Ohio A. Philip Randolph Inst. v. Householder (373 F. Supp. 3d 978, 2019)

HONORABLE KAREN NELSON MOORE, United States Circuit Judge, HONORABLE TIMOTHY S. BLACK, United States District Judge, HONORABLE MICHAEL H. WATSON, United States District Judge TABLE OF CONTENTS

I. BACKGROUND...994

A. General Overview of the Facts...994

B. Procedural History...1009

II. SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL...1010

A. Plaintiffs' Fact Witnesses...1010

B. Defendants' Fact Witnesses...1019

C. Plaintiffs' Expert Witnesses...1025

D. Defendants' and Intervenors' Expert Witnesses...1049

III. STANDING...1062

A. Vote-Dilution Claims...1063

B. First Amendment Associational Claim...1073

C. Article I Claim...1076

IV. JUSTICIABILITY, THE POLITICAL QUESTION DOCTRINE, AND THE ROLE OF THE FEDERAL COURTS IN REDISTRICTING...1076

A. Justiciability and The Political Question Doctrine...1076

B. Evidentiary Metrics and Statistics...1082

C. Pragmatic and Historical Considerations...1085

V. LEGAL STANDARDS AND APPLICATION...1092

A. Equal Protection Vote-Dilution Claim...1093

B. First Amendment Vote-Dilution Claim...1150

C. First Amendment Associational Claim...1151

D. Article I Claim...1163

VI. LACHES...1165

VII. REMEDY AND ORDER...1168

APPENDICES OF MAPS

Plaintiffs have brought this action alleging that H.B. 369, the redistricting plan enacted by the Ohio General Assembly and signed into law by the Governor in 2011, constitutes an unconstitutional partisan gerrymander under the First and Fourteenth Amendments and exceeds the powers granted to the states under Article I, § 4 of the United States Constitution. As to the First and Fourteenth Amendment district-specific claims, we find that Districts 1-16 were intended to burden Plaintiffs' constitutional rights, had that effect, and the effect is not explained by other legitimate justifications. Moreover, we find that that the plan as a whole burdens Plaintiffs' associational rights and that burden is not outweighed by any other legitimate justification. Finally, we find that the plan exceeds the State's powers under Article I. Therefore, H.B. 369 is an unconstitutional partisan gerrymander. This opinion constitutes our findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1).

Due to the length of this opinion, we provide the reader with the following, more concise summary:

"Partisan gerrymandering" occurs when the dominant party in government draws district lines to entrench itself in power and to disadvantage the disfavored party's voters. Plaintiffs in this action are individual Democratic voters from each of Ohio's sixteen congressional districts, two non-partisan pro-democracy organizations, and three Democratic-aligned organizations. They challenge the constitutionality of Ohio's 2012 redistricting map. Defendants are Ohio officials, and Intervenors are Ohio Republican Congressmen; Defendants and Intervenors both argue that the Plaintiffs' claims are not properly before this Court and defend the map's constitutionality on the merits.

In 2011, when Ohio's redistricting process began, Republican dominance in the Ohio State government meant that Republican state legislators could push through a remarkably pro-Republican redistricting bill without meaningful input from their Democratic colleagues. Ohio Republicans took advantage of that opportunity, and invidious partisan intent-the intent to disadvantage Democratic voters and entrench Republican representatives in power-dominated the map-drawing process. They designed the 2012 map using software that allowed them to predict the partisan outcomes that would result from the lines they drew based on various partisan indices that they created from historical Ohio election data. The Ohio map drawers did not work alone, but rather national Republican operatives located in Washington, D.C. collaborated with them throughout the process. These national Republicans generated some of the key strategic ideas for the map, maximizing its likely pro-Republican performance, and had the authority to approve changes to the map before their Ohio counterparts implemented them. Throughout the process, the Ohio and national map drawers made decisions based on their likely partisan effects.

The map drawers focused on several key areas of the Ohio map where careful map design could eke out additional safe Republican seats. They split Hamilton County and the City of Cincinnati in a strange, squiggly, curving shape, dividing its Democratic voters and preventing them from forming a coherent voting bloc, which ensured the election of Republican representatives in Districts 1 and 2. They drew a new District 3 in Franklin County, efficiently concentrating Democratic voters together in an area sometimes referred to as the "Franklin County Sinkhole." This strategy allowed them to secure healthy Republican majorities in neighboring Districts 12 and 15. They paired Democratic incumbent Representatives Kaptur and Kucinich to create the infamous "Snake on the Lake"-a bizarre, elongated sliver of a district that severed numerous counties. They drew a District 11 that departed from its traditional territory to snatch up additional African-American Democratic voters in Summit County, allowing for the creation of a new District 16 in which a Republican incumbent representative could defeat a Democratic incumbent representative. They designed these districts with one overarching goal in mind-the creation of an Ohio congressional map that would reliably elect twelve Republican representatives and four Democratic representatives.

Ohio Republican legislators enacted the first iteration of the 2012 map, H.B. 319, in September 2011. Ohio voters then challenged the map, seeking to subject it to a voter referendum, but their efforts failed. As a result, Ohio Republicans passed a slightly different version of the map, H.B. 369, in December 2011. The changes they made did not materially alter the strong pro-Republican partisan leaning of the map's first iteration. Four cycles of congressional elections have occurred under the map embodied in H.B. 369. Each resulted in the election of twelve Republican representatives and four Democratic representatives. No district has been represented by representatives from different parties during the life of the map.

During a two-week trial, experts testified to the extremity of the gerrymander. They demonstrated that levels of voter support for Democrats can and have changed, but the map's partisan output remains stubbornly undisturbed. The experts used various metrics and methodologies to measure their findings, but several takeaways were universal: (1) the Ohio map sacrifices respect for traditional districting principles in order to maximize pro-Republican partisan advantage, (2) the Ohio map's pro-Republican partisan bias is extreme, compared both to historical plans across the United States and to other possible configurations that could have been adopted in Ohio, and (3) the Ohio map minimizes responsiveness and competition, rendering one consistent result no matter the particularities of the election cycle.

