[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm. , Slip Opinion No. 2022-Ohio342.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2022-O HIO -342
L EAGUE OF W OMEN V OTERS OF O HIO ET AL
. v . O HIO R EDISTRICTING C OMMISSION ET AL
. B ENNETT ET AL
. v . O HIO R EDISTRICTING C OMMISSION ET AL
. O HIO O RGANIZING C OLLABORATIVE ET AL
. v . O HIO R EDISTRICTING C OMMISSION ET AL
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm. , Slip Opinion No. 2022-Ohio-342.] Redistricting—Original actions under Oh io Constitution, Article XI—The Ohio Redistricting Commission’s revised plan violates Article XI, Sections 6(A) and 6(B) of the Ohio Constitution—Revised plan is invalid—The Ohio Redistricting Commission shall be reconstituted, convene, and adopt an entirely new plan in conformity with the Ohio Constitution. (Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted February 1, 2022— Decided February 7, 2022.)
O RIGINAL A CTIONS filed pursuant to Ohio Constit ution, Article XI, Section 9.S UPREME C OURT OF O HIO

2 __________________ Per Curiam.
I. INTRODUCTION {¶ 1} On January 12, 2022, this court held that the General Assembly– district plan adopted by responde nt Ohio Redistricting Commissi on in September
2021 was invalid. League of Women Voters of Ohio v. Ohio Redistricting Comm. , ___ Ohio St.3d ___, 2022-Ohio-65, ___ N.E.3d ___, ¶ 2, 138. We held that petitioners 1 had proved beyond a reasonable doubt that the commission had n ot attempted to draw a district plan that met the standard in Arti cle XI, Section 6(A) of the Ohio Constitution—which requires that no plan be drawn p rimarily to favor a political party—or the proporti onality standard in Article XI , Section 6(B)— which requires that the statewide proportion of districts whose voters favor each political party correspond closely to the statewide preference s of the voters of
Ohio. Id . at ¶ 2, 114, 131, 138. We ordered the commission to be recon stituted and to adopt a new plan in conformity with the standards set forth in Sections 6(A) and 6(B) within ten days of our judgment. Id . at ¶ 137-139. We retained jurisdiction for the purpose of reviewing the new plan and authorized petiti oners to file objections to the new plan withi n three days of the plan’s adop tion. Id . at ¶ 139. {¶ 2} The commission adopted a plan on January 22. Petitioners timel y objected, arguing that the plan does not meet the standards set forth in Sections 6(A) and 6(B). Some of the petitioners also argue that the pla n improperly splits municipalities and townships in violation of Article XI, Sectio n 3(D)(3) and that

1. Petitioners in case No. 2021-1193 are the League of Women V oters of Ohio, the A. Philip Randolph Institute of Ohio, and six individual voters: Tom Harr y, Tracy Beavers, Valerie Lee, Iris Meltzer, Sherry Rose, and Bonnie Bishop. Petitioners in case N o. 2021-1198 are ten individual voters: Bria Bennett, Regina C. Adams, Kathleen M. Brinkman, Ma rtha Clark, Susanne L. Dyke, Carrie Kubicki, Meryl Neiman, Holly Oyster, Constance Rubin, an d Everett Totty. Petitioners in case No. 2021-1210 are the Ohio Organizing Collaborative, the O hio chapter of the Council on American-Islamic Relations, the Ohio Environmental Council, and six individual voters: Pierrette Talley, Samuel Gresham Jr., Ahma d Aboukar, Mikayla Lee, Prentis s Haney, and Crystal Bryant.January Term, 2022

3 the commission violated certain procedural requirements in Arti cle XI, Section 1(C). The commission timely r esponded to the objections. {¶ 3} We hold that petitioners have shown beyond a reasonable doubt t hat the plan adopted by the commission on January 22 violates Artic le XI, Sections 6(A) and 6(B) of the Ohio Constitution. We do not reach the al leged violations of Article XI, Section 1(C) and Sec tion 3(D)(3). As explained in more detail below, we again order the commission to be reconstituted and to adopt a new plan in conformity with the Ohio Constitution.
II. BACKGROUND
A. The commission reconvenes {¶ 4} On January 16, 2022—four days after we issued our decision invalidating the original distr ict plan—the commission announce d that it would reconvene on January 18. The c ommission’s announcement stated that individual commission members were instructing their respective staff memb ers to “begin identifying possible areas to addr ess the court’s ruling regard ing Section 6 of the
Ohio Constitution” and that commission members would “have acce ss to other
commission members’ relevant staff and contractors.” {¶ 5} On January 17, Ray DiRossi and Blake Springhetti, who worked fo r the Senate and House Republican C aucuses, respectively, and who were the map drawers for the commission’s original district plan, met with s taffers for the Senate
and House Democratic Caucuses an d Chris Glassburn, a consultant retained by the Democratic legislative caucuses for map-drawing purposes. Amon g other things, they all seem to have agreed tha t they would use election data from all statewide federal and state partisan elections from 2016 to 2020. 2

2. Article XI, Section 6(B)’s proportionality standard refers to “statewide state and federal partisan general election results during the last ten years.” Ohio Cons titution, Article XI, Section 6(B); see also League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 105. In their objections, petitioners have not contested the commission ’s use of statewide election results from 2016 to 2020 rather than from the entire ten-year period.S UPREME C OURT OF O HIO

4 {¶ 6} During the January 18 commission meeting, Governor Mike DeWine administered the oath of office to a new commission member, Hou se Minority Leader Allison Russo, who replaced Representative Emilia Sykes. 3 Some of the commission members expressed their understanding of the commiss ion’s task in light of this court’s ruling. Yet the commission members did n ot engage in any map drawing or otherwise speci fically explain how they intended to redraw the district plan. {¶ 7} After the meeting, staff repres entatives of each commission mem ber met and agreed to continue meeti ng in the days ahead. At some point, the commission members decided to take a “regional” approach to the map-drawing process. On January 19, DiRossi and Springhetti began emailing other staff representatives possible changes to House and Senate districts in different regions of the state, requesting feedba ck. DiRossi and Springhetti sta rted with proposed changes in Franklin and Hamilton Counties and later sent a prop osal regarding Lorain County. On January 20, Gla ssburn replied with the “[D]e mocratic responses” to the proposals fo r Franklin and Hamilton Counties. B. The commission’s January 20 meeting {¶ 8} The commission met again on January 20. Speaker of the House Robert Cupp, who cochaired the commission with Senator Vernon S ykes, said that staff for each of the commission members—both the legislative m embers and the
statewide-officeholder members—ha d been working together but th at the commission had not yet reached an agreement. House Speaker Cup p further said that “[w]e”—presumably referri ng to himself and President of th e Senate Matthew Huffman or to Republican membe rs of the commission—had proposal s for Franklin and Hamilton Counties and their surrounding areas, whi ch had been posted to the commission’s website. In an affidavit submitted to this court, Senator

3. On January 12, the House Demo cratic Caucus elected Russo as the House Minority Leader, and on January 26, she was sworn into that office.January Term, 2022

5 Sykes stated that he was “caught off guard” by that statement b ecause he did not know that the Republican commissi on members would be submitting their own county maps on the commission’s website before the commission h ad reached a
consensus on how those districts would be drawn. Senator Sykes requested a

recess. {¶ 9} House Speaker Cupp’s proposal included a map of the areas in an d around Franklin and Hamilton Counties, the boundaries of the pr oposed districts in those areas, and the “index”—i.e ., the partisan leaning—for eac h district. For example, under his proposal, Franklin and Union Counties would include 11 Democratic-leaning House distri cts, 1 Republican-leaning House district, 4 Democratic-leaning Senate districts, and 0 Republican-leaning S enate districts— which was one fewer Republican-l eaning House district and one fewer Republicanleaning Senate district than in the same territory under the co mmission’s original district plan. But some of the Democratic-leaning districts fa vored Democratic candidates by very slim margins, including a Senate district wi th a 50.08
Democratic index and a House di strict with a 50.14 Democratic i ndex. House Speaker Cupp’s proposal for Hamilton and Warren Counties includ ed one fewer Republican-leaning House district than in the commission’s orig inal district plan. But again, one House district had a 50.14 Democratic index. {¶ 10} After the recess, House Speaker Cupp gave a brief presentation of his proposal. He said that the maps were drawn to keep the dis tricts compact and competitive and “to take a step towards the proportionality req uirement of the Constitution, as explained by the Ohio Supreme Court.” Senator Sykes introduced Glassburn to present a “counter” on behalf of the Democratic me mbers of the commission. Glassburn distributed his own maps for Franklin an d Hamilton Counties—which by that point had also been posted on the commis sion’s website—and explained the similarities with and differences fro m the “Republicans’ proposal.” Signifi cantly, he noted that in the D emocratic proposal,S UPREME C OURT OF O HIO

6 both Senate districts within Ha milton County leaned Democratic, while the Republican proposal included onl y one Democratic-leaning Senate district. Senator Sykes repeatedly said that reconfiguring those Hamilton County Senate districts would be a simple way for the commission to move towa rd proportionality. Glassburn also cautioned that if one political party had a disp roportionate number of districts in which the party was favored by just over 50 per cent, the “court’s concerns regarding the asymme try of districts * * * will come i nto play.” {¶ 11} In response to a question from Auditor of State Keith Faber,
Glassburn said it was “more than possible” to comply with Artic le XI, Sections 2, 3, 4, 5, and 7 of the Ohio Constitution, to draw compact distri cts, and to “meet the ratio established by the c ourt” under Section 6(B). 4 Auditor Faber noted that in League of Women Voters of Ohio , see __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 112, we had cited a proposed plan submitted by one of petitioners’ experts, Dr. Jonathan Rodden, that purporte dly complied with all of Arti cle XI’s requirements and was more propor tional to statewide voter prefe rences than the plan originally adopted by the commission. But that plan, Audi tor Faber said, “was not a 54 or 55 map” but a “57 or 58 map.” {¶ 12} After questioning Glassburn, Sena tor Sykes said that instead of adjourning, the commission would recess “because our time is sh ort and we want to make sure we provide adequate notice.” The commission there fore recessed until 9:30 a.m. the following day, Friday, January 21. The com mission, however, did not meet on January 21.

4. In League of Women Voters of Ohio , we found that votes cast in statewide elections over the relevant period showed that “about 54 percent of Ohio voters pr eferred Republican candidates and about 46 percent of Ohio voters preferred Democratic candidates . Accordingly, under Section 6(B), the commission is required to attempt to draw a plan in which t he statewide proportion of Republican-leaning districts to Democratic-leaning districts cl osely corresponds to those percentages.” __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 108.January Term, 2022

7 {¶ 13} Throughout the January 20 mee ting, commission members noted that their staffs had been working together to comply with this court’s order. Senator Sykes stated: “This is the first time I believe in the history of the state that Republican and Democrat staff have been working together on map s. It’s a herculean task, but I think we’re up to trying to make sure we comply with the court order * * *.” But Senator Sykes’s optimism did not last long. In affidavits filed in this litigation, he and House Minority Leader Russo averred tha t the Republican commission members and/or their staffs ultimately would not com mit to the goal of drawing a proportional plan and refused to collaborate with them or consider their suggestions to make th e plan more proportional. C. Petitioners submit a propose d plan and the commission relea ses more regional maps {¶ 14} On January 20, counsel f or the petitioners in Bennett v. Ohio Redistricting Comm. (Supreme Court case No. 2021-1198) submitted to the
commission a revised version of a proposed General Assembly–dis trict plan drafted by Dr. Rodden (the “Rodden II plan”). 5 {¶ 15} On January 21, the commission posted a proposal for Lorain Coun ty to its website. In comparison to the commission’s original pla n, the proposal changed one Republican-leaning H ouse district and one Republica n-leaning Senate district to Democratic-leaning districts. The proposal include d a House district with

5. In October 2021, the Bennett petitioners submitted an expert report from Dr. Rodden in which he claimed that he had drafted a district plan that complied wi th Article XI’s line-drawing requirements and was more proportional than the commission’s or iginal plan. In their merit briefs, respondents did not contest Dr. Rodden’s assertion, and in League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 126, we noted that Dr. Rodden’s district plan “complied with Article XI” and re sulted in a partisan split fav oring Republican candidates by 57 percent to 43 percent in the House and 55 percent to 45 percent in the Senate. Dr. Rodden, however, later discovered that his plan included splits that are impermi ssible under Article XI, Section 3 of the Ohio Constitution, and he therefore submitted a revised ver sion during the commission’s redrawing process.S UPREME C OURT OF O HIO

8 a Democratic index of only 50.003 a nd a Senate district with a Democratic index
of 50.030. {¶ 16} Also on January 21, DiRossi sent to staff representatives a pro posal for changes to Cuyahoga and Summit Counties and again asked for feedback. That proposal was posted to the commi ssion’s website on January 22. Compared to the commission’s original plan, the proposal changed two Republican -leaning House districts and one Republican-lea ning Senate district to Democra tic-leaning districts. Under this proposal, six of the r egion’s Democratic-leaning Hou se districts had indexes between 50 and 51 percent. {¶ 17} Early on January 22—the tenth da y after this court’s decision invalidating the original plan—DiRossi and Glassburn each distr ibuted their final proposed General Assembly–district plans to staff representativ es for the
commission members. D. The commission adopts a district plan on January 22 {¶ 18} In the afternoon of January 22, the commission resumed the meet ing it had commenced on January 20. House Speaker Cupp said that h e and Senator Sykes had agreed that the respective map drawers for the “Repub licans” and the “Democrats” would each present t heir proposed district plans to the commission
and that the commission members could discuss the proposals aft er the presentations. {¶ 19} During DiRossi and Springhetti’s presentation, Springhetti note d that they had been instructed to use the “base map”—i.e., the plan t hat we had invalidated
in League of Women Voters of Ohio —as a “starting point” because it was familiar to them and complied with Article XI, Sections 2, 3, 4, 5, and 7. DiRossi said that he had been “actively engaged daily and around the clock with the staff of all seven members of the Commission,” and he explained how DiRossi and Sp ringhetti had incrementally proposed changes regarding urban areas of the sta te to comply with this court’s order. In total, they had changed five House dist ricts in the commission’sJanuary Term, 2022

