A fourth set of Ohio House and Senate district maps has been ruled unconstitutional by the Supreme Court of Ohio, which ordered the members of the Ohio Redistricting Commission to reconvene and adopt new General Assembly maps.

In a 4-3 decision, the Supreme Court ruled the revised plan “has not materially changed from” the third set of maps invalidated by the Court on March 16.

In a per curiam opinion, the Court majority noted that the commission initially embraced the Court’s directive to draft the maps rather than adopt maps drafted solely by the Republican leaders of the Ohio House and Senate. But in the end, the “process devolved into the same one-sided partisan map-drawing process that led us to invalidate the previous three plans.”

The Court stated that it discerned “intent of partisan favoritism from the timeline that led to the commission’s decision to scrap the work of the independent map drawers in favor of a plan that included minimal changes to one already invalidated as unconstitutional.”

The Court ordered the commission to file its new plan with the Ohio Secretary of State’s office by 9 a.m., May 6, and with the Court by noon, May 6. The Court noted that “for good cause shown,” the commission may seek an extension of time to submit the new plan. The opinion stated that during final deliberations on the fourth set of maps, commission members misinterpreted the Court’s March 16 order and believed they could not request an extension of time.

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

Justice Donnelly also wrote a concurring opinion.

Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine each issued a dissenting opinion. Justice Kennedy concurred with Justice DeWine’s opinion, and Justice Fischer joined a portion of Justice DeWine’s opinion.

Commission Abandons Inclusive Mapmaking Process
As with its previous decisions in this case, the Court directed the commission to follow the mandates of a 2015 voter-approved state constitutional amendment that created a redistricting commission to determine maps for Ohio House and Senate districts. The new provisions were aimed at reducing political gerrymandering so that the maps do not disproportionately favor a political party.

In its March 16 decision, the Court suggested retaining independent map drawers to assist the commission. In the week leading up to the March 28 deadline to submit maps that met the Ohio Constitution’s requirements, the commission hired two mapmakers, one suggested by the majority Republican members of the commission and one suggested by the minority Democratic members.

The opinion noted the commission met almost daily, ensured the map drawers had a set of “ground rules” to help guide their work, and allowed the public to observe the map-making process. The commission employed the assistance of mediators to help resolve conflicts.

On the day the plan was due, Republican members expressed concerns that the independent map drawers’ proposal was not complete and would not comply with the constitutional requirements. Senate President Matthew Huffman then recommended that the commission develop a “failsafe” by also allowing House and Senate staff members to revise the third set of maps with hopes of crafting a new version to comply with the Court’s order.

Over the objection of the Democratic members, a minimally modified version of the third district plan was introduced late in the evening of March 28. Today’s opinion stated that neither the commission’s statewide officeholders nor the Democrats participated in drawing the latest maps and had not seen a copy until it was distributed about three hours before the deadline. By a 4-3 vote, the commission approved the fourth set of maps.

The League of Women Voters of Ohio and other organizations that originally challenged the redistricting plans filed objections asking the Court to invalidate the fourth set of maps.

Supreme Court Analyzed Revisions
The challengers argued the fourth set of maps was unconstitutional because the maps continue to violate Article XI, Section 6(A) of the constitution, which states that no plan shall be drawn primarily to favor a political party, as well as Article XI, Section 6(B).

The opinion noted that Huffman called the fourth set of maps “probably 97%” like the third maps that had been rejected by the Court. The Court acknowledged the commission only made a few alterations.

The opinion discussed the reports of two experts hired by the challengers to review the fourth set of maps. Those experts indicated that out of more than 276,000 U.S. census blocks that the commission could move to redraw Ohio’s district maps, the commission moved only 451 census blocks to revise the House maps and 270 census blocks to change Senate maps. The adjusted blocks represent less than 0.3% of the state’s population, the Court stated.

The opinion stated the evidence shows some Republican members of the commission blocked, rather than facilitated, the work of the map drawers, and reverted to “partisan considerations when time was running short, even though the potential for successful completion was high.”

The Court noted the independent map drawers were allotted $49,000 each for their work and produced a plan that the drawers believed was close to being constitutionally compliant. The opinion stated the Court would not direct how the commission should proceed, but suggested they follow the work started by the independent map drawers.

The Court declined petitioners’ requests for additional or alternative relief. The Court stated that “we cannot disregard Section 9(D) simply to avoid the possibility that a federal court may take action under federal law.” The Court noted petitioners’ concern that “the federal court may implement a plan that we have already found unconstitutional.” The opinion also acknowledged representations made in federal court proceedings about the latest possible primary date. The Court stated, “In this case, there is a clear and viable path forward to having a constitutionally valid General Assembly-district plan in place for the 2022 election cycle.”

