[Cite as Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367.]




                   WILSON ET AL. v. KASICH, GOVERNOR, ET AL.
        [Cite as Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367.]
Apportionment—The Ohio Constitution does not mandate political neutrality in
        the    reapportionment       of    house     and     senate   districts—Partisan
        considerations cannot prevail over the nonpartisan requirements set forth
        in Article XI—One challenging the constitutionality of an apportionment
        plan must establish that the plan is unconstitutional beyond a reasonable
        doubt—The Ohio Constitution, Article XI, Section 7(D) is coequal with
        Article XI, Sections 7(A), (B), and (C).
   (No. 2012-0019—Submitted April 24, 2012—Decided November 27, 2012.)
  ORIGINAL ACTION filed pursuant to Ohio Constitution, Article XI, Section 13.
                                 __________________
                               SYLLABUS OF THE COURT
1. The Ohio Constitution does not mandate political neutrality in the
        reapportionment of house and senate districts, but partisan considerations
        cannot prevail over the nonpartisan requirements set forth in Article XI.
2. The burden of proof on one challenging the constitutionality of an
        apportionment plan is to establish that the plan is unconstitutional beyond
        a reasonable doubt.       In the absence of evidence to the contrary, we
        presume that the apportionment board properly performed its duties in a
        lawful manner. (State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506,
        2008-Ohio-6333, 900 N.E.2d 982, ¶ 51, and State ex rel. Speeth v. Carney,
        163 Ohio St. 159, 186, 126 N.E.2d 449 (1955), applied).
3. When coequal provisions of Article XI of the Ohio Constitution are
        irreconcilable, the apportionment board has the duty to choose the proper
        course, and this court will not order it to correct one constitutional
                             SUPREME COURT OF OHIO




       violation by committing another. (Voinovich v. Ferguson, 63 Ohio St.3d
       198, 586 N.E.2d 1020 (1992), followed.)
4. The Ohio Constitution, Article XI, Section 7(D) is coequal with Article XI,
       Sections 7(A), (B), and (C), and the court will not order the apportionment
       board to correct a violation of Sections 7(A), (B), and (C) by violating
       Section 7(D).
                               __________________
       O’DONNELL, J.
       {¶ 1} The Ohio Constitution provides for an apportionment board
consisting of the “governor, auditor of state, secretary of state, one person chosen
by the speaker of the house of representatives and the leader in the senate of the
political party of which the speaker is a member, and one person chosen by the
legislative leaders in the two houses of the major political party of which the
speaker is not a member.” Ohio Constitution, Article XI, Section 1. It further
charges the board with the responsibility to draw the district boundaries, id., and
vests the Ohio Supreme Court with “exclusive, original jurisdiction in all cases
arising under this Article,” id. at Section 13. Apportionment is “primarily a
political and legislative process,” Gaffney v. Cummings, 412 U.S. 735, 749, 93
S.Ct. 2321, 37 L.Ed.2d 298 (1973), and as a result, both courts and scholars have
universally agreed that politics cannot be divorced from the process.
       {¶ 2} The issue we confront in this original action challenging the
decennial apportionment of districts in the General Assembly is whether the plan
adopted by the apportionment board complies with the Ohio Constitution, Article
XI, Sections 7 and 11.         Because relators failed to rebut the presumed
constitutionality accorded the 2011 apportionment plan by establishing that the
plan is unconstitutional beyond a reasonable doubt, we deny their request for
declaratory and injunctive relief.




                                         2
                                  January Term, 2012




                                          Facts
        {¶ 3} The 2011 Ohio Apportionment Board consisted of respondents,
Governor John Kasich, Auditor David Yost, Secretary of State Jon Husted, and
Senate President Thomas Niehuas, who are members of the Republican Party, and
House Minority Leader Armond Budish, a member of the Democratic Party. The
board has the constitutional authority to apportion the districts for members of the
General Assembly. Ohio Constitution, Article XI, Section 1.
        {¶ 4} The board’s joint secretaries prepared an apportionment plan and
submitted it to the board. On September 28, 2011, the board voted four to one to
approve an amended version of that plan, with the four Republican members of
the board voting in favor and the lone Democratic member voting in opposition.
On September 30, 2011, the board adopted another amendment to the secretaries’
plan and approved the final plan with a four-to-zero vote, with respondents all
voting in favor of the plan and the sole Democratic board member unable to
attend the meeting.
        {¶ 5} On January 4, 2012, relators, 36 electors living in various house
districts as reapportioned by the Ohio Apportionment Board, filed this action
under Article XI against respondents, four members of the apportionment board,
but did not designate Armond Budish, the House Minority Leader, as a party.
They primarily sought a declaration that the decennial apportionment plan
adopted by respondents is invalid under Article XI and the Open Meetings Act
and a prohibitory injunction preventing respondents from conducting elections
using the state legislative districts set forth in the plan.
        {¶ 6} Following the submission of responses, evidence, and briefs
pursuant to a court-ordered accelerated schedule, on February 17, 2012, we
dismissed relators’ open-meetings claim for lack of subject-matter jurisdiction
and denied relators’ Article XI claims based on laches insofar as they attempted to
challenge the use of the apportionment plan for the 2012 election cycle. Wilson v.



                                            3
                                SUPREME COURT OF OHIO




Kasich, 131 Ohio St.3d 249, 2012-Ohio-612, 963 N.E.2d 1282, ¶ 8 (O’Donnell,
J., dissenting in part) (urging that the court has an obligation to review
apportionment matters expeditiously and asserting that a piecemeal resolution
permitting electors to vote when the underlying apportionment is under
constitutional attack is ill-advised precedent). Relators’ remaining Article XI
claims are still pending. Id.
       {¶ 7} On March 2, 2012, we ordered the parties to file supplemental briefs
addressing the following questions and invited them to address any other issues
they deemed necessary:


                 1. Does the Supreme Court of Ohio have jurisdiction over
       this case when only four of the five members of the apportionment
       board have been named as respondents and the board has not been
       named as a party?
                 2. Does the Ohio Constitution mandate political neutrality
       in the reapportionment of house and senate districts?
                 3. What   is    relators’   burden   in   showing    that   a
       reapportionment plan is unconstitutional?
                 4. Does tension exist among sections 3, 7, and 10 of Article
       XI of the Ohio Constitution, and if so, how are these sections to be
       harmonized?
                 The parties are further permitted to address any other issues
       they deem necessary to this court’s review in the supplemental
       briefs.


131 Ohio St.3d 1468, 2012-Ohio-848, 962 N.E.2d 800.




                                             4
                               January Term, 2012




       {¶ 8} After the parties filed their supplemental briefs, we denied relators’
motion for leave to file an amended complaint to add Budish as a relator, 131
Ohio St.3d 1519, 2012-Ohio-1783, 965 N.E.2d 1002, and held oral argument.
       {¶ 9} This cause is now before the court for its consideration of relators’
remaining claims.
                                 Legal Analysis
                                   Jurisdiction
       {¶ 10} As the parties now agree, neither the apportionment board nor
board member Budish is a necessary and indispensable party to this action under
Civ.R. 19. We do note, however, that it remains better practice in this type of
action to name the board and all its members as parties. The Ohio Constitution,
Article XI, Section 13 specifies that this court “shall have exclusive, original
jurisdiction in all cases arising under this Article” and further notes that if any
apportionment plan “made by the persons responsible for apportionment, by a
majority of their number” is determined to be invalid by either this court or the
United States Supreme Court, “the persons responsible for apportionment by a
majority of their number” shall determine a new, constitutionally compliant plan;
see also Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992)
(court resolved declaratory-judgment action involving the constitutionality of an
apportionment plan in which the apportionment board was not one of the named
parties), and State ex rel. Lehman v. DiSalle, 173 Ohio St. 361, 182 N.E.2d 564
(1962) (court resolved mandamus action challenging state-senate apportionment
plan although board was not named a party).
       {¶ 11} Thus, the merits of relators’ remaining claims are properly before
us.
                               Political Neutrality
       {¶ 12} Pursuant to the Ohio Constitution, Article XI, Section 1, the five-
member apportionment board is responsible for the apportionment of the state for



                                        5
                             SUPREME COURT OF OHIO




members of the General Assembly. The board must establish the boundaries for
each of the 99 house districts and 33 senate districts every ten years. The method
of apportionment of the state for members of the General Assembly is determined
by using a ratio of representation, which is calculated by dividing the whole
population of the state, as determined by the federal decennial census, by 99 for
the house and by 33 for the senate. Ohio Constitution, Article XI, Section 2. The
population of each house and senate district must be substantially equal to the
applicable ratio of representation, and in no event shall any district contain a
population of less than 95 percent or more than 105 percent of the pertinent ratio.
Ohio Constitution, Article XI, Sections 3 and 4. Each house district is entitled to
a single representative, and each senate district is entitled to a single senator.
Ohio Constitution, Article XI, Section 5.
       {¶ 13} In assessing relators’ Article XI claims, we must initially determine
whether these provisions mandate political neutrality in the reapportionment
process. “ ‘Generally speaking, in construing the Constitution, we apply the same
rules of construction that we apply in construing statutes.’ ” Smith v. Leis, 106
Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 57, quoting State v. Jackson,
102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 14.                The court’s
paramount concern in statutory construction is the legislative intent in the
statute’s enactment, and to discern this intent, we read words and phrases in
context according to the rules of grammar and common usage. State ex rel.
Mager v. State Teachers Retirement Sys. of Ohio, 123 Ohio St.3d 195, 2009-
Ohio-4908, 915 N.E.2d 320, ¶ 14.            Consequently, our primary concern in
construing Article XI is to determine the intent of the electorate in adopting the
article, and to discern that intent, we must examine its text.
       {¶ 14} The words used in Article XI do not explicitly require political
neutrality, or for that matter, politically competitive districts or representational
fairness, in the apportionment board’s creation of state legislative districts.



