IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

 ) 

OHIO A. PHILIP RANDOLPH INSTITUTE, ) 

LEAGUE OF WOMEN VOTERS OF OHIO, ) 

THE OHIO STATE UNIVERSITY COLLEGE ) 

DEMOCRATS, NORTHEAST OHIO YOUNG ) 

BLACK DEMOCRATS, HAMILTON COUNTY ) 

YOUNG DEMOCRATS, 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, ) No. 1:18-cv-00357-TSB 

 ) 

 Plaintiffs, ) Judge Timothy S. Black 

 ) Judge Karen Nelson Moore 

v. ) Judge Michael H. Watson 

 ) Magistrate Judge Karen L. Litkovitz 

RYAN SMITH, Speaker of the Ohio House ) 

of Representatives, LARRY OBHOF, ) 

President of the Ohio Senate, and ) 

JON HUSTED, Secretary of State of Ohio, ) 

in their official capacities, ) 

 ) 

 Defendants. ) 

________________________________________ ) 

DEFENDANTS’ MOTION TO DISMISS 

Pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., Defendants hereby move to 

dismiss plaintiffs’ Second Amended Complaint. All of plaintiffs’ claims should be dismissed 

with prejudice. 

A memorandum of law supporting this motion follows. 

 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 46 Filed: 07/20/18 Page: 1 of 24 PAGEID #: 448
This the 20th day of July, 2018. 

MICHAEL DEWINE 

Ohio Attorney General 

 By: /s/Phillip J. Strach 

Phillip J. Strach** 

N.C. State Bar No. 29456 

*Lead and Trial Counsel 

Michael McKnight** 

N.C. State Bar No. 36932 

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

 4208 Six Forks Road, Suite 1100 

 Raleigh, NC 27609 

 Tel.: (919) 787-9700 

 Facsimile: (919) 783-9412 

 phil.strach@ogletree.com 

 michael.mcknight@ogletree.com 

 Attorney for Defendants Smith & Obhof 

 **pro hac vice pending

 /s/Steven T. Voigt 

 Steven T. Voigt (0092879) 

Principal Assistant Attorney General 

Constitutional Offices Section 

30 E. Broad Street, 16th Floor 

Columbus, Ohio 43215 

Tel: (614) 466-2872 

Fax: (614) 728-7592 

 Steven.Voigt@OhioAttorneyGeneral.gov 

 Attorney for Defendants

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 46 Filed: 07/20/18 Page: 2 of 24 PAGEID #: 449
IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

 ) 

OHIO A. PHILIP RANDOLPH INSTITUTE, ) 

LEAGUE OF WOMEN VOTERS OF OHIO, ) 

THE OHIO STATE UNIVERSITY COLLEGE ) 

DEMOCRATS, NORTHEAST OHIO YOUNG ) 

BLACK DEMOCRATS, HAMILTON COUNTY ) 

YOUNG DEMOCRATS, 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, ) No. 1:18-cv-00357-TSB 

 ) 

 Plaintiffs, ) Judge Timothy S. Black 

 ) Judge Karen Nelson Moore 

v. ) Judge Michael H. Watson 

 ) Magistrate Judge Karen L. Litkovitz 

RYAN SMITH, Speaker of the Ohio House ) 

of Representatives, LARRY OBHOF, ) 

President of the Ohio Senate, and ) 

JON HUSTED, Secretary of State of Ohio, ) 

in their official capacities, ) 

 ) 

 Defendants. ) 

________________________________________ ) 

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS 

INTRODUCTION 

In the 2010 election, Republicans won 13 congressional seats in Ohio, compared to five 

seats for Democrats. In the 2012 election, after Ohio lost two congressional seats because of the 

decennial census and the districts were redrawn, Republicans won 12 congressional seats to 

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2 

Democrats’ four seats. This unremarkable turn of events forms the basis of plaintiffs’ partisan 

gerrymandering claims and epitomizes the speciousness of this lawsuit. 

That the claims are meritless is underscored by how long plaintiffs waited to bring them. 

Despite knowing the district boundaries in 2011 and watching elections take place in those 

districts in 2012, 2014, and 2016, plaintiffs waited until May 23, 2018—nearly seven years—to 

file this action. Meanwhile, Ohio voters and candidates have relied upon the existing 

congressional districts for three elections (four elections by the time this case would be tried). 

Plaintiffs also waited until after Ohio voters approved a new bipartisan process for drawing 

congressional districts beginning in 2021. Plaintiffs would have Ohioans vote in the current 

congressional districts in 2018, new districts (presumably of plaintiffs’ liking) in 2020, and a 

third set of districts drawn under the state’s newly-adopted redistricting process in 2022. Such 

an outcome—three different sets of congressional districts over roughly four calendar years—is 

manifestly unfair to Ohio’s voters. Accordingly, laches bars plaintiffs’ belated claims. 

In any event, plaintiffs’ so-called partisan gerrymandering claims are nonjusticiable. A 

majority of the Supreme Court recently acknowledged that it has not decided the “threshold 

question[]” of “whether [partisan gerrymandering] claims are justiciable” at all. Gill v. Whitford, 

138 S. Ct. 1916, 1929 (2018). Consistent with the current state of the law, the Supreme Court 

also summarily affirmed a three-judge court’s refusal to entertain partisan gerrymandering 

claims on the basis that the claims were nonjusticiable. Harris v. Cooper, No. 16-166, 2018 WL 

3148263, *1 (U.S. June 28, 2018). This Court should therefore dismiss these claims. If 

plaintiffs want the Supreme Court to reverse course, they will have ample opportunity to make 

that argument on appeal. Cf. Shaw v. Reno, 509 U.S. 630 (1993) (deciding the scope and extent 

of racial gerrymandering claim following dismissal by district court). 

