Rogers v Teitelbaum Writ of Mandamus and/or Prohibition

    No. 91-1618

In The

Btxprmt (Emtrt of %  Irnteft Btntm
October Term, 1992

George V. Voinovich, Governor of the State of 
Ohio, et al.,

Appellants,

Barney Quilter, Speaker Pro Tempore of the 
Ohio House of Representatives, et al.,

Appellees.

Appeal from the United States District Court 
for the Northern District of Ohio

APPELLANTS’ REPLY BRIEF

Of Counsel:
David L. Shapiro 
1525 Massachusetts Avenue 
Cambridge, MA 02188 
(617) 495-4618

N. V ictor Goodman 
Counsel of Record
James F. DeLeone 
Orla E. Collier III 
Mark D. Tucker 
Benesch, Friedlander, 

Coplan & Aronoff 
88 East Broad Street 
9th Floor
Columbus, OH 43215 
(614) 223-9343

W il s o n  - Ep e s  P r in t in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D . C . 2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ______ __ _____ ______ii

INTRODUCTION...................... .................. ......... ....... -  1

ARGUMENT------------- ---------- ------ ---------- ----------------- 2
I. THE DISTRICT COURT ERRONEOUSLY

SHIFTED THE BURDEN OF PROOF FROM 
THE PLAINTIFFS TO THE APPORTION­
ING OFFICIALS ....        2

II. THE DISTRICT COURT ERRED IN HOLD­
ING THAT THE APPORTIONMENT BOARD 
VIOLATED THE FIFTEENTH AMEND­
MENT ............................................     14

III. THE DISTRICT COURT ERRED IN FIND­
ING A VIOLATION OF THE FOURTEENTH 
AMENDMENT..........................................      15

CONCLUSION ........................................................................ 19



11

TABLE OF AUTHORITIES
Cases Page

Abate v. Mundt, 403 U.S. 182 (1971)__________ 15
Baird v. Consolidated City of Indianapolis, ------

F.2d ------, 1992 WL 240973 (7th Cir. Septem­
ber 30, 1992)______________________ ________ 7

Brown v. Thomson, 462 U.S. 835 (1983)........... . 15,16
Chisom v. Roemer, 111 S.Ct. 2354 (1991)_______  13
City of Mobile v. Bolden, 446 U.S. 55 (1980)_____ 15
Davis v. Bandemer, 478 U.S. 109 (1986)________  7
Fund for Accurate and Informed Representation,

Inc. v. Weprin, ------  F. Supp. ------ , 1992 WL
204274 (N.D.N.Y. Aug. 19, 1992)___________  15

Mahan v. Howell, 410 U.S. 315 (1973)_________  16
Reynolds v. Sims, 377 U.S. 533 (1964)__   15
Thornburg v. Gingles, 478 U.S. 30 (1986)_____ 8, 10,13
Voinovich v. Ferguson, 63 Ohio St. 3d 198 (1992).. 5, 16,

17
United States Constitution

Fourteenth Amendment ......... .................. ..... ....... ..2, 4,15
Fifteenth Amendment............. .................................................................................. 1,  4, 15

Miscellaneous
42 U.S.C. § 1973______________________________passim
Ohio Const., Art. XI, § 3 ____      18
Ohio Const., Art. XI, § 4 _________       18
Ohio Const., Art. XI, § 9 ____ ___ ___________ __ _ 16,17
Ohio Const., Art. XI, § 10 (B )...... ........... ....... ....... . 16,17



In The

Bxtpnm (Hmrt at %  States
October Term , 1992

No. 91-1618

George Y. V oinovich, Governor of the State of 
Ohio, et al.,

Appellants,

Barney  Quilter, Speaker Pro Tempore of the 
Ohio House of Representatives, et at.,

_________ Appellees.

Appeal from the United States District Court 
for the Northern District of Ohio

APPELLANTS’ REPLY BRIEF

INTRODUCTION

Despite Appellees’ many diversions and obfuscations, 
they, as well as Amici Curiae Congressman Louis Stokes, 
et al., have failed to defend or explain the basic flaw in 
the district court’s decision: the finding of a § 2 violation 
because Appellants failed to satisfy their burden of proof. 
Imposing such a burden upon apportioning officials, rather 
than plaintiffs, is completely at odds with the language 
and purpose of the Voting Rights Act and constitutes a 
serious interference with state authority.

Furthermore, Appellees have failed to direct this 
Court’s attention to any evidence supporting the district 
court’s belated finding of intentional discrimination in 
violation of the Fifteenth Amendment. Nor have Ap­



2

pellees, or Amici Curiae NAACP Legal Defense and Edu­
cational Fund, et al., justified the district court’s even 
more belated finding that the 1991 plan of apportion­
ment, as amended, violates the one person-one vote re­
quirement of the Fourteenth Amendment. Consequently, 
the decisions of the district court must be reversed and 
this case remanded with instructions to enter judgment 
in favor of Appellants,

ARGUMENT
I. t h e  d i s t r ic t  c o u r t  e r r o n e o u s l y  s h if t e d

THE BURDEN OF PROOF FROM THE PLAIN­
TIFFS TO THE APPORTIONING OFFICIALS.

