COMMENTARY

by Steven H. Steinglass

This article delves into the history of redistricting of the Ohio General Assembly and presents the business case for rejecting partisan gerrymandering. It also identifies the Citizens Not Politicians amendment, which its supporters believe will end partisan gerrymandering by assigning redistricting to an independent 15-person commission composed of five Democrats, 5 Republicans, and five independents.

The Focus on State-Level Gerrymandering

Partisan gerrymandering at the state results in the election of highly partisan super-majorities within the General Assembly. I focus on the state legislature, not Congress, because of the outsized impact of what happens in Columbus on all Ohioans. And with the July 3, 2024, deadline approaching for the submitting of the 413,487 valid signatures to place the Citizens Not Politicians amendment on the ballot, those contemplating signing the petition for the amendment (or ultimately voting on it) should be aware of the threats posed by partisan gerrymandering.

The History of Redistricting in Ohio

The seeds for partisan gerrymandering in Ohio were planted in our first constitution, the Constitution of 1802, which brought us into the Union as the 17th state. That constitution established a system of legislative supremacy and gave the General Assembly unlimited power to draw district lines for both the General Assembly and the U.S. House of Representatives. The only standard was that state legislative lines were to be based on “the number of white male inhabitants above twenty-one years of age” in each county.

Reform of the Ohio Constitution was the major political issue in Ohio in the late 1840s, and it took a gerrymandering crisis in Hamilton County to break the legislative deadlock and put a constitutional call on the ballot.

The voters approved the call for a constitutional convention, and the resulting Ohio Constitution of 1851 curtailed many of the powers of the General Assembly. This included removing the General Assembly completely from the process of state legislative redistricting. In its place, this power was given to three statewide officers — the governor, the secretary of state, and the State Auditor.

In 1903, Ohio abandoned its commitment to population equality with the adoption of the notorious Hanna Amendment to the Ohio Constitution. This amendment guaranteed every county at least one representative in the Ohio House of Representative, leading to significant population inequality and rural dominance.

The iconic 1912 Ohio Constitutional Convention did not address redistricting, but it created the constitutional initiative, a tool for a future generation to tackle such issues.

Substantial changes have occurred since 1802 regarding who is responsible for redistricting. But after losing its role in redistricting in the 1851 Constitution, the General Assembly gradually clawed back its power, leading to the current legislator-dominated Ohio Redistricting Commission.

The Impact of “One Person, One Vote”

In the 1960s, the U.S. Supreme Court revolutionized redistricting by embracing the principle of “one person one vote” for both state legislatures and Congress. This led to efforts to amend the Ohio Constitution, resulting in the 1967 amendment that repealed the Hanna Amendment and required that districts be equal in population as well as compact and contiguous. Despite these reforms, the General Assembly regained some of its lost power by adding two legislators to the redistricting commission.

How Partisan Gerrymandering Produces Super-Majorities

Partisan gerrymandering involves the drawing of legislative district lines to protect incumbents, to seek partisan advantage, or — in most instances — both.

Practitioners of partisan gerrymandering use “cracking” and “packing” to skew electoral results, diluting the opposing party’s power by spreading their voters across multiple districts (cracking) or concentrating them in a few districts (packing). These tactics, combined with the magic of advanced computer modeling, can result in a state with a 55-45% partisan split in the voting population having a legislature composed of 60-67% of the dominant party.  If this sounds familiar, it essentially describes what has happened in Ohio.

How Partisan Gerrymandering Hobbles State Government

Partisan gerrymandering typically results in the election of the most extreme members of the majority political party. In primaries, candidates have little incentive to move to the center, resulting in partisan super-majorities that can ignore the constitutional guardrails that our state constitution places on the General Assembly. Specifically, this leads to:

• The emasculation of the governor’s veto power as partisan gerrymandering makes it too easy for the General Assembly to reach the three-fifths majority in each House necessary to override a veto;
• The unchecked power to put proposed constitutional amendments on the ballot, which requires a three-fifths vote in each House of the General Assembly; and
• The power to include emergency provisions in legislation with a two-thirds vote of the vote in each House of the General Assembly, allowing laws to take effect immediately and preventing the voters from using the referendum to challenge adopted statutes.

The Substantive Impact of Partisan Gerrymandering

A strong case can be made that partisan gerrymandering in Ohio has contributed to or will contribute to:

• The erosion of municipal home rule;
• The abdication of the state’s constitutional responsibility to fund “a thorough and efficient system of common schools;”
• The decline in  the quality of higher education;
• The denial of a respectable minimum wage for Ohio workers;
• The fouling of our environment;
• The undermining of our new reproductive rights amendment;
• The vilification of the LGBTQ community;
• The weakening of our system of public health system; and
• The desirability of our state as a venue for conferences and a destination for tourists.

Cumulatively, partisan gerrymandering threatens Ohio’s business climate, risking its reputation as a business-friendly state.

Redistricting in the 1960s and the Persistence of Gerrymandering

Although embracing the principle of “one person one vote” in its decisions in the 1960s, the U.S. Supreme Court did not address partisan gerrymandering. Nor did the 1967 Ohio amendment. And every decade since its adoption has been marked by redistricting controversies with both Democrats and Republicans seeking partisan advantage at various times.