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3 

Finally, plaintiffs have not alleged facts sufficient to demonstrate standing. Instead, 

plaintiffs have simply recycled allegations and social science theories from prior cases that are 

not only insufficient, but are similar to those rejected by the Supreme Court in Gill. Plaintiffs’ 

conclusory allegations about undefined notions of “packing” and “cracking” are insufficient to 

confer standing. Accordingly, plaintiffs’ claims should be dismissed. 

PLAINTIFFS’ ALLEGATIONS 

Plaintiffs in this case include multiple individuals as well as sophisticated state, national, 

and local organizations that have litigated numerous election cases in this state. See, e.g., League 

of Women Voters v. Brunner, 548 F.3d 463 (6th Cir. 2008); League of Women Voters of Ohio v. 

Blackwell, 2006 U.S. Dist. LEXIS 23437 (N.D. Ohio Mar. 23, 2006); Dunkle v. Brown, 590 F.2d 

334 (6th Cir. 1978); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018); Ohio State Conf. 

of the NAACP v. Husted, 43 F. Supp. 3d 808 (2014), stayed, 135 S. Ct. 42 (2014), vacated, 2014 

U.S. App. LEXIS 24472 (6th Cir. Oct. 1, 2014). 

The congressional districts at issue in this case were enacted in December 2011. Second 

Amended Complaint (“Sec. Am. Comp.”) ¶ 84. The initial complaint in this case was not filed 

until May 23, 2018, nearly seven years after enactment of the plans.1

 Plaintiffs concede that the 

political results they blame on the congressional map came to light as early as the 2012 election. 

Sec. Am. Comp. ¶ 85. 

The second amended complaint alleges purported partisan gerrymandering claims under 

the Equal Protection Clause, First Amendment, and Article I of the United States Constitution. 

Plaintiffs do not propose a standard for these claims. Instead, plaintiffs rely on “metrics for 

measuring partisan asymmetry.” Sec. Am. Comp. ¶¶ 121-30. These include a purported 

 

1

 An amended complaint was filed on June 26, 2018 following the Gill decision. A second 

amended complaint dismissing Governor Kasich as a party was filed on July 11, 2018. 

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4 

“efficiency gap,” the mean-median difference, and alleged measures of “partisan bias.” Id. at ¶ 

121. Plaintiffs concede that these measures rest on a notion of group rights rather than individual 

rights: “that the map should give voters of both parties a similar opportunity to elect their 

candidates of choice.” Id. at ¶ 122. To that end, the allegations of the complaint focus primarily 

on the so-called “partisan skew” of the entire “map” as opposed to specific districts. Id. at ¶ 126. 

Plaintiffs make pro forma allegations regarding the sixteen congressional districts. For 

instance, each individual plaintiff recites that he or she is a “Democratic voter,” who has 

“supported Democratic candidates” for Ohio’s congressional districts in the past as well as a 

general summary of the extent of his or her political activity aside from voting. None of the 

plaintiffs allege facts regarding specific candidates they have supported, whether they have ever 

voted for a candidate other than a Democrat for Congress, or whether their “support” for 

Democrats extends to elections other than congressional contests. 

The individual plaintiffs base their allegations of injury solely on the purported “packing” 

or “cracking” of congressional districts. Plaintiffs Inskeep, Walker, Rader, Harris, and Myer 

claim that they reside in so-called “packed” districts in which more “Democratic voters” are 

placed in a district than a number allegedly needed to secure the election of a candidate that 

matches that plaintiff’s partisan preference. Plaintiffs who reside in “packed” districts have 

purportedly been harmed because “concentrating Democratic voters into [the “packed” districts] 

reduce[s] their power throughout the rest of the state.” Sec. Am. Comp. ¶ 88. These plaintiffs 

claim that their vote carries “less weight” (Sec. Am. Comp. ¶¶ 91, 93, 95, 96), but do not explain 

how their vote has less weight in their own district as opposed to other districts “throughout the 

rest of the state.” 

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5 

Plaintiffs Goldenhar, Burks, Libster, Deitsch, Boothe, Griffiths, Nadler, Megnin, Dagres, 

Hutton, Thobaben, and Rubin claim that they reside in so-called “cracked” districts in which not 

enough “Democratic voters” are placed into a district to secure the election of a candidate who 

meets that plaintiff’s partisan preference. In these districts plaintiffs claim that “Democrats” 

“use up” their votes such that “[n]one” of their votes “go towards” electing “Democratic 

candidates of choice.” Sec. Am. Comp. ¶ 97. They claim that these votes carry “less weight” or 

“consequence” because the votes are not “contributed towards” electing Democratic candidates. 

Sec. Am. Comp. ¶¶ 98, 100, 158. Further, these plaintiffs concede that Republicans were often if 

not exclusively elected in these so-called cracked districts prior to enactment of the 

congressional map at issue in this case. Sec. Am. Comp. ¶¶ 102, 108. 