Concurrence Finds Partisanship Dominates Process
In his concurring opinion, Justice Donnelly cited a 2018 opinion article co-authored by Secretary of State Frank LaRose, a commission member. LaRose, who was a state senator at the time, called for changes in the map-making process for Ohio’s districts and wrote, “Even if our party benefitted, it’s still wrong.” In the article, LaRose went on to conclude, “It’s time to end gerrymandering – which protects party politics at the expense of the American people – and allow true democracy to flourish.”

Justice Donnelly wrote that relatively little has changed since the article appeared, yet the design of legislative districts remains “firmly in the grips of the majority party’s legislative politicians to the exclusion of all others.” He stated Ohioans are still watching and waiting for the commission members to fulfill their constitutional obligations.

Court Oversteps Its Limited Power, Dissent Maintains
In her dissent, Justice Kennedy first addressed the petitioners’ arguments that the commission and its members should be held in contempt of court for failing to obey the Court’s opinion invalidating the second revised plan. She explained that the Ohio Constitution had delegated the responsibility for redistricting to the commission and that the separation of powers doctrine precluded the Court from interfering with its work by using the threat of contempt.

Justice Kennedy pointed out that the majority continues to ignore the limitations on the Court’s power to overturn the work of the commission. She noted that Article XI, Section 9(D)(3) of the state constitution allows the Court to invalidate the district plan in whole or in part only if there is a violation of the requirements imposed on the commission by Sections 2, 3, 4, 5, or 7. Those provisions include objective map-drawing rules such as limiting the splitting of cities and counties, as well as ensuring the maps comply with federal law. The majority today, she explained, invalidates the plan because it purportedly did not comply with the directory requirements of Section 6, but Section 6 is expressly excluded from judicial review by Section 9(D)(3).

“By adhering to its view of unlimited power, the majority keeps bringing us back to September 2021 – the time when the redistricting cases were first filed; we are stuck in a time loop, like the characters in the movie Groundhog Day,” she noted.

Justice Kennedy wrote that the constitution has an impasse procedure for when the members of the commission reach a stalemate: the result is a map that stays in place for four years. But since the constitution did not anticipate the outsized role the majority has claimed for itself in the redistricting process, she concluded, there is “no procedure [that] applies when a majority of this court and the commission are at loggerheads.  Instead, the process endlessly repeats itself. That is where we are.”

No Authority for Court to Review Four-Year Map, Dissent Contends
In a separate dissent, Justice Patrick F. Fischer stated that “the majority opinion undermines, undercuts, and guts the entire structure of Article XI.” Justice 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.

He wrote that maintaining the “carrot” of a 10-year plan, without imposing the “stick” of a four-year plan, effectively tells the minority-party members of  the commission to never agree, “never, ever reach a compromise with the majority-party members.”

 “Without the continuing ‘threat’ of the four-year plan as a ‘stick’ to prod compromise, the majority opinion destroys Article XI’s very foundation and makes it mere dust,” he wrote.

Court Micromanaging Commission’s Work, Dissent Asserts
In his dissent, Justice DeWine opined that the “fourth enacted plan complies with all constitutional standards.”

“It’s déjà vu all over again,” wrote Justice DeWine. “If anything is clear at this point, it is that the majority has long ago forsaken any concern about the actual words of the Constitution—it simply demands a General Assembly–district plan that achieves its policy goals.”

Justice DeWine lamented that the majority’s disregard for “the actual words of the Constitution” will cost Ohio “taxpayers an estimated extra $20 to $25 million.”

Complete with map illustrations, Justice DeWine explained that the independent map drawers’ plan “carved up” urban districts “like slices of a pizza” to achieve greater “partisan symmetry”—an “extraconstitutional standard” designed by the majority “to achieve political outcomes that the court finds desirable.”

And Justice DeWine criticized the majority for “telling the commission how to do its job” and “imposing requirements found nowhere in the constitution.”

“Indeed, it is amazing that despite prohibiting the commission from working off its previous plan, the majority has no qualms about strongly suggesting that the commission work from the independent map drawers’ plan — a plan that has never been adopted or subjected to adversarial testing,” the dissent stated.

Finally, Justice DeWine took aim at the majority’s “cavalier approach” to “Ohio’s statutory framework for elections.”  He noted that the majority today “practically beg[s] a federal court not to intervene,” and assures the federal court that time remains to enact a valid plan. Justice DeWine responded: “We are judges, after all, not election officials. We have no institutional expertise in the mechanics of holding elections. And the person who does—Ohio’s secretary of state—has made clear that he thinks April 20 is the drop-dead date for holding an orderly election.”

2021-1193, 2021-1198, and 2021-1210. League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-1235.

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