The Case of Miller v. State of Ohio
David L. Horn
On November 18, 1994, Clarence E.
Miller -- a conservative Republican who served in Congress over 26 years -- and eight
co-plaintiffs filed suit in U.S. District Court for the Southern District of Ohio
challenging the constitutionality of the congressional districting plan enacted by Ohio in
1992 and under which the state's 1992 and 1994 congressional elections have been held.
The eight co-plaintiffs, bipartisan and
biracial, consisted of six congressional candidates who had unsuccessfully challenged
incumbents, an independent voter and the Libertarian Party of Ohio. If successful in its
allegations, this suit could have the most far-reaching consequences of any districting
litigation since Baker v. Carr -- the 1962 case which led to the
"one-person-one-vote" doctrine mandating population equality among political
districts of all kinds.
Commentators have said that Baker v.
Carr started "the reapportionment revolution" but that it remains unfinished
because the courts have, so far, failed to end gerrymandering, a practice Justice Byron
White once called "a far greater potential threat to equality of representation"
than lack of precise population equality (Wells v. Rockefeller). Miller alleges
five constitutional (and one statutory) violations. If victorious on grounds of its
claimed "neutrality principle," it would finish the "revolution" by
abolishing gerrymandering of all kinds, and at all levels of government.
This suit is unique in several respects:
it is the first suit ever to challenge bipartisan gerrymandering; it is the first
anti-gerrymandering suit to request, as the remedy, that the state be compelled to
promulgate an impartial procedure for drawing districts; it is the first such suit
to propose proportional representation systems as a possible component of that remedy; it
is the first such suit wherein the legislature had presented to it, early in its
deliberations, impartially-drawn alternative districting plans of precise population
equality (which it ignored); and it is the first such suit in which at least one of the
plan's authors freely admitted much of its discriminatory purpose.
Previous suits challenging gerrymandering
have either alleged other, narrower grounds upon which the courts could rule, thus ducking
the issue (Wells v. Rockefeller); have alleged gerrymandering only peripherally (Gaffney
v. Cummings); or have attacked only partisan gerrymandering (Bandemer v.
Davis, Badham v. Eu, Republican Party of Virginia v. Wilder).
Although it succeeded in getting the
Supreme Court, for the first time, to rule that partisan gerrymandering was justiciable, Bandemer
ultimately lost because the plaintiffs failed to prove that the discriminatory effect upon
them was of sufficient magnitude. Badham failed because the district court bought
the defendants' argument that gerrymandering was justiciable only in cases where
plaintiffs had suffered historic oppression. Both Bandemer and Badham
alleged violation of group rights.
Targeted for Defeat
Although it includes allegations of
violating group rights, Miller primarily alleges violation of the individual rights
of incumbent and challenger plaintiffs who charge that the state's plan was specifically
designed to bring about their defeat (in the case of Miller); or to facilitate the
election of their incumbent opponents (in the cases of three Republican and three
Democratic challenger-plaintiffs) by a "sweetheart" deal among the power brokers
in the statehouse.
Previous anti-gerrymandering suits have
invited the courts to enter a quagmire, either by requesting no specific remedy (Bandemer)
or by asking the courts to draw a new plan themselves (Badham). The courts have
declined such invitations. In Miller, plaintiffs ask the court to give the state of
Ohio a specified period of time to promulgate a neutral procedure for drawing new
congressional districts.
If the state fails to do so, then the
court is asked to promulgate such a procedure itself. As an example of such a procedure,
the court's attention is drawn to HJR 2, the "Ohio Anti-Gerrymander Amendment,"
which has been introduced in the Ohio House nine times since 1978 by sponsors from both
major parties and stonewalled (until 1994) by the house leadership. The sponsor the last
six times has been Republican legislator Joan W. Lawrence.