Plaintiffs’ first claim is an alleged violation of the First Amendment right to freedom of 

speech and association. Plaintiffs claim that the challenged map “burdens” their First 

Amendment rights to “associate and participate in the political process.” Moreover, plaintiffs 

allege that the map burdens the state’s “disfavored political party” because it has been 

“deprived” of its “natural political strength.” Sec. Am. Comp. ¶ 146. 

Plaintiffs’ second claim is an alleged denial of the right to vote under the Fourteenth 

Amendment. They do not, however, allege that they were prevented from voting in 

congressional elections. Rather, plaintiffs claim that their “exercise” of the right to vote has been 

“burdened.” Sec. Am. Comp. ¶ 152. They contend that the map should fail “heightened” 

scrutiny because it was allegedly enacted with partisan intent, “entrench[es]” partisan advantage 

against “likely changes in voter preference” and makes Democratic votes have “less 

consequence” than those of Republicans. Sec. Am. Comp. ¶ 155. 

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6 

Plaintiffs’ third claim is an alleged denial of equal protection under the Fourteenth 

Amendment. Again, plaintiffs do not allege that they were denied their right to vote, but rather 

contend that their vote supposedly carries “less weight or consequence” under the challenged 

map. Sec. Am. Comp. ¶ 158. Plaintiffs also allege that the map has the “effect” of “cracking 

and packing” the plaintiffs which “dilute[d]” the “power” of their votes. Sec. Am. Comp. ¶ 162. 

But plaintiffs contend that Democrats only in “cracked” districts lacked “an opportunity to elect 

their congressional candidates of choice, and/or a meaningful opportunity to influence 

congressional elections, absent special circumstances.” Sec. Am. Comp. ¶ 164. 

Finally, plaintiffs bring claims under Article I. This claim is subsumed by plaintiffs’ 

other claims in that they claim the challenged map “exceeds the state’s power under Article I” 

because it “has both the intent and effect of a partisan gerrymander.” Sec. Am. Comp. ¶ 169. 

All of plaintiffs’ claims should be dismissed for the reasons discussed below. 

ARGUMENT 

I. Plaintiffs’ claims are nonjusticiable. 

 In its most recent pronouncement on so-called partisan gerrymandering claims, a majority 

of the Supreme Court acknowledged that it has not decided the “threshold question[]” of 

“whether those claims are justiciable.” Gill v. Whitford, 138 S. Ct. at 1929. The Court surveyed 

its cases in this area and concluded that its “considerable efforts in Gaffney, Bandemer, Vieth, 

and LULAC leave unresolved whether [partisan gerrymandering] claims may be brought.” Id. 

(emphasis added). See also Id. at 1932 (noting that certain evidence on remand may be relevant 

but only if “such claims present a justiciable controversy”); Id. at 1934 (noting that Gill involves 

“an unsettled kind of claim this Court has not agreed upon”; Id. (the “contours and justiciability” 

of partisan gerrymandering claims are “unresolved”) (emphasis added). 

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 Nor was the justiciability issue resolved by Davis v. Bandemer, 478 U.S. 109 (1986). 

Instead, in reviewing Bandemer, the Gill Court described it as a majority of the Court agreeing 

only “that the case before it” was justiciable, not that partisan gerrymandering is itself in general 

a justiciable claim. Gill, 138 S. Ct. at 1927. The Gill majority also cast doubt on the 

justiciability of these claims in recounting League of United Latin American Citizens v. Perry, 

548 U.S. 399 (2006) (“LULAC”) and Vieth v. Jubelirer, 541 U.S. 267 (2004). The Court 

specifically found that in LULAC, “[a]s in Vieth, a majority of the Court could find no justiciable 

standard” for partisan gerrymandering claims. Gill, 138 S. Ct. at 1928. Thus, it is clear that the 

most recent majority of the Supreme Court does not view the justiciability of partisan 

gerrymandering claims as established.2

It is not surprising, then, that the Supreme Court this Term also summarily affirmed a 

three-judge court’s refusal to entertain partisan gerrymandering claims on the basis that the 

claims were nonjusticiable. Harris v. Cooper, No. 16-166, 2018 WL 3148263, *1 (U.S. June 28, 

2018). 

In Harris, plaintiffs challenged North Carolina’s 2016 congressional plan as a partisan 

gerrymander. The Harris plaintiffs contended that partisan gerrymandering is “unconstitutional” 

and that under any standard for partisan gerrymandering the 2016 congressional plan was 

unlawful. Plaintiffs’ Objections and Memorandum of law Regarding Remedial Redistricting 

Plan at *13, Harris v. McCrory, No. 1:13-CV-00949, 2016 WL 3537185 at *13 (M.D.N.C. Mar. 

3, 2016) (emphasis added). Like plaintiffs in this case, the Harris plaintiffs assailed the alleged 

“cracked” or “packed” districts in the 2016 congressional plan as unconstitutional. Id. at *14. 

 

2 Gill included claims brought under the equal protection clause of the Fourteenth Amendment as 

well as the First Amendment. Gill, 138 S. Ct. at 1923, 1924, 1925. The Supreme Court’s refusal 

to recognize the justiciability of these claims extends here to plaintiffs’ Article I claims since 

those claims as pled are coextensive with plaintiffs’ First and Fourteenth Amendment claims. 

