Mike Ahern, an Independent voter from Blacklick speaks to supporters at the Citizens Not Politicians rally, July 1, 2024, at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original story.)

By: Daniel Nichanian, Bolts – Ohio Capital Journal

This article was originally published in Bolts, a nonprofit newsroom covering the nuts and bolts of power and political change, from the local up.

When Songgu Kwon went to the polls earlier this month, he was eager to help Ohio adopt an independent redistricting commission. The comic book writer and illustrator, who lives near Athens, dislikes the process with which politicians have carved up Ohio into congressional and legislative districts that favor them, enabling Republicans to lock in large majorities. So he was pleased that voting rights groups had placed Issue 1, a proposal meant to create fairer maps, on the Ohio ballot this fall.

“I’m in support of any measures that make the process more fair to reflect the will of the people, instead of letting the politicians decide how to gerrymander,” says Kwon.

In the voting booth, he reviewed the text in front of him. His ballot read that voting ‘yes’ would set up a panel “required to gerrymander the boundaries of state legislative and congressional districts,” and that it would “repeal constitutional protections against gerrymandering.”

So Kwon voted ‘no’ on the measure—given what he’d just read, he thought, that had to be the way to signal support for independent redistricting. He’d gone in planning to vote ‘yes,’ but he was thrown off by this language he saw; he guessed that he must have been wrong or missed some recent development. “The language seemed really specific that if you vote ‘yes’, you’re for gerrymandering,” he now recalls in frustration.

 

But when he left the polling station and compared notes with his wife, he quickly figured out that he’d made a mistake: He had just voted to preserve the status quo. To bring about the new independent process and remove redistricting from elected officials, as was his intention, he would have had to vote ‘yes.’

Kwon says he got confused by the language that was crafted and placed on the ballot by Republican Ohio officials. The official most directly responsible for this language, Secretary of State Frank LaRose, had a direct hand in drawing the gerrymandered maps that Kwon opposes and that the reform would unwind.

“I didn’t think that they would go so far as to just straight up lie and use a word that means one thing to describe something else,” Kwon told me. “They are using the term gerrymandering to describe an attempt to actually fix the gerrymandering.”

He added, “I thought this was a serious document, and that there would be some standard.” Other Ohioans have come forward with similar stories in recent days, complaining they meant to vote ‘yes’ but got tricked by the ballot language into not doing so.

Now the fate of Ohio’s redistricting reform hinges on whether its proponents can dispel this confusion and get the word out to all the residents who intend to support it.

The result will determine who gets to draw future state congressional and legislative districts, and it may shift seats as early as 2026. But more than that, the dispute adds to a larger saga over the viability of direct democracy in Ohio. Just last summer, the GOP pushed an amendment that would have made it much less likely for future citizen-initiated measures to succeed. That proposal failed, but Mia Lewis, associate director of Common Cause Ohio, told me at the time that she expected Republican leaders to “come back and try again” this year. Now she says that’s exactly what they did when they skewed this latest measure’s ballot language.

Lewis helped organize Issue 1 this year. And just like in the summer of 2023, she said, state officials “are threatened by the idea that the people of Ohio would have power.”

“They have understood that Ohioans don’t want gerrymandering, they have nothing good to say about voting ‘no’,” she said, “so the only thing they can say is, if you vote ‘yes,’ on this, you’re requiring gerrymandering, which is the exact opposite of the truth.”

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Issue 1 would amend the state constitution to create a new panel to draw Ohio districts. It would be made up of 15 citizens selected by retired judges from a pool of applicants; the body would need to include five registered Republicans, five registered Democrats, and five people who are neither. Elected officials would be barred from serving on the commission.

An independent commission would mark a huge change from current law, which grants the authority to draw districts to a panel of elected officials, including the governor, the secretary of state, and appointees of legislative leaders. The constitution already requires that new maps respect certain principles of fairness. But when Ohio’s high court in 2022 struck down GOP gerrymanders seven separate times, ordering the process to be more equitable, GOP leaders ignored the rulings and ran out the clock until they landed a more conservative court in the 2022 midterms. Issue 1 would also codify more stringent fairness criteria for the new commission to respect.

The coalition that drafted Issue 1 collected enough signatures to put it on the ballot. But as the secretary of state, LaRose got the opportunity to write the measure’s official summary. LaRose had been an active player in the redistricting process that drew the current maps that favor the GOP, but wrote his proposed summary in a way that suggested Issue 1 would make it likelier that Ohio gets gerrymandered. Proponents of Issue 1 immediately complained that his text was misleading.

They got more angry after LaRose’s draft went up for review in front of the Ohio Ballot Board, a five-person body that includes LaRose and has a GOP majority. During that process, Republican state Senator and board member Theresa Gavarone proposed the specific wording that Kwon says tripped him up most: She suggested using the term “gerrymander” to describe the way Issue 1 would require a commission to divide up the state.

Gavarone’s proposed tweak was met by gasps and startled laughter from the audience. (This can be heard in the recording’s 1:35:20 mark.) State Representative Terrence Upchurch, one of two Democrats on the board, then laughed in bewilderment when given the opportunity to respond to Gavarone. Still, a majority of the board approved LaRose’s draft and Gavarone’s amendment.

