Test. at 203). 

340 Dkt. 240 (Warshaw Trial Test. at 192). 

341 Id. at 201.

342 Id. at 202; Trial Ex. P571 (Warshaw Rep. at 15). Dr. Warshaw termed a district 

competitive in this context if the winning party received less than 55% of the two-party vote. Trial 

Ex. P571 (Warshaw Rep. at 15). He stated that “[i]n responsive systems, a 10% [change] in vote 

share from 45% to 55% will generally lead to a change in seat share of around 20%. In a[n] 

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Dr. Warshaw concluded that Ohio’s present map “has led to historically uncompetitive 

elections.”343 First, in 2012, Ohio had only two competitive congressional seats.344 In both 2014 

and 2016, not a single congressional district in Ohio saw a competitive election.345 In 2018, Ohio 

again had only two competitive seats.346 The uniform swings also demonstrated that the 2012 map

is highly unresponsive.347 Applying uniform swings to the 2012 election results, he found that 

Democrats would win the same 25% of the congressional seats if they won anywhere from 30% 

to 52% of the statewide vote. To advance to holding 37.5% of seat-share, they had to win 55% of 

the statewide vote.348 Dr. Warshaw determined that 2018 was a more responsive year than earlier 

years according to the uniform swing analysis. However, “most of this responsiveness occurs at 

the very upper end of the range of plausible statewide vote shares for democrats”; Republicans 

would still win “75% of the seats across most of the range of plausible election swings,” even if 

50% of the vote share was Democratic.349 

Dr. Warshaw also found that the effects of the 2012 map are durable throughout time.350 

Although the partisan-bias metrics generally became somewhat less extreme as time went on, the 

level of partisan bias in 2012 under each metric was a “powerful and statistically significant 

predictor” of the same metric’s level in 2016 and 2018.351

 

unresponsive system, there could be little or no change in seat share from a 10% change in vote 

share.” Id. at 15. 

343 Id. at 4. 

344 Id. at 15. 

345 Id. at 28. 

346 Trial Ex. P476 (Warshaw 2018 Update at 11).

347 Trial Ex. P571 (Warshaw Rep. at 29).

348 Id. at 15.

349 Trial Ex. P476 (Warshaw 2018 Update at 12–13). 

350 Trial Ex. P571 (Warshaw Rep. at 4).

351 Id. at 31; Trial Ex. P476 (Warshaw 2018 Update at 10).

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d. Polarization, representation, and trust in representatives 

Dr. Warshaw testified about political polarization and its impact on representation. He 

defined polarization as “the distance between the average preferences of members of the two 

parties.”352 He concluded that due to increased ideological polarization between Democratic and 

Republican members of Congress, Ohio Democratic voters who are disadvantaged by the 

districting scheme and represented by Republican congressmen are unlikely to have their views 

represented by their representatives in Congress; gerrymandering therefore negatively affects 

representation. He also found that “voters in gerrymandered states . . . trust their representatives 

less than voters in non-gerrymandered states.”353 

e. Proposed Remedial Plan

Dr. Warshaw used the same data to analyze the Proposed Remedial Plan as he did with the 

2012 map and found that the Proposed Remedial Plan had far lower levels of partisan bias and 

higher levels of responsiveness than the 2012 map; it “had no substantial partisan bias.”354

2. Dr. Wendy K. Tam Cho

Dr. Wendy K. Tam Cho testified at trial for Plaintiffs as an expert witness. Dr. Cho is a 

full professor at the University of Illinois at Urbana-Champaign, and she holds appointments in

several departments, including political science, statistics, and mathematics.355 Dr. Cho is also a 

Senior Research Scientist at the National Center for Supercomputing Applications at the 

University of Illinois.356 She has studied redistricting for thirty years and written extensively on 

 

352 Dkt. 240 (Warshaw Trial Test. at 203).

353 Trial Ex. P571 (Warshaw Rep. at 4–5, 33, 37). 

354 Id. at 5, 32–33, 43; Trial Ex. P476 (Warshaw 2018 Update at 14–15).

355 Trial Ex. P086 (Cho CV).

356 Id.

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the topic through the lens of multiple academic disciplines.357 Dr. Cho previously testified as an 

expert in a partisan-gerrymandering case on behalf of defendants in Pennsylvania who were 

defending a map enacted by the Republican legislature in the Commonwealth; the court in that 

case qualified her as an expert.358 This Court qualified Dr. Cho as an expert in political science, 

political geography and redistricting, statistics and applied statistics, statistical modeling and 

sampling from unknown distributions, and the design of algorithms.359

Dr. Cho testified about her analysis of the current map and its partisan characteristics as 

compared to a set of simulated maps that she generated. Dr. Cho used an Evolutionary Markov 

Chain Monte Carlo (“EMCMC”) algorithm360 to run a simulation on a supercomputer, and the 

algorithm generated 3,037,645 simulated maps.361 These maps incorporated only neutral 

redistricting criteria and no partisan data (she analyzed partisanship after generating the maps).362 

 

357 See id.; Dkt. 242 (Cho Trial Test. at 134–37).

358 Dkt. 242 (Cho Trial Test. at 138–39).

359 Id. at 140–41. We note that Dr. Cho’s reports and testimony are subject to a Daubert

motion, but Defendants have not objected to Dr. Cho’s qualifications. See Dkt. 148, 148-1 

(Intervenors’ Mot. to Exclude Cho).

360 The algorithm was written in the coding language C++. Dkt. 242 (Cho Trial Test. at 

155). Importantly, the code is separate and distinct from the algorithm. The algorithm is important 

because it represents the idea behind Dr. Cho’s analysis. The code implements the algorithm. Id.

at 156. Dr. Cho has developed this algorithm and code over more than a decade. Id. at 156–57. 

Defendants raise various objections related to both the algorithm and code in this case.

The Court overrules any objections related to Dr. Cho’s code. Although Intervenors 

complain that the code was not peer reviewed or tested for accuracy, Dr. Cho testified that it is not 

customary in the field of computer science to subject code itself, as opposed to algorithms, to peer 

review. Dkt. 243 (Cho Trial Test. at 95–97, 99–100, 127). Intervenors provide no evidence to the 

contrary. Moreover, Dr. Cho made her code available to Defendants’ and Intervenors’ expert 

witnesses in read-only form—and offered to make her code available in native format—to allow 

them to verify the code. Dkt. 246 (Thornton Trial Test. at 137–41); Trial Ex. IM073 at 2. 

Intervenors apparently decided not to have their experts verify the entirety of the read-only code. 

Nor did Intervenors take advantage of Dr. Cho’s offer to produce the native version of the code, 

and we therefore reject their complaint that the code was not tested for accuracy. 

361 Trial Ex. P087 (Cho Rep. at 10).

362 Id. at 8–10.

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Through this analysis, Dr. Cho was “trying to understand what would be a typical map that would 

emerge from a non-partisan [map-drawing] process.”363 Specifically, her analysis sought to 

determine whether neutral factors, primarily political geography, could explain the 12-4 outcome 

of the current map.

Dr. Cho’s simulations can be analogized to a coin toss. For example, if you toss a coin 

1,000 times, and the coin lands on heads 582 times, that is one datapoint. If you flip the coin 

another 1,000 times, and the coin lands on heads 602 times, that is another datapoint. Running 

through this process many times (e.g., 3 million) provides a fuller picture of the typical outcomes. 

With a fair coin, outcomes of around 500-heads and 500-tails would be typical; 950-heads or even 

1,000-heads out of 1,000 flips are also theoretically possible, but such outcomes would be 

surprising if the coin tosses were done with a fair coin. In this redistricting context, Dr. Cho 

generated over 3-million simulated maps and then analyzed the seat share between the parties 

under each. This process allowed her to compare how typical a 12-4 seat share between 

Republicans and Democrats would be under a neutral map-drawing process and, thus, to analyze

whether it is likely that the 12-4 seat share can be explained by factors such as Ohio’s natural 

political geography.364 In short, Dr. Cho’s simulated maps are meant to provide a nonpartisan 

baseline against which to compare the current map.

Dr. Cho’s methodology includes several key and related components.365 Dr. Cho’s 

EMCMC algorithm, which she used to generate the simulated maps, is grounded in the Markov 

 

363 Dkt. 242 (Cho Trial Test. at 144).

364 See generally id. at 144–46.

365 Intervenors argue in their Daubert motion that Dr. Cho’s methodology is flawed. They 

contend that her algorithm has not been adequately peer reviewed, her results have not been tested 

or verified, she fails to offer an error rate or confidence level for her results, and her methodology 

has not been generally accepted by the scientific community. The Court rejects these arguments. 

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First, the algorithm has been sufficiently peer reviewed. The algorithm was the subject of 

a paper titled “A Massively Parallel Evolutionary Markov Chain Monte Carlo Algorithm for 

Sampling Complicated Multimodal State Spaces,” which was published as part of a peer-reviewed 

conference. Trial Ex. P086 (Cho CV at 2); Dkt.242 (Cho Trial Test. at 154); Dkt. 243 (Cho Trial 

Test. at 86–87). The idea behind the algorithm was peer-reviewed, which is the standard practice 

in computer science. Dkt. 243 (Cho Trial Test. at 86–88, 96–98, 126–27). Second, the lack of an 

error rate or confidence level is to be expected for an algorithm designed to draw a random sample 

from a complex, multimodal, unknown distribution. The entire point of the algorithm is to draw 

a sample from an unknown distribution, and if the distribution is unknown, logically, one cannot 

calculate an error rate or confidence level of the randomness of the sample. See Dkt. 243 (Cho 

Trial Test. at 93–94). The same answer applies to the argument that the algorithm is untested by 

other scientists in the community. It appears that the algorithm’s accuracy could not be tested on

unknown distributions (the very type of distributions from which it is meant to sample); the point 

is that the theory behind the algorithm’s ability to sample from such distributions has passed peer 

review. Nonetheless, Dr. Cho tested the algorithm on a non-trivial data set with a known 

distribution and confirmed that the algorithm uniformly sampled that space (although she did not 

provide the results of that test). Id. at 93–95, 101. She also testified that other computer scientists 

could write their own code to implement her algorithm to test it on a known distribution. Id. at 

96–97. Defendants offered no evidence that any of their experts tested her algorithm against a 

known distribution and found it flawed. Finally, there is no evidence that the pertinent scientific 

community does not accept the use of algorithms to solve sampling problems. Indeed, Dr. Cho’s 

innovative algorithm is meant to meld two established types of algorithms—MCMCs and 

evolutionary algorithms—to permit optimizations heuristics to guide the movements of the 

Markov chains, resulting in a more efficient draw of a random sample from a complex, multimodal, 

unknown distribution. See id. at 55, 88, 151–52; Trial Ex. P087 (Cho Rep. at 6). 

Finally, the reliability of Dr. Cho’s methodology is bolstered by the fact that she developed 

this algorithm independently of her work in this case. The fact that she developed the algorithm 

and submitted it for peer review before tailoring it to and running it in this case shows that she did 

not develop her methodology solely for litigation purposes. Daubert v. Merrell Dow Pharm., Inc., 

43 F.3d 1211, 1317 (9th Cir. 1995) (“That the testimony proffered by an expert is based directly 

on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis 

for concluding that the opinions [s]he expresses were ‘derived by the scientific method.’”). 

Because Dr. Cho used the algorithm developed in the course of her work in reaching her opinions 

in this case, the Court is convinced that she “employ[ed] in the courtroom the same level of 

intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire 

Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). 

For the reasons above, the Court rejects Intervenors’ general challenges to the methodology 

underlying Dr. Cho’s analysis. The Court discusses infra their more specific objection that Dr. 

Cho’s conclusions are entitled to no weight because she erred in setting the redistricting parameters 

for the algorithm in this particular case.

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Chain Monte Carlo (“MCMC”) theorem.366 MCMC algorithms are a commonly used technique 

for sampling.367 In the redistricting context, a Markov Chain randomly walks from one simulated 

map to another, different simulated map.368 In Dr. Cho’s EMCMC, each movement of the Markov 

Chain is guided by optimization heuristics, which improve the Markov Chain’s “efficiency and 

effectiveness in the traversal of the search space.”369 The MCMC theorem, meanwhile, ensures a 

representative sample of the massive universe of possible maps.370 Lastly, Dr. Cho ran the 

algorithm on the University of Illinois’s Blue Waters supercomputer, which enabled the algorithm 

to output the sample of over 3-million simulated maps relatively quickly.

371

 All these components 

worked together to allow for the drawing of “a random and large sample of feasible electoral 

maps,” out of the much larger universe of feasible alternative maps.372

Dr. Cho built in several constraints when she produced her simulated maps, and those 

constraints are what define a map as “feasible” in her simulation. Dr. Cho testified that she arrived 

at the constraining criteria by “look[ing] at the legislative record to see what the legislature was 

applying.”373 Primarily, Dr. Cho looked at State Representative Huffman’s statements in support 

of H.B. 319.374 Representative Huffman explained that the map considered compliance with the 

VRA, equal population, and “several other traditional redistricting principles”: “compactness, 

contiguity, preservation of political subdivisions, preservation of communities of interest, 

 

366 Trial Ex. P087 (Cho Rep. at 6).

367 Dkt. 242 (Cho Trial Test. at 152).

368 Id. at 153; Trial Ex. P087 (Cho Rep. at 6).

369 Trial Ex. P087 (Cho Rep. at 6–7). 

370 Dkt. 242 (Cho Trial Test. at 152–53); Trial Ex. P087 (Cho Rep. at 6–7).

371 Trial Ex. P087 (Cho Rep. at 5–7); Dkt. 242 (Cho Trial Test. at 151, 155); Dkt. 243 (Cho 

Trial Test. at 69).

372 See Trial Ex. P087 (Cho Rep. at 7).

373 Dkt. 242 (Cho Trial Test. at 158).

374 Id. at 160–61. 

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preservation of cores of prior districts, and protection of incumbents.”375 In regards to incumbent

protection, Representative Huffman described that criterion as “a subservient one to the other ones 

that [he] listed”376 and further explained that, “[n]obody has a district. . . . There’s nobody that 

owns a piece of land in Congress. People elect them.”377 From this record, Dr. Cho decided to 

employ the following constraints: the creation of a minority district,378 county and city 

preservation,379 population equality,380 and compactness. Because she concluded from State 

 

375 See Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 17–18) (statement of Rep. 

Huffman).

376 Id. at 19.

377 Id. at 21.

378 Dr. Cho drew a district with a Black Voting Age Population (“BVAP”) of at least 45% 

in the Cleveland area. This constraint is based on the recommendation of Plaintiffs’ expert Dr. 

Lisa Handley. See Trial Ex. P087 (Cho Rep. at 8). Intervenors lodge a variety of objections to 

and arguments against this 45% figure. We address these arguments in our discussion of Dr. 

Handley’s report and testimony, see infra Section II.C.4., and in our analysis of the purported VRA 

justification for District 11, see infra Sections V.A.2.d.iii., V.C.2.b.ii. Dr. Cho did not include 

any “upper bound” on the maximum BVAP for the minority district. Dkt. 242 (Cho Trial Test. at 

159–60).

379 The current map splits twenty-three counties and Dr. Cho’s simulated maps split no 

more than twenty-three counties; the current map preserves 96.78% of cities, and Dr. Cho’s 

simulated maps preserve cities at least at the same rate. Id. at 162; Trial Ex. P087 (Cho Rep. at 8–

9). We also note that “communities of interest” may be an amorphous phrase, but one way to 

account for this factor is preserving municipalities and counties. See, e.g., Graham v. Thornburgh, 

207 F. Supp. 2d 1280, 1294–95 (D. Kan. 2002).

380 Dr. Cho’s simulated maps allow for a population deviation of up to 1%, or about 7,000 

people (not voters). Dkt. 242 (Cho Trial Test. at 167); see also Dkt. 243 (Cho Trial Test. at 25). 

This deviation is different from the current map, which achieves perfect equality (plus or minus 

one person), because the simulated maps are constructed at the precinct level—the lowest level for 

which partisan data are available—to allow for a more accurate analysis of partisan effect. Trial 

Ex. P087 (Cho Rep. at 9). To achieve perfect equality, like the current map, would require splitting 

precincts, which, in turn, would hinder the partisan-effect analysis. Dkt. 242 (Cho Trial Test. at 

165–66).

We find that Dr. Cho’s use of a 1% population deviation does not undermine her analyses 

in any significant way, and we overrule the objections on this point. Dr. Cho aimed, in part, to 

measure partisan effects, and this assessment was best done with the 1% deviation. For the 

simulated maps to achieve perfect equality would require moving, at most, 3,500 people in any 

given district, not all of whom would be voters; and even if all 3,500 people were voters, all of 

them would need to vote for the same party in order to have any possibility of swinging an election. 

That is unlikely. Dkt. 242 (Cho Trial Test. at 167–68). Accordingly, we are not persuaded that 

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Representative Huffman’s statement that incumbent protection was not a goal of the legislature 

when drafting the enacted map, Dr. Cho did not include as a constraint the avoidance of pairing 

incumbents.381

After generating the 3,037,645 simulated maps based on only neutral criteria, Dr. Cho 

engaged in two overarching analyses using partisan data. Again, this use of partisan data came 

into play only after the simulated maps were produced. First, she engaged in a Plaintiff-specific 

analysis. Second, she examined the partisan unfairness of the map as a whole by comparing its 

partisan characteristics to the partisan characteristics of the set of simulated maps.

a. Plaintiff-specific analysis 

Dr. Cho was given the home addresses of each individual Plaintiff, which allowed her to 

determine where each Plaintiff would live in each simulated map and to compare each Plaintiff’s 

current district with each Plaintiff’s set of simulated districts. Dr. Cho “compute[d] the average 

Democratic vote share for the plaintiff’s current district by calculating the average Democratic 

vote share in that district for congressional races from 2012 to 2016 . . . .”382 For the simulated 

maps, Dr. Cho “calculate[d] the average Democratic vote share for the plaintiff’s [simulated] 

district . . . with the 2008-2010 statewide election data.”383 These data included eight statewide 

races: the 2008 presidential race, the 2010 U.S. Senate race, the 2008 and 2010 Attorney General 

 

the 1% deviation significantly undermines any of Dr. Cho’s conclusions that the 12-4 split of the 

current map cannot be explained by the equal-population requirement.

381 Dkt. 242 (Cho Trial Test. at 171–77). Defendants argue that incumbent protection was 

one of the main pillars upon which the 2012 map was built. The Court, as factfinder, will address 

the extent to which the General Assembly considered incumbent protection, and how that 

conclusion impacts the weight given to Dr. Cho’s analysis infra Section V.A.2.b. The Court will 

also assess the validity of various types of incumbent protection infra Sections V.A.2.d., V.C.2.b.i. 

382 Trial Ex. P087 (Cho Rep. at 11). 

383 Id.

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races, and the 2010 Governor, Auditor, Secretary of State, and Treasurer races.384 Dr. Cho used 

statewide races to “avoid issues with district-specific factors and provide[] greater comparability 

across the state as a whole.”385 From there, Dr. Cho compared the likelihood of electing a 

Democratic candidate in each Plaintiff’s simulated districts with the likelihood of electing a 

Democratic candidate in their current district.386 We provide a fuller discussion of these findings 

in Section III.A., but we will provide two illustrative examples here. Some Plaintiffs, such as 

Plaintiff Goldenhar, live in allegedly cracked districts. Dr. Cho’s analysis showed that “[a]mong 

the set of simulated maps, 95.68% of them would have placed Plaintiff Goldenhar in a district that 

would have provided a higher likelihood of electing a Democrat.”387 That, is 95.68% of the 

simulated maps placed Plaintiff Goldenhar in a district with a higher average Democratic vote 

share. Other Plaintiffs, such as Plaintiff Inskeep, live in allegedly packed districts. Dr. Cho’s 

analysis showed that “none of [the simulated maps] would have placed Plaintiff Inskeep in a 

district that would have provided a higher likelihood of electing a Democrat.”388 That is, 0% of 

the simulated maps placed Plaintiff Inskeep in a district with a higher average Democratic vote 

share.

 

384 Id. We address objections to Dr. Cho’s use of these data in our discussion of Dr. 

Thornton’s rebuttal. See infra Section II.D.2.a.

385 Trial Ex. P087 (Cho Rep. at 11).

386 See id. at 13–30; see also Trial Ex. P426 (Cho Suppl. Rep. at 7, fig. 4) (providing 

updated analysis based on 2018 election data, as well as other election data).

387 Trial Ex. P087 (Cho Rep. at 13).

388 Id. at 15.

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b. Partisan unfairness analysis

In addition to her Plaintiff-specific analysis, Dr. Cho examined the partisan outcomes of 

her simulated maps as compared to the current map, which allowed her to assess partisan effect. 

At a high-level, Dr. Cho assessed competitiveness389 and partisan bias using multiple metrics.390

i. Competitiveness 

Dr. Cho “consider[ed] a district to be competitive if the margin of victory, or the difference 

between the Republican two-party vote share and the Democratic two-party vote share, is 1) within 

5 percentage points and 2) within 10 percentage points.”391 Dr. Cho concludes that “[a]t the 5% 

margin of victory, the simulated maps generally have between 2–6 competitive seats,” and that 

“[f]or both parties, [winning] 1–3 seats with a margin of victory within 5% [is] not unusual.”392 

Meanwhile, the current map produced three competitive elections within a 5% margin of victory, 

one in 2012 (District 16) and two in 2018 (Districts 1 and 12), and the Republican won each.393 

Additionally, one other election in 2012 (District 6) was competitive at the 10% margin of 

victory.394 Under the simulated maps, “often, 9 of the seats are competitive at the 10% margin of 

victory”; the next most common result was 8 competitive seats.395 Three or four of these 

competitive seats (at the 10% margin of victory) generally favor Republicans, and four to six 

generally favor Democrats.396 In her supplemental report, Dr. Cho provides further analysis of 

 

389 State Senator Keith Faber, a Republican, speaking in support of H.B. 319, stated that 

“competitiveness in and of itself is not an end-all be-all. It is not one of the requirements that we 

have to draw by. However, it is a factor.” Trial Ex. J03 (Ohio Senate Session, Sept. 21, 2011 at 

13) (statement of Sen. Faber).

390 Trial Ex. P087 (Cho Rep. at 31–32); Dkt. 242 (Cho Trial Test. at 186–87).

391 Trial Ex. P087 (Cho Rep. at 33).

392 Id. at 34–35.

393 See Trial Ex. P426 (Cho Suppl. Rep. at 5, tbl. 4).

394 Id.

395 Trial Ex. P087 (Cho Rep. at 34).

396 Id. at 35.

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competitiveness based on the 10% margin of victory. “For the 2012–2014 data, 2–3 of the 

competitive seats were commonly Republican while 3–5 of the competitive seats were commonly 

Democratic.”397 In 2018, that number remained the same for Republicans, but competitive seats 

that leaned Democratic decreased to three or four.398

Based on her analysis of competitiveness, Dr. Cho concludes that “[t]he Republican 

margins across the entire set of districts [in the current map] are large enough that they are 

sufficiently insulating to produce an enduring effect.”399 Moreover, she concludes that because of 

“the difference in the competitiveness, via several different measures,[ 400]of the simulated maps 

versus the current map, it seems that competitiveness was almost a non-existent factor if one at all 

in the construction of the enacted map since the current districts lean so heavily toward one 

party.”401

 

397 Trial Ex. P426 (Cho Suppl. Rep. at 4).

398 Id.

399 Id. at 6. She arrives at this conclusion, in part, after observing that in the two competitive 

2018 elections, the Democratic challengers noticeably outspent their Republican-incumbent 

opponents. Id. at 5–6, tbl. 5.

400 Dr. Cho also captures the total number of competitive seats combined with how many

of the competitive seats each party wins in a single metric, which has been presented in two of her 

publications. Dkt. 242 (Cho Trial Test. at 196–97); Trial Ex. P087 (Cho Rep. at 36). Dr. Cho 

employed this metric only after creating the maps, i.e., competitiveness was not a factor in how 

the simulated maps were drawn. Dkt. 242 (Cho Trial Test. at 196–98). Under this metric, 

competitiveness scores range from zero to one, and at zero, “competitiveness is maximized 

because 1) the number of Republican votes and the number of Democratic votes is the same and 

2) the number of districts where Republicans dominate and the number of districts where the 

Democrats dominate is identical.” Trial Ex. P087 (Cho Rep. at 36). Figure 23 in Dr. Cho’s initial 

report shows that the current map is less competitive compared to the simulated maps; whereas 

most of the simulated maps score between 0.09 and 0.11, the current map scores 0.16 under this 

competitiveness metric. See id. at 37, fig. 23. We consider this specific metric only for Dr. Cho’s 

conclusion that competitiveness was seemingly a “non-existent factor” in drawing the current map. 

Dr. Cho’s other analyses of competitiveness, however, go to that conclusion and her separate 

conclusion that the lack of competitiveness across districts produces an enduring partisan effect.

401 Trial Ex. P087 (Cho Rep. at 37).

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ii. Responsiveness and bias

In her initial report, which utilized 2008-2010 election data, Dr. Cho assessed the 

responsiveness and bias in the simulated maps compared to the current map using two measures 

based on the seats-votes curve (which shows how, as the proportion of votes a party receives 

increases, so too should that party’s seat share).402 When Dr. Cho measured responsiveness, she 

produced her results in a histogram in which, as the values along the x-axis increase (from left to 

right), the responsiveness increases; thus, maps falling along the right of the x-axis are more 

responsive than those on the left.403 Dr. Cho concludes that the current map is “less responsive 

than almost all of the simulated maps.”404

Dr. Cho employed a symmetry measure to assess biasedness. This measure is grounded in 

the concept that “both parties should expect to receive the same number of seats given the same 

vote proportion.”405 Dr. Cho again produces her results in a histogram. “Here, a value of zero [in 

the middle of the x-axis on the histogram] is unbiased.”406 Positive values to the right of zero 

indicate a Republican bias, and negative values to the left indicate a Democratic bias.407 Dr. Cho 

finds that, although most of the simulated maps “have a Republican tilt[,] . . . the tilt toward 

Republicans is larger in the current map than it is for the simulated maps.”408 Indeed, some of the 

simulated maps were neutral and some even had a Democratic tilt; at any rate, H.B. 369 is far to 

the right of the simulated maps’ Republican tilt as presented in figure 26.409

 

402 See id. at 37–40.

403 Id. at 39; Dkt. 242 (Cho Trial Test. at 199–200).

404 Trial Ex. P087 (Cho Rep. at 38).

405 Id. at 39.

406 See id. at 39–40, fig. 26.

407 See id.

408 Id. at 39.

409 Id. at 40, fig. 26.

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iii. Seat share

Dr. Cho also compared the seat share between the parties from the current map to the seat 

share in her simulated maps. Based on the use of 2008 and 2010 election data, “none of the 

[simulated] maps in [Dr. Cho’s] sample had the same 12-4 seat share as in the challenged map.”410 

Furthermore, figure 19 of Dr. Cho’s initial report shows that the most common outcome in the 

simulated maps was eight or nine Republican seats, at about 1.3 million and 1.2 million 

respectively.411 Just over 250,000 of the simulated maps produced a 10-6 seat share in favor of 

Republicans,412 and some of the simulated maps even produced six or seven Republican seats.413 

Very few of the simulated maps produced an 11-5 seat share, but that outcome is barely visible in 

figure 19.414

Dr. Cho performed the same analysis using 2012-2014 data and 2018 data in her 

supplemental report. This analysis shows that over the decade, a 9-7 seat share in favor of 

Republicans became the most common partisan outcome in the simulated maps.

415

 An 8-8 seat 

share is the second most common outcome, but by 2018, the number of 8-8 outcomes was about 

equal to the number of 10-6 outcomes.416 “Eleven [Republican] seats occurred 0.12% of the time 

in the 2008-2010 analysis, 0.20% of the time in the 2012-2014 analysis, and 1.88% of the time in 

the 2018 analysis.”417 Finally, using the 2018 data, “a small number of maps, 1,445 out of more 

than 3 million total maps (0.046%) had, like the current map, 12 Republican seats.”418

 

410 Id. at 40.

411 Id. at 33; Dkt. 242 (Cho Trial Test. at 188).

412 Trial Ex. P087 (Cho Rep. at 33); Dkt. 242 (Cho Trial Test. at 188).

413 Trial Ex. P087 (Cho Rep. at 33, fig. 19).

414 Id.; Dkt. 242 (Cho Trial Test. at 188).

415 See Trial Ex. P426 (Cho Suppl. Rep. at 3, fig. 1); Dkt. 242 (Cho Trial Test. at 190–91).

416 See Trial Ex. P426 (Cho Suppl. Rep. at 3, fig. 1); Dkt. 242 (Cho Trial Test. at 191).

417 Trial Ex. P426 (Cho Suppl. Rep. at 3).

418 Id.

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3. Dr. J. David Niven

Dr. J. David Niven testified at trial for Plaintiffs as an expert witness. Dr. Niven is a 

tenured associate professor of political science at the University of Cincinnati, and he has a 

doctorate in political science from The Ohio State University.419 He teaches a variety of classes, 

including on the U.S. Congress and congressional elections, government and politics in Ohio, and 

political parties, among others.420 Dr. Niven’s scholarship focuses on questions of congressional 

representation and elections, public opinion, and voting preferences, and he has published in peerreviewed journals and book chapters on these topics but not on redistricting and gerrymandering 

specifically.421 Before writing his reports in this case, Dr. Niven had never used census tracts 

specifically, though he had “used a variety of census data points in understanding the makeup of 

districts as a whole.”422 Also before writing his reports in this case, Dr. Niven had never tried to 

identify boundaries for communities of interest.423 This Court admitted Dr. Niven as an expert in 

political science, subject to Defendants’ Daubert motion.424

Dr. Niven’s report and testimony assessed the current map’s makeup and the degree to 

which the districts divide communities of interest and reflect the political preferences of local 

 

419 Trial Ex. P525 (Niven CV).

420 See id.; Dkt. 242 (Niven Trial Test. at 5).

421 Trial Ex. P525 (Niven CV); Dkt. 242 (Niven Trial Test. at 6, 72).

422 Dkt. 242 (Niven Trial Test. at 72–73).

423 Id. at 72. Again, “communities of interest” is an amorphous term, but one way to 

account for this factor is preserving municipalities and counties. See Graham, 207 F. Supp. 2d at 

1294–95. As will be explained, Dr. Niven, in part, examined municipal and county splits. Mr. 

Cooper agreed that counties and municipal subdivisions are “a more objective way to identify a 

community of interest.” See Dkt. 241 (Cooper Trial Test. at 148). Moreover, the Intervenors’ 

expert, Dr. Brunell, agreed that “[t]here is no clear definition of what constitutes a community of 

interest, but cities and counties are generally characterized as such.” Trial Ex. I-060 (Brunell Rep. 

at 16).

424 See id. at 9; see also Dkt. 154 (Defs.’ Mot. to Exclude Niven). We deny Defendants’ 

motion, but as explained here and in our later analysis, we give greater weight and credit to certain 

portions of Dr. Niven’s report and testimony than others. 

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residents. He undertook this examination by analyzing census tracts425 that were either kept intact 

or split and by using the election data contained in “the 2010 Ohio Common and Unified 

Redistricting Database (‘OCURD’)” that was available to the map drawers during the 2011 

redistricting.426 Dr. Niven used census tracts as a basis for his analysis because they represent “a 

compact delineation of people who live in common geographic, cultural, and economic 

circumstance.”427

Dr. Niven finds that between the 2002 redistricting plan and the 2012 redistricting plan, 

the number of census tracts split between multiple congressional districts rose from 209 to 332 

(out of approximately 3,000 census tracts).428 Dr. Niven further finds that census tracts kept intact 

had an average Republican composition of 52.14%, whereas split census tracts had a higher 

composition of Democratic voters, with Republicans averaging 49.25% in split census tracts.429 

We note that Dr. Thornton reaches slightly different results on the partisan makeup of these census 

tracts and that there is a debate about the statistical significance of these results. See infra Section 

II.D.2.b. (discussing this issue). Nevertheless, both experts agree that split census tracts lean 

Democratic and intact census tracts lean Republican, and both agree that the number of census 

splits increased in the current map from the prior one. 

 

425 A census tract is a “small, relatively permanent statistical subdivision of a county or 

equivalent entity . . . .” See U.S. CENSUS BUREAU, GLOSSARY, at 

https://www.census.gov/programs-surveys/geography/about/glossary.html#par_textimage_13

(“Census tract boundaries generally follow visible and identifiable features. They may follow 

nonvisible legal boundaries, such as minor civil division (MCD) or incorporated place boundaries 

in some states and situations, to allow for census-tract-to-governmental-unit relationships where 

the governmental boundaries tend to remain unchanged between censuses.”)

426 Trial Ex. P524 (Niven Rep. at 1–2); see also Dkt. 242 (Niven Trial Test. at 11–15).

427 Trial Ex. P524 (Niven Rep. at 5).

428 Id. at 5–6; Dkt. 242 (Niven Trial Test. at 18); see also Dkt. 242 (Niven Trial Test. at 77) 

(Dr. Niven stating on cross-examination that he would not be surprised that 88.75% of all census 

tracts were kept whole).

429 Trial Ex. P524 (Niven Rep. at 6).

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We credit Dr. Niven’s census-tract analysis to the extent that it shows some differential 

treatment between Republican and Democratic voters, and we observe that this difference is 

consistent with the nature of other splits (not involving census tracts) present in the current map. 

We do not give any significant weight to just the raw number of splits, without any further context. 

For example, census tracts could contain more than one municipality, so a split census tract could 

nonetheless keep its component municipalities intact.

430

In his response to Dr. Thornton, Dr. Niven also shows that, using a four-election index,431

9.4% of Republican census tracts and 13.8% of Democratic census tracts were split among 

multiple congressional districts.

432

 Using an eight-election index,433 9.7% of Republican census 

tracts and 13.5% of census tracts were split.434 In sum, split census tracts leaned Democratic, and 

census tracts with more Democratic voters were also more likely to be split into multiple 

congressional districts than census tracts with more Republican voters.435

After his statewide analysis,436 Dr. Niven discussed particular districts. His report focuses 

on Hamilton County (Districts 1 and 2), District 9, Franklin County (Districts 3, 12, and 15), and 

Summit County (Districts 11, 13, 14, and 16). Dr. Niven’s report also surveys political science 

 

430 See Dkt. 242 (Niven Trial Test. at 105).

431 The four-election index includes the 2008 presidential election, and the 2010 

gubernatorial, attorney general, and auditor elections. See Trial Ex. P526 (Niven Resp. at 1 n.3).

432 Id. at 2. A Republican census tract is one that scored 0.50 or higher on the four-election 

index; a Democratic census tract is one that scored 0.499 or lower. Id.

433 This index included those elections in the four-election index and four additional 

elections: the 2008 attorney general election, and the 2010 secretary of state, treasurer, and U.S. 

Senate elections. Id. at 1–2 n.5.

434 Id. at 2–3. 

435 Dr. Niven elaborated on these findings at trial. See generally Dkt. 242 (Niven Trial 

Test. at 20–23).

436 Dr. Niven’s analysis regarding the location of congressional offices could benefit from 

further explanation. Trial Ex. P524 (Niven Rep. at 4). For example, there is no explanation as to 

whether Democratic constituents were burdened more than Republican constituents. Accordingly, 

we do not consider this specific portion of Dr. Niven’s report and testimony.

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literature that shows that, when neighborhoods are divided into different districts, campaign efforts 

become “more complicated and less efficient . . . .”437 Dr. Niven similarly testified at trial that 

“the political science literature is very clear that the more you subject a neighborhood to political 

splitting, . . . it has a demobilizing effect. . . . It’s harder for parties and other entities to go into a 

neighborhood and activate voters when those voters live in separate districts and, therefore, are 

responding to separate candidates.”438

a. Hamilton County: Districts 1 and 2

Dr. Niven began his analysis of Hamilton County with District 1. He notes that District 1 

swung back and forth between electing Republicans and Democrats under the prior map and that 

one “academic analysis deemed [District 1] a ‘textbook example of a marginal district.’”439 After 

redistricting, that has not been the case. Dr. Niven’s analysis shows, for example, that in 2008 

President Obama won the old District 1 with 55.17% of the vote compared to Senator John 

McCain’s 44.83%. By contrast, the same election under the current District 1, which splits 

Cincinnati and more of Hamilton County than under the old District 1, results in a 52.3% to 47.7% 

win for Senator McCain.

440

 The new District 1 both split Hamilton County and added the whole 

of Warren County, which votes heavily Republican (and voted heavily for Senator McCain in the 

2008 presidential election).441 Using an index that incorporates a wider array of elections (“Dr. 

 

437 Id. at 5.

438 Dkt. 242 (Niven Trial Test. at 12); see also id. at 38.

439 Trial Ex. P524 (Niven Rep. at 6) (citation omitted).

440 Id. at 8.

441 See id. at 7; Dkt. 242 (Niven Trial Test. at 27, 30).

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Niven’s index”),442 he found that Republican candidates averaged 42.07% of the vote in the old 

District 1, but that index percentage increased to 51.89% in the new District 1.443

Meanwhile, District 2 was and remains safely Republican, but fourteen Cincinnati 

neighborhoods are divided between Districts 1 and 2.444 Dr. Niven explains that “Cincinnati is 

unusual in its commitment to formally recognizing and building policy around the city’s 52 

neighborhoods. Indeed, the city’s economic development strategy is built around the individual 

needs and assets of individual neighborhoods . . . .”445 He notes that “while the rest of Hamilton 

County gave 52.19% of its vote” to President Obama in 2008, “the Cincinnati neighborhoods 

divided between the 1st and 2nd districts gave 59.37% of their vote” to President Obama in that 

election.446 Looking at those same neighborhoods under Dr. Niven’s index, the “split 

neighborhoods gave more than 75% of their vote to Democratic candidates” and the percentage 

for the rest of Hamilton County was about 45%.447 Dr. Niven testified that “the 2nd District 

becomes something of a donor district. It had more Republicans than was needed to ensure a safe 

district.”448 In short, Cincinnati and these neighborhoods supported Democratic candidates, and 

they are split between Districts 1 and 2; District 2 already contained a large Republican majority, 

and thus it could take on those Democratic voters without putting a Republican candidate at any 

material risk of losing. 

 

442 This index included the OCURD data and the 2008 presidential election, and the 2010 

gubernatorial, attorney general, and auditor elections. Trial Ex. P524 (Niven Rep. at 2).

443 Trial Ex. P524 (Niven Rep. at 8).

444 Id. at 12.

445 Id. at 11; see also Dkt. 242 (Niven Trial Test at 36) (“[C]andidates campaign to and for 

those neighborhoods.”).

446 Trial Ex. P524 (Niven Rep. at 13).

447 Id.

448 Dkt. 242 (Niven Trial Test. at 33); see also id. at 34–35.

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Throughout his report, Dr. Niven highlighted certain district boundary lines in which the 

lines divide census tracts populated by Democratic voters. In the case of his example for Hamilton 

County, the split census tract “is overwhelmingly populated by Democrats” per Dr. Niven’s 

index.449

b. District 9

Dr. Niven emphasizes that “[o]ne of the defining aspects of the 9th Congressional district 

is its comprehensive propensity to divide communities.”450 In fact, District 9 contains no whole 

counties and five partial counties—Cuyahoga is split between District 9 and three other districts, 

Lorain is split between District 9 and two other districts, and Erie, Lucas, and Ottawa are split 

between District 9 and one other district.451 Dr. Niven further explains that “[i]n its economic 

development efforts, the state of Ohio places Cleveland and Toledo in separate regions,” and thus, 

in combination with other cultural differences between Cleveland and Toledo, District 9 

“combines quite disparate communities.”452 Dr. Niven’s illustrative example of a suspect 

boundary for District 9 is in Lorain County, and the boundary divides a census tract that is heavily 

Democratic and more Democratic than the rest of Lorain County.453 Moreover, each county in 

District 9 voted Democratic in the 2008 presidential election and leaned Democratic under Dr. 

Niven’s index.454

 

449 Trial Ex. P524 (Niven Rep. at 9–11). We give these particular examples some weight, 

though they seem to be simply illustrative of the overall trends, which are more important, found 

by Dr. Niven.

450 Id. at 15.

451 Id.

452 Id. at 16–17; see also Dkt. 242 (Niven Trial Test. at 42–44).

453 Trial Ex. P524 (Niven Rep. at 16).

454 Id. at 19.

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c. Franklin County: Districts 3, 12, and 15

Dr. Niven finds that Franklin County both packs (District 3) and cracks (Districts 12 and 

15) Democratic voters.455 Dr. Niven ultimately concludes that “what was achieved in these rather 

odd-looking districts is that a very Democratic County [Franklin County] winds up with two 

Republican representatives . . . out of its three members of Congress.”456 On cross-examination, 

Dr. Niven acknowledged that under the prior map, Franklin County was split into three districts 

and that Republican candidates for Congress usually won, with some exceptions, the elections in 

those districts.

457

 As will be discussed in more detail in the analysis, although this redrawing 

seemingly adds a Democratic district where there previously was not one, it was part of an overall 

strategy to solidify Republican districts and reduce the statewide number of Democratic districts.

He begins his analysis with District 15, a District which was competitive in 2006 and was 

won by a Democratic candidate for Congress in 2008.458 Dr. Niven’s analysis shows President 

Obama carried the old District 15 by about 29,000 votes, but the same election in the new District 

15 would result in Senator McCain winning by 21,000 votes; under Dr. Niven’s index, the old 

District 15 was nearly evenly split between Democratic and Republican supporters, with a very 

slight Democratic lean, and the new District 15 leans Republican.459 Dr. Niven notes that nine out 

of the ten counties added to District 15 in the 2011 redistricting process “were inclined to support 

Republican candidates.”460 Additionally, the portions of three of the four split counties within 

District 15 leaned heavily Republican in the prior decade, except for the portion of Franklin County 

 

455 Id.; Dkt. 242 (Niven Trial Test. at 46).

456 Dkt. 242 (Niven Trial Test. at 46).

457 Id. at 100–01.

458 Trial Ex. P524 (Niven Rep. at 19); Dkt. 242 (Niven Trial Test. at 47).

459 Trial Ex. P524 (Niven Rep. at 22).

460 Id.

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in District 15, which voted 50.52% in favor of Senator McCain and scored a 0.5237 (leaning 

Republican) under Dr. Niven’s index.461 The portions of those same counties not within District 

15, however, had: a less-strong Republican tilt (Fayette County), were competitive (Ross County), 

or leaned heavily Democratic (Franklin County).462 He also finds that the new District 15 split 

seventy-two census tracts (with fifty-eight in Franklin County), but the old District 15 split fortyone (all in Franklin County).463

 In sum, Dr. Niven concludes that Democratic-leaning areas were 

removed from the old District 15, while Republican-leaning areas were added, together resulting 

in a “net gain of more than 40,000 votes for the Republicans.”464

District 12 under either the 2008 presidential election results or Dr. Niven’s index went 

from a leaning-Democratic district in the prior decade to a strongly-Republican district under the 

current map.465 Dr. Niven’s analysis shows that Democratic-leaning voters in Franklin County 

were removed from District 12 and Republican-leaning voters were added, resulting in a new gain 

of 60,518 Republican voters (using the 2008 presidential election data).466 He further finds that 

census tract splits increased from forty-eight to sixty-one between the prior map and the current 

map.467

District 3 is the final Franklin County district addressed by Dr. Niven. He concludes that 

District 3 “is a classic packing example” because it received Democratic voters from Districts 12 

and 15.468 Dr. Niven emphasizes the odd, jagged shape of District 3, and he testified that he 

 

461 Id. at 22, 24.

462 Id.

463 Id. at 20.

464 Id. at 24; see also id. at 24 n.57.

465 See id. at 25. 

466 Id.

467 Id.

468 Dkt. 242 (Niven Trial Test. at 54); see also Trial Ex. P524 (Niven Rep. at 26).

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included specific, street-level examples of odd lines in his report because “when we look statewide, 

. . . it’s hard to appreciate in the most granular detail the number of cuts necessary to achieve these 

effects.”469 Overall, he found that “14 out of 16 cities in Franklin County are split between multiple 

[congressional] districts.”470 In responding to Intervenors’ expert Dr. Brunell’s view that “funny 

shaped districts are inevitable,” see infra Section II.D.3., Dr. Niven testified that, in this case, the 

“funny shapes” were “a strategic choice” and that they are “an illustration of division . . . imposed 

with a partisan tinge such that democrats are far more likely to have found themselves in the midst 

of these cuts and divides.”471

Dr. Niven explained how gerrymandered district lines can cause confusion. For example, 

Dr. Niven found that in Franklin County, voters showed up to the polls for the 2018 special

election, only to find out that they did not in fact live in District 12.472 As it turned out, election 

officials had mis-assigned more than 2,000 people to the wrong congressional district, and the 

Franklin County Board of Elections took more than 4,000 calls (and received hundreds of emails) 

from confused voters who could not cast a ballot or whose polling locations were closed.473

d. Summit County: Districts 11, 13, 14, and 16

Summit County’s population is small enough such that it could be placed within a single 

congressional district—yet Summit County is divided into four congressional districts. (The prior 

map split Summit County into three districts.) Using either the 2008 presidential election or Dr. 

 

469 Dkt. 242 (Niven Trial Test. at 56); see also id. at 57 (“without zooming in a little bit,” 

according to Dr. Niven, “you can’t appreciate the degree to which . . . street by street, house by 

house, people can be divided . . . .”); see also Trial Ex. P524 (Niven Rep. at 26–27).

470 Trial Ex. P524 (Niven Rep. at 28).

471 Dkt. 242 (Niven Trial Test. at 57–58); Trial Ex. P526 (Niven Resp. at 3).

472 Trial Ex. P524 (Niven Rep. at 27–28 & nn.59, 61–63). Dr. Niven relied on news 

coverage, as he typically does in his scholarship, for this portion of his report and testimony. See

Dkt. 242 (Niven Trial Test. at 60); see also FED. R. EVID. 803(18).

473 See Trial Ex. P524 (Niven Rep. at 27–28 & nn.59, 61–63).

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Niven’s index, Dr. Niven’s analysis shows that Summit County leaned Democratic.474 He also 

finds that census tract splits increased from twenty-seven under the prior map to fifty-five under 

the current map.475

As for the particular districts in Summit County, Districts 11 and 13 have consistently 

elected Democratic candidates to Congress under the current map, whereas Districts 14 and 16 

have consistently elected Republican candidates. Consistent with these results, using either 2008 

presidential election data or Dr. Niven’s index, Dr. Niven’s analysis shows that voters placed into 

Districts 11 and 13 leaned heavily in favor of Democratic candidates; meanwhile, voters placed 

into Districts 14 and 16 were almost evenly divided in the 2008 presidential election, and under 

Dr. Niven’s index, the voters placed in these Districts leaned Republican.476 Lastly, Dr. Niven 

finds that split census tracts leaned more Democratic than census tracts kept intact in Summit 

County, and he therefore concludes that “Summit County residents were not equally apt to have 

their neighborhoods divided between districts – as more heavily Democratic areas were more 

likely to be divided.”477

4. Dr. Lisa Handley

Dr. Lisa Handley, an election consultant who works on voting rights and redistricting, 

testified for Plaintiffs as an expert witness.478 She has taught and lectured on voting rights and 

redistricting and has published articles and books on these subjects.479 She has served as a 

 

474 Trial Ex. P524 (Niven Rep. at 29) (noting that President Obama won Summit County 

by about 41,000 votes in 2008 and that Dr. Niven’s index scores Summit County as 0.4065, or, 

put differently, only 40.65% Republican).

475 Id.

476 Id. at 31–32.

477 Id. at 32.

478 Dkt. 240 (Handley Trial Test. at 132–33). 

479 Id. at 133. 

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redistricting consultant, aiding jurisdictions to draw lines in compliance with the VRA.480 She has 

also served as an expert witness performing racial bloc voting analyses in cases in which districting 

plans are challenged under Section 2 of the VRA.481 She has been hired as an expert by the 

Department of Justice in five cases and has provided expert testimony in over twenty cases 

throughout her career.482 The Court qualified Dr. Handley as an expert in the VRA, including on 

racially polarized voting and analysis of such voting patterns.483 

 

480 Id. at 134. 

481 Id.

482 Id. at 135. 

483 Id. at 135–136. Intervenors filed a Motion to Exclude the Expert Report and Testimony 

of Dr. Handley prior to trial and maintained their objections at trial. Dkt. 152-1 (Intervenors’ Mot. 

to Exclude Handley); Dkt. 240 (Handley Trial Test. at 136). Intervenors argued that Dr. Handley’s 

report and testimony were irrelevant because the case at bar is a partisan-gerrymandering case, not 

a VRA case. They also argued that her report and testimony were improper because they relied on 

data post-dating the drawing of the 2012 plan and failed to include a confidence interval. Dkt. 

152-1 (Intervenors’ Mot. to Exclude Handley at 1–2). We address each argument in turn. 

First, we reject Intervenors’ argument that the Section 2 analysis is irrelevant. It is true 

that Plaintiffs have challenged the 2012 map as an unconstitutional partisan gerrymander, not as a 

violation of Section 2 of the VRA. However, Defendants have made Section 2’s requirements 

relevant to this case. They have argued that District 11 was drawn in its present shape in part to 

ensure that African-American voters were able to elect their preferred candidate in that district. 

Plaintiffs therefore offer Dr. Handley’s testimony to challenge that justification and demonstrate 

that there was no need to extend District 11 south into Summit County to pick up additional 

African-American voters to comply with the VRA. We discuss the interaction of the VRA, 

Defendants’ minority electoral opportunity justification, and Dr. Handley’s analysis further in 

Sections V.A.2.d.iii., V.C.2.b.ii., where we scrutinize each of Defendants’ proffered legitimate 

legislative justifications. 

Second, while Dr. Handley’s report and analysis do rely in part on data that post-dated the 

2011 redistricting and therefore was unavailable to the map drawers at the time, they also rely on 

data that predates the redistricting. Dkt. 240 (Handley Trial Test. at 150). The pattern of District 

11 electing Black-preferred candidates by sizable margins does not differ between the pre-2011 

and post-2011 elections that Dr. Handley considered. Id. at 151. Any issues that Dr. Handley’s 

reliance on data that was not available to the map drawers in 2011 presents will go to the weight 

that we give Dr. Handley’s testimony, not its admissibility. 

Third, we conclude that Dr. Handley adequately explained why she did not provide 

confidence intervals for her ecological-inference analysis, and we overrule Intervenors’ objection 

on that basis. Dr. Handley provided standard errors for each of her ecological-inference estimates. 

Id. at 143. However, she explained that she did not use the standard errors to produce confidence 

intervals because that would require a normal distribution, and the ecological-inference analysis 

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District 11 has consistently elected African-American representatives to Congress since 

1968, when it was first drawn as a majority Black district.484 Handley’s report indicated that since 

2002, the Black-preferred congressional candidate (whether or not that candidate was African 

American) has won District 11 by a considerable margin.485 This is true of elections both before 

and after the 2011 redistricting.486 In fact, the tightest congressional race since 2002 in District 11 

was won by Stephanie Tubbs Jones in that year with 76.3% of the total vote.487 Prior to the 2011 

redistricting, District 11 had a BVAP of 57.7%, although it was originally drawn in 2001 with a 

BVAP of 52.3%.488 After the redistricting, its BVAP was 52.4%.489

Dr. Handley conducted a “district-specific, functional analysis of voting patterns by race 

to ascertain the black voting age population necessary to provide black voters with an opportunity 

to elect their candidates of choice in the vicinity of the 11th Congressional District of Ohio.”490 

The analysis must be district specific because the BVAP required to elect the Black-preferred 

candidate differs from jurisdiction to jurisdiction based on factors such as the type of election (e.g., 

federal versus local), turnout and voting patterns of African Americans and whites, the 

cohesiveness of African-American voters in supporting particular candidates, and “crossover” 

 

does not produce a normal distribution. Id. at 143–44. She testified that she “routinely” submits 

expert reports involving ecological-inference estimates without confidence intervals, and that these 

reports have been accepted. Id. at 144. 