A. As with their Motion to Dismiss or Affirm, Ap­
pellees attempt to minimize the importance of the district 
court’s shifting of the burden of proof to Appellants. The 
district court’s January 31, 1992 Order, which is ampli­
fied and restated in its Orders of March 10 and 19, 1992, 
however, indisputably requires state redistricting officials 
to “justify” their construction of minority controlled state 
legislative districts. In so doing, the district court im­
permissibly relieved the plaintiffs of the burden of show­
ing minority vote dilution and shifted the burden to de­
fendants by requiring them to show a past violation of 
§ 2 of the Voting Rights Act and/or that their redistrict­
ing plan does not presently violate § 2. Although Appellees’ 
Brief attempts to trivialize this issue, it is the primary 
flaw of the district court’s decision in this case. Appellees 
were unable to satisfy their burden of proving their § 2 
claim, but nevertheless prevailed before the district court 
because the burden of proof was impermissibly shifted 
to Appellants,

By shifting the burden of proof to state redistricting 
officials, the district court in effect stripped those officials 
of their legitimate discretion to take action consistent 
with § 2 of the Voting Rights Act. In drafting the plan, 
Appellants never intended to prove, nor did they have the



3

legal obligation to prove, that the 1981 apportionment was
in violation of the Voting Rights Act. The evidence con­
sidered by the Apportionment Board and submitted to 
the district court by Appellants was never meant to estab­
lish such a violation. That evidence was, however, suffi­
cient to induce Appellants to consult extensively with 
minority groups1 in an effort to discourage potential 
plaintiffs from filing a § 2 challenge or, if such challenge 
was filed, to prevent it from being successful.2

Appellees evidently concede Appellants’ principal con­
tention— that the district court wrongfully shifted the 
burden of proof— by their failure to challenge that con­

1 Appellees deceptively suggest that this Court should discount 
Appellants’ extensive cooperation with the Ohio NAACP and 
particularly with its reapportionment project coordinator Floyd 
Johnson (“Johnson” )—as well as its support for Appellants’ plan 
of apportionment—-because Johnson was paid to act as a “ con­
sultant” for the Ohio Senate. See Appellees’ Brief at 7-8. In 
reality, however, Johnson’s “ consulting contract” with the Ohio 
Senate was nothing more than an effort to provide funding for 
Johnson’s redistricting activities, which had not been adequately 
funded by the Ohio NAACP. D. 125 at 57. Moreover, Appellees 
fail to advise the Court that Johnson was also paid to act as a 
“ consultant” to those responsible for drafting the proposed plan 
on behalf of Appellees Ferguson and Quilter. D. 73 at 48; D. 125 
at 56.

Johnson, on behalf of the Ohio NAACP, has unequivocally voiced 
his support for districts in all of Ohio’s counties containing sub­
stantial minority population. D. 125 at 58; D. 154, Ex. 16 at 21-24. 
The National NAACP, as well as several other national minority 
groups, also apparently support Appellants’ construction of these 
districts. See Brief of Amici Curiae NAACP Legal Defense and 
Educational Fund, et al„ at 12-22.

2 Appellees evidently contend that Article XI of the Ohio Con­
stitution prohibits the Apportionment Board from pursuing such 
a policy because “ [t]he entirety of Ohio’s ‘policy’ regarding appor­
tionment is set forth in Article XI of the Ohio Constitution . . . .” 
Appellees’ Brief at 28. No such question of state law is before this 
Court, see infra at 5-6, and in any event, it is ludicrous to suggest 
that state officials may not maintain a policy of consulting with 
affected groups in their efforts to comply with federal law.



4

tention on its merits. Appellees’ sole response on this 
issue is to mischaracterize Appellants’ argument, claim­
ing that we “ seek the unreviewable discretion to apply 
Voting Rights Act provisions . . . Appellees’ Brief at 
22. On the contrary, Appellants have never sought power 
to “ apply” the Voting Rights Act at all; we seek to com­
ply with it, exercising redistricting authority in the first 
instance, subject to subsequent Voting Rights Act 
challenge.

B. In an effort to obfuscate the basic flaw in the dis­
trict court’s decision, Appellees baselessly suggest that Ap­
pellants violated § 2 of the Voting Rights Act, the Four­
teenth and Fifteenth Amendments to the United States 
Constitution, and Article XI of the Ohio Constitution in 
drafting Ohio’s 1991 plan of apportionment. Appellees’ 
arguments simply are not supported either in law or fact, 
and thus serve only to mislead this Court.

1. For example, Appellees attack the 1991 plan of ap­
portionment, i.e., “ Amendment C,” as though the final 
amendments to that plan, i.e., “Amendment D” adopted 
in February, 1992, did not exist.3 They repeatedly refer 
to the relative minority populations of the house districts 
under “Amendment C,” without reference to such popu­
lation figures under “Amendment D.” See Appellees’ 
Brief at 9-13.4

3 As noted in Appellants’ Brief, the Apportionment Board adopted 
a redistricting plan on October 1, 1991. D. 154, Ex. 16 at 31-32. 
Minor technical amendments to that plan were adopted on October 
3, 1991, and this version of the plan was labeled as “ Amendment C.” 
D. 154, Ex. 17 at 9-14. The plan was technically amended on 
February 18, 1992, pursuant to the instructions of the Ohio Supreme 
Court and the amended version was labeled as “ Amendment D.” 
D. 147, Ex. C at 59. Appellees and the district court refer to 
“Amendment C” as “ the 1991 plan,” and “ Amendment D” as “ the 
1992 plan.” The 1991 plan of apportionment, as amended on Febru­
ary 18, 1992, will be referred to herein as either “ the 1991 plan of 
apportionment, as amended,” or “ Amendment D,”