We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity. Performing our analysis district by district, we conclude that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into districts that are so skewed toward one party that the electoral outcome is predetermined. We conclude that the map unconstitutionally burdens associational rights by making it more difficult for voters and certain organizations to advance their aims, be they pro-Democratic or pro-democracy. We conclude that by creating such a map, the State exceeded its powers under Article I of the Constitution. Accordingly, we declare Ohio's 2012 map an unconstitutional partisan gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally viable replacement.

I. BACKGROUND

A. General Overview of the Facts

1. The redistricting process begins

Every ten years, the United States government conducts a census. The census results dictate the size of each state's delegation to the United States House of Representatives because House seats are based on population. Following the release of the census results, state legislatures redraw their United States congressional districts in order to reflect population changes. In Ohio, the 2010 census revealed that the State's comparative population stagnation required reducing the State's previous congressional delegation from eighteen to sixteen. In that same year, Ohioans elected a Republican Governor, elected a Republican majority in the State Senate, and flipped the Ohio House of Representatives to be majority Republican as well. In the State of Ohio, the Ohio General Assembly is responsible for enacting legislation that delineates the federal congressional districts. Both the State Senate and the State House of Representatives must pass such a bill by a simple majority and the Governor must then sign the bill into law. Therefore, when map-drawing activities commenced in 2011, the Republican Party had effective control of all bodies necessary to pass a redistricting bill.

In Ohio, redistricting is facilitated by the Joint Legislative Task Force on Redistricting, Reapportionment, and Demographic Research ("Task Force"). The Task Force is a six-person bipartisan committee. The Task Force does not actually draw the maps. Rather "it is the entity to which the state legislature appropriates money" so that the Task Force can then contract with other entities and individuals to assist in the redistricting process. Prior to the 2011 redistricting, the Task Force requisitioned from Cleveland State University ("CSU") a dataset containing demographic and political data that map drawers of both parties could use in the redistricting process. The practice of the Ohio General Assembly has been to allow the Task Force to allocate separate funds in equal amounts to the Ohio Democratic Caucus and the Ohio Republican Caucus and to allow the parties to conduct much of their redistricting work separately. This is precisely what occurred during the 2011 map-drawing process. Eventually, maps are produced that are then sent for the General Assembly to enact in a bill, which is then sent to the Governor. The Ohio Senate and House of Representatives also established committees on redistricting, chaired by Republicans State Senator Keith Faber and Representative Matthew Huffman, respectively.

2. Logistics of the Republican map drawing

Republican map-drawing planning occurred at both the State and federal levels, and the two levels worked together, collaborated, and consulted one another throughout the process. At the State level, Ray DiRossi and Heather Mann served as the principal on-the-ground map drawers. DiRossi had previously been employed as a staffer for Republican members of the General Assembly and as a fundraiser for the Ohio Republican Senate Campaign Committee. He was also deeply involved in the 2001 redistricting process following the 2000 census. Mann had been working for the Ohio House Republican Caucus since 2004, most recently as Deputy Legal Counsel and Redistricting Director, reporting to Speaker of the Ohio House of Representatives William Batchelder ("Speaker Batchelder"). It was decided that both DiRossi and Mann should formally cease their employment with the Ohio House Republican Caucus and instead conduct their map-drawing work as independent consultants. As a consultant, Mann reported to Speaker Batchelder, and DiRossi reported to State Senate President Tom Niehaus. Troy Judy, Chief of Staff for Speaker Batchelder, was also deeply involved in the map drawing.

DiRossi secured a room at the DoubleTree Hotel in Columbus beginning in July 2011 to serve as the base for the map-drawing operations. DiRossi had the hotel move the usual furnishings out of the hotel room and instead had desks and three computers installed. Various Republican legislators, staff members, and operatives visited the DoubleTree room during the map-drawing process. They included Mann, DiRossi, Judy, Speaker Batchelder, President of the Ohio Senate Tom Niehaus, Representative Matt Huffman, State Senator Keith Faber, Chief of Staff in the Ohio State Senate Mike Schuler, Chief Legal Counsel to the majority in the Ohio House of Representatives Mike Lenzo, map-drawing expert John Morgan, head of Team Boehner Tom Whatman, and legal counsel Mark Braden. No Democratic legislator or staffer ever visited.

Mann, DiRossi, and Judy each used a computer equipped with a software package called "Maptitude." Various types of demographic data as well as historical election data and compilations of that data can be uploaded into Maptitude. The software then allows map drawers to draw district lines over a map of a state. Map drawers can view and work on maps in very fine detail-down to the census block unit. As the map drawer draws or alters lines, the program will calculate, recalculate, and display the corresponding demographic and historical election data for the newly drawn districts in real time. Map drawers can save their draft maps both as visual depictions and as data files that contain the assignments of each geographical unit to a particular district. Maptitude will also export into Excel spreadsheets the political data that corresponds to the draft maps.

As mentioned above, much of the data that the map drawers used had been furnished to them through a contract that the Ohio General Assembly entered into with CSU. CSU created and provided the Task Force with the Ohio Common Unified Redistricting Database ("Database" or "OCURD"). The Database included many types of geographic, demographic, and historical partisan election data for the State of Ohio, broken down to the split census block level. The Task Force provided this information to both the Democratic and Republican Caucuses. Mark Braden, who was retained by the Ohio Attorney General to represent and advise the General Assembly during the 2011 redistricting process, hired Clark Bensen from the company Polidata to do some additional work with the data sets to make the data more workable and to provide additional historical election data for the Republican map drawers.

Mann, DiRossi, and Judy were tasked by the Republican Caucuses with drawing maps that were favorable to Republicans. Many Republican leaders indicated their preference for a 12-4 map. In order to gauge whether their draft maps would achieve this goal, they used partisan indices, created by compiling the historical partisan voting data from certain chosen elections. The indices were then uploaded into Maptitude so that the map drawers could predict how their draft districts would likely perform politically in future elections.