9 original plan from Republican-leaning to Democratic-leaning and had changed three Senate districts from Republican-leaning to Democratic-leaning. Their proposal had 57 Republican-leaning and 42 Democr atic-leaning House districts and 20 Republican-leaning and 13 Democra tic-leaning Senate districts. DiRossi said that they could not devise a plan containing fewer than 57 Republica n-leaning House
districts without otherwise viol ating another section of Articl e XI. {¶ 20} House Minority Leader Russo noted that under DiRossi and Springhetti’s proposal, 14 of the 42 Democratic-leaning House d istricts had a
Democratic index between 50 a nd 52 percent but none of the Repu blican-leaning
House districts had an index be tween 50 and 52 percent. That r esult, she noted, appeared to evince “an intentional approach to drive as many of those close to 50 to technically say that you have c reated a Democratic leaning d istrict without actually in good faith creating as many Democratic leaning dist ricts that are possible” under the Constitution’ s proportionality standard. I n response to those comments, DiRossi explained the process for changing a district from Republicanleaning to Democratic-leaning a nd noted, “[W]hether we ended at 49.2, or 49.8, or 49.9, or 48.2, when you finally get over the hurdle to go under 50, and everything else balances, and everything e lse matches, I would move on to another district.” {¶ 21} Senator Sykes repeatedly asked DiRossi and Springhetti to ident ify what prevented them from achievi ng a more proportional plan and from changing the Senate pairings in Hamilton C ounty to create another Democr atic-leaning Senate district in that county—as he had previously recommended . In varying ways, DiRossi and Springhetti res ponded that they had attempted to comply with this court’s order and that any alternative proposals coming cl oser to providing perfect proportionality contained constitutional defects. But they did not specifically explain what preven ted them from reconfiguring the Hamilton County
Senate districts. When Senator Sykes pressed DiRossi and Sprin ghetti about theS UPREME C OURT OF O HIO

10 Hamilton County districts, House Speaker Cupp cut off the quest ioning and said that DiRossi and Springhetti ha d responded in the best way they could. {¶ 22} Glassburn claimed during his pr esentation that his proposal met the proportionality standard in Article XI, Section 6(B) and that i t complied with Article XI’s other requirements. Senate President Huffman, how ever, identified
what he considered to be constitutional defects in Glassburn’s plan, including possible violations of Article XI, Sec tion 3(D)(3), Section 5, and Section 6(C). {¶ 23} Auditor Faber expressed concer ns about not having received a proposal from the Democratic members until the day of the commi ssion’s deadline and said, “It appeared to many of us that because we wouldn’t s ay that we absolutely were going to do a 45-54 map, that somebody took the ir ball and went home.” Auditor Faber also expre ssed concerns about intentional ly placing Republican voters in Democratic-l eaning districts to “hit some superficial ratio.” In his words, Glassburn’s proposal was “effectively taking dist ricts and gerrymandering them to hit some Democratic ratio.” Later in th e meeting, Auditor Faber explained why he believed “this arbitrary percentage * * * is a little bit suspect.” And he again noted t hat Dr. Rodden had had 57 Republ ican-leaning House districts in his original plan and that we had cited that plan in League of Women Voters of Ohio ; therefore, according to Auditor Faber, this court had already indicated that a plan with 57 Republican-leaning House districts would be
constitutional. 6 {¶ 24} After the commission members had finished questioning Glassburn , Senator Sykes said t hat it was never his or House Minority Lead er Russo’s “intention to produce a map because we were directed by the cou rt for the

6. In actuality, we cited the Rodden plan as an example of a p lan that met Article XI’s line-drawing requirements and was more proportional than the original plan; we did not state that a plan potentially providing any specific number of House seats for a particular political party would pass constitutional muster. League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 126, 130-131.January Term, 2022

11 commission to produce a map, not t o have the Democratic map and a Republican map.” He had recommended the “re gional” approach to the map-dr awing process, he said, because the commission members could not initially agr ee on which plan to use as a starting point. He also said that he had been info rmed only a day or two before the January 22 meeting th at other commission members or their staff
believed that Article XI, Section 6(B)’s proportionality requir ement could not be met. Therefore, he—and presuma bly House Minority Leader Russo— had asked Glassburn to put together a distr ict plan to show that by emplo ying a different strategy, the commission could adopt a map that meets Section 6 (B)’s proportionality standard. {¶ 25} After a recess, the commission voted five to two, along party l ines, to adopt DiRossi and Springhetti’s proposal as the final Genera l Assembly–district plan. Because the majority vote adopting the plan did not have the level of bipartisan support required by Ar ticle XI, Section 8(B) of the Ohio Constitution for the plan to remain in effect for ten years, the plan can remain in effect for no more than four years. Ohio Constitu tion, Article XI, Section 8(C)(1 )(a). {¶ 26} The Article XI, Section 8(C)(2) statement adopted by the five
commission members who voted for t he revised plan said that nei ther the Ohio
Constitution nor this court’s decision in League of Women Voters of Ohio required the commission to adopt a plan that achieves strict proportiona lity. 7 The statement indicated that the commission was required to attempt to draw a plan that closely corresponds to statewide voter preferences and that the commiss ion had met that
standard. The stateme nt also indicated that the revised plan w as the only submitted

7. As noted in League of Women Voters of Ohio , if the commission adopts a four-year plan, the plan must include a statement explaining how the commission com plied with Article XI, Section 6(B)—that is, explaining what the commission determined to be t he statewide preferences of Ohio voters and how the commission’s plan corresponds to those prefe rences. __ Ohio St.3d __, 2022- Ohio-62, __ N.E.3d __, at ¶ 8, 25.S UPREME C OURT OF O HIO

12 plan that fully complied with A rticle XI, Sections 2, 3, 4, 5, and 7 and with all
subsections of Section 6. {¶ 27} Senator Sykes and House Minority Leader Russo submitted a separate statement. Among other things, they indicated that th e commission had failed to comply with Section 6 as interpreted by this court an d that it is not impossible to draw a proportional map that is compliant with th e Constitution’s line-drawing requirements. The y also cited Republican commissi on members’ failures to properly instruct their staff to comply with the pr oportionality requirement, and they stated that the Republican members did no t consider proposed maps submitted by the public and rejected their offers to work together on the plan. They stated, “It is possible to meet the Court’s order; it just appears that the majority of Co mmissioners do not want to.” E. Petitioners file objections {¶ 28} On January 25, petitioners filed objections to the commission’s revised plan. The petitioners in all three cases argue that the revised plan violates Article XI, Sections 6 (A) and 6(B). The Bennett petitioners argue that the revised plan also violates Article XI, S ection 1(C) and Section 3(D)(3) . With their objections, petitioners have collectively submitted five new ex pert reports. On January 28, the commission filed a response to the objections, which included a
new affidavit from DiRossi. Sen ator Sykes and House Minority L eader Russo filed a separate pro se response to t he objections, which included af fidavits from Senator Sykes, House Minority Lead er Russo, and Glassburn.
III. ANALYSIS
A. The burden and standard of proof {¶ 29} As we explained in League of Women Voters of Ohio , we have generally treated apportionment plans as presumptively constitu tional. __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 76. Petitioners the refore have the burden of proving that the revised plan violates the Constituti on. Id . at ¶ 76-77.January Term, 2022

13 They must prove factual issues beyond a reasonable doubt. Id . Yet, the presumption and high burden of p roof do not require us to defer to the commission’s interpreta tion of Article XI. B. Article XI, Section 6(A) 1. Our prior decision {¶ 30} Article XI, Section 6(A) of the Ohio Constitution provides that the commission must attempt to meet the standard that “[n]o general assembly district plan shall be drawn primarily to f avor or disfavor a political party.” Thus, Section 6(A) “requires this court to discern the map drawers’ intent.” League of Women Voters of Ohio at ¶ 116. In our prior decision, we recognized that “direct o r circumstantial evidence may establish that a districting plan w as drawn primarily to favor one political party over another.” Id . at ¶ 117. {¶ 31} “A map-drawing process may support an inference of predominant partisan intent.” Id . at ¶ 118. In finding that the predominant intent in drafting the original plan was to favor Repub licans, we noted that Senate Pr esident Huffman and House Speaker Cupp had “cont rolled the process of drawing t he maps that the commission ultimately adopted.” Id. We observed that “[w]hen a single party exclusively controls the redis tricting process, ‘it should not be difficult to prove that the likely political conseque nces of the reapportionment w ere intended.’ ” Id. at ¶ 120, quoting Davis v. Bandemer , 478 U.S. 109, 129, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plurality opinion), abrogated on other grounds by Rucho v. Common
Cause , __ U.S. __, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019). {¶ 32} We also examined expert eviden ce—including reports from Dr. Michael Latner, Dr. Kosuke Imai, and Dr. Rodden—to determine wh ether the original plan’s partisan skew c ould be “explained solely by non discriminatory
factors.” Id. , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 121. Dr. Latner opined that the original plan displayed partisan asymmetry caus ed by deliberate choices to create safe seats for Republican candidates. Id. at ¶ 122-123. Dr. ImaiS UPREME C OURT OF O HIO

14 concluded that the original pl an was more favorable to Republic ans than any of his 5,000 simulated plans. Id. at ¶ 124. And Dr. Rodden purported to have drawn an Article XI–compliant plan that favored the Republican Party in 57 percent of House districts and 55 percent of Senate districts. 8 Id. at ¶ 126. {¶ 33} Based on this evidence, we held t hat the extreme partisan skew of the original plan was not due t o Ohio’s political geography but , rather, to the commission’s carrying out its inten t to favor the Republican Pa rty at the expense of the Democratic Party. Id. at ¶ 131.
2. The commission violated Section 6(A) {¶ 34} Article XI, Section 1 of the Ohio Constitution requires the
“commission” to draft a distri ct plan. Although the Republican and Democratic
commission members were somewhat more cooperative in the develo pment of the revised plan, as noted above, Se nator Sykes’s optimism about co llaboration proved short-lived. DiRossi and Spr inghetti still ultimately drafted the plan, and they answered only to Senate President Huffman and House Speaker Cup p. As before, “the commission itself did not enga ge in any map drawing or hir e independent staff to do so,” League of Women Voters of Ohio at ¶ 119. {¶ 35} Moreover, in League of Women Voters of Ohio , we noted the distinction between Section 9(B) , which “contemplates that this court may declare a plan invalid and order the commission to adopt an entirely new plan ,” and Section 9(D)(3), under which this court does “not have to declare a pla n entirely invalid if violations of Section 2, 3, 4, 5 or 7 are isolated or would req uire amendments regarding relatively few districts .” (Emphasis added.) __ Ohio St.3d __, 2022- Ohio-65, __ N.E.3d __, at ¶ 96. We made clear that we were inv alidating the original plan, in its en tirety, under Section 9(B).

8. After this court’s judgment, petitioners acknowledged that the plan Dr. Rodden previously submitted did not comply with all of Article XI’s requirements. Dr. Rodden submi tted the Rodden II plan, in which he purported to correct the violations.January Term, 2022

15 {¶ 36} Yet the commission did not adopt an entirely new plan. DiRossi and Springhetti started with the sam e plan that we invalidated and then merely adjusted certain districts just enough so that they could nominally be r eclassified as “Democratic-leaning.” As DiRossi testified before the commissi on, when he finally got “over the hurdle to go under 50 [percent of Republi can vote share in a district],” he “would move on to another district.” At the sam e hearing, DiRossi was asked why the plan contained many districts with a Democrat ic vote share between 50 and 52 percent but contained zero districts with a R epublican vote share of less than 52 percent. The questioner asserted, “So effectiv ely, you know, you are creating districts with le ss opportunity for clearly perhap s Democrats to sit into those seats,” and then she asked why those decisions had been m ade. DiRossi responded:

[I]f you’re asking if we were identifying collectively as a sta ff a district that might favor Repub lican by 53 percent and trying t o make it a Democrat-leaning seat, yes is moving to the other sid e of the ledger, so I think that’s why there is an absence of those seats on the Republican side because they were identified by the staff, they were—they were modified to make D emocrat-leaning and so that’s why they’re not there anymore.