4 See also Appellees’ Brief at 34 where Appellees refer to their 
“ Charts A & B” in an attempt to show that Appellants’ plan of



5

Similarly, Appellees refer to numerous alleged Ohio
Constitutional violations under “Amendment C” while 
refusing to acknowledge that the Apportionment Board 
adopted “Amendment D,” pursuant to the express instruc­
tions of the Ohio Supreme Court, in order to make techni­
cal corrections to the plan. See Voinovich v. Ferguson, 63 
Ohio St. 3d 198 (1992). Indeed, the district court in this 
case observed that “ ft]hese [Ohio Constitutional] deficien­
cies were corrected in the 19.92 Plan.” Quitter v. Voino- 
vich, J.A. at 337 (N.D. Ohio May 5, 1992). Appellees 
simply refuse to acknowledge this fact.

“Amendment D” is the plan now in effect, and the plan 
under which the June 2, 1992, primary election was con­
ducted. See Quitter v. Voinovich, J.A. 333 (N.D. Ohio 
May 5, 1992). Appellees’ efforts to obscure the factual 
and legal issues in this case by continuing to attack 
alleged deficiencies in “ Amendment C” must, therefore, 
fail.

2. Furthermore, although Appellees go to great lengths 
attempting to convince this Court that Appellants com­
pletely disregarded Article XI of the Ohio Constitution 
in drafting the 1991 plan of apportionment, as amended, 
it must once again be emphasized that these state law 
issues are not before this Court. The district court ab­
stained on all state law issues, as those issues were before 
the Ohio Supreme Court in Voinovich v. Ferguson, 63 
Ohio St.3d 198 (1992). Quitter v. Voinovich, App. at 15a 
(N.D.Ohio Jan. 31, 1992). The Ohio Supreme Court 
issued an order declaring “the plan to be constitutional.” 
Voinovich, 63 Ohio St. 3d at 200.5 6 Appellees did not seek

apportionment unlawfully disperses minority voters into districts 
with less than 10% African American population. Appellees’ fail 
to advise the Court, however, that “ Charts A & B” are based on ex­
hibits of Appellees’ expert witnesses, which exhibits relate solely to 
“Amendment C.”

6 Appellees attempt to minimize the effect of the Ohio Supreme 
Court’s opinion by noting that the issues before that Court were



6

this Court’s review of the Ohio Supreme Court’s decision. 
Consequently, no court has found that the 1991 plan of 
apportionment, as amended, violates Article XI of the 
Ohio Constitutionn, and thus, these state law issues are 
not before this Court.

3. In a further and even more distressing effort to 
detract from the primary issue in this case— the district 
court’s improper shifting of the burden of proof to state 
redistricting officials— Appellees now endeavor to recast 
what is truly a political gerrymandering claim as a claim 
of racial discrimination under § 2 of the Voting Rights 
Act. Remarkably, Appellees argue that Appellants vio­
lated the Voting Rights Act because they failed to create 
enough districts wherein African Americans constituted 
at least 13% of the voting age population. Appellees 
assert that such districts have historically elected a Demo­
crat, and, they seem to suggest, the only white repre­
sentatives responsive to the needs of the African Ameri­
can community are Democrats. See Appellees’ Brief at 3.8 
Appellees simply cannot make out a claim of a § 2 viola­
tion on the basis of an allegation that the 1991 plan of 
apportionment, as amended, will reduce the number of

limited. The district court in this case, however, abstained on al! 
state law issues two weeks prior to the Ohio Supreme Court’s deci­
sion. Appellees, who had earlier filed but then withdrew their Ohio 
Constitutional counterclaim in the Ohio Supreme Court action, 
briefed, but failed to refile their claims as a counterclaim in the 
Ohio Supreme Court following the district court’s decision to 
abstain. The district court, which issued ten orders following the 
Ohio Supreme Court’s allegedly “ narrow” decision, see D. 156, 159, 
163 [App. 118a], 169, 173 [App. 127a], 176 [App. 324a], 187, 189, 
191, & 194 [J.A. 333], has never departed from its decision to 
abstain. Appellees’ belated effort to revive the very state law claims 
that have either been resolved or abandoned must, therefore, be 
rejected.

6 As noted in Appellants’ Brief, Floyd Johnson of the Ohio 
NAACP decried Appellees’ efforts to “ use” black voters to bolster 
the incumbencies of white Democrats as “plantation politics” which 
could no longer be tolerated. D. 147, Ex. B at 62.



7

white Democrats elected from districts with 13% black 
voting age population. See Baird v. Consolidated City of
Indianapolis, — — F,2d ------ , 1992 WL 240973, slip op.
at '*4 (7th Cir. Sept. 30, 1992) (“Section 2 of the Voting 
Rights Act forbids the ‘denial or abridgment of the right 
. . . to vote on account of race or color.’ It is a balm for 
racial minorities, not political ones— even though the two 
often coincide. * * * The Voting Rights Act does not 
guarantee that nominees of the Democratic Party will be 
elected, even if black voters are likely to favor that 
party’s candidates.” ) .

