Challenging Partisan Gerrymandering

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.

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Chapter Six