{¶ 37} It is clear that the map drawers and the commission knew that t heir approach—starting with the inva lidated map and switching compet itive Republican-leaning districts to competitive Democratic-leaning districts—would
have the dual effect of elimina ting weak Republican districts a nd creating weak
Democratic districts. The co mmission nevertheless adopted the revised map using that process—on a party-line vote. This was not the process th at our decision contemplates, and the commission’s awareness of the partisan ef fects supports anS UPREME C OURT OF O HIO

16 “inference of predominant partisan intent” similar to the one w e found with respect to the original plan, __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 118. {¶ 38} We find unavailing the claim that the map makers started with t he original plan because time was s hort and they were familiar wit h it. We clearly invalidated the entire original plan in League of Women Voters of Ohio . The commission’s choice to nevertheless start with that plan and ch ange it as little as possible is tantamount to an intent to preserve as much partisa n favoritism as could be salvaged from the invalidated plan. {¶ 39} It is also clear that the commi ssion rejected, without explanat ion, easy and obvious changes that would have made the revised map m ore proportional. Senator Sykes proposed to swap the Senate districts to which Ho use districts 26 and 30—both in Hamilton County—ar e assigned, which would have c reated an additional Democratic-leaning Senate district. This simple swa p would have posed no other constitutional problems and would have resulted in Sen ate districts that are at least as compact as those in the rev ised plan. Yet the commission refused to adopt the change, with House Speaker Cupp abruptly and inexplic ably cutting off Senator Sykes’s questioning of DiRossi and Springhetti about th e proposal. The commission’s choice to avoid a more proportional plan for no ex plicable reason points unavoidably toward an inte nt to favor the Republican Par ty. In reaching this conclusion, we are not unmindful of the fact that 20 is the num ber of senators necessary to constitute a veto-proof supermajority in the Senat e, see Ohio Constitution, Article II, Section 16 (a vote of 60 percent of t he members of each chamber is required to ove rride the governor’s veto). {¶ 40} Article XI, Section 6(B) provide s that the commission shall att empt to draft a plan in which “[t]he statewide proportion of districts whose voters * * * favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.” (Emphasi s added.) Yet the commission kno wingly adopted a plan in which all the House di stricts whose voters favor Republ icans do so at voteJanuary Term, 2022

17 shares of 52.6 percent and above, while more than a quarter (12 out of 42) of the
House districts whose voters “favor” Democrats do so at a vote share between 50 and 51 percent (meaning that a 1 percent swell in Republican vo te share would sweep 12 additional districts in to the Republican column). Nin e of those districts
favor Democrats at a level unde r 50.5 percent. While the Const itution does not require exact parity in terms of the vote share of each distric t, the commission’s adoption of a plan in which the quality of partisan favoritism is monolithically disparate is further evidence of a Section 6(A) violation. In other words, in a plan in which every toss-up district is a “Democratic district,” the commission has not applied the term “favor” as used in Section 6(B) equally to the two parties. The commission’s adoption of a plan th at absurdly labels what are b y any definition “competitive” or “toss-up” districts as “Democratic-leaning”—at least when the plan contains no proportional share of similar “Republican-lean ing” districts—is
demonstrative of an intent to fa vor the Republican Party. Inde ed, if a Republican
candidate were to win in half of the 12 House districts in whic h the Democratic vote share is between 50 and 51 percent, the Republican Party c ould expect to have a 63 to 36 majority in the House. This is an even larger Repub lican majority than the one contemplated in the S eptember 2021 plan that we invalid ated. See League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __ at ¶ 24 (noting that Senate President Huffman estimated that 62 seats i n the House would favor Republican candidates). Reg ardless, the revised plan’s s tructure guarantees that the 58 percent seat share for Republicans is a floor whereas the 42 percent seat
share for Democrats is a ceiling

. {¶ 41} In League of Women Voters of Ohio , we also relied on statistical evidence—including a partisan-symmetry analysis and a determina tion that the original plan was a partisan outlier compared to Dr. Imai’s 5,0 00 simulated plans— to support our finding of a viola tion of Article XI, Section 6( A). Id. at ¶ 122-126. As support for that finding of pr imarily partisan intent, we al so cited evidence thatS UPREME C OURT OF O HIO

18 the original plan had a heavier partisan skew than would be dic tated merely by Ohio’s political geography and the neutral map-drawing requirem ents of Article XI, Sections 3 and 4. Id . at ¶ 131. {¶ 42} As in the original plan that this court invalidated, there is e vidence that the revised plan has a high degree of partisan asymmetry: Dr. Latner’s analysis indicates that with 50 percent of the statewide vote, Democrats would expect to win 43 percent of the House seats and 42 percent of the Senate seat s. By contrast, the Republicans would win 57 percen t of the House seats and 58 perc ent of the Senate seats with the same percentage of the statewide vote. Dr. Latn er concludes that “the asymmetry in both the revise d House and Senate maps is onl y a marginal improvement from the Original Plan and lags far behind all othe r comparison plans.” He further opined that “the Commission intentionally c reated a large number of highly competitive but Democratic-leaning districts, while keeping more Republican voters in safer districts. That decision is a major source of the observed asymmetry.” {¶ 43} There is also evidence that the revised plan is a statistical o utlier in terms of Republican seat share (more than five standard deviati ons greater) and in terms of various accepted metrics in political science for meas uring partisan bias (ranging between six and nine standard deviations), as compared with Dr. Imai’s 5,000 simulated plans. As we said in League of Women Voters of Ohio , “[t]he fact that the adopted plan is an outlier among 5,000 simulated plans is strong evidence that the plan’s result was by design.” __ Ohio St.3d __, 2022- Ohio-65, __ N.E.3d __, at ¶ 124. We again find petitione rs’ statistical evidence to be compelling. {¶ 44} As in the original plan that this court invalidated, there is a lso evidence that it was possible for the commission—had it committ ed to attempting a proportional map, worked collabor atively toward that end, and used its allotted time efficiently—to draw a map that achieved or closely achieve d the 54 to 46 percent partisan share that we identified in League of Women Voters of Ohio . TheJanuary Term, 2022

19 record indicates that the c ommission did not reconvene until Ja nuary 18—six days after our ruling ordering the co mmission to draft a new plan wi thin ten days—and did not hold a substantive meeting until January 20, forcing th e process to be rushed. While DiRossi and Springhetti, who worked for Republic an commission members, and Glassburn, who work ed for Democratic commission me mbers, nominally met with commission members and their staffs, DiRossi and Springhetti still prepared a statewide map a bout which Senator Sykes was “i n the dark,” about which House Minority Leader Russo had “little clue,” and that w as introduced and later adopted on the same day. {¶ 45} In League of Women Voters of Ohio , we further found the existence of an alternative, more proporti onal plan to be probative evide nce that the commission had drawn the original plan primarily to favor the R epublican Party.
Id. at ¶ 126. Petitioners focus on the Rodden II plan, which they claim is less skewed than the revised plan. T he commission asserts that the Rodden II plan contains violations of Article XI, Section 3(D)(3) that “affect thousands of people and would require substantial redrawing.” The commission, howe ver, relies on DiRossi’s opinion, which at thi s point we do not view as an obj ective measure of the validity or constitutiona lity of the various plans. {¶ 46} Regardless, Glassburn has also pre pared a map that he avers is both proportional and otherwise cons titutional. Glassburn submitted an initial version of his map to the commission on its final day. Commission memb ers identified potential constitutional violations in that map, which Glassbur n avers he could have addressed if given several hour s. The commission did not permi t him to do so. The commission also rejected his offers to work to add additional D emocratic seats to the revised plan, citing time p ressure (which, of course, the c ommission itself had created). Glassburn avers that he later corrected the errors i n his map and that he now has a map that addresses the issues the commission raised w ith his originalS UPREME C OURT OF O HIO

20 map and is proportional, contai ning 54 Republican House seats, 45 Democratic House seats, 18 Republican Senat e seats, and 15 Democratic Sena te seats. {¶ 47} Despite its unwillingness to work t oward fixing Glassburn’s mor e proportional plan, the commission concedes that its revised pla n also contains “a
few minor violations of Section 3(D)(3).” We find the evidence regarding alternative plans to be just as persuasive here as the original Rodden plan was in League of Women Voters of Ohio

. {¶ 48} The decennial reapportionment of s eats in the General Assembly is a weighty and important task, wh ich the people of Ohio, by thei r overwhelming approval in 2015 of amendments to Article XI of the Ohio Consti tution, entrusted to a special body of limited dura tion and singular purpose: the Ohio Redistricting
Commission. See Article XI, Section 1(A). The commission is composed, in part , of three of the state’s highe st executive officeholders. Id . Their duties as commission members, however, do not overlap with their roles as governor, secretary of state, or auditor. Id .; see generally Article XI. Rather, the Constitution taps these high officeholders to help usher Ohio through its re districting because they can be counted on as reliable stewards of the public trust . The commission’s remaining members are persons appointed by the Speaker of the H ouse of Representatives, the House Minority Leader, the President of th e Senate, and the Senate Minority Leader. Article XI, Section 1(A). The Constit ution does not require these officeholders to appoint themselves to the commission—although that
is what most of them have chos en to do in this case. In fact, it does not require the persons they appoint to be mem bers of the legislature. Id . But whichever persons are appointed, the commission memb ers are all public servants, regardless of their roles outside the commission, and they are entrusted with the s olemn duty to draw a district plan that complies w ith the requireme nts of Article XI. They are charged with drawing a plan that inures t o the benefit of not just one political party, not just one constituency, but of Ohio as a whole. Members of the legis lature selected toJanuary Term, 2022

21 serve on the commissi on must be, in good faith, commission members first, setting aside their usual partisan modes. Section 6(A) directly prohib its actions in conflict with this principle. {¶ 49} We hold that the evidence discussed above demonstrates beyond a reasonable doubt that in drawing the revised plan, the commissi on failed to comply with Article XI, Section 6(A) of the Ohio Constitution. As exp lained in more detail below, we invalidate the entire revised plan and order the comm ission to draft an entirely new plan—this time in accordance with all of Article X I, including Section 6(A), as explained above. C. Article XI, Section 6(B) 1. Our prior decision {¶ 50} Article XI, Section 6(B) of the Ohio Constitution provides that the commission shall “attempt” to draw a district plan that meets t he following standard: “The statewide propor tion of districts whose voters, based on statewide state and federal partisan gener al election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the
voters of Ohio.” In League of Women Voters of Ohio , we explained that the qualifying word “attempt” does not mean that the Section 6(B) s tandard is merely aspirational. League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 90. Indeed, “t here might be circumstances t hat make it impossible for the commission to meet the standards of Section 6 while also following the map-drawing re quirements of Sections 2, 3, 4, 5, and 7.” Id . at ¶ 88. But “[i]f it is possible for a di strict plan to comply with Sec tion 6 and Sections 2, 3, 4, 5, and 7, the commission must adopt a plan that does so.” (Emphasis sic and footnote omitted.) Id

. {¶ 51} As we explained in League of Women Voters of Ohio , Article XI, Section 6(B) “requires the calcul ation—and then the comparison— of two things.”
Id . at ¶ 105. The commission first mu st calculate “the statewide proportion ofS UPREME C OURT OF O HIO

22 districts whose voters favor each political party,” which requi res the commission to “examin[e] the statewide federal and state partisan election results from the previous ten years” to “deter mine how voters in the proposed di stricts are likely to
vote in future elections.” Id . It then must calculate “the statewide preferences of the voters of Ohio,” id . at ¶ 106, which requires the commission to total “the votes cast in statewide partisan elections and [calculate] the percen tages of votes received by candidates of each political party,” id . at ¶ 107 . Under this m ethodology, there is no dispute that “about 54 per cent of Ohio voters preferred R epublican candidates and about 46 percent of Ohio voter s preferred Democratic candid ates” in the relevant past elections. Id . at ¶ 108. {¶ 52} We concluded that Senate President Huffman and House Speaker Cupp never instructed the map d rawers, DiRossi and Springhetti, to attempt to comply with Article XI, Section 6. Id . at ¶ 109. We also determined that Senate President Huffman and House Speak er Cupp—as reflected in the co mmission’s statement explaining its determin ations pursuant to Section 8(C )(2)—had an incorrect understanding of the p roper methodology, because they asserted that the share of Ohio voters preferring Republican candidates was somew here between 54 and 81 percent. Id . at ¶ 106-108. These two facts le d us to conclude that the original plan failed to comply with Section 6(B) because “the i ndividuals who drew the plan did not try to comply with” the standard of that secti on and because they “did not have the right target in mind.” Id . at ¶ 102. {¶ 53} We also pointed out that the majority-party members’ negotiatio n with the minority-party members —or even that party’s acquiescen ce to a plan— does not necessarily indicate that the commission attempted to draw a plan that meets the Section 6(B) standard. Id ., __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 110-111. {¶ 54} Finally, we relied on substantial expert evidence showing that “the
commission could have drawn a more proportional plan.” Id . at ¶ 112. ThisJanuary Term, 2022

23 evidence included the reports of Dr. Imai, who had created 5,00 0 simulated plans, none of which favored a party as strongly as the plan that had been adopted by the commission, and Dr. Rodden, who ha d purported to have drawn an Article XI– compliant plan that was more proportional than the plan that ha d been adopted by
the commission. Id . This evidence, we explained, “further support[ed] the
conclusion that the commission di d not attempt to meet the stan dard set forth in Section 6(B).” Id . at ¶ 113. 2. The commission violated Section 6(B) {¶ 55} Petitioners argue that like the invalidated plan, the revised p lan violates Article XI, Section 6( B) because it does not “closely correspond[] with statewide voter preferences.” We agree. {¶ 56} Petitioners have presented a new report by their expert, Dr. Im ai, who opines that the commission’ s methodology for assessing the revised plan’s seat share grossly overestimates the number of Democratic-leaning se ats. Dr. Imai points out that under the commission’s method, two hypothetical districts having Republican vote shares of 49.9 percent and 50.1 percent would b e classified as Democratic-leaning and Republican-leaning respectively, yet bec ause their Republican vote shares differ by only .2 percentage points, the ir partisan leans are essentially the same. Both are truly “toss-up” districts. Yet the commission’s methodology would count the first as a Democratic district and the second as a Republican one. {¶ 57} Dr. Imai then demonstrates that the commission’s revised plan
contains 12 House districts in w hich the Democratic vote share is between 50 and 51 percent—nine of which have Democratic vote shares between 50 and 50.5 percent. The commission calls them all Democratic-leaning dist ricts. Yet, Dr. Imai points out that the revised plan contains no House districts wi thin one percent above a 50 percent Republican vote share—i.e., no similarly close dis tricts that are labeled Republican-leaning. The closest R epublican-leaning House distr ict in the revisedS UPREME C OURT OF O HIO

24 plan has a Republican vote shar e of 52.6 percent. The followin g plot from Dr. Imai’s report shows the disparity in the number of extremely cl ose toss-up House districts assigned to each party:

The blue dots running in a line ne arly parallel to the 50-perce nt line represent the dozen toss-up “Democratic-leaning” House districts that have be en identified by Dr. Imai. This plot also visua lly demonstrates Dr. Imai’s conc lusion that “a shift in election results by just one pe rcentage point towards the Re publicans could lead to as many as 12 more Republican-won seats.” Dr. Imai opines, “By counting what are really toss-up districts as ‘Democratic-leaning’ in this wa y, the Commission’s methodology grossly overestimates the number of Democratic-lean ing districts under the revised plan.” {¶ 58} Dr. Imai sets forth a differen t methodology that he claims prov ides a superior measure of a distri ct’s partisan lean. That methodo logy, which was also used in his initial report, looks at whether a Republican or De mocrat would have
won the district based on the data from each election out of th e nine statewide elections between 2016 and 2020, the same election years used b y the commission.January Term, 2022