Appellees’ advancement of this argument merely sup­
ports Appellants’ contention throughout this litigation 
that this case was commenced primarily to preserve the 
lopsided Democratic majority in the Ohio House of Rep­
resentatives. In essence, Appellees undertake to convince 
this Court that, despite the evidence that the plan of ap­
portionment is politically fair,7 Appellants impermissibly 
politically gerrymandered Ohio’s legislative districts. Ap­
pellees were unable to prove their claim of political gerry­
mandering in the court below, and now seek to recast that 
unsuccessful claim as a claim under § 2 of the Voting 
Rights Act.

7 Dr. Gary King, Professor of Government at Harvard University 
and Director of the Harvard Data Center, testified that the plan of 
apportionment, both as adopted on October 3, 1991, and as amended 
on February 18, 1992, had a partisan bias of zero, i.e., was biased 
in favor of neither political party. J.A. 217-18, 240-44, 260-61. Even 
Appellees’ evidence based upon a “ political index” (which, inci­
dentally again ignores “Amendment D” ) indicated that Democrats 
would likely win 41 of 99 Ohio House seats under “Amendment C,” 
while only winning 45 under the plan submitted by Appellees 
Ferguson and Quilter. Given this evidence, it is not surprising 
that the district court ignored, and therefore presumably rejected, 
Appellees’ political gerrymandering claim. See Davis v. Bandemer, 
478 U.S. 109 (1986) (Fourteenth Amendment political gerrymander­
ing claim can only be established if redistricting plan “ consistently 
degrades” a group of voters’ opportunity to influence the electoral 
process as a whole).



8
4. Furthermore, Appellees once again mischaracterize 

Appellants’ actions as having ignored the commands of 
the Ohio Constitution in order to create minority con­
trolled districts “wherever possible.” This argument is 
without factual or legal support.

Appellees accomplish this mischaracterization by re­
ferring to isolated quotes, taken out of context, wherein 
Appellant Tilling, Secretary to the Apportioning Persons, 
explained the process of drawing legislative districts to 
members of the public. Appellees’ Brief at 4-5.® When 
asked about these statements in his deposition, Tilling 
carefully explained that he was merely attempting to in­
troduce this complex subject to members of the public, 
and that minority controlled districts should be drawn 
where warranted under the analysis of Thornburg v. 
Gingles, 478 U.S. 30 (1986). D. 102 at 24-27, 29.

Consistent with Tilling’s explanation, Appellants have 
maintained throughout the process of drafting the plan 
and throughout the course of this litigation that § 2 of 
the Voting Rights Act simply requires state redistricting 
officials to avoid the dilution of minority voting strength. 
Findings and Conclusions, App. at 270a (Ohio Appor­
tionment Board Feb. 18, 1992). It neither requires the 
creation of minority controlled districts nor prohibits 
their creation:8 9

8 As properly noted by Amici Curiae NAACP Legal Defense and 
Education Fund, et al., Tilling’s opinion about the requirements of 
the Voting Rights Act is irrelevant. See Brief of Amici Curiae 
NAACP Legal Defense and Education Fund, et al., at 14. Rather, 
the relevant inquiries are whether the Voting Rights Act prohibited 
the Apportionment Board from drawing minority controlled dis­
tricts to avoid a successful § 2 challenge, and whether Appellees 
proved that the 1991 plan of apportionment, as amended, diluted 
minority voting strength. Appellees themselves apparently concede 
this point. Appellees’ Brief at 29 ( “ The 1982 amendments [to the 
Voting Rights Act] made clear the Congressional determination 
that violations were to be judged by their effect regardless of the 
underlying intent of the state actors.” ) (emphasis in original).

9 Appellees resort to isolated quotes from legal memoranda filed 
in the district court to suggest in their Brief that Appellants have



9

Indeed, as conveniently ignored by Appellees, the 1991 
plan of apportionment, as amended, i.e., “Amendment D,” 
contains only five house districts in which African- 
Americans constitute a majority of the voting age popu­
lation. The 1981 plan of apportionment contained four 
such districts, and the plan proposed by Appellees Fergu­
son and Quilter contained six.10 The suggestion, there­
fore, that Appellants operated under a per se rule of cre­
ating minority controlled districts is simply not supported 
by the facts of this case.

C. Appellees have once again asserted that Appellants 
have waived their argument that the district court im­
permissibly shifted the burden of proof on Appellees’ § 2 
claim. In addition to their contention that Appellants 
waived this argument by not appealing from the district

only recently adopted this position. See Appellees’ Brief at 17-18. 
A thorough review of the briefs filed by Appellants in the district 
court, however, clearly indicates that we have consistently main­
tained the position advocated before this Court: Appellees could 
not prevail on their Voting Rights Act claim unless they proved 
that the districts as drawn diluted minority voting strength. The 
quotations from Appellants’ lower court briefs, which are primarily 
quotations from cases quoted within the briefs, merely raise a legal 
defense: even if Appellees were factually correct, i.e., Appellants 
did create minority controlled districts “wherever possible,” existing 
legal precedent authorized such action. This defense is not in­
consistent with the position advocated by Appellants before this 
Court.

110 Appellees’ accompanying assertion that Appellants have diluted 
minority voting strength by reducing the number of districts in 
which African Americans constitute 10% or more of the voting age 
population is also without merit. Even a cursory comparison of the 
African American voting age populations of the districts in the 
various plans conclusively rebuts Appellees’ argument that Appel­
lants “ packed” as many African American voters into as few dis­
tricts as possible. Although the number of districts with greater 
than 10.% African-American voting age population was reduced 
from 27 in the 1981 plan to 21 in “Amendment D,” the plan sub­
mitted by Appellees Ferguson and Quilter contained only 20 such 
districts. Table I, contained in the Appendix hereto, shows this 
comparison.