484 Trial Ex. P254 (Handley Rep. at 2 n.2). Representative Louis Stokes was elected in 

1968 and served as a congressman for 30 years. Representative Stephanie Tubbs Jones was then 

elected in 1998. She was succeeded by Congresswoman Marcia Fudge, who has represented 

District 11 since 2008. Id. 

485 Id. at 5. 

486 Id.; Dkt. 240 (Handley Trial Test. at 141 (concluding that “prior to the 2011 

redistricting . . . Black-preferred candidates were winning by overwhelmingly high percentages in 

all of the statewide and federal contests”). 

487 Trial Ex. P254 (Handley Rep. at 3).

488 Id. at 6 n.7.

489 Id. 

490 Id. at 1. 

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voting patterns of whites who also support Black-preferred candidates.491 Dr. Handley’s analysis 

estimated the vote share that Black-preferred candidates would have received had District 11 been 

configured as 55%, 50%, 45%, or 40% Black.492 She conducted this analysis using data from 

statewide and federal elections from 2008 through 2016 occurring within the vicinity of the current

District 11. 

Dr. Handley used three different statistical techniques to complete this analysis: 

homogeneous-precinct analysis, ecological-regression analysis, and ecological-inference 

analysis.493 Both homogenous-precinct analysis and ecological-regression analysis were used in 

Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court’s seminal Section 2 case.494 

Ecological-inference analysis developed later to address a shortcoming of ecological-regression 

analysis but has subsequently been widely accepted.495 All three statistical techniques yielded 

similar results.496 

Dr. Handley concluded that with a 45% BVAP in District 11, African-American voters 

would have a realistic opportunity to elect their candidate of choice with a “comfortable 

margin.”497 In fact, even with a BVAP as low as 40%, African-American voters would have 

elected the Black-preferred candidate in the elections studied.498 She concluded that there is no 

need to draw a majority African-American District 11 in order to allow African-American voters 

to elect their candidate of choice there.499 

 

491 Dkt. 240 (Handley Trial Test. at 137, 142)

492 Id. at 142. 

493 Id.

494 Id. at 142–43. 

495 Id. at 143. 

496 Id. at 150. 

497 Trial Ex. P254 (Handley Rep. at 17); Dkt. 240 (Handley Trial Test. at 149). 

498 Dkt. 240 (Handley Trial Test. at 149). 

499 Trial Ex. P254 (Handley Rep. at 1). 

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5. Mr. William Cooper

William Cooper, a mapping consultant, testified as an expert witness at trial.500 Over the 

course of his career, Mr. Cooper has drawn plans for about 750 jurisdictions, many of which were 

statewide plans and around six of which were congressional districting plans.501 Mr. Cooper has 

also previously drawn plans specifically for partisan-gerrymandering cases.502 Mr. Cooper 

generally submits illustrative or remedial districting plans, and courts have implemented several 

of his remedial plans.503 This Court qualified Mr. Cooper as an expert in the fields of redistricting, 

map drawing, and demography504 and found his testimony and reports credible and reliable.

Mr. Cooper used census data and mapping software “to reexamine the plan that was 

adopted in 2012 and apply traditional redistricting principles to result in a map that was a little 

more fair for Democratic voters and at the same time visually more appealing” and also 

“undid . . . [the] partisan gerrymander.”505 He used Maptitude software, the same kind used by the 

map drawers in 2011, to do this work.506 Mr. Cooper relied upon traditional redistricting principles 

(equipopulation, contiguity, compliance with the VRA, and preserving communities of interest) to 

craft his Proposed Remedial Plan and also made sure that it would satisfy the requirements of 

 

500 Dkt. 241 (Cooper Trial Test. at 136).

501 Id. at 136–37. 

502 Id. at 137–38. 

503 Id. at 139. 

504 Id. at 140. 

505 Id. The data Mr. Cooper was given to create the Proposed Remedial Plan featured in 

his first report included an error—an incorrect address for Representative Jordan. Id. at 167. This 

error resulted in the inadvertent pairing of incumbent Representatives Jordan and Davidson in the 

original Proposed Remedial Plan. Id. Upon learning of this error, Mr. Cooper drafted a corrected 

Proposed Remedial Plan, which included slight changes at the border of Districts 4 and 8. Trial 

Ex. P091 (Cooper Errata at 2). This correction did not result in any changes to the compactness, 

minority voting strengths, or county and municipal divides of the earlier version. Dkt. 241 (Cooper 

Trial Test. at 168–69). 

506 Dkt. 241 (Cooper Trial Test. at 143). 

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Ballot Initiative 1.507 He “did not pair incumbents except when in direct conflict with the other 

factors.”508 Mr. Cooper had the CSU dataset used by the map drawers available to him while he 

was drawing his Proposed Remedial Plan and “occasionally glanced at it” although he “was not 

constantly monitoring every little—every little change.”509 The Proposed Remedial Plan that he 

created was intended to be a forward-looking plan that avoided the pairing of the current 

congressional officeholders.510

Mr. Cooper explained the traditional redistricting factors that drove his maps and the 

manner in which those factors are measured. Equipopulation means that a district is the exact 

population of the ideal district size, plus or minus one.

511

 Contiguity means that a district is entirely 

contiguous with itself; there are no severed sections. Compactness can be measured with an 

“eyeball test . . . just take a look at it and see if it makes sense visually” or with mathematical tests 

such as the Reock and Polsby-Popper measures, both of which can be run using Maptitude.512 The 

Polsby-Popper and Reock metrics measure compactness on a scale of zero through one; the closer 

to one, the more compact the district. The “Polsby-Popper score is a perimeter score over area of 

a district”—the ratio of the perimeter and the area of a district generates the score. A low score is 

“an indication that it’s not a very compact district.”513 The Reock score is “a ratio of an area for a 

 

507 Trial Ex. P090 (Cooper Decl. at 3); Dkt. 241 (Cooper Trial Test. at 146). Ballot 

Initiative 1 requires that “any plan drawn in the future, at least after the 2020 census at minimum, 

would have to keep the city of Cincinnati in a single district and the city of Cleveland in a single 

district.” Dkt. 241 (Cooper Trial Test. at 146). 

508 Trial Ex. P090 (Cooper Decl. at 3). 

509 Dkt. 241 (Cooper Trial Test. at 151–52). 

510 Trial Ex. P092 (Cooper Suppl. Decl. at 1). 

511 Dkt. 241 (Cooper Trial Test. at 147). 

512 Id. at 147–48. 

513 Id. at 157–58. 

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circle drawn around the district.” Mr. Cooper testified that “districts that start getting below .20 

are somewhat problematic, generally speaking.”514

Mr. Cooper defined a community of interest as “an area or a region where there are certain 

cultural or socioeconomic ties, historical ties.”515 He testified that minority populations can be 

considered communities of interest and that counties or municipal subdivisions are “a more 

objective way to identify communities of interest.”516 Maptitude allows users to monitor how 

many counties and metropolitan civil divisions are split as a plan is drawn.517 He stated that,

generally, maps with fewer districts overall should contain fewer county splits if traditional 

districting principles are being applied.518 

Mr. Cooper also compared the shapes of several districts from the 2012 map to his 

Proposed Remedial Plan, commenting on the 2012 districts’ irregular shapes and frequent splits of 

county lines and municipal boundaries.519 The Proposed Remedial Plan splits fourteen counties 

and twenty-seven political subdivisions.520 In contrast, the 2012 map splits twenty-three counties 

and seventy-three political subdivisions, fifty-five of which are populated.521 Mr. Cooper also 

compared the compactness of the districts in the 2012 map with those in his Proposed Remedial 

Plan. The Proposed Remedial Plan “score[d] significantly higher on Polsby-Popper in terms of 

minimums and maximums as well as the overall mean” than the 2012 map.522

 

514 Id. at 158. 

515 Id. at 148.

516 Id. 

517 Id. at 150. 

518 Id. at 151. 

519 Id. at 153–56. 

520 Id. at 150; Trial Ex. P091 (Cooper Errata at 3; Ex. Q); Trial Ex. P454 (Cooper Decl. 

Apps. at Ex. F). 

521 Dkt. 241 (Cooper Trial Test. at 158–59). 

522 Id. at 157; Trial Ex. P454 (Cooper Decl. Apps. at Ex. H). Mr. Cooper also explained 

that the chart was somewhat misleading because the Reock and Polsby-Popper scores for District 

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Mr. Cooper’s Proposed Remedial Plan was conscious of advancing minority voting power 

in various districts. First, it included a minority-opportunity district contained entirely within 

Cuyahoga County with a 47% BVAP, higher than the 45% that Dr. Handley calculated was 

necessary to allow minorities in the district to elect a candidate of their choice.523 Mr. Cooper

testified that simply by keeping the City of Cleveland whole in District 11 and including “a couple 

of suburbs,” achieving this 47% BVAP “just happened” without “trying to max it out in any 

way.”524 Second, Mr. Cooper’s Proposed Remedial Plan included a District 1 with a higher 

percentage BVAP than the 2012 map’s District 1. The Proposed Remedial Plan’s District 1 has a 

26.74% BVAP; the 2012 map’s District 1 has a 21.30% BVAP.525 He testified that this increase 

of over five percentage points resulted “because [he] left Cincinnati in a single district rather than 

splitting it into part of District 2 as well as District 1.”526 Third, the District 3 included in his 

Proposed Remedial Plan had roughly the same BVAP as was present in the 2012 map.527

Mr. Cooper also responded to the report of Defendants’ expert Dr. Hood.528 Dr. Hood had 

challenged the Proposed Remedial Plan, arguing that it would not have been politically viable had 

it been implemented in 2012 because it would have paired many incumbents. Mr. Cooper 

maintained in his response that the Proposed Remedial Plan was “presented for future use, not 

solely as a point of comparison to the 2012 plan.”529 He also drew and demonstrated the feasibility 

 

9 are inflated “because of the way the Census Bureau has extended water blocks that are part of 

these Counties along Lake Erie, out into the middle of Lake Erie. And if you remove those water 

blocks, then District 9 scores very low.” Dkt. 241 (Cooper Trial Test. at 157). 

523 Dkt. 241 (Cooper Trial Test. at 159). 

524 Id. at 160. 

525 Trial Ex. P454 (Cooper Decl. Apps. at Ex. D-3; E-2); Dkt. 241 (Cooper Trial Test. at 

160–61). 

526 Dkt. 241 (Cooper Trial Test. at 161). 

527 Id.

528 Id. at 141.

529 Trial Ex. P093 (Cooper Second Suppl. Decl. at 2). 

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of two hypothetical plans that shared many features with his Proposed Remedial Plan but could 

have been implemented in 2011 without pairing more incumbents than the adopted 2012 map 

did.530 

D. Defendants’ and Intervenors’ Expert Witnesses 

1. Dr. M.V. Hood III

Dr. M.V. Hood III, a tenured professor of political science at the University of Georgia, 

testified as an expert for Defendants at trial.531 Dr. Hood has taught courses in Southern politics, 

American politics, research methods, election administration, and the legislative process.532 His 

work has appeared in peer-reviewed journals between forty and fifty times and he has published 

four articles “directly related to redistricting in one way or another” in peer-reviewed journals.533 

Dr. Hood has testified as an expert witness in several cases involving redistricting.534 We qualified 

Dr. Hood as an expert in “American politics and policy, quantitative political analysis and election 

administration, including redistricting.”535 We, however, can draw limited inferences from his 

testimony and report due to some inapt comparisons, unexplained and apparently meaningful 

exclusions of certain elections in his partisan indices, and admitted failures to account for certain 

confounding variables in some of his analyses.536

 

530 Id. at 4–19. 

531 Dkt. 247 (Hood Trial Test. at 135). 

532 Id. at 136–37. 

533 Id. at 137. 

534 Id. at 140. 

535 Dkt. 274 (Hood Trial Test. at 141). Prior to trial, Plaintiffs filed a Daubert motion to 

exclude the expert report and testimony of Dr. Hood. Dkt. 150-1 (Pls.’ Mot. to Exclude Hood). 

We conclude that none of Plaintiffs’ criticisms of Dr. Hood’s report and testimony are sufficiently 

severe to preclude us from qualifying him as an expert. Rather, where well-founded, they will 

impact the weight that we will give his testimony and report.

536 Courts in several other cases in which Dr. Hood has testified as an expert witness have 

afforded Dr. Hood’s testimony little weight for similar reasons. See, e.g., Ne. Ohio Coal. for the 

Homeless v. Husted, No. 06-cv-896, 2016 WL 316651, at *23 (S.D. Ohio June 7, 2016); see also, 

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a. Incumbent pairing, core retention, compactness, and county and municipality splits

Dr. Hood’s report stated that the 2012 map paired three sets of incumbents.537 He also 

testified that the 2012 map’s core retention level, the “percentage of a member’s constituents [who] 

were carried over from their previous district,” was “55.7% across the 16 districts.”538 Dr. Hood 

concluded, based on the number of incumbents who were paired and the core-retention rate, “that 

at least some weight was given in the plan to the . . . criteria protecting incumbents to the extent 

possible.”539 Dr. Hood, however, agreed that “there is no agreed-upon standard for what levels of 

core retention indicates that the goal of a districting map is to protect incumbents.”540 He also 

acknowledged that in a previous academic article, he had concluded that “a core retention level of 

68.7 percent greatly altered the relationship between representatives and constituents.”541 

Dr. Hood compared the 2012 map with the 2002 map. He testified that the 2012 map was 

“on par with the 2002 plan in terms of compactness” measured with both the Polsby-Popper and 

Reock tests.542 He stated that the 2002 plan split twenty-one counties and the 2012 plan split 

twenty-three counties.543 He found that the 2002 plan split 4.3% of Ohio’s municipalities while 

the 2012 plan split 4.5% of Ohio’s municipalities. From this data, he concluded that the 2012 map 

“is on par with the 2002 benchmark plan” in terms of its adherence to traditional redistricting 

criteria.544

 

e.g., Veasey v. Perry, 71 F. Supp. 3d 627, 663 (S.D. Tex. 2014); Frank v. Walker, 17 F. Supp. 3d 

837, 882 (E.D. Wis. 2014).

537 Dkt. 247 (Hood Trial Test. at 144–45).

538 Id. at 145. 

539 Id. at 146. 

540 Id. at 193. 

541 Id.

542 Id. at 144. 

543 Id. at 147. In so testifying, Dr. Hood corrected an error in his report, which had indicated 

that the 2002 map split 25 counties. Id. at 146. 

544 Id. at 147–48. 

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Dr. Hood also compared the 2002 map to Plaintiffs’ Proposed Remedial Plan in terms of 

compactness and splits of communities of interest, defined here as counties and municipalities. He 

found that the Proposed Remedial Plan had “slightly higher” compactness scores than the 2002 

map measured by both the Polsby-Popper and Reock tests. He also testified that Mr. Cooper’s 

hypothetical plans, which were designed as alternatives that could have been enacted in 2012, also 

had higher compactness scores than the adopted 2012 map.545 The Proposed Remedial Plan splits 

fourteen counties while the 2002 map split twenty-one.

546

 The Proposed Remedial Plan splits 

1.7% of Ohio’s municipalities while the 2002 map split 4.3% of them.547 Mr. Cooper’s 

hypothetical plans also split fewer counties and municipalities than the enacted 2012 map.548

Dr. Hood also demonstrated that, had Plaintiffs’ Proposed Remedial Plan been enacted in 

2012, it would have resulted in the pairing of six sets of incumbents, the majority of which would 

have been Republican pairings.549 Dr. Hood calculated that had the Proposed Remedial Plan been 

enacted in 2012, its mean core-retention figure would have been 39.5%.550 As is discussed in the 

summary of Mr. Cooper’s testimony, the Proposed Remedial Plan was designed principally as a 

forward-looking map to be implemented today, using the 2012 map rather than the 2002 map as a 

baseline. It designed its incumbent pairings based off where current representatives live under the 

2012 map. This makes it an inapt comparison to count incumbent pairings that would have resulted 

had it been implemented in 2012, when a different set of representatives would have been the 

 

545 Id. at 148, 198; see also Trial Ex. D4 (Hood Rep. at 8, tbl. 7). Dr. Hood did not calculate 

the compactness scores himself; he requested that they be calculated and reproduced the reports. 

Dkt. 247 (Hood Trial Test. at 189). 

546 Dkt. 247 (Hood Trial Test. at 148–49); see also Trial Ex. D4 (Hood Rep. at 8, tbl. 8). 

547 Dkt. 247 (Hood Trial Test. at 149); see also Trial Ex. D4 (Hood Rep. at 9, tbl. 9). 

548 Dkt. 247 (Hood Trial Test. at 198–99). 

549 Id. at 148; see also Trial Ex. D4 (Hood Rep. at 9, tbl. 10). 

550 Dkt. 247 (Hood Trial Test. at 150). 

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affected incumbents. Similarly, the implementation of the 2012 map shifted the district lines and 

assigned constituents to new districts. Therefore, it is odd to conduct core-retention analysis of 

the Proposed Remedial Plan against the baseline of the 2002 district lines when it was designed 

with the 2012 lines as its baselines. On cross-examination, Dr. Hood acknowledged that Mr. 

Cooper’s hypothetical plans, which were designed as alternatives that could have been enacted in 

2012, had core retention rates that were “highly similar” to those of the actually-enacted 2012 

map.551

b. Political geography

Dr. Hood also discussed Ohio’s political geography—“the spatial distribution of partisans 

in Ohio.”552 He created a partisan vote index using fifteen statewide contested elections from four 

election cycles prior to the 2011 redistricting.553 He then used this partisan vote index to color 

code and plot areas of Democratic, strong Democratic, Republican, and strong Republican support 

on several maps of Ohio.554 Based on these maps, Dr. Hood concluded that “there’s a much larger 

Republican footprint outside of urban areas. Much of the Democratic footprint during this time is 

inside urban areas, like Cleveland and Columbus, Cincinnati.”555 He calculated that “about 78.5% 

of Ohio’s land area” leans Republican, and 21.5% of its land area leans Democratic.556 

Dr. Hood then calculated a Moran’s I statistic to determine that from 2004 to 2010 

“Republican VTDs tend[ed] to be located proximate to other Republican VTDs, and Democratic 

VTDs tend[ed] to be located proximate to other Democratic VTDs” in Ohio.557 Dr. Hood 

 

551 Id. at 197. 

552 Id. at 151. 

553 Id. at 153. 

554 Id.; see also Trial Ex. D4 (Hood Rep. at App., figs. 1–5). 

555 Dkt. 247 (Hood Trial Test. at 154). 

556 Id.

557 Id. at 155. 

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acknowledged on cross-examination that this analysis did not “indicate that Democrats are 

differentially clustered than Republicans”—that they cluster with other members of their own 

party at higher rates than Republican voters do.558 His analysis also demonstrated that 

“Democratic VTDs are more likely to be located in urban areas” than Republican VTDs.559

c. Partisan leanings 

Dr. Hood then used his first partisan index to analyze the partisan leaning of Ohio’s 

congressional districts as drawn under the 2012 map.560 He determined that six were safe 

Republican districts, five were competitive, Republican-leaning districts, four were safe 

Democratic districts, and one was a competitive, Democratic-leaning district.561

Dr. Hood did the same analysis applying the partisan index to the Plaintiff’s Proposed 

Remedial Plan and found that the only differences between it and the 2012 map were that under 

the Proposed Remedial Plan there would be “on[e] less safe Republican district and one additional 

competitive district leaning Democratic.”562 On cross-examination, Dr. Hood conceded that his 

“index state[s] a lower Republican percentage as compared to [an index that includes] the full set 

of elections based on the statewide contested elections for the decade preceding the 2010 

redistricting cycle, including 2002.”563 When the 2002 congressional election results are included 

in the index, there are no competitive districts, rather than the six competitive districts that Dr. 

 

558 Id. at 199–200. 

559 Id. at 156. 

560 Plaintiffs argue that Dr. Hood cherry-picked the elections in his partisan index to skew 

the results, particularly by omitting 2002 election data. See id. at 207–13. 

561 Trial Ex. D4 (Hood Rep. at 15, tbl. 15). Hood termed a district a safe Republican district 

if the partisan index indicated that it would vote over 55% Republican. Competitive, Republicanleaning districts would vote 50-55% Republican. Safe Democratic districts would vote less than 

45% Republican, and competitive, Democratic-leaning districts would vote 45-50% Republican. 

Dkt. 247 (Hood Trial Test. at 157). 

562 Dkt. 247 (Hood Trial Test. at 160). 

563 Id. at 216–17. 

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Hood indicated.564 Such an index predicts voting outcomes that more reliably correspond to the 

actual electoral outcomes observed in the elections since the 2012 redistricting.565

Dr. Hood created another partisan index using elections from 2012, 2014, and 2016, and 

then used the same process described earlier to color code the partisan leanings of VTDs on a map 

of Ohio.566 Comparing that map to the color-coded map he produced of Ohio using elections from 

the preceding decade, he concluded that Ohio has become increasingly Republican over time.567

Finally, Dr. Hood used this latter partisan index to evaluate the partisan leanings of each 

individual Plaintiff’s new district under the Proposed Remedial Plan compared to the partisan 

leanings of their current district under the 2012 map.568 He concluded, based on this analysis, that 

two of the seventeen individual Plaintiffs would have a better chance of electing a Democratic 

representative under the Proposed Remedial Plan versus under the current map—Plaintiff Griffiths 

in District 7 and Plaintiff Hutton in District 14.569

d. Other influences on electoral success

Dr. Hood also testified about various factors that “influence the outcome of congressional 

races”—“[f]undraising, media attention, name recognition, incumbency,” as well as “candidates 

and campaigns.”570 He testified that there is a strong trend of incumbents being reelected to office 

that is recognized in the political science literature and was observable in Ohio after the 2011 

 

564 Id. at 219. 

565 Id. at 220–21. 

566 Dr. Hood agreed that the races he included in creating this index “were the two most 

Republican of the five statewide races in 2014,” and therefore the application of this index would 

make the map look more Republican-leaning than the application of an index that included the 

other races. Id. at 230. 

567 Id. at 168–70; see also Trial Ex. D4 (Hood Rep. at App., figs. 7-8); Trial Ex. D5 (Hood 

Suppl. Rep. at 8, tbl. 6). 

568 Dkt. 247 (Hood Trial Test. at 171); see also Trial Ex. D4 (Hood Rep. at 30). 

569 Dkt. 247 (Hood Trial Test. at 172). 

570 Id. at 160. 

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redistricting—all of the unpaired incumbent congressional representatives were reelected in 2012 

and in every congressional election in Ohio since then.571 Relatedly, Dr. Hood testified about 

challenger quality, which he measures by whether the challenger has held prior elective office.572 

He concluded that “[t]ypically, more often than not, the challengers” of incumbents in Ohio from 

2012 through 2018 were “political novices” without prior elective officeholding experience.573 Dr. 

Hood admitted on cross-examination that he did nothing “to assess whether the district lines 

themselves prevented the recruitment of experienced candidates” and that it was possible that they 

had.574 

Dr. Hood also examined “the amount of campaign contributions that were collected by the 

Republican and Democrat” in each election because fundraising is helpful in winning elections.575 

He concluded that, in Ohio between 2012 and 2016, the incumbents had “outraised challengers by

about $1.2 million on average.”576 On cross-examination, Dr. Hood admitted that he did nothing 

“to determine that the district lines themselves did not cause Democratic challengers to fail to raise 

comparable funds” and admitted that it was possible that the lines themselves affected challenger 

fundraising abilities.577

 

571 Id. at 161; see also Trial Ex. D4 (Hood Rep. at 18, tbl. 17); Trial Ex. D5 (Hood Suppl. 

Rep. at 4, tbl. 2). 

572 Dkt. 247 (Hood Trial Test. at 163). 

573 Id.; see also Trial Ex. D4 (Hood Rep. at 19, tbl. 18); Trial Ex. D5 (Hood Suppl. Rep. at 

5, tbl. 3). 

574 Dkt. 249 (Hood Trial Test. at 9–10). 

575 Dkt. 247 (Hood Trial Test. at 163–64). 

576 Id. at 164; see also Trial Ex. D4 (Hood Rep. at 20, tbl. 19); Trial Ex. D5 (Hood Suppl. 

Rep. at 5, tbl. 4) (reflecting the fundraising in the 2018 congressional elections, in which three 

challengers outraised the incumbents they faced). 

577 Dkt. 249 (Hood Trial Test. at 9). 

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e. Efficiency gap and seat-share relationship

Dr. Hood plotted the efficiency gap numbers for Ohio from 1992 to 2016 against the seat 

share of the congressional delegation.578 He concluded based on the regression from this plot that 

the efficiency gap is “closer to zero as the seat share is more evenly balanced” between the parties 

and increases “as the seat share tilts one way or another.”579

2. Dr. Janet Thornton 

Dr. Janet Thornton testified at trial for Defendants as an expert witness. Dr. Thornton is 

currently the managing director and an economist and applied statistician at Berkeley Research 

Group, LLC, a consulting firm located in Florida.580 Dr. Thornton has a doctorate and master’s 

degree in economics from Florida State University, as well as a bachelor’s degree in economics 

and political science from the University of Central Florida.581 Dr. Thornton’s fields of 

specialization in her academic background were labor economics and applied statistics.582 

Additionally, Dr. Thornton has “been working with census data since the early 1980s” and has 

also “work[ed] with data from the 1960 d[e]cennial census all the way up to the current time period 

. . . .”583 Although Dr. Thornton has prepared statistical analyses and served as an expert in voting 

cases related to, for example, the effect of voter-identification laws on voter-participation rates by 

race and minority status, Dr. Thornton has never served as an expert in a redistricting case.584 And 

although Dr. Thornton has never been precluded from testifying as an expert, at least one court 

found her analysis “simplistic and not credible.” See Democratic Nat’l Comm. v. Reagan, 329 F. 

 

578 Dkt. 247 (Hood Trial Test. at 166). 

579 Id. at 167. 

580 Trial Ex. D8 (Thornton CV).

581 Id.

582 Dkt. 246 (Thornton Trial Test. at 86).

583 Id. at 87–88.

584 See Trial Ex. D8 (Thornton CV); Dkt. 246 (Thornton Trial Test. at 90–91).

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Supp. 3d 824, 838 (D. Ariz. 2018). Dr. Thornton has also not published any articles related to 

voting.585 This Court qualified Dr. Thornton as an expert in economic and statistical analysis, 

subject to Plaintiffs’ Daubert motion.586

Dr. Thornton’s report and testimony are offered to rebut Plaintiffs’ experts Dr. Cho and 

Dr. Niven. As to Dr. Cho, Defendants presented Dr. Thornton’s report and testimony to critique 

the underlying data and assumptions in Dr. Cho’s report.587 As to Dr. Niven, Defendants offered 

Dr. Thornton’s report and testimony to rebut Dr. Niven’s conclusion that the splitting of census 

tracts in the current plan is correlated with the political composition of census tracts.588 Before 

turning to Dr. Thornton’s critique of each of these Plaintiffs’ experts, two preliminary matters need 

to be addressed. 

First, we give no weight to Dr. Thornton’s finding that “Dr. Cho failed to provide all of 

the underlying code and output sufficient to replicate all of her findings.”589 This finding is entirely 

off base. Dr. Thornton admitted that she is not an expert in C++ and that she cannot read it without 

the help of a manual;590 and again, Plaintiffs offered to provide Defendants with the code. See

supra Section II.C.2. More importantly, the code is not the algorithm; the code simply implements 

the algorithm. Consequently, nothing prohibited Dr. Thornton from critiquing the MCMC 

algorithm used by Dr. Cho if she had been qualified to do so.

591

 

585 See Trial Ex. D8 (Thornton CV); Dkt. 246 (Thornton Trial Test. at 125–27).

586 Dkt. 246 (Thornton Trial Test. at 92–93); see also Dkt. 155, 155-1 (Pls.’ Mot. to Exclude 

Thornton). We deny Plaintiffs’ Daubert motion, but we consider Dr. Thornton’s report and 

testimony for limited purposes and do not credit portions of her analysis, as explained herein.

587 Dkt. 246 (Thornton Trial Test. at 91).

588 See Trial Ex. D8 (Thornton Rep. at 24–27).

589 Id. at 4.

590 Dkt. 246 (Thornton Trial Test. at 133–35); see also Trial Ex. D8 (Thornton CV) (C and 

C++ are not included in the programming languages listed as ones of which she has knowledge).

591 This distinction between reviewing the algorithm and the code is underscored by Dr. 

Cho’s testimony on behalf of the defendants in a Pennsylvania gerrymandering case. As Dr. Cho 

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Second, Dr. Thornton is an expert in statistics generally, not in political science or 

redistricting, and she has never run an MCMC algorithm or, prior to this case, reviewed, evaluated, 

or assessed an MCMC algorithm.592 We consider her findings with that backdrop. Ultimately, we 

give some weight to her critiques of the underlying data that Dr. Cho used as a basis for assessing 

her simulated maps, but several of Dr. Thornton’s other critiques miss the mark and are not 

credible.

a. Rebuttal to Dr. Cho

Dr. Thornton opines that “the manner in which [Dr. Cho] generates new maps (i.e., 

simulations) is biased towards selecting half of the districts in which the Republican votes 

outnumber the Democratic votes and half of the districts in which Democratic votes outnumber 

the Republican votes.”593 In other words, Dr. Thornton’s opinion is that the process Dr. Cho used 

to produce the simulated maps was biased toward creating an 8-8 map. This is wrong. As 

explained earlier, Dr. Cho analyzed the competitiveness and partisan outcomes of the simulated 

maps only after the simulated maps were generated. See supra Section II.C.2.

594

 Dr. Thornton 

offered no evidence to rebut this sequence of events. 

 

explained in her report in that case (which was read into the record on cross-examination at this 

trial): “[I]ndeed, the point is not whether I would have been allowed some short amount of time to 

view the code, but whether the algorithm has been sufficiently scrutinized by the scientific 

community to allow others, including the Courts, to have confidence in the process and the results.” 

See Dkt. 243 (Cho Trial Test. at 84). Nonetheless, the fact remains that Plaintiffs offered to provide 

the full code to Defendants, who apparently declined the offer. 

592 Dkt. 246 (Thornton Trial Test. at 129).

593 Trial Ex. D8 (Thornton Rep. at 12).

594 We note, however, that Dr. Cho’s competitiveness metric (which Dr. Cho used after

generating the simulated maps) is based on optimal competitiveness. As such, the closer a map is 

to an 8-8 partisan outcome, the more competitive the map will score, i.e., a score closer to zero 

under Dr. Cho’s competitiveness metric. See supra note 400. We consider this specific metric 

only for Dr. Cho’s conclusion that competitiveness seems to have been “almost a non-existent 

factor if one at all” in the drawing of H.B. 369. See supra Section II.C.2.b.i. & note 400. Dr. 

Cho’s other competitiveness analyses support that conclusion, too.

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In a similar manner, Dr. Thornton criticizes the election data that Dr. Cho used to assess 

the partisanship of the simulated maps as compared to the current map. This criticism, however, 

is distinct in an important way because it goes to Dr. Cho’s after-the-fact assessment of 

partisanship and not the creation of the simulated maps. The general thrust of Dr. Thornton’s 

critique on this front is that the 2008-2010 data used by Dr. Cho contains higher Democratic vote 

totals than in the 2012-2016 data.

595

 Further, Dr. Cho never used the 2016 statewide Democratic 

vote share for her analysis, which Dr. Thornton computed as 42.4% (lower than the other indices 

used by Dr. Cho).596 Dr. Thornton concludes that Dr. Cho’s selection and use of election data “is 

faulty, misleading, and unreliable.”597

We give some weight to this particular conclusion—Dr. Cho’s omission of the 2016 

election data (which was less favorable to the Democratic Party) and use of 2008-2010 data to 

assess the partisan effect of the 2012 plan raises some concern. At the same time, Dr. Thornton’s 

critique on this point does not significantly undermine Dr. Cho’s conclusions. After all, the 2008-

2010 election data were part of the data available to the map drawers, so that data is not irrelevant 

to assessing whether different districts could have been drawn. It is true, however, that the 

Democratic vote shares have decreased in the present decade as compared to the last, and this 

waning in support is relevant to partisan effect. In response, Dr. Cho provided an updated analysis 

in her supplemental report that incorporated the 2012-2014 and 2018 election data; that analysis 

showed the most common Republican vote share as nine seats, and eight and ten Republican seats 

were also not uncommon. See supra Section II.C.2. This cures at least part of Dr. Thornton’s 

critique, specifically that using the 2008-2010 data misleadingly resulted in eight Republican seats 

 

595 See Trial Ex. D8 (Thornton Rep. at 15–17 & fig. 1).

596 Id. at 16–17 & fig. 1.

597 Id. at 16.

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being most common. In any event, Dr. Cho’s supplemental report further shows that incorporating 

recent election data does not significantly alter her conclusions on partisan effect—a 12-4 map is 

still a highly unusual outlier under all her analyses. In sum, although we give some weight to Dr. 

Thornton’s critique on Dr. Cho’s selection and use of data, hence rendering Dr. Cho’s findings 

less probative than they otherwise could be, we do not find that Dr. Thornton has significantly 

undermined Dr. Cho’s conclusions.

Dr. Thornton also performed her own analysis using a binomial distribution, but we do not 

give any weight to that analysis. Dr. Thornton’s analysis used the Republican statewide vote share 

in congressional races “to predict the number of Republican seats.”598 As an example, in 2016, 

the Republican vote share was 58.2%, and Dr. Thornton multiplied that number by 16 (i.e., the 

number of seats) to arrive at 9.31 as the expected number of seats (2.69 fewer seats than the actual 

outcome of 12).599 Dr. Thornton then calculated “the number of standard deviations associated 

with the difference between the actual and predicted number of Republican seats.”600 When the 

difference is less than two standard deviations, whether positive or negative, the difference is not 

considered statistically significant.601 From this analysis, Dr. Thornton concludes that for 2012, 

2014, and 2016, “the difference between the actual and predicted number of Republican seats using 

the Republican vote share are not statistically significant.”602

Several factual and legal problems are apparent in Dr. Thornton’s analysis. Factually, 

under the binomial distribution, the expected number of Republican seats unquestionably reflects 

proportional representation—Dr. Thornton multiplied the statewide vote share by the number of 

 

598 Dkt. 246 (Thornton Trial Test. at 112).

599 Id.; Trial Ex. D8 (Thornton Rep. at 19–20, tbl. 3).

600 Trial Ex. D8 (Thornton Rep. at 19).

601 Id.; Dkt. 246 (Thornton Trial Test. at 112–13).

602 Dkt. 246 (Thornton Trial Test. at 113).

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seats. Legally, proportional representation is not required. See infra Section IV.B. For this reason, 

Dr. Cho does not assume proportional representation.603 The analysis incorporates yet another 

faulty assumption that each district has a 51% chance of being won by a Republican because 

Republicans won 51% of the congressional vote across the State; this assumption does not comport 

with basic understandings of congressional elections, i.e., that although some districts may be 

competitive (a 51% Republican to 49% Democrat district), other districts lean heavily in favor of 

one party or the other. Finally, Dr. Thornton’s analysis has nothing to do with whether 

Republicans and Democrats are statistically treated similarly or differently under the current 

map—she assesses only whether the actual number of Republican seats differs in a statistically 

significant way from the expected number of Republican seats. This analysis, without more, says 

nothing about how the current map affects Democratic voters compared to Republican voters. For 

all of these reasons, we give no weight to her statistical significance analysis.

Additionally, Dr. Thornton applied a similar analysis comparing the difference between 

the number of Republican seats in 2010 and the number of Republican seats in 2012.604 Again, 

she concluded that this difference was not statistically significant.605 We find that this analysis is 

simplistic and not particularly helpful. To be sure, the Republicans flipped the congressional 

delegation in 2010 from one that was a Democratic majority to one that was a Republican majority, 

and this Republican majority has been maintained. But that simply shows part of the problem with 

the 2012 map: Despite fluctuating vote shares, the seat share has remained 12-4; under the prior 

plan, the seat share fluctuated as did the vote share. Indeed, the fact that a political party that 

 

603 Trial Ex. P087 (Cho Rep. at 31) (“We do not have a system of proportional 

representation . . . .”). In fact, Dr. Thornton is the only expert in this case who incorporates an 

assumption of proportional representation into her analysis.

604 Trial Ex. D8 (Thornton Rep. at 21).

605 Id.; Dkt. 246 (Thornton Trial Test. at 114–15).

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controlled the redistricting process maintained (or slightly improved) their seat-share percentage 

from before redistricting to after is not surprising if they have drawn an effective partisan 

gerrymander. 

Lastly, Dr. Thornton critiqued Dr. Cho for not considering incumbency in her analysis, and 

Dr. Thornton herself observed the success of incumbent candidates under the current map.606 This 

critique holds some weight, but Dr. Cho’s analysis still permits an inference, albeit less strong, on 

the partisan effect of the current map. See infra Section V.A.2.d. (addressing the problems with 

the incumbent-protection justification as applied to this case).

b. Rebuttal to Dr. Niven 

Defendants also offered Dr. Thornton to rebut some of Dr. Niven’s findings. According to 

Dr. Thornton, she performed analyses similar to Dr. Niven’s but reached different results.607 First, 

her “attempt to replicate Dr. Niven’s finding [on the political orientation of census tracts left intact 

versus those which were split] result[ed] in an estimate that 50.48% of census tracts left intact are 

Republican in contrast to 48.18% among those that were split under the current plan” using the 

same election data as Dr. Niven.608 The corresponding numbers from Dr. Niven were 52.14% (or 

0.5214) and 49.25% (or 0.4925).609 Dr. Thornton further critiques Dr. Niven’s failure to perform 

the same calculations for the prior plan, which according to Dr. Thornton shows “a 0.4% increase 

in the percentage Republican among census tracts left intact” between the 2002 plan and the 2012 

plan “and a 2.4% decrease in the percentage Republican among census tracts that were split 

between the two plans . . . .”610 Second, Dr. Thornton “prepared correlation statistics to determine 

 

606 Trial Ex. D8 (Thornton Rep. at 21–24); Dkt. 246 (Thornton Trial Test. at 115–16).

607 See Trial Ex. D8 (Thornton Rep. at 26–27); Dkt. 246 (Thornton Trial Test. at 116–17).

608 Trial Ex. D8 (Thornton Rep. at 26).

609 See Trial Ex. P524 (Niven Rep. at 6).

610 Trial Ex. D8 (Thornton Rep. at 26).

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if the splitting of a census tract is correlated with the percentage Republican” using the same 

election data as Dr. Niven.611 She concludes that “split census tracts are, statistically speaking, not 

correlated with the percentage Republican in the census tract as measured by Dr. Niven under 

either the prior plan or the current plan.”612 At trial, Dr. Thornton further testified that “there is no 

statistically significant difference in the proportion Republican and whether or not a census tract 

is split.”613

As an initial matter on this issue, we credit Dr. Niven’s census tract analysis for a limited 

purpose. See supra Section II.C.3. Debates about the strength of various correlations aside, each 

expert’s calculations are close to 50%, and both experts agree that split census tracts lean slightly 

Democratic. Moreover, Dr. Thornton’s analysis is not entirely clear—she measured whether “the 

splitting of a census tract is correlated with the percentage Republican . . . .”614 Dr. Niven, on the 

other hand, seems to have tested the statistical significance of the difference between census tracts 

that were left intact (which lean Republican) and those that were split (which lean Democratic).615 

An analysis of this differential treatment between Republican and Democratic voters seems to be 

absent from Dr. Thornton’s report. 

3. Dr. Thomas Brunell 

Dr. Thomas Brunell testified at trial for the Intervenors as an expert witness. Dr. Brunell 

is a tenured professor of political science at the University of Texas at Dallas.616 He received his 

bachelor’s, master’s, and doctorate, all in political science, from the University of California,

 

611 Id.

612 Id.; see also id. at 27 & n.38 (noting that the correlation coefficient of the current plan 

is -0.02429, with a probability of occurring by chance of 18.77%).

613 Dkt. 246 (Thornton Trial Test. at 116).

614 Trial Ex. D8 (Thornton Rep. at 26).

615 See Trial Ex. P524 (Niven Rep. at 6).

616 Trial Ex. I-060 (Brunell CV).

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Irvine.617 Dr. Brunell teaches classes on Congress, political parties and interest groups, campaigns 

and elections, redistricting, and statistics, among others.618 He has published books and articles in 

peer-reviewed journals on redistricting, elections, issues of representation in government, and 

party polarization.619 Dr. Brunell has served as an expert witness in several other redistricting and 

VRA cases.620 This Court qualified Dr. Brunell as an expert in the fields of redistricting, elections, 

the VRA and representation, and statistics.621

Dr. Brunell’s report and testimony is offered to rebut Plaintiffs’ experts Dr. Cho, Dr. 

Warshaw, Dr. Niven, Dr. Handley, and Mr. Cooper. 

a. Rebuttal to Dr. Cho

Dr. Brunell questions whether Dr. Cho’s simulated maps “serve as a good basis for 

comparison to the actual map.”622 For various reasons, Dr. Brunell opines that Dr. Cho’s maps 

cannot serve as a good comparison to the current map. He asserts that “all of Professor Cho’s 

maps would likely be tossed” because they do not perfectly equalize population.623 For the reasons 

we explained earlier, see supra Section II.C.2., we do not find this critique persuasive. In brief, 

Dr. Cho’s 1% population deviation does not alter or undermine her analysis of partisan outcomes. 

 

617 Id.

618 Id.; Dkt. 246 (Brunell Trial Test. at 188–89).

619 Trial Ex. I-060 (Brunell CV); Dkt. 246 (Brunell Trial Test. at 189–91).

620 Dkt. 246 (Brunell Trial Test. at 192).

621 Id. at 192–93. Plaintiffs filed a Daubert motion to exclude Dr. Brunell. Plaintiffs argue 

his methodology renders his opinions unreliable, but Plaintiffs do not object to his qualifications. 

See id.; Dkt. 153, 153-1 (Pls.’ Mot. to Exclude Brunell). We deny Plaintiffs motion, but at the 

same time, we do not give much weight to Dr. Brunell’s report and testimony and find portions of 

it unhelpful, as explained below. In brief, much of his report suffers from a scarcity of explanation. 

The Court notes that Dr. Brunell offered a few new and previously undisclosed expert opinions at 

trial. To the extent that Dr. Brunell offered expert opinions on topics about which he was 

previously made aware but failed to include in his report, we exclude such testimony because it 

was neither substantially justified nor harmless. See FED. R. CIV. P. 26(a)(2)(B)(i); 37(c)(1). 

622 Dkt. 246 (Brunell Trial Test. at 194).

623 Trial Ex. I-060 (Brunell Rep. at 2).

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We further note this criticism, along with others, offered by Dr. Brunell seems to miss the point of 

Dr. Cho’s simulated maps.624 Dr. Cho’s simulated maps are not offered as examples of maps that 

should be enacted by the State per se; rather, the simulated maps provide a baseline to compare 

the partisan outcomes between the current map and maps that incorporate only neutral criteria. 

Moreover, Dr. Brunell critiques Dr. Cho’s failure to consider incumbent protection, and he testified 

that protecting incumbents is “automatically going to make all of her districts different from . . . 

one of the main stated goals by the legislature here in Ohio.”625 We address this point in the context 

of evaluating the proof of partisan effect and considering Defendants’ justifications for the map, 

see infra Section V.A.2.d. (addressing the problems with the incumbent-protection justification as 

applied to this case), and we observe again that Representative Huffman described incumbent

protection as “subservient” to other criteria in the process of creating H.B. 319.

626

Dr. Brunell incorrectly reads Dr. Cho’s histograms to “suggest[] that there are just a 

handful of different maps in Prof. Cho’s exercises, each with hundreds of thousands of 

repetitions.”627 Dr. Cho responds in her rebuttal report that Dr. Brunell’s inference is unsupported 

 

624 For example, Dr. Brunell criticizes Dr. Cho for not turning over any shape files that 

would visually display some of her maps. Id. (“It is . . . highly unlikely that any of them would be 

considered by the legislature.”); Dkt. 246 (Brunell Trial Test. at 197). Although it is true that Dr. 

Cho did not turn over “shape files,” we credit Dr. Cho’s report and testimony and find that her 

simulated maps serve their purpose as maps that incorporate only neutral criteria in order to assess 

expected partisan outcomes based on, for example, political geography. 

625 Dkt. 246 (Brunell Trial Test. at 196–97).

626 See Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 19) (statement of Rep. 

Huffman). Dr. Brunell also criticizes Dr. Cho for failing to consider preserving the core of prior 

districts in her simulated maps. Trial Ex. I-060 (Brunell Rep. at 11); Dkt. 246 (Brunell Trial Test. 

at 204). But he also testified that this criterion is “part of protecting incumbents at one level,” and 

he agreed that this criterion could appear as improperly partisan “since the Republicans were 

advantaged ahead of time or they had more seats before the last round of redistricting . . . then that 

would carry through . . . to the next round of redistricting.” Dkt. 246 (Brunell Trial Test. at 205).

627 Trial Ex. I-060 (Brunell Rep. at 5); see also id. at 4 (lodging the same critique at the fact 

that Dr. Cho’s simulated maps produced three concentrated percentages of BVAPs, and 

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by the data provided: “none of these histograms can suggest anything about how many different 

maps are represented since two drastically different maps can have the same metrics. . . . The 

number of bars in the histograms has no relationship with the similarity of the maps.”628 

Accordingly, we reject this critique by Dr. Brunell.

Next, Dr. Brunell disagrees with Dr. Cho’s conclusion that the current map is not 

responsive to voters. Instead, he “would characterize Prof. Cho [sic] simulated maps as hyperresponsive.”629

 He further offered his normative view that responsiveness is not necessarily a 

positive feature of a map because “[m]assive volatility in the seat shares of the two parties is 

probably not conducive to good public policy.”630 As a basis for his conclusions on 

responsiveness, Dr. Brunell partly relied on “an old article by Edward Tufte, who was one of the 

first people to . . . talk about these two metrics of swing ratio and bias” (which are related to 

responsiveness).631 In fact, the article is from the early 1970s, and the data provided are for Great 

Britain, New Zealand, the United States generally, Michigan, New Jersey, and New York.632 

Importantly, much of the data precede the one-person, one-vote cases decided in the early-to-mid1960s—an era in which districts were malapportioned. Tufte also used a linear fit of the data, not 

a seats-votes curve like Dr. Cho, which is a different model with different underlying 

assumptions.633 Because Dr. Brunell’s critique is based in on an inapt comparison, we give it little 

to no weight.

 

concluding that “at least for this variable, there are really slight variations on three different 

districts”).

628 Trial Ex. P088 (Cho Rebuttal Rep. at 14–15).

629 Trial Ex. I-060 (Brunell Rep. at 7).

630 Id.

631 Dkt. 246 (Brunell Trial Test. at 218).

632 Trial Ex. I-060 (Brunell Rep. at 9, tbl. 1).

633 Trial Ex. P088 (Cho Rebuttal Rep. at 15). 

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Lastly, Dr. Brunell misunderstands the point of Dr. Cho’s individual Plaintiff-specific 

analyses. He takes issue with the fact that, because some Plaintiffs end up in the same district 

under Dr. Cho’s simulated maps, “we cannot know what the partisanship of all 16 of the districts 

looks like” in the simulated maps.634 As Dr. Cho responds, this specific analysis “was never 

intended for this purpose, and [she] never suggested that the plaintiff data could be or should be 

used in this way.”635 We agree. Dr. Cho’s Plaintiff-specific analysis provides a comparison 

between each Plaintiff’s current district and each Plaintiff’s set of simulated districts, and this 

analysis is thus some evidence of whether Plaintiffs currently live in a packed or cracked district. 

The Plaintiff-specific analysis is just that, Plaintiff-specific; it does not compare the current map 

as a whole to the set of simulated maps as a whole. Dr. Cho has made such a comparison in a 

separate analysis.

b. Rebuttal to Dr. Warshaw 

Dr. Brunell’s critique of Dr. Warshaw’s metrics focuses only on the efficiency gap. First, 

Dr. Brunell points out supposed issues with using actual congressional elections to calculate the 

efficiency gap, including uncontested elections and the variability of candidates.636 Dr. Warshaw 

acknowledges some drawbacks in his report, but he also explains that “[i]n practice, . . . both 

legislative races and other statewide races produce similar efficiency gap results for modern 

elections where voters are well sorted by party and ideology.”637 We do not find unreasonable Dr. 

Warshaw’s use of actual congressional election results to calculate the efficiency gap in 

 

634 Id. at 9; see also id. at 9–11.

635 Trial Ex. P088 (Cho Rebuttal Rep. at 5).

636 Trial Ex. I-060 (Brunell Rep. at 12–13).

637 Trial Ex. P571 (Warshaw Rep. at 6–7 n.5).

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congressional elections.638 Second, Dr. Brunell quibbles with the efficiency gap’s definition of 

wasted votes, stating that “[i]t is not clear why all votes for the winning candidate greater than the 

total number of votes for the losing candidate are not classified as wasted.”639 Dr. Warshaw, 

however, explains in his rebuttal the logic behind the definition of wasted votes, a term of art in 

the context of the efficiency gap—only “50%+1 of the total votes, rather than 1 more vote than the 

losing candidate’s current vote tally, are needed to win a counter-factual election” and therefore 

the efficiency gaps considers wasted votes for the winning candidate beyond that 50%+1.640 Dr. 

Brunell’s critique does not thread the needle, telling us why the generally-accepted definition of 

wasted votes from the efficiency gap literature poses a problem for measuring the extent of a 

partisan gerrymander. Accordingly, it does not impact our view of the helpfulness of the efficiency 

gap as a tool. Third, according to Dr. Brunell, “[i]t is hard to say how much of a gap is too much. 

Is five too much, or seven, or ten?”641 Furthermore, he criticizes the metric’s variability across 

elections.642 While these criticisms have some merit, they do not overcome Dr. Warshaw’s use of 

other metrics and how Dr. Warshaw holistically determines whether a map is a gerrymander (e.g., 

a map must also be an outlier). See supra Section II.C.1. Accordingly, we find that Dr. Brunell 

does not undermine Dr. Warshaw’s conclusions or the usefulness of the efficiency gap. 

 

638 Indeed, as Dr. Warshaw testified at trial, although he used congressional election results, 

other election results would “yield very similar answers . . . [b]ecause the voters are cleanly sorted 

into parties and they typically vote the same way for different offices, the correlation between 

congressional election results and presidential election results is about .9.” Dkt. 241 (Warshaw 

Trial Test. at 34). 

639 Trial Ex. I-060 (Brunell Rep. at 14).

640 Trial Ex. P572 (Warshaw Rebuttal Rep. at 5). 

641 Trial Ex. I-060 (Brunell Rep. at 14).

642 Id.

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c. Rebuttal to Dr. Niven

The thrust of Dr. Brunell’s response to Dr. Niven is that “when electoral boundaries are 

being drawn some cities, counties, communities, neighborhoods have to be divided” and “[t]he 

boundaries have to go somewhere . . . .”643 Although that may be true as a general proposition, it 

does not respond to Dr. Niven’s findings that the divisions imposed by the current map are more 

likely to be imposed on Democratic voters than Republican voters. See supra Section II.C.3. Dr. 

Brunell also comments on some conceptions of communities of interest used by Dr. Niven, noting 

that “[t]here is no clear definition of what constitutes a community of interest, but cities and 

counties are generally characterized as such[.]”

