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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

____________________________________

)

OHIO A. PHILIP RANDOLPH )

INSTITUTE, et al. )

)

Plaintiffs, )

)

v. )

)

LARRY HOUSEHOLDER, Speaker of the )

Ohio House of Representatives, et al. )

)

Defendants. )

____________________________________)

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

Judge Timothy S. Black

Judge Karen Nelson Moore

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

[JOINT PROPOSED] FINAL PRETRIAL ORDER

This matter came before the Court at a Final Pretrial Conference held on February 

11, 2019, pursuant to Fed. R. Civ. P. 16.

I. APPEARANCES1

For Plaintiffs:

From ACLU of Ohio Foundation:

Freda J. Levenson (Trial Attorney)

Elizabeth Bonham

David J. Carey

From American Civil Liberties Union Foundation:

T. Alora Thomas-Lundborg

Theresa J. Lee

Emily Rong Zhang

Dale E. Ho

From Covington & Burling LLP:

Robert D. Fram

Nitin Subhedar

 1 Other attorneys not listed below who file a notice of appearance in this action may appear 

on behalf of the parties at trial.

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Jeremy Goldstein

Robert S. Day

Perrin Cooke

Isaac Wood

For Defendants:

From Ogletree, Deakins, Nash, Smoak & Stewart, P.C.:

Phillip J. Strach (Trial Attorney)

Michael D. McKnight

Brodie D. Erwin

Alyssa Riggins

From the Ohio Attorney General’s Office:

Steven T. Voigt

Nicole M. Koppitch 

Ann Yackshaw

For Intervenors:

From Baker Hostetler LLP:

Patrick T. Lewis (Trial Attorney)

E. Mark Braden (motion for leave to appear pro hac vice forthcoming)

Katherine L. McKnight

Richard B. Raile

Robert J. Tucker

Erika Dackin Prouty

II. NATURE OF ACTION ANDJURISDICTION

A. This is an action for injunctive and declaratory relief, challenging the Ohio 

congressional map as an unconstitutional partisan gerrymander in violation of 

the First Amendment, the Equal Protection Clause of the Fourteenth 

Amendment, of the right to vote guaranteed by the First and Fourteenth 

Amendments, and of Article I, § 4.

B. Plaintiffs invoke the jurisdiction of the Court under 28 U.S.C. §§ 1331, 1343, 

1357, and 42 U.S.C. § 1983, and jurisdiction to grant declaratory relief under 28 

U.S.C. §§ 2201, 2202. Defendants and Intervenors deny that the Court has 

jurisdiction to hear the case or to grant the declaratory relief Plaintiffs seek.

C. The jurisdiction of the Court is disputed. The parties dispute whether Plaintiffs’ 

claims are justiciable and whether Plaintiffs have standing to bring this action.

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D. The parties have not consented to entry of final judgment by the United States 

Magistrate Judge.

III. TRIAL INFORMATION

A. The estimated length of trial is 10 days.

B. Trial to the court has been set for March 4, 2019.

IV. AGREED STATEMENT ANDLISTS

A. General Nature of the Parties’ Claims

(1) Plaintiffs’ Claims:

In Claim 1, Plaintiffs allege that Ohio’s congressional map violates their First 

Amendment rights to associate with and advocate for a political party, to vote for 

their candidate of choice, to express their political views, and to participate in the 

political process,

In Claim 2, Plaintiffs allege that Ohio’s congressional map violates their right to vote 

under the First and Fourteenth Amendment. Partisan gerrymandering substantially 

burdens the right to vote. A voter is “deprive[d] . . . of the opportunity to cast a 

meaningful ballot” since the legislature constrains voters’ ability to “vote for the 

candidate of their choice.” Burdick v. Takushi, 504 U.S. 428, 447 (1992) (Kennedy, 

J., dissenting)

In Claim 3, Plaintiffs allege that Ohio’s congressional map violates their right to 

Equal Protection under the Fourteenth Amendment. Each individual Plaintiff was 

placed in a district where their vote carries less weight or consequence than it would 

under a neutrally drawn map. The districts were each drawn to privilege partisan 

outcomes at the expense of all other criteria. Each district was constructed to 

disfavor Democratic voters on the basis of their political affiliation, with no 

legitimate, let alone compelling, reason to do so. The map and its individual districts 

also have the “invidiously discriminatory” effect of “minimiz[ing] or cancel[ing] out 

the voting strength of . . . political elements of the voting population.” Gaffney v. 

