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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Michael Gonidakis, et al., :

: Case No. 2:22-cv-773
Plaintiffs, :
:
v. : Circuit Judge Amul R. Thapar
:
Frank LaRose, : Chief Judge Algenon L. Marbley
:
Defendant. : Judge Benjamin J. Beaton
:

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

TO MAINTAIN THE THIRD PLAN

Now come Plaintiffs Michael Gonidakis, Mary Parker, Margaret Conditt, Beth Ann

Vanderkooi, Linda Smith, Delbert Duduit, Thomas W. Kidd Jr., and Ducia Hamm (“Plaintiffs”),

by and through undersigned counsel, and move this Court for a temporary restraining order

pursuant to Fed. R. Civ. P. 65(b) to enjoin the Ohio Secretary of State Frank LaRose, in his official

capacity, and all persons acting on his behalf or in concert with him, from deviating from the status

quo: implementing the Third Plan adopted by the Ohio Redistricting Commission. A

Memorandum in Support of this Motion is attached.

Respectfully submitted,

Isaac Wiles & Burkholder LLC

/s/ Donald C. Brey

Donald C. Brey (0021965)
Brian M. Zets (0066544)
Matthew R. Aumann (0093612)
Ryan C. Spitzer (0093515)
Trista M. Turley (0093939)
Two Miranova Place, Suite 700
Columbus, Ohio 43215
Case: 2:22-cv-00773-ALM-ART-BJB Doc #: 84 Filed: 03/21/22 Page: 2 of 19 PAGEID #: 1155

Tel: 614-221-2121; Fax: 614-365-9516

dbrey@isaacwiles.com
bzets@isaacwiles.com
maumann@isaacwiles.com
rspitzer@isaacwiles.com
tturley@isaacwiles.com

Attorneys for Plaintiffs Michael Gonidakis,

Mary Parker, Margaret Conditt, Beth Ann
Vanderkooi, Linda Smith, Delbert Duduit,
Thomas W. Kidd, Jr., and Ducia Hamm

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MEMORANDUM IN SUPPORT

More than four weeks ago Plaintiffs asked for a preliminary injunction to protect their right

to vote. With key election deadlines a month away, it was a prudent remedy. But since then,

Secretary LaRose has started implementing the Ohio Redistricting Commission’s Third Plan

though he may stop at any time. Plaintiffs therefore seek a temporary restraining order to maintain

the status quo, an election under the Third Plan, until this Court can rule on Plaintiffs’ pending

motion for a preliminary injunction.

I. BACKGROUND

The Third Plan adopted by the Ohio Redistricting Commission is currently being

implemented by the Secretary of State. Should Ohio’s Chief Election Officer stop implementing

this plan, then there will be no statewide legislative districts for the 2022 election. Without

statewide legislative districts, there cannot be a May 3, 2022, primary election.

A. Ohio’s 2010 legislative district maps and Ohio’s population changes.

Ohio’s 2010 legislative district maps were created after receipt of the 2010 U.S. Census

data showing that Ohio had a population of 11,536,504 people. The 2020 U.S. Census data showed

that much has changed in Ohio over the last ten years, including a net gain of more than 250,000

people and double-digit growth in several regions. (ECF No. 8, First Amended Complaint, ¶ 1).

Many political subdivisions such as Franklin, Delaware, Warren, and Union Counties grew by

double-digits. (Id., ¶ 33). Franklin, Cuyahoga, and Hamilton Counties, Ohio’s most populous

counties, saw a total shift of more than 200,000 people. (Id., ¶ 34).

B. The Redistricting Commission adopts First Plan and Second Plan, and both are
rejected by the Ohio Supreme Court.

The Ohio Redistricting Commission was created in 2015 by an amendment to the Ohio

Constitution. The Redistricting Commission creates statewide legislative districting using the most

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recent federal census data. The Redistricting Commission met and adopted the First Plan in

September 2021. (ECF No. 8-1, First Amend. Compl., Exhibit A). It was later sent back to the

Redistricting Commission by the Ohio Supreme Court in January 2022. See League of Women

Voters of Ohio v. Ohio Redistricting Comm., 2022-Ohio-65, ¶ 138.

