The Supreme Court of Ohio today invalidated a second proposed map of Ohio’s 15 U.S. House districts because it violated the partisan gerrymandering prohibitions contained in the Ohio Constitution.

The Supreme Court ordered the General Assembly to pass a new map for Ohio’s congressional districts that complies with the Ohio Constitution within the 30-day timeline required by Article XIX, Section 3(B)(1). The map will be used for the 2024 congressional elections.

In a 4-3 decision, the Court majority ruled that the revised plan is similar to the one passed by the legislature in 2021 and ruled unconstitutional by the Court in January 2022. Today’s per curiam opinion stated the latest map, drafted by the Ohio Redistricting Commission, violated provisions of Article XIX of the Ohio Constitution because it “unduly favors” the Republican Party.

The Court stated that the opponents to the new map proved beyond a reasonable doubt that the district plan ensures a reliable Republican partisan advantage that was not warranted by the neutral redistricting criteria added to the state constitution by voters in 2018.

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

Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine dissented, stating that commission’s plan met the constitutional requirements by attempting to “maximize competitive districts” that did not favor one party over another.

In joining their colleagues, Justice Brunner wrote a separate concurring opinion, and Justice Fischer wrote a separate dissenting opinion.

Revised Maps Make Few Changes
In its January opinion, the Court ruled that the congressional district plan was flawed primarily because of the district boundaries drawn in Ohio’s three largest metropolitan areas and further ordered the General Assembly to adopt a new plan within 30 days, following state constitutional procedures. The General Assembly failed to pass a plan within that time, which then required the Redistricting Commission to adopt a plan. The commission voted 5-2 along partisan lines to adopt a new plan on March 2.

Individuals and organizations that challenged the original congressional map filed new lawsuits in March contesting the commission’s plan. With the May 3 primary election date pending, some members of the commission opposed expediting the lawsuits. The Court implemented an expedited schedule for the case, but one that allowed the original map to be used for the 2022 election cycle.

Republican leaders of the General Assembly, House Speaker Robert Cupp and Senate President Matt Huffman, directed the drafting of the original map. After March 2, the two stepped down from the commission and named their replacements — Sen. Rob McColley and Rep. Jeff LaRe.

In arguing the new map is constitutional, the four Republican lawmakers noted the Court struck down the original map because it violated Article XIX, Section 1(C)(3)(a) by unduly favoring the Republican Party and Section 1(C)(3)(b) by unduly splitting governmental units.

When proposing the March 2 plan, the GOP legislators on the commission argued those provisions of the constitution only apply to maps drawn by the General Assembly. The redistricting commission could draw new maps without having to comply with the anti-gerrymandering and anti-splitting provisions, they asserted. The Court wrote that by believing the provisions did not apply to the commission, the commission submitted a revised plan with few changes to the invalidated plan.

Commission Must Comply With Constitutional Requirements
In today’s opinion, the Court rejected the commission’s arguments, noting that no constitutional language suggests that the voters who approved the 2018 constitutional amendment intended the prohibitions against partisan gerrymandering “to be avoided so easily.”

The commission’s duty under Article XIX, Section 3(B)(2) is to adopt a plan to replace the original, invalidated plan, the Court stated. The constitution requires the commission to “remedy any legal defect in the previous plan” identified by the Court. The defect in the original plan was the partisan favoritism and the undue splitting of counties and cities around Cleveland, Cincinnati, and Columbus, the opinion noted.

The original plan violated Article XIX, Section 1(C)(3)(a) and Section 1(C)(3)(b), and “ the commission was required to fix those problems,” the opinion stated.

Evidence Indicates Maps Disfavor Democrats
Senate President Huffman was a member of the commission on March 2 when it adopted the plan. The opinion stated Huffman was the main proponent of the argument that the commission did not have to follow the anti-gerrymandering and anti-splitting standards. The Court found that he and the map drafters, who were legislative staff members, were not operating with a goal of proposing a plan that did not unduly favor Republicans.

The Court cited the studies of several election experts hired by the map challengers who found that the new plan is “only slightly less favorable to the Republican Party” than the original plan. The new plan contains five Democratic-leaning districts and 10 Republican-leaning districts. Of the five Democratic districts, three have such close margins of Democratic and Republican voters that they are better described as “toss-up” districts, the Court noted.