                                            6
                                January Term, 2012




Unlike Ohio, some states specify in either constitutional or statutory language that
no apportionment plan shall be drawn with the intent of favoring or disfavoring a
political party. See In re Senate Joint Resolution of Legislative Apportionment
1176, 83 So.3d 597, 615 (Fla.2012), fn. 19, and the state constitutions and statutes
cited therein. Therefore, Article XI does not prevent the board from considering
partisan factors in its apportionment decision.
       {¶ 15} Nevertheless, as relators emphasize in their supplemental brief, and
as respondents acknowledge in their supplemental response brief, political
considerations cannot override the requirements of Article XI. Other states have
reached this same conclusion regarding redistricting in their states. See Holt v.
2011 Legislative Reapportionment Comm., 38 A.3d 711, 745 (Pa.2012) (“It is
true, of course, that redistricting has an inevitably legislative, and therefore an
inevitably political, element; but, the constitutional commands and restrictions on
the process exist precisely as a brake on the most overt of potential excesses and
abuse”); In re Reapportionment of the Colorado Gen. Assembly, __ P.3d __, 2011
WL 5830123, *3 (Colo.2011) (“Other nonconstitutional considerations, such as
the competitiveness of a district, are not per se illegal or improper; however, such
factors may be considered only after all constitutional criteria have been met”); In
re Legislative Districting of the State, 370 Md. 312, 370, 805 A.2d 292 (2002)
(“The constitution ‘trumps’ political considerations. Politics or non-constitutional
considerations never ‘trump’ constitutional requirements”).
       {¶ 16} Therefore, the Ohio Constitution does not mandate political
neutrality in the reapportionment of house and senate districts, but partisan
considerations cannot prevail over the requirements set forth in Article XI. As
long as the 2011 apportionment plan satisfied the constitutional requirements set
forth in Article XI, respondents were not precluded from considering political
factors in drafting it. See Davis v. Bandemer, 478 U.S. 109, 128, 106 S.Ct. 2797,
92 L.Ed.2d 85 (1986) (plurality opinion), quoting Gaffney v. Cummings, 412 U.S.



                                         7
                            SUPREME COURT OF OHIO




735, 752-753, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (“ ‘Politics and political
considerations are inseparable from districting and apportionment’ ”). And, here,
political factors were considered only after the applicable constitutional and other
legal requirements were met.
              Presumption of Constitutionality and Burden of Proof
       {¶ 17} In assessing the merits of relators’ claims, we defer to the
apportionment board’s reasonable construction of the principles expressed in
Article XI. Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992).


               “Hence, it is not sufficient in this proceeding that we might
       be of the opinion that we could make a better apportionment than
       has been made by the board: To authorize this court to interfere
       and command the board to make another apportionment, the
       apportionment made must so far violate the rules prescribed by the
       constitution, as to enable us to say, that what has been done is no
       apportionment at all, and should be wholly disregarded. If by any
       fair construction of the principles prescribed by the constitution for
       making an apportionment, the one made may be sustained, then it
       cannot be disregarded and a new one ordered.
               “* * * The very fact that the governor, auditor and secretary
       of state are consociated as a board to apportion the state for
       members of the general assemb[l]y, shows of itself, that, in the
       judgment of the framers of the constitution, in applying the rules
       prescribed, a discretion would have to be exercised, and those
       officers were selected to exercise it.      Whether the discretion
       conferred on the board, has been wisely or unwisely exercised in
       this instance, is immaterial in this proceeding. It is sufficient that
       they had the power under the constitution to make the



                                         8
                                 January Term, 2012




        apportionment as they have made it.             For the wisdom, or
        unwisdom, of what they have done, within the limits of the powers
        conferred, they are answerable to the electors of the state, and no
        one else.”


Id. at 204 (Holmes, J., concurring), quoting State ex rel. Gallagher v. Campbell,
48 Ohio St. 435, 436-437 and 442, 27 N.E. 884 (1891).
        {¶ 18} In resolving claims contesting the constitutionality of a statute, we
presume the constitutionality of the legislation, and the party challenging the
validity of the statute bears the burden of establishing beyond a reasonable doubt
that the statute is unconstitutional. See State ex rel. Zeigler v. Zumbar, 129 Ohio
St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 24; Ohio Grocers Assn. v. Levin,
123 Ohio St.3d 303, 2009-Ohio-4872, 916 N.E.2d 446, ¶ 11.
        {¶ 19} Although a board’s apportionment plan is not a statute, the same
general principle applies in resolving relators’ attack on the constitutionality of
the apportionment plan as that which is applied to attacks on the constitutionality
of statutes for the following reasons:
        {¶ 20} First, Article XI was enacted to permit the apportionment board to
perform the duty previously conferred on the General Assembly to apportion seats
in the General Assembly. In effect, the apportionment board is performing what
was previously a legislative function. See Ely v. Klahr, 403 U.S. 108, 114, 91
S.Ct. 1803, 29 L.Ed.2d 352 (1971) (“districting and apportionment are legislative
tasks in the first instance”); Arizona Minority Coalition for Fair Redistricting v.
Arizona Independent Redistricting Comm., 220 Ariz. 587, 208 P.3d 676 (2009),
¶ 19 (“Not only do enactments that carry the force of law traditionally originate
in the legislature, but the process of redistricting is itself traditionally viewed as a
legislative task”).




                                           9
                              SUPREME COURT OF OHIO




          {¶ 21} Second, as with legislation, a presumption of validity attaches to
the apportionment board’s adopted apportionment plan. See Gallagher, 48 Ohio
St. at 437, 27 N.E. 884 (apportionment board is vested with discretion to adopt
decennial apportionment plan, and “[i]f by any fair construction of the principles
prescribed by the constitution for making an apportionment, the one made may be
sustained, then it cannot be disregarded and a new one ordered”). “ ‘[I]n the
absence of evidence to the contrary, public officers, administrative officers and
public authorities, within the limits of the jurisdiction conferred upon them by
law, will be presumed to have properly performed their duties in a regular and
lawful manner and not to have acted illegally or unlawfully.’ ” State ex rel.
Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 51,
quoting State ex rel. Speeth v. Carney, 163 Ohio St. 159, 186, 126 N.E.2d 449
(1955).
          {¶ 22} Third, because the people of Ohio placed apportionment authority
in the hands of the board, the apportionment plan should be accorded the same, if
not greater, consideration as a statute enacted by the General Assembly. It is
logical, therefore, to require relators to rebut the plan’s presumed constitutionality
by proving beyond a reasonable doubt that the apportionment plan is
unconstitutional.
          {¶ 23} Finally, this standard comports with the standard applied by other
state supreme courts in resolving constitutional challenges to a reapportionment
plan.     See Parella v. Montalbano, 899 A.2d 1226, 1232-1233 (R.I.2006)
(challengers to state legislative redistricting statute had the burden of proving that
the statute was unconstitutional beyond a reasonable doubt); Logan v. O’Neill,
187 Conn. 721, 729-730, 448 A.2d 1306 (1982) (applying the same burden of
proof to a reapportionment plan even though it was not a statute—“Although,
here, the legislative action being challenged is not a statute because it is not
subject to the approval of the governor, it is entitled to at least the same judicial