644

d. Rebuttal to Dr. Handley

Dr. Brunell’s rebuttal to Dr. Handley does not contain any criticisms. His report simply 

states: “It is interesting to note that Dr. Handley recommended a majority African American 

district of over 61 percent BVAP in a recent lawsuit in Euclid, Ohio, which is in Cuyahoga County 

. . . .”645 We find this statement entirely unhelpful. That case addressed a non-partisan election 

and required a different jurisdiction-specific analysis, and Dr. Brunell agreed that to do a proper 

assessment of racially polarized voting in this case would require looking at partisan election 

outcomes.646 He also admitted that “[i]n the current District 11, [he] think[s] that Dr. Handley’s 

advice of 45 percent [BVAP] is correct . . . . That’s not for Cuyahoga County. That’s for 

Congressional District 11.”647

 

643 Id. at 16–17.

644 Id. at 16.

645 Id. at 18.

646 Dkt. 247 (Brunell Trial Test. at 94).

647 Id. at 95.

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e. Rebuttal to Mr. Cooper

Likewise, Dr. Brunell’s rebuttal to Mr. Cooper does not contain any helpful critiques. He 

simply concludes that “[i]t isn’t clear why the policy decisions of Mr. Cooper are better for the 

citizens of Ohio than the combined policy preferences of the state legislature.”648 He also states 

that “[i]t is worth noting” that the Proposed Remedial Plan pairs more incumbents.649 The whole 

question in this case is not whether, in a vacuum, Mr. Cooper’s maps are “better” than the 2012 

map but whether the current map enacted by the State in H.B. 369 is constitutional. If not, the 

Proposed Remedial Plan is offered as a possible remedy to replace an unconstitutional partisan 

gerrymander. We therefore reject Dr. Brunell’s critiques of Mr. Cooper. 

III. STANDING

Before turning to the merits of this case, we must address two threshold issues. First, we 

address Plaintiffs’ standing to bring these claims. That is, are these the right Plaintiffs to bring 

these claims? Second, in the next Part, we will turn to the justiciability of partisan-gerrymandering 

claims. That is, are courts, rather than another branch of government, the proper forum to hear 

these claims?

To establish standing, Plaintiffs must show: (1) “an injury in fact”; (2) “a causal connection 

between the injury and the conduct complained of”; and (3) that it is “likely . . . that the injury will 

be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) 

(internal quotation marks omitted). At least one “plaintiff must demonstrate standing for each 

claim . . . press[ed] and for each form of relief that is sought.” Davis v. Fed. Election Comm’n, 

554 U.S. 724, 734 (2008); see also Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 

 

648 Trial Ex. I-060 (Brunell Rep. at 19).

649 Id.

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(2017). These requirements ensure that plaintiffs who invoke a federal court’s jurisdiction have 

“a personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204 (1962), 

and that the federal court does not become “a forum for generalized grievances . . . .” Lance v. 

Coffman, 549 U.S. 437, 439 (2007).

For the reasons that follow, we conclude that each individual Plaintiff and each 

organizational Plaintiff has standing to bring their district-specific vote-dilution claims. We 

further conclude that the individual Plaintiffs and organizational Plaintiffs have standing to bring 

their statewide First Amendment associational claim. Because Plaintiffs have standing for their 

claims that H.B. 369 violates the First and Fourteenth Amendments, they also have standing to 

pursue their claim that H.B. 369 exceeds the State’s powers under Article I. Before turning to 

these standing analyses, we emphasize that just because Plaintiffs have suffered an “injury in fact” 

for standing purposes does not mean that they necessarily succeed on the merits; in other words, 

showing “a personal stake in the outcome of the controversy,” Baker, 369 U.S. at 204, does not 

guarantee an outcome in one’s favor. Plaintiffs support with admissible evidence their contentions 

that they have suffered an injury in fact; for standing purposes, that is enough. We address fully 

whether the evidence is sufficient to prove Plaintiffs’ claims in our discussion of the merits.

A. Vote-Dilution Claims

To establish standing for their vote-dilution claims, the individual Plaintiffs must each 

establish that they live in an allegedly gerrymandered district just as in the racial-gerrymandering 

context. See Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (“A plaintiff who complains of 

gerrymandering, but who does not live in a gerrymandered district, ‘assert[s] only a generalized 

grievance against governmental conduct of which he or she does not approve.’” (quoting United 

States v. Hays, 515 U.S. 737, 745 (1995))). In pursuing these claims, we recognize that, as in other 

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redistricting cases, “[v]oters, of course, can present statewide evidence in order to prove . . . 

gerrymandering in a particular district.” Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 

1257, 1265 (2015). Each individual Plaintiff and district will be addressed in turn.

1. District 1: Linda Goldenhar 

Linda Goldenhar has lived at her current address and voted in District 1 for seventeen 

years.650 Goldenhar has voted in every congressional and presidential election in Ohio since 1992, 

and in each of these elections, she has voted for a Democratic candidate.651 Representative Chabot, 

a Republican, has represented District 1 since winning election in 1994, except in 2008 when 

Representative Chabot lost to Steve Driehaus; after that, Representative Chabot defeated 

Representative Driehaus in 2010. Goldenhar thus lives in a district that allegedly cracks 

Democratic voters, and she is a Democratic voter.

Admissible evidence supports Goldenhar’s contention that District 1 is gerrymandered. 

Dr. Cho’s analysis shows that “[a]mong the set of simulated maps, 95.6% of them would have 

placed Plaintiff Goldenhar in a district that would have provided a higher likelihood of electing a 

Democrat.”652 Therefore, Goldenhar’s district is more Republican than the vast majority of the 

alternate, simulated, non-partisan districts that she could live in, which indicates that her district is 

cracked. Under the Proposed Remedial Plan, Goldenhar would remain in District 1. The Proposed 

Remedial Plan’s District 1 is more competitive than the current District 1, and in 2018, a 

Democratic candidate would have won District 1 with 57.2% of the vote.653

 

650 Dkt. 230-15 (Goldenhar Dep. at 7).

651 Id. at 11–13.

652 Trial Ex. P087 (Cho Rep. at 13).

653 See Trial Ex. P598 (Cooper Third Suppl. Decl. at 4, fig. 2). Figure 2 shows two 

competitive elections under the Proposed Remedial Plan, both of which would be won by the 

Republican candidate; one election in which a Democratic candidate would receive 44.3% of the 

vote; and one election won by the Democratic candidate with 57.2% of the vote. The 2012 plan, 

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For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Goldenhar has standing for her vote-dilution claim.

2. District 2: Douglas Burks

Douglas Burks has lived at his current address and voted in District 2 since the enactment 

of the 2012 plan.654 Burks has voted in every election since the enactment of the 2012 plan, and 

he has identified as a Democrat since 1980.655 Representative Wenstrup, a Republican, has 

represented District 2 since 2012. Burks thus lives in a district that allegedly cracks Democratic 

voters, and he is a Democratic voter.

Admissible evidence supports Burks’s contention that District 2 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 99.87% of them would have placed 

Plaintiff Burks in a district that would have provided a higher likelihood of electing a 

Democrat.”656 Therefore, Burks’s district is more Republican than the vast majority of the 

alternate, simulated, non-partisan districts that he could live in, which indicates that his district is 

cracked. Under the Proposed Remedial Plan, Burks would be placed in District 1 (with Goldenhar, 

see supra), which is considerably more competitive than the current District 2.657 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Burks has standing for his vote-dilution claim.

 

by contrast, has one competitive election, in which the Democratic candidate received 47.8% of 

the vote; the next closest election was in 2016, in which the Democratic candidate received 40.7%.

654 Dkt. 239 (Burks Trial Test. at 225).

655 See id.

656 Trial Ex. P087 (Cho Rep. at 14).

657 See Trial Ex. P598 (Cooper Third Suppl. Decl. at 4, fig. 2).

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3. District 3: Sarah Inskeep

Sarah Inskeep has lived at her current address and voted in District 3 since 2016.658 Prior

to that, Inskeep lived in Cincinnati, where she grew up and attended college.659 Inskeep is a 

Democratic voter.660 Representative Joyce Beatty, a Democratic Congresswoman, has represented 

District 3 since 2012. Inskeep thus lives in a district that allegedly packs Democratic voters, and 

she is a Democratic voter. 

Admissible evidence supports Inskeep’s contention that District 3 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, none of them would have placed 

Plaintiff Inskeep in a district that would have provided a higher likelihood of electing a 

Democrat.”661 Therefore, Inskeep’s district is more Democratic than all the alternate, simulated, 

non-partisan districts that she could live in, which indicates that her district is packed. Under the 

Proposed Remedial Plan, Inskeep would remain in District 3. The Proposed Remedial Plan’s 

District 3, though still safely Democratic, produces a Democratic vote share ranging from 58.2% 

in 2014 to 68.3% in 2018, compared to the 63.6% (2014) to 73.6% (2018) under the current map.662

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Inskeep has standing for her vote-dilution claim.

 

658 See Dkt. 230-21 (Inskeep Dep. at 6–7, 28–29).

659 Id. at 7–8.

660 Id. at 53–54.

661 Trial Ex. P087 (Cho Rep. at 15).

662 Trial Ex. P598 (Cooper Third Suppl. Decl. at 4, fig. 2). Figure 2 shows that, under the 

current plan, the Democratic vote share exceeds 70% in 2012 and 2018. Under the Proposed 

Remedial Plan, these percentages are 66.9% for 2012 and 68.3% for 2018.

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4. District 4: Cynthia Libster

Cynthia Libster has lived at her current address and voted in District 4 for almost thirty 

years.663 Libster is a lifelong Democratic voter.664 Representative Jordan, a Republican, has 

represented District 4 since winning election in 2006. Libster thus lives in a district that allegedly

cracks Democratic voters, and she is a Democratic voter. 

Admissible evidence supports Libster’s contention that District 4 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 98.25% of them would have placed 

Plaintiff Libster in a district that would have provided a higher likelihood of electing a 

Democrat.”665 Therefore, Libster’s district is more Republican than the vast majority of alternate,

simulated, non-partisan districts that she could live in, which indicates that her district is cracked. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Libster has standing for her vote-dilution claim.

5. District 5: Kathryn Deitsch 

Kathryn Deitsch has lived in District 5 since 2013.666 Deitsch has affiliated with the 

Democratic Party since she “was first able to vote.”667 Representative Latta, a Republican, has 

represented District 5 since before the enactment of the current plan. Deitsch thus lives in a district 

that allegedly cracks Democratic voters, and she is a Democratic voter. 

Admissible evidence supports Deitsch’s contention that District 5 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 95.45% of them would have placed 

Plaintiff Deitsch in a district that would have provided a higher likelihood of electing a 

 

663 See Dkt. 230-30 (Libster Dep. at 9–10).

664 Id. at 54–55.

665 Trial Ex. P087 (Cho Rep. at 16).

666 See Dkt. 230-11 (Deitsch Dep. at 14).

667 Id. at 19.

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Democrat.”668 Therefore, Deitsch’s district is more Republican than the vast majority of alternate,

simulated, non-partisan districts that she could live in, which indicates that her district is cracked. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Deitsch has standing for her vote-dilution claim.

6. District 6: LuAnn Boothe

LuAnn Boothe has lived at her current address for thirty-four years and voted in District 6 

throughout the entirety of the current plan.669 Boothe has always been a Democratic voter.670 

Representative Johnson, a Republican, has represented District 6 since 2011, after defeating thenincumbent Representative Wilson (a Democratic Congressman) in 2010. Boothe thus lives in a 

district that allegedly cracks Democratic voters, and she is a Democratic voter.

Admissible evidence supports Boothe’s contention that District 6 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 100% of them would have placed 

Plaintiff Boothe in a district that would have provided a higher likelihood of electing a 

Democrat.”671 Therefore, Boothe’s district is more Republican than all the alternate, simulated, 

non-partisan districts that she could live in, which indicates that her district is cracked. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Boothe has standing for her vote-dilution claim.

 

668 Trial Ex. P087 (Cho Rep. at 17).

669 Dkt. 230-6 (Boothe Dep. at 7–8).

670 Id. at 21. Boothe voted for a Republican once, but she “learned her lesson” and doesn’t 

“think [she] would ever do it again. It would have to be an extreme circumstance . . . .” Id. at 49, 

90.

671 Trial Ex. P087 (Cho Rep. at 18).

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7. District 7: Mark Griffiths

Mark Griffiths has lived at his current address for almost sixteen years and has voted in 

District 7 since the enactment of the 2012 plan.672 Griffiths is a registered Democrat and has 

always voted for the Democratic candidate for Congress.673 Representative Gibbs, a Republican, 

began representing District 7 when the current plan was enacted.674 Griffiths was previously 

represented by then-Congresswoman Betty Sutton and, prior to that, then-Congressman Sherrod 

Brown, both Democrats. Griffiths thus lives in a district that allegedly cracks Democratic voters, 

and he is a Democratic voter.

Admissible evidence supports Griffiths’s contention that District 7 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 100% of them would have placed 

Plaintiff Griffiths in a district that would have provided a higher likelihood of electing a 

Democrat.”675 Therefore, Griffiths’s district is more Republican than all the alternate, simulated, 

non-partisan districts that he could live in, which indicates that his district is cracked. Under the 

Proposed Remedial Plan, Griffiths would be placed in District 9, a competitive district that would 

have elected a Democratic candidate in 2012 and 2018 and a Republican candidate in 2014 and 

2016.676 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Griffiths has standing for his vote-dilution claim.

 

672 Dkt. 240 (Griffiths Trial Test. at 40).

673 Id. at 40–42. Griffiths voted Republican once, in the 2016 Senate race. Id. at 41–42.

674 Id. at 40. The Court takes judicial notice of the fact that Representative Gibbs previously 

served in Congress for District 18, which was eliminated due to Ohio losing two seats in Congress 

after the 2010 census. FED. R. EVID. 201.

675 Trial Ex. P087 (Cho Rep. at 19).

676 See Trial Ex. P598 (Cooper Third Suppl. Decl. at 4, fig. 2).

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8. District 8: Lawrence Nadler

Lawrence Nadler has lived at his current address, located in District 8, for twenty-six 

years.677 Nadler affiliates with the Democratic Party and votes for Democratic candidates.678 

Representative Davidson, a Republican, has represented District 8 since 2016 after then-Speaker 

of the U.S. House of Representatives John Boehner resigned his seat. Nadler thus lives in a district 

that allegedly cracks Democratic voters, and he is a Democratic voter.

Admissible evidence supports Nadler’s contention that District 8 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 100% of them would have placed 

Plaintiff Nadler in a district that would have provided a higher likelihood of electing a 

Democrat.”679 Therefore, Nadler’s district is more Republican than all the alternate, simulated, 

non-partisan districts that he could live in, which indicates that his district is cracked. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Nadler has standing for his vote-dilution claim.

9. District 9: Tristan Rader and Chitra Walker

First, Tristan Rader has lived at his address since October 2013 and, after moving to his 

current address, has voted in District 9 in every election.680 Rader generally votes for Democratic 

candidates and he has been involved in several Democratic campaigns.681 Representative Kaptur, 

a Democratic Congresswoman, has represented District 9 since the current plan was enacted and 

she was first elected to Congress in 1982. At the time of the 2012 plan’s enactment, Representative 

 

677 Dkt. 230-36 (Nadler Dep. at 6–7).

678 Id. at 8.

679 Trial Ex. P087 (Cho Rep. at 20).

680 Dkt. 230-40 (Rader Dep. at 8–9, 13)

681 Id. at 18; see also, e.g., id. at 29–30.

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Kaptur was Ohio’s longest-serving member of Congress. Rader thus lives in a district that 

allegedly packs Democratic voters, and he is a Democratic voter.

Admissible evidence supports Rader’s contention that District 9 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 13.55% of them would have placed 

Plaintiff Rader in a district that would have provided a higher likelihood of electing a 

Democrat.”682 Therefore, Rader’s district is more Democratic than the vast majority of the 

alternate, simulated, non-partisan districts that he could live in, which indicates that his district is 

packed. Under the Proposed Remedial Plan, Rader would be placed in the new District 9 (with 

Griffiths, see supra).

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Rader has standing for his vote-dilution claim.

Second, Chitra Walker also lives in District 9 and has lived at a few addresses throughout 

the district since 2008.683 Walker is a Democratic voter.684 Walker thus lives in a district that 

allegedly packs Democratic voters, and she is a Democratic voter.

Admissible evidence supports Walker’s contention that District 9 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 15.91% of them would have placed 

Plaintiff Walker in a district that would have provided a higher likelihood of electing a 

Democrat.”685 Therefore, Walker’s district is more Democratic than the vast majority of the 

alternate, simulated, non-partisan districts that she could live in, which indicates that her district is 

 

682 Trial Ex. P087 (Cho Rep. at 22).

683 Dkt. 230-50 (Walker Dep. at 8–9).

684 Id. at 11, 28.

685 Trial Ex. P087 (Cho Rep. at 21).

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packed. Under the Proposed Remedial Plan, Walker would also be placed in the new District 9 

(with Rader and Griffiths, see supra).

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Walker has standing for her vote-dilution claim.

10. District 10: Ria Megnin

Ria Megnin has lived at her current address and voted in District 10 since 2012.686 Megnin 

is affiliated with the Democratic Party and votes for Democratic candidates.687 Representative 

Turner, a Republican, has represented District 10 since the enactment of the current plan and has 

served in Congress for sixteen years. Megnin thus lives in a district that allegedly cracks 

Democratic voters, and she is a Democratic voter.

Admissible evidence supports Megnin’s contention that District 10 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 99.75% of them would have placed 

Plaintiff Megnin in a district that would have provided a higher likelihood of electing a 

Democrat.”688 Therefore, Megnin’s district is more Republican than almost all of the alternate,

simulated, non-partisan districts that she could live in, which indicates that her district is cracked. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Megnin has standing for her vote-dilution claim.

11. District 11: Andrew Harris

Andrew Harris has lived in what is now District 11 since 1997 and been voting since he 

turned eighteen years old in 2008.689 Harris is a registered Democratic voter and always votes for 

 

686 Dkt. 230-32 (Megnin Dep. at 9, 13).

687 Id. at 68, 71–72.

688 Trial Ex. P087 (Cho Rep. at 23).

689 Dkt. 230-17 (Harris Dep. at 7–8, 10).

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Democratic candidates.690 Representative Fudge, a Democratic Congresswoman, represents 

District 11 and has served in Congress since 2008. Harris thus lives in a district that allegedly 

packs Democratic voters, and he is a Democratic voter.

Admissible evidence supports Harris’s contention that District 11 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, none of them would have placed 

Plaintiff Harris in a district that would have provided a higher likelihood of electing a 

Democrat.”691 Therefore, Harris’s district is more Democratic than all of the alternate, simulated, 

non-partisan districts that he could live in, which indicates that his district is packed. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Harris has standing for his vote-dilution claim.

12. District 12: Aaron Dagres

Aaron Dagres has lived at his current address and voted in District 12 for about eight 

years.692 Dagres is a registered Democratic voter and has always voted for Democratic candidates, 

except in a 2012 presidential primary that was not contested on the Democratic side.693 

Representative Balderson, a Republican, first won election in a 2018 special election and then went 

on to win the general election; Representative Balderson replaced Representative Tiberi (also a

Republican), an incumbent at the time of the current plan’s enactment. Dagres thus lives in a 

district that allegedly cracks Democratic voters, and he is a Democratic voter.

Admissible evidence supports Dagres’s contention that District 12 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 100% of them would have placed 

 

690 Id. at 10.

691 Trial Ex. P087 (Cho Rep. at 24).

692 Dkt. 240 (Dagres Trial Test. at 84–85).

693 Id. at 85.

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Plaintiff Dagres in a district that would have provided a higher likelihood of electing a 

Democrat.”694 Therefore, Dagres’s district is more Republican than all the alternate, simulated, 

non-partisan districts that he could live in, which indicates that his district is cracked. Under the 

Proposed Remedial Plan, Dagres would be placed in a new District 12, which mostly remains a 

safe-Republican district, but Democratic candidates would receive a higher vote share.695 In 2018, 

the Democratic candidate would have won remedial District 12.696

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Dagres has standing for his vote-dilution claim.

13. District 13: Elizabeth Myer

Elizabeth Myer has lived at her current address, located in the current District 13, for over 

twenty years.697 Myer is a registered Democratic voter and votes for Democratic candidates.698 

Representative Ryan, a Democratic Congressman, has represented District 13 since the current 

plan’s enactment and he was an incumbent at that time. Myer thus lives in a district that allegedly 

packs Democratic voters, and she is a Democratic voter.

Admissible evidence supports Myer’s contention that District 13 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, none of them would have placed 

Plaintiff Myer in a district that would have provided a higher likelihood of electing a Democrat.”699 

Therefore, Myer’s district is more Democratic than all the alternate, simulated, non-partisan

districts that she could live in, which indicates that her district is packed. Under the Proposed 

 

694 Trial Ex. P087 (Cho Rep. at 25).

695 See Trial Ex. P598 (Cooper Third Suppl. Decl. at 4, fig. 2).

696 See id.

697 Dkt. 240 (Myer Trial Test. at 112–13).

698 Id. at 115.

699 Trial Ex. P087 (Cho Rep. at 26).

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Remedial Plan, Myer would be placed in a new District 13, a Democratic-leaning but fairly 

competitive district.700 The remedial District 13 would have consistently elected a Democratic 

candidate from 2012 to 2018, but the Democratic vote share is lower, and the 2016 (54.2% 

Democratic vote share) and 2018 (51.4% Democratic vote share) would have been competitive.701

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Myer has standing for her vote-dilution claim.

14. District 14: Beth Hutton

Beth Hutton has lived at her current address, located in District 14, for over thirty years.702 

Hutton has voted in almost every single U.S. congressional race since 1972.

703

 She always votes 

in the Democratic primaries and typically votes for Democratic candidates at the federal level, 

with the exception of voting for Representative Steve LaTourette (a Republican) the first time he 

ran.704 Representative Joyce, a Republican, began representing District 14 in 2013 after 

Representative LaTourette retired. Hutton thus lives in a district that allegedly cracks Democratic 

voters, and she is a Democratic voter.

Admissible evidence supports Hutton’s contention that District 14 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 100% of them would have placed 

Plaintiff Hutton in a district that would have provided a higher likelihood of electing a 

Democrat.”705 Therefore, Hutton’s district is more Republican than all the alternate, simulated, 

 

700 See Trial Ex. P598 (Cooper Third Suppl. Decl. at 4, fig. 2).

701 See id. No elections in this district under the current plan were competitive.

702 Dkt. 230-20 (Hutton Dep. at 8–10).

703 Id. at 12.

704 Id. at 12–16.

705 Trial Ex. P087 (Cho Rep. at 27).

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non-partisan districts that she could live in, which indicates that her district is packed. Under the 

Proposed Remedial Plan, Hutton would be placed in District 13 (with Myer, see supra).

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Hutton has standing for her vote-dilution claim.

15. District 15: Theresa Thobaben 

Teresa Thobaben has lived at her current address, located in District 15, for thirty-seven 

years.706 Thobaben has voted in every congressional election that she can recall since her first 

election in 1972.707 Thobaben has always considered herself a Democrat and consistently voted 

for Democratic candidates.708 Representative Stivers, a Republican, has represented District 15 

since 2010 after defeating then-incumbent Democratic Representative Mary Jo Kilroy (in the 

former District 15). Thobaben thus lives in a district that allegedly cracks Democratic voters, and 

she is a Democratic voter.

Admissible evidence supports Thobaben’s contention that District 15 is gerrymandered. 

Dr. Cho’s analysis shows that “[a]mong the set of simulated maps, 79.28% of them would have 

placed Plaintiff Thobaben in a district that would have provided a higher likelihood of electing a 

Democrat.”709 Therefore, Thobaben’s district is more Republican than the vast majority of 

alternate, simulated, non-partisan districts that she could live in, which indicates that her district is 

packed. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Thobaben has standing for her vote-dilution claim.

 

706 Dkt. 220-48 (Thobaben Dep. at 8–9).

707 Id. at 9–11.

708 Id. at 11.

709 Trial Ex. P087 (Cho Rep. at 28).

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16. District 16: Constance Rubin

Constance Rubin has lived at and voted in District 16 for the past eight years.710 Rubin has 

been a Democratic voter since at least 1984, though she formerly voted Republican when she first 

registered to vote in 1973.711 Now former-Representative Jim Renacci, a Republican, had 

represented District 16 since 2011 after beating then-Democratic incumbent Congressman John 

Boccieri in the 2010 election; in January 2019, Representative Anthony Gonzalez, a Republican, 

began serving as the Congressman for District 16.712 Rubin thus lives in a district that allegedly 

cracks Democratic voters, and she is a Democratic voter.

Admissible evidence supports Rubin’s contention that District 16 is gerrymandered. Dr. 

Cho’s analysis shows that “[a]mong the set of simulated maps, 100% of them would have placed 

Plaintiff Rubin in a district that would have provided a higher likelihood of electing a 

Democrat.”713 Therefore, Rubin’s district is more Republican than all alternate, simulated, nonpartisan districts that she could live in, which indicates that her district is packed. 

For these reasons, and for the reasons below that apply to all Plaintiffs, we find that Plaintiff 

Rubin has standing for her vote-dilution claim.

17. Statewide Evidence of Injury in Fact and Causation

Statewide evidence bolsters each individual Plaintiff’s contention that the current map was 

drawn with the predominant purpose of packing or cracking Democratic voters in each district and 

had that effect. As explained above, Dr. Warshaw employed four partisan-bias metrics to measure 

 

710 Dkt. 230-42 (Rubin Dep. at 7–8).

711 Id. at 16, 23–24. Rubin says that it is “[h]ighly doubtful” that she would vote for a 

Republican again, id. at 24–25, and Rubin has been a member of the Stark County Democratic 

Party since 1984 and served on its Central Committee from 2004 to 2010, id. at 16. 

712 The Court takes judicial notice of this fact. FED. R. EVID. 201.

713 Trial Ex. P087 (Cho Rep. at 29).

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the partisan advantage of the current plan: the efficiency gap, the mean-median gap, two partisan 

symmetry metrics, and declination.714 Based on his analysis of these measures, Dr. Warshaw 

concluded that “Democratic voters in Ohio are efficiently packed and cracked across districts. . . . 

As a result, Ohio’s elections are unresponsive to normal shifts in voters’ preferences within the 

historical range of congressional election results in Ohio.”715 Notably, these effects align with the 

map drawers’ own statements that “it is a tall order to draw 13 ‘safe’ seats,” and their thoughts that 

“this map is the one [that] put the most number of seats in the safety zone given the political 

geography of [Ohio] . . . .”716 That is, the map efficiently packs and cracks each and every district 

in an effort to favor Republican candidates to the fullest and most durable extent possible.

The individual Plaintiffs present other evidence of causation as well. Dr. Cho’s analysis 

shows that although “a 12-4 seat share [the outcome of every election under the 2012 plan] is 

possible, . . . it is unusual given a map creation process that does not consider partisanship.”717 In 

her initial report, Dr. Cho’s maps were based on 2008 and 2010 election data, which showed that 

“none of [her simulated maps] had the same 12-4 seat share as in the challenged map.”718 In her 

supplemental report, in which Dr. Cho uses the 2018 election data, only 0.046% of the over 3-

million simulated maps (i.e., 1,445 out of 3,037,645) produce the same 12-4 seat share.719 

Moreover, Mr. Cooper’s Proposed Remedial Plan splits fewer counties and adheres to traditional 

redistricting principles (“one-person-one-vote, incumbent non-pairing where possible, 

 

714 See Trial Ex. P571 (Warshaw Rep. at 5–13).

715 Id. at 4.

716 See Trial Ex. P385 (Congressional Redistricting Talking Points at LWVOH_0052438).

717 Trial Ex. P087 (Cho Rep. at 40). 

718 Id. (emphasis added); see also id. at 33–37 (analyzing competitiveness and concluding 

that the simulated maps are more competitive than the current map, thus providing evidence that 

the current map packs and cracks voters).

719 Trial Ex. P426 (Cho Suppl. Rep. at 3).

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compactness, contiguity, the non-dilution of minority voting strength, and respect for communities 

of interest”).720 Dr. Warshaw bolsters these findings by comparing the partisan-bias metrics from 

elections under the current plan to those under historical elections and concluding that the current 

plan’s partisan bias is extreme.721 The alternative maps (both the simulations and Mr. Cooper’s 

maps) and Ohio’s own historical maps thus provide baselines against which to measure the 

extremity of this map’s partisan bias; collectively, this evidence establishes causation for standing 

purposes. 

18. Redressability 

Plaintiffs request injunctive relief that prohibits the State from conducting future elections 

under the current map. They further request that a non-gerrymandered map be implemented in its 

place. 

Clearly, the Court can enjoin future use of the 2012 map. Further, it is possible to enact a 

non-gerrymandered map for the upcoming election. The Proposed Remedial Plan offers just one 

possible example of such a non-gerrymandered map that could replace the current map.

722

 Dr. 

Warshaw concludes that, using the same partisan-bias metrics that he used to analyze the current 

map, “the remedial plan . . . displays very low levels of partisan bias and high levels of 

responsiveness. Thus, [Dr. Warshaw] believe[s] that the remedial plan would improve the 

representational link between voters and Ohio’s members of Congress.”723 In other words, the

 

720 See trial Ex. P090 (Cooper Decl. at 11, 14–18); see also Trial Ex. P092 (Cooper Suppl. 

Decl.) (providing hypothetical maps that pair the same number of incumbents and in the same 

configuration (a Republican pairing, a Democratic pairing, and a Democratic candidate versus a 

Republican candidate) as the 2012 plan but are similar in demographic and partisan measures to

the Proposed Remedial Plan).

721 See Trial Ex. P571 (Warshaw Rep. at 21–27); Trial Ex. P476 (Warshaw 2018 Update 

at 6–8).

722 See Trial Ex. P091 (Cooper Errata at 2, fig. 1).

723 Trial Ex. P571 (Warshaw Rep. at 43).

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Proposed Remedial Plan is one example of a map that unpacks and uncracks Plaintiffs, permitting 

their votes to carry more weight and thereby remedying the injury caused by the 2012 map. See

Gill, 138 S. Ct. at 1931. Dr. Cho’s simulations also show that, for each individual Plaintiff, many 

possible districts exist in which Plaintiffs’ votes would carry more weight because the districts are 

neither packed nor cracked.

724

 Thus, Plaintiffs’ injuries are redressable.

19. Organizational Plaintiffs 

“An association has standing to bring suit on behalf of its members when its members 

would otherwise have standing to sue in their own right, the interests at stake are germane to the 

organization’s purpose, and neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit.” Common Cause v. Rucho, 318 F. Supp. 3d 

777, 827 (M.D.N.C. 2018) (citing Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 

528 U.S. 167, 181 (2000)). 

As discussed in the summaries of their testimony, Plaintiffs APRI and the League are both 

non-partisan organizations. APRI and the League aim to encourage voter engagement and 

effective and educated voting. The League has also made significant efforts to study and curb 

partisan gerrymandering, for example commissioning a study on the creation of the 2012 map.725

APRI has put forth evidence that it has Democratic-voting members who live at least in Districts 

5 (Stephanie White) and 12 (Andre Washington). The discussion above in the individual-Plaintiff 

sections shows that there is evidence, sufficient for standing purposes, that both of those districts 

dilute Democratic voters’ votes. See supra Sections II.A.2., III.A.5., III.A.12. Similarly, the 

 

724 See generally Trial Ex. P087 (Cho Rep. at 13–29); see also Trial Ex. P426 (Cho Suppl. 

Rep. at 3–4) (showing that, using data from across election cycles, the simulated maps contain 

more competitive districts and that H.B. 369 is an outlier compared to the simulated maps in terms 

of how many seats Republicans win).

725 Dkt. 239 (Miller Trial Test. at 154–55, 156–57). 

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League has put forth evidence that it has at least one Democratic-voting member who lives in 

District 14 (John Fitzpatrick). The discussion above in the individual-Plaintiff sections shows that 

there is evidence, sufficient for standing purposes, that District 14 dilutes Democratic voters’ 

votes. See, e.g., supra Sections II.A.2., III.A.14. 

Plaintiffs NEOYBD, HCYD, and OSU College Democrats are all partisan organizations 

composed of members who vote for Democratic candidates. All three organizations work to 

educate and mobilize voters to support Democratic candidates, among other things. NEOYBD’s 

Democratic members live in Districts 9, 11, 13, and 14. HCYD’s Democratic members live in 

Districts 1 and 2. OSU College Democrats’ members live in Districts 3, 12, and 15. Evidence 

was presented at trial supporting the conclusion that each of these districts was intentionally

gerrymandered for partisan gain. See, e.g., supra Sections III.A.1–3, III.A.9, III.A.11–15.

As previously discussed in the context of the individual Plaintiffs, evidence of causation 

and redressability pertaining to each of these districts was also introduced at trial. 

We therefore conclude that APRI, at minimum, has associational standing to bring 

Fourteenth and First Amendment vote-dilution claims on behalf of its members to challenge 

Districts 5 and 12 as partisan gerrymanders. We conclude that the League, at minimum, has 

associational standing to bring Fourteenth and First Amendment vote-dilution claims on behalf of 

Fitzpatrick to challenge District 14 as a partisan gerrymander. See Rucho, 318 F. Supp. 3d at 827 

(finding that the League had standing to challenge North Carolina’s District 9 because “League 

member Klenz live[d] in that district and testified to and provided evidence that her vote was 

diluted on the basis of invidious partisanship”); see also League of Women Voters of Mich. v. 

Benson, --- F. Supp. 3d ---, 2019 WL 1856625, at *47 (E.D. Mich. Apr. 25, 2019) (concluding that 

the League had standing to challenge gerrymandered districts on behalf of its members based on 

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similar evidence). Similarly, we conclude that the partisan organizational Plaintiffs have 

derivative standing to challenge the districts in which their members live. At minimum, we find 

that NEOYBD has standing to challenge Districts 9, 11, 13, and 14, that HCYD has standing to 

challenge Districts 1 and 2, and that OSU College Democrats has standing to challenge Districts 

3, 12, and 15.

***

In sum, the individual Plaintiffs have presented enough evidence to show that they each 

have a personal stake in the case to satisfy standing requirements. There is some evidence that 

individual Plaintiffs actually live in packed or cracked districts and, consequently, they have 

suffered injuries in fact that are fairly traceable to the way in which the current map was drawn. 

Furthermore, the individual Plaintiffs have evidence of alternative maps, including the Proposed 

Remedial Plan and Dr. Cho’s simulations, that show other possible districts exist in which the 

individual Plaintiffs’ votes would not be diluted. The organizational Plaintiffs, for their part, 

represent members who, like the individual Plaintiffs, live in arguably packed and cracked 

districts. They have derivative standing to represent the interests of their members in a suit that is 

germane to their own interests and may rely on the same evidence of injury, causation, and 

redressability as do the individual Plaintiffs. Whether this evidence, along with Plaintiffs’ other 

evidence, is enough to prove their claims on the merits will be addressed in Part V.

B. First Amendment Associational Claim

For Plaintiffs’ First Amendment associational claim, statewide standing principles apply. 

To establish standing on this claim, the individual Plaintiffs must point to evidence of their 

membership in and activities supporting the Democratic Party; to establish an injury in fact, 

Plaintiffs must demonstrate that the gerrymandered map weakened their Party’s ability to carry 

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out its core functions and purposes. Importantly, the “[p]artisan-asymmetry metrics such as the 

efficiency gap measure . . . the effect that a gerrymander has on the fortunes of political parties.” 

Gill, 138 S. Ct. at 1933. As such, “evidence of partisan asymmetry well fits a suit alleging 

associational injury” like this one. Id. at 1939 (Kagan, J., concurring). In Gill, the plaintiffs failed 

to establish standing under this theory because they “did not emphasize their membership in [the 

Democratic] [P]arty, or their activities supporting it.” Id. Put another way, the concern for 

standing for this claim is whether the individual Plaintiffs are the sort of people who are politically 

engaged and actively work toward electing candidates of their party. If so, they have “a personal 

stake in the outcome of the controversy.” Baker, 369 U.S. at 204.

As a threshold matter, the individual Plaintiffs fit this bill. See supra Section II.A.1. These 

Plaintiffs engage in a variety of get-out-the-vote, party-mobilization, fundraising, and other 

campaign and political activities. See supra Section II.A.1. There is also no serious dispute that 

nothing about the current map categorically prohibits Plaintiffs from engaging in these activities. 

See Benson, 2019 WL 1856625, at *65 (reasoning that although the challenged map “does not 

categorically prevent Plaintiffs from engaging in political activity, . . . ‘constitutional violations 

may arise from the deterrent, or ‘chilling,’ effect of governmental [efforts] that fall short of a direct 

prohibition against the exercise of First Amendment rights.’”) (citation omitted) (alteration in 

original). The issue, though, is whether these Plaintiffs are able “to associate for the advancement 

of [their] political beliefs . . . [and are able] to cast their votes effectively,” Williams v. Rhodes, 

393 U.S. 23, 30 (1968), or whether the redistricting plan “has the purpose and effect of burdening 

a group of voters’ representational rights.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, 

J., concurring in the judgment); see also Gill, 138 S. Ct. at 1938 (Kagan, J., concurring); Norman 

v. Reed, 502 U.S. 279, 288 (1992) (noting the constitutional right derived from the First and 

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Fourteenth Amendments to “advance[] the constitutional interest of like-minded voters to gather 

in pursuit of common political ends, thus enlarging the opportunities of all voters to express their 

own political preferences.”) (collecting cases). So long as the 2012 map weakened their Party’s 

ability to carry out its core functions and purposes, Plaintiffs have suffered an injury for their 

associational claim.

Here, Plaintiffs have presented evidence of partisan asymmetry to establish both an injury 

in fact and causation. Dr. Warshaw’s analysis of the partisan-bias metrics concludes that “Ohio’s 

congressional districts are unresponsive to changes in voters’ preferences” and that this “proRepublican advantage in congressional elections in Ohio causes Democratic voters to be 

effectively shut out of the political process in Congress.”726 Moreover, the partisan bias “has been 

durable between the 2012 and 2018 elections.”727 Actual election results also bear out an injury 

in fact. Despite Democrats winning between 39% and 47% of the statewide vote, Democratic 

candidates have won only 25% of Ohio’s congressional elections under the current map; 

meanwhile, the Republican statewide vote share has fluctuated between 51% and 59%, but 

Republican candidates have won 75% of those elections. Part of Dr. Cho’s analysis provides 

additional support, as she finds that “[i]n each of the simulation analyses [using data from the 

2008-2018 election cycles], 9 Republican seats is the common and expected outcome of a nonpartisan map creation process.”728

 Together, this evidence helps support, for standing purposes, 

the sort of long-lasting and substantial injury about which the First Amendment associational claim 

is concerned.

 

726 Trial Ex. P571 (Warshaw Rep. at 43).

727 Trial Ex. P476 (Warshaw 2018 Update at 1).

728 Trial Ex. P426 (Cho Suppl. Rep. at 3) (“In each of the simulation analyses [using data 

from the 2008-2018 election cycles], 9 Republican seats is the common and expected outcome of 

a non-partisan map creation process.”).

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Lastly, as with their vote-dilution claims, the individual Plaintiffs satisfy redressability as 

well. See supra Section III.A.18. In particular, Mr. Cooper’s comparison of election results 

between the current plan and the Proposed Remedial Plan shows better responsiveness and more 

competitive seats are possible with a different map.

“An organization suffers an injury in fact when its mission is ‘perceptibly impaired’ by the 

challenged action, which it may show through a ‘demonstrable injury to the organization’s 

activities’ and a ‘consequent drain on the organization’s resources.’” League of Women Voters of 

Mich. v. Johnson, 352 F. Supp. 3d 777, 801 (E.D. Mich. 2018) (quoting Havens Realty Corp. v. 

Coleman, 455 U.S. 363, 379 (1982)). Plaintiff organizations APRI and the League engage in voter 

education, registration, and get-out-the-vote efforts in furtherance of their beliefs in the importance 

of voters’ participation in representational democracy. The League also puts on candidate forums, 

creates voter guides, answers voters’ questions, and runs various other programs designed to 

encourage and facilitate informed and effective voting. APRI and the League presented evidence 

at trial supporting the conclusion that the 2012 map hinders their ability to advance their aims and 

“to associate for the advancement of political beliefs.” Williams, 393 U.S. at 30. They offered 

evidence suggesting that the jagged lines of the 2012 map and its propensity to split communities 

of interest cause voter confusion, which saps their resources. Their members’ testimony supported 

an inference that uncompetitive and unresponsive districts cause voter apathy in Ohio, making it 

more difficult for APRI and the League to register voters and get out the vote. Evidence was 

presented suggesting that noncompetitive districts may result in candidates declining to participate 

in candidate forums put on by the League. See Rucho, 318 F. Supp. 3d at 831. Finally, Dr. 

Warshaw and Mr. Cooper’s evidence, discussed above, applies uniformly here to support causation 

and redressability. 

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We conclude that APRI and the League have provided competent evidence to establish at 

least independent associational standing for their First Amendment associational claim based on 

the 2012 map’s negative impact on their ability effectively to associate to advance their belief in 

active and informed voter participation in the democratic process. See Benson, 2019 WL 1856625, 

at *66 (concluding, after reviewing similar evidence, and that the challenged plan “injured the 

League by engendering voter apathy that hampers the League’s voter engagement, voter education, 

and get out the vote efforts; preventing the League from making progress on voting rights issues 

through legislative reforms; and making it difficult for the League to secure Republican 

candidates’ participation in candidate forums and voter education guides.”). 

With regard to the partisan organizational Plaintiffs, “[a]s Justice Kagan recognized in Gill, 

‘what is true for party members may be doubly true for party officials and triply true for the party 

itself (or for related organizations).’” Rucho, 318 F. Supp. 3d at 830 (quoting Gill, 138 S. Ct. at 

1938 (Kagan, J., concurring)). Plaintiffs NEOYBD, HCYD, and OSU College Democrats 

presented evidence at trial showing that their organizational abilities are hindered by the 2012 map. 

They have had difficulty recruiting and retaining members due to the lack of competitive races and 

have had to dedicate limited resources to combatting voter apathy and confusion, which one could 

infer are worsened by uncompetitive and unresponsive districts. They have had difficulty 

fundraising, mobilizing voters, recruiting candidates, and winning elections. Dr. Warshaw’s 

testimony, discussed above, demonstrates that the current map is highly uncompetitive and 

unresponsive. Mr. Cooper’s testimony demonstrates that a non-gerrymandered map would result 

in more competitive elections, in which the Democratic organizations would be more able to 

mobilize and compete. We conclude that the partisan organizational Plaintiffs have standing to 

pursue their First Amendment associational claim. 

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C. Article I Claim

As we explained previously, a state necessarily exceeds its powers under Article I if it runs 

afoul of the First and Fourteenth Amendments. Plaintiffs have standing to pursue their First 

Amendment and Fourteenth Amendment claims. That is enough to establish that Plaintiffs have 

standing for their claim that the State has exceeded its powers under Article I.

IV. JUSTICIABILITY, THE POLITICAL QUESTION DOCTRINE, 

AND THE ROLE OF THE FEDERAL COURTS IN REDISTRICTING

A. Justiciability and The Political Question Doctrine 

The Supreme Court has recognized that partisan gerrymandering is incompatible with 

democratic principles. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 

2652, 2658 (2015); Vieth, 541 U.S. at 292 (plurality); id. at 316 (Kennedy, J., concurring in the 

judgment); see also id. at 331 (Stevens, J., dissenting) (“The problem, simply put, is that the will 

of the cartographers rather than the will of the people will govern.”); id. at 345–46 (Souter, J., 

dissenting) (“[T]he increasing efficiency of partisan redistricting has damaged the democratic 

process to a degree that our predecessors only began to imagine.”) (collecting sources); id. at 355 

(Breyer, J., dissenting) (“Sometimes purely political ‘gerrymandering’ will fail to advance any 

plausible democratic objective while simultaneously threatening serious democratic harm.”). As 

the Supreme Court has stated, “the core principle of republican government [is] that the voters 

should choose their representatives, not the other way around.” Ariz. State Legislature, 135 S. Ct. 

at 2677 (quoting Mitchell Berman, Managing Gerrymandering, 83 TEX. L. REV. 781 (2005)); see 

also Powell v. McCormack, 395 U.S. 486, 547 (1969) (“A fundamental principle of our 

representative democracy is, in Hamilton’s words, ‘that the people should choose whom they 

please to govern them.’”) (citation omitted). Partisan gerrymandering goes against these 

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foundational principles. But do courts have a role in adjudicating challenges to alleged partisan 

gerrymanders—that is, are such challenges justiciable?

The Supreme Court has held that partisan gerrymandering claims are justiciable. Davis v. 

Bandemer, 478 U.S. 109, 125 (1986). In Bandemer, the Supreme Court considered an allegation 

that “Indiana Republicans had gerrymandered Indiana’s legislative districts ‘to favor Republican 

incumbents and candidates and to disadvantage Democratic voters’ through what the plaintiffs 

called the ‘stacking’ (packing) and ‘splitting’ (cracking) of Democrats.” See Gill, 138 S. Ct. at 

1927. Drawing on racial gerrymandering doctrine as well as one-person, one-vote equalprotection cases, the Bandemer majority held that the partisan-gerrymandering case before it did 

not present a nonjusticiable political question. Bandemer, 478 U.S. at 122–25. The Supreme 

Court, importantly, has not overturned Bandemer’s central holding. See Gill, 138 S. Ct. at 1927–

29 (reviewing post-Bandemer cases). 

In Bandemer, however, the Supreme Court did not “settle on a standard for what constitutes 

an unconstitutional partisan gerrymander.” See Gill, 138 S. Ct. at 1927. Indeed, a majority of the 

Supreme Court has not yet settled on an appropriate standard for these claims, though various 

plaintiffs and amici have pressed for several theories at the Court in the years since Bandemer. 

See id. at 1926–29 (discussing partisan-gerrymandering precedent); see also Samuel Issacharoff 

& Pamela Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U.

PA. L. REV. 541, 541–43 (2004). While Bandemer is partisan gerrymandering’s Baker v. Carr, 

369 U.S. at 209 (holding that malapportionment claims are justiciable), such claims do not yet 

have their Reynolds v. Sims, 377 U.S. 533, 568 (1964) (articulating what is now known as the oneperson, one-vote principle for state legislative apportionment); see also Wesberry v. Sanders, 376 

U.S. 1, 7–8 (1964) (same for congressional apportionment).

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In Baker v. Carr, the Supreme Court laid out six factors for determining whether an issue 

is a nonjusticiable a political question. See Baker, 369 U.S. at 217. The Supreme Court explained 

that:

Prominent on the surface of any case held to involve a political question is found a 

textually demonstrable constitutional commitment of the issue to a coordinate 

political department; or a lack of judicially discoverable and manageable standards 

for resolving it; or the impossibility of deciding without an initial policy 

determination of a kind clearly for nonjudicial discretion; or the impossibility of a 

court’s undertaking independent resolution without expressing lack of the respect 

due coordinate branches of government; or an unusual need for unquestioning 

adherence to a political decision already made; or the potentiality of embarrassment 

from multifarious pronouncements by various departments on one question.

Id. Baker v. Carr thus saw the political question doctrine as primarily concerned with the 

separation of powers. Id. at 210. The first two factors are the most important: (1) a textual 

commitment of an issue to one of the political branches and (2) an absence of judicially 

manageable standards. See Vieth, 541 U.S. at 277–78 (plurality). If an issue qualifies as a political 

question, the issue is nonjusticiable, and, consequently, the federal courts have no role in 

adjudicating it.

Defendants make arguments on each factor. See Dkt. 252 (Defs.’ & Intervenors’ PostTrial Br. at 44–52). All the arguments go to essentially three points: (1) The states have authority 

over elections and redistricting, and courts should not second guess the states’ political judgment; 

(2) To the extent problems exist, plaintiffs should seek a remedy from Congress (or the states); 

and (3) Judicially manageable standards are lacking. As a threshold matter, we observe that 

federalism concerns and respect for state sovereignty are conspicuously absent from Baker v. 

Carr’s list of justiciability considerations and, again, the political question doctrine is centered on 

separation of powers between the judiciary and the federal political branches, Congress and the 

President. See Baker, 369 U.S. at 210. But throughout this opinion, we respond to all these points, 

and we further conclude that workable standards, which contain limiting principles, exist so that 

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courts can adjudicate these types of gerrymandering claims just as they have adjudicated other 

types of gerrymandering claims.

Turning to Baker v. Carr’s first factor—a textual commitment of an issue to a political 

branch—we find this factor does not weigh against justiciability. Though the Vieth plurality did 

not rely on this factor in discussing whether partisan-gerrymandering claims are justiciable, see

Vieth, 541 U.S. at 277–81 (plurality), the plurality still noted that “[i]t is significant that the 

Framers provided a remedy for [gerrymandering] in the Constitution.” See Vieth, 541 U.S. at 275 

(plurality). Article I, § 4 of the United States Constitution provides: “The Times, Places and 

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State 

by the Legislature thereof; but the Congress may at any time by Law make or alter such 

Regulations . . . .” One could argue, as Justice Frankfurter once did, that this language means “that 

the Constitution has conferred upon Congress exclusive authority to secure fair representation” 

and protect the right to vote against gerrymandering. See Colegrove v. Green, 328 U.S. 549, 554 

(1946) (plurality). Defendants echo this argument. See Dkt. 252 (Defs.’ & Intervenors’ Post-Trial 

Br. at 45) (“[T]o seize supervisory authority over elections is to seize congressional power, an 

invasion of authority allocated to ‘a coordinate political department.’”).

Simply put, the Supreme Court explicitly rejected that argument in Wesberry, 376 U.S. at 

6–7. “The right to vote is too important in our free society to be stripped of judicial protection by 

such an interpretation of Article I.” Id. at 7. That statement applies with equal force in the partisangerrymandering context, in which the core concern is that those in power are manipulating district 

lines in order to choose their voters and thereby render election results a foregone conclusion. 

Indeed, the Supreme Court’s “willingness to enter the political thicket of the apportionment 

process with respect to one-person, one-vote claims makes it particularly difficult to justify a 

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categorical refusal to entertain claims against this other type of gerrymandering.” See Vieth, 541 

U.S. at 310 (Kennedy, J., concurring in the judgment). The Supreme Court “made it clear in Baker

that nothing in the language of [Article I] gives support to a construction that would immunize 

state congressional apportionment laws . . . from the power of courts to protect the constitutional 

rights of individuals from legislative destruction . . . .” Wesberry, 376 U.S. at 6. In other electionlaw contexts, the Supreme Court has held that “[t]he power to regulate the time, place, and manner 

of elections does not justify, without more, the abridgment of fundamental rights, such as the right 

to vote, or . . . the freedom of political association.” Tashjian v. Republican Party of Conn., 479 

U.S. 208, 217 (1986) (citing Wesberry, 376 U.S. at 6–7); see also U.S. Term Limits, Inc. v. 

Thornton, 514 U.S. 779, 833–34 (1995). Here, the allegation is similarly that a state redistricting 

law targets a disfavored party’s and its voters’ rights to vote and to associate. In short, the 

argument that the Constitution designates Congress as the sole branch to fix gerrymandering, and 

that the states have the principal responsibility over election laws, was also present in other cases, 

and similar concerns that led the Supreme Court to reject the argument are present here. To accept 

fully Defendants’ arguments against justiciability and their interpretation of Article I would erase 

decades of constitutional law. We decline to do so.