Various indices were used because individuals involved in the map-drawing process preferred different indices. At times they used an index that they created and termed the "Unified Index." The Unified Index averaged the results of five races, overall reflecting a partisan landscape more favorable to the Democratic Party than an index that would have included a fuller set of elections from the decade preceding the redistricting. The map drawers also used the " '08 McCain Index," which also reflected a strong Democratic performance. The map drawers used Maptitude to create spreadsheets by "output[ting] the numbers to show what various indexes, as well as other data, were for all the districts." They sometimes created comparison spreadsheets to allow them to compare the political index scores of different draft maps to one another. Individuals involved in the map-drawing process also used the Partisan Voter Index ("PVI"), which is used in the well-known Cook Political Report. PVI scores classify districts as either Republican leaning (R+) or Democratic leaning (D+). These classifications are accompanied by a score quantifying the strength of such a leaning.

Individuals not involved in the day-to-day map drawing were sometimes shown the draft districts' predicted partisan proclivities as assessed with various indices. The map drawers would also print out spreadsheets that contained the draft districts' predicted partisan leanings using various indices and share them with Republican Party leaders at redistricting meetings. Judy regularly checked in on DiRossi and Mann as they worked, received updates, reviewed draft maps, and relayed information between Batchelder, DiRossi, and Mann. DiRossi and Mann regularly reported developments to and received feedback from Speaker Batchelder and President Niehaus. They also kept Senator Faber and Republican Chief of Staff in the Ohio State Senate Matt Schuler informed as changes were made.

3. National Republican involvement

National Republican operatives supported the State-level map drawers in their work from beginning to end. This collaboration started prior to the map drawing itself, when Ohio Republican staffers such as DiRossi, Mann, Judy, Schuler, and Chief Legal Counsel for the Ohio House Republican Caucus Michael Lenzo, as well as Representative Huffman attended a redistricting conference hosted by the National Conference of State Legislatures ("NCSL") in Washington, D.C. Lenzo had also attended a Redistricting and Election Law Seminar hosted by the Republican National Committee ("RNC") in Washington, D.C., in Spring 2010. At these meetings, the Ohio Republican staffers made contact with national Republican operatives such as Mark Braden, Tom Hofeller, and John Morgan, who later advised them and collaborated with them during the map-drawing process.

At the Spring 2010 seminar, Morgan gave a presentation on map drawing, advising map drawers to keep the process secret and to score the maps to determine the likely partisan outcome. In 2011, Morgan conducted a follow-up visit to Ohio, where he presented on map-drawing tactics to DiRossi, Mann, and Judy. Speaker Batchelder and President Niehaus also attended a redistricting meeting in Washington, D.C. in the spring of 2011 with Whatman and Republican members of the U.S. congressional delegation.

At the time of the census and redistricting, Congressman John Boehner of Ohio was the Speaker of the United States House of Representatives. Ohio Republicans understood that Speaker Boehner would have considerable input in the 2012 map and were committed to enacting a map that he supported. Batchelder spoke with Boehner about once each month during the creation of the 2012 map and met with Boehner twice. Boehner employed Tom Whatman as the head of his "Team Boehner." Boehner tasked Whatman with liaising between Republican members of the congressional delegation and the Ohio map drawers; Whatman began working on the redistricting process at the federal level in December 2010 or January 2011.

Whatman employed Adam Kincaid, the Redistricting Coordinator of the National Republican Congressional Committee ("NRCC"), to assist in the redistricting efforts. Kincaid drafted proposed maps and district lines that incorporated Whatman's requests and sent them to DiRossi and Mann and, on occasion, Braden. Kincaid also met repeatedly with members of Ohio's congressional delegation throughout the redistricting process to hear their concerns and keep them abreast of developments. As the districts were drawn, Kincaid updated Whatman and the Republican congressmen about the political leanings of their new districts based on the historical election data, producing spreadsheets with partisan index information for the various draft districts. In the final days of the drafting, state and national Republicans tweaked the map, mindful of the partisan consequences of very minor tweaks. In some cases, it was clear that national Republican operatives had the authority to "sign off" on changes before they were implemented by the State-level team.

4. Major features of H.B. 319

Because of the stagnation in Ohio's population compared to other states, two districts had to be eliminated. This meant that if all incumbents were to run for office, at least two sets of incumbents would have to be paired. The Republicans decided to pair two Republican representatives and two Democratic representatives. Whatman made the decision to pair Republican Congressmen Turner and Austria; Speaker Boehner approved the pairing. Whatman also spoke to both Austria and Turner about the decision. Speaker Batchelder was not involved in the decision to pair those two Republican congressmen.

As for the Democratic pairing, the map drawers paired Representative Marcy Kaptur of former District 9 and Representative Dennis Kucinich of former District 10; Kaptur won the Democratic primary that ensued. Kaptur testified that she did not want to be paired with Kucinich, but she was not consulted by the Republican map drawers on the matter. She saw the map embodied in H.B. 319 for the first time in media reports around the time of the bill's introduction. Kaptur was "astonish[ed]," upset, and offended by the map, which she understood to break up communities of interest and involve unnatural groupings of communities with diverging interests.

The map drawers also paired Republican Representative Jim Renacci of the former District 16 and Democratic Representative Betty Sutton of the former District 13 to run against each other in the new District 16. DiRossi testified that the third pairing was necessitated by: drawing District 11 to include portions of Akron, population loss in Northeast Ohio, "two congresspeople who were living very close together," and the creation of the new District 3 in Franklin County.

The map drawers drew District 11 to include some portions of the City of Cleveland in Cuyahoga County and a thin strip dropping southward into Summit County where it incorporated sections of the City of Akron. Representative Marcia Fudge, who had represented District 11 under the previous map prior to the 2011 redistricting, was not consulted by Republican map drawers and did not learn of District 11's new boundaries until around the time that H.B. 319 was introduced in the legislature. She was displeased with the new shape of the district, particularly the extension of the district into Summit County and Akron, areas with which she was not familiar and that she had not previously represented. District 11 had historically been a majority-minority district that elected African-American congressional representatives by large margins. Some map drawers expressed that it "was a consideration for us in a proposed map to make sure it remained a majority-minority district."