                                         10
                                January Term, 2012




respect as a statute”); McClure v. Secy. of the Commonwealth, 436 Mass. 614,
622, 766 N.E.2d 847 (2002) (plaintiffs challenging constitutionality of legislative
redistricting plan could not prevail in the case unless they established beyond a
reasonable doubt that it is impossible by any reasonable construction to interpret
the redistricting statute in harmony with the state constitution); In re Wolpoff, 80
N.Y.2d 70, 78, 587 N.Y.S.2d 560, 600 N.E.2d 191 (1992) (“A strong presumption
of constitutionality attaches to the redistricting plan and we will upset the balance
struck by the Legislature and declare the plan unconstitutional” only when it is
shown to be unconstitutional beyond a reasonable doubt).
       {¶ 24} Consequently, the burden of proof on one challenging the
constitutionality of an apportionment plan is to establish that the plan is
unconstitutional beyond a reasonable doubt. In the absence of evidence to the
contrary, we presume that the apportionment board properly performed its duties
in a lawful manner. With this burden of proof providing the framework for our
analysis, we next address relators’ claims.
                Ohio Constitution, Article XI, Sections 3, 7, and 10
       {¶ 25} Relators assert that the board’s apportionment plan violates the
Ohio Constitution, Article XI, Sections 7 and 11. To assist this court in resolving
this claim, the parties provided supplemental briefs on whether tension exists
among Sections 3, 7, and 10 of Article XI, and if so, how these sections could be
harmonized.
       {¶ 26} As noted previously, we apply the same rules of construction that
we apply in construing statutes to interpret the meaning of constitutional
provisions. State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041,
896 N.E.2d 979, ¶ 43. We must first review the words and phrases used. Id.
       {¶ 27} The Ohio Constitution, Article XI, Section 3, provides:




                                         11
                     SUPREME COURT OF OHIO




        The population of each house of representatives district
shall be substantially equal to the ratio of representation in the
house of representatives, as provided in section 2 of this Article,
and in no event shall any house of representatives district contain a
population of less than ninety-five per cent nor more than one
hundred five per cent of the ratio of representation in the house of
representatives, except in those instances where reasonable effort
is made to avoid dividing a county in accordance with section 9 of
this Article.


{¶ 28} The Ohio Constitution, Article XI, Section 7, provides:


        (A) Every house of representatives district shall be compact
and composed of contiguous territory, and the boundary of each
district shall be a single nonintersecting continuous line. To the
extent consistent with the requirements of section 3 of this Article,
the boundary lines of districts shall be so drawn as to delineate an
area containing one or more whole counties.
        (B) Where the requirements of section 3 of this Article
cannot feasibly be attained by forming a district from a whole
county or counties, such district shall be formed by combining the
areas of governmental units giving preference in the order named
to counties, townships, municipalities, and city wards.
        (C) Where the requirements of section 3 of this Article
cannot feasibly be attained by combining the areas of
governmental units as prescribed in division (B) of this section,
only one such unit may be divided between two districts, giving




                                 12
                           January Term, 2012




preference in the selection of a unit for division to a township, a
city ward, a city, and a village in the order named.
        (D) In making a new apportionment, district boundaries
established by the preceding apportionment shall be adopted to the
extent reasonably consistent with the requirements of section 3 of
this Article.


{¶ 29} The Ohio Constitution, Article XI, Section 10, provides:


        The standards prescribed in sections 3, 7, 8, and 9 of this
Article shall govern the establishment of house of representatives
districts, which shall be created and numbered in the following
order to the extent that such order is consistent with the foregoing
standards:
        (A) Each county containing population substantially equal
to one ratio of representation in the house of representatives, as
provided in section 2 of this Article, but in no event less than
ninety-five per cent of the ratio nor more than one hundred five per
cent of the ratio shall be designated a representative district.
        (B) Each county containing population between ninety and
ninety-five per cent of the ratio or between one hundred five and
one hundred ten per cent of the ratio may be designated a
representative district.
        (C) Proceeding in succession from the largest to the
smallest, each remaining county containing more than one whole
ratio   of   representation    shall    be   divided   into   house   of
representatives districts.    Any remaining territory within such
county containing a fraction of one whole ratio of representation



                                   13
                             SUPREME COURT OF OHIO




       shall be included in one representative district by combining it with
       adjoining territory outside the county.
               (D) The remaining territory of the state shall be combined
       into representative districts.


       {¶ 30} In resolving the tension between these constitutional provisions, we
note that Article XI of the Ohio Constitution vests the apportionment board with
considerable discretion in formulating an appropriate plan.              See Ohio
Constitution, Article XI, Section 3 (requiring the population of each house district
to be “substantially equal to the ratio of representation” [emphasis added]);
Article XI, Section 7(A) (requiring house district boundary lines to be drawn so as
to delineate an area that contains one or more whole counties “[t]o the extent
consistent with the requirements of section 3” [emphasis added]); Article XI,
Section 7(B) (requiring that house districts be formed by combining the areas of
governmental units in the order specified where Section 3 population
requirements “cannot feasibly be attained” by forming a district from a whole
county or counties [emphasis added]); Article XI, Section 7(C) (requiring the
division of only one governmental unit in the order specified when the Section 3
population requirements “cannot feasibly be attained” by combining the areas of
governmental units in accordance with Section 7(B) [emphasis added]); Article
XI, Section 7(D) (requiring the adoption of district boundaries established by the
preceding apportionment “to the extent reasonably consistent” with the Section 3
population requirements [emphasis added]).
       {¶ 31} This court does not sit as a super apportionment board to determine
whether a plan presented by the relators is better than the plan adopted by the
board. Instead, we determine whether the board acted within the broad discretion
conferred upon it by the provisions of Article XI when it adopted its plan. As
respondents observe, whether relators have presented a “better” apportionment



                                        14
                                January Term, 2012




plan is irrelevant in determining whether relators have met their burden to
establish that the board’s September 30, 2011 apportionment plan is
unconstitutional.     The role of a supreme court in considering constitutional
challenges to an apportionment plan is restricted to determining whether relators
have met their burden to prove that the plan adopted by the board is
unconstitutional beyond a reasonable doubt. See State ex rel. Cooper v. Tennant,
229 W.Va. 585, 730 S.E.2d 368, 2012 WL 517520 (2012), paragraph twelve of
the syllabus (“The only role of the Supreme Court of Appeals of West Virginia in
determining whether a state legislative redistricting plan is constitutional is to
assess the validity of the particular plan adopted by the Legislature under both
federal and state constitutional principles, rather than to ascertain whether a better
plan could have been designed and adopted”); Wilson v. State ex rel. State
Election Bd., 270 P.3d 155, ¶ 1 (Okla.2012) (litigant’s mere statement that his
redistricting plan is better than the plan passed by the state legislature and signed
by the governor was insufficient to support claim that the plan was invalid);
Arizona Minority Coalition, 220 Ariz. 587, 208 P.3d 676, at ¶ 46 (“the fact that a
‘better’ [redistricting] plan exists does not establish that this plan lacks a
reasonable basis”).
       {¶ 32} In fulfilling our limited role, we read together the constitutional
provisions that are in pari materia, and we attempt to give full application to every
part of each of them unless they are irreconcilable and in hopeless conflict. See
Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 57. If there
is an irreconcilable conflict, the special provision prevails over the general
provision, unless the general provision was adopted later and the manifest intent
is that the general provision prevail. Summerville v. Forest Park, 128 Ohio St.3d
221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 26-27.
       {¶ 33} But if the sections are coequal—that is, if neither is more specific
and both were adopted at the same time—then the apportionment board is



                                         15
                            SUPREME COURT OF OHIO




empowered to apply either one of them. Voinovich, 63 Ohio St.3d at 200, 586
N.E.2d 1020. Consequently, when coequal provisions of Article XI of the Ohio
Constitution are irreconcilable, the apportionment board has the duty to choose
the proper course, and this court will not order it to correct one constitutional
violation by committing another. Id.
       {¶ 34} One of the main considerations of the joint secretaries in
formulating their proposed plan was preserving the boundaries of existing
legislative districts, which is consistent with the requirement of Section 7(D).
Moreover, apportionment boards have historically treated the division of
noncontiguous local governmental units as not constituting a violation of Sections
7(A), (B), or (C). In 1981, the apportionment board did not count 16 divisions of
noncontiguous governmental units as divisions for purposes of Article XI; in
1991, the apportionment board did not count 25 such divisions; and in 2001, the
apportionment board did not count 34 of these divisions. The board considered
the division of noncontiguous governmental units as having been accomplished
by local officials through annexation rather than by the board through
apportionment.    This practice of not counting divisions of noncontiguous
governmental units has been followed by apportionment boards that have had
both Democratic and Republican majorities. Additionally, comparison between
the 2011 and 2001 apportionment plans indicates that the number of divisions of
counties in both plans is comparable (74 for the 2011 apportionment plan and 73
for the 2001 apportionment plan).
       {¶ 35} In fact, by retaining district boundaries similar to those in the
previous apportionment plan—and thereby enhancing representational continuity
for district residents—the board’s plan is more compliant with Section 7(D) than
the alternative plan that was timely submitted to the apportionment board by the
Joint Democratic Caucuses or, for that matter, the alternative plans submitted by
relators’ expert, Professor Michael McDonald.



