No. 18A1166
IN THE
SUPREME COURT OF THE UNITED STATES
________________________
STEVE CHABOT, et al.,
Applicants,
v.
OHIO A. PHILIP RANDOLPH INSTITUTE, et al.,
Respondents.
________________________
REPLY BRIEF IN SUPPORT OF EMERGENCY APPLICATION FOR
STAY PENDING RESOLUTION OF DIRECT APPEAL TO THIS COURT
________________________
PATRICK T. LEWIS
BAKER & HOSTETLER LLP
127 Public Square, Suite 2000
Cleveland, OH 44114
ROBERT J. TUCKER
ERIKA DACKIN PROUTY
BAKER & HOSTETLER LLP
200 Civic Center Drive,
Suite 1200
Columbus, OH 43215

EFREM M. BRADEN
Counsel of Record
KATHERINE L. MCKNIGHT
RICHARD B. RAILE
BAKER & HOSTETLER LLP
1050 Connecticut Ave., NW
Suite 1100
Washington, DC 20036
(202) 861-1504
mbraden@bakerlaw.com

Counsel for Applicants

 TABLE OF CONTENTS
Table of Authorities .................................................................................................... ii
Argument .....................................................................................................................3
I. The Court Is Likely To Note Probable Jurisdiction and
Reverse or Vacate the Decision and Injunction Below ....................................3
A.

Respondents Ignore the High Likelihood of
Summary Vacatur and Remand as a Matter of
Course .....................................................................................................4

B.

Respondents Fail To Defend the District Court’s
Many Legal Errors .................................................................................4

II. Irreparable Harm Will Result Absent This Court’s
Intervention, and the Balance of Equities Favors a Stay .............................11
Conclusion ..................................................................................................................16

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 TABLE OF AUTHORITIES
Cases
Abbott v. Perez, 138 S. Ct. 49 (2017) .........................................................................11
Abbott v. Perez, 138 S. Ct. 2305 (2018) ............................................................... 11, 14
Baker v. Carr, 369 U.S. 186 (1962) .............................................................................6
Barthuli v. Bd. of Trustees of Jefferson Elementary Sch. Dist.,
434 U.S. 1337 (1977) ............................................................................................11
Burns v. Richardson, 384 U.S. 73 (1966) ....................................................................9
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432
(1985) ......................................................................................................................7
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ......................................8
Easley v. Cromartie (Cromartie II), 532 U.S. 234 (2001) ...........................................9
Gill v. Whitford, 137 S. Ct. 2289 (2017) ....................................................................12
Gill v. Whitford, 138 S. Ct. 1916 (2018) .............................................................. 3, 5–6
Karcher v. Daggett, 455 U.S. 1303 (1982) .................................................................12
Karcher v. Daggett, 462 U.S. 725 (1983) .....................................................................9
League of United Latin Am. Citizens v. Perry, 548 U.S. 399
(2006) ......................................................................................................................8
New York v. United States, 505 U.S. 144 (1992) ......................................................13
Reynolds v. Sims, 377 U.S. 533 (1964)......................................................................13
Vieth v. Jubelirer, 541 U.S. 267 (2004) ................................................... 1–2, 5–10, 15
Voinovich v. Quilter, 507 U.S. 146 (1993) ...................................................................9
White v. Weiser, 412 U.S. 783 (1973)...........................................................................9