Cummings, 412 U.S. 735, 751 (1973). 

In Claim 4, Plaintiffs allege that since Ohio’s map has both the intent and effect of a 

partisan gerrymander, it exceeds the state’s power under Article I of the Constitution.

(2) Defendants’ Claims:

Ohio’s current congressional districting plan comports fully with the Constitution. 

Defendants do not assert any affirmative counterclaims in this matter but oppose all 

of Plaintiffs’ claims and reassert the defenses asserted in their Answer to Plaintiffs’ 

Second Amended Complaint. (D.E. 37).

(3) Intervenors’ Claims:

Intervenors reassert all defenses and denials contained in their Answer to Plaintiffs’ 

Second Amended Complaint. Intervenors further assert that Plaintiffs are not entitled 

to any relief as asserted in Count I under the First Amendment for the following 

reasons:

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a. Plaintiffs lack standing to bring this claim

b. Plaintiffs’ claim is non-justiciable

c. Plaintiffs cannot show a violation under First Amendment standards for the 

type of claim they assert

d. The evidence does not show a violation of the First Amendment

Intervenors assert that Plaintiffs are not entitled to any relief as asserted in Count II 

under the Fourteenth Amendment’s guarantee of the right to vote for the following 

reasons:

a. Plaintiffs lack standing to bring this claim

b. Plaintiffs’ claim is non-justiciable

c. Plaintiffs cannot show a violation under Fourteenth Amendment standards for 

the type of claim they assert

d. The evidence does not show a violation of the Fourteenth Amendment

Intervenors assert that Plaintiffs are not entitled to any relief as asserted in Count III 

under the Fourteenth Amendment’s guarantee of equal protection for the following 

reasons:

a. Plaintiffs lack standing to bring this claim

b. Plaintiffs’ claim is non-justiciable

c. Plaintiffs cannot show a violation under Fourteenth Amendment standards for 

the type of claim they assert

d. The evidence does not show a violation of the Fourteenth Amendment

Intervenors assert that Plaintiffs are not entitled to any relief as asserted in Count IV 

under Article I, which empowers state legislatures to redistrict, for the following 

reasons:

a. Plaintiffs lack standing to bring this claim

b. Plaintiffs’ claim is non-justiciable

c. Plaintiffs cannot show a violation under Article I standards for the type of 

claim they assert

d. The evidence does not show a violation of Article I

Intervenors, as an affirmative defense, assert that Plaintiffs’ claims are barred by the 

doctrine of laches because they waited inexcusably for years to bring this case, 

prejudicing Intervenors who reasonably relied on the districts created by the 2012 

plan remaining in place for 10 years.

B. Uncontroverted Facts

The parties have entered into certain stipulations as to document authenticity. This 

includes (1) a stipulation as to the authenticity of the H.B. 369 sponsor testimony; (2) 

a stipulation regarding the authenticity of emails and their attachments at 

LWVOH_0052431, LWVOH_0052437, and LWVOH_0052438.

The parties have agreed in principle to a stipulation regarding the home addresses of 

the individual Plaintiffs and members of organizational Plaintiffs.

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The parties have exchanged sets of proposed uncontroverted facts. To confirm that 

such facts are indeed uncontroverted, counsel for Plaintiffs, Defendants, and 

Intervenors have agreed to confer following the filing of this Joint Pretrial Order. The 

parties will provide the Court will a single list of agreed-upon uncontroverted facts by 

February 6, 2019.

Plaintiffs’ Proposed Uncontroverted Facts are attached as Appendix A.

Defendants’ and Intervenors’ Proposed Uncontroverted Facts are attached as 

Appendix B.

C. Issues of Fact and Law 

The parties have identified and exchanged sets of contested facts.

(1) Plaintiffs:

Plaintiffs respectfully submit that, despite Defendants and Intervenors’ pending 

motion for summary judgment, there are genuinely disputed issues of material 

facts. 