Voting rights groups rushed to court, asking for the language to be struck down. But the state supreme court, which has a narrow GOP majority, rebuffed them in September and upheld most of the ballot summary.

The four Republican justices said it was accurate to say that the new independent commission would “gerrymander” Ohio since it would be tasked with taking partisanship into account, even if it’s to draw a more evenly divided map.

The three Democratic justices disagreed furiously. Justice Jennifer Brunner wrote in a dissent, “We should be requiring a nearly complete redrafting of what is perhaps the most stunningly stilted ballot language that Ohio voters will have ever seen.”

According to Derek Clinger, an Ohio-based lawyer who has litigated past ballot language cases in front of the Ohio Supreme Court, many states use a system like Ohio’s: They ask elected partisan officials to draft ballot summaries. Still, some do it differently. Oregon, for instance, randomly selects citizens to meet and write statements summarizing each ballot measure.

But what frustrates Clinger is that Ohio’s state constitution does contain “workable standards” that are meant to enable oversight onto the decisions made by state officials; it states that language on the ballot can’t “mislead, deceive, or defraud the voters.” Clinger said, “You have this standard, but you had a majority [on the state supreme court] that disregarded that.”

Some Ohio justices take the view that they’re not supposed to play a strong oversight role. Pat DeWine, a Republican justice who is also the son of Ohio’s governor, even has a forthcoming law review essay on the matter. DeWine admits that the Ohio Ballot Board “is composed of partisan actors who may have incentives to draft language that at least subtly favors one side or the other.” But the court should be wary of second guessing them, he writes: It “polices only the outer boundaries of the board’s discretion.”

Clinger, who now works at the State Democracy Research Initiative, a research hub at the University of Wisconsin Law School, disagrees. He points to a separate dispute that unfolded in Utah this fall: There, Republicans advanced a referendum meant to allow lawmakers to more easily overturn citizen-initiated measures, while also crafting ballot language claiming that their proposal would “strengthen the initiative process.”

The Utah supreme court voided this measure in September, writing that a referendum must be placed “on the ballot in such words and in such form that the voters are not confused thereby.”

“Despite the partisan implications of the case, the Utah Supreme Court seemed able to assess in good faith whether the ballot language fairly described the proposal,” Clinger said. “The big takeaway for me is that the personnel of the court is so important.”

The composition of Ohio’s supreme court is on the line this fall since the state is holding elections for three of its seven seats. The GOP could expand its majority from 4-3 to 6-1, but Democrats also have an opportunity to flip the court in their favor.

Neither Gavarone nor LaRose responded to Bolts’ requests for comment for this story. LaRose said in a statement last month that the court’s decision was “a huge win for Ohio voters, who deserve an honest explanation of what they’re being asked to decide.”

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If Issue 1 passes, the state would have to quickly set up a new commission to create new maps by the 2026 midterms. But for now, proponents of the reform are focused on getting the measure across the finish line.

A poll conducted this month by YouGov found that support for Issue 1 had a large lead of over 20 percentage points. But the survey did not use the actual language that people are seeing on their ballot; instead, it asked how respondents would vote after telling them that “a ‘yes’ vote would establish a new bipartisan redistricting commission” and “ban partisan gerrymandering.” That’s precisely the explanation that proponents are fretting won’t be on the measure.

“I’m not going to rest easy at all until election results have come in,” Lewis said. She says she is worried about “a lot of confusion and purposeful misinformation” during the campaign, like the incorrect claims by GOP opponents of the measure that law enforcement officers and veterans would not be eligible to be on the redistricting commission, for instance.

Citizens Not Politicians, the committee running the “yes” campaign, is working to reach voters and explain what the measure actually does. The group launched an ad this fall in which former Chief Justice Maureen O’Connor tells voters that politicians opposed to Issue 1 have “lied” to them. O’Connor, a Republican, voted to strike down GOP gerrymanders in 2022; since leaving office two years ago, she has helped champion Issue 1.

The committee behind the “no” campaign, Ohio Works, is running ads as well. They have used the same strategy as the Ohio Ballot Board, of trying to associate Issue 1 with gerrymandering. In response to the criticism that some voters feel tricked by this characterization, a spokesperson for Ohio Works has said that, “If people go in and intend to vote for Issue 1, read the ballot language and vote no, they are not confused.”

But Kwon, the comic book writer, gives this warning to other Ohio voters: “Be careful. When you read the description, they’re going to refer to any attempt to change the current districting as gerrymandering. That’s what really threw me.”

“I would just say that, if you’re voting ‘yes,’ you’re voting to reform the current districting system,” he added.

Kwon feels frustrated that he unintentionally undercut a reform he supports and canceled out his wife’s vote. But together they’ve been burning up their friend network ever since to share word of his misfortune.

He said, “If me sharing the story prevents somebody from getting tricked like I was, or one or two people from getting tricked, hopefully that will balance it out.”

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