IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

____________________________________

)

OHIO A. PHILIP RANDOLPH )

INSTITUTE, et al. )

)

Plaintiffs, )

)

v. )

)

LARRY HOUSEHOLDER, Speaker of the )

Ohio House of Representatives, et al. )

)

Defendants. )

____________________________________)

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

Judge Timothy S. Black

Judge Karen Nelson Moore

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

PLAINTIFFS’ POST-TRIAL REPLY BRIEF

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 1

I. PLAINTIFFS’ CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED. ................ 1

A. There Is a Consensus Among the Lower Courts that Have Considered This 

Issue about the Constitutional Violations. ....................................................................... 3

B. There Is No Serious Question Regarding the Manageability of the Standards 

Identified by This Court and Others. ............................................................................... 5

C. Heightened Scrutiny is Appropriate Because Fundamental Rights Have 

Been Heavily Burdened................................................................................................... 6

D. This Court Expressly Adopted a Three-Part Test in Which the Burden Shifts to 

Defendants in the Final Step............................................................................................ 8

II. PLAINTIFFS HAVE MET THE THREE-PART TEST IDENTIFIED 

BY THIS COURT. ......................................................................................................... 9

A. Plaintiffs Rely Upon Record Evidence, Unlike Defendants and Intervenors.................. 9

B. The Evidence in the Record Clearly Established Discriminatory Intent 

to Gerrymander.............................................................................................................. 10

1. 12-4 Map Was Not a Bi-partisan Compromise....................................................... 10

2. The Challenged Map Is Not an Incumbency Protection Map................................. 15

3. Compliance with the Voting Rights Act Does Not Explain the Way the 

Lines Were Drawn. ................................................................................................. 17

4. Geography Does Not Explain the Way the Lines Were Drawn.............................. 25

5. The Post Hoc “Requirements” Testified to By Defendants’ Witness 

Do Not Explain the Way the Lines Were Drawn.................................................... 27

C. Ohio’s Congressional Map Has Had a Discriminatory Effect....................................... 30

1. Discriminatory Effect, Not Changing Voter Preferences, Explains 

Ohio’s Election Results........................................................................................... 30

2. Plaintiffs Have Demonstrated Both Statewide and District-Specific 

Discriminatory Effect.............................................................................................. 31

D. There Is No Justification for the Discriminatory Congressional Districts 

Implemented by the State. ............................................................................................. 35

III. PLAINTIFFS HAVE STANDING TO PURSUE THEIR CLAIMS. .......................... 36

IV. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY LACHES. ................................... 38

CONCLUSION............................................................................................................................. 40

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Plaintiffs respectfully submit this post-trial reply brief in support of their claims and in 

reply to the post-trial brief of Defendants and Intervenors.

INTRODUCTION

Ohio’s congressional map has been unconstitutionally gerrymandered. Ohio’s map is not 

just a gerrymander, but an extreme one constituting a “geographic monstrosity.” Plaintiffs’ 

Proposed Findings of Fact (“PFOF”) ¶ 938, ECF No. 251-1. What happened in Ohio is the 

opposite of democracy in action. The plan was devised to create an impenetrable 12-4 

Republican majority. It was drawn in secret rooms outside of the public eye by a handful of 

Republican operatives, many of whom had no official role in Ohio’s government. “[I]t is 

unfortunate that . . . legislators have reached the point of declaring that, when it comes to 

apportionment: ‘We are in the business of rigging elections.’” Vieth v. Jubelirer, 541 U.S. 267, 

317 (2004) (Kennedy, J. concurring). Rigging of elections through partisan gerrymandering is 

not only unfortunate, it is also unconstitutional. Davis v. Bandemer, 478 U.S. 109, 113 (1986) 

(holding partisan gerrymandering unconstitutional). Because of the illegal partisan gerrymander,

Plaintiffs and similarly situated Ohio voters have been constitutionally harmed. Plaintiffs have 

proven each of their four claims and the facts necessary to demonstrate standing. Defendants 

and Intervenors, by contrast, have entirely failed to justify the illegal actions of the state. This 

Court should, therefore, declare unconstitutional and enjoin Ohio’s congressional map. 

ARGUMENT

I. PLAINTIFFS’ CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED.

Apparently displeased with the current state of the law and the decisions of this Court, 

Defendants and Intervenors assert the law as they wish it were, rather than as it is. They barely 

engage with the most pertinent Supreme Court precedent in this area—that is, Gill v. Whitford, 

138 S. Ct. 1916 (2018), Vieth, 541 U.S. 267, and Bandemer, 478 U.S. 109—and instead place an 

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inordinate amount of reliance on a narrow case which predates them all, Gaffney v. Cummings, 

412 U.S. 735, 753–54 (1973). Gaffney considered population deviations between districts for the 

Connecticut General Assembly, and determined that the goal of “political fairness,” that is “a 

rough scheme of proportional representation of the two major political parties” justified an

average deviation of 0.45% for the Senate and 1.8% for the Assembly. Id. at 737–38. Gaffney

did not sanction the use of political data deployed for discriminatory purposes, as has been 

demonstrated in the case before this Court. It held that the courts will not invalidate a state plan 

“because it undertakes, not to minimize or eliminate the political strength of any group or party, 

but to recognize it and, through districting, provide a rough sort of proportional representation in 

the legislative halls of the State.” Id. at 754. In that case, the Court did not find that a party drew 

a redistricting plan “to minimize . . . the political strength of any group or party,” id., as has been 

done in Ohio. Partisan gerrymandering claims are justiciable, as the central holding of 

Bandemer has not been overturned. 478 U.S. at 113; Vieth, 541 U.S. at 310 (Kennedy, 

concurring in the judgment) (Bandemer was “controlling precedent on the question of 

justiciability” and he was joined in this opinion by four other justices); see id. at 318 (Stevens, 

dissenting) (“we reaffirm the central holding of the Court in Davis v. Bandemer”).

In addition to their selective acknowledgment of Supreme Court precedent, Defendants 

and Intervenors flatly ignore or reject this Court’s decision regarding the constitutional 

provisions implicated and the applicable legal tests, in addition to the other three-judge panels 

that have similarly held. As Defendants and Intervenors demanded at the summary judgment 

stage, Plaintiffs identified the tests applicable to each of their constitutional claims, and, in its 

decision, this Court clearly indicated the legal tests that would apply. Order Denying Summ. J. 

(“SJ Order”) at 9-19, ECF No. 222.

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A. There Is a Consensus Among the Lower Courts that Have Considered This 

Issue about the Constitutional Violations.

Defendants and Intervenors contort the law and the facts Plaintiffs have proven to assert 

there has been no constitutional harm. Defs.’ & Ints.’ Post-Trial Br. (“D/I Br.”) at 52-64, ECF 

No. 252. In doing so, they flatly ignore the five three-judge panels that have considered partisan 

gerrymandering cases in the past several years. These courts, including this one, have reached a 

clear consensus regarding the constitutional violations caused by a partisan gerrymander. 

Partisan gerrymandering violates rights under the First and Fourteenth Amendments and exceeds 

the state’s power under Article I. 

Ohio has violated Plaintiffs’ rights under the Fourteenth Amendment. A partisan 

gerrymander violates the Equal Protection Clause as it “treats individuals who support candidates 

of one political party less favorably than individuals who support candidates of another party.” 

Common Cause v. Rucho, 318 F. Supp. 3d 777, 860–61 (M.D.N.C. 2018); SJ Order at 10. The 

state favoring one segment of the population over another, here “disadvantag[ing] a politically 

weak segment of the community,” is a textbook violation of “the constitutional guarantee of 

equal protection.” Karcher v. Daggett, 462 U.S. 725, 748 (1983). Plaintiffs have also made out 

another, narrower, violation of the Fourteenth Amendment—that is, under this claim, Plaintiffs’

rights are violated when they are denied the opportunity to elect their candidates of choice and to 

influence elections. The “right to vote can be affected by a dilution of voting power as well as 

by an absolute prohibition on casting a ballot,” Allen v. State Bd. of Elections, 393 U.S. 544, 569 

(1969), and this is the case for Plaintiffs in the cracked districts. Plaintiffs have proven, that in 

reconfigured districts, Democratic voters would have an opportunity to elect that they now lack 

in the 1st, 5th, 12th, and 16th Districts.

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Defendants and Intervenors seem to think that because Plaintiffs are not barred outright 

from conducting activity protected by the First Amendment, there is no violation. This has never 

been the law. Rather, it is black letter law that burdening, penalizing, or retaliating against 

citizens “because of their participation in the electoral process, their voting history, their 

association with a political party, or their expression of political views” violates the First 

Amendment. Vieth, 541 U.S. at 314 (Kennedy, J., concurring); League of Women Voters of 

Mich. v. Johnson, 352 F. Supp. 3d 777, 806–07 (E.D. Mich. 2018); see also Benisek v. Lamone, 

348 F. Supp. 3d 493, 498 (D. Md. 2018); Rucho, 318 F. Supp. 3d at 929; Whitford v. Gill, 218 F. 

Supp. 3d 837, 884 (W.D. Wis. 2016), rev’d on other grounds, 138 S. Ct. 1916 (2018). The 

drawing of Ohio’s congressional district boundaries was done to privilege the state’s preferred 

political party and to burden the state’s disfavored political party. Here, the disfavored party and 

its members were “deprived of their natural political strength by a partisan gerrymander,” a 

violation of their First Amendment right to associate. Gill, 138 S. Ct. at 1938 (Kagan, J., 

concurring) (citing Anderson v. Celebrezze, 460 U.S.780, 791–92 (1983)).

Finally, both this Court and the Rucho court clearly articulated the Article I violation 

caused by a partisan gerrymander. Plaintiffs’ Article I claim “rests on a theory that the 

redistricting law, here H.B. 369, itself ‘amounts to a successful effort by the [State] to ‘disfavor a 

class of candidates’ and ‘dictate electoral outcomes.’’” SJ Order at 17–18 (citing Rucho, 318 F.

Supp. 3d at 940 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995))). 

Just as in Rucho, Plaintiffs proved that Ohio drew its congressional districts in an “effort to 

‘dictate electoral outcomes’ and ‘disfavor a class of candidates.’” 318 F. Supp. 3d at 937.

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B. There Is No Serious Question Regarding the Manageability of the Standards 

Identified by This Court and Others.