The map drawers created a new district, District 3, in Franklin County, where the City of Columbus is located. Columbus had been experiencing population growth while metropolitan areas in northern Ohio had been losing population. It is an urban center that is the home of The Ohio State University, and it contains many Democratic voters. Whatman and Kincaid had the idea to create the new District 3 in Columbus that would concentrate many of Columbus's Democratic voters into one district. One spreadsheet sent among those involved in the map-drawing process referred to the new District 3 as the "Franklin County Sinkhole," but it is unclear who exactly included that term. The draft map creating the new District 3 allowed for safe quantities of Columbus's Democratic voter bloc to be absorbed by the neighboring Districts 12 and 15 such that those districts could maintain or achieve safe Republican majorities.

State-level and national Republican operatives emailed back and forth sharing and consulting on plans for this new district. Kincaid created a proposed map that included such a district, which scored as D+15 using his PVI metric, and shared the draft map with DiRossi and Mann. Braden asked Hofeller to consult on one draft of the map created by Kincaid, including the new district. Hofeller approved it after removing from District 15 some territory that Kincaid had allocated to it. Hofeller noted that this " 'downtown' area" was " 'dog meat' voting territory" and "awful" in explaining why it should not be included in the Republican-assigned District 15. Kincaid followed up with minor tweaks of the Columbus area division, but the general contours, as tweaked by Hofeller, remained the same. The 2012 map, which placed downtown Columbus in District 3, uses irregular lines to divide Franklin County and Columbus into three districts-3, 12, and 15. In every election under the 2012 map, the Democratic candidate has won District 3 while Districts 12 and 15 have elected Republican representatives.

For a time, the Republicans considered drawing a map that would include "13 'safe' seats" for their party rather than twelve. In order to accomplish this, Franklin County and the City of Columbus would be split into four different districts rather than the three they were split into under the 2012 map. Kincaid developed such a map and calculated the PVI scores of the resulting districts. Although such a map could have secured the election of thirteen Republican representatives, the map drawers believed that the margins of victory would have been tighter, as evidenced by lower R+ PVI scores. The Republicans eventually opted for the map that promised one less Republican seat, but in which those twelve Republican seats were safer.

The map drawers sometimes rejected specific requests from Republican members of the Ohio General Assembly, instead prioritizing maintaining the partisan balance of the draft map. For example, State Senator Christopher Widener requested that the map keep Clark County whole. DiRossi and the other map drawers rejected Widener's request in part because unifying Clark County would have negative consequences for the partisan scores of District 15-making the Republican seat there less secure.

The resulting map featured twelve districts likely to elect a Republican representative (Districts 1, 2, 4, 5, 6, 7, 8, 10, 12, 14, 15, and 16) and four districts likely to elect a Democratic Representative (Districts 3, 9, 11, and 13).

5. Secrecy surrounding the map

The Republican map drawers did not share plans for the map with either the public or Democratic legislators or staffers prior to introducing it in the Ohio House of Representatives. Although the State Senate's and State House's committees on redistricting, chaired by Senator Faber and Representative Huffman, respectively, held five public hearings in different locations across Ohio in July and August of 2011 while the maps were being drafted, their members did not share drafts of the maps or political indices at the hearings. The Republican map drawers shared the map with Representative Armond Budish, the Democratic Minority Leader in the Ohio State House of Representatives, only just immediately before the bill was introduced. The map drawers even declined to share information with other Republican members of the Ohio General Assembly prior to the formal introduction of the bill. For example, State Senator Faber saw the map just shortly before its introduction as a bill.

6. Passage of H.B. 319

The Ohio Republicans first introduced a 2012 redistricting map in the form of H.B. 319 on September 13, 2011 in the House State Government and Elections Committee. The Committee referred the bill to the House, and it was debated on the floor of the House on September 15, 2011. Representative Huffman, the sponsor of the bill, spoke on the House floor about the map-drawing process and the factors that the map drawers had considered in drawing the new district lines. Democratic Minority Leader Budish spoke on the floor of the House, criticizing the secrecy of the map-drawing process and the Republicans' failure to take outside input into account. House Democrats also complained that the bill was being rushed through the General Assembly and that the accelerated timeframe for its passage prevented serious scrutiny and critique. The bill passed in the House of Representatives that same day by a vote of fifty-six to thirty-six.

On September 19, 2011, H.B. 319 was introduced in the Ohio State Senate. The Senate Committee on Government Oversight and Reform, chaired by Senator Faber, then held hearings on the bill. The Committee amended the bill to include a $ 2.75 million appropriation for local boards of elections in an attempt to make the bill immediately effective and shield it from a voter referendum. The Committee referred the amended bill to the Ohio Senate. On the floor of the Senate, some Democratic State Senators, including Senator Nina Turner, a member of the Black Caucus, opposed the bill and argued that it "lays out 12 Republican districts and four Democratic districts." The bill passed in the Senate by a vote of twenty-four to seven on the same day it was referred. The amended H.B. 319 then returned to the House of Representatives where it passed by a vote of sixty to thirty-five. It was signed into law on September 26, 2011, by Republican Governor John Kasich.

7. Referendum and negotiations

Despite the appropriation amendment intended to insulate the map from a voter referendum, Ohio voters sought to mount such a referendum. A group of Ohio voters filed a petition for a writ of mandamus with the Supreme Court of Ohio. They sought an order declaring that H.B. 319 could indeed be subjected to a voter referendum. State ex rel. Ohioans for Fair Dists. v. Husted , 130 Ohio St.3d 240, 957 N.E.2d 277 (2011). The Ohio Supreme Court granted the writ of mandamus on October 14, 2011; voters could seek a referendum and the bill could not immediately go into effect. Id. In order to put the referendum on the ballot, Ohio voters would have to gather the signatures of 6% of state electors in slightly over two months.

