Ohio Republicans have unlocked a secret of subverting their state’s constitution: Simply ignore your state’s Supreme Court when it tells you things you don’t want to hear.
That, literally, is what the most powerful politicians in the state have done with the ongoing fight over gerrymandering in Ohio. Four times in a row, the state Supreme Court’s majority, led by Republican Chief Justice Maureen O’Connor (above, left), has ruled that Republicans’ state legislative maps were unconstitutionally gerrymandered in their own party’s favor, ordering that they draw a new map.
But rather than passing a map the court would support, the GOP-dominated Ohio Redistricting Commission simply… did nothing. They have not held any meetings since the high court’s last ruling.
They’re running out the clock. And it’s working.
On Wednesday, a federal court stepped into the redistricting process, ruling that they would order the state to use the commission’s third map — one of the four proposals that the state Supreme Court already rejected for being too slanted — unless the state produces a workable new map by May 28. Either that or the state’s Republican-majority General Assembly changes the state’s election deadlines. The primary is set for Aug. 2.
The majority of a three-judge panel in the Southern District of Ohio, two Trump appointees, agreed with right-wing plaintiffs that the delay in the redistricting process (caused by Republicans’ foot-dragging) threatened the voting rights of Ohioans.
If the commission and the state Supreme Court aren’t able to “set aside their differences,” they wrote, the solution is to go ahead with a map previously approved by the committee — one gerrymandered heavily in Republicans’ favor.
“[T]he fact that Map 3 does not comply with the Ohio Supreme Court’s interpretation of state law does not prevent this court from imposing it — for one election cycle only — when faced with federal law violations, other state law concerns, and concerns about election administration on a short timeline,” the majority wrote.
In a partial dissent, Chief District Judge Algenon L. Marbley said the panel’s majority was rewarding the commission’s “brinkmanship” and contradicting the landmark anti-gerrymandering constitutional amendments that the vast majority of Ohio voters supported. The commission’s third map, he said, was “irredeemably flawed.”
“The majority’s goal, properly so, is to avoid intrusion on state sovereignty; yet in so doing, the majority tables a watershed constitutional referendum, abrogates controlling decisions of the state Supreme Court, and unwittingly rewards the Commission’s brinksmanship over the rights of Ohio voters,” Marbley wrote, adding later that under the majority’s opinion, “Ohioans will have to live under an unconstitutional redistricting plan — a fact that will hang over the General Assembly session and cloud every action it takes.”
Republicans’ Redistricting Strategy: Running Out The Clock
To understand what happened in Ohio, you have to understand a key dynamic in the anti-gerrymandering amendments: They prohibit politically slanted maps, but, unlike several other states where map-drawing is often contentious, they don’t allow the state’s Supreme Court to draw state legislative maps of its own if the Ohio Redistricting Commission fails to follow the rules.
So the commission pursued a back-and-forth strategy with the court that ate up months of time: They drew unconstitutional map after unconstitutional map, running out the clock and putting the state’s election officials under a nerve-wracking time crunch.
As the delays added up, anti-abortion activists led by Mike Gonidakis, the president of Ohio Right to Live, filed suit in federal court, seeking to have the rejected maps instituted as the official districts for the state legislature — and doing an end-run around the state Supreme Court in the process.
Amid the fight, the state legislative races were postponed. But Republican Secretary of State Frank LaRose (above, center), a member of the redistricting commission, said the court would need to decide what to do by April 20 if election officials were going to run the delayed election properly.
“Those who wanted to gerrymander in Ohio are playing about six chess games at once, where they are maximizing their power across levels and branches of government,” said Jen Miller, executive director of the League of Women Voters of Ohio, one of the groups challenging the commission’s work in court.
‘It Can Happen Anywhere’
It didn’t have to be this way: After the Ohio Supreme Court rejected the third map from the redistricting commission — which includes LaRose, Republican Gov. Mike DeWine (above, right), and other powerful politicians — the commission hired two independent mapmakers and tasked them with creating a map that would comply with the court’s ruling.
And the mapmakers did just that — until a few hours before the court’s deadline, when Republicans instead voted for a slightly modified version of the previously-rejected map that drew more vulnerable Democratic-leaning districts.
The Republican majority set aside the independently drawn map, which was more in line with the moderate majority that Republicans have won in recent statewide elections.
After their map was rejected yet again by the Ohio Supreme Court, the commission’s Republicans could have convened again and worked with the nearly-completed draft made by the independent mapmakers. Instead, they went several days without responding to the Democratic minority’s request to convene a meeting.
Now, the delay strategy appears to be working — a point that Marbley noted in his dissent.
“The current Commissioners have attained their goal of an unconstitutionally asymmetric map by flaunting orders of the Ohio Supreme Court—flirting even with contempt—and relying on this Court to rescue their unlawful redistricting plan once they had manufactured a sufficient emergency,” he wrote.
“Our deference was owed to the people’s clear command that redistricting is to be fair, bipartisan, and transparent — not to the Commission’s invalidated decisions to prioritize partisan favoritism over constitutional strictures,” Marbley added separately, arguing that the court should have adopted the independent mapmakers’ plan.
Miller, of the League of Women Voters, stressed that Republicans’ tactics in Ohio were the reason the League and others have called in vain for federal laws establishing redistricting rules. Republicans in the U.S. Senate have blocked such efforts, and Sens. Joe Manchin (D-WV) and Kirsten Sinema (D-AZ) have refused to agree to structural changes to the Senate filibuster rules to allow the legislation to move forward with a simple majority.
Miller noted that Ohio’s redistricting reforms made national headlines, and marked a hopeful moment in the fight against partisan gerrymandering. Now, that legacy is in peril.
“Everyone in the country should be paying attention to Ohio, because voters are not being respected, nor is the Ohio Constitution or our highest court,” she said.
“And if it can happen here, it can happen anywhere.”