The Supreme Court of Ohio today invalidated proposed Ohio House and Senate districts maps in their entirety and ordered the Ohio Redistricting Commission to be reconstituted, convene, and adopt entirely new General Assembly maps.

In a 4-3 decision, the Supreme Court ordered the commission to adopt a new plan that is constitutional, and file it with the Ohio Secretary of State’s office by Feb. 17. The commission has until 9 a.m., Feb. 18 to file a copy of the plan with the Court, which will retain jurisdiction to review the plan.

This is the second time the Court has found that General Assembly maps adopted by the commission do not meet voter-approved provisions of the state constitution to reduce partisan political gerrymandering. These revised maps continue to favor the Republican Party and are not proportionate to statewide voter preferences which parties agreed means 54% of General Assembly districts favor Republican candidates and 46% favor Democratic candidates, the per curiam opinion stated.

On Jan 12., the Court rejected maps from the commission that favored Republicans in at least 62 of the 99 House districts and 23 of the 33 Senate districts. The new maps favor Republicans in the House 57-42 and in the Senate 20-13, according to the commission.

“The revised plan does not attempt to closely correspond to that constitutionally defined ratio. Our instruction to the commission is—simply—to comply with the Constitution,” the opinion stated.

The commission asked the Court to finalize the maps by Feb. 11 or to allow its current plan to be used for the 2022 general election. The Feb. 2 deadline to declare candidacy for the next primary election to the General Assembly has passed, and other deadlines related to the May 3 primary election are quickly approaching. The opinion noted the legislature created the election dates. It said the commission’s failure to adopt a constitutional redistricting plan has placed pressure on the secretary of state and the county boards of elections. The legislature has the authority to move the primary election date, should it be necessary.

Chief Justice Maureen O’Connor and Justices Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the opinion.

In a joint dissenting opinion, Justices Sharon L. Kennedy and R. Patrick DeWine stated that the evidence confirms that the commission satisfied the requirement of the Jan. 12 Court decision by adding districts that “favor” Democrats. But the majority “now decrees that the commission must draw districts that favor Democrats to a degree of the majority’s liking,” the dissent concluded. However, the joint dissenters agreed with those challenging the maps, as conceded by the commission, that the revised plan contained isolated, technical violations of Article XI, Section 3(D)(3) in dividing municipalities and townships. The dissenters would remand the revised plan to the commission and order the isolated violations corrected.

In a separate dissent, Justice Patrick F. Fischer reiterated his objections to the Court’s view that it has the authority to review a commission map that will only be in effect for four years.

Commission Directed to Follow Constitution and Will of Voters
The Court directed the commission to follow the mandates of a 2015 voter-approved state constitutional amendment that created a seven-member redistricting commission to determine the Ohio House and Senate maps. Voters added new provisions aimed at reducing political gerrymandering so that the maps do not disproportionately favor a political party.

In January, the Court ruled the maps, adopted by the commission along political-party lines in September 2021, violated Article XI, Section 6(A) of the constitution, which states that no plan shall be drawn primarily to favor a political party. The Court also concluded that under Article XI, Section 6(B), it was possible for legislative districts to be drawn to correspond with the statewide voter preference of Ohioans.

The Court gave the commission 10 days to craft new maps, specifying the Court invalidated the entire maps, not just raising issues with the boundaries of a few districts. Today’s opinion stated that the commission did not work on a new map, but rather, had Republican mapmakers tweak the district boundaries of the prior map to make additional districts just slightly more than 50% in favor of Democratic candidates.

Commission Limits Input
The commission consists of 5 Republican members: the governor, auditor, secretary of state, House Speaker Robert Cupp, and Senate President Matthew Huffman. The two Democratic commission members are State Senator Vernon Sykes and House Minority Leader Allison Russo.

Cupp and Huffman directed Republican Senate and House staff members who originally drew the maps to revise the plan. The two were directed to meet with commission members as well as Republican and Democratic legislative staff members to gather ideas.

In today’s decision, the Court takes issue with the manner used to revise the map. The mapmakers told the commission they used as a “base map” the maps the Court had previously invalidated, and changed more district boundaries from Republican-leaning to Democratic-leaning.

To make the changes, the mapmakers used a district’s “index,” which was the historic pattern of voters casting ballots in elections. The mapmakers explained to the commission that they used mapping software to change the boundary lines until the partisan voting patterns began to favor Democrats by more than 50%. The commission was told it was impossible to create any fewer than 57 House seats that favored Republicans without violating other map-drawing criteria in the constitution.

The Court stated that expert testimony and alternative maps contradicted the mapmakers’ position that otherwise constitutional maps with less than 57-Republican-leaning districts could not be drawn. The Court noted experts representing the League of Women Voters and voting-reform advocates submitted proposals that more closely aligned with a 54-46 Republican advantage in the statewide voting preference. The Court pointed to one expert’s submission with 5,000 simulated plans that were more proportional than the commission-approved maps.