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8 

They went so far as to assert that “if the circumstances here do not present grounds for striking 

down a map as a partisan gerrymander, nothing ever will.” Id. at *15-16 (emphasis added). 

The Harris three-judge district court rejected these claims. The court explained that the 

plurality in Vieth held partisan gerrymandering claims “nonjusticiable.” Harris, 2016 WL 

3129213, at *2 (M.D.N.C. June 2, 2016). The court specifically acknowledged that “in light of 

the plurality holding in Vieth, the Court’s hands appear to be tied.” Id. at *2 (emphasis added). 

The court conceded that “politics” is a legitimate and traditional redistricting criterion, and that 

the Supreme Court had not yet defined when the use of politics would go “too far.” Id. Nor had 

the Harris plaintiffs identified a justiciable standard by which such a determination could be 

made. Id. On June 28, 2018, the Supreme Court affirmed this judgment, a ruling that now has 

precedential value. Hicks v. Miranda, 422 U.S. 332, 344 (1975). 

Thus, after Gill, there is simply no basis for this Court to predict whether even a single 

Justice of the Supreme Court might agree that plaintiffs’ complaint alleges claims upon which 

relief can be granted. Plaintiffs cannot cite a single case where the Supreme Court has upheld a 

determination that a legislative or congressional plan or district was an unconstitutional partisan 

gerrymander, and Gill has cast a considerable shadow over these claims. In fact, the only case 

this Term involving partisan gerrymandering that was affirmed by the Supreme Court was 

Benisek v. Lamone, 266 F.Supp.3d 799 (D. Md. 2017) where the lower court denied relief on the 

plaintiffs’ claim. Every other case was vacated and remanded. Gill, 138 S. Ct. at 1934; Common 

Cause v. Rucho, 279 F.Supp.3d 587 (M.D.N.C. 2018) vacated, No. 17-1295, __ S. Ct. __, 2018 

WL 1335403, *1 (U.S. Jun. 25, 2018). Under these circumstances, this Court would have to 

invent a new theory of partisan gerrymandering for these plaintiffs’ claims to survive. 

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9 

This Court should be circumspect of plaintiffs’ invitation to go so far beyond existing 

precedent. If such a claim does exist, it should be first recognized by the Supreme Court, given 

its recent rejection of similar claims and the absence of any precedent supporting the invention of 

a justiciable standard for evaluating partisan gerrymanders. See Shaw v. Reno, 509 U.S. 630 

(1993) (deciding the scope and extent of racial gerrymandering claim following dismissal by 

district court).3

While Gill involved claims under the First and Fourteenth Amendments, the lack of 

justiciability extends to claims under Article I of the Constitution as well. The Supreme Court in 

Gill repeated its recognition that redistricting is an inherently partisan process and that partisan 

considerations will always be a part of any redistricting effort. Gill, 138 S. Ct. at 1926-29; Vieth, 

541 U.S. at 286 (plurality opinion); see Vieth, 541 U.S. at 307 (Kennedy, J. concurring); Vieth, 

541 U.S. at 343 (Souter and Ginsburg, J. J., dissenting) (“some intent to gain political advantage 

is inescapable whenever political bodies devise a district plan”); Vieth, 541 U.S. at 358 (Breyer, 

J., dissenting) (“political considerations will likely play an important, and proper, role in the 

drawing of district boundaries”); Gaffney v. Cummings, 412 U.S. 735, 752 (1973). 

It would be illogical to conclude that evidence failing to establish standing for plaintiffs 

bringing claims under the First or Fourteenth Amendments could nevertheless be used to 

establish standing under an unprecedented interpretation of Article I of the Constitution. See, 

e.g., Vieth, 541 U.S. at 305 (2004) (plurality opinion) (dismissing claims under Article I, Section 

2 and 4); Pope v. Blue, 809 F. Supp. 392, 398 (W.D.N.C. 1992), sum. aff’d, 506 U.S. 801 (1992) 

 

3

 Indeed, if the Court dismisses these claims now, this case could be ripe for Supreme Court 

review this Term, along with cases on remand out of Wisconsin, Maryland, and North Carolina. 

This would increase the chance that this case could be resolved (or at least litigated with fresh 

substantive guidance from the Supreme Court) prior to the 2020 election cycle—which is what 

plaintiffs claim they want. 

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(citing Washington v. Finley, 664 F.2d 913, 927-28 (4th Cir. 1981) (First Amendment provides 

no more protection in vote dilution case than that afforded by the Fourteenth and Fifteenth 

Amendments)). 

It is well established that Article I, Section 2 of the United States Constitution only 

requires that congressional districts consist of equal population. Karcher v. Daggett, 462 U.S. 

725, 734 n.6 (1983); Kirkpatrick v. Preisler, 394 U.S. 526, 534 (1969); Pope, 809 F. Supp. at 

397-98; Badham v. March Fong Eu, 694 F. Supp. 664, 673-75 (N.D. Ca. 1988), aff’d 488 U.S. 

1024 (1989). No precedent exists for a gerrymandering standard under Section 4 of Article I, 

much less one that has a different standing standard than what would be required by Gill. 