25 It then labels each seat fracti onally—for example, Dr. Imai cal culates that House district 52, which the commissi on calls “Democratic-leaning,” w ould have been won by Republicans in four out of the nine elections, so his me thodology counts that district as 4/9ths of a Republican-leaning seat and 5/9ths of a Democraticleaning seat. (Dr. Imai applie s this method to safer seats as well—for example, a
seat counted as 8/9ths of a Re publican seat.) According to Dr. Imai, when averaging across the 2016 through 2020 statewide elections, Rep ublicans would have won 6 out of the 12 “toss-up” House districts that the com mission has labeled Democratic-leaning. Using this method, Dr. Imai calculates tha t the Republican Party is expected to win 61.6 House seats. {¶ 59} Dr. Imai compared this result to his 5,000 simulated plans. Th e revised plan’s 61.6 Republican House

– seat share is 2.7 seats higher than in the average simulated plan, whic h had 58.9 Republican House seats. In fact, all 5,000 of the simulated plans containe d fewer than 61.6 Republican Hou se seats. Dr. Imai opines that “[t]he difference between the revised plan and the average simulated plan exceeds 5 standard deviations of the simulated plans and i s therefore statistically significant.” He also compares the revised plan and the 5,000 simulated plans under a metric assessing the percentage of House seats a plan would net the Republican Party when compared w ith a strictly proportional pla n. He calculates that the average simulated pla n would contain 6.5 percent more Republican House seats than a strictly proportional plan, while the revised plan contains 9.2 percent more Republican House seats than a strictly proportional plan—a difference he again says is greater than five standard deviations and therefo re statistically significant. He concludes that the revised plan makes it “almo st certain for the Republican party to win dispropor tionately more seats relative to their statewide
vote share.” {¶ 60} Article XI, Section 6 contains no specific language regarding t he methodology that the commission is to employ when determining “[t]he state wideS UPREME C OURT OF O HIO

26 proportion of districts whose voters * * * favor each political party,” other than to provide that the calculation sha ll be “based on statewide state and federal partisan general election results during the last ten years.” The parti es have apparently agreed that 2016 through 2020 are t he practicable years of data to use. Even using those same election years, Dr. I mai demonstrated how his method is preferable and
more accurate than the commission’s. {¶ 61} But we need not endorse Dr. Imai’s methodology to conclude that the commission’s methodology, as app lied here, violates Article XI, Section 6(B) of the Ohio Constitution. Bluntly, the commission’s labeling o f a district with a Democratic vote share between 50 and 51 percent (in one case, a district having a 50.03 percent vote share) as “Democratic-leaning” is absurd on its face. Section 6(B) requires the commission to attempt to draft a plan in whic h the statewide proportion of districts whose voter s “favor” each party closely corresponds to the statewide voters’ preferences. Here, the quality and degree of favoritism in each party’s allocated districts is grossly disparate. When 12 of t he 42 “Democraticleaning” House districts (i.e., more than 25 percent) are very close “toss-up districts” yet there are 0 “Re publican-leaning” districts that are similarly close, the proportion of districts whose voter s “favor” each party is not being assessed properly. {¶ 62} To be clear, we do not read Artic le XI, Section 6(B) as prohibi ting the creation of competitive districts. But competitive distric ts—which the 12 districts identified by Dr. Imai surely are, under any reasonab le measure—must either be excluded from the pr oportionality assessment or be al located to each party in close proportion to its s tatewide vote share. {¶ 63} Petitioners have established be yond a reasonable doubt that the re are far fewer than 42 Democratic-lea ning House districts in the rev ised plan. Yet even
at 57 to 42 seats in the House and 20 to 13 seats in the Senate , petitioners have shown beyond a reasonable doubt that the commission did not att empt to adopt aJanuary Term, 2022

27 plan in which the statewide pr oportion of districts favoring ea ch party closely corresponds to the statewide pref erences of the voters. We are convinced that a more closely proportional plan could have been achieved. We ca nnot credit the
claims of those who drew the revis ed plan that that plan was th e most proportional one possible, because the map drawers misunderstood their task. They were guided by incorrect directives, began w ith an invalidated plan, and wo rked to eliminate closely Republican-leaning distri cts by turning them into compe titive “Democraticleaning” districts. The co mmission set its compass wrong, and it wound up in the wrong place. {¶ 64} Finally, we reject the suggestion that our order constitutes a mandate to gerrymander to create Democratic-leaning districts. This su ggestion implies that neither the September 2021 plan nor the revised plan were Repub lican-favoring gerrymanders. The evidence demonstrates otherwise. Throughout the process, the Republican map drawers refused to expressly work toward a 54 to 46 percent partisan share. Yet that is not a “superficial ratio,” a “Demo cratic ratio,” or an “arbitrary percentage,” as one c ommissioner cavalierly dismisse d it. Rather, as we
made clear in League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, it is a foundational ratio created not by this co urt or by any particular political party but instead etched by the voters of Ohio into o ur Constitution. To be sure, the ratio may be different in the next reapportionment , but for this reapportionment, the “statewide pr eferences of the voters of Oh io,” Article XI, Section 6(B), are 54 percent in favor of the Republican Party a nd 46 percent in favor of the Democratic Party. The revised plan does not attem pt to closely correspond to that constitutionally defined ratio. Our instruc tion to the commission is—simply—to comply with the Constitution.
D. The election calendar {¶ 65} In its response to petitioners’ objections, the commission asks us to decide this matter by February 11, 2022, or, alternatively, to stay our decision untilS UPREME C OURT OF O HIO

28 the 2022 general election has been completed using the revised plan. The
commission notes that the deadline for partisan candidates to f ile their candidacies for General Assembly offices was February 2 ( see R.C. 3515.05 (candidate petitions are due 90 days before the primary election)) and tha t other deadlines related to the May 3 pr imary election are qui ckly approaching. {¶ 66} The General Assembly established the date of the primary electi on,

see R.C. 3501.01(E)(1), and it has the authority to ease the pressu re that the commission’s failure to adopt a c onstitutional redistricting pl an has placed on the secretary of state and on county boards of elections by moving the primary election, should that action become necessary.
IV. CONCLUSION {¶ 67} We sustain petitioners’ objections relating to the revised plan ’s violation of Article XI, Sections 6(A) and 6(B) of the Ohio Con stitution. We invalidate the revised plan in its entirety. We further order the commission to be reconstituted, to convene, and to draft and adopt an entirely n ew General Assembly–district plan that conf orms with the Ohio Constitution , including Article XI, Sections 6(A) and 6(B) as we ha ve explained those provision s above. {¶ 68} We further order the commission to adopt the new plan and file it with the secretary of state no later than February 17, 2022, an d to file a copy of that plan with this court by 9:00 a.m. on February 18, 2022. We ret ain jurisdiction for the purpose of revie wing the new plan. {¶ 69} Petitioners shall file objections, if any, to the new plan, by 9:00 a.m., three days after the plan is f iled in this court. Respondents shall file responses, if any, to the objections, by 9:00 a.m ., three days after the obje ctions are filed. If the deadline for the objections or responses falls on a Saturday, S unday, or holiday, the objections or responses shall be filed by 9:00 a.m. on the next business day. Petitioners shall not file a reply or any motion for leave to f ile a reply. The clerkJanuary Term, 2022

29 shall refuse to accept any filings under this paragraph that ar e untimely or prohibited. {¶ 70} No requests or stipulations for extension of time shall be file d, and
the clerk of this court shall re fuse to file any requests or st ipulations for extension
of time. {¶ 71} Because we sustain the objections as to Sections 6(A) and 6(B) and invalidate the plan in its en tirety, we do not reach petitioner s’ objections regarding Article XI, Sections 1 and 3(D)(3). Objections sustained in part.
O’C ONNOR , C.J., and D ONNELLY , S TEWART , and B RUNNER , JJ., concur.
K ENNEDY and D E W INE , JJ., dissent, with an opinion.
F ISCHER , J., dissents, with an opinion.

_________________ K ENNEDY and D E W INE , JJ., dissenting. {¶ 72} We dissent from the majority’s pronouncement that the revised General Assembly-district plan violates Article XI, Sections 6( A) and 6(B) of the Ohio Constitution and is therefore invalid. And we disagree wi th the majority’s decision to retain jurisdiction over this case and to set arbit rary time limitations and new rules for the Ohio Redistricting Commission’s work that hav e no basis in the
text of the Ohio Constitution. {¶ 73} It is apparent that in disregard of constitutional standards, f our members of this court have now c ommandeered the redistricting p rocess and that they will continue to reject any General Assembly-district plan until they get the plan they want. It would simplify matters if the commission wo uld just provide the majority with the map-drawing software, Maptitude, so that they can draw the map themselves. At this point, one m ust wonder which seven-member body is the true redistricting commission—the constitutionally named officers or this court?S UPREME C OURT OF O HIO

30 {¶ 74} The Ohio Constitution entrusts the responsibility for redistric ting to the commission, not to this court. In its previous decision, t he majority exceeded its authority by declaring a map invalid based on alleged viola tions of Article XI, Sections 6(A) and 6(B), despite the fact that our Constitution does not make standalone violations of these sections judicially enforceable. Tod ay, the majority doubles down on its error by invalid ating a revised plan that s atisfies the same metrics that it held out as a model of constitutionality in its first decision. In today’s astonishing order, the majority compels the commission to desig n districts that guarantee Democratic victories. T here is a word for the action the majority has ordered the commission to undertake—gerrymandering. See Article XI, Section 6(A), Ohio Constitution. {¶ 75} Article XI, Section 6(A) provi des that the commission “shall attempt” to adopt a plan that i s not “drawn primarily to favor or disfavor a political party,” and Section 6(B) directs it to draw the plan so that “[ t]he statewide proportion of districts whose voters * * * favor each political party shall correspond closely to the statewide prefe rences of the voters of Ohio.” T he evidence submitted by petitioners in these cases confirms that the districts that the majority finds objectionable “favor” Democrats. Majority opinion, ¶ 30, 50. The majority now, however, holds that it is not e nough that a district “favor” a political party; it now
decrees that the commission must d raw districts that favor Demo crats to a degree of the majority’s liking. But nothing in the Ohio Constitution requires the creation of districts that guarantee victories for a political party. T he Constitution requires only an attempt to create districts that favor one side or the other in close correspondence to statewide prefe rences, and that is exactly wh at the revised map
does. {¶ 76} Furthermore, the majority lacks the authority to impose deadlin es on the commission and to retain jurisdiction for the purpose of re viewing a new plan. When a plan is invalidated by a court, Article XI, Section 9(B) mandates theJanuary Term, 2022

31 reconstitution of the commission pursuant to Section 1. Once r econstituted, the commission is required to “convene, and ascertain and determine a general assembly district plan in conformity with” the provisions of Ar ticle XI that are still valid. Article XI, Section 9(B), Ohio Constitution. Therefore , the work of the commission is controlled by the Ohio Constitution, not by judic ial fiat. The arbitrary timeline set by the majority usurps the right of the people to have a voice in the redistricting process that is guaranteed by Article XI, Section 1(C). By rejecting the revised plan, impr operly retaining jurisdiction o ver these cases, and setting another arbitrary deadline of ten days, it is apparent that the majority has in
mind the number of Democratic-lean ing districts that must exist and the percentage of voters that is necessary in a district to guarantee electora l victories for Democrats. Things would be much easier if they just told the c ommission exactly what they want. {¶ 77} We reject the assertion that the revised plan violates Article XI, Section 1(C); that provision is directory and not judicially en forceable. The
commission concedes that the revi sed plan contains a few munici pal splits that violate Article XI, Section 3(D)(3). Because these violations are “isolated” and do not materially affect the plan, the commission should amend the plan to correct the violations pursuant to Artic le XI, Section 9(D)(3)(a). {¶ 78} Therefore, we would overrule t he objections claiming that the revised plan is invalid under S ections 6(A), 6(B), and 1(C), su stain the objection regarding the isolated violations of Section 3(D)(3) as concede d by the commission,
and order the commission to amend the revised plan pursuant to Section 9(D)(3)(a) to correct those minor violations. Because the majority holds otherwise, we dissent.S UPREME C OURT OF O HIO

32 I. FACTS AND PROCEDURAL HISTORY A. The General Assembly-District Plan Is Invalidated and a Revised Plan Is Adopted {¶ 79} On January 12, 2022, a divided c ourt invalidated the original General Assembly-district plan adopted by the commission on Sep tember 16, 2021,
and directed the commission to a dopt a new plan within ten days

. {¶ 80} The commission reconvened and held its first public meeting on January 18, 2022. The commission did not start from scratch; i nstead, it directed
staff to collaborate and deter mine which currently Republican-l eaning districts
could be redrawn to be Democra tic-leaning districts without vio lating the requirements of Article XI, Sec tions 2, 3, 4, 5, and 7. The co mmission unanimously agreed to take a regional appro ach to redrawing the map. It st arted with Hamilton and Franklin Counties, with a goal of meeting the proportionali ty requirement unless doing so would result in violations of other constitutio nal requirements. Over the following days, support staff discussed and shared pro posals for increasing the number of Democra tic-leaning districts, particul arly in Hamilton, Franklin, Cuyahoga, Summit, and Lo rain Counties. Senator Verno n Sykes, a
Democrat and a member of the co mmission, stated: “The staffs ha ve been working together. This is the first time, I believe, i n the history of the state that Republican
and Democratic staff have bee n working together on maps.” {¶ 81} On January 20, 2022, the commission held a public meeting; rath er than adjourning the meeting, the commission went into recess. When it reconvened on January 22, commission members introduced proposed plans. T he commission, by a party-line vote, adopted the plan prepared by members of t he Republican caucus in collaboration with, but not always agreement with, me mbers of the
Democratic caucus.January Term, 2022