Whether a standard is “judicially manageable” depends on whether it can be managed by 

the courts. The “federal courts that have adjudicated partisan gerrymandering claims have

converged considerably on common ground in establishing standards for determining whether a

partisan gerrymander is unconstitutional.” SJ Order at 8–9; see also LWV-Michigan, 352 F.

Supp. 3d at 802; Benisek, 348 F. Supp. 3d at 498; Rucho, 318 F. Supp. 3d at 838; Whitford, 218 

F. Supp. 3d 837. Defendants and Intervenors might resist these decisions and the clear direction 

of this Court heading into trial, but that does not mean that the courts have not identified the 

legal standards and the sort of evidence needed to prove an unconstitutional partisan 

gerrymander.

The Supreme Court has not foreclosed these claims as non-justiciable, and as this Court 

has recognized, the standards sought are those legal standards by which the Court will adjudicate 

Plaintiffs’ claims. The social science and empirical metrics serve only as evidence to support 

Plaintiffs’ claims. SJ Order at 19–21; LWV-Michigan, 352 F. Supp. 3d at 805 (“Plaintiffs 

provide social science analyses as evidence to support their constitutional claims.”). As 

discussed more fully in their opening post-trial brief, Plaintiffs used these metrics along with 

ample district-specific and statewide evidence to prove each of their claims. Plaintiffs’ 

Conclusions of Law and Post Trial Brief (“Pls.’ Br.”), ECF No. 251; see also infra Section II.C. 

Further, these metrics do not measure proportionality in the translation of seats to votes. Rather,

they measure fairness in the translation of seats to votes. One of the easiest ways to see how the 

fairness principle works is to look at the asymmetry measure for Ohio. Rebuttal PFOF ¶ 32. It 

illustrates that when Democrats win 55% of the vote in Ohio they are projected to win just 37.5% 

of the seats; by contrast, when Republicans win 55% of the vote, they capture 75% of the seats. 

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Id. It is this unfairness or disadvantage to Democrats in the translation of seats to votes that all 

of the partisan bias measures capture and not proportionality.

Similarly, Dr. Cho’s simulated maps are agnostic as to proportionality between vote share 

and seat share. Dr. Cho simply calculates the partisan composition of the simulated maps that 

are generated by applying neutral, non-partisan redistricting criteria to the geography and 

demography of Ohio. PFOF ¶ 758. Dr. Cho makes no effort to enforce how votes translate into 

seats in her simulated maps. Id. ¶ 763. Hence, when comparing the challenged map to the entire 

distribution of partisan compositions of Dr. Cho’s simulated maps, one is not using proportional 

representation or any rule of proportionality as a benchmark.1

 Id. ¶ 837. Instead, one is simply 

comparing the challenged map against the range of outcomes the state could have produced 

through redistricting pursuant to neutral, non-partisan traditional redistricting criteria. Id.

C. Heightened Scrutiny is Appropriate Because Fundamental Rights Have Been 

Heavily Burdened.

The rights to vote and to associate are fundamental political rights. See Williams v. 

Rhodes, 393 U.S. 23, 30–31 (1968). Before they “can be restricted,” the Court must engage in 

“close constitutional scrutiny” of the restriction. Evans v. Cornman, 398 U.S. 419, 422 (1970). 

Plaintiffs agree that they are not physically prevented from accessing the ballot box. 

Defendants and Intervenors seem to believe this is enough to indicate there is no violation of 

Plaintiffs’ right to vote. Such a conclusion is at odds with ample, long standing case law. “The 

right to vote is protected in more than the initial allocation of the franchise. Equal protection 

applies as well to the manner of its exercise.” League of Women Voters v. Brunner, 548 F.3d 

463, 477 (6th Cir. 2008) (quoting Bush v. Gore, 531 U.S. 98, 104-05 (2000)). Nor does that case 

 1 Indeed, the only expert witness in this case who proposed a test based on proportional representation is 

Dr. Thornton, who concocted a test of statistical significance based on the difference in the number of 

seats actually won by Republicans and the number of seats one “would predict based on the Republican 

representation among the voters” statewide under a system of proportional representation. PFOF ¶ 828.

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law suggest that any reason put forward by the state is sufficient to justify laws that burden the 

right to vote. See D/I Br. at 55. Rather, the “Equal Protection Clause applies when a state either 

classifies voters in disparate ways or places restrictions on the right to vote.” Obama for Am. v. 

Husted, 697 F.3d 423, 428 (6th Cir. 2012) (citations omitted). Here, the state has classified 

voters based upon their previous voting history. When, as in the instant case, “a plaintiff alleges 

that a state has burdened voting rights through the disparate treatment of voters,” courts “review 

the claim using the ‘flexible standard’ outlined in Anderson v. Celebrezze and Burdick v. 

Takushi.” Id. at 429 (internal citations omitted). Under this standard, a court “must weigh ‘the 

character and magnitude of the asserted injury’ against the ‘precise interests put forward by the 

State . . . taking into consideration the extent to which those interests make it necessary to burden 

the plaintiff’s rights.’” Id. at 433 (citing Burdick, 504 U.S. 428, 434 (1992)).

Plaintiffs have proven a substantial burden on their right to vote. Plaintiffs, and other 

Democratic voters, were intentionally singled out by the state based on “their voting history, 

their association with a political party, or their expression of political views.” Vieth, 541 U.S. at

314 (Kennedy, J., concurring in the judgment). The district lines have made it so that Plaintiffs 

in cracked districts are unable to ever elect their candidate of choice or have an opportunity to 

genuinely influence the election of their congressional representative. This burden based upon 

Plaintiffs’ voting history is not necessary to vindicate the interests put forward by the state, were 

this Court to even credit them. PFOF ¶¶ 981–93. As the state’s supposed interests can be met 

without burdening Plaintiffs’ right to vote, they cannot be used to justify this substantial burden. 

There is a substantial burden on the right to vote and the Constitution is violated where the state 

“pick[s] and choose[s] among groups of similarly situated voters to dole out special voting 

privileges.” Obama for Am., 697 F.3d at 435–36. Ohio here has chosen to allow voters of their 

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favored party to control the election of congressional representatives in the vast majority of the 

districts. This sorting of voters substantially burdens Plaintiffs’ right to vote and must be 

subjected to heightened scrutiny.

Plaintiffs’ First Amendment rights have also been heavily burdened. The Supreme Court 

has found a substantial burden on freedom of association where the legislature hampered voters’ 

ability to band together with “like-minded voters to gather in pursuit of common political ends 

. . . [and] to express their . . . political preferences.” Norman v. Reed, 502 U.S. 279, 288–89

(1992). “‘[T]he entrenchment of one or a few parties to the exclusion of others’ . . . ‘is a very 

effective impediment to the associational and speech freedoms which are essential to a 

meaningful system of democratic government.’” Rutan v. Republican Party of Ill., 497 U.S. 62, 

70 (1990) (citation omitted); Benisek, 348 F. Supp. 3d at 498 (holding that partisan 

gerrymandering “violates the First Amendment by burdening both the plaintiffs’ representational 

rights and associational rights based on their party affiliation and voting history”). 

D. This Court Expressly Adopted a Three-Part Test in Which the Burden Shifts 

to Defendants in the Final Step.

In its Order denying summary judgment, this Court expressly adopted a three-part test, 

which, at the final step, shifts the burden to Defendants and Intervenors. SJ Order at 10, 13–14, 

15. Plaintiffs proposed a test in which the burden shifts to the state in their Opposition to the 

motion for summary judgment. Pls.’ Br. in Opp. Summ. J. at 9, ECF No. 177-1. And prior to 

the summary judgment briefing in this case, numerous other federal courts had already identified 

a test in which the burden shifts to the state. See, e.g., LWV-Michigan, 352 F. Supp. 3d at 803–

05; Rucho, 318 F. Supp. 3d at 868, 935. Neither Defendants nor Intervenors, in their multiple 

briefs in support of their motion for summary judgment, suggested that such a burden shift is 

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improper. See ECF No. 136, 140-1, 189, 190. Defendants and Intervenors now resist this 

burden, not because it is an improper application of the law, but because they cannot meet it.

II. PLAINTIFFS HAVE MET THE THREE-PART TEST IDENTIFIED BY 

THIS COURT.

A. Plaintiffs Rely Upon Record Evidence, Unlike Defendants and Intervenors.

Defendants and Intervenors cannot meet their burden of demonstrating that their actions 

were justified. To prove their case, Plaintiffs have relied on documentary evidence authored by 

the relevant parties, which are either exempt from the definition of hearsay or fall squarely 

within an exception, deposition testimony of the declarants, trial testimony of the declarants, and 

expert testimony. Defendants and Intervenors have failed to provide sufficiently reliable 

evidence to support their claims that Ohio’s congressional map is not a partisan gerrymander. 

Defendants and Intervenors flagrantly flout the Rules of Evidence and instead rely on either 

inadmissible hearsay testimony or, in many instances, no evidence in the record at all. See, e.g., 

D/I Br. at 8 (relying on inadmissible hearsay testimony in discussing the Kaptur/Kucinich 

pairing); id. at 9 (failing to cite to evidence in the record and misstating evidence in the record to 

support the discussion of the 3rd and 16th Districts), id. at 10–11 (relying on inadmissible

testimony in discussing the 3rd District); id. at 18 (no citation to the record to support the 

statement that “[t]he Ohio legislature rejected that idea out of hand—listening to their 

Democratic colleagues over national Republicans—and national Republicans had no recourse to 

disagree”); id. at 23 (citing inadmissible hearsay testimony to support the notion that the map 

was meant to comply with the Voting Rights Act). “Rules of evidence are designed in the 

interest of fair trials.” United States v. Augenblick, 393 U.S. 348, 352 (1969). As in the drawing 

of Ohio’s map, Defendants and Intervenors have failed to abide by the established rules.

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The weight of the evidence is on the side of Plaintiffs, who consistently rely on 

admissible evidence in the record to prove their case. Because Plaintiffs have proffered 

sufficient admissible evidence to meet the three-part test established by this Court, the Court 

should rule in their favor. 

B. The Evidence in the Record Clearly Established Discriminatory Intent to 

Gerrymander.