Moreover, as explained, evidence in this case shows that congressional staffers and the 

political arm of the Republican Party in Congress had a hand in drawing the challenged map. See

supra Section I.A.3. In other words, not only is Congress unlikely to fix partisan gerrymandering, 

but evidence shows that Members of Congress, and their colleagues on congressional campaign 

committees, are part of the problem. See supra Section I.A.3.; see also SAMUEL ISSACHAROFF ET 

AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 682 (5th ed. 2016) 

(noting that “in the 2000 redistricting, several courts . . . found that national party leaders in the 

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United States House of Representatives played a central role in the redistricting process. . . . If 

Congress was originally envisioned as a detached, neutral umpire that might stand above partisan 

conflicts in the states, Congress is now a self-interested player in the partisan struggles over 

districting.”). Accordingly, both parties in Congress benefit from partisan gerrymandering and 

appear to participate in the practice of partisan gerrymandering. Cf. ISSACHAROFF ET AL., THE 

LAW OF DEMOCRACY, supra at 682 (“[T]he fates of national political parties and state parties have, 

over time, become closely bound together . . . . Indeed . . . some states were prompted to engage 

in re-redistricting in the middle of the [2000] decade, precisely because national party leaders in 

the United States House pressed for this.”); Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 43) 

(stating that the map-drawing “process was also aided significantly by John Boehner, then-Speaker 

of the U.S. House”). The courts are the logical branch to turn to in the face of such legislative selfdealing, and in this case, judicially manageable standards also exist to adjudicate the issue 

presented.729

As the four-justice plurality in Vieth saw it, the political question doctrine’s second factor 

(an absence of judicially manageable standards) was at issue for partisan gerrymandering. See

Vieth, 541 U.S. at 278 (plurality). The plurality found it problematic that in the years after 

Bandemer, lower courts did not shape a partisan-gerrymandering standard and, with one unique 

exception, did not provide relief for such claims. Id. at 279–80 & 280 n.6. Ultimately, the plurality 

stated that “[l]acking [judicially discernible and manageable standards], we must conclude that 

 

729 Of course, a legislature’s failure to act is insufficient alone to warrant the Court’s 

intervention. See Gill, 138 S. Ct. at 1929 (“‘Failure of political will does not justify 

unconstitutional remedies.’ Our power as judges to ‘say what the law is,’ rests not on the default 

of politically accountable officers, but is instead grounded in and limited by the necessity of 

resolving, according to legal principles, a plaintiff’s particular claim of legal right.”) (citations 

omitted).

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political gerrymandering claims are nonjusticiable . . . .” Id. at 281. This view did not command 

a majority of the Supreme Court at the time, and in the intervening years since Vieth, lower courts 

have shaped standards and found that plaintiffs have satisfied those standards.

As another district court recently observed, “a majority of the Supreme Court never has 

found that a claim raised a nonjusticiable political question solely due to the alleged absence of a 

judicially manageable standard for adjudicating the claim.” See Rucho, 318 F. Supp. 3d at 842 

n.19. Indeed, in Nixon v. United States, the Supreme Court stated that its reasoning:

makes clear[] [that] the concept of a textual commitment to a coordinate political 

department is not completely separate from the concept of a lack of judicially 

discoverable and manageable standards for resolving it; the lack of judicially 

manageable standards may strengthen the conclusion that there is a textually 

demonstrable commitment to a coordinate branch. 

Nixon v. United States, 506 U.S. 224, 228–29 (1993); see also id. at 238 (holding that challenges 

to procedures used in Senate impeachment proceedings are nonjusticiable); Gilligan v. Morgan, 

413 U.S. 1, 10 (1973) (“The ultimate responsibility for these decisions [about the composition, 

training, equipping, and control of a military force] is appropriately vested in branches of the 

government which are periodically subject to electoral accountability.”); Pac. States Telephone & 

Telegraph Co. v. Oregon, 223 U.S. 118, 141–43 (1912) (claims arising under the Guaranty Clause 

of Article IV, § 4 are nonjusticiable and issues arising under that Clause are committed to 

Congress). Vieth, therefore, would have been an unprecedented step if the Court had held partisangerrymandering claims nonjusticiable solely due to an alleged lack of a manageable standard. 

There are good reasons why the Supreme Court has not taken such an unprecedented step. 

As Justice Kennedy explained, “[r]elying on the distinction between a claim having or not having 

a workable standard of that sort involves . . . proof of a categorical negative. . . . This is a difficult 

proposition to establish, for proving a negative is a challenge in any context.” Vieth, 541 U.S. at 

311 (Kennedy, J., concurring in the judgment). Justice Kennedy thus concluded that just because 

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no judicially manageable standard “has emerged in this case should not be taken to prove that none 

will emerge in the future.” Id. He then gave one illustrative example of an easy case: “If a State 

passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden 

Party X’s rights to fair and effective representation, though still in accord with one-person, onevote principles,’ we would surely conclude the Constitution had been violated.” Id. at 312. Such 

a law would, of course, be simple discrimination and unconstitutional. But “the Constitution 

forbids sophisticated as well as simple-minded modes of discrimination.” Reynolds, 377 U.S. at 

563 (citations and internal quotation marks omitted). Additionally, if courts were to rely solely on 

the lack of a judicially manageable standard to conclude that an issue qualifies as a political 

question, then courts would be opining on the manageability of standards not involved in the case 

at hand. That would be imprudent because a court can dispose of only the matters in a case 

currently before it; to be sure, however, the reasoning of a court’s decision could spell trouble for 

a future potential standard if the future standard suffered from the same defects as that which was 

previously held nonjusticiable. Accordingly, even if there were a lack of a judicially manageable 

standard in this case (though we conclude that manageable standards exist), we would not conclude 

that all future partisan-gerrymandering claims are nonjusticiable.

Although the Supreme Court’s precedent leaves “few clear landmarks for addressing” 

partisan gerrymandering, we can find some rough guidance in the summary provided in Gill. See

138 S. Ct. at 1926. In Bandemer itself, the plurality would have required the plaintiffs “to ‘prove 

both intentional discrimination against an identifiable political group and an actual discriminatory 

effect on that group,’” id. at 1927 (quoting Bandemer, 478 U.S. at 127 (plurality)), but the 

Bandemer plurality also concluded that “the plaintiffs had failed to make a sufficient showing on 

[actual discriminatory effect] because their evidence of unfavorable election results for Democrats 

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was limited to a single election cycle.” Gill, 138 S. Ct. at 1927 (citing Bandemer, 478 U.S. at 135 

(plurality)). Then in Vieth, the four-justice plurality, “would have held that the plaintiffs’ claims 

were nonjusticiable because there was no ‘judicially discernible and manageable standard’ by 

which to decide them.” Id. at 1927–28 (quoting Vieth, 541 U.S. at 306 (plurality)). The plurality 

in Vieth thus necessarily rejected the proposed standard that a majority of voters should be able to 

elect a majority of a congressional delegation (proportional representation). Justice Kennedy also 

rejected that standard. See Gill, 138 S. Ct. at 1928 (citing Vieth, 541 U.S. at 308 (Kennedy, J., 

concurring in the judgment)). Justice Kennedy, however, left the door open in Vieth for a partisangerrymandering standard in future cases. Just two years after Vieth, the Supreme Court returned 

to the question of partisan gerrymandering in League of United Latin American Citizens v. Perry

(“LULAC”), 548 U.S. 399 (2006). In Gill, as in the case before us, the relevant portion of LULAC

was the discussion of the partisan symmetry standard proposed by an amicus. See Gill, 138 S. Ct.

at 1928. That particular version of the symmetry standard “‘measure[d] partisan bias’ by 

comparing how the two major political parties ‘would fare hypothetically if they each . . . received 

a given percentage of the vote.’” Id. (quoting LULAC, 548 U.S. at 419 (opinion of Kennedy, J.)). 

Although Justice Kennedy expressed concern about adopting the proposed symmetry standard 

because it was “based on unfair results that would occur in a hypothetical state of affairs,” and 

because it faced the problem of not “providing a standard for deciding how much partisan 

dominance is too much,” LULAC, 548 U.S. at 420, Justice Kennedy ultimately stated, “[w]ithout 

altogether discounting its utility in redistricting planning and litigation, I would conclude 

asymmetry alone is not a reliable measure of unconstitutional partisanship.” Id. (emphasis added). 

The Gill Court further noted that Justices Stevens, Souter, and Ginsburg expressed some support, 

or at least did not discount the usefulness of, asymmetry. See Gill, 138 S. Ct. at 1928–29 (citing 

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Justice Stevens’s partial dissent and Justice Souter’s partial dissent, joined by Justice Ginsburg). 

In sum, although partisan symmetry as a stand-alone measure has not garnered support from a 

majority of the Supreme Court, of all the proposed standards, partisan symmetry has received 

perhaps the most support.

In the absence of clear direction from the Supreme Court, three-judge federal district court 

panels730 have established justiciable standards. See Benson, 2019 WL 1856625, at *27–28;

Rucho, 318 F. Supp. 3d at 860–68, 929, appeal docketed No. 18-422, 139 S. Ct. 782 (Jan. 4, 2019); 

Whitford v. Gill, 218 F. Supp. 3d 837, 884 (W.D. Wis. 2016), vacated and remanded on other 

grounds, 138 S. Ct. 1916 (2018); Shapiro v. McManus, 203 F. Supp. 3d 579, 596–97 (D. Md. 

2016). Generally, the prevailing difficulty in partisan-gerrymandering cases seems to be 

evaluating partisan effect, or, in Justice Kennedy’s words, “how much partisan dominance is too 

much.” LULAC, 548 U.S. at 420 (opinion of Kennedy, J.); see also Vieth, 541 U.S. at 344 (Souter, 

J., dissenting). The federal courts that have recently adjudicated partisan-gerrymandering claims

have converged considerably on common ground both in establishing standards for assessing a 

redistricting plan’s constitutionality and for evaluating partisan effect. See infra Part V. For now, 

we observe that district courts have found partisan symmetry to be a useful partisan-effect 

standard, in combination with actual election results, analyses of simulated maps, and analyses 

that show redistricting plans are extreme or are historical outliers in their partisan effect. See, e.g.,

Benson, 2019 WL 1856625, at *12–24, 28; Rucho, 318 F. Supp. 3d at 884; Whitford, 218 F. Supp. 

 

730 State Supreme Courts, too, have established judicially manageable standards by which 

to evaluate compliance with their own state constitutions. See League of Women Voters v. 

Commonwealth, 178 A.3d 737 (Pa. 2018); see also id. at 816 (noting that the standards articulated 

“also comport with the minimum requirements for congressional districts guaranteed by the United 

States Constitution, as interpreted by the United States Supreme Court.”) (citing Wesberry, 376 

U.S. at 18).

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3d at 898, 905 (but not using analyses of simulated maps). As we will explain, the standards and 

analyses in these cases, and proposed in the case before us, shore up the deficiencies identified by 

the Supreme Court in prior cases. See infra Part V.

B. Evidentiary Metrics and Statistics 

Plaintiffs utilize several evidentiary metrics and Dr. Cho’s computer-simulated maps, 

among other things, to help the Court decide the merits of the partisan-gerrymandering claims. 

Defendants argue that none of those evidentiary metrics offers an answer to when a map is 

unconstitutionally gerrymandered and that no expert has offered an opinion on that subject. This 

critique falls flat, and it is important to clarify and emphasize that the judicially manageable 

standards about which we are concerned for justiciability are legal standards. We set forth those 

legal standards in Part V of this opinion. The evidentiary metrics and simulated maps, however, 

are offered by a party to show that the legal standard is met. We apply these metrics, simulated 

maps, and other evidence to the justiciable legal standards, and we find that they prove the elements 

of the underlying claims. See infra Sections V.A.2., V.B., V.C.2. This practice is nothing new. 

Courts routinely utilize statistical analyses in other contexts, including the similar context of racial 

vote-dilution cases under the VRA. See, e.g., Rural W. Tenn. African-Am. Affairs Council v. 

Sundquist, 209 F.3d 835, 844 (6th Cir. 2000) (affirming the district court and explaining that the 

district court “ably considered a complex body of statistical and anecdotal evidence to determine 

that [a state house reapportionment plan] unlawfully dilutes African–American voting strength in 

rural west Tennessee.”); United States v. City of Euclid, 580 F. Supp. 2d 584, 596 (N.D. Ohio 

2008) (“Statistical evidence of racial bloc voting may be established by three analytical models: 

homogenous precinct analysis (‘HPA’), bivariate ecological regression analysis (‘BERA’), and 

King’s ecological inference method (‘King’s EI method’).”). 

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We find Rucho’s reasoning on this point persuasive and adopt it here. In Rucho, the threejudge district court ably surveyed caselaw in which the Supreme Court, as well as district courts, 

have “relied on statistical and social science analyses as evidence that a defendant violated a 

standard set forth in the Constitution or federal law.” See 318 F. Supp. 3d at 853; see also id. at 

852–58 (providing an overview of caselaw and noting that the Supreme Court has embraced 

empirical analyses and statistical measures in apportionment, antitrust, Confrontation Clause, 

equal-protection, redistricting, and voting cases). We agree that “when a variety of different pieces 

of evidence, empirical or otherwise, all point to the same conclusion—as is the case here—courts 

have greater confidence in the correctness of the conclusion because even if one piece of evidence 

is subsequently found infirm other probative evidence remains.” See id. at 858. Although it is 

true, as Dr. Warshaw himself acknowledged at trial, that each of the four statistical metrics that he 

analyzed has pros and cons,731 it is equally true that all the metrics point strongly in one direction. 

What’s more, as will be explained, the metrics and other evidence strongly suggest that the 2012 

plan is an outlier, and that fact raises further concern about the plan’s constitutionality.

Courts should not simply accept or give the greatest amount of weight possible to socialscience measures or theories. Of course, we still have the obligation to ensure that an expert’s 

“testimony is based on sufficient facts or data,” is “the product of reliable principles and methods,” 

and that “the expert has reliably applied the principles and methods to the facts of the case.” See

FED. R. EVID. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–95 (1993). 

When judges are the factfinders, “the court must carefully weigh empirical evidence[ ] and 

discount such evidence’s probative value if it fails to address the relevant question, lacks rigor, is 

 

731 See, e.g., Dkt. 240 (Warshaw Trial Test. at 210–11) (efficiency gap); id. at 223 (meanmedian difference); id. at 229–30 (declination); id. at 238 (the two asymmetry measures).

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contradicted by more reliable and compelling evidence, or is otherwise unworthy of substantial 

weight.” Rucho, 318 F. Supp. 3d at 855.

After the benefit of hearing trial testimony from Plaintiffs’ and Defendants’ experts and 

Defendants’ cross-examination, we find that Plaintiffs’ evidence and experts are more persuasive. 

As detailed later, we find some evidence quite probative and other evidence less so, but, overall, 

the evidentiary metrics utilized by Plaintiffs provide strong support for their legal claims. In other 

words, the evidentiary metrics are strong evidence that voters were packed and cracked across the 

2012 map. Dr. Warshaw also gave illustrative examples of when the metrics would be less 

probative of a partisan gerrymander, and therefore, he would not conclude that a plan was a 

partisan gerrymander.732 The evidentiary metrics, therefore, are workable in their own right and 

would not lead to every plan in the country being struck down as unconstitutional. Courts, in turn, 

would apply the legal standards and utilize the various metrics to determine on a case-by-case 

basis whether certain maps pass constitutional muster. Courts can apply these metrics to the legal 

standards in such a way that limits exist.

To be sure, metrics based on a theory of proportional representation would not be legally 

relevant. See Vieth, 541 U.S. at 288 (plurality) (“[T]he Constitution contains no such principle [of 

proportional representation].”); id. at 338 (Stevens, J., dissenting) (“The Constitution does not, of 

course, require proportional representation . . . .”); see also LULAC, 548 U.S. at 419 (opinion of 

Kennedy, J.) (“To be sure, there is no constitutional requirement of proportional 

representation . . . .”). None of the proffered metrics in this case, however, are based on 

 

732 See Dkt. 240 (Warshaw Trial Test. at 191–92, 246–48). 

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proportional representation.733 For example, the metrics analyzed by Dr. Warshaw measure 

asymmetry, a distinct concept. On the one hand, proportional representation means that the 

number of seats in the legislature that a party receives is equal to the percentage of votes that the 

party receives in an election. For example, if Party X receives 40% of the popular vote and there 

are 100 seats in the legislature, then Party X would receive 40 seats under a proportionalrepresentation scheme. On the other hand, partisan symmetry is based on the principle that a 

particular vote share should translate into a particular number of seats, regardless of which party 

receives that vote share. For example, if Party X receives 53% of the vote and wins 60 out of 100 

seats, then when Party Y receives 53% of the vote, Party Y should also have a real chance to win

about 60 out of 100 seats. A difference between the parties’ abilities to translate the same vote

share into seats demonstrates an asymmetry.

In other areas of election law, several metrics comfortably coexist. See Nicholas 

Stephanopoulos & Eric McGhee, The Measure of a Metric: The Debate over Quantifying Partisan 

Gerrymandering, 70 STAN. L. REV. 1503, 1551–54 (2018). First, in malapportionment cases, the 

Supreme Court has cited a handful of measures (and sometimes multiple measures in the same 

case) for population deviation. See, e.g., Karcher v. Daggett, 462 U.S. 725, 728 (1983) (noting 

the total deviation between the most and least populous districts and the average deviation, i.e., 

the average difference between each district’s population and the population required for perfect 

equality); Gaffney v. Cummings, 412 U.S. 735, 737 & nn.1–2 (1973) (using the two measures in 

Karcher and also citing the ratio of the largest district population to the smallest district 

population); Mahan v. Howell, 410 U.S. 315, 319 (1973) (using the same three measures as 

 

733 One critique of the efficiency gap is that it is not equivalent to proportional 

representation. See Benjamin Plener Cover, Quantifying Partisan Gerrymandering: An 

Evaluation of the Efficiency Gap Proposal, 70 STAN. L. REV. 1131, 1213 (2018).

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Gaffney, in addition to noting the proportion of the population that could elect a majority of the 

state house); Swann v. Adams, 385 U.S. 440, 442–43 (1967) (using all these measures). Next, in 

the context of Section 2 of the VRA, courts have utilized three metrics to measure racial 

polarization in voting—HPA, BERA, and King’s EI method, mentioned above. See, e.g., City of 

Euclid, 580 F. Supp. 2d at 596; see also Thornburg v. Gingles, 478 U.S. 30, 52–53, 53 n.20 (1986)

(citing only HPA (or “extreme case analysis”) and BERA, and noting that “[t]he District Court 

found both methods standard in the literature for the analysis of racially polarized voting.”). And 

finally, the compactness of a district can be quantified in dozens of ways. See Stephanopoulos & 

McGhee, The Measure of a Metric, supra at 1553 & nn. 178–83. Compactness, which is one 

assessment of a district’s shape, can be relevant in racial vote-dilution cases as well as VRA § 2

cases. See, e.g., Miller v. Johnson, 515 U.S. 900, 913 (1995) (“Shape is relevant not because 

bizarreness is a necessary element of the constitutional wrong . . ., but because it may be persuasive 

circumstantial evidence that race for its own sake, and not other districting principles, was the 

legislature’s dominant and controlling rationale in drawing its district lines.”); Gingles, 478 U.S. 

at 50 (“[T]he minority group must be able to demonstrate that it is sufficiently large and 

geographically compact to constitute a majority in a single-member district.”). So too can several 

metrics be used in partisan-gerrymandering cases. 

The brunt of Defendants’ argument against social-science measures seems focused on the 

efficiency gap. Dkt. 253 (Defs.’ & Intervenors’ PFOF at 106–13). But Plaintiffs do not offer the 

efficiency gap as the ultimate Rosetta Stone to decipher what is or is not an unconstitutional 

partisan gerrymander. Rather, the efficiency gap is just one tool in the evidentiary toolbox. When 

it comes to malapportionment, racially polarized voting, and compactness, courts have not limited 

their toolbox, and we see no reason to limit it for partisan gerrymandering. To the contrary, that 

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all the measures strongly point in the same direction gives us greater confidence in reaching a 

conclusion in this case. See Rucho, 318 F. Supp. 3d at 858. 

C. Pragmatic and Historical Considerations

We now turn to other relevant considerations for whether the federal courts ought to 

intervene to address partisan gerrymandering. Importantly, these considerations are absent from 

the list of considerations for determining whether an issue presents a nonjusticiable political 

question. Instead, these points are pragmatic or historical in nature, and they are worthy of 

response.

1. Courts are not picking political winners and losers

One concern about allowing courts to adjudicate partisan-gerrymandering claims is that the 

courts would be dictating political winners. Dkt. 136 (Defs.’ Mot. for Summ. J. at 18). But, as 

mentioned, the core concern about partisan gerrymandering is that representatives choose their 

voters and not vice-versa—that is, when partisan gerrymandering amounts to a constitutional 

violation, the winners and losers are often already predetermined by those in power. Rather than 

dictating outcomes in these cases, courts are only fixing the process by which voters enact political 

change. See JOHN HART ELY, DEMOCRACY AND DISTRUST 102–03 (1980) (explaining that in our 

system of government “[m]alfunction occurs when . . . the ins are choking off the channels of 

political change to ensure that they will stay in and the outs will stay out,” and that judges “are 

conspicuously well situated” to correct such malfunction). If courts find a constitutional violation 

and fix it, then the voters pick the winners and losers in districts that adhere to the Constitution. 

As we will explain further, the evidence in this record shows that, in fact, the party in power 

sought to lock in a 12-4 map, and, despite receiving a fluctuating percentage of the statewide vote, 

they were successful. Experience has shown that legislators are unlikely to act as neutral umpires 

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in this context. Judges, however, play precisely that role. Rather than decide who wins an election 

in these cases, the courts’ role is to ensure an even playing field, just as courts have done with 

other forms of gerrymandering. See Vieth, 541 U.S. at 310 (Kennedy, J., concurring in the 

judgment).

Furthermore, this non-intervention argument has its roots in reasoning from Colegrove. 

See 328 U.S. at 553 (plurality) (“Nothing is clearer than that this controversy concerns matters that 

bring courts into immediate and active relations with party contests.”). As Justice Frankfurter put 

it, “Courts ought not enter this political thicket.” Id. at 556.

Given courts’ now well-established involvement in redistricting, as well as other voting 

and elections matters, history has shown that Colegrove’s concerns have not carried the day. In 

Baker v. Carr, the Supreme Court relied not on political judgment, but on the “well developed and 

familiar” “standards under the Equal Protection Clause . . . to determine . . . that a discrimination 

reflects no policy, but simply arbitrary and capricious action.” See Baker, 369 U.S. at 226. In fact, 

the Supreme Court arguably first entered the so-called “political thicket” a few years earlier, in 

Gomillion v. Lightfoot, 364 U.S. 339 (1960). Gomillion, not Baker v. Carr, was the first time that 

the Supreme Court found a constitutional violation because of how a state drew district lines. In 

Gomillion, the district at issue was changed from a square shape “into a strangely irregular twentyeight-sided figure. . . . The essential inevitable effect of this redefinition of [the City of] Tuskegee’s 

boundaries is to remove from the city all save only four or five of its 400 Negro voters while not 

removing a single white voter or resident.” Id. at 341. The Court held that the plaintiffs stated a 

claim that the redrawing of the boundaries around Tuskegee violated the Fifteenth Amendment. 

Id. at 345–47. Justice Whittaker took a different approach; he noted the fact that those removed 

from Tuskegee were not actually deprived of the right to vote under the Fifteenth Amendment; 

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indeed, they could still cast a vote, just not in Tuskegee. See id. at 349 (Whittaker, J., concurring). 

Instead, Justice Whittaker concluded that the State violated the Equal Protection Clause of the 

Fourteenth Amendment by fencing out black voters from one political subdivision and placing 

them into another. Id. (Whittaker, J., concurring). Years later, the Supreme Court conclusively 

adopted this view in its racial-gerrymandering jurisprudence. See Shaw v. Reno, 509 U.S. 630, 

644–45 (1993) (“This Court’s subsequent reliance on Gomillion in other Fourteenth Amendment 

cases suggests the correctness of Justice Whittaker’s view.”).

The upshot is that, although the federal courts’ role in redistricting may be an “unwelcome 

obligation,” Connor v. Finch, 431 U.S. 407, 415 (1977), it is an obligation nonetheless—and for 

good reason. As the Supreme Court has recognized, the right to vote “is preservative of other basic 

civil and political rights,” and therefore, “any alleged infringement of the right of citizens to vote 

must be carefully and meticulously scrutinized.” Reynolds, 377 U.S. at 562. Critically, “the right 

of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as 

effectively as by wholly prohibiting the free exercise of the franchise.” Id. at 555. Contrary to the

Colegrove plurality’s concerns, courts have not been involving themselves in politics or picking 

winners and losers; rather, courts have protected the right to vote from infringement by political 

actors who, history has shown, attempt to manipulate elections laws to their advantage and to 

disadvantage a disfavored group. Sometimes, courts must level the playing field. 

2. Partisan gerrymandering is not a self-limiting enterprise

Experience has proven that the view that “political gerrymandering is a self-limiting 

enterprise” is incorrect. See Bandemer, 478 U.S. at 152 (O’Connor, J., concurring in the 

judgment). The reasoning under this position went as follows:

In order to gerrymander, the legislative majority must weaken some of its safe seats, 

thus exposing its own incumbents to greater risks of defeat—risks they may refuse 

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to accept past a certain point. Similarly, an overambitious gerrymander can lead to 

disaster for the legislative majority: because it has created more seats in which it 

hopes to win relatively narrow victories, the same swing in overall voting strength 

will tend to cost the legislative majority more and more seats as the gerrymander 

becomes more ambitious.

Id. (citations omitted). But this view did not contemplate two factors: advances in (1) technology 

and (2) methods for collecting data on voters, whose party affiliation is stable and whose behavior 

is increasingly predictable.

First, “technology makes today’s gerrymandering altogether different from the crude 

linedrawing of the past. New redistricting software enables pinpoint precision in designing 

districts.” Gill, 138 S. Ct. at 1941 (Kagan, J., concurring). Consequently, “[g]errymanders 

have . . . become ever more extreme and durable, insulating officeholders against all but the most 

titanic shifts in the political tides.” Id. That is, increasingly sophisticated technology and mapdrawing methods have allowed the parties to maximize the number of seats, while minimizing the 

risks mentioned above. Evidence in the record shows that this is what happened during the Ohio 

2010 redistricting cycle. See Trial Ex. P385 (Congressional Redistricting Talking Points at 

LWVOH_0052438) (“Given [Ohio’s political geography], it is a tall order to draw 13 ‘safe’ seats. 

Speaker[] Boehner’s team worked on several concepts, but this map is the one they felt put the 

most number of seats in the safety zone given the political geography of the state, our media 

markets, and how to best allocate caucus resources.”). And the actual election results—with 

Republicans winning the same twelve seats and Democrats winning the same four seats in each 

election—confirm that the map drawers were successful. “The technology will only get better, so 

the 2020 cycle will only get worse.” Gill, 138 S. Ct. at 1941 (Kagan, J., concurring).

Second, as technology has advanced, so too have methods for collecting data on voters. 

See David W. Nickerson & Todd Rogers, Political Campaigns and Big Data, 28 J. ECON. PERSP.

51 (2014) (“The techniques used as recently as a decade or two ago by political campaigns to 

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predict the tendencies of citizens appear extremely rudimentary by current standards.”). The 

improved efficiency of data collection and predictive methods “has led the political parties to 

engage in an arms race to leverage ever-growing volumes of data to create votes.” Id. at 51. For 

example, political campaigns utilize state voter-registration databases that are supplemented with 

a variety of consumer data from commercial data brokers, and the need to store, manage, and 

analyze all this data has created “a new breed of political consulting firms . . . .” Ira S. Rubenstein, 

Voter Privacy in the Age of Big Data, 2014 WIS. L. REV. 861, 867–77 (2014). And “[i]n the 2012 

election cycle, an emerging trend for these firms was the formation of new partnerships with online 

advertising firms that specialized in tracking people on the web.” Id. at 877. Moreover, although 

a voter’s partisanship is not immutable per se, research has shown that, in fact, political affiliation 

is stable and predictable. See, e.g., Corwin D. Smidt, Polarization and the Decline of the American 

Floating Voter, 61 AM. J. POL. SCI. 365 (2017) (“Greater clarity of party differences . . . makes 

Americans less open to a change in their behavior and ultimately more reliable in which party they 

support across time.”); DONALD GREEN ET AL., PARTISAN HEARTS AND MINDS 3, 11 (2002) 

(finding that, often, “sharp partisan differences eclipse corresponding sex, class, or religion 

effects” and that “partisanship tends to be stable among adults”). Voters, of course, think for 

themselves—the point is simply that, once voters adopt a particular political affiliation, their

choice is fairly solidified and highly predictive of voting behavior. Accordingly, modern political 

parties and their map drawers utilize increasingly vast amounts of increasingly precise voter data.

These developments have allowed the political parties to achieve the maximum number of 

safe seats through a gerrymander, while simultaneously minimizing the risks of creating an 

“overambitious gerrymander.” See Bandemer, 478 U.S. at 152 (O’Connor, J., concurring in the 

judgment). The result is that, even more so than in the 2000 redistricting cycle, “the increasing 

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efficiency of partisan redistricting has damaged the democratic process to a degree that our 

predecessors only began to imagine.” See Vieth, 541 U.S. at 345 (Souter, J., dissenting). The 

courts ought not leave disfavored voters at the mercy of advancing technology when a party in 

power exploits that technology to draw district lines with “the purpose and effect of imposing 

burdens on a disfavored party and its voters,” see id. at 315 (Kennedy, J., concurring in the 

judgment), and “to dictate electoral outcomes,” see Thornton, 514 U.S. at 833–34.

3. Gerrymandering’s long history734

It is true that “[p]olitical gerrymanders are not new to the American scene,” Vieth, 541 U.S. 

at 274 (plurality), but a deeper dive into its long history demonstrates that it has not simply been 

accepted throughout our political past. Furthermore, “our inquiry is sharpened rather than blunted 

by the fact that” partisan gerrymandering has been frequent and become increasingly efficient. See

I.N.S. v. Chadha, 462 U.S. 919, 944 (1983).

At the outset, we note that gerrymandering’s history during the Founding is somewhat 

distinct from the specific context of partisan gerrymandering, which, of course, requires parties. 

That is because “[t]he idea of political parties . . . was famously anathema to the Framers, as it had 

long been in Western political thought.” Daryl J. Levinson & Richard H. Pildes, Separation of 

Parties, Not Powers, 119 HARV. L. REV. 2312, 2320 (2006). Yet even though “the Framers had 

attempted to design a ‘Constitution Against Parties,’” they almost immediately organized into two 

coalitions. Id. (citation omitted). “Political affiliations initially were much more informal and 

localized, and did not evolve into the more organized form we commonly associate with parties 

until the Jacksonian Era in the 1830s.” James Thomas Tucker, Redefining American Democracy: 

 

734 For additional background information, see Brief for Historians as Amicus Curiae 

Supporting Appellees, Gill v. Whitford, 138 S. Ct. 1916 (2018) (No. 16-1161). We utilize some 

of the historical material referenced therein.

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Do Alternative Voting Systems Capture the True Meaning of “Representation”?, 7 MICH.J. RACE 

& L. 357, 427 (2002). But even though political parties are not mentioned in the Constitution, the 

Supreme Court has stepped in to protect the parties and their supporters against state laws that 

infringe on their constitutional rights. See, e.g., Calif. Democratic Party v. Jones, 530 U.S. 567 

(2000) (striking down California’s blanket primary law because it violated the parties’ First 

Amendment right of association); Tashjian, 479 U.S. 208 (striking down Connecticut’s closed 

primary law for the same reason). In any event, once parties began to take shape, they were both 

victims of gerrymandering (i.e., the disfavored party’s voters in the electorate) and participants in 

gerrymandering (i.e., the party in government).

Although gerrymandering may have a long history in the United States, those close to the 

Founding strongly denounced the practice. After an 1812 Democratic-Republican gerrymander in 

Massachusetts, for example, the citizens in one county petitioned the legislature “to ‘alter’ the 

[redistricting] law which they characterized as ‘unconstitutional, unequal, and unjust.’” ELMER C.

GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER 71 (1907) (citation omitted). The 

Federalists viewed the gerrymander as “a blow at the constitution and a travesty upon the Bill of 

Rights when it allowed the minority to govern.” Id. As for the district that spawned the 

“portmanteau” of “gerrymander,”735 the newspaper that published the now famous political 

cartoon of the “Gerry-Mander” stated that “This Law inflicted a grievous wound on the 

Constitution . . . .” The Gerry-Mander, or Essex South District Formed into a Monster!, SALEM 

GAZETTE, Apr. 2, 1813. On the other side of the aisle, the Federalists also engaged in 

 

735 See Ariz. State Legislature, 135 S. Ct. at 2658 n.1 (“The term ‘gerrymander’ is a 

portmanteau of the last name of Elbridge Gerry, the eighth Governor of Massachusetts, and the 

shape of the electoral map he famously contorted for partisan gain, which included one district 

shaped like a salamander.”) (citing GRIFFITH, supra at 16–19).

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gerrymandering. In New Jersey, Republicans saw an 1812 redistricting law as “a ‘deadly poisoned 

arrow, levelled with certain aim at the inestimable right of suffrage.’” ROSEMARIE ZAGARRI, THE 

POLITICS OF SIZE: REPRESENTATION IN THE UNITED STATES, 1776–1850, at 117 (1987) (citation 

omitted). Thus, despite both sides condemning the practice as unconstitutional, the parties 

continued to engage in a retaliatory tit-for-tat.

Criticism of gerrymandering persisted into the late-1800s. James Garfield, then a member 

of the U.S. House of Representatives, admitted that he benefitted from gerrymandering in Ohio. 

Then-Representative Garfield stated:

[N]o man, whatever his politics, can justly defend a system that may in 

theory, and frequently does in practice, produce results such as these. . . . There are 

about ten thousand Democratic voters in my district, and they have been voting 

there . . . without any more hope of having a Representative on this floor than of 

having one in the Commons of Great Britain. . . .

I think they ought to have more hope. The Democratic voters in the 

nineteenth district of Ohio ought not by any system to be absolutely and 

permanently disenfranchised.

41 CONG. GLOBE, 41st Cong., 2d Sess., 4737 (June 23, 1870) (statement of Rep. James A. 

Garfield). President Benjamin Harrison similarly criticized gerrymandering. In his Third Annual 

Message, President Harrison recognized that “the primary intent and effect of this form of political 

robbery have relation to the selection of members of the House of Representatives.” President

Benjamin Harrison, Third Annual Message (Dec. 9 1891).736 He explained:

If I were called upon to declare wherein our chief national danger lies, I should say 

without hesitation in the overthrow of majority control by the suppression or 

perversion of the popular suffrage. That there is a real danger here all must agree; 

but the energies of those who see it have been chiefly expended in trying to fix 

responsibility upon the opposite party rather than in efforts to make such practices 

impossible by either party.

 

736 Available at: https://millercenter.org/the-presidency/presidential-speeches/december-9-

1891-third-annual-message-0. 

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Id. Gerrymandering thus raised concerns about the disfavored party’s (often the minority party’s) 

representational rights and the right to vote.

Significantly, in the late-nineteenth century, State Supreme Courts did not close their 

courthouse doors to challenges to gerrymandered maps. In Wisconsin, the State Supreme Court 

declared that the challenged “apportionment act violates and destroys one of the highest and most 

sacred rights and privileges of the people of this state, guarantied to them by the ordinance of 1787 

and the constitution, and that is ‘equal representation in the legislature.’” See State ex rel. Att’y 

Gen. v. Cunningham, 51 N.W. 724, 729 (Wis. 1892). The court further explained that:

If the remedy for these great public wrongs cannot be found in this court, it exists 

nowhere. It would be idle and useless to recommit such an apportionment to the 

voluntary action of the body that made it. But it is sufficient that these questions 

are judicial and not legislative. The legislature that passed the act is not assailed by 

this proceeding, nor is the constitutional province of that equal and co–ordinate 

department of the government invaded. The law itself is the only object of judicial 

inquiry, and its constitutionality is the only question to be decided.

Id. at 730. The same year, the Indiana Supreme Court also struck down its State’s legislative 

redistricting law. See Parker v. State ex rel. Powell, 32 N.E. 836, 843 (Ind. 1892). These cases 

further bolster the ahistorical nature of the claim that gerrymandering has been an accepted practice 

in American history. 

Early gerrymanders often shared a notable attribute—the party in power drew maps in its 

favor with malapportioned districts. See, e.g., GRIFFITH, supra at 8 (“A gerrymander is intended 

to disfranchise the majority or to secure [the majority] an influence disproportionate to its size.”); 

see also id. at 72–73; ZAGARRI, supra at 115–16 (“No longer able to count on a statewide majority, 

[Federalists] supported a vastly inequitable districting plan designed to elect as many Federalists 

as possible. The first district, for example, was to contain approximately 30 percent more people 

than the third district and over 20 percent more than the second and fourth districts.”). Of course, 

voters could not even challenge such districting schemes in federal court until the Supreme Court 

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decided Gomillion and Baker v. Carr. And after the one-person, one-vote cases, legislatures’ focus 

on gerrymandering shifted from malapportionment to other contexts, such as gerrymandering 

based solely on political affiliation. Accordingly, given that gerrymandering’s constitutionality 

has been questioned essentially since its inception and that the federal courts have played a role in 

overseeing redistricting since Gomillion and Baker v. Carr, we do not give great weight to the fact 

that “[p]olitical gerrymanders are not new to the American scene.” See Vieth, 541 U.S. at 274 

(plurality).

Gerrymandering’s history, however, provides greater clarity to the current problem. 

Historical examples of gerrymanders often involved “crude linedrawing.” See Gill, 138 S. Ct. at 

1941 (Kagan, J., concurring). Today, the practice is far more efficient and precise, which has 

resulted in gerrymanders that are more extreme and durable. See supra Section IV.C.2. Indeed, 

evidence in this case shows just that. See infra Sections V.A.2., V.C.2. If historically partisan 

gerrymandering was a self-limiting enterprise, that is increasingly not the case today. Moreover, 

because gerrymandering has persisted over time, comparative analyses can be done that show the 

gerrymanders of today are generally historical outliers and can withstand fluctuating statewide 

votes. Again, the evidence here shows that this applies to Ohio. See supra Section II.C.1.; infra

Sections V.A.2.b., V.C.2.a. In sum, the long history of gerrymandering does not show that the 

practice has been “accepted,” and, in fact, history allows courts to compare today’s gerrymanders 

to past ones and thus better to understand the scope and gravity of the problem.

4. Alternative state remedies 

At one time, the Supreme Court “long resisted any role in overseeing the process by which 

States draw legislative districts. ‘The remedy for unfairness in districting,’ the Court once held, 

‘is to secure State legislatures that will apportion properly, or to invoke the ample powers of 

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Congress.’” Evenwel v. Abbott, 136 S. Ct. 1120, 1123 (2016) (quoting Colegrove, 328 U.S. at 556

(plurality)) (emphasis added). Defendants seek to revive this argument that remedies in the states 

foreclose judicial intervention. See Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 41–42, 45). 

After Baker v. Carr, however, the Supreme Court essentially rejected this reasoning and 

“confronted [the] ingrained structural inequality [of malapportionment] . . . .” See Evenwel, 136 

S. Ct. at 1123. 

Today, we recognize that some states have adopted various approaches to attempt to curtail 

partisan gerrymandering. See, e.g., Ariz. State Legislature, 135 S. Ct. at 2662 & nn. 6–9 (surveying 

state constitutional provisions and state statutes);

737 MICH. CONST. art. 4, § 6; COLO. CONST. art. 

5, § 44; OHIO CONST. art. 19, §§ 1–2; UTAH CODE ANN. § 20A-19-103. State Supreme Courts 

have stepped in, too. See, e.g., League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 

2018); cf. People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (holding that reredistricting mid-decade was unconstitutional under the State Constitution, thus adopting a 

principle similar to that which the Supreme Court rejected in LULAC). But rather than militating 

against judicial intervention, the movement in the states on the issue of partisan gerrymandering, 

in addition to decisions by other three-judge panels, can help inform our consideration of the 

underlying principles involved in this case. Cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2596–97 

& Apps. A–B (2015) (collecting state and federal judicial decisions and state statutes that “help[ed] 

to explain and formulate the underlying principles” that the Supreme Court considered in that

case). Simply put, the fact that some specific states are addressing this issue does not preclude the

 

737 We observe that Arizona State Legislature cited Ohio as an example. See OHIO REV.

CODE § 103.51 (creating a legislative task force on redistricting). But this statute did not remove 

the political parties from the redistricting process (nor did it foster a truly bipartisan map-drawing 

process). The facts of this case clearly show that the political parties and the legislators still draw 

the maps.

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federal courts from performing their “role in overseeing the process by which States draw 

legislative districts” or from performing their role in vindicating federal rights. See Evenwel, 136 

S. Ct. at 1123. Further, to state the obvious, if the allegation is that the State has perpetrated a 

constitutional violation, then it would be absurd to decline to adjudicate the claims on the basis 

that plaintiffs must seek a remedy with the entity that committed the alleged violation in the first 

place. The recently passed state measures that allow for independent or truly bipartisan 

redistricting, however, might potentially limit the necessity of federal court intervention in the next 

redistricting cycle.

***

Finally, many of the same arguments that were lodged against judicial intervention in other 

forms of gerrymandering over fifty years ago are the same as those presented to us today:

We are told that the matter of apportioning representation in a state 

legislature is a complex and many-faceted one. We are advised that States can 

rationally consider factors other than population in apportioning legislative 

representation. We are admonished not to restrict the power of the States to impose 

differing views as to political philosophy on their citizens. We are cautioned about 

the dangers of entering into political thickets and mathematical quagmires.

Reynolds, 377 U.S. at 566. At bottom, we borrow our answer from the Supreme Court. “When a 

State exercises power wholly within the domain of state interest, it is insulated from federal judicial 

review. But such insulation is not carried over when state power is used as an instrument for 

circumventing a federally protected right.” Id. (quoting Gomilion, 364 U.S at 347).

As stated previously, in Vieth, four justices nonetheless thought that the Supreme Court’s 

and the lower courts’ inability to shape a substantive standard counseled against the justiciability 

of partisan-gerrymandering claims. Vieth, 541 U.S. at 278–79 (plurality). In the years since Vieth, 

federal district courts have shaped such standards. We now turn to those governing legal 

principles. 

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V. LEGAL STANDARDS AND APPLICATION

As a threshold matter, we conclude that the legal and evidentiary standards below shore up 

various deficiencies found by the Supreme Court in prior partisan-gerrymandering cases. First, 

our analysis is based on results across several election cycles, which shows that the current map’s 

partisan effects are durable and largely impervious to fluctuations in voter preferences. See Gill, 

138 S. Ct. at 1927 (citing Bandemer, 478 U.S. at 135 (plurality)). Second, this analysis is not 

based solely on hypothetical election results. See Gill, 138 S. Ct. at 1928 (citing LULAC, 548 U.S. 

at 419 (opinion of Kennedy, J.)). Apart from the measures of asymmetry in the vote-seat curve, 

every other metric utilized by Dr. Warshaw is grounded in actual election results, and these metrics 

illuminate the extent of partisan bias that occurs in the current (not hypothetical) state of affairs. 

Third, we do not view the analysis adopted here and by other three-judge panels as leading 

inexorably to striking down every map in the country. Although we do not explicitly adopt Dr. 

Warshaw’s requirements that must be present to classify a map a partisan gerrymander, we find 

them instructive. Under that rubric, a map is a partisan gerrymander only if there is one-party 

control of redistricting, the party in control party is favored by the map, the partisan-bias metrics 

all point in the same direction and point toward an advantage for the party that controlled the 

redistricting, and the redistricting plan is an historical outlier in its partisan effects. Courts 

determining how the evidence in any given case applies to the test that we elaborate and employ 

today may also consider these factors, which we find important in our ultimate determination. 

Acknowledging that the partisan-bias metrics offer a range of results, then, is not to say that use 

of those metrics will necessarily result in courts striking down every challenged map. 

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A. Equal Protection Vote-Dilution Claim

1. Legal standard

A state’s partisan gerrymander violates the Equal Protection Clause of the Fourteenth 

Amendment when it “den[ies] to any person within [the State’s] jurisdiction the equal protection 

of the laws.” U.S. CONST. amend. XIV. Partisan gerrymanders violate equal protection by 

electorally disadvantaging the supporters of the party that lacked control of the districting process 

because of their support of that party. See Rucho, 318 F. Supp. 3d at 860. 

We adopt the three-part test to prove a violation of the Fourteenth Amendment’s Equal 

Protection Clause in a partisan-gerrymandering claim. Plaintiffs must prove (1) a discriminatory 

partisan intent in the drawing of each challenged district and (2) a discriminatory partisan effect 

on those allegedly gerrymandered districts’ voters. Bandemer, 478 U.S. at 127 (plurality op.); id.

at 161 (Powell, J., concurring and dissenting). Then, (3) the State has an opportunity to justify 

each district on other, legitimate legislative grounds. See Rucho, 318 F. Supp. 3d at 861 (citing 

Bandemer, 478 U.S. at 141–42) (plurality op.)); Whitford, 218 F. Supp. 3d at 910–27.

a. Intent

To prove the first prong, Plaintiffs must demonstrate that those in charge of the redistricting 

“acted with an intent to ‘subordinate adherents of one political party and entrench a rival party in 

power.” Rucho, 318 F. Supp. 3d at 862 (quoting Ariz. State Legislature, 135 S. Ct. at 2658). It is 

not enough for Plaintiffs to show merely that the map drawers “rel[ied] on political data or [took] 

into account political or partisan considerations,” id., because the Supreme Court has 

acknowledged that political considerations may sometimes have a place in districting, Karcher, 

462 U.S. at 739 (“We have never denied that apportionment is a political process, or that state 

legislatures could pursue legitimate secondary objectives as long as those objectives were 

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consistent with a good-faith effort to achieve population equality at the same time.”). For example, 

map drawers may design maps in a nondiscriminatory manner to avoid pairing incumbents, 

Karcher, 462 U.S. at 740, to “achieve a rough approximation of the statewide political strengths 

of the Democratic and Republican parties,” Gaffney, 412 U.S. at 752, or to keep intact political 

subdivisions, Abrams v. Johnson, 521 U.S. 74, 100 (1997). But these approved uses of political 

or partisan data differ enormously from employing historical partisan data to expertly vivisect a 

state’s voter population to extract the most partisan advantage possible. See Gaffney, 412 U.S. at 

754 (noting potential constitutional infirmities “if racial or political groups have been fenced out 

of the political process and their voting strength invidiously minimized”). 

Plaintiffs argue that they must demonstrate only that partisan intent was a motivating factor 

for the redistricting scheme, not that it predominated over all other aims. See Dkt. 251 (Pls.’ PostTrial Br. at 31 n.8). Defendants do not engage in the debate on the proper level of intent. They 

disavow any accusation of partisan intent and claim that their main motivations in drawing the 

2012 map were the protection of incumbents and a desire “to preserve and advance minority 

electoral prospects.” See Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 4–27). 

The Supreme Court has given conflicting indications of which level of intent plaintiffs 

must show in such a claim. Some cases suggest that partisan intent as a mere motivating factor is 

enough. For example, in Bandemer, the Court required political-gerrymandering plaintiffs to show 

“intentional discrimination against an identifiable political group,” and did not specify that 

intentional discrimination must predominate over other aims. Bandemer, 478 U.S. at 127 (plurality 

op.). In Vieth, the Supreme Court criticized the proposed predominant-purpose standard in the 

political-gerrymandering context. 541 U.S. at 284–86 (plurality op.); id. at 308 (Kennedy, J., 

concurring). Village of Arlington Heights v. Metropolitan Housing Development Corp. and its 

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progeny require only that the discriminatory purpose be “a motivating factor in the decision.” 429 

U.S. 252, 265–66 (1977). 

Other Supreme Court cases suggest that partisan intent must predominate over other goals 

in the redistricting. For example, Shaw racial-gerrymandering claims alleging violations of the 

Fourteenth Amendment require proof that “race was the predominant factor motivating the 

legislature’s decision to place a significant number of voters within or without a particular district.” 

Miller, 515 U.S. at 916 (emphasis added). Yet, “the Supreme Court expressly has characterized 

Shaw-type racial-gerrymandering claims as ‘“analytically distinct” from a vote dilution claim’” of 

the type that Plaintiffs here bring. Rucho, 318 F. Supp. 3d at 863 (quoting Miller, 515 U.S. at 911). 

Shaw racial-gerrymandering claims do not require plaintiffs to prove that the disparate electoral 

treatment was invidious, only that it existed. See Miller, 515 U.S. at 904. In other cases, in which 

the plaintiff claims that a state enacted a voting scheme to “invidiously discriminate on the basis 

of race,” the Supreme Court has not required a showing that the invidious discrimination was the 

predominant purpose of the scheme. Rucho, 318 F. Supp. 3d at 846 (citing Miller, 515 U.S. at 

911; Mobile v. Bolden, 446 U.S. 55, 66 (1980) (plurality op.)). In partisan-gerrymandering claims, 

the disparate treatment must be invidious. Ariz. State Legislature, 135 S. Ct. at 2658. “That a 

partisan gerrymandering plaintiff must meet the heightened burden of showing invidiousness 

weighs heavily against extending the predominance requirement for Shaw-type racial 

gerrymandering claims to partisan gerrymandering claims.” Rucho, 318 F. Supp. 3d at 864. 

We observe that district courts have not uniformly adopted either the “motivating factor” 

or “predominant purpose” standard for intent in partisan-gerrymandering cases. Compare Benson, 

2019 WL 1856625, at *27 & n.33 (predominant-purpose test), and Rucho, 318 F. Supp. 3d at 860–

68 (same), with Whitford, 218 F. Supp. 3d at 887 (motivating-factor test). In Rucho, the district 

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court reasoned that the Supreme Court relied heavily on Shaw racial-gerrymandering claims in its 

most recent partisan-gerrymandering case, Gill, and therefore adopted Shaw’s predominance 

requirement. 318 F. Supp. 3d at 864. In Benson, the district court similarly chose the predominantpurpose standard due to Gill’s reliance on racial-gerrymandering cases that employ the standard. 

Benson, 2019 WL 1856625, at *27 & n.33. The district court in Whitford, however, distinguished 

the Shaw racial-gerrymandering cases. 218 F. Supp. 3d at 887 n.171. It relied on Arlington 

Heights in requiring only that plaintiffs demonstrate that partisan intent was a motivating factor in 

the line drawing, not the “‘sole[]’ intent or even ‘the “dominant” or “primary” one.’” Id. at 887–

88 (quoting Arlington Heights, 429 U.S. at 265). The district court in Gill reasoned that “it rarely 

can ‘be said that a legislature or administrative body operating under a broad mandate made a 

decision motivated by a single concern,’” and acknowledged that a plethora of factors animate 

decisions in the major undertaking of redistricting. Id. at 888 (quoting Arlington Heights, 429 U.S. 

at 265). 

In the absence of clear guidance from the Supreme Court and given the connections the 

Court has recently drawn in Gill between partisan- and racial-gerrymandering cases, we follow 

Benson and Rucho in electing the predominant-purpose standard. We note, however, that if 

Plaintiffs meet the predominant-purpose standard, they necessarily satisfy the motivating-factor 

standard as well. 

Moreover, although courts have acknowledged that some partisan considerations are 

possible in the redistricting process, courts have recognized that partisan considerations are not 

included in the traditional redistricting principles. For example, excessive partisan considerations 

cannot serve as a justification for population deviations for state legislative redistricting plans, 

even when the population deviations are within the 10% safe harbor. See Larios v. Cox, 300 F. 

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Supp. 2d 1320, 1347–53 (N.D. Ga.), aff’d mem., 542 U.S. 947 (2004) (concluding that a state 

legislative plan violated one-person, one-vote, relying on the fact that the plan protected only 

Democratic incumbents and pitted many Republican incumbents against each other and that “the 

defendant ha[d] not attempted to justify the population deviations because of compactness, 

contiguity, respecting the boundaries of political subdivisions, or preserving the cores of prior 

districts.”); Hulme v. Madison County, 188 F. Supp. 2d 1041, 1047–52 (S.D. Ill. 2001) (concluding 

that a plan violated one-person, one-vote, similarly relying on evidence of excessive partisanship 

as the reason for a deviation of 9.3% and on the State’s failure to offer another justification). Larios

and Hulme thus represent examples of courts developing “a ‘second-order’ judicial check on 

partisan gerrymandering through the one person, one vote doctrine.” Michael Kang, 

Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 MICH. L.