ii

 TO THE HONORABLE SONIA SOTOMAYOR, ASSOCIATE JUSTICE OF THE SUPREME COURT
OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT:
It is undisputed that Ohio’s 2011 congressional districting plan, which the
district court struck down as unconstitutionally discriminatory against Democratic
Party interests, passed the Ohio legislature with the support of half the Democratic
members. It is further undisputed that this plan divided the political cost of Ohio’s
loss of two congressional seats evenly between the major parties by pairing “two
Republican representatives and two Democratic representatives.” App-14. The
legislature chose to maintain district 11 as a majority-minority district as it had been
since the 1960s, App-16, and to create a new minority opportunity seat in Franklin
County, which had the largest population growth in the State, so that another African
American member might join Ohio’s congressional delegation, App-17–18. This was
a priority of the Democratic members of the legislature. Stay Mot. 7–8.
Those points of agreement on what the district court called the “major features”
of the 2011 plan, App-14 (cleaned up), indicate that, even if political redistricting
violated the Constitution, the district court’s test has identified a false positive—a
case where, the merits of the political choices aside, federal judicial relief is
inappropriate. After all, “[t]he use of purely political considerations in drawing
district boundaries is not a ‘necessary evil’ that, for lack of judicially manageable
standards, the Constitution inevitably must tolerate. Rather, pure politics often helps
to secure constitutionally important democratic objectives.” Vieth v. Jubelirer, 541
U.S. 267, 355 (2004) (Breyer, J., dissenting). As such, “boundaries are not, and should
1

 not be, ‘politics free.’” Id. at 360. But “politics free” is the rule applied below, and
Respondents do not suggest otherwise.
Instead, Respondents ask this Court to deny a stay because the district court
was “closer to the facts.” Opp. 11 (quotations omitted). This is too clever by half. The
federal courts’ quest for manageable standards to distinguish constitutional from
unconstitutional partisan redistricting cannot be resolved by recharacterizing the
question as one of fact. Here, the critical facts are as plain as day, and most are
undisputed. The question is whether they rise to the level of a constitutional
violation—and what standard applies to that question. Respondents, for example, do
not dispute that half of the Democratic legislators voted for the plan, but ask the
Court to afford this fact no legal significance. Opp. 8. The Court is unlikely to agree
with this and the many other legal premises of the decision below, which upset the
“series of compromises” and the “truce”—however “uneasy”—between the “parties
seeking political advantage.” Vieth, 541 U.S. at 360 (Breyer, J., dissenting).
This Court is therefore likely to reverse—if not vacate as a matter of course
once it issues its decisions in Rucho and Benisek—and that matters because
irreparable harm is certain without a stay. Respondents ask this Court to ignore its
own precedent of staying partisan-gerrymandering actions on markedly similar time
frames and to overlook the reality of what the district court’s remedial process entails.
The district court gave the legislature one, and only one, chance to redistrict, and it
must do so by June 14 or lose its opportunity. Asking it to do so now, before this
appeal is decided, is asking it to fly blind as to the applicable law; to risk prejudicing
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 its appeal; to potentially hamstring its ability to return to the 2011 plan if it is
victorious; and, if nothing else, to waste its time on a difficult legislative activity likely
to prove entirely unnecessary.
And Respondents are likely to experience no counterbalancing harm since they
concede no plan will be implemented until after Rucho and Benisek are issued. Once
that occurs, the district court’s injunction will likely be vacated as a matter of course,
and the court will be required to return to the question of liability. Thus, it is unlikely
that Respondents will see any of their desired relief until later this summer at the
earliest, so the hurry they advocate is likely to prove futile. The Court should stay
the injunction below pending appeal. 1
ARGUMENT
I.

The Court Is Likely To Note Probable Jurisdiction and Reverse or
Vacate the Decision and Injunction Below
Respondents’ decision to leave the first element, probability of success, for last

is no accident. Opp. 20–28. Their task in defending the district court is a tall one. This
Court is currently considering the most fundamental aspects of this area of law—
including whether a partisan-gerrymandering claim even exists. Gill v. Whitford, 138
S. Ct. 1916, 1929 (2018). Thus, Respondents’ assertion (at 20) that the district court

As the Applicants’ stay briefing explained (at 4, 19), this Court can treat their stay
application as a jurisdictional statement and vacate the injunction below to swiftly
resolve this appeal once Benisek and Rucho are issued. Respondents lodge no
objection to that approach, and their demand for urgency suggests agreement in
principle.
3
1

 “followed this Court’s precedent” carries no substance. It could not have done so
because there is precious little precedent to follow. And what does exist—e.g., Vieth’s
rejection of a predominance test—the district court either ignored or declined to
honor. See, e.g., App-167–73. Similarly, Respondents’ assertion (at 20) that the
district court’s opinion enjoys the support of “sister three-judge panels” means even
less when those opinions are currently stayed; two are under review in this Court;
and none, of course, are binding here. This element is satisfied.
A.

