Ohio legislative maps declared unconstitutional

COLUMBUS, Ohio (CN) — The Ohio Supreme Court declared the latest legislative district maps unconstitutional, ruling that the maps do not meet provisions in the Ohio Constitution meant to reduce gerrymandering.

In a 4-3 decision, the Supreme Court determined that the maps must be redrawn because the Ohio Redistricting Commission did not draw the maps to correlate with statewide voter preferences.

Justice Melody J. Stewart wrote the majority opinion for the court, stating, "All parties agreed that in statewide partisan elections over the past decade, Republican candidates had won 54 percent of the vote share and Democratic candidates had won 46 percent of the vote share."

A plan proposed by Democrats proposed a plan mirrored these percentages, with 44 of the 99 seats in the House seats leaning Democrat, with 55 of the the 99 seats leaning Republican.

However, Stewart noted, "The Republican proposed plan — which the commission adopted as its proposed plan — predicted 32 Democratic leaning House seats and 67 Republican leaning House seats." The Ohio Senate map predicted 23 Republican leaning seats to 10 for the Democrats.

Because of this disparity, The Supreme Court concluded that the redrawn maps did not meet the proportionality requirements set forth in Article XI, Section 6(B) of the Ohio Constitution.

Republican legislative leaders claimed the new provisions were meant to be aspirational, hanging their hats on the wording of the amendment which says the commission “shall attempt to draw the General Assembly district plan that meets all these standards."

The Court also ruled that the commission violated Section 6(A) of Artice XI, which states that "No general assembly district plan shall be drawn primarily to favor or disfavor a political party."

In the opinion, Justice Stewart voiced the court's disagreement with the plan. "When drawing a district plan, the commission must attempt to meet the standards set forth in Section 6."

Six years ago, Ohio voters overwhelmingly approved the amendment to the state’s Constitution to end partisan redistricting, in response to secretive gerrymandering that had gone on for years. The purpose of the amendment, according to the 2015 ballot language presented to voters, was to “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.” 

Article XI states that districts should be drawn as compactly as possible, with the splitting of political subdivisions such as cities and counties to be done as little as possible in an attempt to create even populations. In the opinion, Justice Stewart noted that under Section 6 of the amendment, the commission is charged with examining both federal and state election results over the past 10 years in order to determine how the proposed districts are likely to vote in the future.

The Ohio Redistricting Commission's five Republican members who voted to adopt the maps in question claimed that these preferences can be determined using the percentage of winning candidates in statewide elections. This meant that, because GOP candidates won 13 of 16, or 81%, of the statewide elections in the last decade, the adopted maps met the constitutional requirements because the districts' voting preferences, determined to be about 68%, fell between 54% and 81% of the statewide voting preferences.

In contract, the court determined calculations should be based on votes cast by voters statewide rather than election victories by party, with Justice Stewart writing that there was "substantial expert evidence showing that the commission could have drawn a more proportional map."

Chief Justice Maureen O'Connor and Justices Michael P. Donnelly and Jennifer Brunner joined Justice Stewart's majority opinion, with O'Connor and Brunner writing concurring opinions.

Chief Justice O'Connor wrote that Ohioans could decide to use other processes to achieve a more balanced map. "“Having now seen firsthand that the current Ohio Redistricting Commission — comprised of statewide elected officials and partisan legislators — is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendments to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics,” O'Connor stated.

Justice Brunner wrote in her opinion that she believes that the maps also violate Article 1, Section 2 of the Ohio Constitution, which gives Ohioans the right to change or abolish the government "whenever they deem necessary." Brunner wrote, "Gerrymandering at its core prevents voters from voting on equal terms to alter or reform their government. Gerrymandering is unconstitutional, because it denies Ohioans equal protection in the exercise of their voting power."

Justices Sharon L. Kennedy and Patrick F. Fischer wrote dissenting opinions, with Justice R. Patrick DeWine joining Kennedy's dissent. Kennedy disagreed with the majority's opinion that the court had authority to decide these issues, claiming that Article XI, Section 9 limits the court's authority to invalidate a plan. "Because Section 9(B) does not address any action that a court is required to take, it cannot be an independent source of judicial power to review and invalidate a plan," Kennedy stated.

Justice Fischer stated in his dissent that, because of the impasse of the commission, they could only approve a four-year plan, and there was no recourse for the four-year plan. “Section 8(C)(1)(a) contains no proviso that the effectiveness of a four-year plan is subject to the provisions of Section 9. Section 8(C)(1)(a) instead provides that the plan ‘shall remain effective’ for four years. Period. No exception for Section 9 is listed,” he wrote.

“The Ohio Supreme Court’s decision is huge. It not only orders the immediate drawing of a new, constitutional map, but it also validates that Ohio’s voter-enacted constitutional prohibition that partisan gerrymandering is not merely ‘aspirational’ — it has real teeth. This bodes well for the 2022 election cycle — and beyond,” Freda Levenson, legal director for the ACLU of Ohio said in a press release. “This ruling sends a clear message to lawmakers in Ohio: they may not put politics over people.” 

Jen Miller, executive director of the League of Women Voters of Ohio added, "We thank the high court for standing with voters and defending our democracy by ordering the drawing of new Ohio Senate and Ohio House districts. Now we call on the Ohio Redistricting Commission to do what voters and the Ohio Supreme Court expect: draw maps that keep communities together and represent the right of every Ohio voter to have fair districts.”

On Dec. 28, The Ohio Supreme Court heard similar arguments involving district maps drawn for representation the U.S. House. The Court has not yet issued rulings on these challenges.

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