                                       16
                                   January Term, 2012




        {¶ 36} Relators argue that the board erred in relying on Section 7(D) to
justify violations of Sections 7(A), (B), and (C) because Section 7(D) is
subordinate to the other subsections. They claim that because Section 7(D) is the
last subsection, it is also last in priority.
        {¶ 37} A review of the plain text of Section 7, however, dispels that
contention. Sections 7(A), (B), and (C) are interconnected so that if the Section 3
population requirements cannot feasibly be attained by drawing the line according
to Section 7(A), then Section 7(B) is followed, and if they cannot feasibly be
attained by following Section 7(B), then Section 7(C) is followed. Section 7(D),
however, is not phrased in a manner that subordinates it to Sections 7(A), (B), and
(C).   Instead, Section 7(D) is phrased to apply broadly to the board’s “new
apportionment” and, like Sections 7(A), (B), and (C), is governed by the
population requirements of Section 3.                There is no language suggesting that
Section 7(D) may be followed only if Sections (A), (B), and (C) are inapplicable.
        {¶ 38} Therefore, the Ohio Constitution, Article XI, Section 7(D) is
coequal with Article XI, Sections 7(A), (B), and (C), and in accordance with
Voinovich, 63 Ohio St.3d at 200, 586 N.E.2d 1020, the court will not order the
apportionment board to correct a violation of Sections 7(A), (B), and (C) by
violating Section 7(D).
        {¶ 39} Relators next assert that even if Section 7(D) is coequal with
Sections 7(A), (B), and (C), that fact does not justify respondents’ alteration of
previous district boundaries from the 2001 apportionment plan. That is, relators
contend that pursuant to Section 7(D), “if a prior district’s population is
‘reasonably consistent with the requirements of Section 3,’ then the ‘district
boundaries established by the preceding apportionment shall be adopted.’ ”
        {¶ 40} But once again, relators ignore the plain text of Section 7(D),
which provides, “In making a new apportionment, district boundaries established
by the preceding apportionment shall be adopted to the extent reasonably



                                                17
                              SUPREME COURT OF OHIO




consistent with the requirements of section 3 of this Article.” (Emphasis added.)
In essence, relators’ interpretation replaces the phrase, “to the extent”—a phrase
that vests the apportionment board with discretion—with the conditional term
“if.” But this interpretation changes the meaning of Section 7(D), which we
cannot do. See State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-
3459, 852 N.E.2d 145, ¶ 50 (in construing statutes, court cannot add or delete
language); State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-
Ohio-4900, 916 N.E.2d 462, ¶ 49 (courts are not authorized to add exceptions that
are not contained within the express language of constitutional provisions).
        {¶ 41} Therefore, the Ohio Constitution vests discretion in the
apportionment board to adopt the prior district’s boundaries “to the extent
reasonably consistent” with the Section 3 population requirements, and this
discretionary language confers the authority on the apportionment board to adopt
district boundaries that are not identical to those used in the prior apportionment.
        {¶ 42} Relators’ claims focus on the board’s divisions of governmental
units. Because those divisions were warranted by both the bipartisan historical
practice of prior apportionment boards and the Section 7(D) requirement of
keeping boundaries similar to those used in the prior apportionment, we will not
order respondents to correct the alleged violations of Sections 7(A), (B), and (C)
by committing a violation of Section 7(D).           Similarly, given the discretion
accorded respondents under Section 7(D) and the related provisions, relators have
not established by proof beyond a reasonable doubt that respondents’ purported
failure to use the exact same boundary lines as the 2001 apportionment plan for a
few districts constituted a violation of that section.
                                 Relators’ Evidence
        {¶ 43} Relators primarily rely on the two alternative apportionment plans
of their expert, Professor McDonald, to meet their heavy burden of proof in this




                                          18
                                January Term, 2012




special proceeding. For the following reasons, however, these alternative plans
are insufficient to carry that burden.
       {¶ 44} First, they appear to be based on the same flawed interpretation of
Section 7(D) advocated by relators.
       {¶ 45} Second, as previously discussed, whether a litigant has presented a
“better” apportionment plan is irrelevant to the court’s determination of whether
the plan adopted by the apportionment board is constitutional. See Cooper, 730
S.E.2d 368, 2012 WL 517520, at paragraph twelve of the syllabus; Arizona
Minority Coalition, 220 Ariz. 587, 208 P.3d 676, at ¶ 46.
       {¶ 46} Third, Professor McDonald’s affidavits are replete with conclusory
statements that lack specific factual support. For example, he states that the
apportionment board’s plan “split over 250 political subdivisions,” while each of
his alternative plans “divides less than 100 subdivisions,” but he offers no detailed
explanation of what he counted as a split or division, and he does not enumerate
each of the subdivisions split by the various plans. In the absence of more
detailed factual support, we are left to wonder about the analytical choices made
by relators’ expert and the concomitant viability of his conclusions. And insofar
as relators argue that Professor McDonald’s plans contain many fewer divisions
of governmental units than are contained in the board’s plan and do not violate
any other constitutional provisions, his affidavits simply contain insufficient
evidence to establish the truth of their assertion. Indeed, from his affidavits, it is
unclear whether Professor McDonald even considered all the applicable criteria,
unlike respondents, who established that they had considered all the applicable
criteria in formulating and adopting their plan. Notably, in an unrelated case, a
federal district court recently held that Professor McDonald’s expert opinion was
unreliable because, among other reasons, he failed to consider all the applicable
principles that guide redistricting. Backus v. South Carolina, 857 F.Supp.2d 553,
562 (D.S.C.2012). His conclusory opinion here appears to be similarly defective.



                                         19
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          {¶ 47} Finally, relator claims that courts have regularly relied on a
litigant’s alternative plans in assessing the validity of an apportionment plan,
citing Holt, 38 A.3d 711, Twin Falls Cty. v. Idaho Comm. on Redistricting, 152
Idaho 346, 271 P.3d 1202 (2012), and In re Reapportionment of the Colorado
Gen. Assembly, __ P.3d __, 2011 WL 5830123. But in each of these cases, the
alternative plans reviewed by the courts were timely submitted to the state’s
apportionment body for its review in the process of adopting a plan. Holt at 753-
754 and fn. 32; Twin Falls at 1206-1207; Reapportionment of the Colorado Gen.
Assembly at *3-4.        By contrast, both of Professor McDonald’s alternate
apportionment plans were not timely submitted to the apportionment board, but
were instead submitted as evidence in a case filed more than three months after
the board approved its 2011 plan.
                                     Conclusion
          {¶ 48} The role of this court in adjudicating challenges to apportionment
is limited: we consider the plan against the requirements of the United States and
Ohio Constitutions, as interpreted by federal and state decisional law. In making
our determination, we accord the apportionment board the deference it is afforded
by the constitution in attempting to take into account various federal and state
requirements by placing the burden on one challenging an apportionment plan to
establish its unconstitutionality beyond a reasonable doubt. Relators have failed
to adduce sufficient, credible proof to carry this heavy burden. Therefore, relators
are not entitled to a declaration that the 2011 apportionment plan is
unconstitutional or a prohibitory injunction to prevent elections from being
conducted in accordance with that plan, and we accordingly deny the requested
relief.
                                                                     Relief denied.
          WILLAMOWSKI, LANZINGER, and CUPP, JJ., concur.
          O’CONNOR, C.J., and PFEIFER and MCGEE BROWN, JJ., dissent.