REV. 351, 384 (2017). These cases, and others post-Vieth, demonstrate that when partisanship 

predominates, partisanship is not a legitimate districting criterion. Id. at 384–90; see also Harris 

v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307 (2016) (“Appellants’ basic claim is 

that deviations in their apportionment plan from absolute equality of population reflect the

Commission’s political efforts to help the Democratic Party. We believe that appellants failed to 

prove this claim because, as the district court concluded, the deviations predominantly reflected 

Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure 

political advantage for one party. Appellants failed to show to the contrary.”); Raleigh Wake 

Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 345 (4th Cir. 2016) (“Plaintiffs have 

proven that it is more probable than not that the population deviations at issue here reflect the 

predominance of a[n] illegitimate reapportionment factor—namely an intentional effort to create 

a significant . . . partisan advantage.”) (internal quotations and citations omitted).

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Plaintiffs may prove discriminatory partisan intent using a combination of direct and 

indirect evidence because “invidious discriminatory purpose may often be inferred from the 

totality of the relevant facts.” Rucho, 318 F. Supp. 3d at 862 (quoting Washington, 426 U.S. at 

241); see also Arlington Heights, 429 U.S. at 266. We scrutinize the map-drawing process to 

understand what goals motivated the map’s architects. Direct evidence of intent may include 

correspondence between those responsible for the map drawing, floor speeches discussing the 

redistricting legislation and other contemporaneous statements, and testimony explaining “[t]he 

historical background of the decision,” including the “specific sequence of events leading up to

the challenged decisions.” Arlington Heights, 429 U.S. at 266. Indirect evidence “that improper 

purposes are playing a role” in map-drawing decisions may include “[d]epartures from the normal 

procedural sequence.” Id. 

Indirect evidence also includes statistical evidence that demonstrates “a clear pattern” of 

partisan bias that would be unlikely to occur without partisan intent or evidence that the supporters 

of one political party were consistently treated differently than the supporters of another. See id. 

at 266. Suspect and irregular splitting of coherent communities of the disfavored party (cracking) 

and grouping of members of the disfavored group (packing) also support an inference of partisan 

intent. See North Carolina v. Covington, 138 S. Ct. 2548, 2553 (2018) (“[A] plaintiff can rely 

upon either ‘circumstantial evidence of a district’s shape and demographics or more direct 

evidence going to legislative purpose’ in proving a racial gerrymandering claim.” (quoting Miller, 

515 U.S. at 913)). “That is particularly true when demographic evidence reveals that a district’s 

bizarre lines coincide with the historical voting patterns of the precincts included in, or excluded 

from, the district.” Rucho, 318 F. Supp. 3d at 900. Such irregularities can be also quantified by 

low compactness scores and unnecessarily high numbers of county and municipality splits. Even 

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though “compactness or attractiveness has never been held to constitute an independent federal 

constitutional requirement for state legislative districts,” Gaffney, 412 U.S. at 752 n.18, a lack of 

compactness or highly irregular district shapes support an inference that partisan intent motivated 

the line drawing, Rucho, 318 F. Supp. 3d at 900.

b. Effect

To prove the second prong, discriminatory effect, Plaintiffs must demonstrate that the plan 

had the effect of diluting the votes of members of the disfavored party by either packing or cracking 

voters into congressional districts. In Gill, the Supreme Court noted that the harm of vote dilution 

“arises from the particular composition of the voter’s own district, which causes his vote—having 

been packed or cracked—to carry less weight than it would carry in another, hypothetical district.” 

138 S. Ct. at 1931. A plan “packs” voters by creating districts that contain far more supporters of 

the disfavored party than would be necessary to elect a candidate from that party, causing many 

votes to be “wasted.” See id. at 1924. A plan “cracks” voters by creating districts that include 

carved-off sections of supporters of the disfavored party, dividing them into separate districts in 

which they do not have sufficient numbers to elect their preferred candidate. Id.; see also Benisek 

v. Lamone, 348 F. Supp. 3d 493, 514 (2018) (“[A State] can . . . contract the value of a citizen’s 

vote by placing the citizen in a district where the citizen’s political party makes up a smaller share 

of the electorate, thereby reducing the citizen’s chance to help elect a candidate of choice.”). 

Packing and cracking can be evaluated using partisan-bias metrics, which reveal if, and by how 

much, the map benefits one party over another by facilitating the more efficient translation of that 

party’s votes into seats. 

Plaintiffs may prove discriminatory effect by offering various types of evidence of packing

and cracking. Statewide comparisons that demonstrate that the challenged map is an historical 

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outlier in its extreme partisan bias, as measured through the efficiency gap and other related 

metrics, are indirect proof of packing and cracking. See Gill, 138 S. Ct. at 1924 (describing the 

efficiency gap). Multiple partisan-bias metrics should be used, and consistency of results across 

metrics and across data sets is key in evaluating this type of evidence. Plaintiffs should also offer 

comparisons between districts in the enacted plan and the same districts in more competitive 

hypothetical plans that did not take into account partisan concerns. See id. at 1931 (noting that 

packing and cracking can be demonstrated through a comparison to “another, hypothetical 

district”); id. at 1936 (Kagan, J., concurring) (“Among other ways of proving packing or cracking, 

a plaintiff could produce an alternative map (or set of alternative maps)—comparably consistent 

with traditional districting principles—under which her vote would carry more weight.”). Such 

comparisons may support the inference that the partisan bias observed in the enacted map resulted 

from partisan intent rather than underlying political geography. 

Proof of discriminatory effect is bolstered by evidence showing that the partisan bias that 

the plan engendered was durable—the plan entrenched the favored party in power. See Ariz. State 

Legislature, 135 S. Ct. at 2658 (defining partisan gerrymandering as “the drawing of legislative 

district lines to subordinate adherents of one political party and entrench a rival in power”). An 

entrenched district is impervious to “the potential fluidity of American political life.” Jenness v. 

Fortson, 403 U.S. 431, 439 (1971); cf. Johnson v. De Grandy, 512 U.S. 997, 1017 (1994) 

(explaining that, in the VRA context, “[o]ne may suspect vote dilution from political famine”). 

Entrenchment makes it potentially impossible to “throw the rascals out” and freezes the status quo, 

see, e.g., Vieth, 541 U.S. at 356 (Breyer, J., dissenting), further diluting the votes of individual 

voters. Plaintiffs may show entrenchment by demonstrating that the partisan bias of the enacted 

plan persisted over time. Evidence that a map is extremely unresponsive or noncompetitive—that 

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voting patterns can change but the electoral result does not—helps to prove durability of the 

partisan effects and therefore supports an inference of entrenchment.

c. Justification

Next, if Plaintiffs prove these first two prongs (discriminatory intent and discriminatory

effect (i.e., packing and cracking)), then the burden switches to Defendants to present evidence 

that legitimate legislative grounds provide a basis for the way in which each challenged district 

was drawn. Rucho, 318 F. Supp. 3d at 867–68; see also Karcher, 462 U.S. at 739, 741 (requiring 

the State to justify its districting decisions “with particularity”). This type of evidence takes aim 

at Plaintiffs’ intent prong. Defendants may assert that it was not partisan intent that motivated the 

map drawers’ district delineations, but rather a desire to serve other aims. These legitimate 

justifications may include serving traditional redistricting principles, for example, “making 

districts compact, respecting municipal boundaries, preserving the cores of prior districts, and 

avoiding contests between incumbent Representatives[,]” and, “[a]s long as the criteria are 

nondiscriminatory, these are all legitimate objectives that on a proper showing could justify” the 

drawing of each district. See Karcher, 462 U.S. at 740 (1983) (internal citation omitted). Other 

legitimate justifications include “preserving the integrity of political subdivisions, maintaining 

communities of interest,” Evenwel, 136 S. Ct. at 1124, and compliance with the VRA, see BethuneHill v. Va. State Bd. of Elections, 137 S. Ct. 788, 801 (2017) (“As in previous cases, . . . the Court 

assumes, without deciding, that the State’s interest in complying with the Voting Rights Act [is] 

compelling.”); Ala. Legislative Black Caucus, 135 S. Ct. at 1273–74 (holding that, when a state 

invokes the VRA to justify the use of race in the districting process, the state must have a “strong 

basis in evidence” for the position that the state would otherwise be violating the VRA if it failed 

to take race into account as it did). 

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Defendants may also argue that some other non-partisan factor caused the map’s partisan 

effects. Rucho, 318 F. Supp. 3d at 867. For example, Defendants may argue that natural political 

geography—the patterns in which Democratic and Republican voters are distributed throughout 

the State—explains why a map favors one party or another. Defendants may also attack the 

discriminatory effect prong by using evidentiary metrics to show that the challenged map does not 

actually crack or pack a particular party’s voters in a manner that is unusual given non-partisan 

considerations. For example, Defendants could attempt to show that the challenged map is not an

historical outlier or that its partisan effects are in line with the partisan effects of non-partisan 

simulated or hypothetical maps. Vacillating election outcomes from election cycle to election 

cycle under the challenged map would also be evidence weighing against a finding of cracking 

and packing. 

We then determine whether the State’s proffered legitimate justifications or neutral 

explanations are credible based on the evidence presented at trial. See Rucho, 318 F. Supp. 3d at 

879 (examining the record and concluding that it did not support Defendants’ claim that the 

General Assembly implicitly relied on certain criteria in making line-drawing decisions); id. at 

897–98 (rejecting the proffered justification of incumbent protection); see also Benisek, 348 F. 

Supp. 3d at 514 (finding one justification incongruent with the “massive shifts of population and 

the specific targeting of Republicans”); id. (rejecting the State’s claim that a district was drawn 

due to “an expressed interest in grouping residents along the Interstate 270 corridor” because “there 

is no evidence that the presence of an interstate highway . . . was the reason for the reconfiguration 

of both the Sixth and Eighth districts, as distinct from a post-hoc rationalization”). In deciding 

whether to credit Defendants’ justifications, we assess “the consistency with which the plan as a 

whole reflects [the asserted] interests, and the availability [and embrace] of alternatives that might 

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substantially vindicate those interests.” See Karcher, 462 U.S. at 740–41. We also weigh the 

evidence to determine whether any neutral explanation for partisan effect accounts for the partisan 

effects observed. See Rucho, at 896–97 (rejecting the proffered justification of “natural packing” 

in North Carolina’s political geography).

2. Application

Plaintiffs have demonstrated predominant partisan intent and partisan effect to support their 

First and Fourteenth Amendment vote-dilution claims. We first discuss evidence that applies 

broadly across all districts and then delve into the particularities of each district. We next analyze 

the justifications that Defendants have offered addressing both the intent behind the map and its 

partisan effects. We conclude that the proffered justifications either are inconsistent with the 

evidence, simply not credible, or do not meaningfully explain the design or effects of the 2012 

map. 

a. Statewide evidence of intent

Several different types of evidence come together to tell a cohesive story of a map-drawing 

process dominated by partisan intent—the invidious desire to disadvantage Democratic voters and 

advantage Republican voters to achieve a map that was nearly certain consistently to elect twelve 

Republican Representatives and four Democratic Representatives. See Washington v. Davis, 426 

U.S. 229, 242 (1976) (“[I]nvidious discriminatory purpose may often be inferred from the totality 

of the relevant facts.”). We examine evidence of the timeline and logistics of the map-drawing 

process, the map drawers’ heavy use of partisan data, contemporaneous statements made by the 

map drawers about their efforts, the characteristics of the map itself (including the irregular shape 

of the districts, their lack of compactness, and the high number of county and municipality splits), 

and finally, the outlier partisan effects that the map has produced since its enactment. When 

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assembled, this evidence paints a convincing picture that partisan intent predominated in the 

creation of the 2012 congressional map. 

i. Map-drawing process

“Departures from the normal procedural sequence” may serve as proof “that improper 

purposes are playing a role” in the map drawers’ work. Arlington Heights, 429 U.S. at 267. We 

conclude that the map-drawing process was rife with procedural irregularities and suspect behavior 

on the part of the map drawers, all of which support an inference of predominant partisan intent. 

There was a severe disconnect between the outward face of the map-drawing process and 

its true inner workings. Publicly, the House and Senate Subcommittees on Redistricting held 

regional hearings across Ohio ostensibly to solicit the input of Ohioans on the 2012 map. Yet, no 

draft maps were presented to the public at these meetings, and the public therefore could not even

react to or comment on the drafts. In fact, State Senator Faber, the co-chairman of the Select 

Committee on Redistricting, testified that “the Select Committee on Redistricting didn’t do much 

with regard to the actual redistricting. . . . I’m not even sure we issued a report.”738 See Rucho, 

318 F. Supp. 3d at 869 (finding a procedural irregularity in the fact that “notwithstanding that the 

Committee held public hearings and received public input, [the expert who drew the map] never 

received, much less considered, any of that input in drawing the 2016 plan” and finding that 

procedural irregularity probative of intent). 

At the same time, in a room at the DoubleTree Hotel in Columbus, Republican map drawers 

worked on the map but declined to share drafts of it with the public, Democratic legislators, and 

most members of their own Party. They finally shared the map with other state legislators 

immediately prior to its introduction in the House. This late notice was in part necessitated by the 

 

738 Dkt. 230-13 (Faber Dep. at 21–22).

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fact that national Republicans such as Tom Whatman were requesting changes to the map as late 

as 9:28 PM on Monday, September 12, 2011, the evening before the bill was introduced.739 It was 

also the result of the map drawers’ strategic decision to “[h]old it ‘in the can’” until the legislature 

returned in September.740

The deep involvement of national Republican operatives in the map-drawing process is an 

additional irregularity that serves as evidence of partisan intent. Ohio Republicans were in contact 

with national Republican Party operatives well before the map-drawing process began. National 

Republicans instructed the Ohio map drawers to maintain the plan’s secrecy, taught the Ohio map 

drawers how to use Maptitude, and provided them with additional partisan data and assistance in 

working with the data they were provided. National Republican operatives repeatedly met with 

Judy, Mann, and DiRossi, and were in regular communication with them during the map-drawing 

process. 

Importantly, the national Republican operatives did not merely play a supporting role in 

the map drawing. Rather, they generated foundational strategies that played key roles in the map. 

For example, it was Tom Whatman’s and Adam Kincaid’s idea to create a new Democratic district 

in the Columbus area (District 3) in order to solidify Republican seats in Districts 12 and 15. 

Whatman also made the decision that the Republican incumbents to be paired were Congressmen 

Turner and Austria because that was “the right thing for Republicans for the next decade.”

741

 The 

Ohio Republican map drawers displayed deference to their national Republican counterparts in 

their email correspondence. Mann and DiRossi cleared changes to the map with Whatman prior 

to implementing them. Whatman requested changes to the map on the eve of its introduction, and 

 

739 Trial Ex. P128 (Sept. 12, 2011 email at LWVOH_00018322). 

740 Trial Ex. P112 (Congressional redistricting timeline at DIROSSI_0000140). 

741 Trial Ex. P407 (Sept. 7, 2011 email at LWVOH_0052432). 

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the Ohio map drawers accommodated his request. The evidence suggests that many of the big 

ideas for the 2012 map scheme were generated in Washington, D.C., and then communicated to 

the Republican consultants in the DoubleTree in Columbus. We conclude that the level of control 

asserted by national Republican operatives in a redistricting delegated to the State of Ohio’s 

General Assembly raises the inference that pro-Republican partisan intent dominated the process.

ii. Heavy use of partisan data

Plaintiffs introduced testimonial evidence that the map drawers relied heavily on partisan 

data as they drew the 2012 map. We find the evidence of the heavy reliance on partisan data in 

the map-drawing process highly persuasive. See Benisek, 348 F. Supp. 3d at 517–18 (finding 

partisan intent, noting that “[r]eliance on the [Democratic Performance Index] in finalizing a map 

was essential to achieving the specific intent to flip the Sixth District from safely Republican to 

likely Democratic”); Rucho, 318 F. Supp. 3d at 869–70 (finding the map drawers’ creation of a 

partisan index and use of it in drawing the districts indicative of partisan intent). 

First, partisan data, along with other demographic data, was constantly displayed on the 

map drawers’ computer screens as they did their work on Maptitude. As they drew and altered 

congressional district lines, the partisan leanings of the resulting districts would automatically 

update in real time. 

Second, the Republican map drawers created various partisan indices through which they 

could measure the likely partisan outcomes of their draft maps, and the compositions of the indices 

are themselves proof of the map drawers’ partisan intent. The Unified Index, upon which they 

relied heavily, averaged the results of five races, overall reflecting a partisan landscape more 

favorable to the Democratic Party than an index that would have included a fuller set of elections 

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from the decade preceding the redistricting.742 The 2008 McCain Index similarly reflected an 

election in which Democrats had performed very well. Using these indices to predict partisan 

outcomes of draft maps therefore allowed the map drawers a margin of error—if Republican 

victories were predicted using the Unified Index and the 2008 McCain Index’s Democrat-friendly 

numbers, they would be likely to withstand Democratic wave years and be sure to elect 

Republicans in average years. These indices had the added benefit of making draft maps look 

more competitive than they actually were to the untrained eye. In fact, in public statements 

defending the competitiveness of the map, Representative Huffman stated that “11 of the 16 races 

are competitive if you use the 2008 Presidential Race as a guide.”743

Third, communications between the Ohio map drawers and their national Republican 

counterparts demonstrate that partisan outcomes were undoubtedly foremost in their minds when 

making line-drawing decisions. See Rucho, 318 F. Supp. 3d at 870 (finding the fact that one map 

drawer’s “appraisal of the various draft plans provided by [the map-drawing expert] focused on 

such plans’ likely partisan performance” probative of partisan intent). For example, DiRossi 

updated President Niehaus, Senator Faber, and Matt Schuler on his work on the map only days 

before the introduction of H.B. 319, informing them that the “Index for Latta fell two one hundreds 

[sic] of a point to 51.33” and the “Index for Jordan rose three one hundredth of a point to 53.26.”744 

Later that morning, DiRossi followed up, stating that due to the change he had earlier implemented 

“a good part of Lucas [County] [Latta] is picking up is [R]epublican territory.”745 DiRossi 

responded again with more partisan information later the same morning, breaking down the 

 

742 Dkt. 247 (Hood Trial Test. at 222–24). 

743 Trial Ex. J22 (Rep. Huffman Sponsor Test. at 001). 

744 Trial Ex. P126 (Sept. 12, 2011 emails at LVOH_00018298). 

745 Id.

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partisan leanings of the people in specific sections of Lucas County that DiRossi had just assigned 

to Latta’s new district—“123,289 from Lucas County suburbs (49.13% 08 pres index) and 110,786 

from Toledo wards (36.11% 08 pres index).”746 This series of emails demonstrates the Republican 

map drawers’ acute awareness of and concern about small impacts that line changes had on the 

map’s partisan score as they tried to finesse the lines to ensure Republican voter majorities for 

Republican Congressmen Jordan and Latta. They thought it was important to know, for example, 

that the voters allotted to Latta from the Lucas County suburbs were more Republican leaning, as 

measured by the 2008 McCain Index than the voters allotted to Latta from the Toledo wards. A 

related email including “talking points” sent by Whatman to President Niehaus further exemplifies 

the use of this partisan data in decision making. Whatman explained that one incumbent pairing 

was chosen over another in part because the rejected pairing “makes it impossible to draw Latta 

w/ a good index because you can’t get enough good to off set [sic] the bad he takes from Lucas 

County.”747 See Benisek, 348 F. Supp. 3d at 517 (finding partisan intent where the consultant hired 

to draw the map “prepared district maps using [a political consulting firm’s] proprietary 

[Democratic Performance Index] metric to assess the likelihood that a district would elect a 

Democratic candidate”). 

In the days leading up to the introduction of H.B. 319, DiRossi also sent Whatman an 

update about the effect that changes he had made to Congressman Stivers’s district had on partisan 

scores. He sent Whatman an email in which the entirety of the message read: “Stivers 08 Pres 

goes from 52.64 to 53.32; Stivers unified index goes from 55.02 to 55.72; Schmidt 08 Pres goes 

from 54.62 to 53.99; [Schmidt] unified index goes from 57.64 to 56.96; I can send equivalency 

 

746 Id.

747 Trial Ex. P407 (Sept. 7, 2011 email at LVOH_0052431). 

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file if necessary.”748 The presence of entire emails communicating such minute shifts in partisan 

index scores in the days leading up to the map’s introduction supports the conclusion that partisan 

outcomes were the predominant concern of those behind the map. 

The correspondence between these map drawers is also littered with references to “good” 

and “bad” territory as well as “improve[ments]” that can be made to certain districts. For example, 

Whatman wrote to Kincaid, DiRossi, and Mann that one set of changes “looks good on the surface” 

but highlighted that the “[k]ey is whether we can improve CD1 and CD 14 at the block level.”749 

In another email criticizing changes that Kincaid had made to a map, Tom Hofeller wrote that 

“[t]he area Adam has on his version included . . . some of the more ‘downtown’ area, which I took 

out of the map I sent—as it was ‘dog meat’ voting territory.” He later referred to the area he had 

removed as “awful-voting territory in the 15th.”750 “Good” territory clearly meant Republicanleaning territory, “bad” or “awful” territory meant Democratic-leaning territory, and 

“improv[ing]” a district meant manipulating boundaries, sometimes “at the block level,” to make 

it more likely to elect a Republican representative. The map drawers defined these basic 

classifications of geographic areas based on their partisan leanings and the partisan impact that 

they would have on the map. The fact that mapmakers considered an area “good” or “bad” based 

on its partisan composition demonstrates the absolute centrality of partisanship to their mapdrawing efforts. 

The Republican map drawers repeatedly emphasized in their testimony that partisan index 

data was only one category of the many types of demographic data that was displayed in Maptitude 

as they worked. However, while there is ample evidence that the map drawers were acutely aware 

 

748 Trial Ex. P127 (Sept. 12, 2011 email at LWVOH_00018320). 

749 Trial Ex. P119 (Sept. 3, 2011 email at LVOH_00018302). 

750 Trial Ex. P394 (Sept. 8, 2011 email at REV_00023234). 

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of how their mapmaking decisions impacted the partisan leanings of their draft districts, no such 

evidence suggests that they were nearly as focused on any other type of demographic data. Further, 

the correspondence includes very little discussion of how contemplated changes would impact 

core preservation, affect compactness, or minimize county or municipality splits.

iii. Contemporaneous statements 

Statements made by the map drawers during and immediately after the map-drawing 

process also reflect their intent to produce a 2012 map with specific partisan results. See Benisek, 

348 F. Supp. 3d at 518 (considering notes prepared for the Senate President’s “remarks to the State 

House and Senate Democratic Caucuses about the redistricting plan” as evidence establishing 

intent). For example, Whatman explained to President Niehaus why certain decisions had to be 

made about the map: “In losing two seats and trying to lock down 12 Republican seats it is

unrealistic to think that southwest Ohio can remain the way it is.”751 This is a direct expression of 

the Republican map drawers’ intent to draw a map that guarantees the election of twelve 

Republicans by minimizing the competitiveness and responsiveness of the districts. The same 

email explained that pairing senior rather than freshman Republican incumbents was necessary to 

avoid “an overall worse map for republicans in the state” which was “not the right thing to do.”752 

Rather, in Whatman’s view, a “tough decision” had to be made that was “the right thing for 

Republicans for the next decade”—choosing the incumbents to be paired based on which would 

allow for a more pro-Republican map.753 This statement, made days before the introduction of 

H.B. 319 by a chief architect of the 2012 map, is more direct evidence that the map drawers 

knowingly prioritized partisan impact over other redistricting concerns, such as incumbent 

 

751 Trial Ex. P407 (Sept. 7, 2011 email at LWVOH_0052431) (emphasis added). 

752 Id. at LWVOH_0052432. 

753 Id.

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protection, and that they understood and intended the map-drawing decisions they were making to 

affect the electoral outcomes “for the next decade.” They could be sure that the impacts would 

remain for years to come because they relied on carefully chosen indices to predict partisan scores 

and monitored changes to those partisan scores down to the second decimal place. See Rucho, 318 

F. Supp. 3d at 870 (finding evidence of partisan intent in the map drawers’ understandings that the 

map design would dictate partisan outcomes “in every subsequent election”). 

Kincaid’s statements about the Ohio redistricting process following the passage of H.B. 

369 provide further proof of the map drawers’ partisan intent. In a presentation to the NRCC, he 

stated his belief that Districts 1, 12, and 15 had been taken “out of play”—they were safe 

Republican seats that had been designed with sufficient partisan insulation from a Democratic 

challenge.754 Kincaid provided the PVI numbers to demonstrate significant pro-Republican 

partisan shifts that the 2012 map had achieved. This is evidence that Republican map drawers 

relied heavily on and frequently discussed partisan indices because they were understood as the 

means of monitoring their goal of designing reliably Republican districts. Kincaid also stated his 

belief that Districts 6 and 16 were “Competitive R Seats Improved”—their designs had been 

altered to shore up Republican advantage.755 Kincaid’s discussion of the map’s achievements 

emphasized that it should reliably deliver a 12-4 partisan composition, “eliminat[ed] 

[Representative] Sutton’s seat,” and “created a new Democratic seat in Franklin County”—all 

commentary focused on the issue that mattered most to the map drawers: partisan outcomes.756 

 

754 Trial Ex. P310 (NRCC Presentation at 5); Dkt. 230-27 (Kincaid Dep. at 115–16). 

755 Trial Ex. P310 (NRCC Presentation at 6). 

756 Trial Ex. P414 (State-by-State Redistricting Summary at REV_00000001); Dkt. 230-28 

(Kincaid Dep. at 519). 

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iv. Irregular shape of the districts, lack of compactness, high number of splits

A map that fails to include compact districts that follow preexisting county and municipal 

lines raises questions of intent. The choice to split counties and municipalities and to draw 

noncompact districts must have been motivated by some other intent that was more important to 

the map drawers than honoring these traditional districting principles. Where no other motivation 

is offered, or the motivation offered is unconvincing, and other evidence demonstrates that partisan 

intent was present, irregularly shaped, noncompact districts and seemingly unnecessary county 

and municipality splits can support an inference of partisan intent. 

Comparing the 2012 map to Mr. Cooper’s hypothetical maps (which dealt with the same 

incumbent-pairing situation as the map drawers in 2011 did) provides some proof of partisan 

intent. The 2012 map splits two counties four ways, five counties three ways, and sixteen counties 

two ways.757 Mr. Cooper’s hypothetical maps, in contrast, split no counties four ways, only two 

counties three ways, and twelve counties in two ways.758 Mr. Cooper’s hypothetical maps also 

have higher Polsby-Popper and Reock scores than the 2012 map, meaning that their districts are 

more compact.759 The hypothetical maps also have core retention rates on par with that of the 

2012 map.760 The fact that Mr. Cooper was able to draw two hypothetical maps that comport with 

traditional redistricting principles as well or better than the 2012 map, pair the same configuration 

of incumbents, and result in more favorable partisan outcomes for Democratic voters suggests that 

the 2012 map was selected in order to engineer less favorable partisan outcomes for Democratic 

voters. 

 

757 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

758 Trial Ex. P093 (Cooper Second Suppl. Decl. at 9, 16). 

759 Id. at 8, 15.

760 Id. at 6, 13. 

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Further, it does not take an expert or scientific analysis to see that the 2012 map is littered 

with oddly-shaped districts. It is true that district lines must be drawn somewhere, but even a 

cursory glance at the 2012 map shows how non-compact some districts are. When coupled with 

all of the other evidence regarding intent, we find that the irregularity of the boundaries is further 

evidence that the districts’ boundaries were drawn with a predominantly partisan intent. See 

Rucho, 318 F. Supp. 3d at 883 (finding that the challenged map’s “‘bizarre’ and ‘irregular’ shapes” 

which were “explicable only by the partisan make-up of the precincts the mapdrawers elected to 

place within and without the districts” supported a finding of predominant partisan intent). 

v. Partisan effects as measured by evidentiary metrics 

Plaintiffs argue that the extremity of the partisan effects themselves are strong proof of 

partisan intent. We find the inference of partisan intent well supported by Dr. Warshaw’s analysis 

demonstrating the 2012 map’s extreme levels of partisan bias across multiple metrics and data sets 

and when compared to a large array of historical elections.761 See Rucho, 318 F. Supp. 3d at 862

(“In determining whether an ‘invidious discriminatory purpose was a motivating factor’ behind 

the challenged action, evidence that the impact of the challenged action falls ‘more heavily’ on 

one group than another ‘may provide an important starting point.’” (quoting Arlington Heights, 

429 U.S. at 266)); id. at 870–76 (concluding that mathematical analyses indicating that the 

challenged map was an extreme statistical outlier in terms of its partisan effects were proof of 

partisan intent). Dr. Warshaw’s analysis of elections under the 2012 map compared to historical 

elections in comparable states showed that it is extremely partisan and extremely pro-Republican. 

All four partisan-bias metrics he employed supported this conclusion, which held true across 

different elections that have occurred under the 2012 plan. We conclude that such strong and 

 

761 Trial Ex. P571 (Warshaw Rep. at 4). 

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consistent pro-Republican partisan bias would be highly unlikely to occur without intentional 

manipulation of the district lines to achieve that result.

b. Statewide evidence of effect

For their vote-dilution claims, Plaintiffs offer, in part, statewide evidence to prove partisan 

effect. As in other gerrymandering cases, “[v]oters, of course, can present statewide evidence in 

order to prove . . . gerrymandering in a particular district.” See Ala. Legislative Black Caucus, 135 

S. Ct. at 1265. This evidence complements and strengthens other district-specific evidence.762 

The actual election results and the analyses of Dr. Warshaw and Dr. Cho are particularly relevant 

here.

Before turning to this evidence, it is worth explaining that the reliance on statewide 

evidence in a partisan-gerrymandering case is slightly distinct from Shaw racial-gerrymandering 

cases. Of course, a Shaw claim does not have effect as an element. Rather, the harm under a Shaw

claim is an “expressive” harm. See Richard H. Pildes & Richard H. Niemi, Expressive Harms, 

“Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. 

Reno, 92 MICH. L. REV. 483, 506–07 (1993) (“An expressive harm is one that results from the 

ideas or attitudes expressed through a governmental action, rather than from the more tangible or 

material consequences the action brings about.”). As the Supreme Court recognized in Miller:

Shaw recognized a claim “analytically distinct” from a vote dilution claim. 

Whereas a vote dilution claim alleges that the State has enacted a particular voting 

scheme as a purposeful device “to minimize or cancel out the voting potential of 

racial or ethnic minorities,” an action disadvantaging voters of a particular race, the 

essence of the equal protection claim recognized in Shaw is that the State has used 

race as a basis for separating voters into districts.

 

762 Plaintiffs’ First Amendment associational claim rests on statewide evidence, and we 

discuss this further in Section V.C.

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Miller, 515 U.S. at 911 (citations omitted) (emphasis added). Accordingly, “a plaintiff alleging 

racial gerrymandering bears the burden ‘to show . . . that race was the predominant factor 

motivating the legislature’s decision to place a significant number of voters within or without a 

particular district.’” See Bethune-Hill, 137 S. Ct. at 797. In partisan-gerrymandering cases, 

however, the harm includes partisan effect, and consequently Plaintiffs may rely on statewide 

evidence to prove that harm. In this case, a predominant partisan intent drove how the entire map 

was drawn, so it is logical that Plaintiffs should be able to rely on statewide evidence of effect, as 

well as district-by-district evidence. Just as a predominant partisan intent infected the whole map, 

the partisan-effect evidence discussed here shows efficient packing and cracking of Democratic 

voters across the whole map.

Lastly, the evidence discussed in this section could also be used to prove intent. See infra

Section V.C.1.b. In future cases, one would expect map drawers not to express clearly their pure 

partisan intentions, and there likely would be less clear direct evidence of partisan intent. The 

social-science metrics and simulated maps would then become even more important 

considerations, for evidence of sufficiently extreme partisan gerrymanders would support the 

contention that a state was predominantly motivated by partisanship. See infra Section V.C.1.b.

Turning now to the evidence, the actual election results show a durable partisan effect 

across the map and support an inference of packing and cracking districts across the State. Every 

election has resulted in the election of twelve Republican representatives and four Democratic 

representatives. Even more alarming is the fact that the Republican candidates have consistently 

won the exact same districts: Districts 1, 2, 4, 5, 6, 7, 8, 10, 12, 14, 15, and 16; and the Democratic 

candidates have consistently won the exact same districts: Districts 3, 9, 11, and 13. Thus, in each 

of these elections, 75% of the representatives elected in the State of Ohio were Republicans—

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despite fluctuations in the Republican statewide vote share. In the 2012 election, Republicans won 

only 51% of the statewide vote. In 2014, they won only 59% of the statewide vote. In 2016, they 

won only 57% of the statewide vote. In 2018, they won only 52% of the statewide vote. From a 

statewide perspective, then, at least 2012 and 2018 were quite competitive. At the individual 

district level, however, only four congressional elections—two in 2012 and two in 2018—have 

been competitive (within a 10% margin of victory, or within 55% to 45%) across the entire decade. 

Each of those competitive elections was won by Republican candidates; meanwhile, the lowest 

percentage of the vote that a winning Democratic candidate for Congress received in any election 

was 61%. Because the scientific evidence shows that such clustering is not the result of natural 

packing, this strongly suggests that Democratic voters were intentionally packed in large numbers 

into these four districts. Under the 2002 map, there were several districts that bounced between 

electing Democratic and Republican representatives—particularly Districts 6, 15, 16, and 18.763 

In short, the actual statewide vote share in congressional elections does not suggest that 

Democratic voters should have expected to suffer from such a “political famine,” or such a 

“political feast” in the four districts that they have won, and, consequently, this raises suspicions 

of vote dilution. Cf. De Grandy, 512 U.S. at 1017 (“One may suspect vote dilution from political 

famine”).

 

763 OHIO SEC’Y OF STATE, 2002 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2002-elections-results/; OHIO 

SEC’Y OF STATE, 2004 ELECTION RESULTS, https://www.sos.state.oh.us/elections/election-resultsand-data/2004-elections-results/; OHIO SEC’Y OF STATE, 2006 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2006-elections-results/; OHIO 

SEC’Y OF STATE, 2008 ELECTION RESULTS, https://www.sos.state.oh.us/elections/election-resultsand-data/2008-election-results/; OHIO SEC’Y OF STATE, 2010 ELECTION RESULTS,

https://www.sos.state.oh.us/elections/election-results-and-data/2010-elections-results/. The Court 

takes judicial notice of the 2002-2010 election results. FED. R. EVID. 201.

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Further, an array of social-science metrics demonstrates that the 2012 map’s significant 

partisan bias in favor of Republicans in that the Republicans possess a major advantage in the 

translation of votes to seats compared to Democrats. This partisan bias is durable across the 

decade. In the 2012 and 2018 elections, the efficiency gap, declination, and partisan symmetry 

metrics were each more extreme and more pro-Republican than over 90% of previous elections. 

See supra Section II.C.1. The mean-median difference also displays significant partisan bias, 

though less so than the other three metrics: in 2012, the mean-median difference was more extreme

than “in 83% of previous elections and more pro-Republican than . . . in 92% of previous 

elections.”764 For 2018, the corresponding percentages were 62% and 81%.765 Although not as 

strong, we still give weight to the fact that the mean-median difference jumped from 1.7% in 2010 

(a successful Republican year) to 7.8% in 2012 and remained much higher, at 5%, in 2018.766 In 

2014 and 2016, these four metrics do not indicate quite as much partisan bias; however, that makes 

sense given that Republicans performed better in those years. In fact, that just proves the point—

when the statewide congressional vote was nearly split between the two parties, the same results 

were achieved as when Republicans did markedly better. 

The lack of competitive elections compared to what one would expect based on Ohio’s 

natural political geography also indicates that Democratic voters have been packed and cracked.767 

Dr. Cho’s analysis showed that under the simulated maps, one would expect at least a handful of 

competitive elections across the State in each election, with Democratic candidates winning some 

of those elections and Republican candidates winning others. See supra Section II.C.2.b.i. Again, 

 

764 Trial Ex. P571 (Warshaw Rep. at 25).

765 Trial Ex. P476 (Warshaw 2018 Update at 3).

766 Trial Ex. P571 (Warshaw Rep. at 24); Trial Ex. P476 (Warshaw 2018 Update at 3).

767 We further discuss individual districts, as well as their election results and lack of 

competition, infra.

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the current map had only two competitive elections in the 2012 cycle, and only two competitive 

elections in the 2018 cycle—all favoring Republicans. The evidence of packing is perhaps the 

strongest, as every Democratic candidate who has won an election under the current map has 

garnered over 60% of the vote—a stark contrast in comparison to the simulated maps in which 

Democratic candidates are projected to run in several competitive elections. Given the continued 

dearth of competitive elections for both parties, we credit Dr. Cho’s conclusion that the margins 

of victory “are sufficiently insulating to produce an enduring effect” in favor of Republicans.768

Moreover, we conclude that the districts are effectively entrenched to favor Republican 

candidates overall. We thus credit Dr. Warshaw’s conclusion that “Democratic voters in Ohio are 

efficiently packed and cracked across districts.”769 This conclusion is supported, in part, by the 

evidence outlined above. Additionally, Dr. Warshaw’s first uniform swing analysis shows that 

“Democrats would win only 37.5% of the seats in Ohio’s congressional districts [or 6 out of 16 

seats] even if they won 55% of the statewide vote.”770 Incorporating the 2018 election results 

produced only a slight difference, with Democrats winning half the seats when they achieve 55% 

of the vote.771 The swing analysis demonstrates entrenchment because it shows that the 2012 

map’s design is such that the overall Republican advantage will be maintained, absent a rather 

seismic shift in the statewide vote share in favor of Democratic candidates. This evidence of 

entrenchment adds more weight to Plaintiffs’ vote-dilution claims and strongly shows that the 

districts are impervious to “the potential fluidity of American political life.” Jenness, 403 U.S. at 

439. 

 

768 Trial Ex. P426 (Cho Suppl. Rep. at 6).

769 Trial Ex. P571 (Warshaw Rep. at 43).

770 Id. at 15.

771 Trial Ex. P476 (Warshaw 2018 Update at 12–13).

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Critically, the evidence shows that the map enacted in H.B. 369 is an outlier in terms of its 

partisan effects. Dr. Warshaw’s findings on the pro-Republican tilt and extreme nature of the 

partisan-bias metrics provide considerable weight for this conclusion. Dr. Cho’s seat-share 

analysis bolsters the fact that H.B. 369 is an outlier. In her initial analysis, none of the simulated 

maps produced the same 12-4 seat share as the current map; using updated data, only 0.046% of 

the simulated maps (1,445 out of over 3 million) produced the same 12-4 seat share. See supra

Section II.C.2.b.iii. In this case, we are not confronted with a difficult question about the margins 

of what constitutes an outlier. By almost every measure, H.B. 369 has produced partisan effects 

that are more extreme than over 90% of prior elections, and several of the measures show that this 

map is over 95% more extreme.

Defendants contest the usefulness and appropriateness of Dr. Cho’s simulated maps as a 

comparison to the current map because the simulated maps do not factor in incumbent protection. 

We find these arguments largely unpersuasive. To begin, the simulated maps incorporate only 

neutral districting criteria, and thus, they serve as useful non-partisan baselines against which to 

compare the current map’s partisanship. In this case, these non-partisan baselines demonstrate the 

typical type of maps one would expect based on the State’s natural political geography. Second, 

to the extent that the General Assembly legitimately sought to avoid the pairing of incumbents, we 

find that Dr. Cho’s failure to account for this factor partially reduces the strength of her conclusion 

that the 12-4 map cannot be explained by legitimate redistricting criteria. Even so, we still find 

Dr. Cho’s simulated maps to support an inference of partisan effect and intent due to the 

overbreadth of Defendants’ incumbent-protection explanation, its shaky evidentiary foundation, 

and the sheer extremity of the pro-Republican or pro-Democratic leanings of the current districts, 

as demonstrated by Dr. Cho’s comparison analysis. We fully address the incumbent-protection 

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justification for H.B. 369 later in this opinion. As will be explained, we find that Defendants have 

stretched the incumbent-protection justification too far in this case, and, in some respects, the 

justification simply does not hold up based on the facts. We observe that Representative Huffman 

clearly described incumbent protection as “subservient” to other criteria. See Trial Ex. J01 (Ohio 

House Session, Sept. 15, 2011 at 19) (statement of Rep. Huffman). Moreover, Dr. Cho’s findings 

on her simulated maps’ partisan outcomes so starkly contrast with the current map that, to the 

extent incumbent protection explains some of the current map’s partisan effect, Dr. Cho’s analyses 

provide support, along with other evidence in this case, that this justification cannot explain the 

consistent 12-4 seat share of the current map. 

We now turn to an analysis of each individual district.

c. District-by-District analysis 

In this section, we complement the statewide evidence of intent and effect with evidence 

specific to each district. We show that each district was drawn with a predominant intent to dilute 

the votes of Democrats and that each district actually dilutes the votes of Democrats by either 

packing or cracking Democrats into the district. In doing so, we address and reject herein some of 

the particular partisan-neutral explanations that Defendants offer for certain districts. In the next 

section, we explore more fully some of the overarching justifications that Defendants advance.

i. District 1

District 1 encompasses all of Warren County and irregularly shaped and disjointed portions 

of Hamilton County, including western portions of the City of Cincinnati. The district wraps 

strangely around the eastern portion of Cincinnati, surrounding it on three sides.772 

 

772 Trial Ex. P090 (Cooper Decl. at 12, fig. 5; App. D-3); Dkt. 241 (Cooper Trial Test. at 

145). 

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As Dr. Niven described, rather than leaving intact the City of Cincinnati, an obvious 

community of interest that leans Democratic, the map drawers made a deliberate choice to split 

the city in half in an irregular shape. One half was paired with heavily Republican Warren County 

to make a Republican District 1. The other half was paired with Republican rural southern Ohio 

counties to make a Republican District 2.773 Dr. Niven’s report demonstrated that the Cincinnati 

neighborhoods that were split were particularly likely to be Democratic strongholds.774 Thus, the 

“demographic evidence reveals that [the] district’s bizarre lines coincide with the historical voting 

patterns of the precincts included in, or excluded from, the district.” Rucho, 318 F. Supp. 3d at 

900. We therefore conclude that District 1’s bizarre lines (wrapping around portions of the City 

of Cincinnati on three sides) and the fact that it vivisects an obvious community of interest, which

together split a Democratic city to create two solidly Republican districts, is evidence that partisan 

intent dominated the drawing of District 1. See Covington, 138 S. Ct. at 2553 (considering 

 

773 Trial Ex. P524 (Niven Rep. at 7). 

774 Id. at 13. 

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“circumstantial evidence of [the] district’s shape and demographics” as evidence of racial 

gerrymandering). 

It is true that Hamilton County has a population larger than the ideal equipopulous district

and therefore cannot be entirely contained within a single district; the county must be divided to 

some extent.775 However, we reject the argument that the need to split Hamilton County is a 

neutral explanation for District 1 being drawn as was. Even though Hamilton County needed to 

be split between two congressional districts, it did not have to be split in such an irregular shape 

and need not have divided the City of Cincinnati, a clear community of interest, in such a dramatic 

fashion. For example, Mr. Cooper’s hypothetical maps, which were designed as viable alternatives 

that could have been enacted in 2011, and which match or better the enacted map in terms of their 

compliance with traditional redistricting principles, maintain the City of Cincinnati intact to a far 

greater degree than the 2012 map.776

We can discern no legitimate reason behind the division of the City of Cincinnati other 

than the desire to crack its Democratic voters, disabling a cohesive center that would likely have 

elected a Democratic representative and instead facilitating the creation of another Republican 

district. DiRossi testified that “[t]he intention [in 2011] was to try to have one whole county in 

[District 1] somehow.”777 DiRossi testified that Warren County was selected to be the whole 

county, and portions of Hamilton County would be drawn in to reach the ideal population.778 He 

stated that the decision to include Warren County “impact[ed] the shape of the district in Hamilton 

County . . . [b]ecause in order to have most of the west side and Cincinnati in the district, but also 

 

775 Dkt. 241 (Cooper Trial Test. at 153). 

776 Trial Ex. P093 (Cooper Second Suppl. Decl. at 4, 12). 

777 Dkt. 243 (DiRossi Dep. at 186). 

778 Id.

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connect to Warren County . . . you had to come across the northern area of places like Evendale 

and some of the other Springfield Township northern places to connect them.”779 

We find this explanation for District 1’s shape and the division of the City of Cincinnati 

entirely unconvincing, false, and indicative of partisan intent. In fact, DiRossi’s explanation of 

the contours of District 1 provokes more questions than it answers. Why was Warren County, 

rather than Butler County or Clermont County selected as the county to pair with Hamilton 

County? Why was the intention to try to have one whole county in District 1? This did not appear 

to be a pressing concern elsewhere—Districts 13 and 9 are composed entirely of partial counties. 

Why did the map drawers want to have the west side of Hamilton County in the district, requiring 

them “to come across the northern area”? What was wrong with the east side? Most importantly, 

DiRossi’s explanation of the shape of the district fails to explain why the City of Cincinnati was 

split as it is and why keeping Warren County whole was more important than preserving the 

obvious community of interest embodied in the City of Cincinnati. See Arlington Heights, 429 

U.S. at 267 (“Substantive departures [from normal procedure] may be relevant, particularly if the 

factors usually considered important by the decisionmaker strongly favor a decision contrary to 

the one reached.”). We reject this justification and conclude that it was merely an attempt to 

obfuscate. See Benisek, 348 F. Supp. 3d at 520 (rejecting a proffered post hoc rationalization for 

a district’s design as unsupported by the evidence). Rather, given the substantial evidence of 

partisan intent discussed above, we conclude that the more plausible explanation for District 1’s 

configuration was the predominant desire to crack Democratic voters in Cincinnati, a cohesive 

center that would likely have elected a Democratic representative. Instead, the design of District 

 

779 Id. at 186–87. 

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1 facilitated the dilution of these Cincinnati Democrats’ votes by splitting them between two 

majority-Republican districts—Districts 1 and 2. 

Further, we conclude that the 2012 map did crack Democratic voters in Hamilton County 

in District 1. We first note that District 1 has elected Republican representatives in every election 

that followed the redistricting. This durability in and of itself is some evidence of cracking in 

District 1. See id. at 519–20 (finding proof of partisan effect in “the fact that the Democratic 

candidate was elected in the three elections following the 2011 redistricting”). 

Second, the partisan effects of District 1 were durable because the district was drawn in a 

way to ensure the election of a Republican representative. Evidence proves that entrenchment 

resulted in this case. In 2012, Republican Representative Steve Chabot was elected with 57.73% 

of the vote. In 2014, he won with 63.22% of the vote. In 2016, he won with 59.19% of the vote. 

In 2018, he won with 51.32% of the vote. Thus, only one of these elections was competitive—the 

last, which occurred during a significant Democratic swing election year. Democratic candidate 

Aftab Pureval challenged Representative Chabot in District 1 in 2018. Pureval spent 

$4,059,690.53 on his campaign while Representative Chabot only spent $2,991,573.88.780 Even 

under those conditions, however, the composition of the district allowed Representative Chabot to 

hold off his Democratic challenger. District 1’s election results under the 2012 map are evidence 

of its lack of competitiveness and responsiveness (i.e., entrenchment), achieved through cracking. 

Indeed, Kincaid stated that he understood District 1 would result in entrenchment. Immediately 

after the redistricting, Kincaid expressed his belief that District 1 had moved seven PVI points in 

favor of Republicans and had thus been taken “out of play.”781 Mapmaking that takes a district 

 

780 Trial Ex. P426 (Cho Suppl. Rep. at 5–6). 

781 Trial Ex. P310 (NRCC presentation at 5); Dkt. 230-27 (Kincaid Dep. at 115–16). 

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“out of play” certainly has partisan effects—it converts a district that could previously be won by 

a candidate from either party into one that will consistently elect a member of the favored party. 

See Benisek, 348 F. Supp. 3d at 519 (finding partisan effect where the design of the district resulted 

in a large swing in PVI). 

District 1’s consistent election of a Republican Congressman under the 2012 plan stands 

in stark contrast to former District 1’s status as a swing district under the 2002 plan. In 2006,

District 1 elected Republican Representative Chabot, who won with 52.25% of the vote. In 2008,

District 1 elected Democratic Representative Steve Driehaus with 52.47% of the vote. In 2010,

District 1 flipped back to elect Republican Representative Chabot, this time winning by an even 

narrower margin with 51.49% of the vote. The 2012 map redrew District 1 in a fashion that diluted 

Democratic support by cracking the Democratic City of Cincinnati and paired those portions of 

Cincinnati with rural Republican strongholds, thereby eliminating the threat that District 1 would 

flip Democratic. See Benisek, 348 F. Supp. 3d at 519 (finding partisan effect where “Republican 

voters in the new Sixth District were, in relative terms, much less likely to elect their preferred 

candidate than before the 2011 redistricting, and, in absolute terms, they had no real chance of 

doing so”). District 1’s consistent election of a Republican representative under the 2012 map is 

evidence of the durability of its partisan bias and its facilitation of Republican entrenchment. 

Dr. Niven’s report provides further proof of the cracking of District 1. It demonstrates the 

pronounced partisan divergence between Democratic Cincinnati and Republican Warren County, 

which combined with the cracked part of Cincinnati to form the new District 1.782 Niven also 

demonstrated that the pre-2012 version of District 1 elected President Barack Obama in 2008 with 

55.17% of the vote, but predicted that had that election been held with District 1 composed as it is 

 

782 Trial Ex. P524 (Niven Rep. at 7). 

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under the current map, Obama would have lost the district, securing only 47.7% of the vote.783 

This evidence is highly suggestive of the effect that the design of the new District 1 had on 

Democratic voters’ ability to elect Democratic representatives in the District. 

Finally, Dr. Cho’s report also serves as proof of a partisan effect of cracking in District 1. 

In 95.68% of Dr. Cho’s simulated maps Plaintiff Linda Goldenhar, currently a voter in District 1, 

would reside in a district where she would have a better chance of electing a Democrat.784 We 

find that the divergence between the partisan leaning of the current District 1 and the vast majority 

of the non-partisan simulated districts supports the conclusion that the 2012 map cracked 

Democratic voters in District 1.

ii. District 2

District 2 encompasses part of Hamilton County, including highly irregularly shaped 

portions of the City of Cincinnati,785 as well as all of Clermont, Brown, Adams, Highland, and 

Pike Counties and portions of Scioto and Ross Counties.786 District 2 was drawn as the 

complement of District 1—it took on the other half of the City of Cincinnati to enable the cracking 

of its Democratic voting power. Therefore, much of the same partisan-intent analysis that 

corresponds to District 1 also applies to District 2. See Benson, 2019 WL 1856625, at *57 n.39 

(explaining that “[t]he Court will evaluate several of the Senate and House Districts in groups. . . . 

The way that each district in a group was drawn had profound consequences on the partisanship 

of the other districts in that same group. One cannot fully grasp the partisan implications of the 

design of an individual district in each group without simultaneously evaluating the partisanship 

 

783 Id. at 8. 

784 Trial Ex. P087 (Cho Rep. at 13). 

785 Dkt. 241 (Cooper Trial Test. at 145). 

786 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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of the other districts in that group.”). We conclude that the unnecessary and irregular splitting of 

Hamilton County and the Democratic City of Cincinnati provides ample proof of a predominant 

partisan intent to crack District 2. This evidence is supplemented by the general evidence of 

partisan intent in crafting the 2012 map, discussed above. 

We also conclude that the 2012 map had the effect of cracking Democratic voters from the 

Cincinnati area in District 2. The historical election results are evidence of this cracking. See 

Benisek, 348 F. Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic 

candidate was elected in the three elections following the 2011 redistricting”). In 2012, Republican 

Representative Brad Wenstrup was elected to Congress with 58.63% of the vote. In 2014, he won 

with 65.96% of the vote. In 2016, he won with 65.00% of the vote. In 2018, he won with 57.55% 

of the vote. None of these elections was competitive because the design of District 2 tempered 

Democratic support from the Cincinnati area with sufficient Republican territory to ensure a 

Republican victory. The consistent election of a Republican representative by “safe” margins is 

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evidence of cracking in District 2. It also supports the conclusion that the 2012 map’s partisan 

effects were durable and facilitated Republican entrenchment in District 2. 