Federal district courts have already rejected gerrymandering claims under both Section 2 and 

Section 4 of Article I. Shaw v. Barr, 808 F. Supp. 461, 468-69 (E.D.N.C. 1992) (three-judge 

court) (racial gerrymandering). The three-judge court was unanimous as to these claims and this 

ruling was not disturbed by the Supreme Court. Shaw v. Reno, 509 U.S. 630 (1993); see also 

Shaw v. Hunt, 861 F. Supp. 408, 420 (1994), rev’d on other grounds, 517 U.S. 899 (1996) 

(noting that the panel’s Article I judgment was “undisturbed” by the Supreme Court). 

This rejection makes sense in light of Vieth. The plurality there cited Section 4 of Article 

I in recognizing that the Constitution “clearly contemplates districting by political entities” 

which “unsurprisingly [] turns out to be root-and-branch a matter of politics.” Vieth, 541 U.S. at 

285-86. The plurality noted that plaintiffs’ Article I claims were “fleeting” and that Article I 

contains no “judicially enforceable limit” for politics in redistricting. Id. at 305. None of the 

concurring or dissenting Justices in Vieth disagreed with the plurality’s interpretation of Article I 

and its inapplicability to partisan redistricting claims. 

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It is unsurprising that there is a dearth of case law supporting plaintiffs’ position. Article 

I recognizes that decisions about districting are inherently political and thus places only one 

substantive limit on those decisions—that they must be single-member districts. The alternative 

rejected by Congress—at-large elections for Congress—is the baseline against which Congress 

mandated single-member districts. Of course, as recognized by the Supreme Court, “[t]he very 

essence of districting is to produce a different—a more ‘politically fair’—result than what would 

be reached with elections at large, in which the winning party would take 100% of the 

[congressional] seats.” Gaffney, 412 U.S. at 753. If Ohio congressional elections had been held 

at large in 2012, 2014, and 2016, Republicans would have won all 16 seats, not just 12 seats. 

See Sec. Am. Comp. ¶ 2 (noting that Republican candidates won at least 51% of the total 

statewide vote in Ohio congressional elections from 2012-2016). Thus, whatever Article I may 

hold for redistricting purposes, it imposes no “fairness” standard beyond allowing Congress to 

regulate congressional elections to prevent entire congressional delegations from swinging back 

and forth between political parties in at-large elections. 

II. Plaintiffs’ claims are barred by laches. 

Plaintiffs’ seven-year wait to file this case is inexcusable. If the current map were 

constitutionally infirm—and it is not—plaintiffs should have filed a challenge years ago. 

Instead, they bring belated claims when they will affect, at most, one election before the next 

redistricting process. The remedy they seek would result in three different congressional maps in 

four years, causing certain confusion and prejudice to the state of Ohio and its citizens. This 

Court should dismiss these claims as untimely. 

“Laches arises from an extended failure to exercise a right to the detriment of another 

party,” Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634, 639 n.6 (6th Cir. 2009). It is wellCase: 1:18-cv-00357-TSB-KNM-MHW Doc #: 46 Filed: 07/20/18 Page: 13 of 24 PAGEID #: 460
12 

established that in election-related matters, “extreme diligence and promptness are required.” 

McClafferty v. Portage County Bd. of Elections, 661 F.Supp.2d 826, 839 (N.D. Ohio 2009) 

(emphasis added). And when a party fails to exercise diligence in seeking relief in an electionrelated matter, laches may bar the claim. Id. (citing State ex rel. Demaline v. Cuyahoga County 

Bd. of Elections, 90 Ohio St.3d 523, 526 (2000)). This is true here, where plaintiffs allege a 

constitutional violation, as constitutional challenges “‘can become time-barred just as any other 

claim can.’” Michigan Chamber of Commerce v. Land, 725 F.Supp.2d 665, 680 (W.D. Mich. 

July 23, 2010) (quoting U.S. v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 9 (2008)).

 Normally, a party asserting laches must show (1) lack of diligence by the party against 

whom the defense is asserted, and (2) prejudice to the party asserting the defense. Land, 725 

F.Supp.2d at 680. The Ohio Supreme Court has held that when laches is raised in an election 

case “[t]he party challenging the election bears the burden of demonstrating that ‘they acted 

with the requisite diligence.’” Id. at n.10 (emphasis added) (quoting McClafferty, 661 F.Supp.2d 

at 839; State ex rel. Demaline, 90 Ohio St.3d at 526); see also Purcell v. Gonzalez, 549 U.S. 1 

(2006) (finding that an injunction was not warranted to avoid voter confusion, given the 

“inadequate time to resolve the factual disputes” and due to the “necessity [to] allow the election 

to proceed”); SEIU Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012) (“As 

a general rule, last-minute injunctions changing election procedures are strongly disfavored”). 

Plaintiffs cannot meet their burden of demonstrating diligence and lack of prejudice to 

Ohio voters. The opposite is true. First, the organizational plaintiffs in this case are 

sophisticated litigators which have engaged in high profile, significant litigation in Ohio 

throughout this decade and in prior decades. League of Women Voters v. Brunner, 548 F.3d 463 

(6th Cir. 2008); League of Women Voters of Ohio v. Blackwell, 2006 U.S. Dist. LEXIS 23437 

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13 

(N.D. Ohio Mar. 23, 2006); Dunkle v. Brown, 590 F.2d 334 (6th Cir. 1978); Husted v. A. Philip 

Randolph Inst., 138 S. Ct. 1833 (2018); Ohio State Conf. of the NAACP v. Husted, 43 F. Supp. 

