Supreme Court Decision

Supreme Court of Ohio Clerk of Court - Filed May 25, 2022 - Case No.
2022-0303
In the
Supreme Court of Ohio
MERYL NEIMAN, et al., :
:
Relators, : Case No. 2022-0298
:
v. : Original Action Filed Pursuant to
: Ohio Constitution, Article XIX,
SECRETARY OF STATE FRANK LAROSE, et al., : Section 3(A) and Article IV
: Section2(B)(1)(f)
Respondents. :
:
LEAGUE OF WOMEN VOTERS OF OHIO, et al., :
:
Petitioners, : Case No. 2022-0303
:
v. : Original Action Pursuant to
: Ohio Const., Art. XIX
SECRETARY OF STATE FRANK LAROSE, et al., :
: Apportionment Case
Respondents. :
OHIO SECRETARY OF STATE FRANK LAROSE’S

RESPONSE TO PETITIONERS’ MERIT BRIEF
OHIO ATTORNEY GENERAL

JULIE M. PFEIFFER (0069762)
Counsel of Record
JONATHAN D. BLANTON (0070035)
MICHAEL A. WALTON (0092201)
ALLISON D. DANIEL (0096186)
Assistant Attorneys General
Constitutional Offices Section
30 E. Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: 614-466-2872 | Fax: 614-728-7592
[email protected]
Jonathan. [email protected]
[email protected]
Allison. [email protected]
Counsel for Respondent
Secretary of State Frank LaRose

:
Respondents. : Apportionment Case
FREDA J. LEVENSON (0045916) JAMES SMITH (PHV 25421-2022)

ACLU of Ohio Foundation, Inc. SARAH SUWANDA (PHV 25602-2022)
4506 Chester Avenue ALEX THOMSON (PHV 25462-2022)
Cleveland, Ohio 44103 KIMBERLY PLUMER
Tel: 614-586-1972 x 125 COVINGTON & BURLING LLP
[email protected] One CityCenter
850 Tenth Street, NW
DAVID J. CAREY (0088787) Washington, DC 20001-4956
ACLU OF OHIO FOUNDATION, INC. Tel: 202-662-6000
1108 City Park Avenue, Suite 203 [email protected]
Columbus, OH 43206
Tel: 614-586-1972 x2004 ANUPAM SHARMA (PHV 25418-2022)
[email protected] YALE FU (PHV 25419-2022)
COVINGTON & BURLING LLP
ALORA THOMAS (PHV 22010-2022) 3000 El Camino Real
JULIE A. EBENSTEIN (PHV 25423-2022) 5 Palo Alto Square, 10th Floor
ACLU Foundation Palo Alto, CA 94306-2112
125 Broad Street Tel: 650- 632-4700
New York, NY 10004 [email protected]
Tel: 212-519-7866
[email protected] Counsel for Petitioners
ROBERT D. FRAM (PHV-25414) PHILLIP J. STRACH (PHV 25444-2021)

DONALD BROWN (PHV -25480) THOMAS A. FARR (PHV 25461-2021)
DAVID DENUYL (PHV-25452) JOHN E. BRANCH, III (PHV 25460-2021)
JANELELLE LAMB ALYSSA M. RIGGINS (PHV 25441-2021)
Covington & Burling LLP NELSON MULLINS RILEY &
Salesforce Tower SCARBOROUGH, LLP
415 Mission Street, Suite 5400 4140 Parklake Ave., Suite 200
San Francisco, CA 94105-2533 Raleigh, NC 27612
Tel: 415-591 6000 Tel: 919-329-3812
[email protected] [email protected]
Counsel for Petitioners Counsel for Respondents House Speaker Bob

Cupp and Senate President Matt Huffman
ii
ERIK JAMESON CLARK (0078732)
Counsel of Record
ASHLEY THEODORA MERINO
(0096853)
Organ Law LLP
1330 Dublin Road
Tel: 614-481-0900 | Fax: 614-481-0904
[email protected]
[email protected]
Counsel for Ohio Redistricting Commission
iii
:
:
: Section2(B)(1)(f)
Respondents. :
DONALD J. MCTIGUE (0022849) PHILLIP J. STRACH (PHV 25444-2021)