Respondents Ignore the High Likelihood of Summary Vacatur
and Remand as a Matter of Course

Respondents have nothing to say of the clearest reason the Applicants are
likely to succeed, which is that this Court will likely, as a matter of course, vacate
and remand the district court’s injunction after its Rucho and Benisek decisions are
issued. That will require the district court to return to the drawing board on the
question of liability, make new findings as necessary, and apply what this Court
declares to be the law to this case in the first instance. That would be success on the
merits, and the first element is met on this basis alone. Respondents’ failure to
respond to this point is telling.
B.

Respondents Fail To Defend the District Court’s Many Legal
Errors

Respondents defend the district court’s decision simply by reciting (at 22–27)
the legal tests it adopted and calling (at 27) everything else a challenge to “factual
conclusions,” which they say command this Court’s deference. But whether a
standard is the right standard, whether it is manageable, and how it applies are all
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 quintessential legal questions. It cannot be that whether or not the district court
acted “in the manner traditional for English and American courts,” Vieth v. Jubelirer,
541 U.S. 267, 278 (2004) (plurality opinion), is beyond this Court’s ability to review.
But that is the implication of Respondents’ approach.
1.

As to standing, Respondents assert vaguely (at 26–27) that they

established standing because of a showing of “packing and cracking.” But
Respondents do not explain how “packed” Respondents have suffered a redressable
injury from having too easy a time electing their preferred representatives. Stay Mot.
19–20. Nor do they dispute that their own remedial map places many Respondents in
safe Republican districts where they are unlikely to be able to elect their preferred
candidates of choice (i.e., Democratic candidates). Stay Mot. 19–22. That is no
different from the scenario this Court addressed in Gill, where one plaintiff’s “own
demonstration map resulted in a virtually identical district for him,” since it “has not
affected [his] individual vote for his Assembly representative.” 138 S. Ct. at 1933.
The district court made no contrary factual findings, and Respondents sidestep
this by asserting (at 27) that “the Panel determined that the packing and cracking
demonstrated by Plaintiffs was not caused by the natural political geography of the
state.” This is misleading. The pages Respondents cite, App-258–61, are pages where
the district court had shifted the burden to the defense. That is, it did not find that
“packing and cracking…was not caused by the natural political geography of the
state.” Rather, it found that the State and the Applicants had not shouldered the
burden of disproving this presumption of causation. But it was Respondents’ burden
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 to establish standing, not the Applicants’ burden to disprove standing. Moreover, the
other pages Respondents cite, App-190–92, involve statewide showings of harm,
which are precisely the types of evidence found insufficient in Gill. This analysis is
unlikely to survive this Court’s scrutiny.
2.