Dr. Niven’s report provides additional evidence that District 2 cracked voters from 

Hamilton County. Under the pre-2012 map, District 2 had been solidly Republican, with only 

40.60% of voters supporting President Obama in the 2008 election. Had the same election 

occurred with District 2 as it is currently composed, 44.98% of voters would have supported 

President Obama.787 This evidence demonstrates that the redistricting decreased the district’s 

considerable partisan margin as Democratic voters from the Cincinnati area were absorbed by the 

new District 2. Yet the map maintained a sufficiently pro-Republican partisan makeup to allow 

District 2 to elect Republican representatives consistently after the redistricting. This is an 

example of efficient cracking at work. 

Dr. Cho’s simulated maps provide additional evidence of the cracking effect in District 2. 

99.87% of Dr. Cho’s non-partisan maps would have placed Plaintiff Burks, who lives in current 

District 2, in a district that would have had a better chance of electing a Democrat.788 This evidence 

further suggests that the design of District 2 under the 2012 map is at least partially responsible 

for Democratic voters’ difficulty electing a Democratic representative in that district.

iii. District 3

District 3 encompasses an irregularly shaped portion of Franklin County, including 

portions of the City of Columbus.789 It is involved in the three-way split of Franklin County and 

the City of Columbus.790 We conclude that the map drawers’ predominant intent in the creation 

 

787 Trial Ex. P524 (Niven Rep. at 9). 

788 Trial Ex. P087 (Cho Rep. at 14). 

789 Dkt. 241 (Cooper Trial Test. at 146). 

790 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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of District 3 was to pack Democratic voters in the Columbus area, allowing them to shore up 

Republican support in the surrounding Districts 12 and 15. See Benson, 2019 WL 1856625, at *57 

n.39. 

First, the irregular shape of District 3 supports an inference of partisan intent. Mr. Cooper 

testified that the shape of the “[p]resent day District 3 is a mess,” and we too find that the bizarre 

shape of the district is evidence of partisan intent.791 Mr. Cooper’s hypothetical maps, while also 

drawing districts in the Columbus area, managed to draw those districts with far more regular 

boundaries.792 Second, evidence in the record referring to the newly created district as the 

“Franklin County Sinkhole” supports our finding that the map drawers created District 3 as a 

vehicle to pack Democratic voters. Related evidence demonstrates that national Republican 

consultants used descriptors such as “awful” or “dog meat” voting territory to describe

“downtown” areas that they wanted carved out of District 15 and placed into District 3, which

 

791 Dkt. 241 (Cooper Trial Test. at 154). 

792 Trial Ex. P093 (Cooper Second Suppl. Decl. at 4, 12). 

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further supports our finding that partisan intent predominated in the design of District 3. See 

Benisek, 348 F. Supp. 3d at 518–19 (finding invidious partisan intent where “the State intentionally 

moved Republican voters out of the Sixth District en masse, based on precinct-level data”). Third, 

national Republicans Whatman and Kincaid testified that they conceived of the idea to create the 

new, Democratic District 3. Their primary role in its creation is further proof that the predominant 

reason for the district’s design was to facilitate Republican advantage. Fourth, since the 2012 map 

was enacted, District 3 has consistently elected the Democratic candidate by large margins—

64.06–73.61% of the vote. Meanwhile, adjacent Districts 12 and 15 have consistently elected 

Republican representatives, despite Democratic swing years such as 2018. The consistency and 

durability of the partisan results in this constellation of districts and the lack of competitiveness in 

District 3 are strong evidence that District 3 was designed to pack Democrats and waste significant 

numbers of Democratic votes. 

We evaluate other explanations of the district put forth by Defendants and conclude that 

while each of these considerations may have played a role in the shaping of District 3, none was 

the primary force behind its creation. Rather, all other considerations were secondary to the 

predominant aim of packing Democratic voters into a highly saturated new Democratic district, 

thus allowing map drawers to shore up Republican advantage in Districts 12 and 15. 

Defendants argue first that they created the new District 3 because of Columbus’s growing 

population. It is true that Ohio’s population was shifting and that the Columbus area was one of 

the few areas in the State that was experiencing population growth. On the one hand, without 

more, there is nothing inherently suspect or partisan about creating a new congressional district to 

encompass a coherent community of interest (the City of Columbus) in a growing population 

center. On the other hand, population growth in a metropolitan area does not necessitate the 

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drawing of a new district around that area. We conclude, based on the evidence discussed above, 

that the reason the Republican map drawers chose to allocate Columbus’s growing population to 

the new District 3 was because of the partisan advantage that strategy conferred to them. 

Defendants next argue that District 3 “was drawn the way it was” because Speaker 

Batchelder’s “relationship with Congresswoman Beatty and her husband Otto Beatty led him to 

have a priority to create a central district in Franklin County encompassing Columbus and having 

representation specifically for Congressman [sic] Joyce Beatty.”793 We conclude that although 

Republican map drawers drew District 3 with Joyce Beatty (a former member of the Ohio House 

of Representatives who had never served in Congress at the time of the map drawing) in mind, 

supporting her prospects as a candidate was only a secondary consideration. Once Kincaid and 

Whatman decided to draw a new Democratic seat to pack Democratic votes in Franklin County, 

that Democratic seat would have to be filled.794 The fact that Batchelder’s relationship with the 

Beattys eventually led Republican map drawers to draw District 3 with Joyce Beatty in mind does 

not disturb our finding that partisan intent predominated in its creation. 

Defendants also argue that District 3 was drawn to create a minority-opportunity district, 

but we do not find that this aim played a significant role in the creation of District 3. The 

Republican map drawers were simultaneously seriously considering an alternative plan to split 

Franklin County and Columbus into four congressional districts. Had Franklin County been split 

 

793 Dkt. 246 (Judy Trial Test. at 71). 

794 Speaker Batchelder explained that the decision to draw District 3 with Beatty in mind 

arose because “[w]e had a situation here in Franklin County where the Republican Party didn’t 

have a candidate.” Dkt. 230-3 (Batchelder Dep. at 50). He went on: “I wasn’t out campaigning 

for a Democrat for Congress, but I had known her and her husband. My first problem was figuring 

out if they lived in the district, but it was—of course, she has emerged as a leader in the Federal 

House.” Id. at 50–51 (emphasis added). That Speaker Batchelder’s “first problem was figuring 

out if they lived in the district” suggests that District 3 was first created as Whatman and Kincaid’s 

partisan brainchild, and later tweaked to support Beatty’s candidacy. 

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in four ways, the African-American voter population would have been split rather than included 

in a coherent minority-opportunity district. Despite now professing the creation of a minorityopportunity district as a motivation behind District 3’s design, the evidence shows that the map 

drawers seriously considered adopting an alternative plan which would have undermined that very 

goal. We accordingly question the sincerity and veracity of this proffered justification. We further

analyze this justification in conjunction with a similar justification offered for District 11 below, 

after considering each individual district. See infra Section V.A.2.d.iii. We note now, however, 

that a district could still have been drawn with a nearly identical BVAP,795 but with a more regular 

shape, fewer county splits,796 and a considerably less severe partisan bias.797 It was not, and we 

infer from the fact that the chosen design contributes to the partisan bias of the map that its creators 

intended it to do so. 

Defendants argue that national Republicans advanced the idea for the four-way split of 

Columbus and that Ohio Republicans, who had different goals and intentions, firmly rejected that 

idea. That portrayal contradicts the evidence of the collaborative relationship between the national 

and state-level Republicans as well as the content of specific communications discussing the 

reason the four-way split, which would have resulted in 13-3 map, was rejected. It was the desire 

to “put the most number of seats in the safety zone given the political geography of the state, our 

media markets, and how best to allocate caucus resources” that led to the rejection of the four-way 

split idea.798 We therefore conclude that the four-way split was rejected not because it conflicted 

with state-level Republicans’ goals for the map, but rather because the Republican seat advantage 

 

795 Dkt. 241(Cooper Trial Test. at 161). 

796 Trial Ex. P090 (Cooper Decl. at 14, 17). 

797 Trial Ex. P476 (Warshaw 2018 Update at 14–15).

798 Trial Ex. P385 (Congressional Redistricting Talking Points at LWVOH_0052438).

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that it would have conferred would have been too tenuous. The reasons for the rejection of the 

proposed four-way split of Franklin County is additional proof supporting our conclusion that 

partisan intent was the predominant factor in drawing District 3. 

In sum, even accepting all of Defendants’ proffered justifications for drawing District 3, 

we conclude that they were secondary to the map drawers’ predominant intent: conferring 

Republican advantage by packing District 3 and facilitating the cracking of Districts 12 and 15. 

We also conclude that District 3 actually packed Democratic voters. The historical election 

results provide proof of the packing effect—a Democratic candidate has won every election under 

the 2012 map. See Benisek, 348 F. Supp. 3d at 519–20 (finding proof of partisan effect in “the 

fact that the Democratic candidate was elected in the three elections following the 2011 

redistricting”). 

The margin by which that candidate has won shows that Democratic voters are packed into 

the district in a way that renders the district noncompetitive. In 2012, Democratic candidate Joyce 

Beatty was elected to Congress with 68.29% of the vote. In 2014, she won with 64.06% of the 

vote. In 2016, she won with 68.57% of the vote. In 2018, she won with 73.61% of the vote. None 

of these elections were even close to competitive; they were all landslide victories for Beatty. 

Beatty’s consistent election also demonstrates the durability of the 2012 map’s partisan effect in 

District 3. 

Dr. Niven also demonstrated a stark difference in the political leanings of voters within 

Franklin County who were placed in District 3 and voters within Franklin County who were placed 

in Districts 12 and 15. Franklin County voters within District 3 had pro-Democratic partisan index 

score of .3268. Meanwhile, Franklin County voters within Districts 12 and 15 had pro-Republican 

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partisan index scores of 0.5105 and 0.5237, respectively.799 This demonstrates both the intent to 

pack voters and the effect of concentrating the most Democratic sections of Franklin County within 

District 3 while allotting the less Democratic sections to Districts 12 and 15 to facilitate their 

overall Republican compositions. 

Finally, Dr. Cho’s simulated maps also provide proof of the packing effect in District 3. 

Zero percent of Dr. Cho’s simulated maps would place Plaintiff Inskeep, a current resident of 

District 3, in a district where she would have a better chance of electing a Democratic 

representative.800 The map drawers managed to draw a map that maximized the concentration of 

Democratic voters in Plaintiff Inskeep’s area—a highly efficient packing job.

iv. District 4

District 4 encompasses all of Allen, Auglaize, Shelby, Logan, Union, Champaign, 

Crawford, Seneca, and Sandusky Counties. It makes a small intrusion into Mercer County that is 

a part of a three-way split of Mercer County. Additionally, it is involved in the three-way split of 

Lorain County.801 It also includes parts of Marion, Huron, and Erie Counties.

 

799 Trial Ex. P524 (Niven Rep. at 27). 

800 Trial Ex. P087 (Cho Rep. at 15). 

801 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 4. We also conclude that the 

2012 map actually cracked Democratic voters in District 4. First, historical election results support 

this finding as District 4 has been won by a Republican in every election under the 2012 map. See 

Benisek, 348 F. Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic 

candidate was elected in the three elections following the 2011 redistricting”). Second, the wide 

margins by which the Republican candidate won each election under the 2012 map show its 

entrenchment effect, a biproduct of efficient cracking. The map entrenched Republicans in power 

by drawing District 4 as a “safe” Republican seat. None of these elections that have occurred in 

District 4 since the enactment of the 2012 map have been competitive. In 2012, Republican 

Representative Jim Jordan was elected to Congress with 58.35% of the vote. In 2014 he won with 

67.67% of the vote. In 2016 he won with 67.99% of the vote. In 2018 he won with 65.26% of the 

vote. 

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Finally, Dr. Cho’s simulated maps provide further evidence that District 4 was cracked. In 

98.25% of Dr. Cho’s simulated non-partisan maps Plaintiff Libster, who lives in current District 

4, would have had a better chance of electing a Democratic representative.802 This evidence 

supports the inference that the pro-Republican design of the 2012 map had an impact on 

Democratic voters such as Plaintiff Libster.

v. District 5

District 5 encompasses all of Williams, Fulton, Defiance, Henry, Paulding, Putnam, 

Hancock, Van Wert, Hardin, Wyandot, and Wood Counties. It also contains the northern half of 

Mercer County, the western half of Ottawa County, and the western half of Lucas County. It is 

involved in the three-way split of Mercer County. 

The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 5. 

 

802 Trial Ex. P087 (Cho Rep. at 16). 

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Additionally, we conclude that the 2012 map had a partisan effect on District 5 by cracking 

Democratic voters there. Historical election results provide support for this finding. See Benisek, 

348 F. Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic 

candidate was elected in the three elections following the 2011 redistricting”). In 2012, Republican 

Representative Bob Latta was elected to Congress with 57.27% of the vote. In 2014, he won with 

66.46% of the vote. In 2016, he won with 70.90% of the vote. In 2018, he won with 62.26% of 

the vote. None of these elections was competitive because District 5 was designed such that 

Democratic voters would be outnumbered by Republican voters by sufficient margins to ensure 

that a Republican candidate would be elected consistently. The election results are thus evidence 

of the durability of the 2012 map’s partisan effects in District 5 and its tendency to entrench the 

favored party in power. 

Finally, Dr. Cho’s simulated maps provide further proof of the cracking of District 5. In 

95.47% of Dr. Cho’s simulated non-partisan maps, Plaintiff Deitsch, who lives in current District 

5, would have a better chance of electing a Democratic representative. That evidence supports an 

inference that the partisan manner in which District 5 was drawn had a negative effect on the ability 

of voters within the district such as Plaintiff Deitsch to elect Democratic representatives.

vi. District 6

District 6 includes territory along the southeastern border of Ohio. It encompasses all of 

Columbiana, Carroll, Jefferson, Harrison, Guernsey, Belmont, Monroe, Noble, Washington, 

Meigs, Gallia, Jackson, and Lawrence Counties. It also includes an irregularly shaped eastern half 

of Scioto County, the northern half of Muskingum County, the southern half of Tuscarawas 

County, the southern half of Mahoning County, and the southeast corner of Athens County.

803

 

 

803 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 6. 

We also conclude that the 2012 map cracked voters in District 6. The historical electoral 

results since the enactment of the 2012 map provide support for this conclusion. See Benisek, 348 

F. Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic candidate 

was elected in the three elections following the 2011 redistricting”). In 2012, Republican 

Representative Bill Johnson was elected to Congress with 53.25% of the vote. In 2014, he won 

with 58.23% of the vote. In 2016, he won with 70.68% of the vote. In 2018, he won with 69.25% 

of the vote. Only the first of these elections was competitive, likely because Representative 

Johnson’s opponent in that election, Democratic Representative Charlie Wilson, had previously 

served as Congressman for District 6 prior to Representative Johnson’s first congressional win in 

2010. Wilson did not run again after losing the 2012 race, after which Representative Johnson 

faced less competitive Democratic challengers and won with considerable margins. The lack of 

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competition in most of these elections as well as the consistent Republican wins are evidence of 

the durability of the 2012 map’s pro-Republican effect and its tendency to entrench Republicans 

in power.

Finally, Dr. Cho’s simulated maps provide further proof of cracking in District 6. In 100% 

of Dr. Cho’s simulated maps, Plaintiff Boothe, a voter in current District 6, would have a better 

chance of electing a Democratic representative.804 This evidence supports the conclusion that the 

partisan design of the 2012 map had the effect of minimizing Democratic voters’ chances of 

electing Democratic representatives in District 6.

vii. District 7

District 7 encompasses all of Knox, Coshocton, Holmes, and Ashland Counties. It also 

includes the northern portion of Tuscarawas County, an irregularly shaped portion of Stark County, 

an irregularly shaped portion of Richland County, the southern portion of Huron County, and 

irregularly shaped portions of Lorain and Medina Counties. It is involved in the three-way splits 

of Stark County and Lorain County.805 

 

804 Trial Ex. P087 (Cho Rep. at 18). 

805 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 7. 

Additionally, we conclude that the 2012 map cracked Democratic voters in District 7. The 

historical election results provide some evidence of the cracking. See Benisek, 348 F. Supp. 3d at 

519–20 (finding proof of partisan effect in “the fact that the Democratic candidate was elected in 

the three elections following the 2011 redistricting”). In 2012, Republican Representative Bob 

Gibbs was elected to Congress with 56.40% of the vote. In 2014, he won with 100% of the vote. 

In 2016, he won with 64.03% of the vote. In 2018, he won with 58.74% of the vote. The lack of 

competition in these elections and the Republican candidate’s victory in each are also evidence of 

the durability of the partisan effects of the 2012 map on District 7 and the map’s tendency to 

entrench Republican representatives in office. 

Finally, Dr. Cho’s simulated non-partisan maps provide further evidence of the cracking 

of voters in District 7. In 100% of Dr. Cho’s simulated maps Plaintiff Griffiths, who lives in 

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current District 7, would have had a better chance of electing a Democratic representative.806 This 

evidence supports the conclusion that the partisan design of the 2012 map diminished Democratic 

voters’ opportunity of electing a Democratic representative in that district. 

viii. District 8

District 8 rests along the southwestern border of Ohio, with a portion jutting into the heart 

of the State. It includes the entireties of Darke, Miami, Clark, Preble, and Butler Counties and 

includes the southern half of Mercer County. It is involved in the three-way split of Mercer 

County.807 

The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 8. 

 

806 Trial Ex. P087 (Cho Rep. at 19). 

807 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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We also conclude that the 2012 map cracked Democratic voters in District 8. Historical 

election results under the 2012 map provide some proof of this cracking. See Benisek, 348 F. 

Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic candidate was 

elected in the three elections following the 2011 redistricting”). In 2012, Republican 

Representative John Boehner was elected to Congress with 99.88% of the vote. In 2014, he won 

with 67.19% of the vote. In 2016, Republican Warren Davidson succeeded Representative 

Boehner as the Republican congressional candidate in District 8. He won the election with 68.76% 

of the vote. In 2018, Representative Davidson won with 66.58% of the vote. None of these 

elections were even close to competitive. We find the lack of competition and the consistent 

election of Republican candidates to be evidence of the durability of the 2012 map’s partisan 

effects in this district and the map’s tendency to entrench Republican representatives in office by 

constructing “safe” districts. 

Finally, Dr. Cho’s simulated non-partisan maps provide further evidence of the cracking 

of Democratic voters in District 8. In 100% of Dr. Cho’s simulated maps, Plaintiff Nadler, who 

resides in the current District 8, would have had a better opportunity to elect a Democratic 

representative.808 This supports the conclusion that the partisan design of the 2012 map impacted 

the ability of Democratic voters in District 8 to elect their candidate of choice.

ix. District 9

District 9 is a thin strip along the southern coast of Lake Erie, stretching from Toledo in 

Lucas County in the west to Cleveland in Cuyahoga County in the east. Its narrow, long footprint 

has earned it the nickname “the Snake on the Lake.”809 The district includes portions of Lucas, 

 

808 Trial Ex. P087 (Cho Rep. at 20). 

809 Dkt. 241 (Cooper Trial Test. at 145–46). 

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Ottawa, Erie, Lorain, and Cuyahoga Counties; it does not include a single county in its entirety. It 

is involved in the four-way split of Cuyahoga County and the three-way split of Lorain County.810 

We conclude that the map drawers intentionally packed Democratic voters into District 9, 

splitting up communities of interest along the way. We agree with Mr. Cooper’s analysis that 

District 9 severed communities of interest.811 Despite all the territory in District 9 being adjacent 

to Lake Erie, in order to create District 9 “you’ve got to split about five counties which in and of 

themselves are communities of interest.”812 Mr. Cooper’s hypothetical maps demonstrate that it 

is possible to draw a far more coherent District 9 that respects county boundaries while still 

complying with all traditional redistricting principles and pairing the same amount of incumbents 

from the same political parties as the 2012 map did.813 The presence of such an alternative and 

the map drawers’ decision instead to split counties and draw a bizarrely shaped district support our 

conclusion that partisan intent predominated in drawing of District 9. 

In concluding that the predominant intent behind the design of District 9 was partisan 

packing of Democratic voters, we reject Defendants’ argument that bipartisan incumbent 

 

810 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

811 Dkt. 241 (Cooper Trial Test. at 149). 

812 Id.

813 Trial Ex. P093 (Cooper Second Suppl. Decl. at 4–19). 

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protection efforts and Democratic desires dictated its shape. There is no admissible record 

evidence suggesting that Democratic leaders desired the pairing of Representatives Kaptur and 

Kucinich. Representative Kaptur testified that she did not discover that she was being paired with 

Representative Kucinich until very close to the legislative introduction of the bill. She learned of 

the map’s design from a newspaper and was “astonished” by the shape of her new district.814 She 

did not request to be paired with Representative Kucinich and, in fact, was outraged at the prospect 

because she believed that the new district “hack[ed] towns apart” and showed “no respect for 

counties” and “no respect for communities.”815 Kaptur’s involvement in shaping the district began 

only after the Ohio General Assembly passed the initial H.B. 319. She then attempted to negotiate 

so that the Republican map drawers would make some alterations to the district in which she was 

paired with Kucinich. The heart of the plan for District 9, however, remained the same. 

Representative Kaptur’s ability to secure minor concessions following the passage of H.B. 319 

does not amount to her designing the district and does not overcome the partisan intent that 

motivated the drawing of District 9 in the first place. We therefore reject as unsupported by 

admissible evidence the Defendants’ contention that District 9 was the result of the Democratic 

desire that Representatives Kaptur and Kucinich be paired. 

To the extent that Defendants claim that the shape of District 9 was preordained by the 

cluster of Democratic incumbent residences in northern Ohio, their argument is undermined by the 

evidence. Mr. Cooper, a redistricting expert, stated that “it made no sense to create a Snake on the 

Lake just to pair [Kaptur and Kucinich]. It just baffles me as to why that was done.”816 Mr. Cooper 

demonstrated that this pairing was unnecessary by drawing two hypothetical maps that could have 

 

814 Dkt. 249 (Kaptur Trial Test. at 70). 

815 Id. at 71–72.

816 Dkt. 241 (Cooper Trial Test. at 176). 

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been drawn in 2011 that avoided drawing the elongated District 9 either by pairing Representatives 

Kucinich and Fudge or pairing Kucinich and Sutton, all while honoring the other traditional 

districting principles.817 Both of these hypothetical maps would actually have facilitated the 

avoidance of one incumbent pairing because they leave a version of District 10 in western 

Cuyahoga County and Lorain County with no Democratic incumbent—Representative Kucinich 

could have avoided his pairing with either Representative Sutton or Representative Fudge by 

running in that district instead.818 This argument therefore does not disturb our conclusion that the 

predominant intent was securing Republican partisan advantage in the creation of the long, snaking 

District 9.

We also conclude that the 2012 map had the effect of packing Democratic voters in District 

9. Historical election results support this conclusion. See Benisek, 348 F. Supp. 3d at 519–20 

(finding proof of partisan effect in “the fact that the Democratic candidate was elected in the three 

elections following the 2011 redistricting”). In 2012, Democratic Representative Marcy Kaptur 

was elected to Congress with 73.04% of the vote. In 2014, she won with 67.74% of the vote. In 

2016, she won with 68.69% of the vote. In 2018, she won with 67.79% of the vote. None of these 

elections were even close to competitive; Representative Kaptur consistently won with 15–20% of 

the vote more than necessary to carry the district. The extreme lack of competition and the 

consistent election of a Democratic representative in District 9 by large margins are evidence of 

the durability of the 2012 map’s partisan effects. 

Finally, Dr. Cho’s simulated non-partisan maps are further proof of this packing in District 

9. Only 15.91% of the simulated maps would have given Plaintiff Walker a better chance of 

 

817 Trial Ex. P093 (Cooper Second Suppl. Decl. at 4–18). 

818 Id. at 5–6, 13.

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electing a Democratic representative. In 13.55% of the simulated maps, Plaintiff Rader would 

have had a better opportunity to elect a Democratic representative.819 Although these figures are 

not quite as extreme as those in other districts, they are still proof that the partisan design of the 

2012 map packed Democratic voters into District 9, targeting them because of their political 

preferences and artificially diluting the power of their votes.

x. District 10

District 10 includes all of Montgomery and Greene Counties and the northern half of 

Fayette County.820 

The overall evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 10. 

We also conclude that the 2012 map cracked Democratic voters in District 10. Historical 

election results provide some proof of this cracking. See Benisek, 348 F. Supp. 3d at 519–20 

(finding proof of partisan effect in “the fact that the Democratic candidate was elected in the three 

 

819 Trial Ex. P087 (Cho Rep. at 21–22).

820 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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elections following the 2011 redistricting”). In 2012, Republican Representative Mike Turner was 

elected to Congress with 59.54% of the vote. In 2014, he won with 65.18% of the vote. In 2016,

he won with 64.09% of the vote. In 2018, he won with 55.92% of the vote. None of these elections, 

even that occurring during the 2018 Democratic swing year, were competitive. We consider the 

consistent election of the Republican candidate by large margins to be evidence of the durability 

of the 2012 map’s partisan effects in District 10. It is also evidence that the map entrenches a 

Republican representative in office by creating a “safe” Republican District 10. 

Finally, Dr. Cho’s simulated non-partisan maps provide further proof of the cracking in 

District 10. In 99.75% of Dr. Cho’s simulated maps, Plaintiff Megnin, who lives in current District 

10, would have had a better opportunity of electing a Democratic representative.821 This figure 

supports the conclusion that the partisan design of District 10 negatively impacted Megnin’s ability 

to elect a Democratic representative.

xi. District 11

District 11 includes highly irregularly shaped portions of Cuyahoga County and Summit 

County. It is involved in the four-way split of Summit County and the four-way split of Cuyahoga 

County.822 

 

821 Trial Ex. P087 (Cho Rep. at 23).

822 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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We conclude that District 11 was intentionally drawn both to pack voters into the district 

and to siphon Democratic voters off from the new District 16, in which Republican incumbent 

Representative Renacci and Democratic incumbent Representative Sutton were paired. District 

11 was designed to absorb Democratic voters who were formerly Representative Sutton’s 

constituents so that the new District 16 could be weighted to produce the victory of Republican 

Representative Renacci. See Benson, 2019 WL 1856625, at *57 n.39.

The decision to depart from District 11’s historical territory and to drop down into Summit 

County and pick up additional Democratic voters from the City of Akron under the 2012 map is 

strong proof of the intent to pack District 11 and facilitate the cracking of District 16.823 The 

historical boundaries of District 11, contained entirely within Cuyahoga County, make the decision 

to extend the district into Summit County suspect. Mr. Cooper’s hypothetical plans contain 

 

823 Dkt. 241 (Cooper Trial Test. at 155). 

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District 11 entirely within Cuyahoga, in line with its historical location, while respecting other 

traditional redistricting concerns.824 The fact that it was possible to draw District 11 fully within 

Cuyahoga is some evidence that the jaunt downward into Summit County was drawn for partisan 

reasons. We conclude that the predominant reason that District 11 ventured for the first time out 

of Cuyahoga County in the 2012 map was as a result of the map drawers’ partisan intent to pack 

voters in District 11 and crack voters in District 16. 

The historical election results in the years that followed the redistricting are proof of the 

map drawers’ intent. Representative Fudge in the packed District 11 has won each election by 

huge margins. Her lowest portion of the vote in an election since the redistricting has been 79.45%. 

Meanwhile, in District 16, incumbent Republican Representative Renacci narrowly defeated 

incumbent Democratic Representative Sutton in 2012. Once he had vanquished the opposing 

incumbent, Renacci proceeded to win his successive elections by large margins. See infra Section 

V.A.2.c.xvi. (discussing District 16). It was no coincidence that District 16 went Republican; the 

packing of District 11 facilitated the result. The day after the introduction of H.B. 319 in 

committee, Mann sent an email to Renacci informing him that, under the proposed bill, 16.98% of 

Representative Sutton’s former district would be included within the new District 11, while only 

25.79% of her former district would carry over into the new District 16, in which she was expected 

to run.825 This evidence supports our conclusion that partisan intent predominated in the drawing 

of District 11. 

In concluding the intent to pack District 11 to dilute Democratic voting power 

predominated in crafting District 11, we reject or find secondary several alternative explanations 

 

824 Trial Ex. P093 (Cooper Second Suppl. Decl. at 4, 12). 

825 Trial Ex. P130 (Sept. 14, 2011 email at LWVOH_00018321). 

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for its shape. First, Defendants claim that District 11 was drawn by Republican map drawers with 

the intention of creating a majority-minority district. They argue that even if their implementation 

of this goal was flawed, so long as the map drawers honestly believed that the way in which they 

drew the district would aid minority electoral opportunity, they cannot be found at fault. See Dkt. 

252 (Defs.’ & Intervenors’ Post-Trial Br. at 21–22) (citing employment discrimination cases). 

There was no proof that such an extension of the District was made for any legitimate reason, and 

we reject Defendants’ assertion that uninformed guesswork about VRA compliance is sufficient 

to justify the packing of African-American voters into a Democratic district. See infra Section 

V.A.2.d.iii. (discussing compliance with the VRA). 

Second, no admissible evidence supports Defendants’ assertion that Democratic leaders in 

the African-American community approved of and desired District 11’s current shape. Defendants 

offered Judy, DiRossi, and Speaker Batchelder’s testimony about conversations that allegedly 

occurred with African-American Democratic leaders solely for the effect that those conversations 

purportedly had on the map drawers. However, in the next breath, they offer the testimony about 

those conversations for their truth—to prove their assertion that the design of District 11 and its 

concentration of African-American voters and Democratic voters was a shared bipartisan goal. 

But this assertion relies on the truth of out-of-court statements of since deceased Democrats from 

Northern Ohio. The hearsay rules prevent us from taking Judy, DiRossi, and Speaker Batchelder’s 

word for what those individuals actually wanted. 

Third, we conclude that any input that Representative Fudge herself had on the shape of 

her district occurred well after the unveiling and passage of H.B. 319, in the scramble to secure 

Democratic support for a new bill that occurred in the shadow of the referendum. This input 

amounted to securing small tweaks and concessions, but the overarching contours of the map were 

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already fixed and did not change. Fudge stated that she had no input in the drawing of her district’s 

lines prior to the legislative unveiling and that she was quite displeased with the shape of the 

district and the way that it reached down into Summit County.826 

Finally, we do not find that Defendants’ argument that declining population in Northeastern 

Ohio necessitated stretching District 11 southward adequately explains the shape of District 11. 

There were myriad ways that these population constraints could have been handled. It is no 

coincidence that the way chosen by Republican map drawers resulted in packing Democratic 

voters in District 11 and cracking Democratic support for Representative Sutton in the new District 

16. Mr. Cooper’s alternative hypothetical maps also dealt with the population shifts in Ohio but 

managed to produce two different equipopulous versions of District 11 that do not extend the 

district south into Summit County.827 Having considered Defendants’ alternative explanations for 

the shape of District 11, we conclude that the predominant intent that motivated the drawing of the 

district in its current form was the desire to pack Democratic voters in District 11 and crack 

Democratic voters elsewhere. 

 

826 This contradicts the testimony of DiRossi, who stated that prior to the introduction of 

H.B. 319 “it had been relayed to [him] by a number of people that she did not want to be paired 

with Dennis Kucinich in a district” and therefore that she elected to have District 11 drawn 

dropping south into Summit County rather than be paired against Representative Kucinich in a 

district entirely contained within Cuyahoga County. Dkt. 230-12 (DiRossi Dep. at 186–87). 

DiRossi, however, admitted that he never spoke to Congresswoman Fudge himself. Explaining 

the source of this information, he stated: “I was working with Bob Bennett and I know that other 

members, I believe Speaker Batchelder—or I know Speaker Batchelder was talking to a number 

of folks and contacts that he had in Northern Ohio about what Congresswoman Fudge wanted.” 

Id. at 187. To the extent that Defendants offer DiRossi’s testimony about what Congresswoman 

Fudge wanted for the truth—to prove that she actually desired that District 11 drop down into 

Summit County or that she did not want to be paired with Representative Kucinich—we find that 

it is inadmissible multi-layer hearsay. 

827 Trial Ex. P093 (Cooper Second Suppl. Del. at 4, 12). 

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We also conclude that the 2012 map had the effect of packing Democratic voters into 

District 11 in a dramatic fashion. Historical election results provide some proof of this packing. 

See Benisek, 348 F. Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the 

Democratic candidate was elected in the three elections following the 2011 redistricting”). In 

2012, Democratic Representative Marcia Fudge was elected to Congress with 100% of the vote. 

In 2014, she won with 79.45% of the vote. In 2016, she won with 80.25% of the vote. In 2018,

she won with 82.24% of the vote. None of these elections were even close to competitive—

Representative Fudge, when challenged, consistently won with around 30% more of the vote than 

would have been actually needed to carry the district. The extreme margins by which Fudge won 

her seat provide some evidence of packing in District 11. 

Dr. Niven’s report helps illustrate why the addition of portions of Summit County to 

District 11 facilitated its packing. In the 2008 election 75.70% of the voters in Summit County 

who were included in District 11 voted for President Obama.828 This means that the sections of 

Summit County that the map drawers chose to include in District 11 were overwhelmingly 

Democratic. Allotting these Democratic Summit County voters to District 11, which was already 

destined to deliver a Democratic representative, meant that there were fewer Democratic voters in 

the area of Summit County that could potentially be assigned to neighboring Districts such as 

District 16, which were intended to deliver Republican victories. The subsequent election results, 

in which Representative Fudge repeatedly won District 11 by a landslide and Republican 

candidates consistently won District 16, are clear evidence of a packing effect in District 11. 

Finally, Dr. Cho’s simulated maps provide further evidence of packing in District 11. In 

0% of the simulated non-partisan maps would Plaintiff Harris, who lives in current District 11, 

 

828 Trial Ex. P524 (Niven Rep. at 31). 

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have a better chance of electing a Democratic candidate.829 The fact that the pro-Democratic 

outcome in District 11 is so extreme compared to the outcomes in a non-partisan map supports the 

conclusion that the partisan design of the 2012 map impacted the composition of District 11, 

packing in Democratic voters and thereby diluting their votes.

xii. District 12

District 12 includes all of Morrow, Delaware, and Licking Counties. It also includes the 

southern half of Muskingum County, the southeastern corner of Marion County, and the southern 

half of Richland County. Finally, District 12 includes irregularly shaped and noncontiguous 

portions of Franklin County, which jut into the City of Columbus.830 It is involved in the threeway split of Franklin County and the City of Columbus.831

 

 

829 Trial Ex. P087 (Cho Rep. at 24). 

830 Dkt. 241 (Cooper Trial Test. at 146). 

831 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 12. Additionally, the evidence 

of partisan intent in creating the “Franklin County Sinkhole” in District 3 is also evidence of 

partisan intent to crack District 12 because District 12 benefitted from the high concentration of 

Democratic voters in District 3. See Benson, 2019 WL 1856625, at *57 n.39. Kincaid’s statements 

immediately after the redistricting are further evidence of partisan intent in drawing District 12.

Kincaid expressed his belief that, under the 2012 map, District 12 had moved nine PVI points in 

favor of Republicans and had thus been taken “out of play.”832 Designing a district to take it “out 

of play,” resulting in the consistent election of a member of one party rather than true competition 

between the parties, shows partisan intent. 

We also conclude that the 2012 map had the effect of cracking Democratic voters in District 

12. Historical election results under the 2012 map support this conclusion. See Benisek, 348 F. 

Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic candidate was 

elected in the three elections following the 2011 redistricting”). In 2012, Republican 

Representative Pat Tiberi was elected to Congress with 63.47% of the vote. In 2014, he won with 

68.11% of the vote. In 2016, he won with 66.55% of the vote. In 2018, Troy Balderson replaced 

Representative Tiberi as the Republican candidate. He won the election with 51.42% of the vote, 

defeating Democratic candidate Danny O’Connor. Only one of these elections in District 12 was 

competitive—the last. District 12 had been drawn to be sufficiently pro-Republican, however, 

such that Balderson, was able to defeat O’Connor even in a Democratic swing year.833 This result 

 

832 Trial Ex. P310 (NRCC Presentation at 5); Dkt. 230-27 (Kincaid Dep. at 115–16). 

833 Trial Ex. P426 (Cho Rep. at 6). 

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is particularly impressive considering the fact that O’Connor spent $8,452,028.09 on his campaign 

while Balderson spent only $2,496,185.71.834 

Dr. Niven’s report provides further proof that the 2012 map shored up District 12 as a 

Republican seat. Under the pre-redistricting map, District 12 supported President Obama in the 

2008 election with 55.03% of the vote. Had the District taken the form that it does under the 

current map, President Obama would have lost the district with only 45.43% of the vote.835 The 

increased Republican leaning of the new District 12 is evidence of the effect of the cracking of 

Democratic voters in that district. See Benisek, 348 F. Supp. 3d at 519 (finding partisan effect 

where the design of the district resulted in a large swing in PVI). 

Finally, Dr. Cho’s simulated maps also lend support to the conclusion that Democratic 

voters in District 12 were cracked. In 100% of Dr. Cho’s simulated non-partisan maps, Plaintiff 

Dagres, who resides in current District 12, would have a better chance of electing a Democratic 

representative.836 This fact supports the conclusion that the pro-Republican cracking of District 

12 diminished the ability of Democratic voters in that district to elect their candidate of choice.

xiii. District 13

District 13 includes the southern half of Trumbull County, the northern half of Mahoning 

County, and highly irregularly shaped portions of Portage and Summit Counties. In Summit 

County, the district includes much of the City of Akron. District 13 does not encompass the 

entirety of any one County. It is involved in the four-way split of Summit County and the threeway splits of Stark County and Portage County. 

 

834 Id.

835 Trial Ex. P524 (Niven Rep. at 25). 

836 Trial Ex. P087 (Cho Rep. at 25). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 13. Further, the strange shape 

of District 13 under the 2012 map and the manner in which it splits many counties and the City of 

Akron support an inference of partisan intent.837 See Benson, 2019 WL 1856625, at *57 n.39.

We also conclude that the 2012 map had the effect of packing Democratic voters into 

District 13. Historical election results provide some evidence of the packing. See Benisek, 348 F. 

Supp. 3d at 519–20 (finding proof of partisan effect in “the fact that the Democratic candidate was 

elected in the three elections following the 2011 redistricting”). In 2012, Democratic 

Representative Tim Ryan was elected to Congress with 72.77% of the vote. In 2014, he won with 

68.49% of the vote. In 2016, he won with 67.73% of the vote. In 2018, he won with 60.99% of 

the vote. None of these elections were even close to competitive; the huge margins are some 

evidence of packing. 

 

837 See Dkt. 241 (Cooper Trial Test. at 155–56). 

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Finally, Dr. Cho’s simulated maps provide additional evidence of the packing of District 

13. In 0% of Dr. Cho’s simulated non-partisan maps would Plaintiff Myer, who lives in current 

District 13, have a better chance of electing a Democratic representative.838 The fact that the proDemocratic leaning of District 13 is so extreme compared to the simulated maps supports the 

conclusion that the current map has a partisan effect that packs Democratic voters into the district 

and thereby dilutes the power of their votes for Democratic candidates.

xiv. District 14

District 14 lies in the northeastern corner of Ohio. It includes the entirety of Ashtabula, 

Lake, and Geauga Counties. It also includes the northern portions of Trumbull and Portage 

Counties, the northeastern corner of Summit County, and an irregularly shaped section jutting into 

Cuyahoga County. It is involved in the three-way split of Portage County and the four-way splits 

of Summit and Cuyahoga Counties.839 

 

838 Trial Ex. P087 (Cho Rep. at 26). 

839 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 14. 

We also conclude that the 2012 map had the effect of cracking Democratic voters in District 

14. Historical election results provide some proof of the cracking. See Benisek, 348 F. Supp. 3d 

at 519–20 (finding proof of partisan effect in “the fact that the Democratic candidate was elected 

in the three elections following the 2011 redistricting”). In 2012, Republican Representative David 

Joyce was elected to Congress with 54.03% of the vote. In 2014, he won with 63.26% of the vote. 

In 2016, he won with 62.58% of the vote. In 2018, he won with 55.25% of the vote. Only one of 

these elections was competitive—the first, which was Joyce’s first congressional campaign. The 

consistent election of the Republican candidate in District 14 is evidence of the durability of the 

2012 map’s partisan effects and its entrenchment of Republican representatives in office. 

Finally, Dr. Cho’s simulated maps provide further evidence that Democratic voters were 

cracked in District 14. In 100% of her simulated non-partisan maps, Plaintiff Hutton, who lives in 

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current District 14, would have a better chance to elect a Democratic representative.840 The fact 

that the current District 14 is extremely pro-Republican compared to the non-partisan simulated 

maps supports the conclusion that it had the effect of cracking Democratic voters and weakening 

their ability to elect Democratic candidates in the district.

xv. District 15

District 15 includes all of Morgan, Perry, Hocking, Vinton, Fairfield, Pickaway, Madison, 

and Clinton Counties, as well as the southern half of Fayette County, the northern half of Ross 

County, and most of Athens County. It also includes a highly irregularly-shaped portion of 

Franklin County, part of which includes pieces of the City of Columbus.841 It is involved in the 

three-way splits of Franklin County and the City of Columbus.842 

The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of partisan intent to crack District 15. Additionally, the evidence of partisan 

 

840 Trial Ex. P087 (Cho Rep. at 27). 

841 Dkt. 241 (Cooper Trial Test. at 146). 

842 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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intent specific to District 3 is also suggestive of partisan intent in the creation of District 15. 

District 3 was designed to efficiently pack voters to enable the reliable election of Republican 

representatives in Districts 12 and 15. See Benson, 2019 WL 1856625, at *57 n.39. Finally, 

Kincaid’s comments about the 2012 map following its enactment are further proof of partisan 

intent in drawing District 15. Kincaid expressed his belief that District 15 had moved seven PVI 

points in favor of Republicans and had thus been taken “out of play.”843 These comments are 

evidence of the map drawers’ intent to crack Democratic voters in District 15 by drawing the 

District to lean so strongly Republican that Democratic voters would have little chance of electing 

a Democratic candidate to represent them. 

We also conclude that the 2012 map had the effect of cracking Democratic voters in District 

15. Historical election results provide some proof of their cracking. See Benisek, 348 F. Supp. 3d 

at 519–20 (finding proof of partisan effect in “the fact that the Democratic candidate was elected 

in the three elections following the 2011 redistricting”). In 2012, Republican Representative Steve 

Stivers was elected to Congress with 61.56% of the vote. In 2014, he won with 66.02% of the 

vote. In 2016, he won with 66.16% of the vote. In 2018, he won with 58.33% of the vote. None 

of these elections were competitive. The consistent election of the Republican candidate in District 

15 in non-competitive elections is evidence of the durability of the 2012 map’s pro-Republican 

effects. It is also evidence of the 2012 map’s entrenchment of Republican representatives in office 

by creating a “safe” pro-Republican District 15 by cracking Democratic voters.

This consistent, strong pro-Republican lean of the district contrasts with its preredistricting leanings, evidence that the 2012 map altered the configuration of District 15, making 

 

843 Trial Ex. P310 (NRCC Presentation at 5); Dkt. 230-27 (Kincaid Dep. at 115–16); see 

also Trial Ex. P556 (Stivers Email at STIVERS_007519); Dkt. 230-46 (Stivers Dep. at 77–78); 

supra Section I.A.8. 

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it more pro-Republican. Dr. Niven’s report demonstrates that President Obama won the 2008 

election in District 15 with 54.61% of the vote. Had that election occurred with the new 

composition of District 15, however, President Obama would have lost the district with only 

46.85% of the vote.844 The pieces of Franklin County that map drawers included in the new 

District 15 were considerably more pro-Republican than the pieces of those counties that were 

allocated to other districts in the scheme.845 Democratic voters in Franklin County appear to have 

been specifically targeted to be removed from District 15 while Republican voters in Franklin 

County were intentionally added to District 15.846 This allowed District 15 to shift to be more 

solidly pro-Republican with the help of a packed District 3. See Benisek, 348 F. Supp. 3d at 519 

(finding partisan effect where the design of the district resulted in a large swing in PVI). 

Finally, Dr. Cho’s simulated maps provide further proof of the cracking effect. In 79.28% 

of Dr. Cho’s non-partisan simulated maps, Plaintiff Thobaben, who lives in current District 15, 

would have a better chance of electing a Democratic representative. This supports the conclusion 

that the partisan design of the 2012 map resulted in her decreased ability to elect a Democratic 

candidate.

xvi. District 16

District 16 includes all of Wayne County as well as irregularly shaped portions of

Cuyahoga, Medina, Summit, and Portage Counties. It is involved in the four-way split of Summit 

County, the four-way split of Cuyahoga County, and the three-way splits of Stark County and 

Portage County.847 

 

844 Trial Ex. P524 (Niven Rep. at 22). 

845 Id. at 22–23. 

846 Id. at 24. 

847 Trial Ex. P090 (Cooper Decl. at 12, fig. 5). 

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The statewide evidence of partisan intent in the map-drawing process, discussed above, 

supports a finding of predominant partisan intent to crack District 16. Furthermore, District 16 

intentionally cracked Democratic voters from Akron in order to enable Republican incumbent 

Representative Renacci to win his pairing against Democratic incumbent Representative Sutton in 

the 2012 election. See Benson, 2019 WL 1856625, at *57 n.39.

We conclude that the 2012 map had the effect of cracking Democratic voters in District 

16. Historical election results support this conclusion. In 2012, Republican Representative Jim 

Renacci defeated Democratic Representative Betty Sutton, winning a close race with 52.05% of 

the vote. In 2014, he won with 63.74% of the vote. In 2016, he won with 65.33% of the vote. In 

2018, Anthony Gonzalez was the Republican candidate for Congress in District 16; he won with 

56.73% of the vote. The only competitive election in this set of four elections following the 2012 

redistricting was the first—in which two incumbents were paired. The uncompetitive elections 

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and consistent election of the Republican candidate are also evidence of the durability of the 2012 

map’s partisan effects and its effectiveness in entrenching Republican representatives in office. 

Furthermore, the Republican map drawers succeeded in their efforts to “eliminat[e] Ms. 

Sutton’s seat”848 by drawing a new Republican-leaning District 16 that they understood to include 

only 25.79% of her former district.849 The new District 16 then elected Representative Renacci by 

significant margins in the two elections that followed and was sufficiently pro-Republican to elect 

non-incumbent Gonzalez in a Democratic swing year, albeit by a much tighter margin. 

Finally, Dr. Cho’s simulated maps provide additional proof that the design of the 2012 map 

cracked Democratic voters in District 16. In 100% of Dr. Cho’s simulated non-partisan maps 

Plaintiff Rubin, who lives in current District 16, would have a better opportunity to elect a 

Democratic representative.850 The pro-Republican skew of the current District 16 compared to the 

non-partisan simulated maps supports the conclusion that the 2012 map design cracked 

Democratic voters in District 16, negatively impacting their ability to elect Democratic 

representatives.

d. Justification

Defendants tell an entirely different tale of the redistricting process, offering several 

justifications for the 2012 map, none of which includes the intent to lock in Republican advantage 

or dilute the voting power of Democratic voters through packing and cracking. Defendants argue 

that incumbent protection, bipartisan negotiations and input, Voting Rights Act compliance and 

 

848 Trial Ex. P414 (State-by-State Redistricting Summary at REV_00000001); Dkt. 230-28 

(Kincaid Dep. at 519). 

849 Trial Ex. P130 (Sept. 14, 2011 email at LWVOH_00018321).

850 Trial Ex. P087 (Cho Rep. at 29). 

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advancing minority representation, and natural political geography explain the design and partisan 

effects of the 2012 map. We address and reject each justification in turn.

i. Incumbent protection and Gaffney v. Cummings

Defendants’ arguments on their incumbent-protection and “bipartisanship” justifications 

seem to blend together at times. They contend that these arguments “find[] dispositive support in 

Gaffney v. Cummings, 412 U.S. 735 (1973).” See Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. 

at 1). As a legal matter, we disagree. Factually, as we will explain, the “bipartisanship” 

justification simply does not hold up.

Because Defendants rely so heavily on Gaffney, we start with what that case actually 

concerned—a so-called bipartisan gerrymander, or “sweetheart gerrymander.” See Samuel 

Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 628 (2002). In 

Gaffney, “[r]ather than focusing on party membership in the respective districts, the [State 

Apportionment] Board took into account the party voting results in the preceding three statewide 

elections, and, on that basis, created what was thought to be a proportionate number of Republican 

and Democratic legislative seats.” 412 U.S. at 738. Put another way, the State “attempted to 

reflect the relative strength of the parties in locating and defining election districts.” Id. at 752. 

Therefore, although the Constitution may not require proportional representation, the proportional 

representation of political parties is a permissible State interest. See Vieth, 541 U.S. at 338 

(Stevens, J., dissenting); Gaffney, 412 U.S. at 754 (“[The] judicial interest should be at its lowest 

ebb when a State purports fairly to allocate political power to the parties in accordance with their 

voting strength and, within quite tolerable limits, succeeds in doing so.”). 

The Supreme Court, however, also reasoned that “[w]hat is done . . . to achieve political 

ends or allocate political power[] is not wholly exempt from judicial scrutiny under the Fourteenth 

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Amendment.” Gaffney, 412 U.S. at 754. Accordingly, we will examine whether, in fact, the State 

fairly “allocate[d] political power to the parties in accordance with their voting strength . . . .” It 

is clear that the State of Ohio did not do so.

To be sure, in 2010 the Republicans experienced a wave election and gained a thirteen-tofive advantage in the Ohio congressional delegation, but Democratic candidates still received 

approximately 42% of the vote. That was the Democrats’ worst year in congressional elections in 

the prior decade. Even taking note of the strong Republican performance that year, the argument 

that allocating 25% of the congressional seats to Democrats fairly allocates political power in 

accordance with that Party’s voting strength falls apart. Thus, Gaffney is far from dispositive, and 

we find it completely distinguishable from this case.

In fact, even despite their argument that Gaffney is dispositive, Defendants also admit that 

the State “focused on preserving the status quo incumbency-constituent relationship rather than on 

creating the ‘proportional representation’ sought in Gaffney.” See Dkt. 252 (Defs.’ & Intervenors’ 

Post-Trial Br. at 6). First, this argument seems to contradict their initial argument about Gaffney. 

Second, Defendants basically admit that their goal was a 12-4 map. See id. at 8 (“Because of the 

pre-reapportionment 13–5 partisan split, divvying up the lost seats [after the census] fairly meant 

a 12–4 split.”). They say that “Gaffney ratifies the legislature’s choice . . . .” Id. at 7. For the 

reasons articulated above, we disagree. 

At bottom, Defendants’ arguments on this score are aimed at trying to justify entrenchment 

and incumbent insulation from political challenges, not incumbent protection as understood by 

Supreme Court precedent. See infra (collecting cases in which the Supreme Court has been 

skeptical of the argument of preserving the status quo for incumbents). Finally, we note that this 

present line of defense—that the primary goal of the map was to preserve the status quo for all 

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incumbents—contradicts statements made by the redistricting plan’s sponsor in the Ohio State 

House. Representative Huffman clearly described incumbent protection as “a subservient [goal] 

to the other ones that [he] listed” and further explained that, “[n]obody has a district. . . . There’s 

nobody that owns a piece of land in Congress. People elect them.”851 See Benisek, 348 F. Supp. 

3d at 518 (considering notes prepared for the Senate President’s “remarks to the State House and 

Senate Democratic Caucuses about the redistricting plan” as evidence establishing intent); see also

Arlington Heights, 429 U.S. at 268 (“The legislative or administrative history may be highly 

relevant, especially where there are contemporary statements by members of the decision-making 

body, minutes of its meetings, or reports.”).