The Redistricting Commission then met and adopted the Second Plan on January 22, 2022.

The Second Plan also used the most recent federal census data. (ECF No. 8-2, First Amend.

Compl., Exhibit B). Still, in February 2022, the Ohio Supreme Court sustained objections relating

to the Redistricting Commission’s Second Plan. See League of Women Voters of Ohio v. Ohio

Redistricting Comm., 2022-Ohio-342, ¶ 67.

C. The Redistricting Commission adopts the Third Plan and Secretary of State
LaRose implements it.

The Redistricting Commission then convened to create a Third Plan, which passed by a 4-

3 vote. (Plaintiffs’ Proposed First Supplemental Complaint (“First Supp. Compl.”), ECF No. 75-

1, ¶ 56). The Third Plan accounts for Ohio’s population changes. (First Supp. Compl., Exhibit C,

ECF No. 75-2, PageID # 1089). Ohio’s population on April 1, 2020, was 11,799,488, meaning the

target population for each Ohio House district is 119,186. (Id., PageID # 1092). The chart

accompanying the Third Plan shows that the population of each House District is no more than 5%

above or below the target population. The same is true for each Ohio Senate District. (Id., PageID

# 1095).

Because the Third Plan satisfied the requirements of the U.S. Constitution and the Ohio

Constitution, and anticipating no more delay, Secretary of State LaRose began implementing the

Third Plan shortly after it was adopted. (First Supp. Compl., Exhibit D, ECF No. 75-2, PageID #

1098). This included a set of revised deadlines to comply with Ohio law and generally avoid

election chaos by setting candidate petitions for March 14 and candidate protests for March 17.

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(Id., PageID # 1101). This, along with a “little divine blessing,” would allow the primary election

to go forward on May 3, 2022. (Id., PageID # 1098). The Secretary of State cannot move the date

of the primary election.

D. The Third Plan speeds forward.

The Secretary of State ordered the county boards of election to move forward with the

Third Plan on February 26. (First Supp. Compl., Exhibit D, ECF No. 75-2, PageID # 1098). But

on March 16, more than two weeks later, the Ohio Supreme Court invalidated the Third Plan. (Id.,

¶ 66). However, it is too late for Secretary of State LaRose to implement an unknown “Fourth

Plan” and still have an election ready for the May 3 primary. (LaRose Notice, ECF No. 71).

Should Secretary of State LaRose deviate from the Third Plan, it will cause even more

election chaos. (Affidavit of Michael Gonidakis (“Gonidakis Aff.”), Exhibit 1, ¶ 7). Mr.

Gonidakis, for example, typically participates in the state legislative election process, including

leaning about candidates, supporting candidates, and associating with like-minded voters (Id.). He

did so during the most recent election for state legislative officer. (Id., ¶ 8). Despite the confusion

posed by the adoption and then rejection of the First Plan and the Second Plan, Mr. Gonidakis

started engaging in his usual election activity for the Third Plan, such as supporting candidates.

(Id., ¶ 9). Any change from the Third Plan would undo all of Mr. Gonidakis’ election efforts so

far, and could even deny him the right to vote. (Id., ¶ 12). A change from the Third Plan could also

force local boards to revert back to the old districts (i.e., the 2010 statewide legislative districts);

however, the old districts fail to account for Ohio’s population changes. Mr. Gonidakis, for

example, lives in political subdivisions that have grown by more than double-digits percentage

points in the last ten years while other parts of Ohio have lost population, meaning his vote would

be worth less than other Ohioans. (Id., ¶ 14–15).

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Should Secretary LaRose deviate from the Third Plan, then it could also make for less

competitive elections. (Affidavit of Dr. Michael Barber (“Dr. Barber Aff.”, Exhibit 2). Election

expert Dr. Michael Barber analyzed the Third Plan and found that it generally meets

proportionality requirements. (Report of Dr. Barber, Exhibit 2, p. 2). The last ten years of statewide

election results yielded a ratio of roughly 54% Republican and 46% Democratic, and the Third

Plan nearly mirrors that ratio for the Ohio House of Representatives and the Ohio Senate, and does

so better than other plans considered. (Id.). This is a significant achievement considering that

Ohio’s Democrats are clustered together in urban areas, making it difficult to create districts that

are proportional yet compact. (See Affidavit of Sean Trende, Exhibit 3).