This also meant that H.B. 319 would not take effect until December 25, 2011, after the December 7, 2011 candidate filing deadline set for the March 2012 primaries. In response, Republican legislators passed H.B. 318, which split the Ohio primaries. The local, state, and U.S. Senate primaries would still occur in March 2012, but the U.S. presidential and U.S. House of Representatives primaries were pushed back to June 2012. This split primary would cost the State of Ohio $ 15 million.

In the shadow of the possible referendum and split primaries, Ohio Republican and Democratic legislators attempted to negotiate some alterations to H.B. 319 that could be enacted as a new bill-H.B. 369. This openness to feedback from the Democrats had not been present in the drawing of H.B. 319. Some Republican map drawers testified that Bob Bennett, the chairman of the Ohio Republican Party and a member of the RNC, served as a go-between for the Republicans and Democrats during this period, communicating Democratic requests to the Republican map drawers. The Republicans, although making small concessions and alterations to their original map to cater to Democratic desires, refused to make changes that would alter the likely partisan outcome of the map. Speaker Batchelder commented that the Democratic legislators' "theory was somehow or another that they could overcome a majority of people who were in the other party, and I don't know how that would have happened."

DiRossi, Mann, and Judy worked with Maptitude at their office at the Ohio House of Representatives to draw minor changes into the redistricting map in the period between the passage of H.B. 319 and H.B. 369. For example, DiRossi testified that he made changes based on his belief that Representative Kaptur and others had requested that additional territory in Lucas County and Toledo be added and territory in Cleveland be removed from District 9 so that Kaptur would have a better chance of defeating Kucinich. The changes also included the unification of Clark County.

On November 3, 2011 Representative Huffman introduced the new Republican redistricting bill, H.B. 369, in the House Rules and Reference Committee; he gave sponsor testimony in the committee on November 9. H.B. 369 would eliminate the newly split primary. Republican State Representative Lou Blessing sought to push H.B. 369 through the General Assembly by suspending the normal rules mandating that bills be considered by each legislative house on three separate days. Representative Blessing did not have sufficient votes to achieve this result. Around this time it became clear that the Ohio voter referendum challenging H.B. 319 would not be successful; the required votes would not be collected in time. This meant that Democrats had a weaker bargaining position in their efforts to convince Republicans to make further changes to H.B. 369.

8. Passage of H.B. 369

On December 14, 2011, both the Ohio House of Representatives and the Ohio Senate passed an amended version of H.B. 369, over vigorous opposition from some Democrats. The bill passed in the House by a margin of seventy-seven to seventeen (including twenty-one Democratic votes in favor) and in the Senate by a margin of twenty-seven to six (including four Democratic votes in favor). Not only was the amended H.B. 369 nearly identical in terms of partisan leanings to H.B. 369 as it was first introduced, but it was also highly similar to H.B. 319, the first redistricting plan that the General Assembly had passed. It was signed into law by Governor Kasich the following day. Because the partisan metrics of the map did not change, the new congressional districting map passed as H.B. 369 was just as likely as H.B. 319 to result in the election of twelve Republican representatives and four Democratic representatives.

Following the passage of H.B. 369, Kincaid created a spreadsheet that documented his analysis of the partisan outcomes of the newly enacted map. The spreadsheet featured four D+ districts, with their numerical scores ranging from D+12 to D+29. It also featured twelve R+ districts, with all but one of their numerical scores ranging from R+2 to R+9, and the outlier measuring at R+14. Kincaid prepared a presentation in which he showed how the redistricting efforts had shored up Republican support in three previously competitive districts-Districts 1, 12, and 15, rendering them safe for Republican Representatives Chabot, Tiberi, and Stivers, thereby taking them "out of play." By Kincaid's calculations, District 1 had moved seven PVI points in favor of Republicans by including Warren County and removing portions of Democratic Hamilton County. District 12 had moved nine PVI points in favor of Republicans because portions of Democratic Columbus had been removed from the district and into District 3. Similarly, District 15 had moved seven PVI points in favor of Republicans, as the new District 3 now also contained many of District 15's former Democratic constituents. Kincaid's presentation also noted that Districts 6 and 16 were "Competitive R Seats Improved" because their PVI scores had become more pronouncedly pro-Republican as a result of the redistricting, District 6 by three points and District 16 by one point. Kincaid continued to praise the results of his map-drawing collaboration with the Ohio Republicans, representing that the "new [Ohio] map should be a 12-4 map," that it "eliminat[ed] Ms. Sutton's seat," and that it "created a new Democrat seat in Franklin County." He stated elsewhere that the Ohio "Republican map shored up multiple seats for the decade."

U.S. Representative Stivers's communications with his staff reflected his similar belief that various previously competitive districts had been made solidly Republican as a result of the redistricting. For example, he stated that "[t]he redistricting in Ohio did shore up some of the toss-up districts" based on the changes in the PVI scores for Districts 1, 6, and 15. He acknowledged that U.S. Representative Chabot of District 1 "probably won't have a close race for the next decade" based on the changes the redistricting wrought on that district's PVI score and the fact that his district contained many more Republican voters following the redistricting.

9. Congressional elections under the 2012 Map

As predicted by Kincaid, the same four Ohio congressional districts (Districts 3, 9, 11, and 13) have elected Democratic representatives, and the same twelve districts (Districts 1, 2, 4, 5, 6, 7, 8, 10, 12, 14, 15, and 16) have elected Republican representatives in every election since the enactment of the 2012 map.

B. Procedural History

Plaintiffs include seventeen individual Ohio residents, who collectively reside and vote in each of Ohio's sixteen congressional districts, and five organizations based in Ohio. The individual Plaintiffs are: Linda Goldenhar, Douglas Burks, Sarah Inskeep, Cynthia Libster, Kathryn Deitsch, LuAnn Boothe, Mark John Griffiths, Lawrence Nadler, Chitra Walker, Tristan Rader, Ria Megnin, Andrew Harris, Aaron Dagres, Elizabeth Myer, Beth Hutton, Teresa Thobaben, and Constance Rubin. The organizational Plaintiffs, which include nonpartisan groups as well as groups affiliated with the Democratic Party, are: the Ohio A. Philip Randolph Institute ("APRI"), the League of Women Voters of Ohio ("The League"), The Ohio State University College Democrats ("OSU College Democrats"), the Northeast Ohio Young Black Democrats ("NEOYBD"), and the Hamilton County Young Democrats ("HCYD").