Issues of Fact:

Plaintiffs present their Issues of Fact in Plaintiffs’ Statement of Contested Facts,

attached as Appendix C.

Issues of Law:

Plaintiffs also identify contested issues of law in addition to those implicit in the 

foregoing issues of fact, including:

a. Elements:

• Are partisan gerrymandering claims justiciable?

• What are the elements of partisan gerrymandering claims under the 

First Amendment, the Equal Protection Clause of the Fourteenth 

Amendment, the right to vote guaranteed by the First and Fourteenth 

Amendments, and Article I, § 4?

• What standard applies to the parties’ relative burdens of proof?

b. Discriminatory Intent:

• What if any discriminatory intent must be shown to sustain a claim 

that partisan gerrymandering violates the First Amendment, the Equal 

Protection Clause of the Fourteenth Amendment, the right to vote 

guaranteed by the First and Fourteenth Amendments, or Article I, § 4?

c. Discriminatory Effect:

• What if any discriminatory effect must be shown to sustain a claim 

that a redistricting scheme violates the First Amendment, the Equal 

Protection Clause of the Fourteenth Amendment, the right to vote 

guaranteed by the First and Fourteenth Amendments, or Article I, § 4?

d. Justification:

• What facts if any would justify a partisan gerrymander?

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(2) Defendants and Intervenors:

As set forth in Defendants’ pending Motion for Summary Judgment and Proposed 

Statement of Undisputed Material Facts (“PUMF”), Defendants and Intervenors 

respectfully submit that there are not genuinely disputed material facts and that 

Defendants and Intervenors are entitled to judgment as a matter of law on 

Plaintiffs’ claims. 

In the event the Court does not grant Defendants’ summary judgment motion, 

Defendants and Intervenors anticipate that the following may potentially be 

contested issues of fact and law:2

Issues of Law:

a. Do Plaintiffs’ claims fail to state a claim upon which relief may be granted?

b. Are Plaintiffs’ claims justiciable?

c. Do the allegations by Plaintiffs in the Second Amended Complaint 

demonstrate only generalized grievances about legislative decisions?

d. Do Plaintiffs lack standing?

e. Should Plaintiffs’ claims be dismissed on the grounds of estoppel and laches?

f. Should Plaintiffs’ claims be dismissed and/or the relief sought in the Second 

Amended Complaint be denied under Purcell v. Gonzalez, 549 U.S. 1 (2006)?

g. Do Plaintiffs fail to identify a manageable standard for determining a 

Constitutional violation?

h. Do Plaintiffs’ gerrymandering theories fail to constitute evidence of 

individualized injury under the First Amendment, Fourteenth Amendment, or 

Article I of the United States Constitution?

i. Does the 2012 Plan violate Plaintiffs’ rights under the First Amendment of the 

United States Constitution?

j. Does the 2012 Plan violate Plaintiffs’ rights under the Fourteenth Amendment 

of the United States Constitution?

k. Does the 2012 Plan violate Plaintiffs rights under Article I of the United 

States Constitution?

l. Has any Plaintiff demonstrated an injury under the 2012 Plan?

m. Is any injury demonstrated by Plaintiffs fairly traceable to the 2012 Plan?

n. Is any injury demonstrated by Plaintiffs redressable?

o. Is any injury demonstrated by Plaintiffs redressable by Plaintiffs’ Proposed 

Remedial Plan?

p. Have Plaintiffs submitted or defined a judicially manageable standard to 

assess whether the 2012 Plan violates the United States Constitution?

q. Did the overwhelming bipartisan support for the 2012 Plan violate the United 

States Constitution?

 2 Some issues of law listed below may also involve issues of fact and some issues of fact 

may also involve issues of law. Accordingly, the heading under which a potential issue is 

listed in this section is not intended to mean that a potential issue falls solely under the 

category in which it is listed.

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r. If Plaintiffs have submitted or defined a judicially manageable standard to 

assess whether the 2012 Plan violates the United States Constitution, then 

does the 2012 Plan violate any such standard in light of the overwhelming 

bipartisan legislative support for the Plan and the numerous nonpartisan 

factors that influenced individual districts in the 2012 Plan?