33 B. The Realities of Ohio’s Political Geography {¶ 82} Before we get to the revised ma p, some background is necessary to understand the constraints under wh ich General Assembly redistr icting takes place in Ohio. Start with Ohio’s political demographics. No one dis putes the fact that the partisan preferences of Ohio voters are not evenly distribu ted. Democratic voters are clustered predominately in densely populated areas a round Ohio’s six largest cities. Republicans are more uniformly distributed—and large, rural swaths
of the state are so lidly Republican as th e below maps show: 9

9. The first map is from the expert report of Michael Barber, P h.D. The second map is from the expert report of Sean P. Trende.S UPREME C OURT OF O HIO

34 Importantly for redistricting pur poses, the concentration of De mocratic voters is much higher in Democratic areas than that of Republican voters in Republicanleaning areas. Election results 10 from the most recent presidential election help illustrate this point (the percen tage is the Republican-vote sh are in each county):

10. This map was created using data from the Ohio Secretary of State’s Office. See Ohio Secretary of State, 2020 Official Elections Results, available at https:/ /www.ohiosos.gov/el ections/electionresults-and-data/2020/ (accessed Feb. 7, 2022) [https://perma.c c/FY23-HYMD]. It was created using a template available at https://commons.wikimedia.org/wik i/File:Ohio_Presidential_ Election_Results_2020.svg (accessed Feb. 7, 2022) [https://perm a.cc/BBR5-SXGH].January Term, 2022

35 73.8% 33.5% 63.2%

74.1% 73.6% 44.5% 71.0%

52.7% 73.5%

69.2%

71.2% 76.3% 74.6% 74.3%

75.6%

69.2%

75.7% 83.4%

73.6%

73.6% 68.9%

81.0% 75.1%

70.5%

76.9%

76.4% 68.4%

64.8%

61.0% 69.7%

75.1% 72.9%

66.9% 69.7% 66.2% 61.1%

67.7% 58.5% 55.5%

79.7% 75.5% 58.8%

60.8% 73.1% 76.9% 67.9% 62.8%

71.4% 80.9% 80.7% 69.0% 82.4% 50.5% 61.0% 56.2%

32.4%

54.9% 60.9% 60.9%

54.7%

50.4%

71.7%

68.5%

71.2%

76.4%

69.6%

41.7%

75.9%

77.1%

72.2% 70.6% 81.3% 64.7%

78.1% 48.1%

67.5% 61.3%

41.3% 78.1%

81.1% 81.9%

77.9% 74.9% 67.3% 52.9% 40.8%

69.1% 72.1%S UPREME C OURT OF O HIO

36 {¶ 83} Now layer on top of this political reality the mandatory requir ements of the Ohio Constitution. Districts must be compact and contig uous, and there are explicit limitations on splitting political subdivisions. Rest rictions against splitting political subdivisions are explicitly given precedence over the exhortations of Article XI, Sections 6 that a pl an shall not be drawn to favor a political party and shall closely correspond to the s tatewide voter preferences. {¶ 84} As Dr. Michael Barber explained, the constitutional requirement s for territorial continuity, district compactness, political-unit in tegrity, and proportionality are in tension wit h the creation of a map that achieves proportional representation along party lines. Compliance with these requir ements means that
Democrats tend to be clustered in districts that result in so-c alled “wasted votes” in which Democrats win by overwhe lming numbers while Republicans t end to be in more competitive districts in whi ch Republican candidates win b y smaller margins. {¶ 85} Dr. Barber detailed the challenge s facing mapmakers who want to achieve exact proportionality by cr eating House districts that correspond to the preferences of Ohio voters (i.e., 54 Republican seats to 45 Dem ocratic seats). He described the following demogra phic breakdown of the state:

 65 counties are uniformly Republi can and represent approximatel y one-third of
the House districts.

 17 counties are “purple cluster” counties—counties that are uni formly Republican except that they have a small-to-medium municipality that is majority Democratic. These repre sent 26 House districts, but o nly 5 could be drawn as Democratic districts in compliance with the requiremen t to avoid splitting governmental units.

 6 “urban blue” counties, whic h split approximately 60 percent D emocratic and 40 percent Republican and account for approximately 41 House di stricts. {¶ 86} Based on these demographics, a mapmaker who seeks to achieve anything close to 45 Democratic-leaning districts faces signifi cant challenges. AJanuary Term, 2022

37 mapmaker would need to draw all 5 possible Democratic-leaning d istricts in the “purple cluster” counties, and 40 out of the 41 “urban blue” di stricts would have to be Democratic. In other words, for the statewide proportion of House districts to achieve exact proportionality, the commission would need to go to extraordinary lengths to draw districts in th e purple-cluster counties and th e urban blue counties in a way that gives maximum political advantage to Democrats. That is, a plan that overcomes Ohio’s political geogra phy would necessarily provide Democrats with virtually all the available seats in urban counties—a far cry f rom the representation that voting preferences in t hose counties would merit.
C. Issues Presented {¶ 87} These cases present two issues for this court’s consideration: Does this court have authority to inva lidate the revised General Ass embly-district plan
based on stand-alone violations o f Article XI, Sections 1 and 6 ? The answer is no. And have the petitioners in Bennett v. Ohio Redistricting Comm. (Supreme Court case No. 2021-1198) demonstrated t hat the commission violated A rticle XI, Section 3(D)(3)? The answer to that question is yes. As the commissio n concedes, the revised plan contains isolated vi olations of Article XI, Sectio n 3(D)(3), and pursuant to Section 9(D)(3)(a), this court should remand the re vised plan to the
commission to correct those violations.
II. ANALYSIS A. Judicial Reviewability of a General Assembly-District Plan {¶ 88} As the first dissenting opinion explains in League of Women Voters of Ohio v. Ohio Redistricting Comm. , Article XI, Section 9(D) limits this court’s authority to review General Assembly-district plans. ___ Ohio St.3d ___, 2022- Ohio-65, ___ N.E.3d ___, ¶ 227 (Kennedy, J., dissenting). The power to invalidate a plan, in whole or in part, depe nds on the existence of a pred icate violation of the requirements of Section 2, 3, 4, 5, or 7. For “isolated violat ions of those requirements,” Section 9(D)(3)(a) requires this court to order the commission toS UPREME C OURT OF O HIO

38 amend a plan to remedy the viola tions. When the violations are more extensive, requiring the commission to amend at least six House districts or two Senate districts, Section 9(D)(3)(b) d irects the court to wholly inval idate the plan. Finally, Section 9(D)(3)(c) permits the court to invalidate a plan adopt ed under Section 8(C) if a significant violation or v iolations of Section 2, 3, 4, 5, or 7 materially affect the ability of the plan to provide p roportional representation and the proportion of districts does not correspond clo sely to the statewide preferen ces of Ohio voters. {¶ 89} Contrary to the majority’s claim, nothing in Article XI, Sectio n 9(B) empowers this court to invalid ate the revised plan based on a s tand-alone violation of Section 6. Further,

the negative implication of Artic le XI, Section 9 is obvious. Section 9(D) is a provision that limits the authority of this court in reviewing a General Assembly-district plan. It prohibits this court from ordering the commission to adopt a specific plan and from drawi ng the districts ourselves. And th at same provision provides that this court may invalidate a General Assembly district-plan in whole or in part only if we first find a vi olation of Artic le XI, Sectio n 2, 3, 4, 5, or 7.

Id . at ¶ 227 (Kennedy, J., dissenting). {¶ 90} Indeed, “[i]f violations of Sec tion 6 were intended to be actio nable, one would naturally expect Section 9(D) to say so. But that la nguage is conspicuously absent.” Id. at ¶ 217 (Kennedy, J., dissen ting). The exclusion of Section 6 from the remedies expr essly provided by Section 9(D)( 3) demonstrates that such violations are not judicially enforceable—the inclusi on of Sections 2, 3, 4, 5, and 7 in this remedy porte nds the exclusion of Section 6. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). For this reason, “theJanuary Term, 2022

39 standards established by Article XI, Section 6 are directory an d therefore not judicially enforceable.” League of Women Voters at ¶ 245 (Kennedy, J., dissenting). {¶ 91} Because this court lacks authority to invalidate a plan based o n a stand-alone violation of Sections 6(A) or 6(B), petitioners’ ob jections that are premised on those pr ovisions fail. B. The Commission Did Not Violate Article XI, Section 6 {¶ 92} Because there has been no showing of the necessary predicate violation of Article XI, Secti on 2, 3, 4, 5, or 7, this court h as no authority to wholly invalidate the plan for a violation of Section 6. Nevertheless , because the majority ignores this limit on its authority, we address the majority’s conclusion that the revised plan violates S ections 6(A) and 6(B). {¶ 93} Article XI, Section 6 establishes three standards that the comm ission must “attempt” to follow when drawing a General Assembly-distri ct plan. The commission must attempt to produce a map that (A) is not drawn primarily to favor a political party, (B) contains a statewide proportion of distr icts whose voters favor a political party in close corres pondence to statewide voter pr eferences, and (C) contains compact districts. But in pursuing these goals, the c ommission shall not violate Section 2, 3, 4, 5, or 7— the neutral map-drawing requir ements designed to prevent gerrymandering. 1. The Revised Map Does Not Viol ate Article XI, Section 6(A) {¶ 94} Article XI, Section 6(A) provides, “No general assembly distric t plan shall be drawn primarily t o favor or disfavor a political party.” The operative word in the provision is “primar ily,” which is ordinarily under stood to mean “predominantly.” Therefore, under the plain language of this p rovision, to show a violation of Section 6(A), petitioners needed to prove that the commission’s predominant motivation in drawing the revised plan was to favor or disfavo r a political party.S UPREME C OURT OF O HIO

40 a. There has been no showing that partisan favoritism was the commission’s primary motivation {¶ 95} Petitioners argue that the commission did not attempt to comply with Article XI, Section 6(A). The cr ux of the argument is that the commission’s revised map purposefully creates districts that lean toward Democrats o nly marginally, and, so petitioners say, Republicans might end up winning some of th ese districts and obtaining a greater than proporti onate share of representation. We disagree that the commission’s predominant motiv ation was to favor a political pa rty. {¶ 96} The commission’s members understood that under the majority’s holding in League of Women Voters , they had to comply with Sections 6(A) and 6(B) unless doing so caused the re vised plan to violate Section 2, 3, 4, 5, or 7. The staffs of the Republican and Democratic caucuses collaborated i ntensely in drawing a map, even if there was not always agreement on how each distr ict should be drawn. Mapdrawer Ray DiRossi explained that “the Commission de cided to proceed with this Court-ordered re-draw by drawing districts in various geographic regions of the state where it is possible to draw Democratic le aning districts while complying with Sections 2, 3, 4, 5, and 7 of Article XI of the Ohio Constitution.” This way, they started with a pla n that they knew already compl ied with Sections 2, 3, 4, 5, and 7. Even then, DiRossi noted that it took “hour s of work” to change a Republican-leaning district to lean toward Democrats, but bec ause of this court’s order for the commission to adopt a revised plan in ten days, t ime was short. DiRossi explained that it was not possible to adopt a map that had fewer than 57 Republican-leaning Hous e districts without also violating other provisions of Article XI, and he testified that other proposed maps he had se en did not comply with all the requirements of S ections 2, 3, 4, 5, and 7. Blake Springhetti, a Republican staffer who helped dra w the revised plan, also noted that he had not seen a constitutional map that gave Democrats more districts th an the commission’s revised map.January Term, 2022

41 {¶ 97} When asked why the revised plan made Democratic-leaning seats more competitive, Springhetti explained that “the decisions wer e centered around complying with the court order and closely corresponding with S ection 6.” And in responding to a question whether drawing competitive districts was intended to disfavor Democrats, DiRossi stated, “[I]f you’re asking if a 53 percent Republicanleaning seat that becomes a 48 percent Republican-leaning seat is—makes it easier for a Republican to win, I mean, t hat just wouldn’t make sense to me.” {¶ 98} Petitioners’ own expert, Dr. Kosuke Imai, admitted that in the revised plan’s most competitive district, Democrats would win t he election five out of nine times. And in the four next most competitive districts , Democrats could
have won at least six out of nine elections. It stands to reas on that the other seven competitive districts with larger margins of political advantag e for the Democrats would have been even more likely t o elect Democratic legislator s. {¶ 99} In effect, petitioners assert, and the majority apparently agre es, that the revised plan does not fa vor the Democratic Party enough. B ut changing the map to add more “safe” Democratic districts would mean that the commission had a primary purpose to favor the D emocratic Party when Article XI , Section 6(A) strictly prohibits such action. b. The majority’s S ection 6(A) analysis {¶ 100} The majority does not cite any direct evidence that partisan favoritism was the drafters’ prima ry motivation. Instead, it d raws inferences from three sources to support its conclusion that the commission’s p rimary motivation was to favor the Republican Party: (1) the fact that the commis sion took as a starting point the map this court previously invalidated in drawing new districts, (2) the fact that the map did not achieve perfect partisan proportionality, and (3) the fact that many of the districts favored t he Democratic Party only by smal l margins. This evidence does not prove the maj ority’s faulty conclusion.S UPREME C OURT OF O HIO