E. This litigation.

Four weeks ago, Plaintiffs asked for the adoption of the most recent plan approved by the

Redistricting Commission, and moved for a preliminary injunction for that relief. (ECF Nos. 1, 2).

But the case stalled. Now, with election chaos growing ever greater, Plaintiffs now move for

temporary restraining order so that Secretary LaRose maintains his efforts implementing the Third

Plan until Plaintiffs’ motion may be resolved. (ECF Nos. 10, 72).

II. STANDARD OF REVIEW

As this Court knows, in adjudicating a temporary restraining order this Court must balance

four factors: “(1) plaintiff is likely to succeed on the merits; (2) the chance that plaintiff would

suffer irreparable injury without immediate injunctive relief; (3) the possibility of harm to others;

and (4) the public interest.” Women’s Med. Prof’l Corp. v. Baird, No. 03-CV-162, 2008 U.S. Dist.

LEXIS 128327, at *3 (S.D. Ohio Feb. 27, 2008) (Marbley, J.) (citing Chabad of S. Oh. &

Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004)). Because the

purpose of temporary restraining order is to prevent harm before a hearing can be held for a

preliminary injunction, courts may also focus on the irreparability and the immediacy of the harm.

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Miller v. Ohio Civil Rights Comm’n, No. 2:21-cv-03973, 2022 U.S. Dist. LEXIS 11939, at *8

(S.D. Ohio Jan. 24, 2022) (Marbley, J.) (citation omitted).

Plaintiffs are likely to succeed on the merits, and will suffer irreparable and immediate

harm if the work implementing the Third Plan is halted, so this Court should maintain the status

quo until a preliminary injunction hearing may be held.

III. LAW AND ARGUMENT

Because Plaintiffs’ will suffer irreparable and immediate harm if the work on the Third

Plan halts, as their constitutional right to vote will have been violated, this Court must maintain

the Third Plan until a hearing on Plaintiffs’ preliminary injunction may be held.

A. Plaintiffs’ risk immediate harm without this Court’s intervention.

With an eye towards the May 3, 2022, primary, Plaintiffs moved for a preliminary

injunction in mid-February. (ECF Nos. 1, 2). But since Plaintiffs moved a month ago, their risk of

harm has grown imminent.

First, Plaintiffs currently effectively have voting districts under the Third Plan. (LaRose

Notice, ECF No. 71; First Supp. Compl., Exhibit D). That is because Secretary LaRose instructed

county boards of election to begin implementing the Third Plan. It now appears, however, that

Secretary LaRose may be prepared to stop that implementation. (See ECF No. 76). Indeed,

Secretary LaRose’s most recent filing suggests he may be in the process of telling county boards

of election not to implement the Third Plan. (Id., PageID # 1108). This could happen at any time,

and would strip Plaintiffs’ voting rights away. Because Secretary LaRose could eliminate

Plaintiffs’ state legislative districts at any time, Plaintiffs face imminent constitutional harm.

Second, Plaintiffs have already started engaging in their election activity under the Third

Plan. (Gonidakis Aff., ¶ 7). Mr. Gonidakis, for example started engaging in his usual election

activity for the Third Plan, such as supporting candidates. (Id., ¶ 9). Any change from the Third

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Plan would undo all of Mr. Gonidakis’ election efforts so far, and could even deny him the right

to vote. (Id., ¶ 12).

Third, this Thursday is the last day for candidates to change residence for senators and

representatives. See Ohio Constitution, Article XI, Section 9(C). This deadline combined with

Secretary LaRose’s suggestion that he may pause or stop the implementation of the Third Plan

means that there is imminent risk of harm to Plaintiffs.

