The Gavel outside the Supreme Court of the State of Ohio, September 20, 2023, at 65 S. Front Street, Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)

Republican majority rejects 6 of 8 changes requested by anti-gerrymandering advocates proposing the amendment

By: Susan Tebben – Ohio Capital Journal

The Ohio Supreme Court largely approved ballot summary language for November’s Issue 1 anti-gerrymandering amendment on Monday, sending the language back to the Ohio Ballot Board for two revisions.

A 4-3 Republican majority rejected 6 of 8 revisions requested by anti-gerrymandering advocates, while Democratic justices on the court said that was inadequate and that the summary needed “a nearly complete redrafting.”

The summary was written by Ohio Secretary of State Frank LaRose, who opposes the amendment, and approved 3-2 by the Ohio Ballot Board, which is chaired by LaRose. LaRose is also a member of the current Ohio Redistricting Commission that the amendment proposes to replace with citizen commissioners.

While the court allowed most of the summary language in a decision released Monday night, it ordered the board to include in the summary “language that accurately conveys” that “the public would have the right to express itself to the new redistricting commission” under the terms of the amendment, written by anti-gerrymandering coalition Citizens Not Politicians.

“Distilled, the proposed amendment would provide the rights of public participation in the redistricting process through meetings, hearings and an online public portal, and would forbid communication with the commission members and staff outside the public-meeting and portal context,” the court wrote.

The other change ordered by the court compels the ballot board to make it clear that judicial review of the amendment is not limited to a “proportionality standard.”

The current seven-member Ohio Redistricting Commission includes the Ohio House Speaker and Ohio Senate President, along with the governor, secretary of state, auditor of state, and two minority party legislative leaders.

If approved by the voters, the amendment would replace the politician commission with the Ohio Citizens Redistricting Commission, which would have 15 members made up of five Republican citizens, five Democratic citizens, and five independents.

The summary language does not change the text of the proposed redistricting reform or what the amendment would actually do; it’s just the summary language used to describe the amendment on voter ballots.

An average of Ohio voter preferences over the last 10 years including 2022 show a 56-43 Republican-to-Democratic preference of Ohio voters, but Republicans control supermajorities of 67 out of 99 Ohio House seats and 26 out of 33 Ohio Senate seats. Ohio voters were forced to vote under unconstitutionally gerrymandered districts in 2022 after Republicans on the Ohio Redistricting Commission ran out of time to produce constitutional maps and a split federal court ruled the maps that were declared gerrymandered by a bipartisan majority on the then-Ohio Supreme Court had to be used.

Republican politicians on the Ohio Redistricting Commission battled with the bipartisan court majority for nearly two years over the maps in 2021 and 2022, with five Statehouse maps and two U.S. Congressional district maps being rejected as unconstitutionally gerrymandered. The swing vote in those cases, Republican Supreme Court Justice Maureen O’Connor, was forced to retire due to age. She is now leading the Citizens Not Politicians amendment effort.

One provision challenged by Citizens Not Politicians but allowed by the court states the amendment would “repeal constitutional protections against gerrymandering approved by nearly three-quarters of Ohio electors participating in the statewide elections of 2015 and 2018, and eliminate the longstanding ability of Ohio citizens to hold their representatives accountable for establishing fair state and legislative and congressional districts.”

Citizens Not Politicians attorneys argued mention of the vote margin and method were not necessary, and the court said challengers laid out arguments that the language was “tantamount to an argument against adopting the proposed amendment.”

But the court majority found that “at worst” including the vote margin and method could be “questioned on relevance grounds” not on “accuracy grounds.”

“This information is factually accurate, and relators have not shown that the information would ‘mislead, deceive or defraud the voters,’” the court majority stated in their decision.

The court also allowed language added by state Sen. Theresa Gavarone during the Aug. 16 board meeting, which states the amendment would “establish a new taxpayer-funded commission of appointees required to gerrymander the boundaries of state legislative and congressional districts to favor the two largest political parties in the state of Ohio.”

Justices dismissed Citizens Not Politicians arguments that the language leads voters to believe the amendment would “require gerrymandering,” despite the fact that the amendment states it would ban partisan gerrymandering.

The court said “the fact that the proposed amendment announces that it would ‘ban partisan gerrymandering,’ … is of little assistance in ascertaining whether the ballot language’s use of the word ‘gerrymander’ is improper.”

The court explored various definitions of “gerrymandering” in coming to its decision, finding that the requirement the amendment uses to dictate the drawing of Statehouse and congressional maps “falls within the meaning of ‘gerrymander.’”

“Because the board’s use of the term ‘gerrymander’ is consistent with dictionary definitions and how the United States Supreme Court has used the term, it does not mislead, deceive or defraud voters,” the decision stated.

The court did not order any changes to the ballot title, though that was included in the changes requested by Citizens Not Politicians.

“We conclude that the secretary did not err in crafting the ballot title,” the court wrote.

While all the justices agreed to the changes, they were split on how many changes needed to be made.

In his concurrence, Justice Patrick Fischer claimed “gerrymandering, though in a bipartisan manner, is absolutely ‘required under the proposed amendment,” and that the state constitution “would dictate” that independent and third-party voters would have their voice “removed from Ohio’s political world.”

Justice Michael Donnelly agreed to the decision that ordered changes to the ballot language, but “vehemently” disagreed “that those corrections are even remotely adequate to prevent the ballot language as a whole from being misleading.”

He and Justice Melody Stewart joined Justice Jennifer Brunner in an opinion that agreed to the changes, but said the majority opinion “reflects an abject failure of this court to perform an honest constitutional check on the ballot board’s work.”

“We should be requiring a nearly complete redrafting of what is perhaps the most stunningly stilted ballot language that Ohio voters have ever seen,” Brunner wrote.

She went on to say the ballot board language “is tantamount to performing a virtual chewing of food before the voters can taste it for themselves to decide whether they like it or not.”

While the summary language will appear on ballots in the November general election, the actual language of the proposed amendment will be posted in polling places.

The Ohio Secretary of State’s office said the ballot board will meet to make the revisions on Wednesday morning.

Reactions

Citizens Not Politicians released a statement saying they disagreed with “much of the decision” but agreed with the court’s “repudiation of the politicians on the ballot board for violating the Ohio Constitution.”

Ballot Board chair Frank LaRose released his own statement, calling the court’s decision “a huge win for Ohio voters, who deserve an honest explanation of what they’re being asked to decide.”

Former Ohio Redistricting Commission co-chair and Auditor of State Keith Faber said the court was “thoughtful in its approach and they got it right.”

Senate President Matt Huffman and Gov. Mike DeWine have both spoken against the measure publicly.

Faber’s fellow co-chair Senate Minority Leader Nickie Antonio said while the decision “enables Ohioans to make a more informed choice by addressing some of the most deceptive language, other misleading and argumentative language still remains.”