                                         20
                                  January Term, 2012




       JOHN R. WILLAMOWSKI, J., of the Third Appellate District, sitting for
LUNDBERG STRATTON, J.
                               __________________
       PFEIFER, J., dissenting.
       {¶ 49} There will always be tension between political power and the
constraints of the Ohio Constitution when a new map for the boundaries of
legislative districts is drawn. Ohio voters Charles Wilson and others have put the
question of constitutionality in play by bringing this action. Article XI, Section
13 of the Ohio Constitution places on this court the duty to answer that question
without deference to either party. There is no basis in the Ohio Constitution, in
fairness, in justice, or in political reality for this court to cloak the apportionment
board’s actions with a presumption of constitutionality that can be overcome only
by proof beyond a reasonable doubt. In doing so, the majority opinion is just
plain wrong. It relegates this court to the status of a pawn in a high-stakes
political chess match.
       {¶ 50} The drafters of Article XI fully understood that they were placing
the difficult duty of map drawing in the hands of the state’s top partisan office
holders, knowing that they would draw the districts to their partisan advantage,
limited only by federal law and the Ohio Constitution. Likewise, they understood
that when the board’s work was done, questions of constitutional compliance
could arise and, if they did, they should be answered directly by this court. A
process for the board to correct any constitutional violations found by this court or
the United States Supreme Court is also detailed in Article XI, Section 13.
       {¶ 51} As we review the adopted maps, the evidence of the process that
resulted in the maps, and alternative map choices, it must be with an effort to be
strictly neutral in assessing the finished product of the adopted apportionment
plan while keeping in mind a fair and normal reading of the constraints found in
Article XI of our Constitution.



                                          21
                            SUPREME COURT OF OHIO




       {¶ 52} Article XI of the Ohio Constitution is well organized and
comprehensive in setting out the rules and process for apportionment.           The
makeup of the apportionment board is set out in Section 1. Determination of the
population parameters for each legislative district is to be achieved by following a
precise succession of chronological steps found in Sections 2, 3, 4, and 5. Section
6 establishes that the apportionment plan is to be revised after the completion of
each federal decennial census.
       {¶ 53} Section 7 controls the process to be followed by the apportionment
board in mapping the boundary lines of House of Representative districts. The
steps are defined in four paragraphs that make sense when read in normal
progression, top to bottom. Sections 8 and 9 address issues not being contested in
this litigation.   Section 10 provides instruction for numbering House of
Representative districts when the mapping process is completed.
       {¶ 54} The question before us is this: Does the apportionment plan
adopted by the board comply with the mandates of the Ohio Constitution? Our
determination should not be influenced by evidence that persons who were tasked
with drawing the boundaries sent self-promoting e-mails proclaiming success in
drawing legislative boundaries that favor the political party controlling the board.
That such an effort was undertaken should be presumed and is no more shocking
than gambling in Rick’s Cafe. Nor is it our function to choose an alternative
apportionment plan. Alternative plans are useful, however, in assessing whether
the adopted plan was designed to achieve compactness and minimization of splits
of governmental units, as required by Article XI, Section 7 of the Ohio
Constitution.
       {¶ 55} Having reviewed the adopted plan and compared it with the
submitted evidence, I reluctantly conclude that the constitutional challenge has
merit. The board should be directed to reconvene pursuant to Section 13 for the
purpose of adopting a revised plan that more nearly optimizes the mandates of



                                        22
                                January Term, 2012




Section 7 with respect to compactness and minimization of splits of governmental
units. In her dissent, Justice McGee Brown has well documented many of the
splits that should have been avoided. In total, 39 counties (out of 88) have been
split 74 times. The lack of compactness of the current map is self-evident.
       {¶ 56} The majority, having reviewed the same evidence, concludes that
the plan is constitutional. I agree with the majority opinion’s implicit rejection of
the board’s principal argument supporting constitutionality: that Section 10,
which relates to numbering of districts, somehow can be used to guide mapping.
In order to justify its finding of constitutionality, the majority opinion expresses
two conclusions of questionable legitimacy; these anchors of the majority opinion
fail the tests of logic and fairness. First the majority opinion erects a nearly
insurmountable barrier to a successful constitutional challenge by assigning to the
board’s actions a blanket presumption of constitutionality and requiring proof
beyond a reasonable doubt to establish that the plan fails to meet all constitutional
requirements. Majority opinion, paragraph two of the syllabus.
       {¶ 57} The two cites given by the majority opinion as authority for that
standard stand for the proposition that public officials are presumed to have acted
lawfully, not that the constitutionality of their work product can be overcome only
by proof beyond a reasonable doubt. See State ex rel. Skaggs v. Brunner, 120
Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 51, and State ex rel. Speeth
v. Carney, 163 Ohio St. 159, 186, 126 N.E.2d 449 (1955). Proof beyond a
reasonable doubt is typically necessary only in criminal cases. Such a high
burden of proof in the current constitutional matter turns this court into a rubber
stamp, not the guardian of the constitution that it is designed to be.
       {¶ 58} Next, the majority adopts the board’s secondary argument,
concluding that Section 7(D) can subsume and override the express directives of
Sections 7(A), 7(B), and 7(C) regarding the compactness of districts and the
requirement to minimize splits. Section 7(D), properly interpreted, directs the



                                          23
                             SUPREME COURT OF OHIO




board to follow the district lines of the prior apportionment where possible. But
unless Section 7(D) is subservient to the paragraphs above it, a board could justify
the adoption of an incumbent-protecting apportionment plan and forgo any effort
to achieve compactness and minimize splits of governmental units.               The
majority’s interpretation is illogical. Its reading of Section 7 undermines the
long-accepted constitutional foundation of Ohio’s apportionment process:
legislative districts should be compact and respectful of the boundaries of
governmental units.
       {¶ 59} The majority opinion’s conclusion could lead to an absurd result.
Based on the majority opinion, provisions of a prior plan that are patently
unconstitutional would be protected, possibly forever, by the dominion granted to
Section 7(D) over the critically important Sections 7(A), 7(B), and 7(C).
       {¶ 60} Remapping by the apportionment board would certainly bring no
pleasure to the members of the General Assembly in either political party. All
incoming House members and half of the incoming Senate members recently won
elections in the newly drawn districts. Because of this plan’s serial violations of
the Section 7 constitutional mandate for compactness of legislative districts and
minimization of governmental-unit splits, however, remapping is required.
       {¶ 61} I dissent.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                              __________________
       MCGEE BROWN, J., dissenting.
       {¶ 62} “The achieving of fair and effective representation for all citizens is
* * * the basic aim of legislative apportionment.” Reynolds v. Sims, 377 U.S.
533, 565-566, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In 1967, the people of this
state amended Article XI of the Ohio Constitution to provide exacting detail on
how legislative districts are to be drawn. Article XI outlines at length the priority
to be given to keeping counties and local-government units whole and keeping



                                         24
                                  January Term, 2012




existing district lines.   However, today the majority upholds a redistricting
scheme that Article XI was specifically designed to prevent. By elevating Section
10 (prescribing procedure for creating house districts) over the clear mandates of
Sections 3 (population mandates) and 7 (retaining whole counties and
governmental units), the majority permits respondents to elevate political
considerations over Article XI.
       {¶ 63} In a Maryland case involving a redistricting plan, the highest court
in that state noted that “[b]ecause it involves redrawing the lines of legislative
districts, the process of reapportionment is an intensely political process. But it is
also a legal one, for there are constitutional standards that govern both the process
and the redistricting plan that results from it.” In re Legislative Redistricting of
the State, 370 Md. 312, 320, 805 A.2d 292 (2002). The statement applies equally
to Ohio’s reapportionment process. Although political considerations may affect
the determination, they cannot control it in contravention of the specific standards
set forth by the people of the state in Article XI.
                      The Recurring Apportionment Problem
       {¶ 64} Relators claim that the apportionment plan adopted by respondents
violates Article XI, Sections 7 and 11. These sections were adopted in 1967, and
since their adoption, this court and federal courts have regularly addressed
challenges concerning the apportionment plans adopted by the Ohio
Apportionment Board following the decennial federal census. See, e.g., Parker v.
State, 263 F.Supp.2d 1100 (S.D.Ohio 2003) (2001 apportionment plan);
Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992) (1991
apportionment plan); Quilter v. Voinovich, 981 F.Supp. 1032 (N.D.Ohio 1997)
(1991 apportionment plan); Armour v. State, 775 F.Supp. 1044 (N.D.Ohio 1991)
(1981 apportionment plan).
       {¶ 65} Former United States Senator William L. Marcy once said that “to
the victors belong the spoils of the enemy.” http://www.bartleby.com/



                                          25
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100/690.63.html.     At the September 26, 2011 apportionment-board hearing,
Auditor Dave Yost submitted for the record a portion of A Columnist’s View of
Capitol Square, written by Lee Leonard, which observes that in 1971, when
Democrats controlled the apportionment board, they created legislative districts
that resulted in their party’s gaining control of both houses of the General
Assembly, and that in 1991, when Republicans controlled the board, they created
legislative districts that eventually resulted in their controlling both houses of the
General Assembly.
       {¶ 66} Consequently, neither party stands before this court with clean
hands or intellectual purity. Each party has used the apportionment process for
political gain with almost utter disregard for the dictates of Article XI.
                                 General Principles
       {¶ 67} Before turning to those matters upon which I disagree with the
majority, I first note those matters with which I agree. I agree that we have
jurisdiction over the merits of this case even though neither the apportionment
board nor all of the board members are named as respondents. Ohio Constitution,
Article XI, Section 13. I also agree with the general propositions specified in the
syllabus concerning political neutrality; the initial burden of proof; the principle
that when coequal Article XI provisions are irreconcilable, we will not order the
apportionment board and its members to correct one constitutional violation by
committing another; and the holding that Article XI, Section 7(D) is coequal with
Article XI, Sections 7(A), (B), and (C).
       {¶ 68} However, I respectfully dissent from the majority’s implicit
determination that the subordinate procedure set forth in Section 10 takes priority
over Sections 7(A) through (D). In other words, I disagree that Section 10’s
procedure for creating house districts takes priority over Section 7’s requirements
for keeping whole counties and governmental units together.