Defendants are State Representative Larry Householder, Speaker of the Ohio House of Representatives; State Senator Larry Obhof, President of the Ohio State Senate; and Ohio's Secretary of State, Frank LaRose. All Defendants are sued in their official capacities.

Plaintiffs filed this lawsuit on May 23, 2018. Dkt. 1 (First Compl.). This three-judge panel was then convened pursuant to 28 U.S.C. § 2284. See Dkt. 28. Plaintiffs twice amended their complaint and, as relevant here, filed their second amended complaint on July 11, 2018, seeking declaratory and injunctive relief and the enactment of a new congressional districting plan. See Dkt. 37 (Second Am. Compl. at 50-52). On August 15, 2018, we denied Defendants' motion to dismiss. See Ohio A. Philip Randolph Inst. v. Smith , 335 F.Supp.3d 988 (S.D. Ohio 2018). After that, we granted the Intervenors' motion to intervene, and they joined the litigation. See Dkt. 64.

The case then proceeded through discovery, and on January 8, 2019, Defendants moved for summary judgment. See Dkt.

136 (Mot. for Summ. J.); Dkt. 140, 140-1 (Intervenors' Suppl. Mot. for Summ. J. & Mem.). After a round of briefing, we denied the motion for summary judgment. See Ohio A. Philip Randolph Inst. v. Householder , 367 F.Supp.3d 697, 2019 WL 652980 (S.D. Ohio Feb. 15, 2019). Trial commenced on March 4, 2019 and lasted eight days, concluding on March 13.

Since the trial, the parties have filed post-trial briefs with proposed conclusions of law, and separately, proposed findings of fact. The parties have also finalized their objections to the other side's evidence, responded to each other's objections, and submitted additional briefs on those objections. This briefing schedule concluded on April 7, 2019.

II. SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

A. Plaintiffs' Fact Witnesses

1. Individual Plaintiffs

Individual Plaintiffs Douglas Burks, Mark Griffiths, Aaron Dagres, and Elizabeth Myer testified at trial. They live in District 2, District 7, District 12, and District 13, respectively. The remainder of the individual Plaintiffs, who reside in the rest of the congressional districts, testified via deposition. All individual Plaintiffs testified to their affiliation with the Democratic Party and/or that they consistently vote for Democratic candidates. See infra Sections III.A.1.-16. In addition to being Democratic voters, the individual Plaintiffs are politically active in supporting, volunteering for, and working for Democratic candidates and causes. Collectively, they have engaged in a variety of activities, including door-to-door canvassing, calling other voters to support candidates, writing campaign postcards, fundraising for and donating to candidates, writing letters to representatives and opinion pieces, and protesting. Several of the Plaintiffs have also worked on Democratic campaigns and served on boards of groups or political committees affiliated with the Democratic Party. Finally, the individual Plaintiffs testified, based on their direct lay experiences of engaging in political activity, to the burdens that they themselves have experienced in translating their Party's political efforts in the electorate into political power in the U.S. House of Representatives. The individual Plaintiffs testified that their efforts included candidate recruitment, fundraising, and get-out-the-vote activities.

2. Organizational Plaintiffs

APRI, the League, and HCYD each testified at trial through a representative, and some additional members of the organizations supplemented the testimony. Several themes ran throughout this testimony. First, the organizations actively engage in politics by encouraging citizens to vote, registering and educating voters, and in the case of HCYD, advocating on behalf of Democratic candidates. Second, in their experience, voter outreach and engagement work was made more difficult by continuously encountering significant voter apathy. They heard voters state their beliefs that their votes did not matter; voters believed that the outcome of any given election was preordained and that the same Republican or Democrat would be elected regardless of whether they voted. Third, the organizational plaintiffs encountered voter confusion-voters did not know to which district they belonged, who represented them, or who was running for office in their districts. Fourth, the organizational plaintiffs testified that they were forced to divert resources from their other work to address this voter apathy and confusion. Individual members of the organizations testified about their involvement with their organizations and their own political work supporting the elections of Democratic candidates. They testified that in their experience, they found their Republican congressional representatives unresponsive to them and not engaged in their communities. They also explained how their communities had been split into different districts under the 2012 map.

Andre Washington, the president of APRI, testified at trial on the organization's behalf. Washington is a Democrat who votes regularly and resides in District 12. Under Plaintiffs' Proposed Remedial Plan, Washington would reside in the reconfigured District 12. APRI is a nonpartisan organization but supports civil rights and labor issues. Its activities center around voter education, registration, and outreach. APRI has eight chapters across Ohio, seven of which are currently active, and has between 150 and 200 members spread throughout nearly every congressional district in Ohio. It is a volunteer-run organization, funded by membership dues.

Washington testified that he has personally witnessed voter apathy-people feeling like their vote does not matter-while attempting to engage voters in his own district. He testified that because of the way the lines are drawn, voters do not know where to vote or who is running in their district. Washington testified that APRI must deploy some of its limited resources to combat voter apathy and confusion rather than spending these resources on its other work.

Stephanie White, the vice president of APRI's Toledo chapter, also testified at trial. White is a Democrat who votes regularly and resides in District 5. White believes that District 5 "is not part of the Lucas County community," but rather that "it's part of the Fulton County, Defiance, Williams County area, which is predominantly Republican." She is represented by Republican Congressman Bob Latta. White testified that she has spent time in her political work with ARPI addressing Toledo voters' confusion about their assigned congressional districts. She also conducts partisan political activities such as door-to-door canvassing, phone banking, voter registration drives, and get-out-the-vote ("GOTV") work to help elect Democratic candidates such as James Neu and John Galbraith, who ran for Congress against Representative Latta in the 2016 and 2018 elections, respectively.

