Kenneth L. Simon; Lewis W. Macklin, Ii; Helen Youngblood v. Mike Dewine

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0078p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENNETH L. SIMON; LEWIS W. MACKLIN, II; HELEN
YOUNGBLOOD,
Plaintiffs-Appellants,
v.
MIKE DEWINE; FRANK LAROSE; OHIO REDISTRICTING
COMMISSION; ROBERT R. CUPP; MATTHEW C.
HUFFMAN; KEITH FABER,
Defendants-Appellees.
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No. 23-3910
Appeal from the United States District Court for the Northern District of Ohio at Youngstown.
No. 4:22-cv-00612—John R. Adams, District Judge.
Decided and Filed: April 9, 2024
Before: BATCHELDER, MOORE, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Percy Squire, PERCY SQUIRE, Columbus, Ohio, for Appellants. Bryan B. Lee,
Stephen P. Tabatowski, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Reverend Kenneth Simon, Reverend Lewis
W. Macklin, II, and Helen Youngblood (collectively, the “Simon Parties”) sued the Ohio
Redistricting Commission and several of its members, including Governor Mike DeWine,
Secretary of State Frank LaRose, Speaker of the Ohio House of Representatives Robert Cupp,
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President of the Ohio Senate Matthew Huffman, and Auditor Keith Faber (collectively, the
“Ohio Redistricting Commission”). The Simon Parties allege that Ohio’s congressional districts
violate section 2 of the Voting Rights Act, the First Amendment, the Fourteenth Amendment,
and the Fifteenth Amendment. The Simon Parties moved to convene a three-judge court under
28 U.S.C. § 2284, and the Ohio Redistricting Commission opposed that motion and moved to
dismiss the complaint. The district court denied the motion to convene a three-judge court,
granted the motions to dismiss, and denied all other pending motions. For the reasons explained
below, we REVERSE the district court’s order denying the motion for a three-judge court,
VACATE the district court’s order granting the motions to dismiss and denying the motion for
temporary restraining order and motion for class certification, and REMAND the case to the
district court with directions for it immediately to initiate the procedures to convene a three-
judge court under 28 U.S.C. § 2284.
I. BACKGROUND
After the 2020 census, the Ohio Redistricting Commission proposed a congressional
redistricting map that Ohio Governor Mike DeWine signed into law on November 20, 2021. R.
1 (Compl. ¶¶ 1, 3) (Page ID #3–4). On January 14, 2022, the Ohio Supreme Court invalidated
the congressional map in its entirety because it violated the Ohio constitution. See Adams v.
DeWine, 195 N.E.3d 74, 77 (Ohio 2022). As a result, the Ohio Redistricting Commission was
required to draw a new map, which it completed on March 2, 2022 (the “March 2 Map”). R. 1
(Compl. ¶¶ 4–5) (Page ID #4).
On April 15, 2022, the Simon Parties filed suit in federal district court challenging the
validity of the March 2 Map under section 2 of the Voting Rights Act and the Constitution. Id.
¶ 5 (Page ID #4). The same day, the Simon Parties filed a motion for a three-judge court under
28 U.S.C. § 2284, a motion for class certification, and a motion for temporary restraining order.
R. 2 (Mot. for Three-Judge Court at 1–6) (Page ID #462–67); R. 3 (Mot. for Class Cert. at 1–17)
(Page ID #471–87); R. 4 (Mot. for TRO at 1–33) (Page ID #488–520). The Ohio Redistricting
Commission opposed the motions and filed motions to dismiss the complaint for failure to state a
claim. R. 14 (Defs.’ Opp’n to Mot. for Three-Judge Panel at 1–3) (Page ID #1045–47); R. 15