As to justiciability, Respondents simply parrot (at 20–21) the standards

discussed in Baker v. Carr, 369 U.S. 186, 217 (1962), and call them met. But, as the
Applicants’ stay application explains (at 24), a test of “intent,” “effect,” and “lack of
justification” answers none of the questions raised in Vieth—in particular, the
question of when partisan intent goes too far. And, indeed, the test looks suspiciously
like at least one test Vieth expressly rejected. See, e.g., Vieth, 541 U.S. at 295–98
(plurality opinion) (rejecting intent-effect-justification standard); id. at 308
(Kennedy, J., concurring) (“The plurality demonstrates the shortcomings of the other
standards that have been considered to date.”). Respondents have no response.
What’s worse, they fail to indicate what plan will ever survive the district
court’s test. As the Applicants’ stay motion observes (at 24), no plan to date has been
upheld under the district court’s test. The apparent result in application is that no
consideration of politics is permissible. That view has gained little traction in this
Court. See, e.g., Vieth, 541 U.S. at 360 (Breyer, J., dissenting). Moreover, Respondents
ignore the necessary implication of their legal theory as applied to this case—that the
Ohio legislature, which sought to split the apportionment burden evenly among the
parties, was constitutionally required to burden only Republican political interests,
pairing or otherwise harming only Republican incumbents—since its choice of an
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 even split of incumbents was deemed unconstitutional. That proposed rule is patently
untenable. Stay Mot. 26. All of this gives cold comfort to anyone concerned that
partisan-gerrymandering claims, if recognized, “would commit federal and state
courts to unprecedented intervention in the American political process” and “risk
assuming political, not legal, responsibility for a process that often produces ill will
and distrust.” Vieth, 541 U.S. at 306–07 (Kennedy, J., concurring). Thus,
Respondents’ assertion (at 21) that this is no different from other federal-court review
of state election laws rings hollow. See Vieth, 541 U.S. at 290 (plurality opinion) (“Our
one-person, one-vote cases have no bearing upon this question, neither in principle
nor in practicality.”).
3.

On the merits, Respondents have no answer to the Applicants’

observation that the district court’s predominance test has been rejected. Stay Mot.
29–30. Respondents concede (at 23) that the district court applied a predominance
test but fail to explain how that was an option when five Justices in Vieth rejected it.
Respondents simply recite the test and call it justified because the district court
“looked to this Court’s equal protection jurisprudence.” Opp. 23. It may have, but it
misinterpreted that jurisprudence. For strict scrutiny to apply as it does in racialdiscrimination cases, a suspect classification must be identified, City of Cleburne, Tex.
v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985), and at least six Justices held in
Vieth that political considerations are not inherently suspect, Vieth, 541 U.S. at 285
(plurality opinion); id. at 313–14 (Kennedy, J., concurring); id. at 360 (Breyer, J.,
dissenting). Applying what amounted to strict scrutiny here was legal error.
7

 Equally unavailing is Respondents’ reliance on free-speech, free-association,
and Article I principles. For one thing, these provisions were before the Court in
Vieth, see 541 U.S. at 305–06 (plurality opinion), id. at 314 (Kennedy, J., concurring),
so the tests Vieth definitively rejected are no more available under these provisions
than under the Equal Protection Clause. See also League of United Latin Am. Citizens
v. Perry, 548 U.S. 399, 409 (2006). That all these arguments rise or (more likely) fall
together is implicit in the district court’s application of materially identical standards
to all claims. App-262, App-270.
Besides, Respondents identify no burden on the right to speak or associate, and
the district court found that “[t]here is no serious dispute that nothing about the
current map categorically prohibits Plaintiffs from engaging in these activities.” App135. The right to succeed in elections is not like the right of a voter to access a ballot
or of a party to control its internal affairs, so there is no burden requiring justification
under the Anderson/Burdick framework. See Crawford v. Marion Cty. Election Bd.,
553 U.S. 181, 203–04 (2008) (holding partisan motive does not amount to a burden
the right to vote). Every eligible voter in Ohio can cast a ballot, every vote is counted,
and parties are free to advocate and organize as they please. Neither Respondents
nor the district court has cited any case even hinting that the right to elect one’s
preferred candidates is incorporated in these provisions.
4.