Jennifer Miller, the Executive Director of the League testified at trial on the organization's behalf. The League is a nonpartisan organization that hosts candidate forums, publishes voter education materials, registers voters, and participates in GOTV activities. It has around 2,800 members across Ohio, living in all of Ohio's congressional districts. The League has a long history of attempting to reform the districting process and Ohio's district lines. For example, it commissioned and published a report criticizing the process through which the 2012 map was drawn, and in 2011 it hosted a competition in which members of the public could submit redistricting map drafts that comported with non-partisan traditional redistricting principles.

Miller testified that the League spends resources combating voter apathy and confusion due to the 2012 map that it then cannot spend on its other initiatives such as voter registration and education. For example, during the 2018 special election in District 12, the League had to divert significant resources to fielding voters' calls inquiring about their assigned congressional districts. Miller has also observed political candidates' unresponsiveness to the League's attempts to plan candidate forums, particularly in Republican-dominated areas. She testified that Congressmen Jordan, Stivers, and Joyce have all been unresponsive to the League's requests that they participate in candidate forums. The League cannot hold a candidate forum in which only one party is represented, and therefore must cancel the planned forums if the candidate from one party declines to participate.

John Fitzpatrick, a member of the League and a voter in District 14 also testified at trial. Fitzpatrick lives in Stow, Ohio, which is a northern suburb located about ten minutes from downtown Akron. Under Plaintiffs' Proposed Remedial Plan, Fitzpatrick would live in the new District 16. He is a Democrat who votes regularly, has informal conversations with friends to encourage them to vote and vote for particular candidates, has contributed financially to Democratic candidate Betsy Rader's congressional campaign, and has canvassed and phone banked in other elections. Fitzpatrick is currently represented by Republican Congressman David Joyce. Fitzpatrick considers himself a part of the Akron community because he and his wife spend most of their time, recreate, and are involved in the community there. He has been involved in League activities such as planning candidate nights, voter education, and anti-gerrymandering activities such as working to get Ballot Initiative 1 on the Ohio ballot. Fitzpatrick stated that in the year and a half prior to the passage of Initiative 1, 80% of his work with the League was dedicated to anti-gerrymandering work.

Fitzpatrick also testified about voters in the Akron area being confused about the district in which they live. He himself attempted to use a "congressional house finder" tool to determine his congressional district, but typing in his zip code produced two possible districts. He stated that because Summit County encompasses four different congressional districts, "before [he] got super-involved in [his] district, there [were] more than a few times when [he] had to look it up because [he] had a hard time just remembering exactly which district [he] was in."

Nathaniel Simon, the outgoing president of the HCYD, testified on the organization's behalf. Simon lives and votes in District 2 and is represented by Republican Congressman Brad Wenstrup. Under Plaintiffs' Proposed Remedial Plan, Simon would live in the new District 1. HCYD is a volunteer organization that educates and registers voters and supports Democratic candidates by canvassing and conducting GOTV efforts on their behalf. HCYD has between 100 and 150 members who vote, identify as Democrats, and live in Districts 1 and 2. Simon testified that HCYD has to expend additional resources fighting voter apathy and confusion. He testified that he felt voters were apathetic because, while canvassing for Democratic candidates Aftab Pureval and Jill Schiller, he encountered voters who "refuse[d] to engage in politics because they felt like there was no point, just being that a Republican is always going to win with the way the lines are drawn." Simon testified that the voter confusion in Hamilton County was due in large part to the current map, in particular the manner in which Districts 1 and 2 "wrap[ ] around each other" and the splitting of the City of Cincinnati itself into two districts. For example, Simon testified that he worked at a polling place in Silverton and that:

many people who came out of the polling booth asked why wasn't Aftab Pureval on my ballot ... I had to explain to them that they are in the 2nd Congressional District, but to the east and west of Silverton is the 1st Congressional District. Also, in my neighborhood, which is in the 2nd Congressional District, there were Aftab Pureval signs, and he is the candidate for the 1st district.

Simon also testified that the district lines have made it more difficult for HCYD to attract and retain members.

NEOYBD and OSU College Democrats' testimony was introduced through designated depositions. NEOYBD is a Democratic group that "looks to mentor, empower and recruit the next generation of young people of color who want to be involved in the political process." It has around sixty Democratic members who vote regularly and live in Districts 9, 11, 13, and 14. Gabrielle Jackson, the president of the organization, was its Rule 30(b)(6) representative. The organization canvasses, runs phone banks, educates people on "why [their] vote matters, why [they] should be voting," and "concrete issues that are on the ballot," and advocates on behalf of the candidates that the organization supports. Jackson testified that her group fundraises both for candidates and for itself. She stated that "it's been challenging based on the way this map is currently drawn, because folks have been feeling like, you know, [their] voices aren't being heard. So it's causing us to use more of our resources, when we have a hard time bringing in resources." Jackson testified that while canvassing and phone-banking with her organization, she spoke with people who expressed apathy about voting and said that they did not believe that their votes mattered.

Alexis Oberdorf is the President of the OSU College Democrats and was the group's Rule 30(b)(6) representative. The OSU College Democrats "advocate, educate, and engage people at OSU in alignment with the Democratic Party's platform." The organization has around 55 members who regularly attend meetings but hosts events throughout the year that around 100 people attend. OSU College Democrats canvasses and runs phone banks in support of Democratic candidates and has held fundraisers for Democratic candidates such as Danny O'Connor. Oberdorf testified that OSU students who live near campus reside in Districts 3, 12, and 15 and that the organization must therefore "spread[ ] [its] capital among three different areas on campus." The majority of OSU College Democrats vote "on campus in their district." She testified that she worked a poll in District 12 during an election and witnessed students coming to vote in the incorrect district "because they assumed seeing that they're ... in this campus area, they are all going to vote in the same area. So that creates confusion. And part of what we do as a club is aim to educate people." She also testified that her organization has "done coordinated call campaigns for bills that [it] oppose[s]" to representatives from those districts and has found "it challenging especially to contact or get ... a response from those individuals."

3. Congresswoman Marcia Fudge

Congresswoman Marcia Fudge, representative to the United States House of Representatives from Ohio's Congressional District 11, testified for Plaintiffs at trial. She testified that District 11 has been represented by three different representatives in Congress: Lou Stokes, Stephanie Tubbs Jones, and herself.