All of the types of evidence courts consider in determining whether the map was drawn 

with the intent to gerrymander are present in this case. As with other forms of intent, the intent 

to entrench can be established through direct and circumstantial evidence. See Miller v. Johnson, 

515 U.S. 900, 916 (1995); see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 488-89 (1997) 

(discussing the Court’s use of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 

(1977), in racial gerrymandering cases). Inferences of improper intent can be drawn from the 

sequence of events leading to the map, contemporaneous statements, excessive reliance on

political data to disfavor one party’s supporters, and expert evidence. See Cooper v. Harris, 137 

S. Ct. 1455, 1468–69, 1475–75 (2017); Rucho, 318 F. Supp. 3d at 850–51, 861–64; see also 

Vieth, 541 U.S. at 321-323 (Stevens, J., dissenting); City of Cuyahoga Falls, Ohio v. Buckeye 

Cmty. Hope Found., 538 U.S. 188, 196–97 (2003). These are tools that courts commonly use to 

discern intent for discriminatory actions. All four types of evidence indicate that Ohio’s map 

was drawn with intent to partisan gerrymander.

1. 12-4 Map Was Not a Bi-partisan Compromise.

In their conclusions of law, Defendants and Intervenors concede that the goal was to have 

a 12-4 map. D/I Br. at 8 (conceding that the “goal” was a 12-4 map). Therefore, the only 

question left for this Court is whether a 12-4 map represented a compromise between Democrats 

and Republicans. Plaintiffs submit that the record evidence demonstrates that the 12-4 map was 

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not a compromise, but an unconstitutional attempt to entrench a Republican majority by local 

and national Republican operatives. 

The evidence in the record is clear that these Republican actors decided to make Ohio’s 

congressional map a “12-4” map long before H.B. 319 was introduced. PFOF ¶¶ 239–41. This 

was entirely a Republican decision. Id. As early as March 2011, there were emails between 

local and national Republicans about a “12-4” map. Id. ¶ 108. In early March 2011, for 

instance, newly-elected Ohio Secretary of State Jon Husted discussed with staff to newly-elected 

Representative Steve Stivers of the 15th District a “12-4 redistricting map scenario that . . . 

[Stivers and his staff] would like.” Id. By July 2011, Republicans were already sharing internal

spreadsheets scoring proposed districts that reflected 12 Republican districts. Id. ¶ 111.

Internal Republican communications in early September, before H.B. 319 was introduced

or ever seen by a Democrat, also reflected a Republican desire to create a 12-4 map. For 

instance, on September 7, 2011, Tom Whatman of Team Boehner sent an email with the subject 

line “Talking Points” to Ohio Senate President Tom Niehaus. PFOF ¶ 112. The email stated:

We have to recognize that we currently have five Republicans in southwest Ohio. In 

losing two seats, and trying to lock down 12 Republicans seats it is unrealistic to think 

southwest Ohio can remain the way it is. Having the Speaker from the region more than 

makes up for this loss. 

Id. Two days later, Whatman forwarded this email to Troy Judy, who worked for Speaker Bill 

Batchelder. Id. ¶ 113. Judy soon after sent it to Ohio Republican map drawer Heather Mann and 

asked if she could print a copy for Speaker Batchelder. Id. None of the individuals included in 

this exchange were Democrats.

The reason that Republicans wanted a 12-4 map and not a 13-3 map was clear in another 

set of talking points circulated just a few days later. On September 13, Mann sent to Mike 

Lenzo, the counsel to the Republican caucus in the Senate, more talking points reiterating that 

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the goal was to “lock down 12 Republican seats,” as stated in the Whatman talking points.2

 Id.

¶ 114. This document explained that 12-4 was preferable to 13-3. It stated:

This map is one that Speaker Boehner’s team has asked our caucus to 

support because it bolsters districts that were vulnerable going into a 

Presidential year with an incumbent Democrat at the top of the ticket.[3]

Population loss has consequences for Ohio. 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 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 best to allocate caucus resources. 

Id. ¶ 120 (emphasis added). This document makes several things clear. First, the request came 

from national Republicans to local Republicans to support a 12-4 map. Id. Second, the goal of 

“locking down” 12 Republican seats was embraced by the Ohio Republicans. Id. ¶ 114. Third, 

Republicans thought they were vulnerable to Democrats and did not see the state becoming more 

favorable to them as alluded to in Defendants’ and Intervenors’ brief. Id. ¶ 120. Third, since 

Republicans did consider themselves vulnerable, the goal was to get as many seats as possible in 

the “safety zone,” id., i.e., strongly Republican, to withstand years like 2012, when Barack 

Obama was at the top of the Democratic ticket and won the state, and years like 2018, when

Democrats won 47% of the congressional votes. Id. ¶¶ 120, 714–17; Rebuttal PFOF¶ 22. 

Republicans conducted an analysis of a 13-3 map, particularly one scenario where 

Franklin County would have been split four instead of three ways, but that plan was rejected 

because it would leave too many districts competitive and open to Democrats possibly taking the 

 2 Defendants and Intervenors have asserted no objections whatsoever to the talking points document, 

which is Trial Exhibit P385. 

3 The incumbent Democratic candidate that year was Barack Obama. According to Dr. Handley’s racially 

polarized voting analysis, Obama was the minority-preferred candidate in Ohio’s 11th District in 2008. 

Trial Ex. P254, Handley Report at 4. The fact that the Republicans wanted a map to try and deal with 

Obama on the ballot is just another piece of evidence that calls into question whether map drawers were 

concerned about minority representation. Rather, the fear of Obama on the ballot suggests that the motive 

was to both contain Democratic and minority voters.

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seats in a good year. PFOF ¶¶ 117–20. The 13-3 plan was rejected not to appease Democrats in 

the state, but because it did not put enough Republican seats in the “safety zone.” Id. ¶ 120. 

It was in this early secretive phase when Republicans designed the Franklin County 

“sinkhole strategy.” Id. ¶¶ 122, 124. Again, there can be no doubt that the idea originated with 

the Republicans and not the Democrats. Id. Whatman has taken credit for being the architect of 

the idea. Id. There is also no dispute that having a Democratic district centered in Franklin 

County made the surrounding districts more Republican. Id. ¶¶ 121–62.

Thus, all the cornerstones of Ohio’s map were already in place before very limited 

negotiations with the Democrats began after H.B. 319 had been passed. Id. ¶¶ 239–41, see also 

id. ¶¶ 251–56. Throughout the negotiations, Republicans were explicit that the 12-4 allocation of 

seats would not change. Id. ¶ 116. The record reflects that Democrats did attempt to get the seat 

allocation to change, including a proposal that would include six Democratic seats, but were 

unsuccessful. Id. ¶¶ 253–56, 263–64. Whatever limited negotiating power the Democrats might 

have had due to the referendum effort collapsed as Democrats were not able to get the required

signatures, a fact known by both Democrats and Republicans. Id. ¶ 266. 

Defendants and Intervenors have argued that Democrats were able to get important carveouts for Representative Fudge, Representative Kaptur, and Representative Beatty in negotiations. 

But again, the record evidence is the contrary. The shape of the 11th District remained the same 

from introduction of H.B. 319 through the passage of H.B. 369. Rebuttal PFOF ¶ 18. 

Representative Fudge gave sworn testimony that she did not ask for the shape of her district nor 

was she happy with its downward extension and was surprised to find out that Akron and 

portions of Summit County had been included in her district. PFOF ¶¶ 301–03. Similarly, 

Representative Kaptur testified that she did not want her district to extend into Cleveland, id.

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¶¶ 304–05, and there has been no evidence produced by either Defendants or Intervenors why 

her district had to expand into Cleveland rather than capturing counties closer to Toledo, 

Representative Kaptur’s home base. Representative Kaptur testified that she had represented 

these Republican-leaning counties in the past and would be happy to represent them again. 

Rebuttal PFOF ¶ 8. The only inference that can be made based on record evidence is that her 

district was drawn into Cleveland to pack Democrats into just four districts rather than create the 

potential of more competitive or Democratic-leaning districts. In fact, Mr. Cooper’s hypothetical 

maps, which do not pair Representative Kaptur with Representative Kucinich illustrate that more 

competitive districts are exactly the result when the snake on the lake is dismantled, and further,

that such a result could have been accomplished without pairing Representative Fudge and 

Representative Kucinich. PFOF ¶¶ 976–77. As for Representative Beatty, a few facts are worth 

noting: she was not an incumbent congresswoman at the time, so any supposed concessions on 

her behalf were not a function of incumbency protection. Rebuttal PFOF ¶ 9. Also, the 3rd 

District was strongly Democratic when H.B. 319 was introduced. Id. ¶ 14, see also PFOF ¶ 161. 

It was created prior to any negotiations with Democrats, and as discussed above, it was part of a 

Republican plan to shore up the neighboring districts. 

Thus, the rationale that can best explain the Democratic votes in favor of H.B. 369 is not 

some grand compromise on a 12-4 map that has entrenched a Republican 75% seat share, but the 

pairing of H.B. 369 with $15 million in savings by eliminating the dual primary. Id. ¶¶ 251–52. 

The 12-4 seat allocation remained constant throughout the redistricting bill process.4

 Id. ¶¶ 271–

89. As a result, both of the Republican redistricting bills—H.B. 319 and H.B. 369—when 

introduced and passed, reflected a 12-4 seat allocation. Id. 

 4 Multiple pieces of evidence in the record support a finding that Democrats viewed H.B. 369 as a 12-4 

map and did not consider districts like the 16th District to be competitive. PFOF ¶¶ 272, 284–89. 

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2. The Challenged Map Is Not an Incumbency Protection Map.

Merely invoking potentially non-partisan redistricting criteria is insufficient to insulate 

the challenged map. As the Supreme Court and this Court have both made clear, “traditional 

districting objectives [must] be applied in a ‘nondiscriminatory’ manner.” SJ Order at 14 

(quoting Karcher, 462 U.S. at 740–41). Courts do not simply accept the invocation of a certain 

traditional redistricting criterion as a talismanic protection insulating a redistricting plan from 

challenge. Rather, they analyze “the importance of the State’s interests, the consistency with 

which the plan as a whole reflects those interests, and the availability of alternatives that might 

substantially vindicate those interests.” Karcher, 462 U.S. at 741.

Here, Defendants and Intervenors insist that incumbency protection compelled the 

challenged plan. D/I Br. at 5–20. However, the record evidence simply does not bear that out. 

