The Ohio Supreme Court threw out a pair of state legislative redistricting maps as well as a newly drawn congressional map last week. The twin rulings highlighted how good intentions of the voters can be scuttled by politicians with a partisan agenda.
The 4-3 ruling on the legislative maps found that the work of Ohio’s bipartisan redistricting commission amounted to partisan gerrymandering favoring Republicans, who just happen to control both the state House and Senate and the governor’s mansion.
A 4-3 ruling days later negated the congressional district map for the same reason, though those lines were the work of the state’s General Assembly, not the commission. “The evidence in these cases makes clear beyond all doubt that the General Assembly did not heed the clarion call sent by Ohio voters to stop political gerrymandering,” Justice Michael P. Donnelly wrote in the majority opinion.
Ohio revised its redistricting process a few years ago, with voters approving changes to the state constitution designed to reduce the partisanship that traditionally controls redistricting after each decennial census and create fairer and more competitive districts. The General Assembly has responsibility for congressional redistricting while a bipartisan commission is tasked with redrawing state House and Senate lines.
When the proposed changes to the Ohio state constitution were being put before the voters, a committee formed to promote the measure issued a flier that, among other things, said the new process would protect against gerrymandering “by prohibiting any district from primarily favoring one political party,” while requiring districts “to closely follow the statewide preferences of the voters.”
The court noted that, while the statewide legislative vote over the past decade had favored Republicans by about 54 percent to about 46 percent, the new maps would have given Republicans overwhelming majorities in the House and Senate, somewhere between 61 and 68 of the 99 seats in the House and between 20 and 24 of the 33 seats in the Senate.
The National Council of State Legislatures (NCSL) uses two broad criteria to assess the type of redistricting process used in each state, those where legislators have primary control and those where legislators do not have primary control. Overall, 35 states put the power primarily in the hands of the legislature while 15 give power to nonlegislative entities, according to Wendy Underhill, director of elections and redistricting at the NCSL.
But the shape and powers of those nonlegislative entities vary, as the Ohio case shows. Just four states — Arizona, California, Colorado and Michigan — have systems that are basically independent of elected officials. The rest vest some power in elected officials, including Ohio, whose commission is made up of seven members: Gov. Mike DeWine (R), Secretary of State Frank LaRose (R), Auditor of State Keith Faber (R), House Speaker Robert Cupp (R), Senate President Matthew Huffman (R), House Minority Leader Emilia Sykes (D) and Sen. Vernon Sykes (D).
The changes in Ohio called for the redistricting commission to approve legislative maps with a bipartisan majority of the seven-member body and stipulated that the majority must include two members from each of the parties. Failing that, maps can be approved by a simple majority of the commission, but those maps would only be in force for four years, rather than the customary 10 years.
The Ohio process undermined the idea that the commission was somehow less susceptible to partisan maneuvering. One example is the commission itself didn’t even draw the new legislative districts. Instead, the Republican and Democratic legislative caucuses separately produced their own maps, which then came to the commission members for debate and discussion. There was some negotiation between the two sides, but Republicans enjoyed a 5-2 majority. Ultimately, the two Democratic members of the commission said they would not support the Republican-produced maps.
The three statewide elected officials — DeWine, LaRose and Faber — were largely bystanders, though they testified that they had tried to help negotiate an agreement between the Republican and Democratic legislators, eventually concluding the impasse could not be overcome. But the three also voted for the gerrymandered maps.
LaRose said he cast his vote “with great unease,” saying the map had many shortcomings, “but they pale in comparison to the shortcomings of this process.” DeWine said he was disappointed with the outcome. “I’m not judging the bill one way or another,” he said, adding that was up to a court to 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.”
The Republican legislators on the commission defended the maps but with explanations that the court found wanting. In part, they said the new constitutional provisions did not require them to meet the test for fairness, arguing that wording was “aspirational” rather than mandatory. The court said this was an incorrect reading of the new constitutional requirements.
The second defense was less legalistic and more blatantly political. In defending the lopsided advantage for Republicans, Huffman explained that they had looked at statewide results in two ways. One was the portion of the vote each party had received over the previous decade, the 54 percent to 46 percent advantage for Republicans.
The other measure used was the number of partisan statewide elections won by Republican over the previous 10 years compared with the number won by Democrats. That came out to 13 for Republicans and three for Democrats, or 81 percent for Republicans. With that, he said the map met constitutional standards if the Republican advantage was somewhere between 54 percent and 81 percent. The court concluded otherwise, saying the tally of wins and losses in individual races was not a measure of the overall sentiment of voters.
The court’s ruling noted that an expert witness in the legislative case, Kosuke Imai of Harvard University, used a simulation redistricting algorithm and generated 5,000 possible plans, “none of which favored a party as strongly as the plan adopted by the commission.”
Redistricting commissions have proved themselves in some other states, particularly those where the control is vested almost entirely in citizens rather than politicians. In both Colorado and Michigan, where citizens ultimately control the drawing of lines, assessments of new maps have noted the lack of partisan advantage for either party.
In the Ohio case, Chief Justice Maureen O’Connor, a Republican, joined with three Democrats to strike down the legislative maps. In a concurring opinion, O’Connor highlighted the weaknesses of the system Ohio has adopted.
In her opinion, she wrote, “Having now seen firsthand 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 amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics.”