Congresswoman Fudge described the historical contours of District 11. When Congresswoman Fudge took office in 2008, District 11 "was primarily a little better than two-thirds of the city of Cleveland and most of the southeast suburbs." The district was entirely contained within Cuyahoga County. When Stephanie Tubbs Jones took office in 1999, District 11 included "most of the city of Cleveland, the lower west side all the way to the east and the southeast suburbs of Cuyahoga County," and was again entirely within Cuyahoga County. The district that Congressman Stokes represented was "pretty much the same," again, entirely within Cuyahoga County. Congresswoman Fudge contrasted that historical District 11 with the version of District 11 that she currently represents: "[T]he first major difference is that [her district] go[es] from Cuyahoga down to Summit County" via a "narrow strip."

Congresswoman Fudge unequivocally stated that she "didn't have any role" in the drawing of the new congressional map in 2011. She first learned that the new District 11 would extend into Summit County and include parts of Akron "around the time that the map was made public." Armond Budish, the Democratic minority leader of the Ohio House of Representatives, was the one to first show her the map "pretty much so [she] wouldn't get caught off guard." She stated that she was "surprise[d], obviously" by the new District 11 and had "no idea that [she] would ever go down into Summit County." She was not "pleased" by the new design, she "would not have chosen it," and she "was not happy about it." Congresswoman Fudge stated that she "didn't know anything about Summit County" at the time and that her lack of familiarity with the new area made it "an uncomfortable place to be." She stated that due to Ohio's losing two congressional seats and the inevitable changes that that would necessitate, she thought that the new District 11 would most likely include the entire City of Cleveland and its southeast suburbs.

Congresswoman Fudge stated that after learning of the new map, the only complaint that she voiced was her belief that allocating "Summit County or that portion of Akron" to the new District 11 "would make it almost impossible" for Democratic Representative Sutton to win an election in the new District 16. Congresswoman Fudge stated that she got together with Congresswoman Sutton and Congresswoman Kaptur to contact Armond Budish to "ask him was there any way to give Betty back Akron so she would have a fighting chance at keeping her seat." She testified that she "may have" spoken with U.S. House of Representatives Speaker Boehner in 2011 about the redistricting "in passing" but recalls nothing about such a conversation. She spoke to "[l]ots of people" about the shape of her district in 2011, including Republican Congressman Steve LaTourette, who she believed was "kind of the point person for John Boehner." She also spoke to Representatives Sutton and Kucinich, first attempting "to see if we could get [the shape of the district] changed because we wanted to try to see if we could help protect Betty [Sutton]. We couldn't." She then "made sure they knew [she] was not pleased."

Congresswoman Fudge admitted that she did not tell any of the people that she spoke with in 2011 about District 11 that she did not want District 11 to be a majority-minority district. She did not advocate the drawing of District 11 with less than 50% BVAP ("Black Voting Age Population"). She testified that in 2011 she did not view the new district as a violation of the Voting Rights Act ("VRA"). Congresswoman Fudge stated that she was not concerned about being paired with another incumbent in the redistricting because she "felt if they were to pair me with somebody, I felt that I was strong enough to win." She expressed no concern to anyone about being paired with Congressman Kucinich. On cross-examination, Congresswoman Fudge stated that since Stokes's time as the congressman for the district, it has been a majority-minority district.

4. State Senator Nina Turner

State Senator Nina Turner, a former Democratic member of the Ohio State Senate, testified for Plaintiffs as a fact witness. Senator Turner served Ohio's 25th State Senate District from 2008 to 2014. At the time of the 2011 redistricting, Senator Turner testified that the State Senate was comprised of ten Democratic Senators, five of whom were African American, and twenty-three Republican Senators. As a result of being in the "deep minority," Senator Turner testified that she had no involvement in the drawing of the current map and that the Democratic Caucus as a whole "didn't have the power to draw the map" because "Republicans could hold business on the [Senate] floor without really having Democrats there." When she first learned of the map presented in H.B. 319, Senator Turner testified that she was "outraged" and that her Caucus tried to "introduce a map that was a fairer reflection of the will of the people." As to H.B. 319, Senator Turner stated that only two Democratic State Senators voted for the bill and that she voted no. Senator Turner believed that the map presented in H.B. 319 would be a 12-4 map.

Senator Turner also gave a floor speech against H.B. 319, in part addressing the justification that the District 11 was drawn to comply with the VRA. At trial, Senator Turner explained her belief that the way District 11 was drawn harmed the voters the VRA sought to protect by "hurt[ing] the[ir] voting prowess" and decreasing their "influence that they would have through representative democracy by stripping or combining portions of the 11th Congressional District in ways that representatives could not focus purely on Cleveland and/or Cuyahoga County." Senator Turner also noted that Congresswoman Marcia Fudge and former Congressman Louis Stokes "never had a problem winning elections in that district." She further testified that the way District 11 was drawn harmed both the greater Cleveland and the greater Akron communities because she believed that the two communities have separate needs and "deserve to have a representation that can really focus in on their needs."

As recounted above, after H.B. 319 was enacted into law, Democratic state legislators sought a referendum to overturn the law, which required a certain number of signatures. This referendum failed because not enough signatures were collected, and Republican state legislators then went forward with H.B. 369. Senator Turner testified that she had no input on the map presented in H.B. 369, that she believed that the map was still 12-4 in favor of Republicans like H.B. 319, and that she and a majority of the Democratic Caucus in the State Senate (as well as a majority of the African-American State Senators) voted against H.B. 369.

Senator Turner spoke against H.B. 369 in a floor speech similar to the one she made against H.B. 319. In this floor speech, Senator Turner stated that "[t]o say that this map is bipartisan is laughable" because, as she stated at trial, she believed that "the mere fact that some Democrats, for whatever reason, decided to vote for the bill does not make it bipartisan." At bottom, Senator Turner maintained her belief that H.B. 369 had a clear partisan effect.

Finally, on cross-examination