Fourth, the risk is imminent because it is ongoing. The back-and-forth between the

Redistricting Commission and Ohio Supreme Court continues to grant and deny Plaintiffs’ right

to vote as well as their right to engage the election process (i.e., associate with candidates and like-

minded voters). This back-and-forth happened to Plaintiffs a third time on March 16, 2022, and

with the Redistricting Commission starting to convene again, it is likely to occur a fourth time

upon the Ohio Supreme Court’s review. Plaintiffs know this to be the case because it has happened

three times before.

B. Plaintiffs are likely to succeed on the merits because their right to vote and right
to associate has been denied.

Without the Third Plan Plaintiffs’ right to vote will be violated, so Plaintiffs are therefore

likely to succeed on the merits.

1. Without the Third Plan, no state legislative districts exist so Plaintiffs

cannot vote in violation of the U.S. Constitution.

Should Secretary LaRose cease implementing the Third Plan, there would be a complete

lack of legislative districts in violation of the U.S. Constitution. The right to vote is a fundamental

right, and the Equal Protection Clause and the Substantive Due Process Clause prohibit blanket

disenfranchisement. George v. Hargett, 879 F.3d 711, 727 (6th Cir. 2018) (citing Warf v. Bd. of

Elections of Green Cty., 619 F.3d 553, 559 (6th Cir. 2010)); see also, League of Women Voters v.

Brunner, 548 F.3d 463, 478 (6th Cir. 2008). In these instances, “federal court intervention may be

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appropriate” to avoid an unfair election. Brunner, 548 F.3d at 478 (citing Griffin v. Burns, 570

F.2d 1065, 1078-79 (1st Cir. 1971)).

Here, this Court should maintain the Third Plan or Plaintiffs will be without legislative

districts to vote. (See Gonidakis Aff., Exhibit A). Secretary of State LaRose began moving forward

with the Third Plan in February shortly after it was adopted. (First Supp. Compl., Exhibit D). This

included directing the local boards of election to begin implementation. (ECF No. 71, PageID #

1038). Should this work be undone, then it would be mean that Plaintiffs would not have districts

to vote in or candidates to vote for: Plaintiffs’ voting power would be diluted to zero. This sort of

blanket disenfranchisement would violate the U.S. Constitution fundamentally.

2. Alternatively, the state legislative districts are based on the 2010 census, so
they are now malapportioned in violation of the U.S. Constitution.

The Third Plan should also be maintained because using the old legislative districts is not

an option. See, Evenwel v. Abbott, 578 U.S. 54, 59, 136 S. Ct. 1120, 1124 (2016). As the U.S.

Supreme Court recently explained, when drawing state legislative districts, the maximum

population deviation between the largest and smallest districts is 10%. Id. (citing Brown v.

Thomson, 462 U.S. 835, 842-843, 103 S. Ct. 2690, 77 L. Ed. 2d 214 (1983)). In fact, “[m]aximum

deviations above 10% are presumptively impermissible.” Id. Such deviations violate the Equal

Protection Clause of the U.S. Constitution. Id. (citing Reynolds v. Sims, 377 U.S. 533, 568, 84 S.

Ct. 1362, 12 L. Ed. 2d 506 (1964)); see also, Kopald v. Carr, 343 F. Supp. 51, 52 (M.D. Tenn.

1972).

Here, the population in Plaintiffs’ state legislative districts are more than 10% above the

least populous state legislative districts, in violation of the Equal Protection Clause, so this Court

should adopt the Second Plan. Plaintiffs’ house and senate districts are based on based on 2010

decennial census. (See First Supp. Compl., ECF No. 75-1, ¶¶ 69–72). Mr. Gonidakis, Ms.

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Vanderkooi, and Ms. Smith live in Franklin County, which has gained more than 150,000 people

since the last census, and their respective cities have experienced more than 10% in population

gains. (Id.). Mr. Gonidakis specifically lives in Dublin, Ohio, which has grown in population by

more than 20%, so his legislative districts are malapportioned. (Gonidakis Aff., ¶ 6).