This was not a map compelled by incumbency protection. Contemporaneous statements from 

the legislature identify the protection of incumbents as “subservient,” PFOF ¶ 1028, and the rest 

of the record demonstrates that this was so. In his floor speech, the sponsor of the enacting 

legislation stated: “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 elect them.” Id. He went on to disclaim any intention of achieving the particular three

incumbent pairings, saying, “Now, that isn’t necessarily the way it was intended to be. It 

could’ve been different, but that’s the way it ended up.” Id.; see also id. ¶ 773.

Moreover, the structure of the map itself bears out that it is not an incumbency-protection 

plan. It paired three sets of incumbents, instead of two. Id. ¶¶ 961–62, 1030–32. Despite 

Defendants’ and Intervenors’ claims of the importance of seniority in Congress motivating the 

state, the map drawers paired the most senior member of Ohio’s congressional delegation, 

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Representative Marcy Kaptur, a member of the U.S. House Appropriations Committee.5

 Id.

¶¶ 305, 1035. Defendants and Intervenors also incorrectly assert that both parties bore the 

pairing of incumbents equally. Again, the record proves them wrong. The pairing of 

Representatives Sutton and Renacci in the 16th District was done in a way to favor the 

Republican incumbent, a point agreed to by Defendants’ own expert. Id. ¶¶ 998, 1033. A new 

district was created without any incumbent. Rebuttal PFOF ¶ 9. Contrary to Defendants’ and 

Intervenors’ insistence, the record is clear that this District was not created at the behest of 

Democrats, but in order to ensure that the large Democratic population, in a region of the state 

that was growing, did not imperil the electoral prospects of the Republicans in the 12th and 15th 

Districts. PFOF ¶¶ 121–62; Defendants’ and Intervenors’ Joint Proposed Findings of Fact 

(“DIFOF”) ¶ 241, ECF No. 253. And, in light of Intervenors’ counsel’s illusions to the contrary, 

ECF No. 242 at 111:21–24, 112:9–12, to be clear, incumbency has no part in the splitting of 

Cincinnati. Jean Schmidt, resident of Clermont County, whose requests regarding her district 

were implemented by the mapdrawers, represented the 2nd District at the time of redistricting. 

Rebuttal PFOF ¶ 10. There is no incumbency-related reason that Cincinnati is split.

Additionally, Plaintiffs have made clear that there were numerous available “alternatives 

that might substantially vindicate” the asserted interests. Karcher, 462 U.S. at 741. Mr. 

Cooper’s hypothetical plans paired incumbents based on party in exactly the same manner as did 

the challenged plan, but bettered the map on all traditional redistricting criteria and on 

Democratic voters having the opportunity to elect their candidates of choice. PFOF ¶¶ 940, 947, 

950, 963–64, 967, 969, 976–77. Even to the extent the Court would credit Defendants’ and 

 5 Representative Kaptur was first elected in 1982, and began her tenure in the 98th Congress on January 3, 

1983. At the time of the redistricting, she was the most senior member of the Ohio congressional 

delegation by 8 years. The Court can take judicial notice of these facts as they “can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 

201(b)(2).

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Intervenors’ insistence that the composition of the 3rd District was at the behest of Democrats, 

despite no grounding in the record to support such a contention, these hypothetical plans each 

contain a district in Franklin County that would have had a nearly identical BVAP to the 

challenged plan, in which a Democrat would have a majority of the two-party vote share. Id.

¶¶ 976–77; Trial Ex. P093 at Ex. J-2 & M-2. Mr. Cooper also drafted a rebuttal plan which 

paired the same exact incumbents and left open District in 3 in Franklin County (in addition to 

complying with a variety of other post-hoc rationalizations) and, yet again, was able to better the 

challenged plan on all traditional redistricting criteria and on Democratic voters having the 

opportunity to elect their candidates of choice. PFOF ¶¶ 982–93.

3. Compliance with the Voting Rights Act Does Not Explain the Way 

the Lines Were Drawn.

Plaintiffs agree that the interest of protecting minority voting strengths is important in 

redistricting; Plaintiffs contend that the record evidence does not bear out that minority interests 

were actually considered in drawing the challenged map. Concerns for minority interests do not 

account for the shape of the districts as drawn, specifically Districts 11 and District 3. 

Defendants’ and Intervenors’ reading of guiding case law is selective and flawed. Nothing in the 

guiding authority excuses Defendants for failing to conduct a district-specific analysis of racial 

bloc voting, one that Dr. Handley conducted in this case, Dr. Hofeller advised Defendants to 

conduct prior to redistricting, and Dr. Brunell would have advised Defendants to conduct to 

comply with the Voting Rights Act (“VRA”).

a) Cooper v. Harris controls the inquiry of whether VRA compliance 

was a mere pretext.

Evaluating Defendants’ decision to draw an arm out of a historically Cuyahoga Countybased district into Akron, all supposedly in the name of the VRA, requires no excursion into 

employment discrimination case-law. See D/I Br. at 22. Cooper v. Harris, 137 S. Ct. 1455, a 

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Supreme Court decision striking down districts that were purportedly drawn to comply with the 

VRA in the 2011 redistricting cycle amply makes clear that the VRA was employed as a mere 

pretext in this case.

The districts in Cooper were drawn in a remarkably similar manner to District 11: they 

were districts that historically elected minority preferred candidates, id. at 1465–66, and had their 

BVAPs increased to above 50% in the 2011 redistricting cycle, id. at 1466. In one of the 

districts, achieving the higher BVAP by including “heavily black areas of Durham” required “a 

finger-like extension of the district’s western line.” Compare id. at 1466, with Second Am. 

Compl. ¶ 94, ECF No. 37 (describing District 11 as a detached shoulder blade with a robotic arm 

that reaches out from Cleveland into Akron).

To be sure, the Cooper Plaintiffs raised a racial not partisan gerrymandering claim, 

arguing that race predominated over the redistricting process there. Id. at 1463. But it is 

controlling precedent for interrogating VRA compliance as a pretext in redistricting. When the 

state, as it does in this case, repeatedly exhorts that it needed to create a district with a certain 

percentage BVAP in order to comply with the VRA, id. at 1468–69, to the point of disrespecting 

county or precinct lines, id. at 1469, the Supreme Court’s interrogation of whether the “State had 

‘good reasons’ for thinking that the Act demanded” the BVAP, id., is instructive—and directly 

applicable here. That Cooper was only decided in 2017 does nothing to detract from its 

authority before this Court for assessing, as the Cooper Court did, Defendants’ intent or lack 

thereof to comply with the VRA in 2011.

As an initial matter, the Supreme Court in Cooper determined that “[f]or most of the 

twenty years prior to the new plan’s adoption, . . . the district’s BVAP usually hovered between 

46% and 48%,” and “throughout those two decades,” the district in question “was an 

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extraordinarily safe district for African-American preferred candidates” in which the AfricanAmerican preferred candidate won “59% of the total vote” in “the closest election during that 

period.” Id. at 1470 (emphasis in original). These facts are remarkably similar to those that 

Defendants had before it when redistricting. See PFOF ¶¶ 860–64 (noting that the closest 

election prior to 2011 in the 11th District was one in which the African-American preferred 

candidate won 60.3% of the vote). In Cooper, and in this case, “experience gave the State no 

reason to think that the VRA required it to ramp up [the] District[]’s BVAP.” Id. at 1470.

More importantly, North Carolina—and Ohio—“can point to no meaningful legislative 

inquiry into” whether a “new, enlarged” district could lead to Section 2 liability. Id. at 1471. 

That the District had to increase its population in the 2011 redistricting “only raises—it does not 

answer—the question whether § 2 requires deliberate measures to augment the district’s BVAP.” 

Id. at 1471. “To have a strong basis in evidence to conclude that § 2” demands a certain BVAP, 

especially if it must be contrivedly drawn, “the State must carefully evaluate whether a plaintiff 

could establish the Gingles preconditions—including effective white bloc-voting.” Id. In other 

words, the State should have conducted a district-specific, functional analysis. Yet there is 

“nothing in the legislative record that fits that description.” Id.

b) Bartlett cannot be read to impose a majority-minority requirement.

Instead of coming to terms with Cooper, Defendants and Intervenors proffer that Bartlett 

v. Strickland, 556 U.S. 1 (2009),

6 imposed a “‘majority-minority requirement’ for Section 2 

districts,” regardless of what an analysis of racial-bloc voting might show. D/I Br. at 39-40. Yet 

this is a reading of Strickland that the Supreme Court rejected as “at war with our § 2 

 6 Strickland is not implicated by any of Plaintiffs’ claims in this case. The Court held in Strickland that 

Section 2 of the Voting Rights does not require that state officials draw lines “to allow a racial minority to 

join with other voters to elect the minority’s candidate of choice [when] the racial minority is less than 50 

percent of the voting-age population in the district to be drawn.” Bartlett v. Strickland, 556 U.S. 1, 6, 23

(2009).

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jurisprudence—Strickland included.”7

 Cooper, 137 S. Ct. at 1472. Indeed, as explained by the 

Supreme Court, the Strickland Court “underscored the necessity of demonstrating,” for Section 2 

liability, racial bloc voting. Id. North Carolina—and Ohio’s—belief that it was “compelled” to 

redraw successful crossover districts as majority-minority “rested not on ‘strong basis in 

evidence,’ but instead on a pure error of law.” Id.

c) Harris confirms the importance of a racial-bloc voting analysis.

Defendants and Intervenors rely on Harris v. Arizona Independent Redistricting 

Commission, 136 S. Ct. 1301 (2016), in their attempt to support the legitimacy of Defendants’ 

motives in this case as in compliance with the VRA. See D/I Br. at 20, 24-25, 38. But if 

anything, contrasting what the Commission did in Harris to comply with the VRA—which the 

Supreme Court accepted as a bona fide attempt to comply with the VRA—with what Defendants

did not do only illustrates the flaws of Defendants’ and Intervenors’ position. There, the

Commission determined that the State needed to obtain preclearance from DOJ on Section 2 

compliance “[a]fter consulting with their Voting Rights Act expert, their mapping consultant, 

and their statisticians.” Harris, 136 S. Ct. at 1308; see also id. at 1310 (noting again that the 

Commission “may have relied on data from its statisticians and Voting Rights Act expert to 

create districts tailored to achieve preclearance”). Indeed, it was only “[a]s a result of the 

statistician’s report,” id. at 1308, that the Commission became concerned about some of its 

district boundaries and adjusted them in order to ensure that minorities had opportunities to elect 

their candidates of choice, id. at 1308-09.

