Two very different scenes played out in Ohio and New York on Wednesday, and they illustrate in a nutshell how the difference in state laws can affect whether a state’s majority party can get away with illegal gerrymandering.
In both states, the highest courts found that the majority party broke state anti-gerrymandering laws. In Ohio, the gerrymandered maps were pushed by Republicans; in New York, they were pushed by Democrats.
And in both states, the majority party then sought to nonetheless use their illegally gerrymandered maps in upcoming elections — specifically by citing the lack of time left to draw new ones before primaries.
In New York, a state judge has named a court-appointed “special master” — an independent mapmaker who will draw districts without partisan favor — to draw congressional and state senate maps.
But in Ohio, crucially, the law doesn’t allow state judges to take this step for state legislative maps.
Here’s what happened Wednesday: In New York, a federal judge denied Democrats’ request for an injunction to use unconstitutionally gerrymandered congressional maps. Democrats had hoped the federal judge would let elections proceed as scheduled, rather than letting the special master draw new districts. Then, in Politico’s words, “the judge proceeded to relentlessly mock every aspect of their request,” slamming Democrats for trying to get away with congressional districts that the state’s highest court had ruled were unconstitutional.
In Ohio, that didn’t happen.
Rather, with two days to go before the state Supreme Court’s deadline to submit a fifth state legislative map — the first four were deemed unconstitutional gerrymanders — the commission… did nothing. Again.
The commission’s five Republicans, including Gov. Mike DeWine (R) and other top officials, voted against rehiring two eminently qualified independent mapmakers to complete a map that the state Supreme Court had suggested would meet constitutional muster. That independent map, according to the mapmakers, was just a few hours from being done when the commission pulled the rug out from under them last month, opting instead to submit a slightly tweaked version of a previous unconstitutional map.
After the Ohio commission voted down hiring the mapmakers again, it adjourned. With the state Supreme Court’s deadline on Friday, it appears likely the commission simply won’t submit any map.
Here’s where the difference comes in: Unlike New York’s congressional map dispute, the Ohio state Supreme Court doesn’t have the authority to appoint a special master to draw state legislative maps on its own. It can reject maps, but it’s essentially powerless if Republicans simply submit one unconstitutional map after another.
The state’s constitution makes this explicit: “No court shall order the commission to adopt a particular general assembly district plan or to draw a particular district.”
“That’s why we’re in this Groundhog Day scenario of the court constantly rejecting what is coming out of the redistricting commission, but without the ability to enforce any kind of decision,” Richard Gunther, an emeritus professor of political science at The Ohio State University who helped draft the state’s anti-gerrymandering language, told me last month. He added: “It really is a frightening power grab.”
And this is what Republicans have pursued. Last month, responding to a lawsuit from conservative activists, two Trump-appointed federal judges ruled that — in order to protect Ohioans’ right to a timely primary election — the state would be able to use one of the previous, unconstitutional maps if the state didn’t come up with an alternative by May 28.
And it looks like that’s what will happen. On Wednesday, after 20 days without meeting following the state Supreme Court’s latest rejection, Republicans on the redistricting commission lamented that they had simply run out of time!
“I can’t see any way that we can pass a new map,” Frank LaRose, Ohio’s Trump-endorsed secretary of state and a commission member, said during the meeting Wednesday, adding later, apparently with a straight face: “I’m not willing to compromise the integrity of our elections by rushing through a new map at this point.”
Ohio Republicans haven’t exactly come out and said that their goal is to run out the redistricting clock in order to be able to use unconstitutionally gerrymandered districts, nor that they’re able to do this because the state’s anti-gerrymandering constitutional amendment doesn’t allow the state Supreme Court to draw districts of its own.
But the commission’s behavior Wednesday was as clear an expression of this strategy as I’ve seen in many months following this story — and a clear example of how the effectiveness of anti-gerrymandering constitutional amendments can come down to details.