And in 2011, the Ohio Supreme Court washed its hands of the issue, holding that “[t]he Ohio Constitution does not mandate political neutrality in the reapportionment of house and senate districts…”

Recent Reform Efforts

In the 21st century, partisan gerrymandering has been the subject of reform efforts through ballot measures.

In 2005 and 2012, good government groups proposed amendments to create an independent redistricting commission and to bar partisan gerrymandering. But there was no broad understanding of the pernicious effect of partisan gerrymandering and thus no groundswell of support for ending it. Significantly, the opponents were able to control the message and skillfully employed the traditional tool of ballot measure opponents: obfuscation — a fancy word for misleading advertising. And the voters rejected these proposals by wide margins.

Unfortunately, the U.S. Supreme Court, which had once been seen as the place where partisan gerrymandering would die, declined to get involved. Though the Court had barred racial gerrymandering in 1960 five years before the adoption of the historic 1965 federal Voting Rights Act, in 2019 it refused to address the constitutionality of partisan gerrymandering, thus leaving the issue to the states.

Meanwhile, partisan gerrymandering was the target of two Ohio constitutional amendments proposed by strong bipartisan majorities in the General Assembly less than a decade ago.

In 2015, Ohio voters approved an amendment to alter redistricting of the General Assembly, and in 2018, the voters approved a separate amendment to alter redistricting of Congress. Both amendments, which were sold to the voters as ending partisan gerrymandering, were approved by more than 70% of Ohio voters. Both included detailed standards to govern redistricting by, among other things, barring the drawing of district lines that favor or disfavor a political party. Neither amendment created an independent redistricting commission.

2022 and the Failure of the Rule of Law

In retrospect, we  now know that these amendments had two fatal flaws.  First, in providing that a redistricting plan adopted by a bipartisan majority would last 10 years, the proponents assumed that the prospect of having to redistrict more than once in a decade would be an incentive to bring the parties together. Second, the amendments appeared to deny the Ohio Supreme Court the power to prepare its own plan in the event of an impasse.

The proponents were wrong on both counts. In late 2021, the Ohio Redistricting Commission adopted by partisan votes four-year redistricting plans for the General Assembly.

On January 12, 2022, the Ohio Supreme Court in a 4-3 bipartisan decision written by Justice Melody Stewart held the state redistricting plan was unconstitutional,

All that seemed like good news to those who wanted to eliminate partisan gerrymandering, but one member of the majority — former Chief Justice Maureen O’Connor — in a prescient concurring opinion in the first state redistricting case saw the handwriting on the wall. In effect, she told us that this was not going to work, and she argued that Ohio should look to the model of other states that had created independent redistricting commissions.

And Justice O’Connor got it right.

Despite five rulings in 2022 by the Ohio Supreme Court holding that state redistricting plans violated the Ohio Constitution, the court effectively concluded that it lacked the power to enforce its judgments. And the rule of law took a serious hit when a majority of the members of the Ohio Redistricting Commission refused to abandon their unconstitutional redistricting plans.

2024 — Unique Challenges and The Business Community

So here we are in 2024, and the question before us is: what is different?

Today there is a broader understanding of the impact that partisan gerrymandering has on the functioning of our representative democracy, on the business climate of our state, and on the quality of life in Ohio.

Ohioans, however, have the tool — the constitutional initiative — to address partisan gerrymandering. Adopted in 1912 to provide a way around an unresponsive legislature, the initiative is not a substitute for representative democracy; rather, it is a supplement. It permits the citizenry to have a voice when they believe that the General Assembly has become an obstacle to the common-sense resolution of the challenges that our state faces.

And there is an important ally in this effort — prominent members of the business community.

In the past, the business community has played an important role in campaigns on state ballot issues. Often this has been in opposing initiated amendments that it viewed as flawed. For example, think about business opposition in 2015 to the proposal to grant a marijuana monopoly to a group of investors.

The business community has also played an important supportive role on ballot issues that enabled economic development, and no better example is the adoption of Governor Bob Taft’s ground-breaking Third Frontier program.

To date, the major business organizations in the state have not taken positions on the proposed Citizens Not Politicians amendment, but in the past two years, a relatively new organization, the Leadership Now Project, has added a business voice to the effort to protect the Ohio Constitution and support representative democracy. Leadership Now opposed the infamous August 2023 ballot measure that would have undercut majority rule by imposing a 60% threshold on proposed constitutional amendments.

And Leadership Now, which is composed of prominent business and thought leaders throughout the state, is strongly supporting the proposed Citizens Not Politicians amendment and the use of a truly independent redistricting commission to draw state legislative district lines and to eliminate partisan gerrymandering.

Conclusion

Partisan gerrymandering poses a serious threat to Ohio’s democratic processes and business climate. The proponents of the Citizens Not Politicians amendment believe that Ohioans can ensure fair representation and foster a more stable and attractive state for businesses and residents alike. And they view the business community’s support as being an important part of the effort to drive the necessary change for a fair and prosperous Ohio.