42 {¶ 101} The majority begins by complaining that “the commission did not adopt an entirely new plan” but, rather, began by making revisi ons to the old map. Majority opinion at ¶ 36. But, of course, this has nothing do with whether the commission intended to “primarily” favor or disfavor a politica l party. It was a
Democratic member of the commi ssion, Senator Sykes, who propose d the idea to adopt the “regional” approach to grapple with the reality of Oh io’s political geography. Starting from the invalidated map was a bipartisan decision, motivated primarily by the need to comply with the majority’s order to re draw the plan within ten days. Certainly, the decision is not evidence that the com mission’s primary motivation was to favor Republicans. {¶ 102} Moreover, there is nothing in Ar ticle XI that authorizes the ma jority to micromanage the manner in w hich the commission carries out i ts map-drawing functions. The commission’s unanimous decision to take a regio nal approach to redrawing the plan makes perfect sense when one considers that no one challenged the previous plan for failing to comply with the neutral line-d rawing requirements of the Constitution. Indeed, star ting completely from scratch would have made little sense. The Constitution mandates that the starting poin t for the creation of the districts be Franklin County, the most populous county, and it also mandates the order in which the remaining dist ricts be drawn. So, any new m ap would have been based on the same parame ters as the old one. {¶ 103} Furthermore, the demographics of Ohio dictate that Ohio’s rural districts are going to be Republi can; readjustments of the boun daries of these
districts would have done nothi ng to change the Republican/Demo cratic ratio of districts. The only place for th e commission to add more Democ ratic districts was in the urban counties. So, it was perfectly reasonable for the commission to start exactly where it did. {¶ 104} Second, the majority infers that the drafters had an improper partisan motivation from the fact that the revised plan did not achieve perfectlyJanuary Term, 2022

43 proportional representation. In doing so, it conflates the iss ue of proportionality under Article XI, Secti on 6(B) with the inten t determination of Section 6(A). Section 6(B) is a mathematical p roblem. It asks whether the st atewide proportion of districts “correspond[s] close ly” to the statewide preferenc e of voters. Section 6(A) is a question of intent a nd asks whether the commission ac ted above all else to favor or disfavor one party ove r the other. The fact that t he majority today does not view the revised plan as su fficiently proportional does not prove that the
commission intended to favor or di sfavor a particular party. A s explained below in the discussion of Section 6(B) , the majority’s decision in League of Women Voters , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, suggested that th e partisan proportionality of the revised plan would comply with Section 6 (B). At best, the proportionality of the revised plan shows that the commission a cted primarily to obey the majority’s order, not to disfavor Democrats. {¶ 105} Lastly, the majority today finds “other evidence” that supports a violation of Article XI, Section 6(A) in a lack of “parity in t erms of vote share of each district.” Majority opinion at ¶ 40. But competitive dis tricts do not favor or disfavor a particular political p arty, so they cannot be eviden ce of the commission’s
intent to disfavor the Democrats . Rather, the narrow margins o f partisan preference were largely a function of dem ographics. As outlined above, th e political demographics of Ohio meant that in order to obtain proportional ity, the overwhelming majority of Republican districts in Ohio’s urban c ounties had to be transformed into Democratic ones despite the fact that Republic an voters constitute a significant proportion of Ohio’s urban population. This nece ssarily meant drawing districts having small De mocratic margins. Furthermore , by allowing the commission so little time to revise the plan, the majority exac erbated these constraints, as changing even one district to lean toward Democ rats was time consuming. The drafters also had to comply with Sections 2, 3, 4, 5, and 7, without losing sight of the compactne ss standard of Section 6(C).S UPREME C OURT OF O HIO

44 {¶ 106} The record establishes that the commission’s primary purpose in adopting the revised plan was to comply with this court’s order to adopt a plan with a proportion of districts that mo re closely corresponds with th e partisan preferences
of Ohio voters without also viola ting the neutral map-drawing r equirements of Article XI and dealing with the consequences of Ohio’s politica l geography. The plan therefore was not drawn pr imarily to favor or disfavor any particular political party. Partisan considerations are not forbidden by Section 6( A); they just must not be the primary motiv ation in drawing the pl an, and here they we re not. {¶ 107} For these reasons, we would reject the objections premised on a
violation of Article XI, Section 6(A).
2. The Revised Plan Does Not Vi olate Article XI, Section 6(B) {¶ 108} Going further, the majority conc ludes that the redistricting commission did not comply with t his court’s direction in League of Women Voters that the commission attempt to adopt a plan under Article XI, S ection 6(B) in which “[t]he statewide proportion of d istricts whose voters, based on statewide state and federal partisan general election results during the last ten y ears, favor each political party * * * correspond closely to the statewide preferences of the voters of Ohio.”

a . The Majority’s Decision in League of Women Voters of Ohio {¶ 109} In League of Women Voters , this court explained that prior election results showed “about 54 percent of Ohio voters preferred Repub lican candidates and about 46 percent of Ohio voter s preferred Democratic candid ates.” __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 108. Based on this distribution of partisan preference, precise p roportionality would mean that th ere are 71.28 total House and Senate districts (54 pe rcent of the sum of the 99 Hou se districts and 33 Senate districts) that lean t oward the Republicans and 60.72 th at lean toward the Democrats (46 percent of the same sum). But close corresponden ce is not precise proportionality. By modifying the word “correspond” with the a dverb “closely,” Article XI, Section 6(B) provi des that proportionality need not be exact but justJanuary Term, 2022

45 close enough. In contrast, the word “favor” in Section 6(B) is not similarly modified. If a district prefers a political party by the small est statistical amount, it necessarily favors that party. In this analysis, there can be no toss-ups; one party is favored based on past el ection data, and one is not. {¶ 110} But how does the majority understand the term “closely”? It is important to consider what it suggested was close enough in League of Women
Voters. In determining that the commission’s original plan did not comp ly with Article XI, Section 6(B), the majority pointed to the report of Dr. Imai, an expert in districting statistics who was hired by petitioners. Id. at ¶ 112. Dr. Imai’s original report filed in these cases sta ted that the average of the 5,00 0 plans he generated contained 79 total Republican-lean ing districts (60 percent) an d 53 total Democratic-leaning districts (40 percent). The majority stated , “Dr. Imai’s analysis showed that the plan adopted by the commission was an outlier, displaying a greater degree of disproportionality tha n any of the simula ted maps he generated.” Id. {¶ 111} The majority in League of Women Voters also relied on Dr. Jonathan Rodden’s report and stat ed that “[he] drew a plan that was compliant with
Article XI and that is more proportional to the statewide voter preferenc es than the plan adopted by the commission.” (Emphasis added.) Id. at ¶ 112. It further
claimed that “when Dr. Rodden drew his district plan that adher ed to traditional redistricting principles, complied with Article XI , and did not endeavor to help or harm any political party, the result was much different: a plan with more compact districts and in which the partisan split in Republican candida tes’ favor was 57 percent to 43 percent in the House and 55 percent to 45 percent in the Senate.” (Emphasis added.) Id. at ¶ 126. The majority in League of Women Voters of Ohio unambiguously stated that Dr. Rodde n’s plan complied with Artic le XI, including Section 6(B). {¶ 112} Notably, after League of Women Voters was decided, a notice of correspondence was filed in this court in which counsel for the Bennett petitionersS UPREME C OURT OF O HIO

46 informed the commission that Dr. Rodden’s plan did not comply w ith the mandatory map-drawing requireme nts of Article XI, stating, “[W] e now believe that [Dr. Rodden’s] plan contai ned some technical issues that m ay result in municipal corporation and township splits beyond those permitte d by the strict language of Article XI, Section 3.” Dr. Rodden’s original plan also did not number the Senate districts, as requi red by Article XI, Section 5. An d it is not clear that he began drawing House districts with the most populous county—Fra nklin County— as required by Section 3(C)(1). T his is problematic, because D r. Rodden stated in his report that he began prepari ng his plan by first “resolving the dilemma of
Northeast Ohio.” Noneth eless, the majority in League of Women Voters favorably cited Dr. Rodden’s plan in its decision. Consequently, despite the flaws in Dr. Rodden’s work, the clear message t hat the majority sent to the commission was that a plan having levels of proportionality similar to those determ ined by Dr. Rodden
would withstand cons titutional scrutiny. {¶ 113} In addition, the commission was aware that on September 13, 202 1,
a Democratic member of the commission, Sena tor Sykes, had previ ously proposed a plan that contained 77 total Republican-leaning House and Sen ate districts and 55 Democratic-leaning House and Senate districts. See League of Women Voters , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 46. b. The Majority Move s the Goalposts {¶ 114} Against this backdrop in which the majority had set Dr. Imai’s and Dr. Rodden’s reports as exemplars for drawing a plan that is co mpliant with Article XI, Section 6(B), the commission adopted the revised plan, whic h provided 77 total Republican-leaning districts in t he House and Senate—about 58 p ercent—and 55 total Democratic-leaning House and Senate districts—about 42 pe rcent. By the standards set forth by the majority in League of Women Voters , the revised plan is constitutional. In its previous d ecision, the majority relied on Dr. Imai’s simulation in concluding that the origina l plan was an “outlier,” id. at ¶ 112, but under theJanuary Term, 2022

47 same data, the revised plan is not. In fact, the revised plan provides more total Democratic-leaning districts than the majority of Dr. Imai’s 5, 000 simulated plans. Further, the partisan makeup of the revised plan is almost iden tical to the partisan makeup of Dr. Rodden’s original p lan—the plan that the majority held up as a model of constitutionality in its original decision. The revis ed plan also contained
the exact division of total Re publican- and Democratic-leaning districts proposed in Senator Sykes’s September 13, 2021 plan. According to the m ajority, the plan initially proposed by the minority-party members of the commiss ion would
somehow unconstitutiona lly favor their oppos ing party. That is as good of an indication as any of just how far afield the majority has veere d. {¶ 115} Indeed, a fair reading of the majority’s previous decision is t hat the revised plan satisfies Article X I, Section 6(B), and the majori ty is now simply moving the goalposts to avoid upholding the plan. What it indi cated in its previous decision regarding what would be a close enough division of dis tricts is no longer close enough. Instead, under t oday’s decision, the commission must undertake a reverse-gerrymandering to guarantee Democratic victories to ach ieve exact proportional representation. {¶ 116} The majority asserts that the existence of alternative plans is probative in evaluating the revised plan. It should then be re levant that Dr. Rodden submitted to the commission a revised plan containing 74 total Republican-leaning
districts and 58 total Democr atic-leaning ones. But although t hat plan may contain a slightly more proportional divi sion of districts than the com mission’s revised plan, it does so at the expense of once again violating some ofthe mandatory mapdrawing requirements of Article XI. The commission submitted e vidence that Dr. Rodden’s plan unconstitutionally d ivided more than one municipa lity or township in nine districts, in violation of Article XI, Section 3(D)(3). Some of these divisions
could not be corrected without overpopulating or underpopulatin g the district, sending ripple effects throughout t he entire plan. Dr. Rodden’ s plan alsoS UPREME C OURT OF O HIO

48 erroneously numbered nume rous Senate districts, see Article XI, Section 5, causing at least one senator to be up for reelection two years before t he conclusion of his

term. {¶ 117} Therefore, while the majority faults the commission for not adopting a more proportional pla n, it is significant that no pl ans that were both more proportional and satisfied the o ther relevant constitutional st andards were presented
to the commission. c. It Is Not Possible to Draw Perfectly Proportional District P lans

{¶ 118} DiRossi testified that none of the plans he had seen provided proportional representation without also violating other requir ements of Article XI. Apparently not liking what DiRossi says, the majority simply di sregards his testimony. But DiRossi’s testimony is backed up by other evide nce in the record. Dr. Rodden is an expert in matte rs pertaining to redistricting, but even he was not able to draft a plan with a pr oportion of distric ts that more c losely corresponds with the partisan preferences of Ohio voters while still complying w ith the neutral mapdrawing requirements of Sections 2, 3, 4, 5, and 7. Similarly, Senator Sykes’s September 13 plan and the Ohio C itizens Redistricting Commissio n’s plan, which
were both cited in Dr. Rodden’s first report, were not able to reach much closer proportionality even though they also violated the neutral map- drawing requirements and were t herefore unconstitutional. {¶ 119} Further, out of all of Dr. Ima i’s 5,000 simulated plans that he claimed complied with all of Article XI’s requirements, none of the plans were able to reach perfect proportionalit y, i.e., 71.28 total Republican- leaning House and
Senate districts and 60.72 total Democratic-l eaning House and S enate districts.
None even came within 5 percent of perfect proportionality. His av erage ratio was between slightly more than 78 Re publican-leaning districts and slightly more than 53 Democratic-leaning districts, and his plans ranged from appr oximately 76 districts leaning Republican to 81 leaning Republican. The com mission’s revisedJanuary Term, 2022

49 plan is therefore more proportional than the majority of Dr. Im ai’s 5,000 plans. And to reach the proportionality apparently required by the maj ority’s decision today, the plan would be an outlier in Dr. Imai’s study, with a bout five fewer Republican districts than even hi s most pro-Demo cratic simulate d plan. {¶ 120} And while the Democratic member s of the commission prepared a plan purportedly containing 72 to tal Republican-leaning House a nd Senate districts and 60 total Democratic-leaning House and Senate districts, all indications are that the plan included little if any attempt to comply with all the requirements of Article XI, Sections 2, 3, 4, 5, and 7. Senator Sykes noted that the p urpose of his plan was to show that proportional district s could be drawn, without wor rying whether they were “error free.” And the plan contained constitutional error s, improperly dividing municipalities and townships in a way that cannot be corrected without overpopulating some dis tricts and “caus[ing] ripple effects thr oughout the entire county, and likely beyond.” It also improperly numbered some S enate districts in a way that puts at least two senators on the ballot in the midd le of their four-year terms, violating Article XI, Section 5. (The drafter of this p lan, Chris Glassburn, claimed that he was subsequently able to correct these errors, but the maps attached to his affidavit are, at the very least, not numbered, in viola tion of Sections 3, 4, and 5.) {¶ 121} The majority should apply the pl ain language of Article XI, Sec tion 6(B) and not demand exact propor tionality when there is scant e vidence that it is possible to draw districts that are exactly proportional to the partisan preferences of
Ohio voters without also violati ng the neutral map-drawing requ irements of Sections 2, 3, 4, 5, and 7. Secti on 6(B) states that the commi ssion shall “attempt” to achieve a proportion of distr icts that “closely” corresponds to the partisan preferences of Ohio voters—it does not require that proportion to perfectly match those preferences.S UPREME C OURT OF O HIO