Issues of Fact:

a. That any Plaintiff lives in a “packed” or “cracked” district.

b. That the 2012 Plan has placed a burden on any Plaintiff’s right to vote.

c. That the 2012 Plan has diluted the vote of any Plaintiff. 

d. That any Plaintiff lacks an equal or fair opportunity to elect the 

Congressperson of their choice.

e. That any Plaintiff lacks an equal or fair opportunity to meaningfully influence 

congressional elections. 

f. That any Plaintiff has been prohibited from meaningfully participating in the 

political process.

g. That any Plaintiff has been inhibited by the 2012 Plan in voting, volunteering 

for any candidate, fundraising, donating to a candidate, engaging others to 

vote, or otherwise participating in electioneering activities, etc.

h. That the 2012 Plan is unconstitutionally biased in favor of the Republican 

Party.

i. That the 2012 Plan was designed to create a 12 to 4 Republican advantage. 

j. That there was a plan to consider drawing a map with a 13-3 Republican 

advantage. 

k. That any version of the map had to be approved by any national Republicans.

l. That any particular district was drawn with the intent to make it a Republican 

District or a Democratic District.

m. That Redmap had any involvement or impact on Ohio’s congressional 

redistricting in 2011.

n. How any political indices impacted the drawing of the congressional lines in 

2011.

o. What role politics played in the drawing of the congressional lines in 2011. 

p. That Democratic Party legislators, constituents, or representatives lacked 

political leverage in the redistricting process.

q. That any partisan tilt or so-called “bias” in the 2012 Plan is the result, solely 

or otherwise, of partisan intent.

r. That any partisan tilt or so-called “bias” in the 2012 Plan is the result of 

anything other than geography and legitimate redistricting factors.

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s. That any measure Plaintiffs provide of measuring partisan tilt or so-called 

“bias” is reliable, accurate, or meaningful.

t. That the 2012 Plan is unfair as measured by any manageable standards of 

assessing fairness.

u. That the 2012 Plan can be considered too partisan under any manageable 

standard when the legislature intended to pair two sets of Democratic and two 

sets of Republican incumbents.

v. That the 2012 Plan can be considered too partisan under any manageable 

standard when a majority of Democratic members of the legislature voted for 

it.

w. That the 2012 Plan can be considered too partisan under any manageable 

standard when the legislature intended to protect Democratic incumbents 

along with Republican incumbents.

x. That the 2012 Plan can be considered too partisan under any manageable 

standard when the legislature chose not to attempt to create a 13-3 Republican 

advantage, which was possible.

D. Witnesses

(1) Plaintiffs will call or will have available for testimony at trial the witnesses listed 

at Appendix D. Plaintiffs reserve the right to call at trial any witness listed by 

any other party in this case.

(2) Defendants will call or will have available for testimony at trial the witnesses 

listed at Appendix E. Defendants reserve the right to call at trial any witness 

listed by any other party in this case.

(3) Intervenors will call or will have available for testimony at trial the witnesses 

listed at Appendix F. Intervenors reserve the right to call at trial any witness 

listed by any other party in this case.

The parties reserve the right to call non-listed rebuttal witnesses whose testimony 

could not reasonably be anticipated without prior notice to opposing counsel.

The parties reserve the right to call foundation witness testimony if stipulations 

regarding document authenticity cannot be reached.

E. Expert Witnesses 

The parties are limited to the following number of expert witnesses, including 

treating physicians, whose names have been disclosed to opposing counsel:

(1) Plaintiffs:

Dr. Wendy K. Tam Cho

Mr. William S. Cooper

Dr. Lisa Handley

Dr. David Niven

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Dr. Christopher Warshaw

Further information regarding these witnesses is contained in Appendix D.

(2) Defendants:

Dr. M.V. (Trey) Hood III

Dr. Douglas Johnson

Dr. Janet Thornton

Mr. Sean P. Trende

Further information regarding these witnesses is contained in Appendix E.

(3) Intervenors:

Dr. Thomas Brunell

Further information regarding this witness is contained in Appendix F.