The Court cited one of the challenger’s experts who found that, based on the prior elections of the last decade, a map that did not unduly favor the majority party would have a minimum of six Democratic-leaning districts and nine Republican-leaning districts. The Court found that the new map “packed” Democrats into three congressional districts that heavily favor a Democratic candidate. By doing so, the map dilutes the strength of Democratic voters outside of those districts, leading to 12 districts that heavily favor Republicans.

“As a result, districts that would otherwise be strongly Democratic-leaning are now competitive or Republican-leaning districts,” the opinion stated.

Competitive Districts Meet Constitutional Requirements, Dissent Maintained
In a joint dissenting opinion, Justices Kennedy and DeWine asserted that the majority used a faulty analysis in holding that the map was unconstitutional. They noted that the constitution does not define what “unduly favors” means and that the majority has exceeded its authority in focusing on one criteria: proportional representation.

The dissent pointed out that voters had amended the state constitution to require map drawers to attempt to allocate Ohio House and Senate districts by the proportion of votes that each major party won in previous elections. But in contrast to this aspirational goal of proportional representation in the allocation of Statehouse districts, the dissent explained, Article XIX does not require map drawers to even attempt to divide congressional districts proportionately — “[T]here is nothing in Article XIX that establishes proportionality as an aspirational goal, much less a requirement.”

Instead, Article XIX prohibits the adoption of congressional districts that unduly favor a political party. However, the dissenting justices explained, the political geography of Ohio and the neutral map-drawing rules of Article XIX limit the ways that congressional districts can be divided between Democrats and Republicans.

The dissent noted that the constitution has assigned the duty to create the redistricting plan to the General Assembly and the redistricting commission, and “[t]here is nothing in the Constitution that precludes map makers from seeking to maximize competitive districts, and such a goal does not cause undue favoritism.”  In fact, the dissent explained, dividing districts through competitive elections is considered “a laudatory objective.”

“[T]he outcome of these cases today demonstrates that the majority has once again assumed an oversized role in the process of drawing a congressional-district map by perpetuating its own standard of what constitutes ‘unduly favoring’ a political party,” the dissent wrote. But “[t]his court is not an equal partner with the General Assembly and the commission when it comes to redistricting,” and “[i]t is not for us to decide how we would draw a congressional-district map,” the dissent stated. 

“The March 2 plan meets the standard that we found to be acceptable in Adams,” the dissent concluded, and “we dissent because the majority continues to require proportional representation, which does not exist as a requirement anywhere in Article XIX.”

Concurrence Disagreed With Competitive Measures
Justice Brunner noted that the evidence Justices Kennedy’s and DeWine’s joint dissent relied on, that the goal of the challenged map was to maximize competitive districts, was the redistricting commission staff member’s statement that he thought that Sen. Huffman had “publicly stated” it. Justice Brunner noted the plan was created “entirely in private” and reiterated from earlier majority findings that the evidence relied on was no more than a “post hoc realization.” She noted that a review of the first challenge, and continuing into the current challenge, revealed no evidence that the map makers were instructed to create competitive districts.

As a result, Justice Brunner disagreed with the dissent’s position that the commission-approved new plan is based on a goal to create more competitive districts.

“No underlying evidence supports the premise that the respondents had designed the first plan to maximize competitive districts,” she wrote.

With minimal changes to the second plan, there is also no evidence that the plan was designed to be competitive, she concluded.

Challengers Did Not Prove Favoritism, Dissent Concluded
In his separate dissent, Justice Fischer wrote the challengers were required to prove, beyond a reasonable doubt, that the new map favors the Republican Party. He wrote that commission members have pointed out numerous flaws in the reports by the challengers’ experts that the majority cited in the opinion. He noted that the short timeframe for the case gave the parties little time to fully analyze the findings by the expert, and he said they failed to provide the evidence of favoritism.

Justice Fischer also noted that under the constitution, the Supreme Court acts as the “trial court” in these disputes. Had the Court not adopted an “unnecessarily compressed schedule,” it could have conducted hearings on the challenges and heard testimony from witnesses and the cross-examination of witnesses.

“There is an old saying: ‘bad facts make bad law.’ That saying might be slightly altered here: ‘bad understanding of a case makes a bad decision,’” he wrote.

2022-0298 and 2022-0303. Nieman v. LaRose, Slip Opinion No. 2022-Ohio-2471.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.