10

court’s January 31, 1992 Order,11 12 however, Appellees now 
make an equally frivolous argument: they contend that 
Appellants somehow waived their argument that they 
need not perform a totality of circumstances analysis 
prior to their redistricting by “voluntarily” presenting 
evidence relevant to such analysis to the trial court in 
this case.112

Appellants have maintained throughout this litigation 
that Appellees bore the burden of proving that the Ohio 
plan of apportionment violated § 2 of the Voting Rights 
Act under the totality of the circumstances analysis this 
Court adopted in Thornburg. Indeed, it was not until 
the district court’s January 31, 1992 Order that it was 
even suggested that Appellants were required to perform 
such an analysis as a prerequisite to redistricting.

It is frivolous to contend, as Appellees do, that be­
cause Appellants presented “totality of circumstances evi­
dence” to the trial court in defense of Appellees’ § 2 claim, 
we have somehow waived our argument that the district 
court improperly shifted the burden of proof to Ap­
pellants. Appellees would apparently have this Court hold 
that only plaintiffs, and not state redistrieting defend­
ants, are permitted to present such evidence in a § 2 case, 
and that the plaintiffs’ evidence on these issues can be 
rebutted only at the risk of “ voluntarily” assuming the 
burden of proof.

D. Finally, Appellees argue that the Appellants im­
permissibly “packed” African American voters because

11 Appellants responded to this contention at pages 5-7 of their 
Brief in Opposition to Motion to Dismiss Appeal and to Affirm 
Ruling of Trial Court filed on May 15, 1992. No additional response 
is warranted.

12 As noted in Appellants’ Brief, Appellants’ initial “ totalities 
analysis” was informal in nature and developed for presentation as 
defense evidence to the district court. The more formal, detailed 
analysis undertaken to “ justify” the minority controlled districts 
in the plan upon remand from the district court’s January 31, 1992 
Order can in no sense be considered “ voluntary.”



11

the new districts in which incumbent African American 
legislators intend to seek reelection contain slightly higher 
percentages of minority population than their present dis­
tricts. Appellees’ Brief at 10-13.13 This argument is 
flawed in several respects.

First, the argument presumes that § 2 of the Voting 
Rights Act requires that redistricting be based upon the 
incumbencies of particular legislators. Appellants main­
tain that the Voting Rights Act was designed to protect 
a class of voters, not a class of incumbent legislators. See 
Findings and Conclusions, App. at 235a (Ohio Appor­
tionment Board, Feb. 18, 1992). Dr. King testified that 
minority incumbent state legislators enjoyed a significant 
advantage over their election opponents. J.A. 259-62. 
Given that redistricting should not be based upon the in­
cumbencies of particular legislators, Dr. King’s analysis 
supported the relatively modest increase in minority pop­
ulation in these legislators’ districts. J,A. 260:14

1:3 A similar argument was made by Amici Curiae Congressman 
Louis Stokes, et al. Brief of Amici Curiae Congressman Louis 
Stokes, et al., at 5. We note that Congressman Stokes, as one of the 
parties with whom Appellants consulted regarding the configuration 
of minority controlled districts, endorsed the reapportionment of 
Cuyahoga County, where four of the five minority controlled dis­
tricts are located, see D. 154, Ex. 16 at 2-12, 20-21. Congressman 
Stokes now apparently argues that those districts pack African 
American voters.

14 Contrary to Appellees’ argument, the increases were indeed 
modest. The African American population in Representatives Jones’ 
district was increased from 41.70% [1981 HD45] to 49.90% 
(46.42% black VAP) [“ Amendment D” HD49] ; in Representative 
Sykes’ district from 35.40% [1981 HD42] to 43.07% (39.86 black 
VAP) [“ Amendment D” HD44] ; in Representative Roberts’ district 
from 36.10% [1981 HD37] to 41.69% (38.28% black VAP) 
[“Amendment D” HD39]; in Representative McLin’s district from 
42.10,% [1981 HD36] to 43.50% (40.10% black VAP) [“Amend­
ment D” HD38] ; in Representative Mallory’s district from 45.90% 
[1981 HD23] to 49.16% (43.13% black VAP) [“ Amendment D” 
HD31]; in Representative Rankin’s district from 53.20% [1981 
HD25] to 55.98% (52.72% black VAP) [“Amendment D” HD30];



12

Second, Appellees’ argument, in effect, interprets fed­
eral law to require the maximization of minority voting- 
strength. Appellees evidently assert that minorities are per 
se “packed” into a legislative district if that district con­
tains even one more minority voter than is required to 
reelect an incumbent representative of the minority com­
munity’s choice. If this approach were adopted, state re­
districting officials would be required to perform a de­
tailed statistical analysis to determine the minimum 
number of minority voters necessary to elect a candidate 
favored by minority voters in each district with a poten­
tially significant minority population. They would then 
be mandated to construct districts with those minimum 
numbers of minority voters, and place “ excess” minority 
population in districts where they might arguably exert 
some influence on the electoral process. This approach is 
without any legal support, is fundamentally at odds with 
the principles of the Voting Rights Act, and is directly 
contrary to § 2’s disavowal of proportional representation.

