COLUMBUS, Ohio (CN) — Ohio’s Supreme Court tossed out the state’s most recent proposed congressional electoral maps for a second time Tuesday morning, finding that a Republican-majority redistricting commission had failed to fix a partisan lean that led the court to reject another set of maps in January.
In a 4-3 decision, the court found that the maps violated a constitutional article prohibiting gerrymandering. The majority ordered the commission– led by Republican legislative leaders– to redraw the districts in advance of the 2024 elections. Ohio held a primary election in May, making it too late to put new maps in force for the 2022 election cycle. The November election will use the rejected maps regardless of the ruling.
The rejected maps created two Democratic-leaning districts and 11 GOP-leaning ones, with two remaining districts considered to be competitive. It also placed Democratic Congresswoman Marcy Kaptur, the longest-serving woman in Congress, in a district slanted toward Republicans.
“It is notable that Senate President [Matt] Huffman [R-Lima] and House Speaker [Bob] Cupp [R-Lima] do not believe that the commission is required to refrain from unduly favoring one political party over the other,” the court's majority wrote in its per curiam order. “Senate President Huffman explained at length his belief that the commission is not constrained by the standard set forth in Article XIX, Section 1(C)(3)(a) of the Ohio Constitution. This fact alone shows that he, as the main proponent of the March 2 plan, was not operating with the goal of proposing a plan that did not unduly favor the Republican Party.”
The opinion went on to note that the plan was “only slightly less favorable to the Republican Party… than the original plan.” While the Republicans argued that the new plan gave Democrats a majority in five of the state’s 15 congressional districts, the majority wrote, three of those districts favored Democrats by very slim margins, with Democratic vote shares of 52.15%, 51.04% and 50.23%. The most competitive GOP-leaning district, meanwhile, had a 53.32% Republican vote share.
“The best-case projected outcome for the Democratic candidates under the March 2 plan is that they will win four — roughly 27% — of the seats,” the majority wrote. “Considering that Democratic candidates have received about 47% of the vote in recent statewide elections, this probable outcome represents only a modest improvement over the invalidated plan.”
The court also reaffirmed its decision to invalidate the previous redistricting plan, saying that legislative leaders’ arguments that the order effectively rewrote the amendment in requiring them to undo several county splits in the original plan.
“They contend that the language of Article XIX was intended to establish a 'safety valve of sorts' by allowing the commission to adopt a remedial plan without being constrained by the anti-gerrymandering provisions that had applied to the General Assembly,” the order said. “Under that interpretation, if the majority-party members of the General Assembly and the commission want to avoid the anti-gerrymandering requirements…they can simply refuse to comply with those requirements.”
“No constitutional language suggests that the voters who approved Article XIX intended to allow the prohibitions against partisan favoritism and unduly splitting governmental units to be avoided so easily,” the majority concluded.
The majority opinion represented the views of Chief Justice Maureen O’Connor and Justices Michael Donnelly and Melody Stewart. Justice Jennifer Brunner penned a concurrence, agreeing entirely with the majority and adding a response to a dissent penned by Justices Sharon Kennedy and Patrick DeWine.
In that dissent, the duo argued that the court should not make recommendations to redistricting commissions at all. “This court is not an equal partner with the General Assembly and the commission when it comes to redistricting,” the dissenters wrote. “It is not for us to decide how we would draw a congressional-district map.”
They also contested the majority’s view that the districts should reflect the popular vote. “The problem with the majority opinion’s analysis is that there is no such requirement in Article XIX,” the dissenting opinion states. “There is nothing in Article XIX that establishes proportionality as an aspirational goal, much less a requirement.”
Justice Patrick Fischer penned an additional dissent, joining his fellow dissenters and emphasizing his belief that the plan’s opponents had not proven their case beyond a reasonable doubt and that the court should have held public hearings on the case.
“Of course we are pleased that a bipartisan group of judges have continued to rule in favor of voters when it comes to ending partisan gerrymandering in Ohio,” said Jen Miller, director of the Ohio chapter of the League of Women Voters. The group was among the plaintiffs that challenged the maps, along with several individual voters and the A. Phillip Randolph Institute of Ohio. “Ideally, we would like new maps before the fall election, however, that doesn’t appear to be possible.”
“Ultimately, we are seeing that when politicians are put in charge of something so critical, like mapping, that they will put their short-sighted interests before the rights of voters,” Miller added.
Ohio Republicans have also struggled to get statehouse electoral maps past state high court scrutiny. In March, the justices rejected those maps for a fourth time after finding they violated a separate constitutional amendment governing state-level redistricting.
The commission took on the task, usually the responsibility of the Ohio General Assembly, after the Assembly declined to address the first rejected maps before a Feb. 13 deadline established under Article XIX. Cupp later said that he believed a 90-day referendum period for new laws would prevent legislators from enacting a new plan before the May 3 primary date, while a plan adopted by the commission would become effective immediately.
Princeton University's Prof. Samuel Wang, a neuroscientist, leads the Princeton Gerrymandering Project, a nonpartisan group which analyzes gerrymandering across the nation. He said the court's ruling demonstrates a weakness in Ohio's anti-gerrymandering paradigm.
"The fundamental difficulty here is that the court has no legal mechanism for drawing its own maps. It is dependent on good-faith actions to ensure compliance with fairness standards," Wang wrote in an email. "At this point redistricters have locked in the benefit of seeing their maps used in one election."
"A key to success in fair districting, from a partisan standpoint, is a truly independent final backstop mechanism, as is the case in California, Michigan, Virginia, and other states," he added.
Ohio lost two congressional seats following the 2010 census and one more after the 2020 census, leaving the state’s parties fighting over a shrinking pot of legislative power. Ohio has sent a majority-Republican delegation to Washington every year since 2011, but has elevated both parties in statewide elections throughout the 21st century and maintained its status as a critical swing state in presidential elections.
Miller said that the continued cycle of gerrymandering has pushed the League to look at the possibility of further constitutional amendments.
“We’re looking at independent – truly independent – commissions, where it’s not career politicians who are sitting in office making maps but instead a diverse set of voters and experts," she said.
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