Legal arguments about Gaffney aside, by Defendants’ account, protecting incumbents was 

the sine qua non of the map-drawing process, and the incumbent-protection concern was bipartisan 

in nature. Defendants’ argument goes like this: the 2010 congressional election left Ohio with 13 

Republican representatives and 5 Democratic Representatives. The decision to pair one set of 

Republican incumbents and one set of Democratic incumbents, a politically fair decision, would 

lead to a 12-4 map. The enacted map is a 12-4 map; ergo the redistricting process was fair. But 

this argument obscures complexities and nuances that significantly undermine Defendants’ version 

of events. 

First, to say that the redistricting process simply transformed a 13-5 map into a 12-4 map 

ignores two key considerations, which are intimately related with one another: competitiveness 

and responsiveness. Yes, the pre-redistricting map was a 13-5 map in that 13 Republican 

representatives and 5 Democratic representatives had been elected under it in 2010. But it had not 

consistently been a 13-5 map over the course of its life. It contained competitive districts and was 

 

851 Trial Ex. J01 (House Session, Sept. 15, 2011 at 19, 21) (statement of Rep. Huffman).

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responsive to shifts in voter preference and turnout over the years. In contrast, the 12-4 map 

created in the redistricting process is a 12-4 map through and through. It minimized competitive 

districts and responsiveness to changes in voter preferences. It is no coincidence that 

correspondence between the insiders crafting the map refer to “lock[ing] in” the 12-4 division and 

ensuring “safe seats.” See Benisek, 348 F. Supp. 3d at 518 (finding unconstitutional partisan 

gerrymandering where “Democratic officials . . . worked to craft a map that would specifically 

transform the Sixth District into one that would predictably elect a Democrat by removing 

Republicans from the District and adding Democrats in their place”). The redistricting meant that 

the parties suffered an equal reduction in seats between the 2010 election and the 2012 election, 

as Defendants emphasize. However, Defendants minimize the fact that the redistricting also 

effectively guaranteed that the most seats that Democratic voters could secure for their party in 

any future election under that map was four, and the fewest seats that Republican voters could 

secure for their party in any future election was twelve.

Second, the map drawers paired more sets of incumbents than Ohio’s population stagnation 

required.852 Not only did the map drawers pair a set of Republican incumbents and a set of 

Democratic incumbents, they also paired an extra set: one Democratic incumbent, Betty Sutton, 

against one Republican incumbent, Jim Renacci. They then drew the district in which Sutton and 

Renacci were paired, the new District 16, to include far more of Renacci’s former constituents than 

Sutton’s, which gave him a considerable advantage in the race that ensued.853 This undermines 

 

852 Defendants’ own expert, Dr. Hood, admitted that “if the legislature wanted to pair the 

fewest number of incumbents in enacting the 2012 plan, that would have been two sets of 

incumbents for four total congressional representatives.” Dkt. 247 (Hood. Trial Test. at 192). 

853 Dr. Hood also acknowledged that “someone that retained more of their . . . constituents 

from their previous district probably had an advantage over the other incumbent,” and “the 

incumbent who retained more of their constituents,” Representative Renacci, was “favored by the 

map.” Dkt. 247 (Hood Trial Test. at 194–95). On September 14, 2011, Mann emailed 

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Defendants’ claim that a bipartisan desire for incumbent protection dominated the map-drawing 

process. 

Third, Defendants repeatedly emphasize that the reason that incumbent protection is a 

legitimate motivation in redistricting is because incumbents, particularly those with considerable 

experience serving in their elected office, wield that seniority for the benefit of their constituents. 

Yet, the map drawers chose to pair two senior Republican incumbents, Representatives Turner and 

Austria, after considering and rejecting the possibility of pairing two freshmen Republican 

incumbents, Representatives Gibbs and Johnson.854 Evidence demonstrates that partisan intent 

motivated that decision. In “talking points” that Whatman sent to President Niehaus, Whatman 

wrote:

A Gibbs/Johnson map results in 3 districts with a base Republican vote under 50 

percent. A Turner/Austria map only has one district under 50. . . . Putting two 

members together in another region of the state merely because they are freshmen 

that results in an overall worse map for republicans in the state is simply not the 

right thing to do. Boehner is not happy about this but it is the tough decision that 

is the right thing for Republicans for the next decade.855 

This correspondence demonstrates that when the map-drawing process pitted the 

competing concerns of incumbent-advantage protection against partisan-advantage 

protection, partisan-advantage protection dominated. The decision to pair senior 

Republican incumbents thus undermines the credibility of Defendants’ assertion that 

incumbent protection was the primary consideration in the redistricting. 

 

Congressman Renacci responding to his request to see “the population numbers and percentages 

of Congresswoman Sutton’s current district that would be contained in the proposed districts.” It 

stated that “New CD 16 (Renacci)” would include only 25.79% of Congresswoman Sutton’s 

former district. Trial Ex. P130 (Sept. 14, 2011 email at LWVOH_00018321). 

854 Dkt. 230-52 (Whatman Dep. at 34–35) (“There were early discussions, given the fact 

that we had two freshmen members of the delegation at that time, whether based on seniority it 

made sense that the two freshmen would have to run against each other, or whether some other 

consideration would come into play.”).

855 Trial Ex. P407 (Sept. 07, 2011 email at LWVOH_0052431). 

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Fourth, Ohio Republican map drawers themselves claimed at the time that incumbent 

protection was not their primary concern. When presenting the bill in the Ohio House of 

Representatives, Representative Huffman detailed the competing concerns that the creators of the 

bill had considered when drafting the H.B. 319 map. He characterized equipopulation as “the 

lodestone,” called VRA compliance an “important precept[],” and then listed “several other 

traditional redistricting principles . . .: compactness, contiguity, preservation of political 

subdivisions, preservation of communities of interest, preservation of cores of prior districts, and 

protection of incumbents.” He then made a point of stating that protection of incumbents was 

“subservient . . . to the other ones that I listed.”856 Representative Huffman went on: 

You know, we talked—a year ago someone came up to me and said, “Are we going 

to get rid of Kucinich’s district?” And I said, “Look, Kucinich doesn’t have a 

district. Nobody has a district. Every two years, there’s an election, and that’s how 

it works. That’s how the system works. There’s nobody that owns a piece of land 

in Congress. People elected them.”

857

 

We acknowledge that politicians may make representations on the floor of the House that diverge 

from the true account of their priorities in creating a bill. We must, however, note the tension 

between the post-hoc justification that Defendants offer for the bill—incumbent protection as the 

primary motivation—and Representative Huffman’s express minimization of the incumbentprotection concern on the floor of the House. 

Additionally, Defendants’ portrayal of the incumbent-protection goal as bipartisan 

mischaracterizes the facts. Only hazy, inadmissible multi-level hearsay testimony was offered to 

support their claim that Democratic leaders wanted Kucinich and Kaptur to be the paired 

Democratic incumbents. The evidence indicates that the Republican and Democratic Caucuses 

 

856 Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 16–19) (statement of Rep. 

Huffman). 

857 Id. at 21. 

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did their map drawing entirely separately, particularly in the early stages when major decisions 

such as the pairing of incumbents were being made. Both Congresswoman Kaptur and 

Congresswoman Fudge insisted that they had no say whatsoever in the design of the map prior to 

its introduction as H.B. 319, and the incumbent pairings were not altered between H.B. 319 and 

the passage of H.B. 369. 

Finally, we reject what seems to be Defendants’ argument that because the Supreme Court 

has sanctioned incumbent protection as a legitimate concern in the redistricting process in some 

instances, any kind of incumbent-protecting behavior is legitimate and may be used to justify the 

drawing of district lines. The Supreme Court has expressed its acceptance of districting “that 

minimizes the number of contests between present incumbents,” which in its view “does not in 

and of itself establish invidiousness.” Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966); see also

White v. Weiser, 412 U.S. 783, 791 (1973) (quoting Burns and expressing tolerance for districting 

plans that “maintain[] existing relationships between incumbent congress[people] and their 

constituents and preserv[e] the seniority the members of the State’s delegation have achieved in 

the United States House of Representatives”). In Gaffney, the Supreme Court accepted a 

politically conscious bipartisan gerrymander, noting that “[r]edistricting may pit incumbents 

against one another or make very difficult the election of the most experienced legislator.” 412 

U.S. at 753. In Karcher, the incumbent protection that the Supreme Court endorsed as legitimate 

was simply “avoiding contests between incumbent Representatives.” 462 U.S. at 740. These cases 

uniformly identify one legitimate form of incumbent protection—avoiding a districting scheme 

that pairs two current incumbents and forces them to face one another in an election. They offer 

no endorsement of incumbent protection in the form of a districting scheme that insulates 

incumbents from any future challenge. 

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We conclude that the incumbent protection effectuated by the 2012 map is of the latter, 

unprotected kind. The map drawers drew one more incumbent pairing than the bare minimum in 

a state that had its congressional delegation reduced by two. But the majority of its line-drawing 

decisions were motivated not by the legitimate incumbent-protection goal of “avoiding contests 

between incumbent Representatives,” but rather by the goal of avoiding contests between 

Democrats and Republicans in general. The Republican map drawers drew noncompetitive, 

nonresponsive districts by grouping bodies of voters who would elect a Democrat—any 

Democrat—or a Republican—any Republican. This is not the incumbent protection that the 

Supreme Court has endorsed. In fact, the Supreme Court has repeatedly cast aspersions on this 

type of incumbent insulation. See Randall v. Sorrell, 548 U.S. 230, 248 (2006) (holding that, when 

assessing contribution limits on political donations, courts must determine “whether [the 

contribution limits] magnify the advantages of incumbency to the point where they put challengers 

to a significant disadvantage”); McConnell v. Fed. Election Comm’n, 540 U.S. 93, 306 (2003) 

(Kennedy, J., concurring in part and dissenting in part) (finding a campaign finance provision 

problematic because it “look[ed] very much like an incumbency protection plan.”); id. at 263 

(Scalia, J., concurring in part and dissenting in part) (arguing that a portion of the Bipartisan 

Campaign Reform Act was an attempt by Members of Congress “to mute criticism of their records 

and facilitate reelection.”); see also Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality) 

(“Patronage thus tips the electoral process in favor of the incumbent party, and where the practice’s 

scope is substantial relative to the size of the electorate, the impact on the process can be 

significant.”); Jenness, 403 U.S. at 439 (concluding that an election law was constitutional in part 

because the State “in no way freezes the status quo, but implicitly recognizes the potential fluidity 

of American political life.”). The incumbent-protection justification does not encompass

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incumbent insulation through the drawing of favorable districts. Rather, it only allows the 

prevention of excessive incumbent-versus-incumbent pairings.

Furthermore, even if this kind of incumbent-insulation strategy were sanctioned by the 

Supreme Court’s cases, the Republican map drawers did not create four Democratic districts 

because they had united in a bipartisan anti-competitive scheme with Democratic legislators. 

Rather, they created four Democratic districts because Ohio has Democratic voters and the map 

drawers had to allocate them in some fashion. The map drawers contemplated packing Democratic 

voters into three districts and cracking them among the remaining thirteen. The map drawers, 

however, did not feel that that strategy would guarantee sufficiently predictable pro-Republican 

outcomes; it allowed for too much competition and responsiveness. They decided twelve 

Republican seats in the hand was better than thirteen in the bush, and so four Democratic districts 

were born. This behavior constitutes invidious partisan gerrymandering and is unconstitutional as 

proved district by district.

ii. Bipartisan negotiations and input 

Defendants also argue that some of the lines of the 2012 map resulted from honoring 

requests from Democratic representatives and operatives. We conclude that the Democrats had no 

role in the drawing of H.B. 319 and were able to secure only minor concessions from the 

Republicans in the passage of H.B. 369, none of which significantly changed the earlier version 

of the map. These findings do not undermine our conclusion that invidious partisan intent 

predominated in the creation of the 2012 map. See Rucho, 318 F. Supp. 3d at 868–69 (finding 

partisan intent where “Republicans had exclusive control over the drawing and enactment of the 

2016 plan” and “with the exception of one small change to prevent the pairing of Democratic 

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incumbents, [the expert map drawer] finished drawing the 2016 plan before Democrats had an 

opportunity to participate in the legislative process”). 

First, we assess Defendants’ assertion that the map drawers were taking and incorporating 

requests from Democratic legislators prior to the introduction of H.B. 319. We do not credit this 

assertion. The map drawers themselves testified that they did not share draft maps of H.B. 319 

with Democratic legislators or staffers until very close to its introduction in the General Assembly. 

Both Representatives Kaptur and Fudge testified that they did not have input into the design of 

H.B. 319. Finally, all Defendant testimony offered to prove that that Democratic leaders 

themselves actually wanted particular map designs was vague, unconvincing, and most 

importantly, hearsay. There is no evidence to support Defendants’ assertions that, prior to the 

introduction of H.B. 319, certain Democrats actually made the requests that the map drawers say 

they eventually accommodated.

Second, we assess Defendants’ assertion that the map drawers took and incorporated 

requests from Democratic legislators after the introduction of H.B. 319 and prior to the final 

enactment of H.B. 369. We credit this assertion, but it is not determinative. The changes made 

between H.B. 319 and the enacted H.B. 369 were de minimis. See Benisek, 348 F. Supp. 3d at 520 

(concluding that “while there may have been other causes that could have marginally altered the 

[challenged] district, the striking actions complained of are not explained by the State’s proffers”). 

They reflect small concessions made by the Republican legislators when faced with a voter 

referendum to challenge H.B. 319. None of these concessions meaningfully impacted the central 

intent of H.B. 319—the enactment of a map that was nearly certain to allow for the election of 

twelve Republican congressional representatives and four Democratic congressional 

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representatives.858 Speaker Batchelder himself testified that while some negotiations occurred, 

there was never a chance that the Republicans in the majority would permit a map that altered the 

partisan balance of H.B. 369.859 The testimony offered by Defendants’ witnesses to prove that that 

Democratic leaders themselves actually wanted particular map designs was vague, speculative, not 

credible, and most importantly, hearsay. 

Next, Defendants assert that partisan intent to discriminate against Democratic voters could 

not have motivated the enactment of the 2012 map because Democratic members of the Ohio 

House of Representatives and State Senate voted in support of it. The argument is that Democratic 

legislators would not intend to electorally disadvantage their own party, and a bill enacted with 

their partial support could therefore not have been motivated by invidious partisan intent. 

We do not find this argument convincing as it fails to acknowledge the reality of legislative 

politics. The Republicans commanded majorities in the Ohio House of Representatives and the 

State Senate, and they held the governorship. They could force through a bill that Democratic 

legislators did not support. Speaker Batchelder himself acknowledged this, commenting that the 

Republicans “could have simply done what [they] wanted to,” in the redistricting process.860 The 

fact that some Democratic legislators voted in support of H.B. 369, perhaps to secure the small 

concessions that were made between H.B. 319 and H.B. 369 or to avoid the costly split primary, 

therefore is not evidence of a lack of partisan intent behind the enacted map. Of course, this does 

not mean that proof that one party controlled both legislative houses and the governorship is 

 

858 Dkt. 241 (Cooper Trial Test. at 179) (“If you look at the election data in terms of partisan 

performance, there’s really not very much different in the two plans.”); see also Trial Ex. P090 

(Cooper Decl. at 22, fig. 9); Trial Ex. P454 (Cooper Decl. Apps. at Ex. I). 

859 Dkt. 230-3 (Batchelder Dep. at 130–31). 

860 Id. at 25. 

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sufficient to demonstrate partisan intent. However, we are unconvinced by the Defendants’ 

argument that some Democratic votes neutralize pro-Republican partisan intent. 

Finally, Defendants’ argument that the Republican map drawers could have drawn a 13-3 

map but did not, and therefore that they did not have a partisan intent is unconvincing. Drawing a 

13-3 map would have been a riskier choice because it would have required Republican support to 

be spread more thinly throughout the Republican-leaning districts. Such a map would have been 

more vulnerable in Democratic swing years; more seats could have potentially fallen into 

Democratic hands. The map drawers prioritized maximizing safe seats for their candidates 

throughout the decade over maximizing the number of seats in a single election, some of which 

would have then been vulnerable in Democratic swing years. Thus, rather than cut against partisan 

intent, this strategic choice is further evidence of the predominantly partisan intent. The 

Republicans successfully avoided the purported self-limitation on partisan gerrymandering—“an 

over ambitious gerrymander . . . .” See Bandemer, 478 U.S. at 152 (O’Connor, J., concurring in 

the judgment); see also id. (“[A]n overambitious gerrymander can lead to disaster for the 

legislative majority: because it has created more seats in which it hopes to win relatively narrow 

victories, the same swing in overall voting strength will tend to cost the legislative majority more 

and more seats as the gerrymander becomes more ambitious.”).

iii. Voting Rights Act compliance and advancing minority representation 

Defendants assert that one “principal goal” was “to preserve and advance minority electoral 

prospects both in northeast Ohio and in Franklin County,” Dkt. 252 (Defs.’ & Intervenors’ PostTrial Br. at 20), and that “the alleged [partisan] bias is justified by the Voting Rights Act and 

minority-protection goals . . . .” Id. at 30; see also id. at 20–27, 38–40. This proffered justification 

applies specifically to Districts 3 and 11. 

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Normally, invoking VRA compliance as a state interest in redistricting arises in the racialgerrymandering context. See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017); Ala. 

Legislative Black Caucus, 135 S. Ct. at 1274. As the Supreme Court recently explained:

When a State invokes the VRA to justify race-based districting, it must 

show (to meet the “narrow tailoring” requirement) that it had “a strong basis in 

evidence” for concluding that the statute required its action. Or said otherwise, the 

State must establish that it had “good reasons” to think that it would transgress the 

Act if it did not draw race-based district lines. That “strong basis” (or “good 

reasons”) standard gives States “breathing room” to adopt reasonable compliance 

measures that may prove, in perfect hindsight, not to have been needed.

Cooper, 137 S. Ct. at 1464 (internal citations omitted). This case, however, does not involve a 

racial-gerrymandering claim; this is, of course, a partisan-gerrymandering case. In this context, 

we will still assume that compliance with the VRA can serve as a legitimate state justification. See

Bethune-Hill, 137 S. Ct. at 801 (“As in previous cases, . . . the Court assumes, without deciding, 

that the State’s interest in complying with the Voting Rights Act [is] compelling.”). In addition, 

when the State seeks to use the VRA as a shield to justify an alleged partisan-gerrymandered 

district, the State must still establish that it had a basis in evidence for concluding that the VRA 

required the sort of district that it drew. We will not accept a blanket assertion that the State sought 

to comply with the VRA in cases where the State misinterpreted the law and did no work to show 

that it had some reason to believe that a particular percentage of minority voters was required for 

a district. 

To establish a vote-dilution claim under § 2, a party must satisfy three threshold conditions, 

known as the Gingles preconditions.861 See Gingles, 478 U.S. at 50–51. These preconditions are: 

(1) the minority group must be large enough and geographically compact to constitute a majority 

in a single-member district; (2) the minority group must be politically cohesive; and (3) there must 

 

861 As Ohio was never a covered jurisdiction under § 5 of the VRA, only § 2 compliance 

could be at issue for the State.

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be evidence of racial bloc voting such that a white majority could usually defeat the minority’s 

preferred candidate. See id. “If a State has good reason to think that all the ‘Gingles preconditions’ 

are met, then so too it has good reason to believe that § 2 requires drawing a majority-minority 

district.” Cooper, 137 S. Ct. at 1470 (emphasis added).

Although we do not find that racial considerations predominated, we nonetheless see it as 

entirely appropriate to put the burden on the State to show that it had good reasons for believing 

§ 2 required drawing District 11 as a majority-minority district. As an initial matter, we would not 

engage in this inquiry if Plaintiffs had failed to carry their burden on partisan intent and effect, but 

Plaintiffs have carried that burden. Furthermore, Defendants’ argument here essentially amounts 

to: “we interpreted the VRA and properly considered race (instead of partisanship); even if we 

were mistaken in our interpretation or mistaken about what BVAP was appropriate, a goal to aid 

minority electoral opportunities is still a legitimate justification for the design of District 11.” For 

the reasons explained below, we do not find Defendants’ argument persuasive. Moreover, 

although we acknowledge that some evidence suggests that the State had a good-faith belief that 

it drew districts in a way to comply with the VRA, other evidence cuts against finding a good-faith 

belief, and no evidence suggests that this belief was an informed one. First, we will address District 

11, and then we will turn to District 3.

For District 11 (which was unchanged between H.B. 319 and H.B. 369), statements from 

the legislative record illuminate the General Assembly’s thinking and its “legal mistake.” See

Cooper, 137 S. Ct. at 1472. Representative Huffman, H.B. 319’s sponsor in the State House, said:

The significant application [of the VRA] in this particular case is that . . . 

we are required to draw a majority/minority district in the State of Ohio when that 

can be done. And in fact, the map that you see before you today in this legislation 

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. . . does that. So that’s one of the significant requirements by federal law that we 

have met when we’ve drawn this map.862

Likewise, in the State Senate, Senator Faber (the bill’s sponsor in that chamber) stated that District 

11 “was also going to be required to comply with the Voting Rights Act. And the Voting Rights 

Act says, essentially, where you can draw a continuity [sic] of interest minority district you need 

to do that.”863 Senator Faber further cited Bartlett v. Strickland, 556 U.S. 1 (2009), to support how 

District 11 was drawn.864 Other legislators echoed this view.865 In short, legislators articulated 

concern about a VRA § 2 violation, and they thought that “whenever a legislature can draw a 

majority-minority district, it must do so . . . .” See Cooper, 137 S. Ct. at 1472.

As the Supreme Court explained, “[t]hat idea, though, is at war with our § 2 

jurisprudence—Strickland included.” Id. Instead, Strickland “turn[ed] on whether the first 

Gingles requirement can be satisfied when the minority group makes up less than 50 percent of 

the voting-age population in the potential election district.” 556 U.S. at 12. The Court answered 

no. See id. at 26 (“Only when a geographically compact group of minority voters could form a 

 

862 Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 17–18) (statement of Rep. 

Huffman). 

863 Trial Ex. J03 (Ohio Senate Session, Sept. 21 2011 at 10) (statement of Sen. Faber). 

864 Id. at 44 (statement of Sen. Faber) (“[T]he Supreme Court held that a majority-minority 

district that is drawn to remedy a [VRA § 2 violation], must be made up of a numerical majority 

of the voting age population in the district. . . . Minority population totals that are less than 50 

percent of the district’s voting age population do not fulfill the mandate of the Voting Rights 

Act.”). 

865 See id. at 58 (statement of Sen. Coley); id. at 60 (statement of Sen. Tavares); Trial Ex. 

J01 (Ohio House Session, Sept. 15, 2011 at 39) (statement of Rep. Gerberry). Defendants cite 

statements from some members on the Democratic side of the aisle who also referenced the VRA. 

True enough, however, even though some referenced the VRA, not all agreed with how the Act 

was used in this case. See, e.g., Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 40) (statement 

of Rep. Gerberry) (“[L]et’s be honest. If you look at that map, this isn’t about fairness. This is 

about finding a way to get the most Republican districts with the most Republicans so they’re noncontestable in general elections.”); id. at 59–60 (statement of Rep. Yuko) (“We now have Marcia 

Fudge representing us and [District 11 has not] missed a beat. This map puts it all at risk.”). To 

the extent that Defendants rely on bipartisanship in this context, we address that justification 

elsewhere. See supra Section V.A.2.d.ii.

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majority in a single-member district has the first Gingles requirement been met.”). Strickland also 

clarified that, “[m]ajority-minority districts are only required if all three Gingles factors are met 

and if § 2 applies based on a totality of circumstances. In areas with substantial crossover voting

it is unlikely that the plaintiffs would be able to establish the third Gingles precondition—bloc 

voting by majority [white] voters.” Id. at 24 (emphasis added). In this case, no credible evidence 

suggests that this third requirement (racial bloc voting in congressional elections) was present, 

which could trigger § 2 concerns. “Thus, [Ohio’s] belief that it was compelled to []draw District 

[11] . . . as a majority-minority district rested not on a ‘strong basis in evidence,’ but instead on a 

pure error of law.” See Cooper, 137 S. Ct. at 1472 (citation omitted).

In response, Defendants note that “[t]he legislature had good reasons to fear Voting Rights 

Act liability in northeast Ohio because the City of Euclid was the subject of successful Section 2 

claims immediately prior to the redistricting, due to polarized voting in the city and its history of 

racial discrimination and animus.” Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 38); see also, 

e.g., City of Euclid, 580 F. Supp. 2d 584. This argument is not credible.

The cases concerning Euclid involved nonpartisan, local elections and do not support any 

suggestion that District 11’s partisan, federal congressional elections were polarized. In fact, 

District 11 included the City of Euclid under the 2002 plan, and in the closest election under that 

plan (the 2002 election), then-Representative Stephanie Tubbs Jones won by a margin of about 

76% to 24%, or 116,590 votes to 36,146.866 In the prior decade, the State drew District 11 with a 

BVAP at 52.3%, and the District was an extraordinarily safe district for African-American 

 

866 See OHIO SEC’Y OF STATE, 2002 ELECTION RESULTS, 

https://www.sos.state.oh.us/elections/election-results-and-data/2002-elections-results/u.s.-

representative/; see supra Section II.C.4 (discussing Dr. Handley’s testimony and report).

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candidates (including Congresswoman Fudge); under the current plan, the BVAP is 52.4%.867 Put 

simply, the “electoral history provided no evidence that a § 2 plaintiff could demonstrate the third 

Gingles prerequisite—effective white bloc-voting, . . . [s]o experience gave the State no reason to 

think that the VRA required it to” maintain District 11 as a district with a BVAP of just over 52%. 

See Cooper, 137 S. Ct. at 1470.

Plaintiffs present Dr. Handley’s report as evidence affirmatively to rebut the contention 

that the third Gingles precondition could be met, and her analysis provides some further evidence 

against finding that the State had a good-faith belief that the VRA required District 11 to be drawn 

as it was. Dr. Handley’s finding that a 45% BVAP would be sufficient to elect the Black-preferred 

candidate by a comfortable margin is merely additional evidence to support the conclusion that 

District 11 did not need to be drawn as a majority-minority district. (Dr. Handley even suggests a 

40% BVAP may be sufficient, though the elections would be tighter.) We need not, however, rely 

on Dr. Handley. The real problem for the State is, again, that it drew District 11 based on a pure 

misinterpretation of the VRA. This means that it had neither “good reasons” nor any “basis in 

evidence” to draw District 11 as a majority-minority district. Cooper, 137 S. Ct. at 1464. 

To be sure, as with § 5 of the VRA, “[t]he law cannot insist that a state legislature, when 

redistricting, determine precisely what percent minority population § [2] demands.” See Ala. 

Legislative Black Caucus, 135 S. Ct. at 1273; see also Cooper, 137 S. Ct. at 1472. But the State 

needs to show its work, so to speak, and if the State happens to be wrong, it enjoys some leeway. 

Defendants assert that legislators here “conducted a functional analysis of [District 11] to conclude 

that a 50% target was appropriate.” See Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 38–39). 

 

867 District 11’s BVAP increased over the course of the decade to about 57%, but this does 

not alter the analysis. Again, the closest election was the 2002 election—which Stephanie Tubbs 

Jones won by over 50%—and the BVAP in that year was 52.3%.

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This assertion is surprising, given that such a “functional analysis” is completely absent from this 

record. This is not a case where the State “relied on data from its statisticians and Voting Rights 

Act expert to create districts tailored to achieve” VRA compliance. See Harris, 136 S. Ct. at 1310. 

(This lack of analysis also cuts against finding a good-faith belief that the VRA required District 

11 to be drawn as such.) For these reasons, the leeway given to States that have done their 

homework in this context cannot rescue District 11. See Cooper, 137 S. Ct. at 1472. 

A question then arises as to whether a state’s mistake of law on the VRA, even if in good 

faith, can serve as a legitimate justification for a partisan gerrymander. In the context of District 

11, the argument essentially amounts to: The State can draw a majority-minority district if it wants, 

even if the State was mistaken in its belief that the VRA required such a district. Accepting such 

a justification could be constitutionally problematic. See Strickland, 556 U.S. at 23–24 (“Our 

holding also should not be interpreted to entrench majority-minority districts by statutory 

command, for that, too, could pose constitutional concerns.”). Accordingly, we decline to accept 

this argument here.

Importantly, we also conclude that Plaintiffs carried their burden in proving partisan intent, 

not a desire to comply with the VRA (even if based on an entirely mistaken interpretation of the 

VRA), predominantly influenced District 11. In Harris, the Supreme Court explained that the 

appellants in that case did not show that the districts “result[ed] from the predominance of . . . 

illegitimate factors . . . .” 136 S. Ct. at 1310. The opposite is true here. As discussed above, the 

reason for dropping District 11 down into Summit County was to carve voting territory away from 

then-Representative Betty Sutton to disadvantage her in her race against Representative Renacci—

a partisan motivation. See Benson, 2019 WL 1856625, at *57 n.39. To the extent that the State 

legitimately wanted to maintain District 11 as a majority-minority district, it sought to accomplish 

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that goal in a way that would achieve an ultimately partisan aim—to lock in a 12-4 map. That is, 

even if the goal of advancing minority interests in District 11 was a secondary goal, it was just 

that: secondary. At bottom, partisanship was the predominant and controlling intent behind the 

district.

The argument for District 3 is slightly different, but the difference is important. In District 

3, the argument goes, the State sought to advance minority electoral prospects in Franklin County. 

Defendants rely on Strickland’s statement about “the permissibility of [crossover districts that 

enhance a minority’s electoral opportunities] as a matter of legislative choice or discretion.” 

Strickland, 556 U.S. at 23. In the next sentence, the Supreme Court explained that “[a]ssuming a 

majority-minority district with a substantial minority population, a legislative determination, based 

on proper factors, to create two crossover districts may serve to diminish the significance and 

influence of race by encouraging minority and majority voters to work together toward a common 

goal.” Id. There is no evidence to suggest that this specific situation applied to Franklin County—

i.e., that it contained a possible majority-minority district that could be split into two minorityinfluence or crossover districts. The Court continued that “States can—and in proper cases 

should—defend against alleged § 2 violations by pointing to crossover voting patterns and to 

effective crossover districts.” Id. at 24. This scenario is also not at play in this case. In other 

words, Defendants place too much weight on Strickland. That said, we will accept that a state 

may, as a matter of legislative discretion, rely on creating minority-opportunity or crossover 

districts as a legitimate justification. The problem for this justification here is that there is a 

competing narrative for District 3.

The competing narrative, and the one that we consider more credible, is that Franklin 

County served as the center piece to help secure a 12-4 map in that Democratic voters could be 

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packed into District 3 in order to shore up other neighboring districts for Republicans. Although 

some feedback throughout the map-drawing process included a desire for a minority-opportunity 

district in Franklin County,868 the actual map-drawing process focused on only partisan factors and 

political data. As we detailed previously, for example, the map drawers considered splitting 

Franklin County into four districts, but then they realized that split would result in more 

competitive elections for Republican candidates; only then did the map drawers decide to draw 

what is now District 3. That the Democratic voters in this district were referred to by Hofeller as 

“dog meat” and that downtown Columbus was referred to as “awful voting territory” for 

Republicans (and thus needed to be removed from District 15) bolsters this finding. Therefore, 

disentangling the purported racial considerations from the political ones, we find that political 

considerations predominantly motivated the drawing of District 3. As explained, when 

partisanship predominates, partisan considerations are not a legitimate redistricting factor.

We also note that District 3 could still have been drawn with a nearly identical BVAP,869

but with a more regular shape, fewer county splits,870 and with considerably less partisan bias.871 

It was not, and consequently we infer that the map drawers intended District 3’s design to result 

in the partisan bias we have seen. 

Finally, although District 1 in Hamilton County is not central to the dispute of whether the 

map drawers were motivated by an intent to advance minority electoral opportunity in Districts 3 

 

868 Trial Ex. P070 (Testimony of Ray Miller to the Senate Select Committee on 

Redistricting). Notably, this request for a minority-opportunity district seems premised on a 

mistaken view of the VRA, too (i.e., that the VRA required such a district). Moreover, Miller’s 

definition of a “minority opportunity district,” included both a majority-minority district and a 

crossover district. See id.

869 Dkt. 241(Cooper Trial Test. at 161). 

870 Trial Ex. P093 (Cooper Second Suppl. Decl. at 10, 17). 

871 Trial Ex. P476 (Warshaw Rep. at 14–15).

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and 11, we find the treatment of that district instructive in evaluating claims about the map 

drawers’ commitment to advancing minority representation. In evaluating a justification, we may 

look to see “the consistency with which the plan as a whole reflects [that] interest[].” Karcher, 

462 U.S. at 740–41. The Supreme Court has also instructed that in determining whether invidious 

intent was present “[s]ubstantive departures [from normal procedure] may be relevant, particularly 

if the factors [purportedly] considered important by the decisionmaker strongly favor a decision 

contrary to the one reached.” Arlington Heights, 429 U.S. at 267. Here, we find that the motivation 

offered for the shape of Districts 3 and 11 was dishonored in the creation of Districts 1 and 2, 

which work together to crack the City of Cincinnati. Cincinnati in Hamilton County also has a 

considerable African-American population. The map drawers’ decision to carve the City of 

Cincinnati in two resulted in a District 1 with a 21.30% BVAP.872 In contrast, when Mr. Cooper 

left Cincinnati intact in his Proposed Remedial Plan, it maintained a BVAP of 26.74%.873 When 

he did so in his hypothetical maps, drawn to demonstrate the possibilities when contemplating the 

incumbents in 2011, he maintained this same higher BVAP in each.874 When Cincinnati could be 

cracked, the map drawers’ asserted concern for advancing minority voting interests seems to have 

fallen to the wayside. This gives us further reason to doubt the veracity of their assertion that this 

concern drove the creation of Districts 3 and 11.

iv. Natural political geography

Defendants also argue that some of the partisan effects that have resulted under the 2012 

map are due to natural political geography—the way that the supporters of the two parties are 

distributed and clustered throughout the State. While we acknowledge that some credible evidence 

 

872 Trial Ex. P454 (Cooper Decl. Apps. at D-2); Dkt. 241 (Cooper Trial Test. at 160). 

873 Dkt. 241 (Cooper Trial Test. at 161); Trial Ex. P454 (Cooper Decl. Apps. at E-2). 

874 Trial Ex. P093 (Cooper Second Suppl. Decl. at 10 & n.8, 17 & n.16). 

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was presented at trial of partisan clustering in Ohio and a natural political geography that gives a 

slight advantage to the Republican Party, we find that Ohio’s natural political geography in no way 

accounts for the extreme Republican advantage observed in the 2012 map. We therefore conclude 

that this justification fails as a neutral explanation for the 2012 map’s partisan effects. 

Dr. Hood’s report and analysis demonstrated that in Ohio Democratic voters tend to cluster 

near other Democratic voters, and Republican voters tend to cluster near other Republican 

voters.875 However, it did not show that Democratic voters do so at higher rates than Republican 

voters—the key comparison that might help explain why the 2012 map favors the election of 

Republican representatives over Democratic representatives.876 

Dr. Hood’s analysis also showed that in Ohio Democratic voters are more likely to be 

located in urban areas than Republican voters are.877 The concentration of Democratic voters in 

cities could support a finding of natural packing in those cities if the boundaries of those cities 

were respected and they were allowed to remain intact within districts. That is not the case here. 

Under the 2012 plan, Democratic cities were routinely split in order to facilitate the packing and 

cracking of districts. For example, Cincinnati in Hamilton County was dramatically and 

nonsensically divided to produce Republican Districts 1 and 2, Akron was divided to facilitate the 

packing of District 11 and the cracking of District 16, and Toledo was divided between Districts 5 

and 9. We cannot take seriously the argument that Democratic voters’ tendency to cluster in cities 

supports a finding of natural packing when under this map those cities were often cracked rather 

than packed. 

 

875 Dkt. 247 (Hood Trial Test. at 155). 

876 Id. at 199–200. 

877 Id. at 156.

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Evidence presented at trial demonstrated that Ohio’s natural political geography slightly 

favors the election of Republican representatives. Dr. Warshaw stated that “[p]artisan bias usually 

is caused by gerrymandering, but it could be caused by other factors as well.”878 For example, Dr. 

Warshaw’s analysis of the partisan-bias metrics of the Proposed Remedial Plan indicated that that 

plan, which was drawn by Mr. Cooper with no partisan intent, had a slight bias toward 

Republicans.879 Likewise, Dr. Cho’s simulated maps, which were all drawn in accordance with 

only traditional redistricting principles and no partisan intent, also showed a natural slight 

Republican advantage, most often resulting in a 9-7 map.880 At least a handful of the races under 

the simulated maps are competitive, with each party winning some of those competitive races—

this data is in stark contrast with elections under the current map.881 Thus, when only natural 

political geography serves as the baseline, we find that H.B. 369 significantly deviates from that 

baseline.

Dr. Warshaw expressed considerable doubt that the partisan bias observed in the 2012 map 

was the result of natural political geography or non-political factors, however. First, “the sharpness 

of the change in the efficiency gap between 2010 and 2012 makes it unlikely to have been caused 

by geographic changes or non-political factors.”882 In order to believe that the strong partisan bias 

observed under the 2012 map was caused by natural political geography, we would need some 

evidence to explain why that same natural political geography did not cause such extreme partisan 

bias figures under the previous plan.883 The sudden uptick in partisan bias after the implementation 

 

878 Dkt. 240 (Warshaw Trial Test. at 196). 

879 Trial Ex. P571 (Warshaw Rep. at 32).

880 See Trial Ex. P426 (Cho Supp. Rep. at 3). 

881 Id. at 4. 

882 Trial Ex. P571 (Warshaw Rep. at 21).

883 “From about 2002 through 2010 Republicans had a modest advantage in the efficiency 

gap in Ohio, perhaps because they controlled the redistricting in 2001.” Id. at 22.

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of the 2012 map belies the claim that Ohio’s natural political geography accounts for the proRepublican results, particularly without any proof that the political geography changed between 

2010 and 2012. The independent variable was the map; the dependent variable was the partisan 

effect. This analysis supports the conclusion that Ohio’s natural political geography is not 

responsible for the considerable partisan effect observed since the implementation of the 2012 

map. 

Although Dr. Cho did not consider incumbent protection, Mr. Cooper created hypothetical 

alternative maps that did, and those maps score better on various traditional redistricting principles 

and result in a more responsive and competitive map. Mr. Cooper’s hypothetical alternative maps 

pair the same number of incumbents as the current map, score higher on compactness, are equal 

to the current map on core retention, and split fewer municipalities and counties.884 Importantly, 

these hypothetical alternative maps also satisfy the equal-population requirement.885 As for 

advancing minority opportunity, these maps contain a District 11 with a BVAP of over 47%, a 

district in Franklin County with a BVAP of just above 30%, and a Cincinnati-based district with a 

BVAP of 26.74%.886 Accordingly, these maps take into account Ohio’s natural political 

geography as well as all of Defendants’ purported main goals in redistricting, and they still produce 

more responsive and competitive elections than H.B. 369. This is strong evidence that Ohio’s 

natural political geography does not explain the extreme partisan effects of the 2012 map.

 

884 See generally Trial Ex. P093 (Cooper Second Suppl. Decl. at 4–18); see also Ex. P598 

(Cooper Third Suppl. Decl. at 5–6). 

885 Trial Ex. P093 (Cooper Second Suppl. Decl. at 7, 15). 

886 Id. at 10, 17. 

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***

In sum, we conclude that (1) partisan discrimination against Democratic voters was the 

predominant intent in the creation of each congressional district in the 2012 map as well as the 

map as a whole, (2) the partisan effect of this discrimination was a dilution of Democratic votes, 

impinging on Democratic voters’ Fourteenth Amendment rights, and (3) no legitimate justification 

offered by Defendants to explain either the intent behind the map or its partisan effects undermines 

our conclusion that invidious partisanship dominated the process and the result. We therefore 

conclude that Plaintiffs have proved their Fourteenth Amendment vote-dilution claims.

B. First Amendment Vote-Dilution Claim

Plaintiffs may prove their First Amendment vote-dilution claim by showing:

(1) that the challenged districting plan was intended to burden individuals or entities 

that support a disfavored candidate or political party, (2) that the districting plan in 

fact burdened the political speech or associational rights of such individuals or 

entities, and (3) that a causal relationship existed between the governmental actor’s 

discriminatory motivation and the First Amendment burdens imposed by the 

districting plan. 

Rucho, 318 F. Supp. 3d at 929, see also Benson, 2019 WL 1856625, at *28. 

This test essentially mirrors the intent, effect, and lack-of-justification test that applies to 

the equal-protection claim analyzed above. The similarity between the elements of the two claims 

makes sense because the claims are theoretically and analytically linked—when the government 

purposefully dilutes an individual’s vote (by packing or cracking voters into particular districts) in 

the partisan-gerrymandering context, it does so “because of the political views” expressed by 

voters. See Shapiro, 203 F. Supp. 3d at 595 (citing Vieth, 541 U.S. at 314–15 (Kennedy, J., 

concurring in the judgment)). In the partisan-gerrymandering context, the Equal Protection 

Clause’s concern about vote dilution is related to the First Amendment concerns about viewpoint 

discrimination, “laws that disfavor a particular group or class of speakers[,]” and retaliation. See

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Rucho, 318 F. Supp. 3d at 924–26; see also Benisek, 348 F. Supp. 3d at 514 (concluding that 

citizens “have a right under the First Amendment not to have the value of their vote diminished 

because of the political views they have expressed through their party affiliation and voting history. 

Put simply, partisan vote dilution, when intentionally imposed, involves the State penalizing voters 

for expressing a viewpoint while, at the same time, rewarding voters for expressing the opposite 

viewpoint.”). Accordingly, Plaintiffs call upon the same evidence to prove the elements of this 

claim as the elements of the Fourteenth Amendment claim.

For the reasons we outlined previously, we conclude that Plaintiffs have proved this votedilution claim. See supra Section V.A.2. The State relied predominantly on partisanship in 

drawing the current map and penalized Democratic voters because of their political viewpoint. In 

brief, the map drawers’ controlling intent was to lock in a 12-4 map in favor of Republicans, that 

goal was accomplished, and no other causes or justifications explain the extreme partisan effects 

exhibited by the current map. Therefore, in the context of partisan vote dilution under the First 

Amendment, the analysis is no different than vote dilution under the Equal Protection Clause.

The “associational harm of a partisan gerrymander,” however, “is distinct from vote 

dilution.” See Gill, 138 S. Ct. at 1938 (Kagan, J., concurring). We now turn to this separate 

analysis.

C. Associational Claim

1. Legal standard

a. Background legal principles 

The First Amendment protects the associational choices of voters. See Calif. Democratic 

Party, 530 U.S. at 574 (“[T]he First Amendment protects ‘the freedom to join together in 

furtherance of common political beliefs,’” (quoting Tashjian, 479 U.S. at 214–15)); Anderson v. 

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Celebrezze, 460 U.S. 780, 793–94 (1983); Williams, 393 U.S. at 30–31. This associational right 

is linked with the right to vote. See Williams, 393 U.S. at 30. Accordingly, state laws can “place 

burdens on [these] two different, although overlapping, kinds of rights—the right of individuals to 

associate for the advancement of political beliefs, and the right of qualified voters, regardless of 

their political persuasion, to cast their votes effectively.” Id. Undoubtedly, these rights are 

fundamental and “rank among our most precious freedoms.” Id.; see also Anderson, 460 U.S. at 

788.

The associational rights of parties and their voters have been rightly recognized and 

protected by the courts, even though the Framers tried to design the Constitution against political 

parties. See Levinson & Pildes, supra at 2320. As the Supreme Court has acknowledged, 

“[r]epresentative democracy in any populous unit of governance is unimaginable without the 

ability of citizens to band together in promoting among the electorate candidates who espouse their 

political views.” Calif. Democratic Party, 530 U.S. at 574. Moreover, as Defendants repeatedly 

note, the Framers gave to states general authority to prescribe “The Times, Places and Manner of 

holding Elections” and to Congress the power to “make or alter” such laws. U.S. CONST. Art. I, §

4. But neither the State’s authority nor Congress’s power under the Elections Clause 

“extinguish[es] the State’s responsibility to observe the limits established by the First Amendment 

rights of the State’s citizens,” or the courts’ ability to vindicate constitutional rights. See Tashjian, 

479 U.S. at 217. “The power to regulate the time, place, and manner of elections does not justify, 

without more, the abridgment of fundamental rights, such as the right to vote, or . . . the freedom 

of political association.” Id. (citing Wesberry, 376 U.S. at 6–7).

“Although these rights of voters are fundamental, not all” state election laws “impose 

constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” 

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Anderson, 460 U.S. at 788. Every election law, “whether it governs the registration and 

qualifications of voters, the selection and eligibility of candidates, or the voting process itself, 

inevitably affects—at least to some degree—the individual’s right to vote and his right to associate 

with others for political ends.” Id. As the Supreme Court explained in Burdick v. Takushi, 

A court considering a challenge to a state election law must weigh “the character 

and magnitude of the asserted injury to the rights protected by the First and 

Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise 

interests put forward by the State as justifications for the burden imposed by its 

rule,” taking into consideration “the extent to which those interests make it 

necessary to burden the plaintiff’s rights.” 

504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 789). The Supreme Court has employed 

this Anderson-Burdick balancing standard and found it workable in evaluating a variety of election 

laws. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) (upholding a voter ID 

law); Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) (upholding 

Washington’s blanket primary law); Calif. Democratic Party, 530 U.S. 567 (striking down 

California’s blanket primary law); Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) 

(upholding a ban on “fusion” candidates); Burdick, 504 U.S. at 434–38 (upholding a prohibition 

on write-in voting); Anderson, 460 U.S. at 788–90 (striking down an early filing deadline for 

independent candidates); cf. Doe v. Reed, 561 U.S. 186, 197–202 (2010) (weighing the State’s 

interests against the alleged First Amendment burdens and upholding a state law that made 

referendum petitions, which include the names and addresses of the signers, available in response 

to a public-records request by a private party).

b. Partisan gerrymandering burdens associational and representational rights

In the context of partisan-gerrymandering cases, Justice Kennedy first recognized that the 

“allegations involve the First Amendment interest of not burdening or penalizing citizens because 

of their participation in the electoral process, their voting history, their association with a political 

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party, or their expression of political views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring in 

the judgment) (citing Elrod, 427 U.S. 347 (plurality)). Justice Kennedy further reasoned that 

Supreme Court precedents showed that “First Amendment concerns arise where a State enacts a 

law that has the purpose and effect of subjecting a group of voters or their party to disfavored 

treatment by reason of their views.” Id. Specifically, the disfavored treatment results in a burden 

on “voters’ representational rights.” See id. Later, the Supreme Court, “[w]ithout expressing any 

view on the merits,” reversed the dismissal of a case in which the plaintiffs pursued a First 

Amendment theory on the narrow ground that the “plea for relief [was] based on a legal theory put 

forward by a Justice of this Court and uncontradicted by the majority in any of our cases.” See

Shapiro v. McManus, 136 S. Ct. 450, 456 (2015).

In Gill, four justices framed the associational harm as a burden on “the ability of likeminded people across the State to affiliate in a political party and carry out that organization’s 

activities and objects.” See Gill, 138 S. Ct. at 1939 (Kagan, J., concurring). “By placing a state 

party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all 

its functions.” Id. at 1938. Thus, five justices have expressed support for applying First 

Amendment association principles in the partisan-gerrymandering context, but, like other theories, 

the associational-rights framework has not been adopted as a majority opinion of the Supreme 

Court. At the same time, the Supreme Court has not foreclosed this framework, and other threejudge district courts have found it helpful to address partisan-gerrymandering claims. See, e.g., 

Rucho, 318 F. Supp. 3d at 926–927; Whitford, 218 F. Supp. 3d at 880–83; Shapiro, 203 F. Supp. 

3d at 594–95.

If the whole point of partisan gerrymandering is to subordinate a disfavored group of voters 

and entrench the dominant party, then it is sensible to assess an alleged partisan gerrymander under 

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an associational-rights framework and look at the plan as a whole. The ability of the people to 

associate through parties is critical to our representative democracy, Calif. Democratic Party, 530 

U.S. at 574, and “[t]he revolutionary intent of the First Amendment is . . . to deny [the government] 

authority to abridge the freedom of the electoral power of the people.” See Alexander Meiklejohn, 

The First Amendment is an Absolute, 1961 SUP. CT. REV. 245, 254 (1961). In extreme cases, a 

party in power may “freeze[] the status quo” in a redistricting law and render districts impervious 

to “the potential fluidity of American political life.” See Jenness, 403 U.S. at 439. Indeed, the 

Supreme Court has already acknowledged the link between associational rights and the functioning 

of the democratic process. See Elrod, 427 U.S. at 356–57 (1976) (plurality) (“It is not only belief 

and association which are restricted where political patronage is the practice. The free functioning 

of the electoral process also suffers. . . . Patronage thus tips the electoral process in favor of the 

incumbent party, and where the practice’s scope is substantial relative to the size of the electorate, 

the impact on the process can be significant.”). The Supreme Court extended Elrod’s concerns 

about the right to association and the electoral process in the patronage context to the right to vote 

in Williams v. Rhodes. There, the Court explained that the law at issue “place[d] substantially 

unequal burdens on both the right to vote and the right to associate.” Williams, 393 U.S. at 31; see 

also Tashjian, 479 U.S. at 216 (“The State thus limits the Party’s associational opportunities at the 

crucial juncture at which the appeal to common principles may be translated into concerted action, 

and hence to political power in the community.”) (emphasis added). These same concerns apply 

to partisan gerrymandering. See Ariz. State Legislature, 135 S. Ct. at 2658 (defining partisan 

gerrymandering as “the drawing of legislative district lines to subordinate adherents of one 

political party and entrench a rival party in power.”).

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The First Amendment and the Anderson-Burdick standard are well suited to address these 

concerns in the partisan-gerrymandering context. This framework sensibly places the focus on a 

law’s alleged “substantially unequal burdens” and effects, see Williams, 393 U.S. at 31, rather than 

partisan intent, see Crawford, 553 U.S. at 203–04 (“[I]f a nondiscriminatory law is supported by 

valid neutral justifications, those justifications should not be disregarded simply because partisan 

interests may have provided one motivation for the votes of individual legislators.”). On the one 

hand, “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that 

the likely political consequences of the reapportionment were intended.” Bandemer, 478 U.S. at 

129. On the other hand, if courts determine that some plans are unconstitutional partisan 

gerrymanders, then we would expect legislators to act like normal people and, therefore, not 

express their pure partisan intentions; that is, there will be less clear, direct evidence of map

drawers’ partisan intent. The evidence of effects, then, becomes the most important consideration 

because evidence of sufficiently extreme partisan effects will support the assertion that a state was 

motivated by partisanship, at the expense of all other purported justifications, in drawing a map. 

If such evidence exists, then a reasonable inference would be that partisanship was the controlling 

justification for a map, and any other legitimate purported justifications would not hold up against 

the severe burdens placed on a disfavored party’s voters. Conversely, if the evidence of partisan 

effect is lacking or does not reveal a sufficiently significant burden, then it becomes more likely 

that other legitimate justifications can explain the map, even though “partisan interests may have 

provided one motivation for the votes of individual legislators.” See Crawford, 553 U.S. at 204. 

Of course, to some extent, to the victor of an election go the spoils. But “[t]o the victor 

belong only those spoils that may be constitutionally obtained.” Rutan v. Republican Party of Ill., 

497 U.S. 62, 64 (1990). “The [First Amendment] analysis allows a pragmatic or functional 

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assessment that accords some latitude to the States,” Vieth, 541 U.S. at 315 (Kennedy, J., 

concurring in the judgment), and, consequently, latitude for some partisan effects. At the same 

time, a map that “freezes the status quo” for the incumbent party despite fluctuating vote totals, 

Jenness, 403 U.S. at 439, substantially “tips the electoral process in favor of the incumbent party,” 

Elrod, 427 U.S. at 356 (plurality), or “unfairly or unnecessarily burdens the availability of political 

opportunity,” for the disfavored party, Anderson, 460 U.S. at 793 (citations and internal quotation 

marks omitted), should be subject to judicial scrutiny and, depending on the evidence, struck down 

as unconstitutional. In other settings, courts have thus employed the Anderson-Burdick standard 

to pick out the worst of the worst—cases in which legitimate state justifications and the states’ 

general power to regulate elections simply do not outweigh the burdens placed on individuals’ 

right to associate and right to vote. Likewise, reining in the worst-of-the-worst gerrymanders is 

the courts’ task in this setting. 