                                           26
                              January Term, 2012




       {¶ 69} The 1967 amendment set forth a specific process for apportionment
that would protect the integrity of governmental units by minimizing their
division. By allowing respondents to elevate Section 10 over Section 7, the
majority ensures that the apportionment process will become more political with
each decennial plan.
                               Political Neutrality
       {¶ 70} Although the text of Article XI does not specifically prohibit the
use of political considerations in apportioning state legislative districts, the
historical context of the constitutional apportionment provisions indicates that
they were adopted to limit the importance of politics. As this court previously
explained:


       Prior to the Constitution of 1851, the apportionments of legislative
       districts had been made by the General Assembly with the result
       that oftentimes political advantage was sought to be gained by the
       party in power. Accordingly Article XI was incorporated in the
       Constitution for the purpose of correcting the evils of former days
       by placing the power of apportionment in the hands of a board
       composed of the Governor, the Auditor of State and the Secretary
       of State and making the provisions self-acting.
              ***
              The objective sought by the constitutional provisions was
       the prevention of gerrymandering.      By creating a board of ex
       officio members and adopting self-acting provisions it was sought
       to place the function of apportionment in impartial hands and at the
       same time mark the way so that in the main at least the provisions
       of the Constitution would work automatically and the apportioning
       process ordinarily would be a mere matter of calculation.



                                       27
                             SUPREME COURT OF OHIO




State ex rel. Herbert v. Bricker, 139 Ohio St. 499, 508-509, 41 N.E.2d 377
(1942). See also Steinglass & Scarselli, The Ohio State Constitution: A Reference
Guide 279 (2004) (Article XI “was included in the 1851 Constitution to prevent
gerrymandering, a common practice in the first fifty years of statehood”).


        The purpose of the people in enacting Article XI is clear. It was to
        place legislative apportionment in the hands of a separate board not
        subject to the control of the General Assembly, the board to be
        composed of representatives of the people, elected by the people
        and unconnected with the legislative branch of government.


State ex rel. King v. Rhodes, 11 Ohio St.2d 95, 99, 228 N.E.2d 653 (1967).
        {¶ 71} Respondents claim that the foregoing precedent is no longer
applicable because in 1967, Ohio amended Article XI to comply with the one-
person-one-vote principle of cases like Reynolds v. Sims, 377 U.S. at 568, 84 S.Ct.
1362, 12 L.Ed.2d 506, and Nolan v. Rhodes, 378 U.S. 556, 84 S.Ct. 1906, 12
L.Ed.2d 1034 (1964).
        {¶ 72} It is true that the 1967 amendment to Article XI eliminated many of
the automatic and self-acting provisions that characterized the version contained
in the 1851 Constitution and its 1903 amendment so that General Assembly
districts could be apportioned on a substantially equal-population basis. But by
no means did the new provisions harken a return to the old days of political
gerrymandering that the Article was originally adopted to eliminate.
        {¶ 73} Instead, the 1967 amendment set forth mandatory, nonpartisan
criteria to be used by the apportionment board in reapportioning state legislative
districts.   See, e.g., Article XI, Sections 3 (population of house districts), 4




                                        28
                                January Term, 2012




(population of senate districts), 5 (single member for each district), and 7
(boundary lines for house districts).
       {¶ 74} Furthermore, contrary to respondents’ assertion, the 1967
amendment’s inclusion of “partisanly-elected political official[s]” on the
apportionment board did not contemplate a “political process by design” any
more than did the 1851 version’s inclusion of the governor, auditor, and secretary
of state on the apportionment board.
       {¶ 75} The 1967 amendment simply did not change the objective of
Article XI—to prevent the political gerrymandering engendered by leaving the
apportionment process entirely to the political party controlling the General
Assembly. And to determine the soundness of the challenged apportionment
plan, we “look not only to the letter of the constitutional provisions but to their
spirit and purpose.” Herbert, 139 Ohio St. at 508, 41 N.E.2d 377.
       {¶ 76} In sum, then, while Article XI does not require political neutrality
in the apportionment process, partisan considerations cannot prevail over the
nonpartisan requirements set forth in Article XI.
                                  Burden of Proof
       {¶ 77} I agree with the majority that the initial burden of proof is on the
party challenging the constitutionality of an apportionment plan to establish that
the plan is unconstitutional beyond a reasonable doubt. And I agree that in the
absence of evidence to the contrary, we presume that the apportionment board and
its members performed their duties in a lawful manner.
       {¶ 78} However, as the United States Supreme Court recently observed in
a case upholding the individual mandate of the Patient Protection and Affordable
Care Act, “[o]ur deference in matters of policy cannot * * * become abdication in
matters of law.” Natl. Fedn. of Independent Business v. Sebelius, __ U.S. __, 132
S.Ct. 2566, 2579, 183 L.Ed.2d 450 (2012). I would hold that any presumed
validity of the apportionment plan is rebutted when relators establish that the plan



                                        29
                             SUPREME COURT OF OHIO




violates the provisions of Article XI of the Ohio Constitution. Under these
circumstances, we must review the applicable constitutional provisions without
deference to the apportionment board.
       {¶ 79} Respondents     claim     that   after   proving   that   the   plan   is
unconstitutional beyond a reasonable doubt, relators must establish beyond a
reasonable doubt that the apportionment board also acted without a rational basis.
This contention lacks merit. As relators note, if a plan is unconstitutional, it
cannot be resuscitated by reliance on a nonconstitutional criterion, e.g., retention
of an incumbent or political composition. Acting on such a factor would not be
rational. See In re Reapportionment of the Colorado Gen. Assembly, __ P.3d __,
2011 WL 5830123 (Colo.2011), at *3 (“Other nonconstitutional considerations,
such as the competitiveness of a district, are not per se illegal or improper;
however, such factors may be considered only after all constitutional criteria have
been met”).
       {¶ 80} Moreover, one of the cases respondents cite for this proposition is
In re Reapportionment of Towns of Hartland, Windsor, & W. Windsor, 160 Vt. 9,
624 A.2d 323 (1993), but the Vermont Supreme Court noted in that case that
“once petitioners have shown that the State has failed to meet constitutional or
statutory standards or policies with regard to a specific part of the plan, the State
then has the burden to show that satisfying those requirements was impossible
because of the impermissible effect it would have had on other districts.” Id. at
16. Other states have also shifted the burden of proof to the parties responsible
for the apportionment plan to justify their departure from certain constitutional
provisions once relators established that the plan is unconstitutional in some
respect. See In re Legislative Districting of the State, 370 Md. at 368, 805 A.2d
292 (when apportionment plan raised sufficient issues with respect to its
compliance with state constitutional requirements, court placed burden of proof
on the state to justify the plan); In re Reapportionment of Colorado Gen.



