Anti-gerrymandering protest in Washington, DC. | Olivier Douliery, Getty Images.
The Ohio Supreme Court on Thursday dismissed two cases over congressional districts in Ohio.
The decision isn’t a complete surprise because the groups filing the complaints asked for the dismissals earlier this week. But struggles over partisan gerrymandering in Ohio and elsewhere are far from over.
The complainants continue to maintain that Ohio’s congressional districts — as well as its legislative districts — are unfairly gerrymandered. They simply calculate that it’s better to dismiss the cases in light of other developments and because the state Constitution already requires that districts be redrawn after next year’s General Election.
In claiming that Ohio is extremely gerrymandered, the plaintiffs appear to have a point. Former president Donald Trump won the state with less than 54% of the vote in 2020, yet Republicans control 66% of the state’s congressional seats — a 12-point differential.
Many political scientists and other experts say extreme gerrymandering is a problem because by making general elections uncompetitive, it incentivizes candidates to pander to the most extreme elements of their primary electorate. Also, by imposing one-party rule, it creates unaccountable, corrupt majorities, they say.
In May 2018, an amendment to the state Constitution that banned extreme partisan gerrymandering and gave the Ohio Supreme Court the power to throw out maps on that basis passed with an overwhelming 75% of the vote.
Yet the Republican-dominated Redistricting Commission created by the amendment twice ignored rulings by a bipartisan majority on the Ohio Supreme Court rejecting maps it drew in the wake of the 2020 Census. With the clock effectively run out, a panel of three federal judges kept the unconstitutional congressional maps in place for the 2022 election.
Ohio Republicans argued to the U.S. Supreme Court that the state judiciary has almost no power to regulate how legislatures draw congressional districts — no matter what state law says or how gerrymandered those legislatures might already be. That’s known as the “independent legislature doctrine” — which Carolyn Shapiro blasted as “an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law,” in an article this year in the University of Chicago Law Review.
On June 27, six members of U.S. Supreme Court agreed in Moore v Harper. The ruling said the North Carolina Supreme Court had the power to enforce a state law banning excessively partisan congressional maps.
However, gerrymandering foes in Ohio might not find much solace in the decision.
Former state Supreme Court Chief Justice Maureen O’Connor, a Republican, repeatedly joined the court’s three Democrats in ruling that Republican-drawn congressional and legislative maps were excessively partisan. But then she was forced to retire last year because of her age and the new court has a more partisan makeup.
Other recent developments might not hold much hope for Ohio’s anti–gerrymandering groups, either.
The U.S. Supreme Court last October struck down Alabama’s congressional maps in Allen v Milligan. The surprise ruling said that the state’s congressional districts violate the Voting Rights Act by being unduly gerrymandered against Blacks.
It ordered that the state legislature redraw maps so that Alabama Blacks will have a chance at a second seat in the state’s six-seat delegation in which they can select a representative of their choice.
That doesn’t necessarily mean picking a Black representative — or that by merely being Black, a representative meets the requirements of the Voting Rights Act. The law requires that minority communities have a legitimate shot at picking representatives in numbers proportional to their own.
Blacks make up about 27% of Alabama’s population and the ruling in Milligan would give them a chance at power over 33% of its congressional seats, as compared to the current 17% they have power over now.
However, the state’s Republican-dominated legislature twice defied orders to comply with the ruling. On Tuesday, a panel of federal judges rebuked the body and ordered that the new map be independently drawn.
The ruling in Milligan has implications for several other states, such as Louisiana, which have large, underrepresented minority populations.
But Ohio might not be one of them because it doesn’t have the diversity those states do. Whites make up 80% of the state’s population, while Blacks make up just over 13%. The next closest group, Latinos, make up 4.5%.
Louisiana, by contrast, is 63% White, but that group controls 80% of the state’s five congressional districts.
In her role as now-retired chief justice, O’Connor is helping to lead an effort to build even more stringent anti-gerrymandering amendments into the Ohio Constitution. The amendment she’s working to put on the November 2024 ballot would do what the federal panel did to the Alabama legislature on Tuesday — take district drawing out of the hands of partisans and give it to an independent commission.