By contrast, Defendants ignored the advice of their own retained expert, Dr. Hofeller, 

who, early in the redistricting process, directed the Ohio Republicans to gather data on primary 

election results because they are “required for racial or ethnic block voting analyses.” PFOF 

 7 The State of North Carolina’s counsel in Cooper v. Harris was the law firm of Ogletree Deakins.

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¶ 1015. Not only was the analysis never conducted, primary election data was never gathered. 

Id. The only election data Ohio and national Republicans gathered and used to draw the 

challenged map were those of general elections presenting the relative vote share of Democrats 

and Republicans. Id.

d) The record evidence is clear that District 11 was not drawn to comply 

with VRA.

To date, the only actual analysis guided by the requirements of VRA was conducted by 

Plaintiffs’ expert, Dr. Lisa Handley, who concluded that a district with 45% BVAP is sufficient 

to elect Black-preferred candidates in the vicinity of the 11th District. PFOF ¶ 865. Neither 

Defendants nor Intervenors have challenged the validity of Dr. Handley’s analysis of voting 

patterns in the vicinity of District 11, which considered ten elections prior to the 2011 

redistricting. Rebuttal PFOF ¶ 41.

Instead, Defendants and Intervenors rely on Dr. Handley’s jurisdiction and electionspecific analyses contained in her expert reports in the twin cases challenging the city of Euclid’s 

City Council and School Board districts. D/I Br. at 38-39. After describing the Euclid cases in 

their Brief, Defendants and Intervenors claim that “Speaker Batchelder and other leaders met 

with representatives of the African American community in northeast Ohio and met with 

legislators representing the area to discuss this district, and they conducted a functional analysis 

of the district to conclude that a 50% target was appropriate.” Id. This statement is not 

supported by any citations, nor is the provenance of any “functional analysis” traceable to any of 

Defendants’ and Intervenors’ Joint Proposed Findings of Fact.

Moreover, Dr. Handley testified that her analyses in the Euclid cases were irrelevant to 

her district-specific, functional analysis of the 11th District: those analyses were of entirely local, 

non-partisan elections that were held on off-years, in which White turnout outnumbered Black 

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turnout three to four times over, Whites rarely voted for Black-preferred candidates, and Blackpreferred candidates had never won a city council or school board elections. Rebuttal PFOF 

¶ 43. Her analysis of voting patterns in the vicinity of District 11, both before and after 

redistricting, by contrast, showed vastly different results: in the partisan, on-cycle elections she 

analyzed, Blacks and Whites turned out at comparable rates, Whites frequently voted for the 

Black-preferred candidate, and minority voters had consistently been able to elect their preferred 

candidate to office. Id. 

Dr. Handley’s view is based on the doctrinal emphasis in Section 2 cases on the 

“intensely local appraisal” of the challenged district. Thornburg v. Gingles, 478 U.S. 30, 79 

(1986) (quotations omitted); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 437 

(2006). Defendants’ decision not to conduct an actual analysis of the districts and elections 

implicated, and instead rely on that conducted on entirely inapposite districts, also constitutes a 

“pure error of law.” Cooper, 137 S. Ct. at 1472. Dr. Brunell, who has published many articles 

on redistricting and the Voting Rights Act, DIFOF ¶ 931, and served as an expert in Voting 

Rights Act-related litigation in the past, id. ¶ 935, would agree. “[N]ot all neighborhoods, not all 

counties, not all states are the same . . . when you are looking to draw a majority-minority district 

in a certain area, you want to . . . take an intensely local appraisal . . . and examine actual data to 

see what the appropriate percentage of minority voting age population would be in that district. 

Because it does differ.” Id. ¶ 991. In a jurisdiction like Euclid city council or school board 

elections, “you might need 55, 56, [or] 57 percent voting age population in that jurisdiction.” Id. 

¶ 993. In an overlapping but larger area, involving an entirely different district and elections, 

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“you might need significantly less than that.” Id.; see also id. ¶ 994 (noting that the appropriate 

BVAP depends on the same factors Dr. Handley analyzed).

8

Defendants and Intervenors rely principally on hearsay evidence from deceased members 

of the African-American community, as well as hearsay evidence from Ohio Republicans to 

plead that they “honestly believed” that over 50% BVAP was required. D/I Br. at 22. 

Regardless of whether such evidence actually aids in compliance with the Voting Rights Act, the 

record evidence of live, admissible witness testimony negates any such inference of good faith. 

Defendants and Intervenors claim that Representative Fudge reviewed and approved the 

configurations of her district, D/I Br. at 23 (citing testimony of DiRossi, Judy, and Szollosi), but 

the Court heard from Representative Fudge herself, who testified credibly that she did not even 

know, let alone approve of the shape of her district. PFOF ¶ 301. She only found out about her 

new district around the time H.B. 319 was made public. Id. There is simply no credible 

evidence that Defendants cared enough about VRA compliance to ask the sitting congressperson 

who had that district about how it should be drawn. That Representative Fudge, after the district 

was drawn without her input, accepted the composition of her district, D/I Br. at 24, does not 

speak to whether the Defendants genuinely attempted to take her views—which opposed 

including Akron in the district, PFOF ¶ 301—into account in deference to the VRA.

Defendants and Intervenors also claim that “Democratic officials had a voice in the 

process, and they too proposed majority-minority districts in northeast Ohio, including 

configurations not materially different from the one selected.” D/I Br. at 23. The citation for 

 8 For the same reason, any reliance on the academic literature surveying the kinds of districts electing 

minority representatives would contravene the “intensely local appraisal” that Dr. Brunell insists is 

required when redistricting in compliance with the VRA. Dr. Handley and Dr. Brunell wrote such an 

article seeking to understand the kinds of districts that elect minority representatives on a nationwide 

basis and across different types of districts (state legislative and congressional). Rebuttal PFOF ¶ 46. In 

the article, the authors explicitly made clear that for any individual jurisdiction determining what BVAP 

is needed in a district, a district-specific, functional analysis is required. Id.

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this proposition is from Troy Judy, and inexplicably, portions of Nina Turner’s testimony about 

her email address. Id. (citing Turner’s testimony, ECF No. 240 at 24:22–24). If Defendants and 

Intervenors intended to refer to Democratic proposals of changes to H.B. 319, those were offered 

not during the closed-door redistricting process of drawing H.B. 319, but after the highly 

lopsided map had already been rammed through the legislative process and enacted into law, 

when Democrats were in damage-control mode. The purpose of these proposals was to “provide 

a reasonable alternative to the majority” that “does not overwhelming[ly] favor one political 

party.” PFOF ¶ 255. Moreover, Democrats’ eleventh hour attempts to suggest palatable 

alternatives to Defendants do not suggest that the 11th District had to be drawn with over 50% 

BVAP. They proposed a district with over 50% BVAP because Defendants had indicated that 

“[t]hey had to have a 50 plus 1 district in northeastern Ohio. So we wanted to accommodate that, 

even though legal people questioned whether 50 plus 1 was the proper standard . . . to be an 

acceptable map.” Routt Dep., ECF No. 230-41 at 86:10-87:3. To claim that “Democratic 

officials had a voice in the process” when Ohio Democrats were forced to only suggest minimal 

alterations to H.B. 319 to make districts more competitive is to blind oneself to the realpolitik of 

being in the minority party. PFOF ¶ 291. And to imply that Democrats had proposed a 

majority-minority district because they believed it necessary to comply with the Voting Rights 

Act is to ignore the non-negotiable constraints imposed by Defendants.

e) District 3 was not drawn to improve minority opportunity to elect.

As for District 3, Defendants have never explained why creating a minority opportunity 

district in Franklin County necessitated the snowflake configuration of District 3. Indeed, Mr. 

Cooper’s Proposed Remedial District 3 clearly demonstrates that the same BVAP can be 

achieved with a different configuration that also better respects traditional redistricting criteria. 

PFOF ¶¶ 956-57. Record evidence reflects, at best, lip-service paid to minority opportunity in 

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Franklin County: a spreadsheet that purported to “Draw new minority opportunity district 

Franklin County – CD03” contained nothing but the usual estimations of Republican success in 

that district based on election indices. PFOF ¶ 1023. Evidently, no one involved in the mapdrawing process was interested in seeing any evidence of just how good of an opportunity 

minorities would have in electing their candidate of choice in the newly configured 3rd District. 

Id. ¶ 1025. The record demonstrates that their interest was not in minority opportunity to elect, 

but in partisan performance.

f) No concern was given to minority opportunity to elect in the 

Cincinnati area.

Finally, the geographic selectivity of Defendants’ averred concern for minority rights 

speaks volumes: there has never been any mention of the significant minority population in the 

Cincinnati area. See PFOF ¶¶ 958-59 (indicating that BVAP could have been increased in a 

Cincinnati-based district, and that simply by keeping Cincinnati whole, Mr. Cooper produced a 

Proposed Remedial District 1 that has a BVAP of 26.74% compared to current District 1, which 

has 21.3% BVAP). This might be because while increasing the BVAP in the 3rd and 11th 

Districts and helps obscure the packing of Democrats in those regions, doing so in the Cincinnati 

area would run directly counter to the cracking strategy employed in the 1st and 2nd Districts 1. 

4. Geography Does Not Explain the Way the Lines Were Drawn.

Again, despite the insistence of Defendants and Intervenors, D/I Br. at 1; DIFOF ¶ 1115, 

the geography of the state of Ohio does not explain the partisan valance of the district lines. 

Plaintiffs have proven through numerous, distinct pieces of evidence that geography does not 

explain these lines. Dr. Cho’s simulations work from the very same geographic baseline as the 

challenged plan, yet consistently produce options that do not “diminish[] or minimiz[e] the 

voting strength of supporters” of the state’s disfavored party, Rucho, 318 F. Supp. 3d at 850–51. 

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See PFOF ¶¶ 758–60. Likewise, each of the maps drawn by Mr. Cooper is based on the same 

geography and applies the same traditional redistricting criteria as the challenged map. Id. 