Respondents’ characterization (at 26–27) of all other aspects of this

appeal as factual is unpersuasive. They ignore the fact that the district court made
most of the critical factual determinations after it shifted the burden to the defense
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 to justify the supposed burden on constitutional rights. But this Court’s precedent
has required redistricting challengers to establish that an impermissible motive or
effect explains the district lines as part of their prima facie case. See Easley v.
Cromartie (Cromartie II), 532 U.S. 234, 243 (2001). The district court here erred in
demanding justification with the burden on the defense—requiring in effect that the
defense prove that the district lines resulted from only permissible motives and
imposed only permissible effects. That error was a legal error unlikely to withstand
scrutiny on appeal.
In particular, the district court’s order erroneously required the defense to
justify the State’s Voting Rights Act and minority-opportunity goals under a racialgerrymandering strict-scrutiny standard and to establish that its incumbencyprotection goals were “protected.” Stay Mot. 32–34. But this Court’s precedent
supports both goals, holding that drawing a majority-minority district is a legitimate
policy objective requiring no justification, Voinovich v. Quilter, 507 U.S. 146, 156
(1993), as is the goal of incumbency protection, Burns v. Richardson, 384 U.S. 73, 89
n.16 (1966); White v. Wiser, 412 U.S. 783, 791 (1973); Vieth, 541 U.S. at 358–61
(Breyer, J., dissenting) (conceding incumbency protection as legitimate purpose
distinct from partisan entrenchment); id. at 351 n.6 (Souter, J., dissenting) (similar
conclusion); see also Karcher v. Daggett, 462 U.S. 725, 740 (1983). The factual findings
on these points were rendered after an improper burden shift, which is a legal error.
Moreover, the district court’s holdings that these goals were illegitimate was nothing
more than disagreement with the legislature’s political and policy judgments.
9

 Indeed, Respondents mischaracterize the district court’s factual findings and
overstate the degree to which facts are in dispute. It is not in dispute that a majority
of Democratic legislators voted for the plan, that a 13–3 map was possible and
rejected, that Democratic members had input, that the legislature intended to
preserve a majority-minority district in northeast Ohio, and so on. For the most part,
the question here is not whether some specific fact is true or not but whether the facts
have any constitutional significance.
The 2011 plan does not violate any fair and manageable standard that might
apply to partisan-gerrymandering claims. Democratic members were in the best
position to know whether a redistricting plan discriminated against their perceived
supporters or, instead, represented “an uneasy truce, sanctioned by tradition, among
different parties seeking political advantage.” Vieth, 541 U.S. at 360 (Breyer, J.,
dissenting). Because it is highly unlikely that Democratic members would vote at
high levels for a discriminatory plan, a challenger in a case like this should be
required (at a minimum) to prove with particularity how this fact is consistent with
a claim of partisan discrimination. The district court, however, gave this fact no
weight at all. Similarly, the protection of incumbents of both parties cannot be
deemed “too much partisanship” by anyone’s standard, Vieth, 541 U.S. at 344 (Souter,
J., dissenting), so a plan called biased in favor of Republicans that forced three
Republican incumbents to run against other incumbents is also highly unlikely to be
unconstitutional for partisan reasons. The 2011 plan resulted from the legislature’s
express rejection of more one-sided partisan plans proposed. Even if that choice
10

 contained elements of self interest, it proves that gerrymandering is self-limiting.
Stay Mot. 26. Altruism and self-sacrifice are not constitutional commands.
The district court was not entitled to delve further into the legislative process
and second-guess each and every political decision as it did. Its very approach in doing
so is the error, and it cannot be fairly characterized as an error of fact. All of the
district court’s legal principles were wrong, and a fair prospect of reversal on even
one would justify a stay.
II.

Irreparable Harm Will Result Absent This Court’s Intervention, and
the Balance of Equities Favors a Stay
A.

Respondents fail to meaningfully address the irreparable harm asserted

in this case. Their contention (at 13) that “enjoining the challenged map for use in
future elections” presents no injury ignores this Court’s express holding that “the
[State’s] inability to enforce its duly enacted plans clearly inflicts irreparable harm
on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018) (citing Maryland v.
King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)). For their contrary
argument, Respondents rely on Barthuli v. Bd. of Trustees of Jefferson Elementary
Sch. Dist., 434 U.S. 1337 (1977) (Rehnquist, J., in chambers), a case about a school
employment contract with no apparent factual relevance to this one—no reference to
redistricting, elections, or even an enjoined state law. Respondents, meanwhile,
ignore Abbott, a redistricting case where this Court, just two Terms ago, issued a stay
of an injunction over a year before the next scheduled general election. Abbott v.
Perez, 138 S. Ct. 49 (Sept. 12, 2017). Nor do they address this Court’s issuance of a
11