Because Ohio’s population has changed, so too has the population in the state legislative

districts. Double-digit growth in some areas and population losses in others means that the state

legislative districts cannot be within 5% of the target population for a state legislative district. (Id.,

¶ 62). As a result, Plaintiffs’ districts, including House Districts 18, 19, 21, 52, 62, 68, 70, and 90

and Senate Districts 3, 4, 7, 14, 15, 16, 19, and 22, dilute their vote in violation of the “one-person,

one-vote” requirement.

3. Plaintiffs cannot freely associate with others in their district in violation of

the U.S. Constitution.

This Court should maintain the Third Plan so Plaintiffs may freely associate. “The rights

of political association and free speech occupy a similarly hallowed place in the constitutional

pantheon.” Graveline v. Benson, 992 F.3d 524, 535 (6th Cir. 2021) (citation omitted). Though the

right to politically associate is not absolute, a severe restriction must be narrowly drawn to advance

a state interest of compelling importance. Kishore v. Whitmer, 972 F.3d 745, 749 (6th Cir. 2020)

(citation omitted).

Here, should this Court allow the Third Plan to lapse, then Plaintiffs cannot associate with

members of their state legislative districts in violation of the U.S. Constitution. Mr. Gonidakis, for

example, has historically learned about his candidates, supported candidates, and associated with

like-minded voters. (Gonidakis Aff., ¶ 7). He has started to do so under the Third Plan. (Id., ¶ 9).

Should this Court allow the Third Plan to be undone, then so will Mr. Gonidakis’ work as well as

First Amendment rights. (Id.). Moreover, this severe restriction has no compelling interest of state

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importance. Indeed, Plaintiffs’ fundamental rights appear to be burdened for no reason at all.

Accordingly, Plaintiffs’ right to associate and engage in political discourse has been violated, and

this Court should intervene.

4. Without the Third Plan, Plaintiffs’ voting rights risk arbitrary denial.

This Court should maintain the Third Plan because the Ohio Supreme Court’s evolving

standards violate the U.S. Constitution. The Due Process Clause of the Fourteenth Amendment to

the Constitution states that no State shall “deprive any person of life, liberty, or property, without

due process of law[.]” U.S. Const. Amend XIV, § 1. It “imposes on the States the standards

necessary to ensure that judicial proceedings are fundamentally fair,” Lassiter v. Dep’t of Soc.

Servs., 452 U.S. 18, 33 (1981), requiring that litigants receive “notice and opportunity for hearing

appropriate to the nature of the case,” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

313 (1950) (emphasis added). This procedural fairness requirement applies to state courts. See

Reich, 513 U.S. at 110–14; Bouie v. City of Columbia, 378 U.S. 347, 354–55 (1964); Saunders,

v. Shaw, 244 U.S. 317, 319–20 (1917).

The U.S. Supreme Court has repeatedly recognized that a state supreme court cannot give

“retroactive effect” to an “unforeseeable” decision, if the application of that decision would deny

“a litigant a [fair] hearing.” Bouie, 378 U.S. at 354–55; Reich, 513 U.S. at 110–14; Saunders, 244

U.S. at 319–20. In Saunders, a defendant won a judgment in a state trial court after that court

concluded that the plaintiff’s factual claim “was not open to the plaintiff” under then-existing law.

244 U.S. at 319–20. The state supreme court reversed, resting its opinion on a case decided after

the trial court’s judgment, thus making the plaintiff’s factual claim legally available to him. But

what the state supreme court did not do was remand the action to the trial court to afford the

defendant “the proper opportunity to present his evidence” on that now-relevant factual claim. Id.

at 319. Unsurprisingly, the Supreme Court of the United States reversed, holding that it is “contrary
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to the 14th Amendment” for a state supreme court to reverse the favorable judgment obtained by

a defendant based on the application of a new judicial decision without also remanding to give the

defendant “a chance to put his evidence in” to respond to that new decision—at least where the

defendant never “had the proper opportunity to present his evidence” before. Id.

Similarly, in Reich, a plaintiff sought a tax refund for retirement payments paid by the

federal government after his military service. 513 U.S. at 108. The Supreme Court of the United

States had declared state laws that exempted from taxation retirement benefits paid by the State,

but not by the federal government unconstitutional, and Georgia repealed its version that statute.