¶¶ 932–60. Once again, geography is no constraint on creating a districting plan in which 

Democrats have a better opportunity to elect their candidates of choice (particularly in the 1st, 

5th, 12th, and 16th Districts). Id. ¶¶ 972, 976–77. Notably, reducing the number of districts and 

losing population should reduce the number of county splits, but the challenged map does just 

the opposite, increasing the number of county splits from the 2002 Plan. Id. ¶ 946. If the 

challenged plan were compelled by population loss and two fewer districts in Northeast Ohio, as 

Defendants and Intervenors insist, there should have been fewer split counties in Northeast Ohio 

than there were under the 2002 Plan. There were more. Rebuttal PFOF ¶ 11.

Dr. Niven’s work further demonstrates that the district lines did not just happen to gather 

Democratic voters together because of their spatial proximity. Rather, an analysis of the 

communities that the district lines split systematically split apart Democratic communities at a 

rate disproportionate to Republican communities. PFOF ¶¶ 880–86. Defendants’ own expert’s 

opinion was consistent with this determination. Dr. Hood agreed that he did not assess whether 

Democrats were differentially clustered than Republicans, and admitted to being unfamiliar with 

the political science literature that indicated that spatial clustering was insufficient to explain the 

partisan composition of certain districting plans, including Ohio’s. Id. ¶ 999. Dr. Hood agreed 

that the term “natural packing” indicates that a cluster of partisans wind up in the same 

congressional district, but the lines between the 1st and 2nd Districts cut through a cluster of 

Democratic VTDs in Hamilton County due to Defendants drawing the districts that way. Id.

¶ 1000. It is not the geography of the State that explains the partisan composition of the 

congressional plan, but the particular choices made by the map drawers.

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The record also contradicts Defendants’ and Intervenors’ assertion that changes in Ohio’s 

political geography explains the partisan composition of the map. Dr. Warshaw’s analysis 

demonstrates that the challenged map is an outlier, judged against Ohio’s own baseline. Each of 

the partisan bias metrics calculated by Dr. Warshaw demonstrates a huge jump from 2010, 

immediately before the redistricting, to 2012, immediately after. Id. ¶¶ 728, 731, 735; Trial 

Ex. P571 at 22–27. Defendants and Intervenors cannot credibly claim that there was a seismic 

shift in Ohio’s political geography in a pro-Republican direction in between 2010 and 2012,

particularly in the face of President Obama winning the state in 2012. Trial Ex. J17. It is not 

Ohio’s geography, but the redrawn district lines that explain extreme partisan bias in Ohio’s 

congressional map.

5. The Post Hoc “Requirements” Testified to By Defendants’ Witness 

Do Not Explain the Way the Lines Were Drawn.

As described above, in assessing a challenged redistricting plan, courts must interrogate 

“the importance of the State’s [asserted] interests, the consistency with which the plan as a whole 

reflects those interests, and the availability of alternatives that might substantially vindicate those 

interests.” Karcher, 462 U.S. at 741. Defendants’ key fact witness, Ray DiRossi, asserted that a 

number of purportedly non-partisan interests compelled the drawing of the congressional district 

lines. See PFOF ¶¶ 981–94. Both at trial and in their post-trial filings, Defendants and 

Intervenors have attempted to obscure DiRossi’s explanations, endeavoring to frame the features 

as the changes Democrats purportedly requested in the revised H.B. 369. See D/I Br. at 27–30; 

DIFOF ¶¶ 351–99. Once again, the actual record betrays them.

Under H.B. 319, the same three sets of incumbents were paired; Warren County was 

wholly in District 1; Loveland was wholly in District 2; Mercer County was split as requested by 

Senator Faber; NASA Glenn Research Center was in District 9; the Timken Headquarters was in 

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the 16th District; the 3rd District in Franklin County had a BVAP around 30%, contained no 

incumbent, and contained the OSU campus; Franklin County would be represented by both a 

Democratic and a Republican congressperson, and the 11th District had a BVAP over 50% and

extended into Summit County, which was perversely split four ways. Rebuttal PFOF ¶¶ 12–20. 

The only features which Mr. DiRossi testified to that were changes between H.B. 319 and H.B. 

369 were including more of the Toledo area in the 9th District,9 swapping small populations in 

Franklin County into and out of the 3rd District, making Clark County whole, and making 

Montgomery County whole. Compare Trial Exs. P45-61, with Trial Exs. P544–45. At trial, 

DiRossi did not describe what was done only to make the changes resulting in H.B. 369, but to 

elements that supposedly played into the creation of Ohio’s congressional map as a whole. His 

described features begin in the drawing of H.B. 319, anchored by the Franklin County Sinkhole 

and the locking down of a 12-4 Republican seat share. PFOF ¶¶ 75–203. 

Defendants and Intervenors demand that Plaintiffs blindly accept the partisan way in 

which the state achieved the “required” features of H.B. 319 about which DiRossi testified, as if 

the decisions going into H.B. 319 itself were immaterial. See DIFOF ¶¶ 896–97. In rebuttal,

Plaintiffs certainly do not accept the perverse, partisan lines of H.B. 319 as a legitimate starting 

point for alternative maps that still meet the same claimed goals. As such, Mr. Cooper’s rebuttal 

plan takes all of these features into account and demonstrates there is at least one available 

alternative that substantially vindicates these same interests while not burdening voters who 

support the state’s disfavored party. PFOF ¶¶ 981–94.

Additionally, though DiRossi failed to acknowledge the clear partisan implication of the 

testified-to features, it is plain that many are imbued with partisan intent and effect. DiRossi’s 

 9 Mr. DiRossi also testified to including NASA Plum Brook in District 9, ECF No. 243:10–13, but it is 

located in the 4th District under the challenged plan, Cooper, ECF No. 249 at 40:2–10.

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explanation of the reason for including Warren County in the 1st District is laughable, contentless, and unsupported by the record. DiRossi simply described that the 1st District contained the 

whole of Warren County without providing any rational reason why. Slicing up the third largest 

city in Ohio and appending those two portions of the city to much more rural portions of the 

State, even if they are whole counties, does not amount to compliance with traditional 

redistricting criteria. Keeping cities whole is also a traditional redistricting criterion. PFOF 

¶ 1040. Further, Warren County is kept whole in every alternative map Mr. Cooper drew in this 

case, Trial Exs. P090 at 13, fig.6; P091 at 2, fig.1; P092 at 3, fig.2 & 11, fig.7; P093 at 4, fig.2 & 

12, fig.7; P617; this is not a distinctive feature of H.B. 319 and H.B. 369. 

It strains credulity that Defendants and Intervenors now claim the composition of the 1st 

District is driven by traditional redistricting criteria. D/I Br. at 29. Rather, the record evidence 

demonstrates that the decision to include Warren County in the 1st District was to prevent a 

Democrat from prevailing under the new map, as Steve Driehaus did over then-incumbent Rep. 

Chabot in 2008. Trial Ex. J15. Rep. Chabot himself acknowledged that, even with the tough 

challenge of Aftab Pureval in 2018, he knew he would win because of Warren County. PFOF 

¶ 668. After the inclusion of Warren County in the 1st District, Rep. Chabot’s colleague, Rep. 

Stivers likewise acknowledged that Chabot “won’t have a close race for the next decade.” Id.

¶ 283. The inclusion of Warren County was not about traditional redistricting criteria, but about 

moving the 1st District “out of play.” Id. ¶ 276. 

Likewise, the record reflects that the composition of the 3rd District in Franklin County 

was entirely compelled by partisanship. Id. ¶¶ 121–203. So too, the way in which incumbents 

were paired. See supra Section II.B.2. That DiRossi now describes each of these features 

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without reference to their partisan aims does not overcome the evidence in the record that proves 

the partisan motives underlying each of these features. 

C. Ohio’s Congressional Map Has Had a Discriminatory Effect.

1. Discriminatory Effect, Not Changing Voter Preferences, Explains 

Ohio’s Election Results.

Defendants and Intervenors allude to Democrats losing pull in the state multiple times,

but the evidence does not bear that out. The work of Dr. Chris Warshaw illustrates that 

Democrats losing sway over Ohio’s voters cannot explain what has happened under Ohio’s map. 

He ran five partisan bias measures over all congressional maps of states with over six seats, and 

what his analysis shows is a significant increase in the partisan bias in favor of Republicans 

starting with the 2012 map. PFOF ¶¶ 722, 724. In the case of Ohio, across all five measures, 

there was a significant jump in partisan bias from 2010 to 2012. Id. ¶¶ 728, 731, 735, 741, 742. 

The state’s geography did not radically change in those two years, nor did the Democratic 

message in the state. Rather, the only change between 2010 and 2012 was the map. 

Moreover, Dr. Warshaw’s seats-votes curve directly refutes Defendants’ and Intervenors’ 

hypothesis that “the current 12-4 split is, if nothing else, attributable to the Democratic Party’s 

gradual loss of popularity in Ohio.” D/I Br. at 34. The curve clearly shows that even if voter 

preferences fluctuate across a wide range of possibilities, the seat outcome that Republicans so 

secretively and painstakingly crafted would hold strong. Rebuttal PFOF ¶ 33. 

The actual election results themselves illustrate that it is not a linear story of Democrats 

losing popularity in the state. Democrats received different shares of the total congressional vote 

in Ohio in 2012 (47% of the vote), 2014 (39% of the vote), 2016 (41% of the vote), and 2018 

(47% of the vote). PFOF ¶¶ 714-717. If anything, the evidence in the record illustrates that 

Democratic popularity in the State has ebbed and flowed. See Rebuttal PFOF ¶ 38. Some years,

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Democrats had captured more votes than other years, and yet the seat share has remained exactly 

the same. Id. ¶ 39. This is exactly the problem of which Plaintiffs complain. They are not 

seeking a guaranteed allocation of seats, but rather that the seats reflect the will of Ohio’s voters. 

A map that does so is reflected in Plaintiffs’ Proposed Remedial Plan. Democrats capture 

different seat shares, as reflected in their overall popularity in the congressional vote share: six 

seats in 2012, five seats in 2014, five seats in 2016, and eight seats in 2018. PFOF ¶ 972. 

2. Plaintiffs Have Demonstrated Both Statewide and District-Specific 

Discriminatory Effect. 