***

We conclude that the associational-rights framework provides a workable standard to 

evaluate an alleged partisan gerrymander. See Benson, 2019 WL 1856625, at *48–50, 65–66 

(concluding that the plaintiffs could pursue this claim and that the challenged map burdened

associational rights). First, no matter how relevant partisan intent is to this particular analysis, 

Plaintiffs have proven intent under the predominant-factor standard. See supra Sections V.A.1.a., 

V.A.2.a. More importantly for purposes of the associational claim, courts must weigh the burden 

imposed on a group of voters’ associational rights against the precise interests put forward by the 

State as justifications for the burden imposed by the challenged map. See Gill, 138 S. Ct. at 1938–

39 (Kagan, J., concurring); Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment); 

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). 

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2. Application

For the following reasons, we find that Plaintiffs have proved their associational-rights

claim. Many of these facts overlap with our discussion of the vote-dilution claim. See, e.g., supra

Section V.A.2.b. (discussing statewide evidence of effect). This makes sense given the overlap 

between individuals’ right “to associate for the advancement of political beliefs” and their right 

“to cast their votes effectively.” See Williams, 393 U.S. at 30. In this sense, partisan 

gerrymandering is a double-barreled constitutional issue. We will first discuss the burden that the 

redistricting plan imposes on Democratic voters’ and organizations’ right to associate and then 

weigh that burden against the State’s interests that it proffers as justifications.

a. Burden 

For a group of voters to associate effectively for the advancement of their political beliefs, 

the group must be able to mobilize in the electorate to have a real chance at translating their votes 

into electoral success. If a disfavored party’s voters in the electorate are “deprived of their natural 

political strength by a partisan gerrymander” drawn by the dominant party in government, then the 

disfavored party may be sapped of its ability to mobilize effectively, win elections, and thereby 

accomplish its policy objectives. See Gill, 138 S. Ct. at 1938 (Kagan, J., concurring). Here, several 

pieces of evidence reveal that the redistricting plan enacted in H.B. 369 attempts to “freeze[] the 

status quo” in favor of the incumbent Republican Party, Jenness, 403 U.S. at 439, substantially 

“tips the electoral process in favor of” the Republican Party, Elrod, 427 U.S. at 356 (plurality), 

and “unfairly or unnecessarily burdens the availability of political opportunity,” for the Democratic 

Party and the individuals and organizations that support the Party, Anderson, 460 U.S. at 793 

(citations and internal quotation marks omitted).

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The partisan-bias metrics employed by Plaintiffs show that the Democratic Party is placed 

“at an enduring electoral disadvantage,” and the simulated maps indicate that Democratic voters 

are indeed “deprived of the[] natural political strength” that they otherwise would have based on 

political geography. See Gill, 138 S. Ct. at 1938 (Kagan, J., concurring). As detailed previously, 

by almost any measure, H.B. 369 is more extremely partisan and more pro-Republican than over 

90% (and under several metrics over 95%) of previous comparable elections throughout the 

country. This was true in 2012, the first election held under the current map, and in the most recent 

2018 election cycle. Indeed, these findings should not be surprising given the fact that, although 

the Republican statewide vote share in congressional elections has fluctuated between 51% and 

59%, Republican candidates have nonetheless won the same twelve seats (75% of the seats) in 

every election. The Democratic vote share in that same time has ranged from 41% to 47%, but 

Democratic candidates have won the same four seats in every election—and by considerably large 

margins (again, in the closest election for the four seats, the Democratic candidate still won 61% 

of the vote). The data support Dr. Warshaw’s conclusion that “Ohio’s 2011 redistricting plan had 

one of the largest pro-Republican biases in history.”887 The simulated maps, which integrate only 

neutral redistricting criteria, reveal what the typical outcomes would be based on the natural 

political geography of the State. Over the course of this decade, by far the most expected outcome 

would be a 9-7 map.888 As a whole, this evidence shows that the current redistricting plan contains 

a substantial amount of bias against Democratic voters as compared to a neutral baseline (or, in 

fact, millions of neutral baselines) based on natural political geography, as well as historical 

 

887 Trial Ex. P571 (Warshaw Rep. at 42).

888 See Trial Ex. P426 (Cho Suppl. Rep. at 3). An 8-8 map was also rather common, though 

by 2018, an 8-8 map occurred at about an equal rate as a 10-6 map. See id.

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baselines. Indeed, we can comfortably say that the current redistricting plan is an outlier. But this 

evidence is only part of the story.

The lack of competitive elections supports the conclusion that Democratic voters’ electoral 

opportunities are unfairly burdened. See Anderson, 460 U.S. at 793. The simulated maps typically 

produced at least a handful of competitive races. Democratic and Republican candidates win 

roughly an equal number of those competitive elections, but Democratic candidates tend to have a 

slight edge in competitive elections under the simulated maps.889 Combined with the data on the 

typical seat shares, this evidence shows that by 2018, a 9-7 map in favor of Republicans was 

common and that Democratic candidates would win three or four of their seats in competitive 

elections.890 These findings stand in stark contrast to the current 12-4 map, in which a winning 

Democratic candidate has never come close to facing a competitive election. The logical 

conclusion is that the map drawers fenced in Democratic voters in significant numbers into four 

districts and, conversely, fenced out Democratic voters from the other districts in order to “freeze[] 

the status quo” from the 2010 elections, which favored Republicans. Jenness, 403 U.S. at 439. 

The result is a burden on Democratic voters’ overall electoral opportunity.

Of course, this is not to say that competitive elections must be maximized at the expense 

of other legitimate goals. The point is that the evidence indicates that in a State as competitive as 

Ohio, and considering its natural political geography, one would expect more competitive 

elections—some won by Democratic candidates, and others won by Republican candidates. The 

absence of competitive elections raises concerns that the dominant party in government, through 

partisan manipulation, is seeking to “dictate electoral outcomes” and “disfavor a class of 

 

889 See generally id. at 4.

890 Id. at 3–4.

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candidates” and the voters who support them. See Thornton, 514 U.S. at 833–34. In a similar 

vein, as Justice Scalia noted, “[t]he first instinct of power is the retention of power, and, under a 

Constitution that requires periodic elections, that is best achieved by the suppression of electiontime speech.” See McConnell, 540 U.S. at 263 (Scalia, J., concurring in part and dissenting in 

part). Both restrictions on election-time speech and partisan gerrymandering aim to suppress

electoral competition, and both are partly rooted in viewpoint discrimination. See Benson, 2019 

WL 1856625, at *66; Rucho, 318 F. Supp. 3d at 841, 924–25. And some degree of competition is 

healthy because it “support[s] in the members [of Congress] an habitual recollection of their 

dependence on the people.” See THE FEDERALIST NO. 57, at 511 (James Madison), reprinted in

THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND SELECTED WRITINGS OF THE 

FOUNDING FATHERS (2012). 

The evidence of extreme partisan bias and lack of competitive elections are consistent with 

the intentions of the map drawers. As detailed previously, for a time, the map drawers considered 

splitting Franklin County into four districts, which might have secured a 13-3 map in favor of 

Republicans. See supra Section I.A.4. They abandoned this option because the margins of victory 

would have been tighter and thus exposed Republican incumbents to the risk of losing competitive 

elections. See supra Section I.A.4. Importantly, according to talking points in an email from 

Heather Mann to Michael Lenzo, the 12-4 map “put the most number of seats in the safety zone 

given the political geography of the state, [the] media markets, and how to best allocate caucus 

resources.”891 By the Republicans’ own admission, then, the number of safe seats, and thus the 

number of competitive elections, influence how the parties and campaigns expend their resources. 

In other words, how district lines are drawn affects “the ability of citizens to band together in 

 

891 Trial Ex. P385 (Congressional Redistricting Talking Points at LWVOH_0052438). 

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promoting among the electorate candidates who espouse their political views.” Calif. Democratic 

Party, 530 U.S. at 574.

When a partisan gerrymander maximizes the number of safe seats for the dominant party 

in government and, relatedly, packs as many of the disfavored party’s voters into an optimal 

number of districts so that the dominant party’s overall advantage is not at risk, there are 

consequences beyond entrenchment. An efficient partisan gerrymander can reduce campaign 

activity and expenditures and thereby inhibit “the constitutional interest of like-minded voters to 

gather in pursuit of common political ends . . . .” See Norman, 502 U.S. at 288. The evidence 

surveyed thus far supports the conclusion that H.B. 369 is, in fact, an efficient partisan 

gerrymander that exhibits substantial and extreme bias against Democratic voters, while 

optimizing the advantage in favor of the party in power.

Other evidence further demonstrates that the current redistricting plan limits Democratic 

voters’ and organizations’ “associational opportunities at the crucial juncture at which the appeal 

to common principles may be translated into concerted action, and hence to political power in the 

community.” See Tashjian, 479 U.S. at 216. Here, that critical juncture is the general election. In 

his report and trial testimony, Dr. Niven spoke to the political science literature that shows how 

the splitting of neighborhoods, cities, and counties makes campaigning more difficult in those 

areas and therefore results in a demobilizing effect. See supra Section II.C.3. As we explained 

previously, he found that splits of localities affected Democratic voters more than Republican 

voters. Dr. Niven also elaborated on how Democratic voters were shuffled between districts and 

how that shuffling would have altered the political makeup of districts and the outcomes of prior 

elections in those districts. Supra Section II.C.3. Of course, the lines must be drawn somewhere, 

but it is suspect when considering the findings that the divisions affected Democratic voters more 

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than Republicans alongside the findings of the extreme partisan effects exhibited in this map. Dr. 

Niven’s analysis focused on Hamilton County, District 9, Franklin County, and Summit County, 

which all together covers ten of the sixteen congressional districts. Cf. Benson, 2019 WL 1856625, 

at *57 n.39 (“One cannot fully grasp the partisan implications of the design of an individual district 

in each group without simultaneously evaluating the partisanship of the other districts in that 

group.”).

The evidence presented by the individual and organizational Plaintiffs is consistent with 

the notion that a partisan gerrymander can have a demobilizing effect. A core concern with 

gerrymandering is that the party in power manipulates district lines to choose their preferred 

partisans and thereby render election results a foregone conclusion. Plaintiffs testified that they 

themselves have felt like election results were indeed preordained, that their candidate recruitment 

efforts have been hindered, and that they have experienced fundraising difficulties. See supra

Sections II.A.1.–2. In Hamilton County and on The Ohio State University’s campus in particular, 

the HCYD’s and OSU College Democrats’ representatives testified that they have seen campaign 

signs for certain candidates in the wrong district and that people have been mistaken as to which 

district they should be voting in. See supra Section II.A.2. Dr. Niven also found that in Franklin 

County, the lines even caused problems for the professional election administrators keeping track 

of which voters should be assigned to which districts. See supra Section II.C.3.c. These 

mobilization difficulties are consistent with the social-science data outlined above that demonstrate 

an asymmetric burden in translating votes into seats. The actual election results compared to the 

statewide congressional vote share, the partisan-bias metrics, and the simulated maps all support a 

reasonable inference that Democratic voters and organizations, such as Plaintiffs in this case, 

would feel that they do not have a real chance at similar electoral success, even if their Party 

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received a higher percentage of the vote. Even when the Democratic Party as a whole did better, 

the Republican advantage remained.892 The current redistricting plan distributes voters in such a 

way that, even though the Democratic and Republican Parties are running in the same races, 

Democratic candidates must run a significantly longer distance to get to the same finish line. Thus, 

Democratic voters and supporters are burdened by this demobilizing effect and are limited in their 

opportunities to translate their efforts in the electorate into “political power in the community.” 

See Tashjian, 479 U.S. at 216.

The remaining question is how much more successful the Democratic Party would need to 

be to turn the electoral tides in their favor. Again, Dr. Warshaw’s initial findings were that, even 

with 55% of the statewide vote, Democratic candidates would win only 6 out of 16 seats.893 

Updating his analysis with the 2018 data slightly modified this finding; Democratic candidates 

would win half the seats with 55% of the vote.894 The asymmetry is stark. Republican candidates 

comfortably won twelve seats with a similar percentage of the vote, and at 51% of the vote, they 

still comfortably won twelve seats. Again, this bears out what the map drawers themselves 

recognized: the way that they drew the map allowed for the best allocation of Republican 

resources.895 On the other hand, Democratic campaigners and organizations need to expend more 

resources to garner more votes, but even if they were successful in that effort, Democratic 

candidates still win fewer elections. Such use of State “power to starve political opposition” is 

generally disfavored in First Amendment jurisprudence. See Elrod, 427 U.S. at 356 (plurality); 

see also Kang, supra at 376–83.

 

892 See, e.g., Trial Ex. P426 (Cho Suppl. Rep. at 6) (comparing the fundraising numbers of 

Democratic candidates in Districts 1 and 12 in the 2018 elections to the Republican incumbents).

893 Trial Ex. P571 (Warshaw Rep. at 15).

894 Trial Ex. P476 (Warshaw 2018 Update at 12–13).

895 Trial Ex. P385 (Congressional Redistricting Talking Points at LWVOH_0052438). 

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The ultimate result of this substantial asymmetry is that Plaintiffs are hindered in their 

ability to mobilize effectively, win elections, and accomplish their policy objectives. These results 

come with representational costs. Dr. Warshaw’s analysis demonstrates the growing polarization 

among Ohio’s Republican and Democratic Members of Congress.896 Accordingly, given the large 

asymmetry in elections and polarization in Congress, it is less likely that the Ohio congressional 

delegation fairly reflects voters in congressional elections across the State. As Dr. Warshaw 

concludes, “[t]he pro-Republican advantage in congressional elections in Ohio causes Democratic 

voters to be effectively shut out of the political process in Congress.”897 Partisan gerrymandering, 

therefore, cuts against “the basic aim of legislative reapportionment” to “achiev[e] fair and 

effective representation for all citizens . . . .” See Reynolds, 377 U.S. at 565–66.

In sum, the redistricting plan enacted in H.B. 369 burdens Plaintiffs’ ability “to associate 

for the advancement of [their] political beliefs . . . [and] to cast their votes effectively,” Williams, 

393 U.S. at 30, such that Plaintiffs’ associational and representational rights are burdened. All the 

evidence points to the same conclusion that Democratic voters and organizations are significantly 

 

896 Trial Ex. P571 (Warshaw Rep. at 36–37). This finding is consistent with what scholars 

and commentators started observing decades ago. See, e.g., Elena Kagan, Presidential 

Administration, 114 HARV. L. REV. 2245, 2311–12 & n.262 (2001) (observing that although 

bipartisan cooperation remains possible, “the difficulty of the task has increased because 

congressional parties have grown more ideologically coherent and partisan as legislative districts 

have become more homogeneous and primaries have become the dominant means of candidate 

selection.”) (collecting sources). To be clear, we do not find or conclude that partisan 

gerrymandering causes this polarization.

897 Trial Ex. P571 (Warshaw Rep. at 43); see also id. at 39–41; cf. 41 CONG. GLOBE, 41st 

Cong., 2d Sess., 4737 (June 23, 1870) (statement of Rep. James A. Garfield) (then-Representative 

Garfield speaking out against malapportionment in Ohio, stating, “There are about ten thousand 

Democratic voters in my district, and they have been voting there . . . without any more hope of 

having a Representative on this floor than of having one in the Commons of Great Britain. . . . The 

Democratic voters in the nineteenth district of Ohio ought not by any system to be absolutely and 

permanently disenfranchised.”); supra Section IV.C.

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disadvantaged, and we can comfortably call H.B. 369 an outlier. We therefore conclude that this 

burden is of a substantial magnitude.

b. State interests and justifications

To be sure, every redistricting law will have some effect on “the individual’s right to vote 

and his right to associate with others for political ends.” See Anderson, 460 U.S. at 788. As we 

have explained, “[t]he [First Amendment] analysis allows a pragmatic or functional assessment 

that accords some latitude to the States,” Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the 

judgment), and thus some latitude for partisan effects. We now turn to weighing the substantial 

burden on Plaintiffs’ associational rights against “the precise interests put forward by the State as 

justifications for the burden imposed” by the redistricting plan. See Burdick, 504 U.S. at 434 

(quoting Anderson, 460 U.S. at 789).

Because the burden on Plaintiffs’ First and Fourteenth Amendment rights is substantial, 

the corresponding justifications must be “sufficiently weighty” to explain the burden. See Norman, 

502 U.S. at 288–89. A court “must not only determine the legitimacy and strength of each 

[justification]; it also must consider the extent to which those interests make it necessary to burden 

the plaintiff’s rights.” Anderson, 460 U.S. at 789. If the burden on Plaintiffs’ rights were not so 

severe, or if the partisan effects did not indicate that a challenged map was an outlier, we would 

not “require elaborate, empirical verification of the weightiness of the State’s asserted 

justifications.” See Timmons, 520 U.S. at 364. In this case, however, Plaintiffs have put forward 

a substantial amount of evidence demonstrating an extreme degree of partisan bias. Consequently, 

we will not accept Defendants’ justifications at face value. Instead, we will seriously test the 

“legitimacy and strength” of the proffered justifications, Anderson, 460 U.S. 789, and decide 

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whether they are “narrowly tailored to serve a compelling state interest.” See Calif. Democratic 

Party, 530 U.S. at 582.

We addressed Defendants’ justifications above and explained that they simply do not hold 

water in the case before us. See supra Section V.A.2.d. We will nonetheless review these asserted 

State interests briefly.

i. Incumbent protection and bipartisanship 

There is a line between “avoiding contests between incumbent Representatives,” Karcher, 

462 U.S. at 740 (emphasis added), and drawing district lines to insulate incumbents from 

competition. See also Burns, 384 U.S. at 89 n.16 (framing incumbent protection as “minimiz[ing] 

the number of contests between present incumbents”) (emphasis added). The former is a legitimate 

interest, and the latter is not. The insulation of incumbents from political competition raises 

entrenchment concerns. As detailed above, we find that the current map’s purpose and effect was 

to entrench the 12-4 Republican majority and subordinate disfavored Democratic voters. For 

example, the decisions to split Franklin County three ways instead of four (thus creating the 

“Franklin County Sinkhole”) and the general checking of political indices when various changes 

were proposed were all done with an eye toward putting as many Republican incumbents in the 

safety zone as possible. See supra Sections I.A.4, V.A.2.a.ii. This manipulation of the lines, in 

turn, allowed for a more efficient use of Republican Caucus resources. H.B. 369 falls on the 

incumbent-insulation and entrenchment side of the line.

Neither Article I nor Gaffney v. Cummings can save Defendants’ arguments. First, the 

Elections Clause “act[s] as a safeguard against manipulation of electoral rules by politicians and 

factions in the States to entrench themselves or place their interests over those of the electorate.” 

Ariz. State Legislature, 135 S. Ct. at 2672. As explained, the Supreme Court has also expressed 

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skepticism about attempts to insulate incumbents from political competition in other areas of First 

Amendment law. See, e.g., Randall, 548 U.S. at 248; McConnell, 540 U.S. at 263 (Scalia, J., 

concurring in part and dissenting in part); id. at 306 (Kennedy, J., concurring in part and dissenting 

in part); Elrod, 427 U.S. at 356; see also Jenness, 403 U.S. at 439. Second, for the reasons we 

articulated before, Gaffney is entirely distinguishable, mainly because there is no serious argument 

that H.B. 369 fairly “allocate[s] political power to the parties in accordance with their voting 

strength . . . .” Gaffney, 412 U.S. at 754.

Even if we viewed this incumbent-protection argument in the light most favorable to the 

State—that the State truly needed to draw the map the way it did to avoid contests between existing 

incumbents—we would not conclude that this justification holds up to scrutiny. Again, the sponsor 

of the initial H.B. 319 (to which H.B. 369 is materially identical) clearly described incumbent

protection as “subservient” to other redistricting goals.898 And the instance in which incumbent

protection was not pursued, i.e., the pairing of Representative Renacci with Representative Sutton, 

the map drawers drew the district to advantage the incumbent Republican over the Democratic 

incumbent. Lastly, if incumbent protection, properly understood, is meant to maintain 

Representative-constituent relationships and seniority in Congress, it makes little sense to pair the 

most senior member of the State’s congressional delegation against another incumbent, as was 

done in H.B. 369. As one of Mr. Cooper’s hypothetical alternative maps demonstrates, 

Representative Kaptur did not need to be paired; instead, Representatives Sutton and Kucinich 

(who were each paired anyway) could have been drawn against one another.899

 

898 Trial Ex. J01 (Ohio House Session, Sept. 15, 2011 at 19) (statement of Rep. Huffman).

899 See Trial Ex. P093 (Cooper Second Suppl. Decl. at 12–18).

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The argument that the current map resulted from bipartisan input and negotiations, which 

at times blends with Defendants’ arguments about incumbent protection and Gaffney, is also 

unpersuasive. See supra Section V.A.2.d.ii. The partisan outcomes of this map were locked in 

once the General Assembly passed H.B. 319, which was the work product of only Republicans. 

The General Assembly incorporated some minor Democratic requests into H.B. 369; however,

Speaker Batchelder himself acknowledged that the partisan balance of the map was nonnegotiable. See supra Section V.A.2.d.ii. Although Democratic legislators secured some small 

geographic concessions, the Republicans also secured their large 12-4 partisan advantage in H.B. 

369. The material terms of negotiation were ultimately dictated by the fact that the Republican 

Party controlled both the General Assembly and the governorship. See, e.g., Dkt. 230-3 

(Batchelder Dep. at 25) (stating that the Republicans “could have simply done what [they] wanted 

to” in the redistricting process). As a practical matter, Democratic legislators could not alter the 

expected partisan outcomes of this map, and, therefore, this justification does not cure the 

substantial burdens on Plaintiffs’ rights. 

ii. Voting Rights Act compliance and advancing representation 

We accept that compliance with the VRA is a compelling State interest. See Bethune-Hill, 

137 S. Ct. at 801. If the State properly considered the VRA, then this interest may well justify the 

drawing of District 11. A proper consideration of the VRA would involve having some basis in 

evidence or good reasons to believe that § 2 requires a particular district. Statements from 

legislators that the VRA was an important consideration, without more, will not suffice—

especially when the State is mistaken on the law.

The problem with this justification in this case is that the State had no basis in evidence to 

believe that District 11 needed to be drawn as it was. See supra Section V.A.2.d.iii. Instead, 

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Ohio’s belief that it was compelled to draw District 11 as a majority-minority district rested “on a 

pure error of law.” See Cooper, 137 S. Ct. at 1472. Furthermore, the State’s argument that it can 

draw a majority-minority district, even if it mistakenly interpreted the VRA, could be problematic. 

See Strickland, 556 U.S. at 23–24. Again, no evidence suggests that the State conducted any 

analysis that the VRA required the current District 11 to have a nearly identical BVAP as the prior 

District 11. We therefore cannot say that the State had “good reason to believe that § 2 requires 

drawing a majority-minority district.” See Cooper, 137 S. Ct. at 1470. In fact, based on the prior 

success of African-American candidates in District 11 (none of whom faced a competitive election 

in the prior decade), nothing supports this belief. See supra Section V.A.2.d.iii. Moreover, even 

if the State wanted to advance minority electoral opportunities in District 11, we nonetheless find 

that such a goal was secondary to the predominant and controlling partisan intent.

Again, Defendants’ asserted interest for District 3 is slightly distinct. For the sake of 

argument, we accept that the State may, as a matter of legislative discretion, rely on creating 

minority-opportunity or crossover districts as a legitimate justification. As explained previously, 

however, based on the evidence in this case, we credit the competing narrative for District 3: map 

drawers carefully packed Franklin County Democrats into District 3, facilitating the creation of 

two solidly Republican seats in Districts 12 and 15. This constellation of districts was key in their 

efforts to lock in a 12-4 map. 

iii. Natural political geography 

Finally, we also accept that a state’s natural political geography could potentially explain 

partisan effects, but again, this justification does not hold up against the evidence in this case. See

supra Section V.A.2.d.iv. Although Plaintiffs’ experts acknowledge that Ohio’s political 

geography provides a slight advantage to Republicans, the advantage is far from 12-4. First, the 

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same geography did not cause such extreme bias under the prior redistricting plan, and under that 

plan, the State’s congressional delegation majority shifted between Democrats and Republicans. 

See supra Section V.A.2.d.iv. Second, as mentioned above, the simulated maps provide a baseline 

to compare maps that incorporate only neutral districting criteria to H.B. 369. Dr. Cho’s seat-share 

analysis demonstrates that a 9-7 map in favor of Republicans is the most common outcome, and 

one would expect at least a handful of competitive races. The current map has produced a 

combined total of only four competitive races across all four election cycles. When Dr. Cho 

incorporated 2018 data into her analysis, only 0.046% of over 3-million simulated maps produced 

a 12-4 outcome. If someone stated that they were flipping a fair coin but then that coin turned up 

tails in only 0.046% of 100,000 coin tosses, one would start to suspect that the coin was not, in 

fact, fair—here we have over 3 million coin tosses. Either the Republicans were exceedingly 

lucky, or their map drawers made exceedingly expert use of political data to manipulate district 

lines to secure the most seats and the least amount of competition possible. The evidence in this 

case points to the latter conclusion. Third, Mr. Cooper’s hypothetical alternative maps pair the 

same number of incumbents as the current map, score higher on compactness, are equal to the 

current map on core retention, split fewer municipalities and counties, and produce more 

responsive and competitive elections.900 As we outlined previously, these maps also satisfy the 

equal-population requirement, and they advance minority electoral opportunities more than H.B. 

369. See supra Section V.A.2.d.iv. The upshot is that natural political geography cannot explain 

 

900 See generally Trial Ex. P093 (Cooper Second Suppl. Decl. at 4–18); Trial Ex. P598 

(Cooper Third Suppl. Decl. at 5–6). For example, the second hypothetical alternative map 

produces the following outcomes for 2012-2018, respectively: 10-6, 11-5, 11-5, and 8-8, and the 

number of competitive races range from three to five. See Trial Ex. P093 (Cooper Second Suppl. 

Decl. at 18); Trial Ex. P598 (Cooper Third Suppl. Decl. at 6).

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away the extreme partisan effects of the current redistricting plan, even when other factors that 

were supposedly important to the State are also considered.

***

We conclude that the burdens H.B. 369 imposes on Plaintiffs’ associational rights are not 

outweighed by any of the asserted justifications. This redistricting plan substantially burdens the 

overlapping “right of individuals to associate for the advancement of their political beliefs[] and 

the right of qualified voters . . . to cast their votes effectively.” Williams, 393 U.S. at 30. Critically, 

our primary concern is not the interests of Democratic candidates, but rather, the interests of the 

voters and organizations who choose to associate together, express their support for, and cast their 

votes for those candidates. See Anderson, 460 U.S. at 806. In this case, the bottom line is that the 

dominant party in State government manipulated district lines in an attempt to control electoral 

outcomes and thus direct the political ideology of the State’s congressional delegation. “In a free 

society the State is directed by political doctrine, not the other way around.” Calif. Democratic 

Party, 530 U.S. at 590 (Kennedy, J., concurring). 

For these reasons, H.B. 369 is an unconstitutional partisan gerrymander.

D. Article I Claim

Two provisions of Article I of the United States Constitution are relevant to this case—

Article I, § 4 and Article I, § 2. As explained by the three-judge panel in Rucho, “the two 

provisions are closely intertwined.” 318 F. Supp. 3d at 936; see also id. at 935–41. Plaintiffs 

claim that the State has exceeded its powers under Article I because the alleged partisan 

gerrymander is a non-neutral regulation that constrains the free choice of the people to elect their 

representatives. 

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Again, under Article I, § 4, states generally have the authority to draw district lines. U.S.

CONST. art. I, § 4 (“The Times, Places and Manner of holding Elections . . . shall be prescribed in 

each State by the Legislature thereof; but the Congress may at any time by Law make or alter such 

Regulations . . . .”). And again, Defendants place too much weight on their argument that this

clause immunizes the State’s redistricting law from judicial scrutiny. “The power to regulate the 

time, place, and manner of elections does not justify, without more, the abridgment of fundamental 

rights, such as the right to vote, or . . . the freedom of political association.” Tashjian, 479 U.S. at 

217 (citing Wesberry, 376 U.S. at 6–7); see also Thornton, 514 U.S. at 834. In Thornton, the 

Supreme Court further explained that, at the Founding, “proponents of the Constitution noted: 

‘[T]he power over the manner only enables them to determine how these electors shall 

elect . . . .’” and that “[t]he constitution expressly provides that the choice shall be by the people, 

which cuts off both from the general and state Legislatures the power of so regulating the mode of 

election, as to deprive the people of a fair choice.” Thornton, 514 U.S. at 833 & n.47 (citations 

omitted) (first alteration in original). The Elections Clause in Article I, § 4, therefore, does not 

hinder the people’s ability to ensure that they “choose their representatives, not the other way 

around,” Ariz. State Legislature, 135 S. Ct. at 2677 (citation omitted), and neither does it hinder 

the courts’ ability to police the states’ power to regulate elections under Article I, see, e.g.,

Thornton, 514 U.S. at 828–29. 

Article I, § 2 provides: “The House of Representatives shall be composed of Members 

chosen every second Year by the People of the several States . . . .” In the original text of the 

Constitution, Article I, § 2 provided the people’s sole right to choose directly their elected 

representatives; the electoral college elects the president, U.S. CONST. art. II, § 1, and, at that time, 

the state legislatures chose senators, U.S. CONST. art. I, § 3, amended by U.S. CONST. amend. XVII 

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(providing the people with the right directly to elect their senators, as the people do today). 

Accordingly, in the original text of the Constitution, the members of the House of Representatives 

were the only elected federal officials directly responsive to the people. As James Madison 

emphasized, “the House of Representatives is so constituted as to support in the members an 

habitual recollection of their dependence on the people.” THE FEDERALIST NO. 57, at 511 (James 

Madison), reprinted in THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND SELECTED 

WRITINGS OF THE FOUNDING FATHERS (2012).

This provision is referred to as “the Great Compromise,” and the Supreme Court has held 

that “principle solemnly embodied in” that compromise—the one-person, one-vote equalpopulation requirement—would be defeated if “within the States, legislatures may draw the lines 

of congressional districts in such a way as to give some voters a greater voice in choosing a 

Congressman [or Congresswoman] than others.” Wesberry, 376 U.S. at 14. As the Supreme Court 

has recognized, “[a] fundamental principle of our representative democracy is, in Hamilton’s 

words, ‘that the people should choose whom they please to govern them.’” Powell, 395 U.S. at 

547 (citation omitted). In the partisan-gerrymandering cases, “[t]he problem . . . is that the will of 

the cartographers rather than the will of the people will govern.” Vieth, 541 U.S. at 331 (Stevens, 

J., dissenting). More specifically, the map drawers “give [the dominant party’s] voters a greater 

voice in choosing a Congressman [or Congresswoman] than [the disfavored party’s voters].” See

Wesberry, 376 U.S. at 14.

“To be sure, the Elections Clause grants to the States ‘broad power’ to prescribe the 

procedural mechanisms for holding congressional elections.” Cook v. Gralike, 531 U.S. 510, 523 

(2001) (citation omitted). But the Supreme Court “made clear” in Thornton that “the Framers 

understood the Elections Clause as a grant of authority to issue procedural regulations, and not as 

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a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to 

evade important constitutional restraints.” Id. (quoting Thornton, 514 U.S. at 833–34). Using this 

line of reasoning, the three-judge panel in Rucho concluded that the redistricting plan at issue 

exceeded the State’s authority under the Elections Clause for three reasons: “(1) the Elections 

Clause did not empower State legislatures to disfavor the interests of supporters of a particular 

candidate or party in drawing congressional districts”; (2) the plan violated the First Amendment, 

the Fourteenth Amendment Equal Protection Clause, and Article I, § 2; and (3) the plan “represents 

an impermissible effort to ‘dictate electoral outcomes’ and ‘disfavor a class of candidates.’” 

Rucho, 318 F. Supp. 3d at 937 (quoting Thornton, 514 U.S. at 833–34).

We conclude that a state necessarily exceeds its authority under the Elections Clause if the 

State violates the First and/or Fourteenth Amendments, see Tashjian, 479 U.S. at 217, and we find 

that the State did so here, see supra Sections V.A.–C. Simply put, the Elections Clause does not 

give the states a license to engage in unconstitutional partisan gerrymandering. The Elections 

Clause and Article I, § 2, taken together, “act as a safeguard against manipulation of electoral rules 

by politicians and factions in the States to entrench themselves or place their interests over those 

of the electorate.” See Ariz. State Legislature, 135 S. Ct. at 2672. Article I § 2 contains the 

principle that representatives should be dependent on and responsive to the will of the voters—

rather than dependent on and responsive to state legislators and their map drawers (some of whom 

may even include agents of the representatives themselves). We further agree that a redistricting 

law may, in certain circumstances, be so extreme that it “amounts to a successful effort by the 

[State] to ‘disfavor a class of candidates’ and ‘dictate electoral outcomes.’” See Rucho, 318 F. 

Supp. 3d at 940 (quoting Thornton, 514 U.S. at 833–34). 

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As a general matter, then, Article I provides useful background principles for evaluating 

the problem of partisan gerrymandering. As a functional matter, however, the analysis under this 

claim is the same as the analysis under the First and Fourteenth Amendments. If a redistricting 

plan violates Article I, it does so because the plan unconstitutionally dilutes votes because of 

partisan affiliation or because the plan impermissibly infringes on the associational rights of voters. 

The one key caveat is that Article I, § 2 applies only to congressional elections. See U.S. CONST.

art. I, § 2 (“The House of Representatives shall be composed of Members chosen every second 

Year by the People of the several States . . . .”) (emphasis added). That specific section, therefore, 

would be inapplicable if a challenge to state legislative districts were before us (and there is no 

such challenge here).

For the reasons we have already articulated, see supra Sections V.A.–C., we find that H.B. 

369 exceeds the State’s powers under Article I.

VI. LACHES

The doctrine of laches “is rooted in the notion that those who sleep on their rights lose 

them.” Libertarian Party of Ohio v. Husted, No. 2:13-cv-953, 2014 WL 12647018, at *1 (S.D. 

Ohio Sept. 24, 2014) (citations and internal quotation marks omitted). “Where a plaintiff seeks 

solely equitable relief, his action may be barred by the equitable defense of laches if (1) the plaintiff 

delayed unreasonably in asserting his rights and (2) the defendant was prejudiced by this delay.” 

ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 647 (6th Cir. 2004). Defendants argue that laches bars 

Plaintiffs’ claims because Plaintiffs’ seven-year delay in bringing this action is unjustified and has 

prejudiced Defendants. Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 72–75). We disagree.901

 

901 Our analysis largely tracks that of the three-judge district court in League of Women 

Voters of Michigan v. Benson, --- F. Supp. 3d ---, 2019 WL 1856625, at *24–26 (E.D Mich. Apr. 

25, 2019). See also id. at *24 (holding that “that laches does not apply to Plaintiffs’ partisan 

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As a preliminary point, we note that the nature of Plaintiffs’ rights has been uncertain since 

the Vieth case. See Gill, 138 S. Ct. at 1933–34 (declining to follow the normal procedure of 

dismissing the plaintiffs’ claim for lack of standing, explaining that “[t]his is not the usual case,” 

and that partisan gerrymandering “concerns an unsettled kind of claim this Court has not agreed 

upon, the contours and justiciability of which are unresolved.”). Indeed, whether Plaintiffs’ case 

remained viable was an open question prior to Gill, and Plaintiffs filed their initial complaint in 

this case before the Supreme Court decided that case. As we explain further below, rather than 

“sleeping on their rights,” Plaintiffs’ course of action was not unjustified given the state of the law 

and the high bar for proving partisan effect. 

Defendants contend that Plaintiffs’ claims were ripe “shortly after” the State enacted the 

current plan. Dkt. 252 (Defs.’ & Intervenors’ Post-Trial Br. at 72). In Bandemer, however, the 

plurality found that “the plaintiffs had failed to make a sufficient showing on [partisan effect] 

because their evidence of unfavorable election results for Democrats was limited to a single 

election cycle.” See Gill, 138 S. Ct. at 1927 (citing Bandemer, 478 U.S. at 135). At the very least, 

then, it would have been unwise for Plaintiffs to bring this action prior to the 2014 elections. 

Plaintiffs filed this lawsuit after three elections, and a fourth (the 2018 elections) occurred during 

the litigation, and evidence related to the 2018 elections is in this record. The Supreme Court has 

not set “clear landmarks,” Gill, 138 S. Ct. at 1926, but there is a high bar for proving partisan 

effects, and actual election results are preferred over hypotheticals, id. at 1928 (citing LULAC, 548 

U.S. at 419–20 (opinion of Kennedy, J.). Consequently, we conclude that Plaintiffs were 

reasonable in waiting three election cycles before bringing this action.

 

gerrymandering claims as a matter of law,” and alternatively holding “that even if laches applies 

to these types of claims, Intervenors have failed to establish that laches bars Plaintiffs claims in 

this case.”).

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Further, one clear concern in these cases is that judges should not undertake the 

“unwelcome obligation” of overseeing the redrawing of district lines unless it is necessary. See

Connor, 431 U.S. at 415. When confronted with an extreme partisan gerrymander, it becomes 

necessary. As we have explained, factors such as whether the plan is an outlier, whether the plan 

is a durable gerrymander that persists across election cycles, and whether districts have frozen the 

status quo despite fluctuating vote totals between the parties help us to make this determination. 

If we had to make this determination after just one election, then we would essentially be “adopting 

a constitutional standard that invalidates a map based on unfair results that would occur in a 

hypothetical state of affairs.” See LULAC, 548 U.S. at 420 (opinion of Kennedy, J.). In this case, 

more data, which reveals durability and entrenchment despite fluctuating vote totals across election 

cycles, give us greater confidence in our findings. We are not suggesting a bright-line rule for how 

many elections are necessary; the point is that allowing for a few elections could reveal that a plan 

does not, in fact, place significant burdens on a supposedly disfavored party. In a similar vein, we 

cannot say that there has been an unreasonable delay.

Defendants also rely on Benisek v. Lamone, 138 S. Ct. 1942 (2018), which does not address 

laches. Although Benisek v. Lamone may be instructive, it ultimately does not militate in favor of 

Defendants. The Supreme Court first noted that the plaintiffs filed their complaint in 2013 but 

“fail[ed] to plead the claims giving rise to their request for preliminary injunctive relief until 2016.” 

Id. at 1944. In contrast, Plaintiffs before us sought injunctive relief with the filing of their initial 

complaint. Dkt. 1 (First Compl. at 41–42). Moreover, as in many election-law cases, “a due regard 

for the public interest in orderly elections” may counsel against granting relief. Benisek v. Lamone, 

138 S. Ct. at 1944–45; see also Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (“Court orders 

affecting elections . . . can themselves result in voter confusion and consequent incentive to remain 

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away from the polls. As an election draws closer, that risk will increase.”). In Benisek v. Lamone, 

the plaintiffs “represented to the District Court that any injunctive relief would have to be granted 

by August 18, 2017, to ensure the timely completion of a new districting scheme in advance of the 

2018 election season,” but “that date had ‘already come and gone’ by the time the court ruled on 

plaintiffs’ motion.” Benisek v. Lamone, 138 S. Ct. at 1945 (citation omitted). That is not this case. 

In their motion to stay the trial in this case, Defendants represented to this Court that a new 

congressional map would need to be submitted by September 20, 2019 “to fulfill the administrative 

duties and obligations associated with preparing for the 2020 congressional election.” See Dkt. 

185-1 (Wolfe Decl. at 2). That deadline is over four months away. Accordingly, there is enough 

time to implement a remedy on Defendants’ own timetable, hence negating the risk of voter 

confusion. 

In sum, we conclude that Plaintiffs’ delay in this case was not unjustified or unreasonable. 

This alone disposes of Defendants’ laches defense. Also important, the concerns present in 

Benisek v. Lamone are not present here.

We will nonetheless address Defendants’ remaining arguments on prejudice, none of which 

we find persuasive. First, the “[u]navailability of important witnesses, dulling of memories of 

witnesses, and loss or destruction of relevant evidence all constitute prejudice.” See Nartron Corp. 

v. STMicroelectronics, Inc., 305 F.3d 397, 412 (6th Cir. 2002). Defendants point to several

potential fact witnesses who have since died, and these witnesses primarily go to the purported 

“bipartisan negotiations” that Defendants say justify the map. See Dkt. 252 (Defs.’ & Intervenors’ 

Post-Trial Br. at 73). We have already explained the problems with this justification; in brief, even 

if there were negotiations, the desire to achieve a 12-4 map was not negotiable. Additionally, none 

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of the deceased individuals were members of the Ohio General Assembly at the time the current 

plan was enacted and many of the main map drawers were still witnesses in this case.

Second, Defendants argue that “[v]oters are acclimated to the 2011 plan, and members of 

Congress have invested deeply in their districts.” Id. at 74. The first point is unpersuasive because 

the map also imposes serious burdens on individuals’ rights to vote and to associate. Similarly, 

for the second point, congressional representatives may have invested deeply in their districts, but 

they have no right to choose their voters, and representatives’ interests are not implicated in this 

case—representatives answer to the voters, whose interests are implicated in this case. Thus, the 

fact that they have invested deeply in their districts is not a reason to find that laches applies. 

Third, Defendants argue that the State has been forced “to litigate on an accelerated basis 

near the end of a redistricting cycle,” which runs afoul of the “heavy presumption against lastminute changes to the electoral system.” Id. Defendants again cite Benisek v. Lamone, which we 

addressed above, as well as Service Employees International Union Local 1 v. Husted (“SEIU 

Local 1”), 698 F.3d 341 (6th Cir. 2012). To be sure, “last-minute injunctions changing election 

procedures are strongly disfavored.” Id. at 345. In SEIU Local 1, however, the Sixth Circuit 

addressed a motion for preliminary injunction filed in the district court on October 17, 2012, just 

three weeks out from the November 6, 2012 election. Id. at 343. Here, again, the deadline for 

new maps is over four months away, and the 2020 election will not be held for over one year after 

that.

Lastly, even if a prima facie case for laches could be established, Plaintiffs can rebut a 

presumption that laches bars their claims by “establish[ing] that there was a good excuse for [the] 

delay . . . .” Nartron, 305 F.3d at 409. We observe, as in Gill, that “[t]his is not the usual case.” 

138 S. Ct. at 1933–34. As stated, the unsettled nature of partisan-gerrymandering claims and the 

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high bar for proving partisan effect provides good cause for any delay. Cf. Benson, 2019 WL 

1856625, at *26 (reasoning that “it was not unreasonable for Plaintiffs to wait to sue until the law 

in this area had developed sufficiently to allow Plaintiffs to articulate and support their partisan 

gerrymandering claims.”).

For these reasons, we reject Defendants’ laches defense.902 

VII. REMEDY AND ORDER

In their complaint, Plaintiffs request that we declare H.B. 369 unconstitutional, enjoin any 

future elections under the plan enacted in H.B. 369, and “[e]stablish a congressional districting 

plan that complies with the United States Constitution and all federal and state legal requirements, 

if the Ohio Legislature and/or Governor fail to enact a new and constitutional plan in a timely 

manner.” See Dkt. 37 (Second Am. Compl. at 51–52). We have concluded that H.B. 369 is 

unconstitutional. Now we turn to the remedy.

Unless “an impending election is imminent and a State’s election machinery is already in 

progress,” a court should “tak[e] appropriate action to insure that no further elections are conducted 

 

902 Whether laches even applies to injunctive relief, which Plaintiffs seek, seems to be an 

open question. In Kay v. Austin, an election-law case, the Sixth Circuit held that the plaintiff was 

“not entitled to equitable relief in this instance as a result of laches.” 621 F.2d 809, 813 (6th Cir. 

1980). In a more recent election-law case, the Sixth Circuit also considered, though ultimately 

rejected, a laches defense to a plaintiff’s claims for declaratory and injunctive relief. See Taft, 385 

F.3d at 647. Conversely, the Sixth Circuit has also held that “[l]aches only bars damages that 

occurred before the filing date of the lawsuit. It does not prevent [a] plaintiff from obtaining 

injunctive relief or post-filing damages.” Nartron, 305 F.3d at 412 (internal citations omitted); see 

also Kellogg Co. v. Exxon Corp., 209 F.3d 562, 568 (6th Cir. 2000) (same); TWM Mfg. Co. v. 

Dura Corp., 592 F.2d 346, 349–50 (6th Cir. 1979) (same). In this latter set of cases, the Sixth 

Circuit has reasoned that “[o]nly by proving the elements of estoppel may a defendant defeat such 

prospective relief.” TWM Mfg., 592 F.2d at 350; see also, e.g., Nartron, 305 F.3d at 412–13 (also 

noting that estoppel “requires more than a showing of mere silence on the part of a plaintiff”). 

(Defendants have not asserted an estoppel defense here.) Of course, the TWM Manufacturing, 

Kellogg, and Nartron line of cases, if applicable, would render Defendants’ laches defense 

completely inapplicable. See Benson, 2019 WL 1856625, at *25 (holding “that laches does not 

bar [partisan-gerrymandering] claims as a matter of law” and citing Nartron and Kellogg).

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under the invalid plan.” See Reynolds, 377 U.S. at 585. No impending election is imminent in 

this case. Furthermore, Defendants have represented to this Court that a new congressional 

districting plan would need to be adopted by September 20, 2019 “to fulfill the administrative 

duties and obligations associated with preparing for the 2020 congressional election.” See Dkt. 

185-1 (Wolfe Decl. at 2). We are committed to working with that timeline for establishing a 

remedial plan. We also observe that former Governor Kasich signed H.B. 319 into law on 

September 26, 2011, and then he signed H.B. 369, the actual plan that was used in the 2012 

elections, into law on December 15, 2011. See Dkt. 234 (Final Pretrial Order at App. A., 2–4). 

Even though the current plan was enacted in December, the State still prepared adequately for the 

2012 congressional elections on that slightly shorter timeline. Accordingly, we hereby enjoin the 

State from conducting any elections using the plan enacted in H.B. 369 in any future congressional 

elections.

The parties have not yet fully briefed the issue of a remedial plan. As a general rule, 

however, when a federal court declares a redistricting plan unconstitutional, “it is . . . appropriate, 

whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional 

requirements by adopting a substitute measure rather than for the federal court to devise and order 

into effect its own plan.” See Wise v. Lipscomb, 437 U.S. 535, 540 (1978). At this time, we see 

no reason to deviate from this general rule. Plaintiffs’ requested relief also seems to assume this 

general rule, as their complaint asks this Court to establish a new plan, “if the Ohio Legislature 

and/or Governor fail to enact a new and constitutional plan in a timely manner.” See Dkt. 37 

(Second Am. Compl. at 51–52). We therefore hope that the Ohio General Assembly “will perform 

that duty and enact a constitutionally acceptable plan.” Chapman v. Meier, 420 U.S. 1, 27 (1975).

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We advise that Defendants and Plaintiffs must be prepared to move forward on a remedial 

plan pursuant to the following timeline and conditions:

1. The State should enact forthwith its own remedial plan consistent with this opinion no 

later than June 14, 2019. No continuances will be granted. The date of enactment shall be 

the date on which the Governor signs the proposed remedial plan into law; or, if the 

Governor vetoes the proposed remedial plan, the date of enactment shall be the date on 

which the General Assembly overrides the Governor’s veto.

2. On the same day that the State enacts its own remedial plan, Defendants shall provide 

notice of the plan’s enactment to this Court and to Plaintiffs. No later than seven days from 

the date on which the State enacts its own remedial plan (assuming it enacts such a plan by 

the June 14 deadline), Defendants shall file the enacted remedial plan with this Court. 

3. When Defendants file the State-enacted remedial plan with this Court, they shall also 

include: 

(A) All transcripts of committee hearings and floor debates related to the State-enacted

remedial plan;

(B) A description of the process that the General Assembly, and any constituent 

committees or members thereof, followed in drawing the State-enacted remedial plan, and 

Defendants shall disclose the identity of all participants involved in the process and map 

drawing;

(C) Data on the remedial plan’s population deviation, compactness, municipality and 

county splits, and any incumbent pairings;

(D) Any alternative plans considered by the General Assembly or any constituent 

committee;

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(E) All criteria, formal or informal, that were applied in drawing the State-enacted remedial 

plan, including, without limitation, any criteria related to race, partisanship, the use of 

political data, or the protection of incumbents, and a description of how the map drawers 

used any such criteria. If any of the criteria just listed were not used, Defendants shall so 

state.

4. If Plaintiffs believe that the State-enacted remedial map that the Defendants file is still 

unconstitutional, they must file their specific objections to it no later than seven days from 

the date on which Defendants file the State-enacted remedial plan with this Court.

We will then assess whether the State-enacted remedial plan is constitutionally permissible. 

If the State fails in its task to enact a remedial plan, we have our “own duty to cure illegally 

gerrymandered districts through an orderly process in advance of elections.” See Covington, 138 

S. Ct. at 2553–54 (citing Purcell, 549 U.S. at 4–5). In the appropriate circumstance, we may in 

our discretion not give the State “a second bite at the apple.” See id. at 2554 (citation omitted) 

(holding that the District Court did not abuse its discretion in appointing a Special Master when 

the State failed to enact a permissible remedial plan). This situation may arise if the State does not 

enact its own remedial plan by the June 14 deadline or if the State-enacted remedial plan is not “a 

constitutionally acceptable plan.” Chapman, 420 U.S. at 27. If this Court must step into the role 

of putting in place a new plan, several options are available. We will address each.

First, we may appoint a Special Master pursuant to Federal Rule of Civil Procedure 53 to 

assist the Court in drawing a remedial plan. To that end, we hereby order the parties to confer and 

file no later than June 3, 2019 at 5 P.M., a list of no more than three qualified and mutually 

acceptable candidates to serve as a Special Master. We may then select a Special Master from that 

list and issue an order outlining the timeline and requirements that apply to the Special Master’s 

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submission of a proposed remedial plan. The parties would be allowed to comment on any 

proposal from a Special Master. In the event that the parties cannot agree on any candidates for 

Special Master, we may identify a Special Master without input from the parties. 

Second, a situation could arise in which the State enacts a remedial plan, but we nonetheless 

find it constitutionally unacceptable. In this situation, the same procedures regarding the 

appointment of a Special Master would apply. If the State enacts a remedial plan that we reject, 

we will include in our opinion and order on that plan a timeline for the Special Master’s submission 

of a remedial plan. 

Finally, Mr. Cooper has submitted a Proposed Remedial Plan (and a corrected version 

thereof), as well as two hypothetical alternative plans that addressed the pairing of incumbents. 

Whether or not the State enacts a remedial plan that we consider, we hereby order the parties to

brief whether one of Mr. Cooper’s plans could or should be adopted as a remedial plan. The parties 

shall file these briefs simultaneously on June 3, 2019 at 5 P.M., along with the parties’ list of 

mutually acceptable candidates for Special Master (if the parties have not yet filed that list by that 

date).

***

In conclusion, we GRANT Plaintiffs’ request to declare the redistricting plan enacted in 

H.B. 369 unconstitutional. Moreover, we GRANT Plaintiffs’ request for injunctive relief, and we 

hereby enjoin the State from conducting any elections using the plan enacted in H.B. 369 in any 

future congressional elections. Finally, we ORDER that the parties proceed according to the 

remedial schedule outlined above.

IT IS SO ORDERED.

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ENTERED: May 3, 2019

s/ Karen Nelson Moore

HONORABLE KAREN NELSON MOORE

United States Circuit Judge

s/ Timothy S. Black

HONORABLE TIMOTHY S. BLACK

United States District Judge

s/ Michael H. Watson

HONORABLE MICHAEL H. WATSON

United States District Judge

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APPENDIX A

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APPENDIX B

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APPENDIX C

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