 stay in Gill on June 19, 2017. Gill v. Whitford, 137 S. Ct. 2289 (2017). These cases
demonstrate in practice what this Court has expressly held: an injunction against a
state statute is irreparable harm, justifying a stay.
The reliance interests of the entire general public on this type of state law
render that harm particularly acute. The district court has not shown “respect for the
time that election administrators, candidates, and voters need to adapt to new district
lines,” Opp. 18, when it has chosen to demand a new redistricting (either by the
legislature or under its own powers) before learning whether its injunction will be
upheld on appeal. Respondents’ argument for immediate action is self-defeating,
since the irreparable-harm inquiry assumes the Applicants will succeed on appeal,
not that they will fail (as Respondents assume). By implementing a plan before the
case is concluded, the district court has chosen to place the voters in a position where
they will likely see one plan (the 2011 plan) then another (the 2019 plan) then another
(the 2011 plan) and yet another (the 2021 plan) within a two-year period. This makes
no practical sense and undermines the orderly elections process.
B.

Respondents also ignore the independent harm resulting from the state

legislature’s choice “either [to] adopt an alternative redistricting plan…or face the
prospect that the District Court will implement its own redistricting plan.” Karcher
v. Daggett, 455 U.S. 1303, 1306 (1982) (Brennan, J., in chambers). That, too, is
irreparable harm. And it is imminent because the district court set a June 14, 2019,
deadline for the state legislature to choose its poison. Immediate relief is essential to
allow the legislature to defer legislative action (or inaction, as the case may be) until
12

 after this Court has addressed the merits of the district court’s decision—or at least
until its forthcoming Rucho and Benisek opinions are issued.
Respondents cite nothing for their position (at 13–14) that no irreparable harm
will result from this legislative dilemma, and they mischaracterize the choice the
legislature faces. It is simply not true that “[b]eing given an option to act is no injury
at all,” Opp. 14, when the options presented are (1) undertaking the sovereign and
entirely discretionary act of passing a law, see New York v. United States, 505 U.S.
144, 178 (1992), or (2) stepping aside to watch the court seize the sovereign power
over that act for itself.
That is not an “option” in the ordinary sense of that term; it is fundamentally
coercive, like the proverbial gun to the head. Redistricting is “primarily a matter for
legislative consideration and determination.” Reynolds v. Sims, 377 U.S. 533, 586
(1964). The district court was required to afford the Ohio legislature the first
opportunity to craft a remedy because federal district courts must always “refrain[]
from acting further until the…Legislature ha[s] been given an opportunity to remedy
the” violation. Id. The legislature, then, is not merely faced with “[t]he mere
exploration of remedial possibilities,” Opp. 14, but with the task of enacting a plan to
comply with an order whose validity it vehemently contests or to hand over its
authority to a federal court to seize that task for itself. An “opportunity to set the
agenda for the remedial process,” Opp. 15, is indeed irreparable harm if failure to act
results in federal-court seizure over that agenda.

13

 Moreover, the legislature’s choice is necessarily constrained and impacted by
the outcome of the appeal, but the June 14 deadline does not allow the legislature to
wait until the appeal has concluded to assess whether and how to exercise its
redistricting “option.” Accordingly, the legislature faces a strong incentive not to
exercise its “option” at all, since doing so would create new legislation to govern future
elections. See Abbott, 138 S. Ct. at 2324–30 (applying the ordinary good-faith
standard applicable to all legislation to redistricting plan enacted to remedy violation
of law). Respondents seem to believe that new legislation does not become law until
the district court approves it. Not true. Although the district court maintains the
power to review any new plan the legislature adopts, the new legislation will be the
law setting new congressional districts for Ohio unless and until the district court
finds that plan unconstitutional as well (and likely without any new trial over the
new districts).
New legislation might risk mooting the appeal. And, even if it does not have
that effect, the legislature, if successful on appeal, may still be required to enact yet
further legislation to rescind the new map and revert to the 2011 plan. Furthermore,
the legislature risks enacting a plan that satisfies one set of principles, based on its
good-faith reading of the district court’s order, only to find after appellate review that
an entirely different set of principles governs. Thus, the “option” to redistrict before,