50 d. The Revised Plan Does Not I mproperly Favor a Political Party

{¶ 122} Lastly, the majority rejects the commission’s methodology for determining how many districts favor Republicans and how may fa vor Democrats.
It concludes that the commission’ s revised plan would result in more Republican election victories than the pl an purports to have because Repub licans might win in
some districts where Democrats h ave only a narrow demographic a dvantage. However, nothing in Article XI, Section 6(B) requires the commi ssion to allocate guaranteed victories to any part y. Rather, Section 6(B) direct s the commission to adopt a plan in which “[t]he st atewide proportion of districts whose voters * * * favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.” (Emphasis added.) Article XI, Section 6( B), Ohio Constitution. It does not give a margin by which the district’ s voters should favor one party or the other. And although the margins may be narrow in some districts,
those districts nonetheless favor Democrats based on the partis an preference of
voters there. The Constitution’s words control: a district tha t narrowly favors the Democratic Party neve rtheless favors it. {¶ 123} To require these districts to favor Democrats enough to guarant ee that Democrats will always be elected—i.e., to significantly fa vor a party by more than 52 percent—would require adding words to the Constitution; however, a court may not “add to or subtract from the plain and usual meaning of [a] constitutional provision,” State v. Billotto , 104 Ohio St. 13, 15-16, 135 N.E. 285 (1922). e. The Majority’s Holding Requires Intentional Gerrymandering

{¶ 124} The result of the majority’s decision today is to require the commission to intentionally gerrymander the General Assembly-di strict plan in order to overcome the political g eography of Ohio in which Demo crats are more concentrated in urban areas while Republican voters dominate th e suburban and
rural areas of the state. To draw five more safe Democratic-le aning districts, the
commission will have to crack the areas in which Democrats live and pack themJanuary Term, 2022

51 into new districts containing far-flung Republican voters in th e suburbs and rural areas. Dr. Barber, an associate professor of political science at Brigham Young University, indicated that this could be accomplished by drawin g districts that
radiate from the urban core and then extend them “like slices o f pizza,” which would capture large numbers of Democrats in cities as well as R epublican voters in
the suburbs and rural areas. He also suggested that districts could be drawn like a “snake” through the rural, heavily Republican areas by stringin g together smaller cities where Democrats live to create a majority Democratic-lea ning district in what
would otherwise be a Re publican-leaning district. {¶ 125} The problem, Dr. Barber notes, is that creating these districts requires intentional gerrymanderi ng and violates Article XI’s n eutral map-making requirements. The “slice” distr icts would violate Section 3(D) (3) by dividing too many municipalities and townships, while the “snake” districts would violate Section 3(C)’s prohibition of exc essive divisions of counties. Creating “snake” districts would also require the commission to violate the dire ctory duty imposed by Section 6(C) to draw compact d istricts. Complying with this court’s apparent order to create exactly proporti onal districts improperly eleva tes Section 6(B) over Sections 2, 3, 4, 5, and 7, which the Constitution expressly pr ioritizes, and over Section 6(C), which is c oequal to Section (6)(B). See Article XI, Section 6, Ohio
Constitution (“Nothing in this section permits the commission to violate the district
standards described in S ection 2, 3, 4, 5, or 7 of this article ”). {¶ 126} It also will require the commission to go to absurd lengths to dilute Republican votes in urban counties. For example, Dr. Rodden’s plan divides 11 districts in Franklin County in s uch a way that all 11 district s would skew in favor of Democrats. So, while the par tisan divide of Franklin County is approximately 63 percent Democrats and 37 per cent Republicans, Dr. Rodden’s p lan would give 100 percent of the districts t o the Democrats. Similarly, Hami lton County is 55 percent Democrats and 45 percen t Republicans. Dr. Rodden’s pla n, however,S UPREME C OURT OF O HIO

52 would provide six out of seven H ouse districts (or approximatel y 85 percent) to Democrats by cracking Republican -leaning areas of the county an d packing them with urban areas where Democrats predominate. This intentional gerrymandering therefore unnecessarily dilutes the votes of Republican voters in the areas surrounding cities. {¶ 127} The same majority as today recently decried the evils of partis an gerrymandering:

Gerrymandering is the antithetical perversion of representative democracy. It is a n abuse of power—by whichever political party has control to d raw geographic boundaries for e lected state and congressional offices a nd engages in that practice—th at strategically exaggerates the power of voters who tend to suppo rt the favored party while diminishing the power of voters who ten d to support the disfavored party.

Adams v. DeWine , __ Ohio St.3d __, 2022-Ohio-89, __ N.E.3d __, ¶ 2. Yet today , it apparently orders the commission to do just that, compelling the commission to separate political subdivisions and communities of interest and to dilute the vote of
some Ohioans to enhance the vote of others. This is the direct result of the majority’s failing to adhere to the limits of the Constitution and elevating Article XI, Section 6(B) by replacing th e neutral map-drawing requireme nts with one that is unapologetically partisan. And this is plainly not what the people of this state had in mind when they ratifie d the limits on gerrymandering in Article XI. {¶ 128} Redistricting reform was intended to reduce political polarizat ion. But in putting its own political objectives ahead of constituti onal requirements, the majority will undoubtedly increase political polarization. The majority ordains a map in which urban counties effe ctively have representation fro m only one politicalJanuary Term, 2022

53 party. For those who complain about a rural/urban division in Ohio, just wait until we have a legislature in which one party exclusively represents urban centers and the other party represent s the rest of the state. {¶ 129} Furthermore, by the majority’s decree, elections in urban count ies will not be competitive. Instead, the commission must guarante e safe Democratic seats—taking general-election vot ers out of the equation and en suring that elections are decided by the lines that are drawn and not by the ballots cast. Under such a regime, the most important election will often be the primary—t hereby incentivizing candidates to appeal to their political base rath er than the electorate as a whole. That is not good for voter engagement. And that i s not good for democracy. C. This Court Has No Authority to Commandeer the Commission {¶ 130} In addition to erroneously concluding that the commission viola ted Article XI, Section 6, the majority exceeds its constitutional authority by placing an arbitrary time limit on the work of the commission and by re taining jurisdiction over the case. Under Section 9(B) , if this court invalidates a plan, the reconstitution of the commission is self-executing—it occurs automatically and the commission is to “convene, and ascertain and determine” a new plan “in con formity with such provisions of this constitution as are then valid.” Article XI , Section 9(B), Ohio
Constitution. {¶ 131} Article XI does not authorize this court to control the work of the commission. It does not prohibit the commission from using an invalidated plan as a starting point as it strives to adopt a valid one. The Const itution is silent on when the commission is to hold meetings, adopt rules, hire staff, ex pend funds, or propose or adopt a new plan. Article XI , Section 9(B) contains no such time requirements, and it does not provide this cour t with the authority to create one by ordering the commission to adopt a new pl an within ten days.S UPREME C OURT OF O HIO

54 {¶ 132} Likewise, the majority’s reliance on Article IV, Section 2(B)(1 )(f) as authority for retaining jurisd iction over these cases and co ntrolling the work of the commission is undermined by the plain, unambiguous language of the provision. Section 2(B)(1)(f) grants this court “original juri sdiction * * * [i]n any cause on review as may be necessary to its complete determinati on.” Article IV, Section 2(B)(1)(f), Ohio Constitu tion. But this court’s determ ination of League of
Women Voters was “complete” when it declared the General Assembly-district p lan
invalid. Because there was nothi ng left for this court to do, setting a timeline and a drop-dead date by which the co mmission was to act was nothing more than an exercise of raw judicial power. See, e.g. , Doe v. Bolton , 410 U.S. 179, 222, 93 S.Ct. 762, 35 L.Ed.2d 147 (1973) (White, J., dissenting). D. Article XI, Section 1 Is Not Judicially Enforceable {¶ 133} Because petitioners’ Article XI, Sections 6(A) and 6(B) argumen ts fail, it is necessary to address the Bennett petitioners’ remaining objections. {¶ 134} In objecting to the revised plan, the Bennett petitioners argue that
the commission violated Article X I, Section 1(C) by failing to release the proposed plan to the public before adopting it, failing to allow members of the public and the commission an adequate opportunity to provide input on the prop osed plan, and failing to hold three public meeti ngs before adopting a plan. However, a violation of Section 1(C) does not provide a basis for this court to inva lidate a General Assembly-district plan. {¶ 135} Article XI, Section 9(D)(3) aut horizes this court to invalidate a General Assembly-district plan only if it determines that the p lan violates Article XI, Section 2, 3, 4, 5, or 7. Absent from that list is Section 1. The exclusion of a
violation of Section 1 from the r emedy expressly provided by Se ction 9(D)(3)
shows that Section 1 is not judicially enforceable. See Scalia & Garner at 107 (the
inclusion of one is the exclusi on of others). As is the case w ith Section 6, because Article XI, Section 9(D)(3) provides no mechanism by which to e nforceJanuary Term, 2022

55 compliance with Section 1(C), it is a directory requirement tha t is not judicially
enforceable. {¶ 136} Moreover, to accept the Bennett petitioners’ position would mean that this court has the power to strike down a plan for a techn ical violation of Section 1 even if that violation had no palpable effect on the plan itself and did not violate any constitutional or federal voter-rights protections. But even the majority
in League of Women Voters did not go to that extreme. Although it recognized that the commission had not complied w ith Article XI, Section 8(C)(1 )(a) because it had adopted the original plan a d ay late, that violation was no t a basis for the majority to invalidate the plan. __ Ohio St.3d __, 2022-Ohio-6 5, __ N.E.3d __, at ¶ 64, fn. 9. {¶ 137} For these reasons, the Bennett petitioners’ objection asserting that the revised General Assembly-district plan violates Article XI, Section 1(C) should be rejected

. E. The Commission Concedes that There Are Isolated Violations of Article XI, Section 3(D)(3) {¶ 138} The only actionable claim that the General Assembly-district pl an is invalid is the Bennett petitioners’ objection that it violates Article XI, Section 3(D)(3). That provision states t hat “not more than one municip al corporation or township may be split per representative district.” Article XI , Section 3(D)(3),
Ohio Constitution. {¶ 139} The commission concedes that the General Assembly-district plan splits multiple municipalities in four separate districts. The only relevant evidence shows these violations to be minor and to impact only four dist ricts. Revising the plan to keep Grove City, Jackson Township, and Copley Township intact would
affect fewer than 200 residents and would not cause any of thes e districts to be overpopulated or underpopulated. T his means that the commissio n can repair these defects in isolation, without a ffecting any other districts.S UPREME C OURT OF O HIO

56 {¶ 140} Having found a technical violati on in the revised plan, we turn to Article XI’s remedies provision. Section 9(D)(3)(a) provides t hat for “isolated” violations of Section 2, 3, 4, 5, or 7, “the court shall order the commission to amend the plan to correct the violati on[s].” Article XI, Section 9(D )(3)(a), Ohio Constitution. As a consequence, r ather than invalidate the rev ised General Assembly-district plan in its entirety, we would order the comm ission to amend the revised plan to correct the improper division of municipalities and townships in Districts 5, 10, 31, and 33. F. Effects of Unmooring Review fr om the Plain Language of the Ohio
Constitution {¶ 141} The parties ask this court to int ervene in varying ways in the 2022 election process. The Bennett petitioners ask this court to stay or postpone the deadline for filing candidacy petitions and declarations of can didacy for legislative offices. The petitioners in League of Women Voters of Ohio v. Ohio Redistricting
Comm. (Supreme Court case No. 2021-1193) ask this court to direct the legislature to adjust the election schedule. The commission requests that the court issue a decision by February 11, 2022, or, alternatively, stay the issu ance of a decision until the 2022 general-electi on cycle is complete using the revised p lan. {¶ 142} The majority, as if existing in a vacuum, asserts that the Gene ral Assembly has the “authority to ease the pressure * * * by movin g the primary election.” Majority opinion at ¶ 66. But such a response beli es how the 2022 Ohio election cycle got to this chaotic state; four members of the S upreme Court of Ohio brought us to this juncture—and no one else

. {¶ 143} Unmoored from the plain language of the Ohio Constitution, the majority has now cast uncertain ty and confusion into the 2022 e lection cycle. By distorting and misrepresenting th e plain language of Article XI , Section 9(B), the majority uses a provision that i s not judicially enforceable to embolden and empower itself to strike down any redistricting map that the co mmission adopts. ItJanuary Term, 2022

57 is now what suits the majority’s fancy that determines what is an “attempt” to “primarily * * * favor or disfa vor a political party,” Section 6(A), and to “correspond closely to the statewi de preferences of the voters of Ohio,” Section 6(B). And the path of standard less judging that the majority h as chosen for Ohio leads to its decision today—shif ting sands rather than the rule of law, a morass surely to follow. Detached from constitutional limitations, th e majority uses ad hoc rules to usurp the authority of a n independent constitutional b ody. {¶ 144} The guidepost of judicial modesty should be recognizing that th e text of a constitutional provision is supreme. When legislativ e, executive, or administrative bodies ignore the text of the Constitution that sets the limitation of their powers, the judiciary stands at the ready to apply the te xt of the Constitution
to restore balance. But when it is the judiciary that unmoors itself from the text of the Constitution, the rule of law itself is at stake.

