The Supreme Court of Ohio today invalidated the Ohio General Assembly bill that reapportioned Ohio’s 15 U.S. House districts, because the resulting congressional-district map 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 timeline required by Article XIX, Section 3(B)(1).

In a 4-3 decision, the Court majority ruled that the legislature violated two provisions of Article XIX of the Ohio Constitution when it passed Senate Bill 258 in November 2021 by adopting a congressional-district plan that “unduly favors” the Republican Party and “unduly splits” governmental units into different congressional districts that would favor the Republican Party.

The Court stated the congressional-district map approved by state lawmakers without bipartisan support and signed into law by Gov. Mike DeWine was drawn strategically to ensure a reliable Republican partisan advantage that was not warranted by the neutral redistricting criteria added to the state constitution by voters in 2018.

Writing for the Court majority, Justice Michael P. Donnelly stated, “[T]he evidence in these cases makes clear beyond all doubt that the General Assembly did not heed the clarion call sent by Ohio voters to stop political gerrymandering.”

Court Considered Multiple Map Challenges
Today’s decision addresses two lawsuits challenging the drawing of the congressional map. One challenge was led by a group of 12 voters, including Maple Heights resident Regina Adams, for whom the case is named. The other lawsuit was filed by the League of Women Voters of Ohio, the A. Philip Randolph Institute of Ohio, and eight individual voters. The drawing of congressional maps is governed by Article XIX of the constitution, which was amended by voters in 2018.

On Jan. 12, the Supreme Court released a decision invalidating the district maps for the Ohio House of Representatives and Ohio Senate. The drawing of those maps is governed by a separate section of the constitution, Article XI, which was amended by voters in 2015. The Court ordered the General Assembly maps to be re-drawn.

Congressional Map Improperly Gerrymandered, Majority Found
“Gerrymandering” is the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength. This was the first occasion in which the Court considered the anti-gerrymandering provisions in Article XIX that were passed to combat what the Court described as “the antithetical perversion of representative democracy” in which politicians get to pick their voters rather than the other way around. Article XIX Section 1(C)(3) requires three things of a congressional-district plan passed by a simple majority of the General Assembly. The General Assembly “shall not pass a plan that unduly favors or disfavors a political party or its incumbents;” “shall not unduly split governmental units;” and “shall attempt to draw districts that are compact.”

The Court majority ruled the evidence established that the map “unduly favors the Republican Party and disfavors the Democratic Party in violation of Article XIX, Section 1(C)(3)(a),” and that the plan unduly splits Ohio’s three largest metropolitan areas –Hamilton, Cuyahoga, and Summit counties—to create districts that combined urban and rural voters to give Republican candidates a political advantage in all but two of the 15 congressional districts.

The majority concluded that the General Assembly’s plan was “infused with undue partisan bias” that was “incomprehensibly more extremely biased than the 2011 plan that it replaced.”

Chief Justice Maureen O’Connor and Justices Melody J. Stewart and Jennifer Brunner joined Justice Donnelly’s opinion.

The chief justice also wrote a concurring opinion, joined by Justice Brunner, in which she explained her opposition to the dissenting justices’ dismissal of the petitioners’ evidence as simply being measures of “proportional representation.” She stated, “No magician’s trick can hide what the evidence overwhelmingly demonstrates: the map statistically presents such a partisan advantage that it unduly favors the Republican Party.” She also stated the respondents’ reliance on a “competitiveness” standard, which no one debates was not provided for in the Ohio Constitution, ignored the significant partisan advantage across the state presented by the General Assembly’s plan.

“For these reasons, I am not persuaded that the dissenting opinion offers a framework supported by the language of Article XIX of the Ohio Constitution or reflective of the evidence presented,” she wrote.

Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine dissented with a jointly written opinion.

Dissent Found Plan Met Constitutional Requirements
The dissent maintained that the majority opinion was flawed because it was based on the majority’s policy preferences, not the constitutional amendment enacted by Ohio voters.

The dissent noted that the Constitution does not define “unduly,” nor does it provide any baseline as to what “unduly favors” is to be measured against. The majority, though, invented a baseline of its own, the dissent maintained.

“When the majority says that the plan unduly favors the Republican Party,” explained the dissent, “what it means is that the plan unduly favors the Republican Party as compared to the results that would be obtained if we followed a system of proportional representation.”

Proportional representation is a system popular in many European countries where seats in the legislature are apportioned based on the percentage of popular vote received by each party. The problem, explained the dissent, is that the United States has never adopted proportional representation and nothing in the Ohio Constitution mandates that as a standard.

Instead of seeking to achieve proportional representation, the legislature determined that it should create as many competitive districts as possible, the dissent explained. Based on Ohio’s demographics and the constitution’s neutral redistricting criteria, everyone agreed that six mostly rural districts necessarily would have a decidedly Republican advantage and two urban districts would have a decidedly Democratic advantage. For the remaining seven districts, lawmakers chose to create competitive districts that did not clearly favor one party or another. These seven districts, the dissent explained, are “up for the taking.”

The legislature defined competitive districts as ones where an average of federal election data showed a margin of +/- 4%. The dissent explained that no one had demonstrated that there was anything improper about the legislature’s determination of competitiveness.

The dissent also pointed out that the various “fairness” metrics advanced by expert reports and relied on by the majority were simply measures of proportional representation. The dissent explained that expert reports were of little relevance because they evaluated simulated plans without equally populated districts and used different election-data indices. The dissent likened the majority’s comparisons between the expert reports and the enacted plan to “comparing watermelons to walnuts.”

Because seven districts are competitive, the plan did not violate the Constitution’s prohibition of “undue favoritism,” in the dissent’s view. The dissent noted that by definition competitive districts do not favor one party or the other. And competitive districts accomplish valid goals, including ensuring that voters have meaningful choices, and incentivizing candidates to appeal to voters of both parties.

The dissent also disagreed with the majority’s conclusion that the legislature unduly divided political subdivisions. It explained that the enacted plan had 14 total county divisions. It was not mathematically possible to draw a district map with less county divisions while maintaining equally populated districts. So, the majority was simply saying that it did not like the divisions that the legislature made, and instead it must divide different counties, the dissent concluded.

2021-1428 and 2021-1449. Adams v. DeWine, Slip Opinion No. 2022-Ohio-89.

View oral argument video of this case.

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