Id. The plaintiff sued to recoup those taxes paid on his federal benefits under that repealed statute,

but the Georgia Supreme Court first opined that its “refund statute [did] not [] apply to the situation

where the law under which the taxes are assessed and collected is itself subsequently declared to

be unconstitutional or otherwise invalid.” Id. at 109 (citation omitted).

The U.S. Supreme Court remanded for reconsideration in light of an intervening decision

in Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993). Instead of considering the

intervening opinion, the Georgia Supreme Court denied the plaintiff’s tax-refund request by

claiming, for the first time, that its own predeprivation state-law remedies sufficed to remedy any

Due Process Clause violation, even though previously the State also offered postdeprivation

remedies. Reich, 513 U.S. at 110. This was an entirely different explanation than the Georgia court

offered in its first opinion. On appeal, the U.S. Supreme Court explained that this was exactly

“what a State may not do . . . reconfigur[ing] its scheme, unfairly, in midcourse—to ‘bait and

switch’” the plaintiff. Id. at 111. The Georgia Supreme Court’s reliance on predeprivation

procedures, this Court held, “was entirely beside the point” because “no reasonable taxpayer would

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have thought that they represented . . . the exclusive remedy for unlawful taxes.” Id. (emphasis

omitted).

This Court should maintain the Third Plan because the Plaintiffs’ voting rights could be

arbitrarily denied. In its decision invalidating the original legislative plan, the Ohio Supreme Court

held that the plan was unconstitutional for failing to “closely correspond” to the Ohio statewide

voter preference of 54% Republican to 46% Democrat. League of Women Voters of Ohio v. Ohio

Redistricting Comm., Slip Opinion No. 2022-Ohio-65, ¶ 88. In response, the Redistricting

Commission enacted the first remedial plan with the goal of closely corresponding to the 54-46

ratio. See League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-

Ohio-342, ¶ 97 (Kennedy and DeWine, JJ., dissenting). The Court shortly thereafter invalidated

the first remedial plan; apparently “closely correspond” meant “exactly.” League of Women Voters

of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-342,¶ 63–64. Now required to

draw an exact 54-46 plan, the Redistricting Commission again met the Ohio Supreme Court’s new

criteria and enacted a second revised plan with five (5) more democratic leaning state House

districts and two (2) more democratic leaning state Senate districts, representing a perfect

statewide proportionality of 54 to 46%. League of Women Voters of Ohio v. Ohio Redistricting

Comm., Slip Opinion No. 2022-Ohio-789, ¶ 84 (Kennedy and DeWine, JJ., dissenting). Yet again,

the Court invalidated the plan after arbitrarily creating a new formula that assessed individual

districts, instead of the plan as a whole. Id. at ¶ 85.

The Ohio Supreme Court’s untenable one-upmanship is also seen in the Court’s shifting

definition of a competitive district. In LWV I, the Court merely required the first remedial map to

meet the 54-46 “statewide proportion of Republican-leaning districts to Democratic-leaning

districts.” League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-

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Ohio-65, ¶ 86. When the Redistricting Commission met this standard in the first revised plan, the

Court cried foul and for the first time held that labeling 50-51% Democratic-leaning districts as

competitive was “absurd on its face.” League of Women Voters of Ohio v. Ohio Redistricting

Comm., Slip Opinion No. 2022-Ohio-342, at ¶ 61. The Commission then enacted a second revised

plan that “reduced from 12 to five the number of seats favoring Democrats by less than 51 percent.”

League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-789,

¶ 87 (Kennedy and DeWine, JJ., dissenting). Yet again, the Court invalidated the plan after

arbitrarily deciding that “even districts in which Democrats have a 2 percent advantage do not

count as districts that ‘“favor” [the Democratic] party.’” Id. at ¶ 88 (citing majority opinion at ¶

41).

The Ohio Supreme Court’s three decisions further conflict in their analysis of expert reports

and statistical measures by creating, then ignoring, benchmarks for what might be constitutional.

Id. at ¶¶ 94–102.The end result sought by the Ohio Supreme Court is unknown to all. But the

current result is “electoral chaos for Ohioans,” id. at ¶ 59, created at the expense of Plaintiffs’ Due

Process rights.