Third, this argument is inconsistent with Appellees’ 
assertion that racial bloc voting does not exist in Ohio. 
If racial bloc voting does not exist in Ohio, then Appellees 
fail to prove their claim of minority vote dilution under

and in Representative Miller’s district from 38.50% [1981 HD29] 
to 54.30% (48.30% black YAP) [“ Amendment D” HD21]. More­
over, the proportion of African American population in four in­
cumbent African American legislators’ districts was significantly 
decreased from the 1981 Democrat constructed plan of apportion­
ment. The African American population in Representative Prentiss ’̂ 
district was decreased from 90.05% [1981 HD14] to 65.64% 
(61.41% black VAP) [“ Amendment D” HD8] ; in Representative 
James’ district from 74.80% [1981 HD12] to 67.35% (63.42% 
black VAP) [“ Amendment D” HD10] ; in Representative Whalen’s 
district from 94.67% [1981 HD16] to 67.25% (65.13% black YAP) 
[“Amendment D” HD12] ; and in Representative Beatty’s district 
from 46.80% [1981 HD31] to 44.68% (40.98% black VAP) 
[“ Amendment D” HD22], App. 260a-263a. Appellees do not cite 
these figures because they do not support their assertion that 
Appellants egregiously packed African American voters into as few 
districts as possible. See Table I in Appendix hereto.



13

this Court’s analysis in Thornburg v. Gingles, 478 U.S. 
30 (1986), and African American voters cannot be con­
sidered “packed.”  In the absence of racial bloc voting, 
the configuration of district lines does not prohibit Afri­
can Americans from electing a candidate of their choice.

In sum, there is simply no evidence that the 1991 plan 
of apportionment, i.e., “Amendment D,”  in any way di­
lutes the voting strength of minorities anywhere in Ohio. 
Consequently, this Court should reverse the decision of 
the district court and remand the ease with instructions 
to dismiss Appellees’ claim under § 2 of the Voting Rights 
Act.15

15 Although Appellants believe that the position advocated by the 
United States, i.e., that Appellees failed to prove their claim under 
§ 2 of the Voting Rights Act because they do not satisfy the three 
preconditions of Thornburg v. Gingles, 478 U.S. 30 (1986), is a 
correct one, this Court need not decide this case on that basis. As 
demonstrated above, the facts of this case simply do not support 
Appellees’ assertions and novel theories of a § 2 violation. In any 
event, Appellants believe that Appellees, as well as Amici Curiae 
Congressman Louis Stokes, et al., misconstrue the United States’ 
argument in this regard.

Appellees suggest, at pages 43-44 of their Brief, that the United 
States argues that racial bloc voting must always be proven as a 
precondition to establishing a § 2 claim. We do not understand the 
United States to make such a sweeping argument. Rather, the 
government asks the Court to apply the Thornburg v. Gingles pre­
conditions only to claims that the drawing of electoral district lines 
has impermissibly diluted the voting strength of a particular racial 
group by fragmenting or packing that group’s voters. See Brief of 
the United States as Amicus Curiae at 14. Thus, under the United 
States’ view, challenges to voter registration practices, candidate 
qualification requirements, the location of polling places, and a 
whole host of other election procedures could presumably be brought 
under § 2 without any need to satisfy the Thornburg v. Gingles 
preconditions.

Accordingly, Appellees further err in suggesting that the United 
States’ position is inconsistent with this Court’s recognition in 
Chisom v. Roemer, 111 S.Ct. 2354 (1991), that even small groups of 
minority voters are protected by § 2 because such groups could 
influence the outcome of an election. I l l  S.Ct. at 2365 n.24. Appli-



14

II. THE DISTRICT COURT ERRED IN HOLDING 
THAT THE APPORTIONMENT BOARD VIOLATED 
THE FIFTEENTH AMENDMENT.

As noted in the amici curiae briefs of both the United 
States and the NAACP Legal Defense and Educational 
Fund, et al., as well as in Appellants’ Brief, the finding 
of a Fifteenth Amendment violation simply cannot with­
stand scrutiny. Once Appellees have failed on their Vot- 
ing Rights Act claim that Appellants curtailed minority 
participation in the political process, Appellees must nec­
essarily fail on their Fifteenth Amendment claim that 
Appellants intentionally discriminated against that mi­
nority with respect to that process.

The district court’s finding that Appellants intention­
ally discriminated against minorities in drafting the 1991 
plan of apportionment, as amended— a finding that ap­
pears to have been almost an afterthought—belies all 
logic and common sense. Appellants consulted extensively 
with minority groups throughout the process of drafting 
the apportionment plan. The Ohio NAACP endorsed the 
districts in all of Ohio’s urban counties, which have now 
also apparently been endorsed by the National NAACP. 
See Brief of Amici Curiae NAACP Legal Defense and 
Education Fund, et al., at 12-22. In addition, the minor­
ity districts in Cuyahoga County— which contains four of 
the five minority controlled districts under the 1991 plan 
of apportionment, as amended—have been endorsed by 
the Black Elected Democrats of Ohio (“ BEDO” ), the 
Black Elected Democrats of Cleveland, Ohio (“ BEDCO” ), 
Senator Jeff Johnson (an African American member of 
the General Assembly from Cuyahoga County), and Rep-

cation of the Thornburg v. Gingles preconditions to one class of § 2 
claims—those involving “ dilution” challenges to the drawing of dis­
trict lines—would not undermine the ability of small minority 
groups to bring other § 2 challenges to electoral procedures or prac­
tices that frustrate their equal “ opportunity . . .  to participate in 
the political process and to elect representatives of their choice.” 
42 U.S.C. § 1973(b).