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(Individual Defs.’ Mot. to Dismiss at 1–38) (Page ID #1048–85); R. 18 (Ohio Redistricting
Comm’n Mot. to Dismiss at 1–12) (Page ID #1094–105).
One year after the motions were fully briefed, the district court issued an order referring
the motions to dismiss to a magistrate judge. R. 25 (6/12/2023 Dist. Ct. Order at 1) (Page ID
#1158). The magistrate judge issued a report and recommendation concluding that the district
court should dismiss the Simon Parties’ claims for failure to state a claim. R. 27 (Rep. & Rec. at
1) (Page ID #1160). The report and recommendation explained that it evaluated the claims under
only Federal Rule of Civil Procedure 12 and that the district judge would need to assess whether
it was required to convene a three-judge court pursuant to 28 U.S.C. § 2284. Id. at 1–2 (Page ID
#1160–61).
The Simon Parties filed objections and amended objections to the report and
recommendation, R. 29 (Pls.’ Obj. at 1–3) (Page ID #1189–91); R. 31 (Pls.’ Am. Obj. at 1–3)
(Page ID #1193–95), and the Ohio Redistricting Commission responded to the Simon Parties’
objections, R. 32 (Defs.’ Resp. to Pls.’ Obj. at 1–11) (Page ID #1196–206). The district court
overruled the Simon Parties’ objections and adopted the report and recommendation in its
entirety. R. 33 (10/12/2023 Dist. Ct. Order at 2–6) (Page ID #1208–12). The district court
determined that the Simon Parties’ claims were wholly frivolous such that a three-judge court
was unnecessary. Id. at 5–6 (Page ID #1211–12). The district court then granted the motions to
dismiss, denied the motion for a three-judge court, and denied the motions for a temporary
restraining order and class certification. Id. at 6 (Page ID #1212). The Simon Parties filed a
timely notice of appeal. R. 35 (Notice of Appeal at 1) (Page ID #1214).
II. ANALYSIS
“A district court of three judges shall be convened . . . when an action is filed challenging
the constitutionality of the apportionment of congressional districts . . . .” 28 U.S.C. § 2284(a).
This statute “giv[es] the district judge a limited jurisdiction to determine whether such a case
shall be heard by one judge . . . or heard by a three-judge district court . . . .” Armour v. Ohio,
925 F.2d 987, 989 (6th Cir. 1991) (en banc). When considering a request for a three-judge court,
“all the district judge must ‘determin[e]’ is whether the ‘request for three judges’ is made in a

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case covered by § 2284(a)—no more, no less.” Shapiro v. McManus, 577 U.S. 39, 44 (2015).
Nonetheless, a three-judge court “is not required where the district court itself lacks jurisdiction
of the complaint or the complaint is not justiciable in the federal courts.” Id. at 44–45 (quoting
Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 100 (1974)); see also NAACP v.
Merrill, 939 F.3d 470, 475 (2d Cir. 2019) (per curiam) (“[A] single district judge is empowered
to determine whether the Eleventh Amendment bars a claim that would otherwise fall with
§ 2284(a).”). Thus, the complaint must (1) include a claim “challenging the constitutionality of
the apportionment of congressional districts,” 28 U.S.C. § 2284(a), and (2) provide a basis for
subject-matter jurisdiction. NAACP, 939 F.3d at 475.
We review de novo the district court’s determination that a three-judge court was not
required under 28 U.S.C. § 2284. Indep. Inst. v. Fed. Election Comm’n, 816 F.3d 113, 115 (D.C.
Cir. 2016). For the purposes of this appeal, we take the allegations in the complaint as true as is
required at this stage of the proceedings. See Goosby v. Osser, 409 U.S. 512, 521 n.7 (1973)
(explaining that, when considering a motion to convene a three-judge court, “a substantial
question of constitutionality must be determined by the allegations of the bill of complaint” and
that “the allegations of the[] complaint must be deemed to be true” (quotations omitted)).
The parties do not dispute that the complaint “challeng[es] the constitutionality of the
apportionment of congressional districts,” 28 U.S.C. § 2284(a), and we therefore focus on
whether the complaint conferred subject-matter jurisdiction. The Ohio Redistricting
Commission contends that the complaint fails to present a “substantial federal question” that is
justiciable. D. 20 (Appellees Br. at 39–40).
The Supreme Court has “long distinguished between failing to raise a substantial federal
question for jurisdictional purposes . . . and failing to state a claim for relief on the merits; only
‘wholly insubstantial and frivolous’ claims implicate the former.” Shapiro, 577 U.S. at 45
(quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)). “[C]onstitutional insubstantiality for this
purpose has been equated with such concepts as essentially fictitious, wholly insubstantial,
obviously frivolous, and obviously without merit.” Goosby, 409 U.S. 518 (quotations omitted).
Thus, a claim is insubstantial only if “the claim is ‘so insubstantial, implausible, foreclosed by
prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve

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a federal controversy,’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)), or “its
unsoundness so clearly results from the previous decisions of [the Supreme] Court as to foreclose
the subject and leave no room for the inference that the questions sought to be raised can be the
subject of controversy,” Goosby, 409 U.S. at 518 (quoting Ex parte Poresky, 290 U.S. 30, 32
(1933)). “‘[C]onstitutional claims will not lightly be found insubstantial for purposes of’ the
three-judge-court statute.” Shapiro, 577 U.S. at 45 (quoting Washington v. Confederated Tribes
of Colville Rsrv., 447 U.S. 134, 147–48 (1980)).
Here, the district court incorrectly determined that the Simon Parties’ Fourteenth
Amendment claim did not raise a substantial federal question for jurisdictional purposes. See R.
27 (Rep. & Rec. at 25–26) (Page ID #1184–85); R. 33 (10/12/2023 Dist. Ct. Order at 5–6) (Page
ID #1211–12). The Simon Parties allege that the Ohio Redistricting Commission used a “policy
of non consideration of racial demographics in connection with developing the March 2, 2022
Congressional Plan” so that the Ohio Redistricting Commission could “totally disregard the
impact of racial bloc voting” and the history of racial discrimination in the challenged districts.
R. 1 (Compl. ¶¶ 6, 39) (Page ID #5, 15). The Simon Parties allege that the purpose and effect of
this policy was to dilute “the Mahoning Valley Black vote by impairing the ability of the
Mahoning Valley Black voters to elect a” candidate of their choice “due to the submersion of
Black voting strength into the counties of Columbiana, Car[r]oll, Jefferson, Harrison, Belmont
and Washington instead of the more racially diverse adjacent Stark, Summit or Cuyahoga
Counties.” Id. ¶¶ 6, 47 (Page ID #5, 17). The Supreme Court has long recognized that “there is
a role for the courts with respect to” racial gerrymandering claims such that they are justiciable.
Rucho v. Common Cause, 139 S. Ct. 2484, 2495–96 (2019). Therefore, the Simon Parties’
allegations on this claim are sufficient to surpass the “low bar” to establish federal jurisdiction.
Shapiro, 577 U.S. at 46 (finding the plaintiff’s First Amendment claim raised a substantial
federal question because the claim was not foreclosed by binding precedent).
The district court’s contrary conclusion went beyond the scope of its limited review
under 28 U.S.C. § 2284. The report and recommendation reasoned that the Simon Parties’
Fourteenth Amendment allegations were conclusory and internally inconsistent. R. 27 (Rep. &

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Rec. at 26) (Page ID #1185). The district court adopted the report and recommendation in full
and independently concluded that a three-judge court was not required for this claim because the
complaint “contained no supporting factual allegations” and “merely allege[d] discrimination
without any information to support their conclusions.” R. 33 (10/12/2023 Dist. Ct. Order at 6)
(Page ID #1212) (emphasis omitted). The district court’s analysis, although purporting to apply
the standard for evaluating a request for a three-judge court, was an improper evaluation of the
strength of the allegations in the complaint. See Armour, 925 F.2d at 989 (“[T]he sufficiency of
the complaint for three-judge jurisdictional purposes must be determined by the claims stated in
the complaint and not by the way the facts turn out.”). Such an inquiry is beyond the scope of a
motion for a three-judge court and, for the reasons explained above, the complaint clears the
“low bar” to establish federal jurisdiction. See Shapiro, 577 U.S. at 46.
If the plaintiffs “advance[] at least one argument . . . that is not ‘essentially fictitious,
wholly insubstantial, obviously frivolous, and obviously without merit,’ the case must proceed to
a three-judge court.” Indep. Inst., 816 F.3d at 117 (quoting Shapiro, 577 U.S. at 45–46). Having
concluded that the Simon Parties have presented at least one such claim, we need not address any
other claim.1 Accordingly, the district court lacked jurisdiction as a single judge to adjudicate
any other pending motion because it was required to convene a three-judge court under 28
U.S.C. § 2284.
III. CONCLUSION
We therefore REVERSE the district court’s order denying the motion for a three-judge
court, VACATE the district court’s orders granting the motions to dismiss and denying the
motion for temporary restraining order and motion for class certification, and REMAND the
case to the district court with instructions for it immediately to initiate the procedures to convene
a three-judge court under 28 U.S.C. § 2284.
1The Ohio Redistricting Commission argues for the first time on appeal that the Voting Rights Act does not
confer a private right of action. D. 20 (Appellees Br. at 12–27). In the Ohio Redistricting Commission’s view, this
theory was not available below because the Eighth Circuit had not yet issued its opinion in Arkansas State
Conference NAACP v. Arkansas Board of Apportionment, 86 F.4th 1204 (8th Cir. 2023). D. 20 (Appellees Br. at
12–15). We need not address this issue to resolve the appeal. Instead, we assume without deciding that the Voting
Rights Act confers a private right of action. See Mixon v. Ohio, 193 F.3d 389, 406 (6th Cir. 1999) (“An individual
may bring a private cause of action under Section 2 of the Voting Rights Act . . . .”).

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