C. Because fundamental rights would otherwise be denied, the remaining

preliminary injunction factors favor maintaining the Third Plan.

As Plaintiffs’ fundamental rights risk being denied , the remaining preliminary injunction

factors favor this Court maintaining the Third Plan. No right is more fundamental than the right to

vote. The United States Supreme Court has repeatedly held that the U.S. Constitution undeniably

protects the “right of all qualified citizens to vote, in state and federal elections” and, furthermore:

A consistent line of decisions by this Court in cases involving attempts to deny or

restrict the right of suffrage has made this indelibly clear. It has been repeatedly
recognized that all qualified voters have a constitutionally protected right to vote,
Ex parte Yarbrough, 110 U.S. 651, and to have their votes counted, United States
v. Mosley, 238 U.S. 383. In Mosley the Court stated that it is ‘as equally

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unquestionable that the right to have one's vote counted is as open to protection . .
. as the right to put a ballot in a box.’ 238 U.S., at 386.

Reynolds v. Sims, 377 U.S. 533, 554-555, 84 S. Ct. 1362, 1377-1378, 12 L. Ed. 2d 506, 523-524,

(1964). This includes the right to not have votes diluted or discarded. Id. at 555 (“the right of

suffrage can be denied by a debasement or dilution of the weight of a citizens vote just as

effectively as by wholly prohibiting the free exercise of the franchise.”); see, Baker v. Carr, 369

U.S. 186, 206 (1962) (finding voters who allege facts showing disadvantage to themselves have

standing to sue.).

Because the right to vote is so fundamental, district courts may maintain a map to fix a

constitutional violation. See Rucho v. Common Cause, 139 S. Ct. 2484, 2495 (2019). Indeed, “there

is a role for the courts” to resolve one-person, one-vote and other violations. Id. (citations

committed); see, e.g., Kopald v. Carr, 343 F. Supp. 51, 52 (M.D. Tenn. 1972). In Kopald, multiple

plans were proposed by the legislative authority, including one with a population variance of 21%.

Id. In response, the court adopted a modified plan that reduced the variance to 4% and maintained

jurisdiction for one election cycle. Id. at 54 (citing Ely v. Klahr, 403 U.S. 108, 91 S. Ct. 1803, 29

L. Ed. 2d 352 (1971)); see also, McConchie v. Scholz, No. 21-cv-3091, 2021 U.S. Dist. LEXIS

201160, at *67 (N.D. Ill. Oct. 19, 2021) (ordering submission of proposed map to be considered

by the court following Equal Protection Clause violation). Therefore, a court may modify state

legislative cycles so that it complies with one-person, one-vote for at least one election cycle.

Here, this Court should maintain the Third Plan so that Plaintiffs’ constitutional rights are

no longer violated. Unlike this Court, the Ohio Supreme Court cannot intervene. It is prohibited

by the Ohio Constitution from adopting a plan. See Ohio Constitution, Article XI, Section 9(D).

Because the Redistricting Commission declared an impasse, without this Court’s intervention,

Plaintiffs’ vote will be diluted by using the 2010 state legislative districts or otherwise denied.

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Given Plaintiffs’ constitutional right to vote (and an equal right to have their votes not

diluted or discarded), Plaintiffs suffer irreparable harm if the 2010 legislative district maps are

used because they live in districts where the population increased, which, in turn, dilutes their

voting power. Alternatively, if Ohio has no maps at all, Plaintiffs have no ability to vote, and no

election occurs. Maintaining the Third Plan eliminates Plaintiffs’ irreparable harm.

Maintaining the Third Plan would not harm third parties. And unless this Court adopts the

Third Plan, the 2022 election cycle will continue to stall, creating greater election chaos.

Lastly, the public interest favors maintaining the Third Plan because the public has interest

in voting—either in undiluted districts or at all. Moreover, the validity of statewide elections

strikes at the heart of America’s representative democracy.