15
resentative Louis Stokes (an African American member 
of the United States Congress from Cleveland). The evi­
dence cited by Appellees and the district court simply does 
not support the extraordinary finding of unconstitutional 
discrimination against a minority group when so many 
prominent members of that minority group endorsed the 
plan of apportionment. See City of Mobile v, Bolden, 446 
U.S. 55, 62 (1980). See also Fund for Accurate and In­
formed Representation, Inc. v. Wepnin, -— F.Supp. — , 
1992 WL 204274, slip op. at *5 (N.D.N.Y. Aug. 19, 1992) 
(“ [Plaintiffs] claim minority vote dilution was caused by 
defendant’s partisan gerrymandering efforts. * * * It is 
well settled that constitutional claims [under the Four­
teenth and Fifteenth Amendments] require proof that the 
apportionment plan be ‘conceived or operated as [a] pur­
poseful device [] to further racial discrimination.’ With­
out a racially discriminatory aim, the purposeful dis­
crimination required under the Constitution cannot be 
shown.” ) (citations omitted).

III. THE DISTRICT COURT ERRED IN FINDING A 
VIOLATION OF THE FOURTEENTH AMEND­
MENT.

The Briefs of Appellees and Amici Curiae NAACP 
Legal Defense and Educational Fund, et al., fail to sup­
port the district court’s finding of a Fourteenth Amend­
ment violation. A proper analysis of the Fourteenth 
Amendment claim requires reversal of that finding.

This Court has long held “ that a desire to preserve the 
integrity of political subdivisions may justify an appor­
tionment plan which departs from numerical equality.” 
Abate v. Mundt, 403 U.S. 182, 185 (1971). See also 
Reynolds v. Sims, 377 U.S. 533, 578 (1964). Accordingly, 
this Court has concluded that a total population deviation 
of under 10% is insufficient to make out a prima facie 
case of a Fourteenth Amendment violation. Population 
deviations of greater than 10% must, however, be justi­
fied as reasonably advancing a rational state policy. 
Brown v. Thomson, 462 U.S. 835, 842-43 (1983).



16

In the present case, the district court merely concluded 
that because the population deviations exceeded 10%— 
13.81% total deviation for the Ohio House of Represen­
tatives and 10.54% for the Ohio Senate— those districts 
which are not within plus or minus five percent of the 
ideal population are invalid. The court, which did not 
make the finding of a Fourteenth Amendment violation 
until it issued its March 19, 1992, opinion denying Ap­
pellants’ request for a stay, failed to analyze this claim 
within the framework adopted by this Court in Brown, 
supra and Mahan v. Howell, 410 U.S. 315 (1973).

Initially, it must be noted that Appellees’ Fourteenth 
Amendment claim, as well as the district court’s finding 
of a violation, is based solely upon the population of three 
house districts and one senate district.1'8 Appellees as­
serted no claim that these districts were slightly “under­
populated” because of any racial or political discrimina­
tion. Appellees’ belated suggestion to the contrary, see 
Appellees’ Brief at 33, is simply an effort to obfuscate 
this Court’s consideration of this issue.

Moreover, it is undisputed that the deviations in these 
four districts were the result of complying with the anti­
gerrymandering provisions of Article XI of the Ohio Con­
stitution.* 17 The three house districts were all created pur­
suant to Article XI, §§ 9 and 10(B) of the Ohio Consti­
tution. These provisions express the Ohio Constitutional

18 It must also be noted that the senate district involved is the 
senate district expressly validated by the Ohio Supreme Court in 
Voinomch v. Ferguson, 63 Ohio St. 3d 198 (1992).

17 Appellees attempt to discredit this state policy by asserting that 
the 1991 plan of apportionment is replete with violations of the Ohio 
Constitution. Once again, however, it must be emphasized that the 
district court abstained on all state law issues. The Ohio Supreme 
Court concluded that the plan was consistent with the Ohio Con­
stitution, but instructed the Apportionment Board to make technical 
corrections to the plan to bring it into full compliance. The Board 
obeyed those instructions when it adopted “ Amendment D” on 
February 18, 1992.



17

policy of respecting county boundaries by creating whole- 
county house districts where reasonably possible. In 
furtherance of that policy, these sections authorize the 
Apportionment Board to create a house district from a 
single whole county when that county’s population is 
within plus or minus 10% of the ideal population.

The constitutional policy of respecting county bounda­
ries by creating whole county house districts where rea­
sonably possible is a rational state policy that was con­
sistently applied by the Apportionment Board. The Ap­
portionment Board created all three house districts possi­
ble under §§ 9 and 10(B) : House District 5 (Ashtabula 
County), House District 6 (Fairfield County), and House 
District 7 (Wayne County). To add population to any 
of those districts would require the division of another 
county by severing a relatively small portion of an ad­
jacent county to combine with the whole county. Voters 
in the small portion of the divided county would, in all 
likelihood, have very little influence in a district com­
prised almost entirely of another single county.