Neutral districting procedures have been
developed in other states besides Ohio. They include a New York proposal associated with
long-time districting reformer and expert David I. Wells, an Indiana procedure developed
by districting reformer and expert Norman S. Primus and a California procedure
("A.C.T.I.O.N.") developed by districting reformers/experts Leroy C. Hardy and
Alan Heslop.
These neutral procedures are applicable
not only to the drawing of single-member districts. They could just as well be used to
draw multi-member districts within which cumulative or preference voting could be
employed. (Use of multi-member districts does not obviate the necessity for a neutral
districting procedure. If districting is discretionary, multi-member districts can be
drawn to advantage certain candidates -- and disadvantage others.)
These options are mentioned in the suit's
prayer, which does not attempt to dictate a particular remedy but rather let the Ohio
General Assembly exercise its prerogative of choosing what remedy to employ in fulfilling
the constitutional imperative to district impartially.
Legislature Heard Testimony on Neutral Plans
I presented five impartially-drawn
alternative districting plans to the appropriate Ohio house and senate committees during
their initial hearings on new congressional districting legislation. The five basic plans
were: two by me; one by College of Wooster mathematician Charles R. Hampton (who served as
a districting consultant/expert to California Governor Pete Wilson in 1991); one by
Indiana civil engineer and districting expert Larry G. Holderly (whose plan for city
councilmanic districts in Terre Haute was adopted by a federal court in late 1993); and
one by civil servant John Lucid of Columbus, Ohio.
All five plans were drawn to achieve a
population variance of plus or minus 1 percent. The Horn, Hampton, and Holderly plans were
drawn to achieve absolute population equality, as well.
All these "citizen" plans split
fewer local governmental units, and all achieved a much higher degree of compactness than
the plan passed by the legislature. I prepared an extensive physical and political
analysis of these plans, as well as the plan under litigation.
The legal argument that, if successful,
would make Miller v. Ohio as revolutionary as Baker v. Carr was made by
Arthur Eisenberg in the amicus brief submitted to the Supreme Court by the American
Civil Liberties Union in Davis v. Bandemer. Eisenberg argues that there is embedded
in the First and Fourteenth Amendments a "neutrality principle" whereby the role
of the state in all aspects of the electoral process must be that of neutral referee. He
cites a string of cases (including Anderson v. Celebrezze) that have made this
principle settled law in other aspects of the electoral process.
Plaintiffs will argue that the development
of neutral districting procedures in recent years renders obsolete Justice White's words
in Gaffney regarding "the impossible task of extirpating politics from
[districting]" and that it is now very possible to finally extend the neutrality
principle to districting -- and abolish gerrymandering.
Plaintiffs are represented by Philadelphia
attorney David V. Stivison, who grew up and went to college at Ohio University in
Congressman Miller's Appalachian Ohio district. Stivison's co-counsel is CV&D advisory
board chair John B. Anderson. Horn, Wells, ACLU volunteer attorneys in Ohio and CV&D
director Rob Richie advised in the drafting of the complaint. Eisenberg has offered to
help.
The three judge panel that will consider
the case consists of District Judges George C. Smith and Walter H. Rice; plus Sixth
Circuit Judge Alan Norris. Defendants responded to the complaint in February 1995 with a
motion to dismiss. Plaintiffs answered on March 21, and defendants filed a rebuttal on
April 4 requesting oral argument on the motion to dismiss. The oral argument has now been
scheduled for August 29 before the panel.
Ohio Senate President Stanley Aronoff, one
of the principal defendants, has said that the now Republican-controlled Ohio General
Assembly will render moot the Miller suit by passing a new congressional
districting plan in 1995, but that plans had not surfaced as of June 1995. Stivison says
the harm suffered by his clients will not be undone by a new districting plan. The only
acceptable remedy is to prevent similar harm being done to others forever in the future.
The stage is set.
David L. Horn is director of the Ohio
non-profit Center for Research into Government Processes, Inc. and a member of the Center
for Voting and Democracy. For information, contact C.R.G.P at 5975 Marshfield Road, New
Marshfield, OH 45766.