Thus, in addition to Plaintiffs establishing that they have a strong likelihood of success on

the merits, the remaining injunctive factors favor Plaintiffs, and this Court should order Secretary

LaRose to keep implementing the Third Plan until Plaintiff’s preliminary injunction motion is

decided.

D. This Court has the power to protect Plaintiffs from unconstitutional state actors
by ordering the Third Plan.

This Court may order the Third Plan even though it was rejected by the Ohio Supreme

Court. State court decisions and state constitutions must yield to the U.S. Constitution. The whole

purpose of 42 U.S.C. § 1983 is to protect people from unconstitutional action under color of state

law “whether that action be executive, legislative, or judicial.” Mitchum v. Foster, 407 U.S. 225,

242, 92 S. Ct. 2151, 2162 (1972) (citation omitted). For example, it is 42 U.S.C. § 1983 that

allowed the U.S. Supreme Court to overcome the Alabama Constitution to protect voting rights

under the Equal Protection Clause. Reynolds v. Sims, 377 U.S. 533, 537, 84 S. Ct. 1362, 1369

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(1964). Indeed, the “purpose of § 1983 was to interpose the federal courts between the States and

the people . . . .” Mitchum, 407 U.S. at 242.

Here, Plaintiffs do not seek challenge the constitutionality of the Redistricting

Commission. Instead, Plaintiffs ask for a remedy, the Third Plan, that the Ohio Supreme Court

found violates the Ohio Constitution. The Bennett Petitioners have argued that this is a

“nonstarter.” (ECF No. 78, PageID # 115). Yet the U.S. Supreme Court provided a similar remedy

in Reynolds, expressly overcoming the Alabama Constitution. See also McDaniel v. Patty, 435

U.S. 618 (1978).

Therefore, to protect rights guaranteed by the U.S. Constitution, this Court may order the

Third Plan even though the Ohio Supreme Court believes it may be contrary to state law. This is

particularly true because of the back-and-forth between the Ohio Supreme Court and the

Redistricting Commission and the resulting ongoing harm incurred by Plaintiffs and voters

statewide as a result of that back-and-forth. Espinoza v. Montana Dept. of Revenue, 140 S.Ct.

2246 (2020) (discussing as-applied constitutional challenge to Montana Constitution).

There are other advantages to using the Third Plan instead of this Court drawing its own

plan. First, Secretary LaRose has already started implementing the Third Plan, unlike a plan a

federal court would draw, which would require significant state resources. Second, the

Redistricting Commission is made up of seven elected officials who can be held accountable by

voters, unlike federal judges. Third, these elected officials made difficult policy decisions based

on the inherent geographic challenges of a Democratic voter-base that coalesces inside just a few

political subdivisions. These policy decisions are best left to elected officials rather than federal

judges.

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Ultimately, deferring to one of the three plans adopted by Redistricting Commission more

closely aligns with Ohio law, in process and in substance, than this Court creating and ordering an

unknown “fourth plan.”

IV. CONCLUSION

For all these reasons, Plaintiffs respectfully request that this Court require that Secretary of

State Frank LaRose maintain the Third Plan until Plaintiffs’ preliminary injunction motion can be

heard.

Respectfully submitted,

Isaac Wiles & Burkholder LLC

/s/ Donald C. Brey

Donald C. Brey (0021965)
Brian M. Zets (0066544)
Matthew R. Aumann (0093612)
Ryan C. Spitzer (0093515)
Trista M. Turley (0093939)
Two Miranova Place, Suite 700
Columbus, Ohio 43215
Tel: 614-221-2121; Fax: 614-365-9516
dbrey@isaacwiles.com
bzets@isaacwiles.com
maumann@isaacwiles.com
rspitzer@isaacwiles.com
tturley@isaacwiles.com

Attorneys for Plaintiffs Michael Gonidakis,

Mary Parker, Margaret Conditt, Beth Ann
Vanderkooi, Linda Smith, Delbert Duduit,
Thomas W. Kidd, Jr., and Ducia Hamm

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CERTIFICATE OF SERVICE

I hereby certify that on March 21, 2022, a copy of the foregoing was filed electronically.

Notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

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

/s/Donald C. Brey
Donald C. Brey (0021965)

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