3d 808 (2014), stayed, 135 S. Ct. 42 (2014), vacated, 2014 U.S. App. LEXIS 24472 (6th Cir. 

Oct. 1, 2014). Moreover, their state and national counterparts have engaged in similar litigation 

outside of Ohio this decade. See, e.g., Common Cause v. Rucho, 279 F.Supp.3d 587 (M.D.N.C. 

2018) (consolidated with case brought by League of Women Voters of North Carolina). At least 

three cases this decade alleging nearly identical claims as this action were initiated, tried (one to 

a preliminary injunction motion, two to trial) and subjected to Supreme Court review this Term, 

all before this case was even filed. The organizational plaintiffs and counsel in this case were 

surely aware of their ability to bring this challenge well before 2018. 

Second, the complaint in this case demonstrates that these plaintiffs were aware at least 

as early as 2012 of the alleged basis they would assert for these claims. Numerous allegations 

throughout the complaint recite alleged events that occurred in 2010 and 2011. The complaint 

relies on documents and exhibits from cases in other states that occurred as early as 2012 (Sec. 

Am. Comp. ¶ 47 n.3) and documents obtained from the Internet as early as 2013 (Sec. Am. 

Comp. ¶ 45 n.2). Plaintiffs recite numerous events that occurred during the process of enacting 

the challenged map, all of which occurred in 2011. Sec. Am. Comp. ¶¶ 44-84. They also 

candidly admit that as of 2012, plaintiffs viewed the 2011 map as an alleged “effective and 

durable” partisan gerrymander. Sec. Am. Comp. ¶ 85. There can be no doubt that the plaintiffs 

in this matter sat on their hands and on their presumed rights for nearly a decade without 

justification and filed these claims only after Ohio voters approved redistricting reform. 

The prejudice to the state’s voters after this much time has elapsed is palpable. Ohio’s 

voters have voted in the existing districts for three election cycles, with a fourth election in just a 

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few months. Voters have become habituated to their districts and elected representatives for the 

better part of a decade. Candidates and elected Members of Congress have invested incalculable 

time and resources into learning the contours of each district, getting to know their constituents, 

and planning campaigns in the district. See Timmons v. Twin Cities Area New Party, 520 U.S. 

351, 364 (1997) (states have strong interests in election “efficiency” and the “stability of their 

political systems”). 

Ordinarily the disruption occasioned by even a timely lawsuit of this nature is confusing. 

But the delay here compounds confusion. If this Court ultimately grants relief to these plaintiffs, 

the voters of Ohio will have to vote under three different congressional district maps in three 

elections. First, voters will vote in 2018 in the current districts. Then in 2020 voters would vote 

in any new map produced as a result of this litigation. Finally, in 2022, the map will change yet 

again because of the decennial census, and voters will have to learn new districts for a third time. 

All of this confusion could have been avoided if plaintiffs had brought these claims in 2012 

when plaintiffs suspected the challenged map of being an “effective and durable” partisan 

gerrymander. Plaintiffs slept on their rights and should not now be permitted to disrupt and 

confuse the public over congressional districts they have grown accustomed to over nearly a 

decade. 

Importantly, the Supreme Court’s recent decision in Benisek v. Lamone, 138 S. Ct. 1942 

(2018) counsels in favor of the application of laches to this case. In Benisek, a preliminary 

injunction case, the Supreme Court found that the plaintiffs had not acted with “reasonable 

diligence” where they waited until 2016 to assert the claims for which they sought injunctive 

relief. Benisek, 138 S. Ct. at 1945. This was particularly true where waiting three election 

cycles was due to circumstances “within plaintiffs’ control.” Id.; See also Fishman v. Schaffer, 

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429 U.S. 1325, 1330 (1976) (Marshall, J., in chambers) (denying relief where plaintiffs were 

aware of statute for more than a year but waited to take action). And it was especially important 

in an election case where “due regard” must be taken for the “public interest in orderly 

elections.” Benisek, 138 S. Ct. at 1944-45. 

This case falls squarely within the precedent of Benisek, and the plaintiffs here waited 

even longer than the plaintiffs in that case. The practical effect of plaintiffs’ delay is that the 

Ohio voting public will be subjected to possibly three different congressional maps in the next 

three elections. Because this is untenable, plaintiffs’ claims should therefore be dismissed. 

III. Plaintiffs lack standing. 

Plaintiffs’ claims must be dismissed for lack of standing. Standing “is a threshold 

question in every federal case” and “[t]he burden of establishing standing is on the party seeking 

federal court action.” McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012) (internal quotations 

omitted). Plaintiffs have not and cannot establish standing here. 

The “irreducible constitutional minimum of standing” has three requirements which the 

plaintiff must plead and prove: (1) that he has suffered a “concrete and particularized injury” that 

(2) is “fairly traceable to the challenged conduct” and (3) is likely to be redressed by a favorable 

decision by the courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Fair 

Elections Ohio v. Husted, 770 F.3d 456, 459 (6th Cir. 2014). A “‘generalized grievance’ shared 

in substantially equal measure by all or a large class of citizens” is not sufficient to confer 

standing. Warth v. Seldin, 422 U.S. 490, 499 (1975). Moreover, harm cannot be proved by 

plaintiffs’ “speculation” about what might happen. Simon v. E. Kent. Welfare Rights 

Organization, 426 U.S. 26, 44 (1976). Injury-in-fact must instead be “both real and immediate.” 