G. History Repeats Itself {¶ 145} It bears repeating that four members of this court believe it
reasonable to commandeer the wor k of the redistricting commissi on, and they will continue to reject any General Assembly-district plan until the y get the plan they want. The majority stops just s hort of drawing the new map the mselves or directing the commission to adopt one of the plans that has been placed i n evidence only because even they recognize that that is expressly forbidden by Article XI, Section 9(C)(1) and (2). Nonetheless, one could not blame the commissi on for wanting to yield the map-drawing software t o the majority and to let them draw the map, because that is what is happeni ng here, albeit by way of a seri es of orders saying to try again. {¶ 146} One would also think that after the DeRolph debacle, this court
would have learned its lesson not to demand that independent co nstitutional bodies
heed this court’s ill-defined favor. In DeRolph v. State , 78 Ohio St.3d 193, 677 N.E.2d 733 (1997) (“ DeRolph I ”), this court declared Ohio’s system of public-S UPREME C OURT OF O HIO

58 school funding unconstitutional. In DeRolph I , this court required the General Assembly to create a new public-school-funding system, but it p rovided no specific guidance on how to achieve a constitutional system. Three year s later, after several changes by the General Assembly, this court declared that the s ystem was still
unconstitutional. See DeRolph v. State , 89 Ohio St.3d 1, 728 N.E.2d 993 (2000) (“ DeRolph II ”). Again, without giving any sp ecific guidance, this court co ncluded that “even more is required” t o create a constitutional public- school-funding system. Id. at 36. By the third DeRolph case, this court had decided that saying “not good enough” was not good enough, and it attempted to inst itute some parameters for the legislature to follow. See DeRolph v. State , 93 Ohio St.3d 309, 754 N.E.2d 1184 (2001) (“ DeRolph III ”). One parameter required the removal of wealth screens from the basic funding formula. What some justi ces expected to have a price tag of approxima tely $400 million actually would h ave cost the state $1.2 billion. See Candisky, Keep funding fix, group says , Columbus Dispatch (Sept. 25, 2001) 1B. On reconsideration, the court explained t hat it had relied on faulty information contained in a brief: “Both sides acknowledg e in their memoranda in support of and oppositi on to the motion for recons ideration that the
evidence and one of the briefs filed in DeRolph III contained inaccurate analysis regarding the cost of funding the base cost formula with wealth screens eliminated.” DeRolph v. State , 93 Ohio St.3d 628, 631, 758 N.E.2d 1113 (2001). {¶ 147} How soon the majority forgets t hat it relied on Dr. Rodden’s pl an in the first iteration of these cases, when the expert admitted that his plan was
unconstitutional after this court’ s opinion had been published. That plan that the majority called “good enough” had p redicate violations of Secti ons 2, 3, 4, 5, and 7 and, even then, did not meet the majority’s new concept of pr oportionality. But the majority nonetheless bets t he ranch on its reliance on its chosen experts—or at least what it cherry-picks from their evidence—even though ther e seems to be little proof that adopting a General Asse mbly-district plan in accord with its holdings inJanuary Term, 2022

59 League of Women Voters and today is remotely possibl e given the realities of Ohio’s political geography. With only ten days to adopt a new plan, there will not
be time for a DeRolph -type motion for reconsiderati on to set the majority straight.
III. CONCLUSION {¶ 148} The objections filed in this cour t are, for the most part, not well taken. The directory requirements of Article XI, Sections 1 an d 6 are not judicially enforceable. Regardless, the O hio Redistricting Commission com plied with Sections 6(A) and 6(B) in adopti ng the revised plan, and any fa ilure to comply with Section 1(C) was caused by this court’s improper order directin g the commission to adopt a new plan within ten days. The revised plan does not comply with Section 3(D)(3), but those isolated vio lations may be corrected by dire cting the commission to amend the revised plan wit hout affecting its overall validit y. For these reasons, we dissent from the majority’s decision to invalidate the revis ed plan.

_________________ F ISCHER , J., dissenting. {¶ 149} I must respectfully dissent. Like the previous majority opinio n in these cases, this second majority opinion does not follow the t ext of the Ohio Constitution. As stated in my prev ious dissent, I would not re ach the merits of the cases. The majority opinion agai n attempts to exercise authori ty not granted to this court by the state Constitution. See League of Women Voters of Ohio v. Ohio Redistricting Comm. , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, ¶ 279 (Fischer, J., dissenting). {¶ 150} Because, pursuant to Article XI, Section 8(C)(1)(a) of the Ohio Constitution, at least two commission members representing each of the two largest political parties did not vote for the General Assembly–distric t plan currently before this court, we are once again faced with a four-year plan, whic h, as petitioners have repeatedly conceded, see id. at ¶ 280 (Fischer, J., dissenting), is subject to the impasse provisions of Article X I, Section 8. By not following the wording of theS UPREME C OURT OF O HIO

60 Ohio Constitution in Article XI , Section 8(C)(1)(a), the majori ty opinion impinges upon the citizens’ right to vote in two General Assembly electi ons according to the
terms of Article XI. {¶ 151} Article XI, Section 8 sets forth a precise constitutional roadm ap for how this state shall proceed in redistricting Ohio House and Oh io Senate districts when the Ohio Redistricting Commission sets forth a four-year p lan. By not following these constitutionally required “directions,” the fir st majority opinion in
these cases led this state the w rong way down a one-way street, undermining and subverting the purpose of the constitutional roadmap. Today, i nstead of turning around and heading back in the proper constituti onal direction imposed by 71 percent of Ohio’s voters in 2015, the majority opinion doubles down and continues driving the state unconstitutionally in the wrong direction, to ward a brick wall comprising both a panoply of election-related deadlines and a p otential
constitutional crisis. {¶ 152} The parties all acknow ledge that Article XI, Section 8 applies because the redistricting commission has adopted a four-year pl an upon an impasse. The applicable provision, Section 8(C)(1)(a), makes clear that Section 9 does not apply. In fact, Section 9 is not m entioned in that provision, unlike in the provision addressing a ten-year plan, Sec tion 8(B), or in the provision a ddressing a six-year plan, Section 8(C)(1)(b):

(B) If the commission adopts a final general assembly district plan in accordance with division (A)(3) of this sectio n by the vote required to adopt a plan unde r division (B)(3) of Section 1 of this article, the plan shall t ake effect upon filing with the s ecretary of state and shall remain effective until the next year ending in the numeral one, except as provided in Section 9 of this article.January Term, 2022

61 (C)(1)(a) Except as otherwise provided in division (C)(1)(b) of this section, if the commissi on adopts a final general assem bly district plan in accordance with division (A)(3) of this sectio n by a simple majority vote of the commission, and not by the vote req uired to adopt a plan under division (B )(3) of Section 1 of this arti cle, the plan shall take effect upon filing with the secretary of state and shall remain effective until two gene ral elections for the house of representatives have occurred under the plan. (b) If the commission adopts a fi nal general asse mbly district plan in accordance with division (A)(3) of this section by a si mple majority vote of the commission, and not by the vote required t o adopt a plan under division (B) of Section 1 of this article, a nd that plan is adopted to replace a plan that ceased to be effective u nder division (C)(1)(a) of this secti on before a year ending in the numeral one, the plan adopted under this division shall take effect upo n filing with the secretary of state and shall remain effective until a year ending in the numeral one, except as provided in Section 9 of this
article.

(Emphasis added.) Ohio Cons titution, Article XI, Section 8. A four-year plan does not constitutionally come before t his court, because there are no Section 9 exceptions in the Constitution’s text in Section 8(C)(1)(a), as Article XI was designed to keep this court out o f a four-year-plan dispute. B y adjudicating this dispute without the state Constitution’s calling upon this cour t to do so, the two majority opinions have created the exact issues and problems th at this court now faces in these cases upon their return. {¶ 153} In doing so, the majority opinion is seemingly more interested in making policy than enforcing the Constitution’s text as written . The majorityS UPREME C OURT OF O HIO

62 opinion outlines a policy preference for a specific type of pla n/map that the Constitution does not require. Under this state’s Constitution , specifically Article XI, that policy choice must be made by the Ohio Redistricting C ommission (a constitutionally created entity), not this court (a separately created constitutional institution). {¶ 154} While I still conclude that we do not have the constitutional authority to review this four-year plan, see League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, ¶ 280-301 (Fischer, J., dissenting), because the majority opinion does review the plan, I am forced to respond, to an extent, on the merits, as I was forced to do in State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 24, 29 (Fischer, J., concu rring in part and dissenting in part), and State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 51 (Fischer, J., conc urring in part and dissentin g in part). {¶ 155} Notably, Article XI, Section 6(B) of the Ohio Constitution uses the term “favor”—not “substantially f avor,” “significantly favor,” or “assuredly favor.” The Constitution does not set forth when a plan crosse s the threshold to having been drawn “primarily to favor” a political party. See Ohio Constitution, Article XI, Section 6(A). The m ajority opinion evinces a desir e to create a requirement—one not found anywhe re in Article XI—that a politic al party be guaranteed to have (or that a political party not be guaranteed to have) a certain
number of seats in the Ohio Hous e and Ohio Senate. Not only do es the majority opinion seek to create a requireme nt regarding the number of se ats, it also implies a requirement that the plan meet c ertain percentage thresholds, which are also not
found in Article XI. The Ohio S upreme Court should not, and la cks any constitutional authority to, determine winners and losers of el ections, but this majority opinion creates that authority without supporting cons titutional text. In finding the two four-year plans adopted by the commission uncon stitutional for the reasons set forth in the majority opinions, this court is attem pting to do just that—January Term, 2022

63 determine winners and losers of elections—which, again, it is n ot permitted to do. By effectively ordering the commission to adopt a plan meeting very specific
criteria not set forth in the Ohio Constitution, the majority opinion is eff ectively and unconstitutionally usurping authority over creating a plan. In doing so, the majority opinion once again breaches the separation-of-powers p rinciples inherent
in the Ohio Constitution. See League of Women Voters of Ohio at ¶ 339 (Fischer, J., dissenting). {¶ 156} As explained in the first disse nting opinion herein, in disregarding the separation-of-powers principl es, the majority opinion sets up another de facto DeRolph situation. Dissenting opinion of Kennedy and DeWine, JJ., ¶ 1 46, citing DeRolph v. State , 78 Ohio St.3d 193, 677 N.E.2d 733 (1997); DeRolph v. State , 89 Ohio St.3d 1, 728 N.E.2d 993 (2000); and DeRolph v. State , 93 Ohio St.3d 309, 754 N.E.2d 1184 (2001). By reaching beyond this court’s author ity in declaring the two redistricting plans unconstitutional, the majority opin ion creates a
constitutional crisis within the s tate government. The unconst itutional approach of the majority opinion continues to undermine this court’s indepe ndence, impartiality, and reputa tion for integrity. {¶ 157} The bottom line is obvious. If the majority opinion had follow ed the specific wording of Article XI, Section 8, which logically follows from the rest of the text of Article XI, this court would: (1) be abiding by and respecting the constitutional requirements and structure of Article XI, (2) no t be interfering in Ohioans’ voting rights, (3) not be creating unauthorized deadli nes for the Ohio Redistricting Commission, and (4 ) not be forcing the General As sembly to alter candidate nominating laws. Moreo ver, this dispute would be dea lt with after two more General Assembly elections—as set forth in Article XI, Sec tion 8(C)(1)(a)’s requirement that four-year plans “ shall remain effective until two general elections for the house of representatives have occurred under the plan .” (Emphasis added.)S UPREME C OURT OF O HIO

64 {¶ 158} Moreover, as noted in my previous dissenting opinion in these

cases, League of Women Voters of Ohio , __ Ohio St.3d __, 2022-Ohio-65, __ N.E.3d __, at ¶ 340, and as acknowledged in the majority opinio n, majority opinion at ¶ 29, the standard o f proof in these cases is beyond a reaso nable doubt. {¶ 159} Petitioners have not reached that high standard as a matter of fact
or of law. The first dissenti ng opinion contains a detailed an alysis supporting the conclusions that the plan curren tly before us was not drawn pri marily to favor or disfavor a political party under Article XI, Section 6(A) and t hat the commission attempted to comply with Article XI, Section 6(B). This reason ed analysis raises more than a reasonable doubt as to whether, under the facts cur rently before us, the commission failed to comply with Article XI, Section 6. Thus, the facts before us show a highly and closely conteste d case in which neither side has carried the day. Petitioners, who have the heavy burden, could not carry a clear -and-convincing burden nor meet a preponderance standard and thus can never rea ch and carry a beyond-a-reasonable-doubt burden. Because petitioners have not satisfied the undisputed burden of proof in th ese cases of beyond a reasonabl e doubt, this court cannot invalidate the plan on thi s basis, although it purports to do so. {¶ 160} As detailed in the first dissenting opinion, the evidence submi tted shows only a few technical probl ems that are within this court’ s authority to address, assuming this court has any authority at all at this t ime in these cases. Those technical flaws could easily be corrected by the commissi on (and, notably, by February 11, 2022, the date on which respondents assert that House and Senate districts must be finalized in order for the election process t o proceed on schedule). By moving beyond those limited tec hnical problems and invalidat ing the entire plan, in an unconstitutional attempt to impose its policy decis ions upon the Ohio Redistricting Commission, the majority opinion directly impinge s upon Ohioans’ right to vote.January Term, 2022

65 {¶ 161} The majority opinion forces its policy viewpoints on a constitutional institution created by 71 percent of the voters of Ohio, violates the separation-of-powers principles inherent in the Ohio Constituti on, and violates long-standing Ohio Supreme Court case law that proof of a const itutional violation in this situation must be shown beyond a reasonable doubt; ther efore, it undermines this court’s independence, impar tiality, and integrity. For th ese reasons, I must respectfully dissent.

_________________ ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey; American Civil Liberties Union, Alora Thomas, and Julie A. Eben stein; and Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Josh ua González, Juliana Goldrosen, David Denuyl, L. Brady Bender, Alex Thomson, Anupam Sharma, and Yale Fu, for pe titioners in cas e No. 2021-1193. McTigue, Colombo & Clinger, L.L .C., Donald J. McTigue, and Dere k S. Clinger; and Elias Law Group, L.L. P., Abha Khanna, Ben Stafford , Jyoti Jasrasaria, and Spencer W. Klein, for p etitioners in case No. 2021-1198. Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A. Sutherland, Ben R. Flie gel, Brad A. Funari, and Danielle L. Ste wart; and Brennan
Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij Rudensky, Michael Li, Harry Blac k, and Ethan Herenstein, for pe titioners in case
No. 2021-1210. Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Cla rk, and Ashley Merino, special counsel to Attorney General Dave Yost, f or respondent Ohio Redistricting Commission. Senator Vernon Sykes and House Minority Leader Allison Russo, p ro se.

_________________