DEREK S. CLINGER (0092075) THOMAS A. FARR (PHV 25461-2021)
McTigue Colombo & Clinger, LLC JOHN E. BRANCH, III (PHV 25460-2021)
545 E. Town Street ALYSSA M. RIGGINS (PHV 25441-2021)
Columbus, Ohio 43215 NELSON MULLINS RILEY &
Tel: 614-263-7000 | Fax: 614-368-6961 SCARBOROUGH, LLP
[email protected] 4140 Parklake Ave., Suite 200
[email protected] Raleigh, NC 27612
Tel: 919-329-3812
ABHA KHANA [email protected]
BEN STAFFORD
Elias Law Group Counsel for Respondents House Speaker
1700 Seventh Avenue, Suite 2100 Bob Cupp and Senate President Matt
Seattle, Washington 98101 Huffman
Tel: 206-656-0176 | Fax: 206-656-0180
[email protected]
[email protected]
JYOTI JASRASARIA
SPENCER W. KLEIN
HARLEEN K. GAMBHIR
RAISA CRAMER
Elias Law Group
10 G Street, NE, Suite 600
Washington DC 20002
Tel: 202-968-4490 | Fax: 202-968-4498
[email protected]
[email protected]
[email protected]
Counsel for Petitioners
iv
In the
Supreme Court of Ohio
:
:
: Section2(B)(1)(f)
Respondents. :
:

:
:
: Apportionment Case
Respondents. :
RESPONDENT SECRETARY OF STATE FRANK LAROSE’S

RESPONSE TO PETITIONERS’ MERIT BRIEF
Ohio Secretary of State Frank LaRose adopts and incorporates Respondents Huffman and
Cupp’s Merits Brief as his response to Petitioners’ Merit Brief.
In addition, on one finer point, this Court should reject the Neiman Petitioners’ request for
an injunction affecting the 2022 election. See Neiman Compl., Prayer for Relief, at 46-47. The
Second Plan has been fully implemented by the 88 county boards of elections for the 2022 election.
The 2022 Primary Election was held on May 3, 2022, using the Second Plan. Over 1.6 million
Ohioans voted for their 2022 congressional primary candidates, and the winners will be certified
for the 2022 general election ballot in the very near future. The Neiman Petitioners ignore these
1
election realities and still ask this Court to do what courts have been resoundingly unwilling to do
and have cautioned against: change an election procedure to affect the outcome of the
election. See, e.g., citing Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam) (denying
preliminary injunction because, although plaintiffs had established third parties would not be
unjustifiably harmed by an injunction, “court orders affecting elections , can themselves result in
voter confusion[,] [a]s an election draws closer, that risk increase”); Thompson v. DeWine, 959
F.3d 804, 813 (6th Cir. 2020) (citing Purcell in staying district court’s preliminary
injunction); Estill v. Cool, 295 F. App’x 25, 27 (6th Cir. 2008) (upholding denial of preliminary
injunction where ballot printing and distribution was scheduled to begin the day after the Sixth
Circuit issued its opinion, 19 days after the preliminary injunction motion was denied); SEIU
Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012), citing Purcell, 549 U.S. at 4-5 (“As a general
rule, last-minute injunctions changing election procedures are strongly disfavored.”). “Court
orders affecting elections especially conflicting court orders, can themselves result in voter
confusion and consequent incentive to remain away from the polls. As an election draws closer,
that risk will increase.” Purcell, 549 U.S. at 4-5; see also Thompson, 959 F.3d at 813.
Citing that risk, in League of Women Voters v. LaRose, No. 2:20-cv-1638, 2020 U.S. Dist.
LEXIS 91631, at 31 (S.D.Ohio Apr. 3, 2020), the Court rejected the plaintiffs’ request to
preliminarily enjoin H.B. 197, the bill passed in response to the disruption to Ohio’s March 2020
primary caused by COVID-19. The court noted that the “public has an interest in a free and fair
election [and in] avoiding further voter confusion.” Id. Even amidst the COVID-19 outbreak, the
court concluded, “because further changes to the election procedure could cause significant
additional voter confusion, the court finds that the public interest factor weighs against granting
Plaintiffs their requested relief.” Id.
2
The Neiman Petitioners’ request to stop the Secretary of State from “calling, holding,
supervising, administering, or certifying any elections under the [Second Plan]” while they litigate
their claims is, to say the least, extraordinarily ill-advised. Neiman Comp., at 46. Again, the May
3 Primary Election has already happened. All of the voters who have voted for their congressional
candidates fully expect the winners to be on the November general election ballot. Changing the
districts before the November 2022 General Election would mean that, in November, thousands
of Ohio voters would be choosing between Republican or Democratic congressional candidates
who were not on their May 3 primary ballot. Issuing an injunction that would prevent the winners
from appearing on the general election ballot destroys the status quo and wreaks havoc on election
administration. What is more, allowing an election to occur then enjoining the winners from
proceeding on to the general election certainly would cause significant voter confusion, it would
cripple Ohioans’ trust and confidence in their elections, and it would be astoundingly unfair—not
just to Ohio voters, but to the congressional candidates who have spent effort, time, and resources
in campaigning for a spot on the primary ticket. It is safe to assume that voters expect their votes
to count and to be counted. An injunction that would block the winners and nullify the entire
election after all of the votes have been cast would wreak havoc on voter confidence for decades
to come. This is precisely what the Neiman Petitioners demand, and this Court should summarily
deny it.
For the reasons stated in Huffman and Cupp’s merits brief and for the foregoing additional
reason, Secretary LaRose respectfully requests that this Court sustain the Ohio Redistricting
Commission’s Second Plan passed on March 2, 2022, and dismiss these consolidated actions with
prejudice.
3
Respectfully submitted,
OHIO ATTORNEY GENERAL
/s/ Julie M. Pfeiffer