14

 rather than after, the legislature learns of the ultimate resolution of fundamental yetto-be-decided matters is not a meaningful one. 2
This harm is irreparable. The legislature has one, and only one, shot at
meeting the district court’s standard. The district court did not signal that it would
allow the legislature a second chance to redistrict after its appeal concludes; to the
contrary, it expressly stated “[n]o continuances will be granted.” App-295. The
legislature, then, is forced to make its choices once and with limited information.
C.

The balance of harms is entirely one-sided for the simple reason that

vacatur and remand is almost certain once the Rucho and Benisek decisions are
issued. Respondents offer their balance-of-harms analyses under the misimpression
that, once Rucho and Benisek are issued, the remedial proceeding will press forward
under their “guidance.” Opp. 2. That is highly unlikely. Rather, once Rucho and
Benisek are issued, this Court’s prior practice indicates that it will likely vacate the
district court’s injunction and remand to allow the district court to assess in the first
instance what parts of its 300-page liability opinion are impacted. Thus, the district

Respondents’ blithe assertion that “[n]ot drawing a partisan gerrymander is
straightforward,” Opp. 16, is empty rhetoric. “[B]oundaries are not, and should not
be, ‘politics free.’” Vieth, 541 U.S. at 360 (Breyer, J., dissenting). The legislature must
make innumerable discretionary decisions to divide Ohio’s millions of residents into
sixteen equally populated districts. And it must do so in the wake of being told that
its 2011 policy choices—such as compliance with the Voting Rights Act, creating a
majority-opportunity district in Franklin County, and protecting incumbents of both
parties—are unconstitutional because they ostensibly burdened Democratic Party
political interests. How can the legislature know what policy choices are next on the
chopping block until this Court rules?
15
2

 court will be required to return to the liability question. In the meantime, the
injunction will lose all force and effect, and the remedial proceedings will terminate,
having no legal basis to proceed.
Thus, it is almost inevitable that, for any remedy to be implemented, the
district court must address the merits of the case again and (if appropriate) reach
another determination of liability and (if necessary) issue another injunction. All of
those steps must occur before Respondents’ asserted interest in a new map can be
vindicated. Their description of harm to their interests is a description of what will
occur in any event. What is causing the bottleneck here is not the remedial
proceeding; it is the forthcoming Rucho and Benisek decisions, which must be
consulted before this matter can reach a final judgment.
Accordingly, on the one side of the balance lie a set of harms Respondents will
incur in any event, and on the other lie a set of harms that can easily be avoided by a
stay. That is not a difficult choice.
CONCLUSION
The Court should stay the injunction below and remedial proceedings pending
appeal. Alternatively, the Court should stay the injunction and remedial proceedings
pending its forthcoming Rucho and Benisek decisions, treat this stay application as a
jurisdictional statement, and vacate and remand the opinion and injunction below
once those decisions are issued for further consideration.

16

 Respectfully submitted,
PATRICK T. LEWIS
BAKER & HOSTETLER LLP
127 Public Square, Suite 2000
Cleveland, OH 44114
ROBERT J. TUCKER
ERIKA DACKIN PROUTY
BAKER & HOSTETLER LLP
200 Civic Center Drive,
Suite 1200
Columbus, OH 43215

EFREM M. BRADEN
Counsel of Record
KATHERINE L. MCKNIGHT
RICHARD B. RAILE
BAKER & HOSTETLER LLP
1050 Connecticut Ave., NW,
Suite 1100
Washington, DC 20036
(202) 861-1504
mbraden@bakerlaw.com

May 21, 2019

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