Moreover, Plaintiffs have demonstrated the significant and enduring statewide and 

district-specific discriminatory effect the challenged map has on Democratic voters. The 

partisan symmetry metrics analyzed by Dr. Warshaw clearly refute Defendants’ and Intervenors’ 

claim that any “incumbency-protection motive,” if it did in fact drive the map drawing process, 

was “bi-partisan” in any way, D/I Br. at 35—all the partisan symmetry metrics find an enduring 

and strong effect in favor of the Republican party. See PFOF ¶¶ 726-49. Indeed, 

notwithstanding the minor variations in partisan symmetry metrics from year to year, over time 

and across a variety of metrics, they demonstrate an enduring, significant, and outlier partisan 

effect in favor of Republicans. See id.

10

Defendants and Intervenors also fail to grapple with the significance of Dr. Cho’s 

findings of partisan effect in the challenged map, and instead make the unremarkable observation 

that Dr. Cho applied a uniform principle for excluding highly uncompetitive elections and faced 

resource and time constraints in analyzing her simulated maps with election data from 2016. D/I 

 10 To be clear, Dr. Warshaw’s calculations do, contrary to Defendants’ and Intervenors’ allegations, 

“measure actual election results.” D/I Br. at 36. It is only when actual elections involve uncontested 

races that Dr. Warshaw uses other actual elections such as presidential election vote shares to impute 

what contested vote shares in those elections would have been. PFOF ¶ 972; Rebuttal PFOF ¶ 27. In 

addition, and contrary to Defendants’ and Intervenors’ allegations, D/I Br. at 36, Dr. Warshaw’s 

calculations in fact “control[] for voter turnout variations between districts,” Rebuttal PFOF ¶ 31.

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Br. at 36. As Dr. Cho explained, the purpose of analyzing simulated maps with previous election 

data is to estimate the underlying partisanship of those districts; including highly uncompetitive 

elections in which one candidate swept the election muddles estimates of partisanship with 

factors that “are not partisanship per se.” PFOF ¶ 777. In any event, Dr. Cho’s simulations were 

assessed against a host of elections, including the two elections most proximate to when the map 

was drawn prior to redistricting (2008, 2010), the two elections most proximate to after the map 

was drawn (2012, 2014), as well as the most recent election held under the map (2018). See Id.

¶¶ 778-79. Defendants and Intervenors nowhere address Dr. Cho’s findings on any of those 

analyses: that the challenged map exhibited a highly unusual partisan effect, isolated from any 

partisan effect that might result from Ohio’s geography or Defendants’ decisions on adherence to 

traditional redistricting criteria. Pls.’ Br. at 55-56. 

Contrary to Defendants’ and Intervenors’ representation, Plaintiffs have adduced 

voluminous evidence on “district-specific partisan effect.” D/I Br. at 35. Plaintiffs have done so 

with testimony from Plaintiffs and expert evidence from: Dr. Niven, who analyzed the Ohio map 

by region and how the packing and cracking in various districts were effectuated, Dr. Cho, 

whose Plaintiff-specific analysis offers a neutral baseline against which to measure the partisan 

effect of cracking and packing in the challenged plan, and Mr. Cooper, whose Proposed 

Remedial Plan provides a concrete and visible basis for comparison to the challenged map and 

the partisan effect it has produced. Plaintiffs summarize such evidence on a regional basis:

Republicans have effectuated a discriminatory partisan effect in the cracking of Hamilton 

County in Districts 1 and 2. See PFOF ¶ 1041 (winning both districts in every election, 

including 2018), id. ¶ 890 (Dr. Niven’s testimony of the negation of Democratic votes in 

Hamilton County with the “overwhelmingly Republican” Warren County); id. ¶ 893 (District 2 

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effectuates an “outnumber[ing]” of the Democratic voters in Hamilton County with Republican 

voters from the other counties); see also id. ¶¶ 331, 323, 655, 668 (testimony of Plaintiffs).

Cracking Hamilton County has produced a large and sustained partisan effect in favor of 

Republicans that would not have occurred under alternative districting configurations. See Pls.’ 

Br. at 9. This effect is also clear when comparing the one-sided electoral outcomes under the

current districts against the highly competitive elections occurring in Proposed Remedial District 

1, which includes most of Hamilton County and keeps Cincinnati whole. Id. at 12.

Plaintiffs have also demonstrated discriminatory partisan effect in the Franklin County 

area through the packing of Democratic voters in District 3 and the cracking of Democratic 

voters in Districts 12 and 15. PFOF ¶¶ 900, 906, 909-10 (Niven); id. ¶¶ 338, 500-02, 694

(Plaintiffs). The strong packing effect in District 3 is immediately obvious when comparing 

Plaintiff Inskeep’s current district and those under Dr. Cho’s simulated maps: none of Plaintiff 

Inskeep’s districts are as packed as is her current district. Pls.’ Br. at 9; see also id. at 12 

(Proposed Remedial District 3, containing the majority of Franklin County, is also less 

Democratic than current District 3). Comparing District 12 with Proposed Remedial District 12 

also reveals cracking: splitting Franklin County only two ways, which is all that is required to

comply with population equality requirements, would have dissolved the partisan effect in favor 

of Republicans as exhibited in current District 12. Id. at 12.

Plaintiffs have demonstrated discriminatory partisan effect in District 9, the Snake on the 

Lake, through packing Democratic voters in it, and cracking Democratic voters in the 

surrounding districts. PFOF ¶¶ 897-98 (Niven); id. ¶¶ 429, 457, 684, 412 (Plaintiffs). The

Democratic vote share in District 9 is higher than what Plaintiffs Rader and Walker would 

encounter in Dr. Cho’s simulated districts. Pls.’ Br. at 9. The cracking of Democratic votes 

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around the Snake on the Lake, especially the fracturing of Democratic voters in Lorain County, 

is especially clear when considering Plaintiff Griffiths’s simulated districts. Id., see also id. at 12 

(uncracking Lorain County in Plaintiff Griffiths’s Proposed Remedial District removes the 

discriminatory partisan effect in his current district). The situation of Stephanie White, a 

member of APRI living on the outskirts of Toledo, similarly demonstrates a district-specific 

cracking effect around that part of the state. See PFOF ¶¶ 603, 616, 972, 1041.

Last but not least, Plaintiffs have demonstrated the entrenched partisan effect 

Republicans achieved in northeast Ohio through concentrating disparate Democratic voters in 

District 11 and 13, and splitting and diluting Democratic voting strength in Cuyahoga and 

Summit Counties across Districts 14 and 16. Id. ¶ 918; id. ¶¶ 491, 527, 537, 550, 567, 680 

(Plaintiffs). Dr. Cho’s Plaintiff-specific analysis bears out the partisan effect in each of these 

packed and cracked districts; so too, does Mr. Cooper’s Proposed Remedial Plan. That Districts

11 and 13 are packed is clear when considering that Plaintiffs Harris and Myer would expect to 

be in less packed districts in Dr. Cho’s simulated maps. Pls.’ Br. at 9; see also id. at 12 (Plaintiff 

Myer’s Proposed Remedial District also reduces the effect of packing). The Plaintiff-specific 

analysis for Plaintiff Hutton also demonstrates the cracked effect of the challenged map: the 

partisan effect of cracking in District 14 disappears in Plaintiff Hutton’s simulated districts. Id. 

at 9; see also id. at 12.

That cracking Summit County has produced a partisan effect in favor of Republicans is 

plain as day when comparing the current and proposed remedial district for John Fitzpatrick, a 

member of the League of Women Voters. PFOF ¶ 633. Summit County is small enough to fit 

entirely within a single congressional district, and if joined with any contiguous county, would 

be a Democratic district. Id. ¶¶ 916–17. Keeping Summit County whole in Proposed Remedial 

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District 16 highlights the strong, district-specific effect that has resulted by splitting Summit 

County: instead of living in a district that has not elected a Democratic candidate, Summit 

County voters like Mr. Fitzpatrick would live in a district that leans Democratic. Id. ¶ 972.

D. There Is No Justification for the Discriminatory Congressional Districts 

Implemented by the State.

Plaintiffs agree with Defendants and Intervenors that Defendants and Intervenors have 

“not satisfied” the “absence-of-justification element.” D/I Br. at 37 (heading C). And 

Defendants and Intervenors are free to register their “respectful[] disagree[ment]” with this 

Court’s Order denying summary judgment by waiving their opportunity, noted by this Court, to 

“justify each district on other, legitimate legislative grounds.” SJ Order at 10. But Plaintiffs 

“respectfully disagree” that they have shifted any of their burden of proof of partisan intent and 

effect onto Defendants or Intervenors. No map, and certainly not “droves for decades,” D/I Br.

at 37, can be struck down without plaintiffs putting forth evidence—as Plaintiffs did in this 

case—of the overriding, unrelenting 12-4 partisan goal driving the entire redistricting process,

which then manifested itself in the map that was drawn, producing the intended partisan spoils in 

every election held under it. Pls.’ Br. at 29–56.

This Court was clear in its Order that the justifications the State may proffer in defense of 

its districts are limited to those that are “legitimate legislative grounds.” SJ Order at 10. None of 

those “legitimate legislative grounds” justify the 2012 Plan. Plaintiffs have demonstrated that 

there is no “basis in evidence” for concluding that either incumbency protection or VRA 

compliance accounted for the way in which any, let alone each, of the challenged district was 

drawn in this case. See supra Sections II.B.2–3. And Intervenors and Defendants do not even 

attempt to defend the map based on other redistricting criteria, beyond giving passing citation to 

“retention of district cores.” D/I Br. at 5. As all of the maps drawn by Mr. Cooper make 

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painfully clear: the “geographic monstrosity” produced by the challenged plan was not a function 

of necessity, but a result of deliberate choices to singlehandedly pursue a 12-4 outcome, exacting 

any and all costs to traditional redistricting principles. See PFOF ¶¶ 938–70, 981–92.

III. PLAINTIFFS HAVE STANDING TO PURSUE THEIR CLAIMS.

Defendants and Intervenors ignore the variety of evidence Plaintiffs demonstrated at trial 

and laid out in their post-trial brief regarding Plaintiffs’ standing to pursue each claim, following 

the guidance of this Court’s detailed Order denying summary judgment, and relying on the 

Supreme Court’s majority opinion in Gill, and the decisions in Rucho and LWV-Michigan. 