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City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Plaintiffs here have not pled facts 

sufficient to satisfy the requirements for standing. 

A. No injury-in-fact 

 (i) Plaintiffs in alleged packed districts 

Plaintiffs residing in Districts 3, 9, 11, and 13 allege that their districts have been 

“packed” such that the “power” of their vote in other districts has been reduced. Under Gill, this 

does not demonstrate standing and plaintiffs’ complaint appears to concede this fact. 

The plaintiffs in these districts are all similarly situated to the lead Gill plaintiff, 

Professor Whitford. Professor Whitford could not credibly allege a claim that his vote had been 

diluted because of cracking or packing because he resides in a district that regularly elected his 

candidate of choice. Gill, 138 S. Ct. at 1933. Like Professor Whitford, the plaintiffs in districts 

3, 9, 11, and 13 also have been able to elect their candidates of choice. Thus, none of these 

individual plaintiffs have themselves been “disadvantaged” and therefore have not suffered a 

“concrete and particularized” injury. Id. 

Plaintiffs appear to concede this fact. In their prayer for relief, they do not include the 

plaintiffs living in so-called packed districts in their request to declare that plaintiffs have been 

denied an opportunity to elect candidates of choice. The requested declaration is limited to 

plaintiffs in “Districts 1, 2, 4, 5, 6, 7, 8, 10, 12, 14, 15, and 16”—all allegedly “cracked” districts. 

This concession first appeared in plaintiffs’ First Amended Complaint, which was filed after the 

Supreme Court criticized plaintiff Whitford’s standing in Gill. (D.E. 33, p. 51) Accordingly, 

even plaintiffs appear to agree that residing in “packed” districts is insufficient to confer 

standing, and any challenge to these districts should be dismissed. 

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 (ii) Plaintiffs in alleged cracked districts 

The plaintiffs residing in the remaining individual districts also lack standing. Plaintiffs 

claim that their injury is a “diluted” vote that has less “weight” or “consequence.” 

Plaintiffs are not actually complaining about the “weight” of their vote. No such 

complaint can be made based on longstanding Supreme Court precedent. This is not a 

malapportionment case, in which the weight of a vote of a voter living in an overpopulated 

district is undeniably and mathematically lower than the weight of a vote of a voter living in an 

underpopulated district. Reynolds v. Sims, 377 U.S. 533, 561 (1964) (an individual’s right to 

vote is “individual and personal in nature”). “The injury in a malapportionment case is ‘a gross 

disproportion of representation to voting population.’” Common Cause, 279 F.Supp.3d at 611 

(quoting Baker v. Carr, 369 U.S. 186, 207 (1962)). Such numerical disproportion is a true 

dilutionary harm. Reynolds, 377 U.S. at 568. The plaintiffs in this case have not alleged, and in 

fact could not show, that their votes are similarly diluted. 

Instead, plaintiffs here have been unable to vindicate their partisan preference in recent 

congressional elections. But the weight of one’s actual vote is not the equivalent of the weight of 

one’s partisan preference. For instance, plaintiffs allege that the votes of “Democrats” are “used 

up” before their partisan candidate can be elected. They incorrectly suggest that their votes do 

not “go towards” electing Democratic candidates. But these are not concerns about the weight of 

their votes. Plaintiffs make no allegations showing that their votes are in fact not counted or do 

not “go towards” the vote totals of their preferred candidate. Their votes are not “used up” in an 

election; they are simply not enough in that election (depending on turnout and any innumerable 

other factors) to elect a candidate these plaintiffs want to elect. 

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The Supreme Court has taken pains to explain that “the mere fact that a particular 

[redistricting] makes it more difficult for a particular group in a particular district to elect the 

representatives of its choice does not render that scheme constitutionally infirm.” Bandemer, 

478 U.S. at 131. Indeed, the “power to influence the political process is not limited to winning 

elections” and this is “true even in a safe district where the losing group loses election after 

election.” Id. at 132. 

Moreover, plaintiffs do not allege that but for the alleged “cracking,” their preferred 

candidate would have won any of the elections they complain about. Plaintiffs are simply 

assuming that if the district boundary had zigged one way instead of zagging another, their 

candidate would have been elected. But they are not confident enough in their assumption to 

allege it as an actual fact. 

Instead, plaintiffs in the “cracked” districts are really complaining about the perceived 

loss of voting power by their political party of choice—here, the Democrats—and not their 

individual vote. This alleged harm is foreclosed by Gill. The Supreme Court rejected a theory 

of harm grounded in the “effect that a gerrymander has on the fortunes of political parties.” Gill, 

138 S. Ct. at 1933. And it stated clearly that it is “not responsible for vindicating generalized 

partisan preferences.” Id. (emphasis added). Plaintiffs’ claims seek to vindicate a “collective 

political interest, not an individual legal interest.” Id. at 1932. The Court’s decision in Gill

makes clear that this is a “generalized grievance” which is not sufficient to confer standing. 

 (iii) Organizational plaintiffs 

An organization has standing to sue on behalf of its members where (1) its members 

would otherwise have standing to sue in their own right, (2) the interests the organization seeks 

to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the 

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relief requested requires the participation of individual members in the lawsuit. See Hunt v. 