Similarly, the senate district invalidated by the district 
court, Senate District 32, is slightly “underpopulated” as 
a result of the Apportionment Board’s respect of county 
boundaries. As noted by the Ohio Supreme Court in 
Voinovich v. Ferguson, 63 Ohio St. 3d 198 (1992), to add 
population to Senate District 32 would have required the 
Apportionment Board to cross county boundaries and 
violate one or more other provisions of Article XI of the 
Ohio Constitution. The Ohio Supreme Court held that it 
would “not order [the Apportionment Board] to correct 
one constitutional violation by committing another.” 63 
Ohio St. 3d at 200. Accordingly, the creation of Senate 
District 32 is also a result of the pursuit of the state 
policy of respecting county boundaries.

The NAACP Legal Defense and Educational Fund, 
et at., acknowledge the Apportionment Board’s pursuit 
of this rational state policy, but nevertheless assert that



18

the total deviation violates the Fourteenth Amendment 
because the largest district was not created pursuant to 
this policy, i.e., the largest house district (HD 20) is 
wholly within Cuyahoga County, and presumably could 
be reduced in population to effect a reduction in total 
deviation. This assertion, however, incorrectly attributes 
the Fourteenth Amendment violation to the size of the 
largest districts, House District 20 and Senate District 1. 
Both are well within the 105% limit of Article XI, §§ 3 
and 4, and account for only a small portion of the total 
deviations among house and senate districts. The bulk of 
total deviation is a result of adherence to the express 
Ohio Constitutional policy of respecting county bounda­
ries where reasonably possible by creating whole county 
house districts.18

The four districts at issue in this case (HD5, HD6, 
HD7, and SD32) are solely the result of adherence to the 
rational, and express, state constitutional policy of re­
specting county boundaries where reasonably possible. 
Accordingly, the district court’s finding of a Fourteenth 
Amendment violation must be reversed.

1,8 The population of House District 20 is only 4.91% above the 
ideal population of 109,567, i.e., one house ratio. The smallest house 
district, House District 5 (Ashtabula County), is 8.90% below the 
ideal population.

Similarly, the population of Senate District 1, the largest senate 
district, is only 4.53% above the ideal population of 328,700, i.e., 
one senate ratio. The smallest senate district, Senate District 32̂  
is 6.01% below the ideal population. Senate District 1 is comprised 
of three house districts consisting of nine whole counties and part 
of one county (HD82, HD83, and HD86).



19

CONCLUSION
For the reasons stated herein and in our opening Brief, 

Appellants respectfully request that this Court reverse 
the March 10, 1992, March 19, 1992, and the March 31, 
1992 judgments of the district court, and remand the 
case to that court with instructions to enter judgment in 
favor of the Defendants-Appellants.

Respectfully submitted,

Of Counsel:
David L. Shapiro 
1525 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-4618

N. V ictor Goodman 
Counsel of Record
James F. DeLeone 
Orla E. Collier III 
Mark D. Tucker 
Benesch, Friedlander,

Coplan & Aronoff 
88 East Broad Street 
9th Floor
Columbus, OH 43215 
(614) 223-9343Dated: October 14,1992



APPENDIX



la

APPENDIX

Table I *

1981 Plan “ Amendment D” Ferguson/Quilter Plan

District % Black District
% Black 

VAP District
% Black 

VAP

16 94.67 12 65.13 12 67.08
14 90.05 10 63.42 16 66.67
12 74.80 8 61.41 14 63.71
25 53.20 9 58.36 13 60.18
31 46.80 30 52.72 28 57.91
23 45.90 21 48.30 21 50.60
36 42.10 49 46.42 33 47.10
45 41.70 31 43.13 19 46.40
29 38.50 22 40.98 36 45.26
37 36.10 11 40.61 45 44.98
42 35.40 38 40,10 42 43.09
15 34.80 44 39.86 37 36.20
24 32.30 39 38.28 55 31.19
53 27.80 64 31.19 15 26.46
32 26.60 32 20.76 34 19.55
17 26.14 54 12.93 32 16.71
50 14.90 61 12.34 50 12.49
18 14.70 33 11.84 61 10.92
19 14.40 73 10.71 20 10.88
47 13.20 66 10.28 1 10.07
59 12.81 1 10.01
22 12.60
30 12.40
27 12.20
62 11.64

1 11.15
52 10.50

* Compiled from App. 96a-98a, 177a-178a, 185a, 260a-263a; D. 153, 
Ex. 120.



2a

TABLE OF DOCKET AND EXHIBIT NUMBERS

D. 73 Deposition of Floyd Johnson (Nov. 27, 1991)
D. 102 Deposition of James R. Tilling (Nov. 20, 1991)
D. 125 Deposition of Floyd Johnson (Dec. 10, 1991)
D. 147 Notice of Filing Record (filed Feb. 19, 1992)

Ex. B Apportionment Board Hearing Transcript
(Feb. 11, 1992)

Ex. C Apportionment Board Hearing Transcript
(Feb. 18, 1992)

D. 154 Joint Trial Exhibits (filed Feb. 19, 1992)
Ex. 16 Apportionment Board Hearing Transcript

(Oct. 1, 1991)
Ex. 17 Apportionment Board Hearing Transcript

(Oct. 3, 1991)
D. 156 Order (granting leave to file brief) (Feb. 26, 

1992)
D. 159 Order (granting leave to file brief) (March 5, 

1992)
D. 169 Order (to produce files to special master) 

(March 16, 1992)
D. 187 Order (instructions to special master) (April 28, 

1992)
I). 189 Order (granting motion for status conference) 

(May 1, 1992)
D. 191 Order (docketing exhibits) (May 5, 1992)