Photo courtesy Wikimedia Commons..
by Susan Tebben, Ohio Capital Journal March 17, 2022
A bipartisan majority on the Ohio Supreme Court has for the third time rejected Statehouse district maps passed along partisan lines by Republicans on the Ohio Redistricting Commission.
The most recent versions of legislative maps that had been approved by the ORC were struck down in a 4-3 decision Wednesday night by the state’s high court.
A majority of the court justices said the map challengers had shown “beyond a reasonable doubt” that the most recent maps violated the constitution, particularly the provisions prohibiting partisan favoritism.
“Substantial and compelling evidence shows beyond a reasonable doubt that the main goal of the individuals who drafted the second revised plan was to favor the Republican Party and disfavor the Democratic Party,” the majority wrote in its Wednesday opinion.
The court sent the job back to the commission with a March 28 deadline to file an “entirely new” district plan for the General Assembly with the Ohio Secretary of State’s Office. A copy of the plan should then be sent to the court the next day.
The breakdown of votes matched previous votes by the court striking down maps, with Chief Justice Maureen O’Connor, Justice Michael Donnelly, Justice Melody Stewart and Justice Jennifer Brunner forming the majority opinion. Justices Sharon Kennedy and Patrick Fischer dissented. Also dissenting was Justice Patrick DeWine, son of governor and commission member Mike DeWine.
Justice DeWine recused himself from an issue in the case in which the commission members could be held in contempt of court for not filing new maps within the last deadline, but did not recuse himself from the entire case.
The justices in the majority once again pointed to Senate President Matt Huffman and House Speaker Bob Cupp as controllers of the map-making process, saying the evidence in this case “is just as strong, if not stronger” than it was in previous map-making attempts.
“The Democratic members of the commission had no opportunity to provide input in creating the second revised plan, and they had no meaningful opportunity to review and discuss it or to propose amendments once it was presented at the commission hearing on February 22, 2022,” the majority wrote.
The court said they have “identified a flawed process” in all three of its rulings on the legislative maps, plans adopted after being the “product of just one political party.”
“The evidence shows that the individuals who controlled the map-drawing process exercised that control with the overriding intent to maintain as much of an advantage as possible for members of their political party,” according to the ruling.
With these new maps, the court agreed with arguments made by anti-gerrymandering groups who said a disproportionate number of so-called “Democratic-leaning” districts were actually toss-ups, with less than a 1% advantage for the Democrats.
The newest plan had 19 House districts considered toss-ups, and seven Senate districts in the same toss-up range.
“The result is that the 54 percent seat share for Republicans is a floor, while the 46 percent share for Democrats is a ceiling,” the court wrote (italics their own).
That amount of toss-up districts, the court found, is “evidence of an intentionally biased map,” and is just one piece showing partisan lopsidedness on the part of the GOP.
Justices also made a point to single out Huffman in saying he appears to have voted against a Democratic map proposal “based, at least in part, on a misunderstanding” of the constitutional provisions regulating redistricting in the state.
Huffman called out the plan introduced by commission co-chair state Sen. Vernon Sykes and House Minority Leader Allison Russo because, according to him, the plan would have impacted the ability of Republican incumbents to keep their seats.
“Making that observation demonstrates, beyond a reasonable doubt, that Senate President Huffman misunderstands the requirements of Article XI and the reasons for their adoption,” the majority stated. “Senator Huffman’s concern for protecting incumbents is not grounded in Article XI.”
Kennedy and DeWine wrote their own dissent, that shamed the majority opinion for issuing a judgment “guaranteed to disrupt an impending election and bring Ohio to the brink of a constitutional crisis.”
The Ohio Secretary of State, yet another member of the redistricting commission, has issued frequent warning about the lateness of the redistricting effort, though he has yet to go against the Republican majority vote.
With the May 3 primary approaching quickly, Secretary Frank LaRose all but begged the General Assembly to approve extra money to speed up the delivery of absentee ballots to overseas and military Ohioans, and to extend the amount of time the county boards of elections have to send out the ballots, from 45 days before the election to 30.
In previous court filings and public comments, LaRose said the primary likely couldn’t withstand another map delay.
In shutting down the most recent map effort, the dissenting court justices say the majority of the court did much of what it did in previous rejections of redistricting maps by allegedly overriding the power of the constitution with its own interpretation.
In previous dissents, Kennedy and DeWine accused the majority justices of “moving the goalposts” by putting requirements in the constitution where none could be found, but this time, they say, “the majority tears down those goalposts altogether.”
“Through its actions today, the majority undermines the democratic process, depriving the voters of the constitutional amendment they enacted and leaving in its place only the majority’s policy preferences,” Kennedy and DeWine wrote. “In so doing, it threatens the very legitimacy of this court.”
The majority of the court added a new level to the next steps in redistricting by ruling the map-drafting “should occur in public” and that the commissioners should “convene frequent meetings to demonstrate their bipartisan efforts to reach a constitutional plan within the time set by this court.”
Dissenting justices say that the majority finding the most recent maps unconstitutional because this transparency method didn’t happen the first (or second) time “is ludicrous.”
“Nothing in the constitution requires the seven commissioners to sit down together to draft the plan – effectively handing each one of them an unbridled veto power,” Kennedy and DeWine wrote in their dissent.
The majority on the court also had a suggestion for the commission: “The commission should retain an independent map drawer — who answers to all commission members, not only to the Republican legislative leaders — to draft a plan through a transparent process.”
After the Ohio Redistricting Commission passes a new plan, map challengers will once again have three days to object after the maps are submitted.
The Secretary of State’s office declined to comment on the court ruling Wednesday night.
The Ohio Supreme Court’s isn’t done: It is still considering court challenges to congressional maps passed earlier this month. The court also hasn’t said whether it will reschedule a contempt of court hearing it brought up after the ORC didn’t come up with legislative maps by its February 17 deadline.