Map Revised to Add More ‘Democratic-Leaning’ but Toss-Up Districts
Russo noted that under the staff proposal, 14 of the 42 Democratic-leaning House districts had an index between 50% and 52%, but none of the Republican-leaning districts had an index that was below 52% in favor of the Republican candidate. Of the 14 Democratic-leaning districts, 12 were between 50 and 51 percent. The opinion stated that labeling a district with an index between 50% and 51%, including a district with a 50.03% index, as Democratic leaning is “absurd on its face.”

The opinion concluded the districts were not Democratic-leaning, but rather “toss-up” districts, and that with a one-half to one percent “swell” in Republican voters in those districts, the Republicans could win half of them, thereby winning 63 of 99 total seats in the House. Since no Republican district had less than a 52.6% advantage, the new plan still “favored” the Republican Party, the Court ruled.

“We cannot credit the claims of those who drew the revised plan that that plan was the most proportional one possible, because the map drawers misunderstood their task. They were guided by incorrect directives, began with an invalidated plan, and worked to eliminate closely Republican-leaning districts by turning them into competitive ‘Democratic-leaning’ districts,” the majority stated. “The commission set its compass wrong, and it wound up in the wrong place.”

The Court concluded the “Republican map drawers refused to expressly work toward a 54 to 46 percent partisan share.” While one commissioner characterized the number as a “superficial ratio,” and “arbitrary percentage,” the opinion stated it is the ratio that is determined, and agreed to by the parties, based on statewide and federal elections during 2016 though 2020.

“Rather, as we made clear in League of Women Voters of Ohio, it is a foundational ratio created not by this court or by any particular political party but instead etched by the voters of Ohio into our Constitution,” the opinion stated.

Court Oversteps Authority to Direct Commission Actions, Dissent Maintained
In their joint dissent, Justices Kennedy and DeWine wrote that the Court majority has “commandeered the redistricting process” from the commission and stated that it would simplify matters if the commission provided the map-drawing software to the majority “so that they can draw the map themselves.”

“At this point, one must wonder which seven-member body is the true redistricting commission—the constitutionally named officers or this court?” the dissent stated.

The dissent began by noting that the majority continued to exceed the bounds of its constitutional authority. Under the plain terms of the redistricting amendment, the dissent explained, violations of Section 6 of the redistricting amendment, are not judicially enforceable unless there are other constitutional violations not present here. Thus, in the dissent’s view, the majority exceeded its constitutional powers by issuing today’s order as well as its previous order.

The dissent went on take issue with the majority’s conclusions that the redistricting commission violated Section 6(A) and Section 6(B).  The dissent noted that the majority had “shifted the goalposts” as to what constituted an acceptable breakdown of Republican and Democratic districts. It explained that in its previous opinion the majority had held up one expert’s plan as a model of constitutionality, but in its opinion today, the majority rejected the redistricting commission plan that contained a nearly identical partisan split. As evidence of how far “afield” the majority had “veered,” the dissent noted that the plan initially proposed by the Democratic members of the commission had the same partisan breakdown as the revised plan the majority invalidates.

“What it indicated in its previous decision regarding what would be a close enough division of districts is no longer close enough. Instead, under today’s decision, the commission must undertake a reverse-gerrymandering to guarantee Democratic victories to achieve exact proportional representation,” the dissent added.

The dissent also pointed to demographic evidence in the record that demonstrated that the only way to achieve the majority’s exact proportionality standards would be for the commission to undertake an extreme gerrymander in Ohio’s urban counties, virtually guaranteeing that voters in these counties could only elect Democratic representatives, “taking general-election voters out of the equation and ensuring that elections are decided by the lines that are drawn and not by the ballots cast.”

Finally, the dissent pointed out that nothing in the constitution authorized the Court to retain jurisdiction and to assign the commission an “arbitrary” deadline to exercise its redistricting authority.

No Court Oversight Over Four-Year Map, Dissent Stated
In his dissent, Justice Fischer maintained the provisions of Article XI, Section 8 limit the Court’s ability to review the maps that do not have the support of both parties. Because the commission members reached an impasse, under Section 8(C)(1)(a) they could only approve a map that would remain in effect for four years.

“A four-year plan does not constitutionally come before this court, because there are no Section 9 exceptions in the Constitution’s text, as Article XI was designed to keep this court out of a four-year-plan dispute,” he wrote.

Justice Fischer stated that the Court was involving itself in policy-making decisions that belong in the hands of the commission.

“Today, instead of turning around and heading back in the proper constitutional direction imposed by 71 percent of Ohio’s voters in 2015, the majority opinion doubles down and continues driving the state unconstitutionally in the wrong direction, toward a brick wall comprising both a panoply of election-related deadlines and a potential constitutional crisis.”

2021-1193, 2021-1198, and 2021-1210. League of Women Voters v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-342.

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