Counsel of Record
JONATHAN BLANTON (0070035)
MICHAEL A. WALTON (0092201)
ALLISON D. DANIEL (0096186)
Assistant Attorneys General
Constitutional Offices Section

30 E. Broad Street, 16th Floor
Tel: 614-466-2872 | Fax: 614-728-7592
[email protected]
Jonathan. [email protected]
[email protected]
[email protected]
Counsel for Respondent

Secretary of State Frank LaRose
4
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Ohio Secretary of State Frank Larose’s Response to
Petitioners’ Merit Brief was sent via email this the 25th day of May, 2022 to the following:
Freda J. Levenson (0045916) Anupam Sharma (PHV 25418-2022)

[email protected] Yale Fu (PHV 25419-2022)
David J. Carey (0088787) [email protected]
[email protected]
Counsel for LWV Petitioners
Alora Thomas (PHV 22010-2022)
Donald J. Mctigue (0022849)
Julie A. Ebenstein (PHV 25423-2022)
Derek S. Clinger (0092075)
[email protected]
[email protected]
[email protected]
Robert D. Fram (PHV-25414)
Donald Brown (PHV -25480)
Abha Khana
David Denuyl (PHV-25452)
Ben Stafford
Janelelle Lamb
[email protected]
[email protected]
[email protected]
Jyoti Jasrasaria
James Smith (PHV 25421-2022)
Spencer W. Klein
Sarah Suwanda (PHV 25602-2022)
Harleen K. Gambhir
Alex Thomson (PHV 25462-2022)
Raisa Cramer
Kimberly Plumer
[email protected]
[email protected]
[email protected]
[email protected]
Counsel for LWV Petitioners
Counsel for Neiman Petitioners
Erik Jameson Clark (0078732)

Phillip J. Strach (PHV 25444-2021)
Counsel of Record
Thomas A. Farr (PHV 25461-2021)
Ashley Theodora Merino (0096853)
John E. Branch, III (PHV 25460-2021)
[email protected]
Alyssa M. Riggins (PHV 25441-2021)
[email protected]
NELSON MULLINS RILEY &
SCARBOROUGH, LLP Counsel for Ohio Redistricting Commission
[email protected]
Counsel for Respondents House Speaker Bob
Cupp and Senate President Matt Huffman
/s/ Julie M. Pfeiffer


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Supreme Court of Ohio Clerk of Court - Filed May 25, 2022 - Case No.

OHIO SECRETARY OF STATE FRANK LAROSE’S

OHIO ATTORNEY GENERAL

Petitioners, : Case No. 2022-0303

Respondents. : Apportionment Case

FREDA J. LEVENSON (0045916) JAMES SMITH (PHV 25421-2022)

ROBERT D. FRAM (PHV-25414) PHILLIP J. STRACH (PHV 25444-2021)

Counsel for Petitioners Counsel for Respondents House Speaker Bob

Counsel for Ohio Redistricting Commission

DONALD J. MCTIGUE (0022849) PHILLIP J. STRACH (PHV 25444-2021)

Counsel for Petitioners

LEAGUE OF WOMEN VOTERS OF OHIO, et al., :

RESPONDENT SECRETARY OF STATE FRANK LAROSE’S

Cupp’s Merits Brief as his response to Petitioners’ Merit Brief.

Plaintiffs their requested relief.” Id.

of Ohio voters would be choosing between Republican or Democratic congressional candidates

/s/ Julie M. Pfeiffer

Constitutional Offices Section

Counsel for Respondent

Freda J. Levenson (0045916) Anupam Sharma (PHV 25418-2022)

Erik Jameson Clark (0078732)

/s/ Julie M. Pfeiffer

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