A set of Ohio House and Senate district maps previously ruled unconstitutional remain invalid, the Supreme Court of Ohio ruled today. The Ohio Redistricting Commission must be reconstituted to draft and adopt new General Assembly maps that meet the requirements of the Ohio Constitution.

In a 4-3 decision, the Supreme Court rejected the commission’s readoption of a plan termed “Map 3.” The commission resubmitted the previously rejected map to the Court on May 5, a day before a Court deadline to adopt an entirely new district plan that complies with the Ohio Constitution.

The Supreme Court today ordered the commission to file its new plan with the Ohio Secretary of State’s office by 9 a.m., June 3, and with the Court by noon that day. The Court noted that “for good cause shown,” the commission may seek an extension of time to submit the new plan.

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

In a concurring opinion, Chief Justice O’Connor, joined by Justice Donnelly, wrote that with the federal court’s reassurance that continuing delays and inactions would be rewarded, the commission has “engaged in a stunning rebuke of the rule of law” by readopting Map 3.

Justices Sharon L. Kennedy and Patrick F. Fischer wrote separate dissenting opinions. Justice  Kennedy stated the Court has overstepped its limited authority to review the commission’s maps. Justice R. Patrick DeWine joined Justice Kennedy’s opinion. Justice Fischer wrote the state constitution contains provisions for when the bipartisan commission reaches an impasse and cannot agree on a map. He also maintained that the Court has never had the constitutional authority to review the disputed commission plans.

Federal Court Rules After Fourth Plan Rejected
The Court’s majority opinion noted the redistricting commission has submitted four General Assembly district plans between September 2021 and March 2022. The Court has invalidated each of those plans because they did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio Constitution. Those provisions were included in a 2015 voter-approved state constitutional amendment and were aimed at reducing political gerrymandering so that the maps do not disproportionately favor a political party.

On April 14, 2022, the Court struck down the fourth set of district maps submitted by the commission and ordered a new plan to be adopted by May 6. As the Supreme Court was considering objections to the commission’s fourth plan, a federal district court in Columbus heard a lawsuit from a group of Ohio voters who argued that the failure of the state to adopt new General Assembly districts infringed on their right to vote.

On April 20, the federal court in its Gonidakis v. LaRose decision stated that if the state did not adopt a new plan that satisfied federal law by May 28, it would order the primary election for state House and Senate seats to be moved to Aug. 2. It would also order the state to use Map 3 for the 2022 election cycle. Map 3 is the third district plan the commission submitted to the Supreme Court, which was found unconstitutional on March 16.

Commission Resubmitted Rejected Map
On May 5, the commission readopted Map 3, purportedly for use only in the 2022 election. Opponents filed objections with the Supreme Court to the commission’s readoption and resubmission of Map 3. Commission members who voted to readopt Map 3 responded that it is the only viable option to use for the 2022 elections.

“The fact remains that Map 3 still violates Article XI, Sections 6(A) and 6(B) of the Ohio Constitution,” the Court stated in today’s decision.

The Court ordered the commission to adopt maps that meet the constitution’s requirements. The commission’s ability to comply with the Court’s directive to produce a new plan was not impeded by the current election deadlines, the “inability or unwillingness” of the General Assembly to change the election deadlines, or whether Map 3 was the only viable option for use in the 2022 elections, the Court stated.

Duty of Adopting Maps Distinct From Election Planning
The Court stated the commission’s duty to adopt a constitutional district plan is “distinct from considerations” regarding the feasibility of implementing that plan for the 2022 elections. The Court also stated that the commission lacked authority to adopt a map that would apply only to the 2022 election cycle. Under the constitution, the commission may adopt a map that will remain in effect for four years or 10 years, depending on whether there is bipartisan support for the map.

The plan adopted by the commission on May 5 “is invalid in its entirety, including for the reason that the commission purported to limit its effectiveness for only the 2022 election,” the Court stated.

Commission, Legislature Should Resolve Issues, Concurrence Asserts
“This court has been placed in a remarkable position,” Chief Justice O’Connor wrote. By resubmitting an unconstitutional map, the commission “engaged in a stunning rebuke of the rule of law,” she stated.

Chief Justice O’Connor noted in her concurrence that the two Democratic commission members requested that the commission convene to craft constitutionally compliant maps two days after the Court ordered the creation and adoption of new maps in April. But House Speaker Robert Cupp, commission co-chair at the time, indicated the commission would not meet until after the federal court decision in Gonidakis and then until after the May 3 primary election. The commission did not meet until May 4, 20 days after the Supreme Court’s opinion, and two days before the deadline to file a new plan.

“The Ohio Supreme Court and the Ohio Constitution should not be held hostage by a redistricting commission acting according to partisan directives and a legislature that has created a crisis due to its own inaction,” she wrote. “The remedy, then, should not be the approval of an unconstitutional map that rewards those who created the crisis to begin with. The remedy, instead, must be to craft a resolution of the manufactured crisis by those with the authority to do so — the commission and the legislature.”

Court Without Authority to Reject Map, Dissent Maintained
Citing her prior dissents, Justice Kennedy maintained that the majority continues to ignore the limitations on the Court’s power to overturn the work of the commission. She wrote 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. Justice Kennedy wrote that nothing in the constitution gives the Court authority to review the map solely based on a violation of Section 6.

“Today, the majority again declares that map unconstitutional, following its readoption. But the majority was wrong in League III, and it is wrong again today,” she wrote.

Justice Kennedy wrote that voters supporting the 2015 constitutional amendment anticipated potential partisanship by the commission, which is why the constitution has an impasse procedure if the members of the commission reach a stalemate: the result is a map that stays in place for only four years rather than ten. She wrote that since the people of Ohio did not anticipate the role a majority of the Court has assigned itself in redistricting, “there is no procedure [in the redistricting amendment] for when an errant court reaches an impasse with the commission.” 

She added, “The people of Ohio need look no further than this court for the sole cause of the debacle of the missing primary.”

No Authority for Court to Review Four-Year Map, Dissent Maintains
In a separate dissent, Justice Fischer reiterated his position that under the procedures in Article XI, Section 8(C)(1)(a) of the constitution, the Supreme Court has no authority to review a four-year commission map. Map 3, as well as the other three plans adopted by the commission, received only enough commission votes to be in effect for four years, Justice Fischer stated.

He wrote the majority has created a “redistricting mess, and Ohioans will in all likelihood be voting for state representatives in a special election imposed on this state by a panel of federal judges.”

2021-1193, 2021-1198, and 2021-1210. League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-1727.

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