Washington State Apple Advertising Commission, 432 U.S. 333 (1977); see also Ala. Legislative 

Black Caucus v. Alabama, 135 S. Ct. 1257, 1268 (2015). An organization must also show that 

its members will be personally injured by the challenged action. Sierra Club v. Morton, 405 

U.S. 727, 735 (1972) (emphasis added).

Here, the organizational plaintiffs have not identified any specific members much less 

how those members will be personally injured by the challenged congressional map.4

 

Accordingly, claims by the organizations must be dismissed. Gill, 138 S. Ct. at 1932 (the injuryin-fact in partisan gerrymandering cases, if justiciable, is personal and individual, not a group 

injury). 

B. Fairly traceable harm 

Standing also requires each plaintiff to demonstrate that the injury-in-fact is “fairly 

traceable” to the challenged redistricting plan. Gill, 138 S. Ct. at 1929 (citing Spokeo, Inc. v. 

Robins, 136 S. Ct. 1540, 1547 (2016)). Plaintiffs have made no attempt to allege facts 

demonstrating that the injury they claim is caused by the challenged congressional map and not 

the “result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. 

at 560. 

For example, plaintiffs have not alleged that but for the challenged district lines, the 

election results they complain about “would not have happened.” Benisek, 266 F.Supp.3d at 

810. In the redistricting context, the map “is only ‘injurious’ if it actually alters the outcome of 

an election.” Id. at 811. If an “election result is not engineered through a gerrymander but is 

 

4

 Nor would merely identifying specific members remedy plaintiffs’ lack of organizational 

standing. Those members would still need to prove individual standing by demonstrating a 

“concrete and particularized injury” that is “fairly traceable to the challenged conduct” and is 

likely to be redressed by a favorable decision by the courts. See Lujan, 504 U.S. at 560-61. 

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instead the result of neutral forces and voter choice, then no injury has occurred.” Id. A loss due 

to voter choice is not a fairly traceable injury—it “is democracy.” Id. at 812. 

In this case, it is undisputed that in 2010 (under the state’s prior congressional map), 13 

of Ohio’s congressional seats went to Republicans while five went to Democrats. It is also 

undisputed that in the elections following the 2011 redistricting (in which Ohio had lost two 

congressional seats due to apportionment), one less seat went to Republicans and one less seat 

went to Democrats. On its face, this is not an “injury” and it is certainly not an injury “fairly 

traceable” to the congressional map. At worst it is traceable to an apportionment in which Ohio 

lost two seats. In reality, it is traceable to voting decisions voters made in 2010 and then 

continued to make in 2012 and thereafter. Plaintiffs have not alleged facts that if proven would 

tend to show it was the map and not “voter choice” that caused the political result they now 

complain about. Unlike race, and the vote dilution and gerrymandering cases that address race, 

“[e]xperience teaches that voter preferences are mutable and that American democracy is 

characterized by a degree of volatility and unpredictability.” Id. at 813 (citing Bandemer, 478 

U.S. at 160) (O’Connor, J., concurring in the judgment) (“To allow district courts to strike down 

apportionment plans on the basis of their prognostications as to the outcome of future elections 

or future apportionments invites ‘findings’ on matters as to which neither judges nor anyone else 

can have any confidence.”); Bartlett v. Strickland, 556 U.S. 1, 17 (2009) (courts are “inherently 

ill-equipped to make decisions based on highly political judgments” in drawing districts (citing 

Holder v. Hall, 512 U.S. 874, 894 (1994) (Thomas, J., concurring)). Accordingly, plaintiffs have 

failed to adequately allege standing and their claims should be dismissed. 

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CONCLUSION

 Based on the foregoing, plaintiffs’ Second Amended Complaint should be dismissed with 

prejudice. 

This the 20th day of July, 2018. 

MICHAEL DEWINE 

Ohio Attorney General 

 By: /s/Phillip J. Strach 

Phillip J. Strach** 

N.C. State Bar No. 29456 

*Lead and Trial Counsel 

Michael McKnight** 

N.C. State Bar No. 36932 

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

 4208 Six Forks Road, Suite 1100 

 Raleigh, NC 27609 

 Tel.: (919) 787-9700 

 Facsimile: (919) 783-9412 

 phil.strach@ogletree.com 

 michael.mcknight@ogletree.com 

 Attorney for Defendants Smith & Obhof 

 **pro hac vice pending

 /s/Steven T. Voigt 

 Steven T. Voigt (0092879) 

Principal Assistant Attorney General 

Constitutional Offices Section 

30 E. Broad Street, 16th Floor 

Columbus, Ohio 43215 

Tel: (614) 466-2872 

Fax: (614) 728-7592 

 Steven.Voigt@OhioAttorneyGeneral.gov 

 Attorney for Defendants 

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CERTIFICATE OF SERVICE 

I hereby certify that on July 20, 2018, the foregoing was filed electronically. Notice of 

this filing will be sent to all parties for whom counsel has entered an appearance by operation of 

the Court’s electronic filing system. Parties may access this filing through the Court’s system. I 

further certify that a copy of the foregoing has been served by e-mail or facsimile upon all parties 

for whom counsel has not yet entered an appearance and upon all counsel who have not entered 

their appearance via the electronic system. 

s/ Steven T. Voigt 

STEVEN T. VOIGT (0092879) 

Principal Assistant Attorney General 

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