                                          30
                               January Term, 2012




Assembly, 45 P.3d 1237, 1241 (Colo.2002) (court held that if an apportionment
plan does not comply with the county-boundary requirement of the Colorado
Constitution, the reapportionment commission must make an adequate factual
showing that less drastic alternatives could not have satisfied the equal-population
constitutional requirement); In re Legislative Districting of Gen. Assembly of
Iowa, 193 N.W.2d 784, 791 (Iowa 1972) (state failed to sustain burden of proof to
show why state legislative reapportionment plan could not comply with state
constitution’s compactness requirement).
       {¶ 81} This approach is logical.       The respondents who crafted and
approved the apportionment plan are in the best position to know the basis for any
noncompliance with Article XI.
       {¶ 82} Therefore, I would hold that once relators make a prima facie
showing beyond a reasonable doubt that respondents have violated a provision of
Article XI of the Ohio Constitution, the burden of proof shifts to respondents to
justify that violation based on the avoidance of a violation of another superior or
coequal legal requirement.
                         Article XI, Sections 3, 7, and 10
       {¶ 83} In our briefing order, we asked whether tension existed among
Sections 3, 7, and 10 of Article XI of the Ohio Constitution, and if so, how these
sections should be harmonized.      131 Ohio St.3d 1468, 2012-Ohio-848, 962
N.E.2d 800.
       {¶ 84} The plain language of the subsections in Section 7 establishes that
Section 7 is subordinate to the population requirements of Section 3: Section 7(A)
directs the apportionment board to draw the boundary lines of house districts to
delineate an area “containing one or more whole counties” “[t]o the extent
consistent with the requirements of section 3”; Section 7(B) directs the
apportionment board to create districts by combining the areas of governmental
units in the order specified “[w]here the requirements of section 3 of this Article



                                        31
                             SUPREME COURT OF OHIO




cannot feasibly be attained by forming a district from a whole county or counties
[as prescribed in division (A)]”; Section 7(C) directs the apportionment board to
divide only one governmental unit between two house districts in the order
specified “[w]here the requirements of section 3 of this Article cannot feasibly be
attained by combining the areas of governmental units as prescribed in division
(B) of this section”; and finally, Section 7(D) directs the apportionment board to
adopt the house-district boundaries established by the preceding apportionment
“to the extent reasonably consistent with the requirements of section 3 of this
Article.” Consequently, there is no conflict—inherent or otherwise—between the
requirements of Sections 3 and 7 because, by its very terms, Section 7 is
subordinate to the population requirements of Section 3.
       {¶ 85} Similarly, there is no conflict between Section 10 and Sections 3
and 7. The introductory language in Section 10 makes clear that the substantive
standards set forth in Sections 3, 7, 8, and 9 govern the creation of house districts
and that the procedure specified in Section 10 applies only insofar as it is
consistent with those standards: “The standards prescribed in sections 3, 7, 8, and
9 of this Article shall govern the establishment of house of representatives
districts, which shall be created and numbered in the following order to the extent
that such order is consistent with the foregoing standards.” (Emphasis added.)
Ohio Constitution, Article XI, Section 10.
       {¶ 86} Therefore, under the plain language of these sections, if there is a
conflict, Section 3 prevails over Sections 7 and 10 and Section 7 prevails over
Section 10.
       {¶ 87} I agree with the majority that Sections 7(A) through (C) are
coequal with Section 7(D). Sections 7(A) through (C) require that every house
district be compact and contiguous and, to the extent it can do so and still meet
the requirements of Section 3, that it contain one or more whole counties; and if
the district cannot be made out of a whole county or counties and still meet the



                                         32
                                January Term, 2012




requirements of Section 3, then it must be formed by combining the areas of local
governmental units in the order specified in Section 7(B), and if the requirements
of Section 3 cannot feasibly be attained by combining the areas of local
governmental units, then they must be divided, giving preference for division as
specified in Section 7(C), and only one local governmental unit may be divided
between two districts. Section 7(D) requires that district boundaries established
by the preceding apportionment be used to the extent reasonably consistent with
the requirements of Section 3. Because Sections 7(A) through (C) are coequal
with Section 7(D), when the sections cannot simultaneously be satisfied, the
apportionment board may determine which of the provisions to follow.               See
Voinovich, 63 Ohio St.3d at 200, 586 N.E.2d 1020.
                             Respondents’ Contentions
       {¶ 88} Respondents contend that their apportionment plan should not be
analyzed on the district-by-district basis set forth in relators’ complaint and briefs.
According to respondents, with whom the majority implicitly agrees, “the
boundaries of districts created at the end of the [apportionment] process are
greatly affected by decisions made in districts created earlier,” so that any
constitutional violations in the latter districts are within the board’s discretionary
authority to make. This claim—which equates to “because we have already
violated the constitution, we can continue to violate the constitution”—lacks
merit. The procedure in Section 10 is subordinate to the substantive constitutional
requirements in Sections 3 and 7(A), (B), (C), and (D) of Article XI.
       {¶ 89} Nor is there any merit in respondents’ claim that the court should
not consider Professor Michael McDonald’s alternative plans because they were
not presented to the board. The court is not determining whether respondents
should have adopted one of the alternative plans. Instead, we are determining
whether respondents complied with the applicable requirements of Article XI.




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Nothing in the Ohio Constitution or other applicable law prevents this court from
considering all relevant evidence in that regard.
         {¶ 90} Respondents also raise a host of justifications for their violations of
various provisions of Article XI, including that they had no duty to minimize
divisions of governmental units in adopting their apportionment plan.            Their
argument completely ignores the plain language of Sections 7(A), (B), and (C),
which require minimal divisions to the extent possible without violating the
population requirements of Section 3.
         {¶ 91} Respondents further contend that they were justified in violating
Article XI where they attempted to comply with Sections 3, 7(D), and 10.
However, there is nothing in Section 3 that permits respondents to violate
Sections 7(A), (B), and (C) to make the populations of districts more
“substantially equal.” Instead, if the board can make districts that comply with
both Section 3 and Sections 7(A) through (C), they have a duty to do so. That is,
respondents can violate Sections 7(A), (B), and (C) based on Section 3 only when
complying with both sections is not feasibly attainable. Respondents’ focus on
Sections 7(D) and 10 completely ignores the requirements of Sections 7(A)
through (C).
         {¶ 92} Section 7(D) does not—as respondents claim—give them license to
change district borders any way they see fit in purported compliance with a
requirement to keep a district’s boundaries substantially similar to the district’s
previous boundary lines.      Instead, as relators note, as long as the Section 3
requirements are met, Section 7(D) specifies that the district boundaries “shall be
adopted.” And if the Section 3 requirements are not met by the prior district,
Section 7(D) does not require that the board adopt substantially similar boundary
lines.
         {¶ 93} The    majority’s   interpretation   of   Section   7(D)    authorizes
innumerable violations of Sections 7(A), (B), and (C) by allowing unnecessary



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divisions of governmental units based on a nonexistent requirement that the
boundaries of new districts be substantially similar to those in the preceding
apportionment districts.          By applying a malleable standard of substantial
adherence to previous district lines, an apportionment board could condone a
myriad of violations of Article XI to achieve partisan gain. The citizens of Ohio
could not have intended this absurd result when they adopted Section 7(D). State
ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916
N.E.2d 462, ¶ 50 (court has duty to construe constitutional provision to avoid
unreasonable or absurd result).
                                   Article XI, Section 7(A)
        {¶ 94} Article XI, Section 7(A) specifies that “[t]o the extent consistent
with the requirements of section 3 of this Article [requiring that the population of
each house district be substantially equal to the house’s ratio of representation and
in no event less than 95 percent nor more than 105 percent of the ratio], the
boundary lines of districts shall be so drawn as to delineate an area containing one
or more whole counties.”
        {¶ 95} Notwithstanding the clear language of this provision, relators have
established that for several house districts in the apportionment plan adopted by
the board, respondents divided counties when it appears it was unnecessary to do
so to meet the population requirements of Article XI, Section 3.1 In violation of
Section 7(A), House Districts 70, 78, 84, 91, 94, and 95 were created by dividing
certain counties when such divisions were not necessary to satisfy Section 3
population requirements. As the apportionment board’s joint secretaries’ own
analysis of the board’s plan establishes, the division of Holmes County for House
District 70, Athens, Pickaway, and Muskingum Counties for House District 78,

1. Because relators have met their burden of proof for these violations, the burden should shift to
respondents to show that the violations were necessary to comply with other superior or coequal
sections.




                                                35
                                 SUPREME COURT OF OHIO




Auglaize and Shelby Counties for House District 84, Ross County for House
District 91, Athens, Vinton, and Washington Counties for House District 94, and
Washington County for House District 95 are not required by the applicable
provisions of Article XI. And the alternative apportionment plans submitted by
relators’ expert, Professor McDonald, prove that an apportionment plan need not
violate Section 7(A) by splitting these counties.2
        {¶ 96} Respondents attempt to justify their division of these counties and
concomitant violation of Section 7(A) by relying on Sections 10(C) and (D). But
Sections 10(C) and (D) should not be applied if they conflict with Section 7(A).
The introductory language in Section 10 makes clear that the substantive
standards set forth in Sections 3, 7, 8, and 9 govern the creation of house districts
and that the procedure provided in Section 10 applies only insofar as it is
consistent with those standards.           See also The Ohio State Constitution: A
Reference Guide 286 (“section 10 prescribes the method for creating house
districts subject to the population requirement of section 3 and the preference for
creating districts out of whole counties in sections 7-9” [emphasis added]).
Because Sections 10(C) and (D)—in the manner that respondents applied them
here—are inconsistent with the application of Section 7(A) regarding House
Districts 70, 78, 84, 91, 94, and 95, respondents cannot rely on Sections 10(C) and
(D) to justify their violation of Section 7(A) in dividing the specified counties.
Unlike the provisions at issue in Voinovich, 63 Ohio St.3d at 200, 586 N.E.2d
1020, Section 10 is not coequal with Section 7, and thus, respondents were not
permitted to remedy the conflict by ignoring Section 7.
        {¶ 97} For example, with regard to House District 70, respondents attempt
to justify their plan’s violation of Section 7(A) based on Section 7(D), citing


2. I am not suggesting that respondents must adopt Professor McDonald’s plan, but am merely
pointing out that relators have met their burden in demonstrating that violating Section 7(A) was
unnecessary.




