Voinovich v. Ferguson

586 N.E.2d 1020, 63 Ohio St. 3d 198, 1992 Ohio LEXIS 1698

Opinions

Per Curiam.

Plaintiffs and defendants and counterclaimants Henry and Drake raise the issue of the constitutionality of Senate District 32. It is agreed that the district does not meet the population requirements of Section 4 of Article XI, Ohio Constitution, as its population is only 308,942 persons, 93.99 percent of a senate ratio of representation (328,700 persons). Section 4 prohibits creation of a district containing less than 95 per cent of a ratio.

Plaintiffs, defendants in the counterclaims, contend, however, that leaving Senate District 32 underpopulated was unavoidable because irreconcilable conflicts with Sections 9 and 11 of Article XI, Ohio Constitution, prevented adding population from adjacent territory. Section 9 provides that where the population of a county is at least 90 percent of a house ratio of representation, “reasonable effort shall be made to create a house of representatives district consisting of the whole county.” Section 11 provides in part that “[cjounties having less than one senate ratio of representation, but at least one house of representatives ratio of representation shall be part of only one senate district.”

We hold that Sections 4, 9, and 11 of Article XI are coequal. When such provisions are irreconcilable, those public officials designated to apportion the state by Section 1 of Article XI have the duty to choose the proper course, and this court will not order them to correct one constitutional violation by committing another.

The court finds against the counterclaimants on their claim that the plan is unconstitutional and, accordingly, we find the plan to be constitutional.

Judgment accordingly.

Moyer, C.J., Holmes, Douglas and Milligan, JJ., concur. Sweeney, H. Brown and Resnick, JJ., dissent. John R. Milligan, Jr., J., of the Fifth Appellate District, sitting for Wright, J.