Defendants and Intervenors claim that the Supreme Court never defined “cracking” and 

“packing” in the context of partisan gerrymandering claims and proceed to regale the Court with 

what those terms mean in other redistricting contexts. D/I Br. at 66-68. Yet while the opinion in 

Gill did not set out a standard for resolving vote dilution claims for partisan gerrymandering on 

the merits, it did make clear the standards for demonstrating injury under the vote dilution theory 

and what it meant by “packing” and “cracking” in the context of the case. See Gill, 138 S. Ct. at 

1919 (in the syllabus of the decision, providing a definition for “cracking” as splitting 

Democratic voters “among different districts in which those voters fail to achieve electoral 

majorities” and “packing” as concentrating Democratic voters “in a few districts in which 

Democratic candidates in by large margins”); id. at 1924 (quoting Plaintiffs’ definition of 

packing and cracking); id. at 1930 (describing cracking and packing in the context of Plaintiffs’ 

alleged harm of vote dilution); id. at 1932 (describing packing and cracking as having been 

sufficiently described as a particularized injury, just not proven in that case).

Moreover, Gill gave meaning to “[t]he concept of vote ‘dilution’” in the partisan 

gerrymandering context, even if it might mean something different in the malapportionment 

context. See D/I Br. at 68–69. Defendants and Intervenors barely respond to any of the evidence 

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Plaintiffs adduced to demonstrate how Plaintiffs’ votes were diluted according to the theory 

described by the majority opinion in Gill. See, e.g., Pls.’ Br. at 7–10 (Dr. Cho’s Plaintiff-specific 

analysis not only showing which Plaintiffs lived in packed versus cracked districts, but also “to 

what extent a particular Plaintiff is packed or cracked”) (quoting Gill, 138 S. Ct. at 1930).

Ignoring the vast majority of the evidence adduced by Plaintiffs, Defendants and 

Intervenors fixate on the fact that there remain districts in Mr. Cooper’s Proposed Remedial Plan 

that will be “majority-Republican.” D/I Br. at 70. As an initial matter, that should come as no 

surprise as Plaintiffs do not seek a locked-in, entrenched map in Democrats’ favor. As Mr. 

Cooper’s table of estimated Democratic vote share in his Proposed Remedial Plan shows and as 

Dr. Warshaw’s calculations of partisan bias for the Proposed Remedial Plan confirms, the 

number of seats each party is estimated to receive fluctuates depending on the parties’ 

performance. PFOF ¶ 972 (compare, for instance, 2014 with 2018); id. ¶ 937. 

Moreover, Mr. Cooper’s estimates of Democratic vote share in his Proposed Remedial 

Plan are nothing more than what he has claimed they are: estimates. PFOF ¶ 974. In fact, they 

are estimates based on vote share of actual congressional elections conducted under the 

challenged map. Id.¶ 971. As numerous witnesses have testified in this case, how the lines were 

drawn in the challenged map affects turnout and voter interest. See, e.g., id.¶ 592 (President of 

APRI, Andre Washington, describing how hard it is to encourage Democratic voters to turn out 

in District 12 because of the way the district is drawn). Indeed, Defendants’ expert Dr. Hood 

agrees that the district lines themselves could also affect what kinds of candidates choose to run 

in the districts and how much money they can raise. Id. ¶ 1005. Plaintiffs do not rely on Mr. 

Cooper’s estimates to definitively guarantee that Plaintiffs would have lived and voted in 

Democratic districts under all circumstances in the Proposed Remedial Plan. The estimates 

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clearly demonstrate that Plaintiffs’ injuries are redressable. Proposed Remedial District 1, for 

instance, has an estimated Democratic vote share based on the congressional elections that have 

occurred under the challenged plan that fluctuates between 44.3% and 57.2%, and would 

significantly improve the opportunity to elect candidates of choice for Plaintiffs Goldenhar and 

Burks and for the members of Plaintiff Hamilton County Young Democrats. See Pls.’ Br. at 12. 

Similarly, Plaintiffs have demonstrated through Dr. Cho’s Plaintiff-specific analysis that several 

Plaintiffs would not only live in significantly more competitive districts in the simulated maps, 

but in districts that have a fighting—if not good—chance at electing their candidates of choice. 

See id. at 10 (describing Plaintiffs Griffiths, Hutton, Goldenhar, and Burks).

IV. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY LACHES.

In asserting laches, a mere showing of lapse in time is insufficient; Defendants must 

show “changed circumstances” that “make it more difficult to defend against the claim.” Chirco 

v. Crosswinds Communities, Inc., 474 F.3d 227, 231 (6th Cir. 2007) (internal citation omitted). 

Critically, the requisite showing of prejudice cannot rest on speculation. See, e.g., United States 

v. Weintraub, 613 F.2d 612, 619 (6th Cir. 1979) (“the prejudice appellant argues he has suffered 

is speculative, at best, and certainly was no greater than the prejudice to the government in trying 

its case”) (citing Costello v. United States, 365 U.S.265, 282–83(1961)); United States v. 

Marsten Apartments, Inc., 175 F.R.D. 257, 264 (E.D. Mich. 1997) (“The mere possibility of 

prejudice . . . is not tantamount to an affirmative showing of prejudice.”) (internal citation 

omitted); Lofgren v. Canada, No. 2:13-cv-13622, 2016 WL 25977, at *13 (E.D. Mich. Jan. 4, 

2016) (where defendant “proved no prejudice attributable to his reliance or [plaintiff’s] delay,” 

finding “speculation is not a valid basis” for a conclusion of prejudice).

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Defendants make much of some of OCAR’s documents being unavailable. See DIFOF

¶¶ 1487–1508; D/I Br. at 73. Yet speculation—at times, even contrary to the record—is all that 

Defendants offer here to suggest prejudice as to those documents.

First, Defendants speculate that the documents in question were substantive at all. Ann 

Henkener, a LWVO volunteer, testified that many documents obtained by OCAR were 

“redundant,” and included numerous copies of the same email chain, such that ultimately “it was 

a lot of paper to go through with less information than one would have thought that many boxes 

of information could have provided.” Henkener Dep., ECF No. 230-18 at 11:23-12:14. The two 

boxes of documents that Ms. Henkener transferred from OCAR to LWVO were produced in this 

action. Defendants have no evidence that the remaining sets had any value at all, much less that 

they—unlike most, if not all, of the produced documents—would have helped Defendants’ case. 

Defendants have not identified a single document that the map drawers recall but to which they 

no longer have access.

Second, live witness testimony is available to Defendants to ascertain the unavailable 

documents’ content. Judge Jim Slagle, who was then the sole employee of OCAR, testified that 

he reviewed each one of the documents that OCAR obtained and used. Slagle Dep., ECF No. 

230-45 at 22:21-23:8, 25:22-26:15. Defendants certainly have not established that Judge 

Slagle’s memory is faulty, and so could simply have asked him about the documents’ content at 

deposition, had they wanted to know. Tellingly, Judge Slagle testified that “the whole purpose 

[of] the report was to accurately document . . . what we had done in terms of trying to obtain 

records, what we had obtained, and to try to discuss some of the more significant records to help 

shine a light on the whole process.” Id. at 22:9-20. The most relevant documents, in other 

words, were already summarized and described in OCAR’s report. To imply that there ever 

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were others of import is simply further speculation. And beyond this, to imply that there were 

others that were of import, that were not summarized, and that would have contradicted the ones 

that were summarized, is total speculation. This cannot be a basis for a finding of laches.

Defendants’ and Intervenors’ invocation of a number of dead and ancillary individuals to 

the redistricting process is similarly unavailing. Notably, of the individuals that Defendants and 

Intervenors claim to have been harmed by their passing, none were members of the Ohio General 

Assembly at the time. See D/I Br. at 73 (citing to the death of Representative LaTourette, Tom 

Hofeller, Louis Stokes, Mike Wild, and Bob Bennet). All the principal map drawers and 

legislators are still available, and many have been witnesses in this case, including DiRossi, 

Mann, Batchelder, Niehaus, Judy, Whatman, Kincaid, Speaker Boehner, Morgan, Huffman, and 

Faber. PFOF ¶ 1043. Additionally, each of the Congresswomen on whom Defendants and 

Intervenors now rest their excuses for the map are alive, still in office, and Plaintiffs offered two 

at trial. Representative Beatty was included on Defendants’ and Intervenors’ witness list, but 

they apparently made no effort to call her at trial. 

CONCLUSION

Plaintiffs have satisfied the Court’s test for violation of the First Amendment, the 

Fourteenth Amendment, and Article I of the United States Constitution. Therefore, Defendants 

should be ordered to immediately establish a congressional districting plan that complies with 

the United States Constitution and enjoined from any further gerrymandering.

April 2, 2019 Respectfully submitted,

T. Alora Thomas-Lundborg

Theresa J. Lee

Emily Rong Zhang

/s/ Freda J. Levenson, trial attorney

Freda J. Levenson (0045916)

Elizabeth Bonham (0093733)

American Civil Liberties Union of Ohio Fdtn.

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Dale E. Ho

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

athomas@aclu.org

tlee@aclu.org

erzhang@aclu.org

dho@aclu.org

Robert Fram

Nitin Subhedar

Jeremy Goldstein

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Tel.: (415) 591-6000

rfram@cov.com

nsubhedar@cov.com

jgoldstein@cov.com

4506 Chester Avenue

Cleveland, OH 44103

Tel.: (216) 472-2220

Facsimile: (216) 472-2210

flevenson@acluohio.org

ebonham@acluohio.org

David Carey (0088787)

American Civil Liberties Union of Ohio Fdtn.

1108 City Park Avenue

Columbus, OH 43206

Tel.: (614) 586-1972

dcarey@acluohio.org

Michael Baker

Perrin Cooke

Peter J. Rechter

Robert S. Day

Jacob Canter

Isaac Wood

Covington & Burling LLP

850 Tenth Street, NW

Washington, DC 20001

Tel.: (202) 662-6000 

mbaker@cov.com

pcooke@cov.com

prechter@cov.com

rday@cov.com

jcanter@cov.com

iwood@cov.com

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CERTIFICATE OF SERVICE

I, Freda J. Levenson, hereby certify that the foregoing document was served upon all 

counsel of record in this case via ECF. 

/s/ Freda J. Levenson

Counsel for Plaintiffs

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