                                               36
                                     January Term, 2012




paragraph 88 of Heather Mann’s affidavit in support of this argument. But this
paragraph from Mann’s affidavit cites only Sections 10(C) and 10(D) and does
not support respondents’ claim that Section 7(D) required their split of Holmes
County in creating the house district.3
          {¶ 98} On the record before this court, relators have established beyond a
reasonable doubt that respondents violated Article XI, Section 7(A) by
unnecessarily dividing the specified counties in House Districts 70, 78, 84, 91, 94,
and 95.
                             Article XI, Sections 7(B) and (C)
          {¶ 99} Article XI, Section 7(B) provides, “Where the requirements of
section 3 of this Article cannot feasibly be attained by forming a district from a
whole county or counties, such district shall be formed by combining the areas of
governmental units giving preference in the order named to counties, townships,
municipalities, and city wards.” And under Article XI, Section 7(C), “Where the
requirements of section 3 of this Article cannot feasibly be attained by combining
the areas of governmental units as prescribed in division (B) of this section, only
one such unit may be divided between two districts, giving preference in the
selection of a unit for division to a township, a city ward, a city, and a village in
the order named.”
          {¶ 100} Respondents contend that their apportionment plan does not
violate Sections 7(B) and 7(C), because Article XI does not require the
apportionment board to put all noncontiguous portions of a governmental unit into
one district. Thus, they claim that their plan divides only 15 governmental units.
The board’s plan defines a noncontiguous area as an area that is “legally or
technically a portion of a geographic unit,” but is “surrounded by other land-based


3. In the interest of brevity, I do not address each of the violations alleged by relators but use
House District 70 as an illustration of the apportionment plan’s multiple violations of Section
7(A).




                                               37
                            SUPREME COURT OF OHIO




geographic units.” In formulating their plan, respondents determined that if a
governmental unit was noncontiguous, the board could put its separate portions
into different districts and not count this as a division of the governmental unit
because the governmental unit had been divided by local officials through
annexation. Respondents are correct in pointing out that previous apportionment
boards followed this same logic, but they admit that this issue has never been
resolved in litigation.
        {¶ 101} For the following reasons, I disagree with respondents’ contention
that these divisions of governmental units do not count as divisions.
        {¶ 102} First, the plain language of Sections 7(B) and (C) does not
authorize differing treatment of contiguous and noncontiguous governmental
units. These sections do not distinguish between contiguous and noncontiguous
governmental units, including counties, townships, municipalities, cities, city
wards, or villages, so the plain, broad language of these constitutional provisions
must apply to both. See State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110,
2008-Ohio-5041, 896 N.E.2d 979, ¶ 49 (“R.C. 3503.06 makes no distinction
between entitlement to vote in person or by absentee ballot at an election, so its
plain, broad language must apply to both”); State ex rel. Ohio Democratic Party
v. Blackwell, 111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, ¶ 14,
quoting Consumer Electronics Assn. v. Fed. Communications Comm., 347 F.3d
291, 298 (D.C.Cir.2003) (“As United States Supreme Court Chief Justice John G.
Roberts Jr. previously observed in a unanimous opinion for the United States
Court of Appeals for the District of Columbia Circuit, ‘the Supreme Court has
consistently instructed that statutes written in broad, sweeping language should be
given broad, sweeping application’ ”).
        {¶ 103} Second, notwithstanding respondents’ argument, “[c]ourts are not
authorized to add exceptions that are not contained in the express language of
these constitutional provisions.” State ex rel. LetOhioVote.org v. Brunner, 123



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                               January Term, 2012




Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 49. Therefore, we cannot
except noncontiguous governmental units from the application of Article XI,
Sections 7(B) and (C) when the express language of those provisions does not
contain such an exception.
        {¶ 104} Third, although Section 7(A) requires that every house district be
“composed of contiguous territory” with the boundary of each district being a
“single nonintersecting continuous line,” there is no evidence—or argument by
respondents—that applying the plain language of “governmental units” in
Sections 7(B) and (C) to include both contiguous and noncontiguous would result
in a violation of Section 7(A) for the creation of house districts. See Parella v.
Montalbano, 899 A.2d 1226, 1253 (R.I.2006) (“Contiguity generally means that
districts are bordering, adjoining, or touching”).    To the contrary, relators’
reapportionment and redistricting expert, Professor McDonald, created two
apportionment plans that each split less than half the number of political
subdivisions split by respondents’ apportionment plan, without violating Section
7(A).
        {¶ 105} Fourth, this plain-language construction of Sections 7(B) and (C)
to prefer the inclusion of whole governmental units and to avoid the splitting of
even noncontiguous governmental units in apportioning state legislative districts
is logical. As relators note, although noncontiguous political subdivisions may be
separated geographically, “they share common issues, services, and political
concerns.” And they are generally represented by the same officials.
        {¶ 106} Fifth, we need not approve an erroneous construction of a
constitutional provision simply because it has always been construed erroneously,
particularly when it has not previously been litigated. Doing so would protect an
unconstitutional practice.
        {¶ 107} Sixth, respondents’ claim that invalidating their apportionment
plan in this case “would wreak havoc on the apportionment process now and in



                                        39
                             SUPREME COURT OF OHIO




the future” by jeopardizing the state’s compliance with the Voting Rights Act, 42
U.S.C. 1973, is simply not true.
       {¶ 108} Relators have met their burden of proof.
                              Article XI, Section 7(D)
       {¶ 109} Section 7(D) provides that “[i]n making a new apportionment,
district boundaries established by the preceding apportionment shall be adopted to
the extent reasonably consistent with the requirements of section 3 of this
Article.” (Emphasis added.)
       {¶ 110} Relators have established that respondents violated Section 7(D)
in creating new House Districts 60, 61, 84, and 91 by altering the boundaries for
house districts established by the 2001 apportionment. The preceding district
boundaries did not require modification to comply with the population
requirements of Section 3. In fact, respondents’ evidence does not suggest that
Section 3 mandated an alteration of the prior district boundaries for these districts.
                                     Conclusion
       {¶ 111} “The purpose of the people in enacting Article XI is clear. It was
to place legislative apportionment in the hands of a separate board not subject to
the control of the General Assembly, the board to be composed of representatives
of the people, elected by the people and unconnected with the legislative branch
of the government.” King, 11 Ohio St.2d at 99, 228 N.E.2d 653. “The objective
sought by the constitutional provisions was the prevention of gerrymandering.”
Herbert, 139 Ohio St. at 509, 41 N.E.2d 377. In practice, however, whichever
political party has a majority of the members of the apportionment board uses
apportionment to favor its partisan interests.      The majority’s decision today
ensures that this will continue.
       {¶ 112} I respectfully dissent.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                               __________________



                                          40
                                 January Term, 2012




        Wesp, Barwell, Pierre-Louis, L.L.C., and Lloyd Pierre-Louis; Murray &
Murray Co., L.P.A., and Dennis E. Murray Jr.; and Perkins Coie, L.L.P., and
Marc Erik Elias, Kevin J. Hamilton, Abha Khanna, and Noah Guzzo Purcell, for
relators.
        Baker & Hostetler, L.L.P., John H. Burtch, E. Mark Braden, and Robert J.
Tucker, for respondents Governor John Kasich, Senate President Thomas E.
Niehaus, and Auditor David Yost.
        Michael DeWine, Attorney General, and Pearl M. Chin, Assistant
Attorney General, for respondent Governor John Kasich.
        Michael DeWine, Attorney General, and Renata Staff, Assistant Attorney
General, for respondent Auditor David Yost.
        Michael DeWine, Attorney General, and Sarah Pierce, Assistant Attorney
General, for respondent Senate President Thomas E. Niehaus.
        Michael DeWine, Attorney General, and Richard N. Coglianese, Michael
J. Schuler, and Erin Butcher-Lyden, Assistant Attorneys General, for respondent
Secretary of State Jon Husted.
                           ______________________




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