League of Women Voters v. Ohio Redistricting Commission
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-65.pdf
In November 2015, Ohio voters overwhelmingly (71%% majority) passed a Constitutional Amendment (Issue 1) to put a stop to extreme partisan gerrymandering.
In the bi-partisan campaign literature, voters were told the following:
“Fairness
Protects against gerrymandering by prohibiting any district from primarily favoring one political party.
Requires districts to closely follow the statewide preferences of the voters.
Accountable
Creates a process for the Ohio Supreme Court to order the commission to redraw the map if the plan favors one political party.”
The ballot summary provided: “The proposed amendment would: End the partisan process for drawing Ohio House and Senate districts and replace it with a bipartisan process with the goal of having district boundaries that are more compact and politically competitive.”
The backdrop to the voters’ decision in 2015 was the Ohio Supreme Court’s earlier ruling on the 2010 reapportionment that the Court lacked any authority to correct an extreme partisan gerrymander. The Ohio Supreme Court in Wilson v. Kasich 134 Ohio St. 3rd 221 (2012) held that the Ohio Reapportionment Commission did not have to assure partisan fairness, and it was not the role of the Court to correct an extreme partisan gerrymander. “The words used in Article XI do not explicitly require political neutrality, or for that matter, politically competitive districts or representational fairness, in the apportionment board’s creation of state legislative districts. Unlike Ohio, some states specify in either constitutional or statutory language that no apportionment plan shall be drawn with the intent of favoring or disfavoring a political party. See In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597, 615 (Fla.2012), fn. 19, and the state constitutions and statutes cited therein. Therefore, Article XI does not prevent the board from considering partisan factors in its apportionment decision.” https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-ohio-5367
The voters in the 2015 ballot initiative amended the state’s constitution to add new language requiring partisan fairness in political line drawing. “The Ohio redistricting commission shall attempt to draw a general assembly district plan that meets all of the following standards:
(A) No general assembly district plan shall be drawn primarily to favor or disfavor a political party.
(B) The statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.
(C) General assembly districts shall be compact.” https://codes.ohio.gov/ohio-constitution/section-11.6
In Ohio elections over the past decade, Republicans had received on average 54% of the votes and Democrats got 46%. In the proposed redistricting plan for the next decade’s elections, the lines were drawn in such a way that Republicans would win 64% of the Ohio House and Senate elections and Democrats would win 36%. Comparable results were achieved for the Congressional delegation (projected 12 Republican seats to 3 Democratic seats). The creative contributions to modern art in the partisan gerrymander were particularly striking in Cuyahoga (Cleveland metropolitan), Franklin (Columbus metropolitan) and Hamilton (Cincinnati metropolitan) counties.
This was not new; the same sort of extreme partisan gerrymandering was accomplished after the 2010 census; the three judge federal district court panel held that it violated the US Constitution. A. Philip Randolph Institute v. Householder, 373 F. Supp. 3d 978 - Dist. Court, SD Ohio 2019 The US Supreme Court in Rucho v. Common Cause 139 S. Ct. 2484 (2019), however, decided that extreme partisan gerrymandering was a political question best addressed by state courts, state voter initiatives and federal legislation. The court’s majority said “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015).” … “Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.”
Old habits and ways of doing business die hard. The evidence presented was that the two Republican state legislative majority leaders and their staffers had drawn the maps with no Democratic input, and there was no effort to comply with Section 6 of the Initiative which promised to end partisan gerrymandering. After negotiations between the two parties reached a stalemate, the redistricting maps for the statehouse and Congress were approved on a 5-2 vote, all Republican office holders voting yes and all Democratic electeds voting no.
Ohio’s GOP Secretary of State Frank LaRose explained his aye vote as follows: “I’m casting my yes vote with great unease. I fear, I fear we’re going to be back in this room very soon. This map has many shortcomings, but they pale in comparison to the shortcomings of this process. It didn’t have to be this way.” League of Women Voters v. Ohio Redistricting Commission
Ohio’s GOP Governor, Mike Dewine accompanied his aye vote with the following caveat: “I will vote to send this matter forward. But it will not be the end of it. We know that this matter will be in court. I’m not judging the bill one way or another. That’s up for, up to a court to do. What I do, what I am sure in my heart is that this committee could have come up with a bill that was much more clearly, clearly constitutional. I’m sorry we did not do that.” League of Women Voters v. Ohio Redistricting Commission
The experts retained by the Plaintiffs ran 5,000 computer simulations for drawing the redistricting lines, not a single one had a more extreme partisan result. Essentially, because the Ohio Legislature’s leadership could not/would not compromise to end extreme partisan gerrymandering, the case ended up at the Ohio Supreme Court, exercising original jurisdiction under Article XI, Section 9 of the Ohio Constitution. It ruled that the Redistricting Commission had to comply with Section 6; it invalidated the maps and sent them back for reconsideration consistent with Section 6.
Unfortunately, it required the intervention of the Ohio Supreme Court to protect the interests of Ohio voters in fair and competitive state and federal elections. Chief Justice O’Connor, a Republican, in her concurring opinion noted the voters could, if they in the future preferred, change the composition of the Reapportionment Commission to assure the political independence of the Commissioners, as Arizona and California voters, among others, have already done in their ballot initiatives governing redistricting. This would replace the roles of the state’s political leaders who proved unable to reach the compromises overwhelmingly demanded by Ohio’s voters to end extreme partisan gerrymandering.
References:
League of Women Voters v. Ohio Redistricting Commission Slip Opinion # 2022-Ohio-65
Frank Strigari, Ohio’s Season of Seasons: a History of Redistricting and What the Future Holds (Ohio Lawyer, March 22, 2021)
Jessie Balmert, et al, Redistricting: Ohio Supreme Court Strikes Down State House and Senate Maps (Columbus Dispatch, Jan 13, 2022)
Dan Balz, Ohio Voters Asked for Fairness in Redistricting; They Didn’t Get it (Washington Post, January 17, 2022)
Andrew Tobias, Ohio Redistricting Commission Reconvenes, Eyes Saturday Court Deadline to Redraw Legislative Maps (Cleveland.com, January 18, 2022)