F. Exhibits

Counsel for Plaintiffs, Defendants, and Intervenors have agreed to confer regarding 

each party’s exhibit list and objections on January 30, 2019 to determine if they can 

agree to stipulations that would streamline the objections process and eliminate the 

need to elicit foundation testimony for certain documents. The parties will inform the 

Court of any stipulations reached by the parties prior to the February 11, 2019 pretrial 

conference.

Counsel for Plaintiffs, Defendants, and Intervenors also have agreed to confer

regarding a stipulation on the form and admissibility of exhibits displaying 

information contained in Maptitude computer files.

(1) Plaintiffs’ Exhibit List is attached as Appendix G. Plaintiffs reserve 

the right to introduce or rely upon any exhibit listed by any other party in 

this case.

(2) Defendants’ Exhibit List is attached as Appendix H. Defendants 

reserve the right to introduce or rely upon any exhibit listed by any other 

party in this case.

(3) Intervenors’ Exhibit List is attached as Appendix I. Intervenors 

reserve the right to introduce or rely upon any exhibit listed by any other 

party in this case.

The parties reserve the right to submit demonstrative exhibits at trial, at a date to be 

set by the Court at the Pretrial Conference.

The parties reserve the right to submit exhibits for the purpose of impeachment at 

trial.

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G. Depositions

Testimony of the following witnesses will be offered by deposition/video tape.

(1) Plaintiffs:

William Batchelder Clark Bensen Heather Blessing

Luann Boothe Mark Braden Ray DiRossi

Keith Faber Ann Henkener Matthew Huffman

Sarah Inskeep Gabrielle Jackson Chris Jankowski

Rep. Bill Johnson Rep. Jim Jordan Troy Judy

Adam Kincaid Michael Lenzo Cynthia Libster

Keary McCarthy John Morgan Lawrence Nadler

Tom Niehaus Alexis Oberdorf Larry Obhof

Tristan Rader Randall Routt Constance Rubin

Matt Schuler Jim Slagle Rep. Steve Stivers

Teresa Anne Thobaben Catherine Turcer Chitra Walker

Tom Whatman

(2) Defendants and Intervenors:

Heather Blessing Steve Chabot Keith Faber

Christopher Glassburn Matt Huffman Bill Johnson

Jim Jordan Mike Lenzo Keary McCarthy

Tom Neihaus Larry Obhof Randall Routt

Matt Schuler Steve Stivers Matthew Szollosi

All Individual Plaintiffs and Rule 30(b)(6) Designees of Organizational Plaintiffs

H. Discovery

Discovery has nearly been completed. Plaintiffs have the second deposition of Adam 

Kincaid pending, as he did not appear on the subpoenaed date of January 17, 2019.

I. Pending Motions

Currently pending before the Court is Defendants’ Motion for Summary Judgment, 

joined by Intervenors, which was filed on January 8, 2019.

Also pending before the Court are the motions in limine and Daubert motions filed 

on January 18, 2019.

J. Miscellaneous Orders

This Court entered the governing Stipulation and Protective Order on August 9, 2018. 

It considers the use of Confidential Information at trial in paragraph 9.

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V. MODIFICATION

This Final Pretrial Order may be modified at the trial of this action, or prior thereto, 

to prevent manifest injustice. Such modification may be made by application of 

counsel, or on motion of the Court.

VI. SETTLEMENT EFFORTS

The parties have made a good faith effort to negotiate a settlement and believe no 

settlement can be reached.

_____________________________________

UNITED STATES DISTRICT JUDGE

/s/ Freda J. Levenson

Freda J. Levenson (0045916) (Trial Attorney)

American Civil Liberties Union of Ohio Foundation

4506 Chester Avenue

Cleveland, Ohio 44103

Tel.: (614) 586-1958

flevenson@acluohio.org

Counsel for Plaintiffs

/s/Philip J. Strach

Phillip J. Strach (Trial Attorney)

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

4208 Six Forks Road, Suite 1100

Raleigh, NC 27609

Tel.: (919) 787-9700

phil.strach@ogletree.com

Counsel for Defendants

/s/Patrick T. Lewis

Patrick T. Lewis (0078314) (Trial Attorney)

Baker Hostetler LLP

127 Public Square, Suite 2000

Cleveland, Ohio 44114

Tel.: (216) 621-0200

plewis@bakerlaw.com

Counsel for Intervenors

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