Redistricting: One year later, Ohio a unique, flawed case

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Posted at 9:04 AM, Sep 02, 2022
and last updated 2022-09-02 09:04:42-04

The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.comunder a content-sharing agreement.

One year after the saga of redistricting began, Ohio is seen as a unique case study in the legal strategies and flaws that can emerge in the process.

Ohio’s journey to develop maps for the legislative and congressional voting districts began with the convening of the Ohio Redistricting Commission by Gov. Mike DeWine, himself a member.

The commission embarked on a statewide town hall style tour, where members of the commission heard what voters and interested parties wanted to see, and didn’t want to see, in drawing maps that mirrored election trends for the last ten years.

A series of meetings were held, where the elected officials who made up every member of the commission interpreted and re-interpreted a constitutional amendment more than 70% of voters had approved to reform the redistricting methods in the state.

One year, five legislative map proposals, and two congressional redraws later, the state will hold a general election in November with maps that have been ruled unconstitutional by the Ohio Supreme Court.

“There is nothing like redistricting,” said Brian Glassman, professor emeritus of election law at the Cleveland State’s Cleveland-Marshall College of Law. “It is the most raw display of political power.”

The hang up, according to those who study redistricting, falls at the end of the process. What happens when a commission can’t agree to even a four-year compromise that stands up to the rules set forth in the Ohio Constitution?

“A lot of us who worked really hard to create redistricting reform…we were really hopeful in 2018 that the compromise proposal that was put forward by legislators was one that could have worked for Ohioans,” said Kathay Feng, director of redistricting and representation at Common Cause of Ohio.

In other states, like Virginia, redistricting rules allowed a court to provide a resolution to the problem of district-drawing gridlock. Virginia’s supreme court brought in a “special master,” a map-drawing expert ordered to create the maps after the half-politician, half-civilian commission couldn’t come up with a plan.

In Maryland, a state controlled by Democrats, the state supreme court rejected a map, but the legislature was able to return a map that was accepted as constitutional.

In North Carolina, Republicans in control of the state have asked the U.S. Supreme Court to review the redistricting process, saying state courts were wrong to reject a legislature-drawn congressional map (deemed overly-partisan to benefit the GOP) and implement a map drawn by the court.

Like Ohio, the map put in place in North Carolina is only effective for the 2022 election, and a new plan will be needed for the 2024 races.

“The principle that emerges from all those experiments is finding what the mechanism is for the final authority (to draw maps),” said Sam Wang, professor and director of the Princeton Gerrymandering Project, which analyzes redistricting state-by-state.

The power to gerrymander

One thing Ohio and North Carolina have in common is the attorney who fought for maps in both states. Phillip Strach, a North Carolina attorney from the firm of Nelson Mullins, represented the legislative defendants in his home state, making arguments that computer programs could easily be manipulated, likening those creating simulations of redistricting maps to the Wizard of Oz and calling the use ofrace demographics in redistricting a “red herring.”

The use of race demographics was a point of contention in Ohio’s redistricting battle as well, with GOP staffers who drew the majority of the legislative maps that were considered by the commission saying they were told specifically not to include race data.

Legislative leaders like Senate President Matt Huffman argued that federal law prohibited map-drawers from using the data unless a complaint was explicitly made about racial discrimination in district maps.

A lawsuit filed in federal court by two Youngstown residents called into question that decision, but no ruling has been made in the case.

Strach turned up to defend Ohio’s congressional maps before the Ohio Supreme Court, making similar arguments, including calling simulations in the Ohio maps “deeply flawed.”

“At the end of the day, the computers draw what a human being tells it to draw, and so if you don’t tell the computer to use criteria that match what the General Assembly actually used, then what it will spit out is really just garbage,” Strach told the state supreme court in December 2021. “It really is meaningless for any legal analysis.”

He also said the case could be taken to the federal system, all the way up to the U.S. Supreme Court, if needed. The process “could go on for quite a bit,” he told the state supreme court justices.

In fact, House Speaker Bob Cupp said that is still under consideration for the rejected congressional maps, after arguing that the deadline to redraw those maps did not start until all appeals had been exhausted.

“There is definitely a thread that runs through Ohio and North Carolina where the majority party decided they should have unbridled power to gerrymander,” Feng told the OCJ.

But Feng says Ohio’s situation is unique in that “the majority party decided to pursue an extreme gerrymander,” but even after the state supreme court determined the lines to be unconstitutionally partisan, they also decided they couldn’t intercede.

“The temptation of total control existed, particularly for legislative leaders, and it was that temptation that ended up taking over,” Feng said.

The way that redistricting ended up working in Ohio comes down to a legal phenomenon referred to as “constitutional hardball,” according to Wang. This, simply, requires redistricting leaders to follow the letter of the law, but “do whatever it takes to gain an advantage.”

“Ohio is a Republican-leaning state, but it is closely-enough divided that you could imagine there’s a lot at stake in terms of who controls the legislature,” Wang said.

Arguments to this effect were made during legislative redistricting, when the GOP-led commissionapproved maps that had the court-required 54% GOP to 46% Democrat proportions on paper, but had districts with razor-thin margins that made them more toss-ups than “Dem-leaning.” Under the maps, no Republican districts are considered competitive.

Even though those maps, and all the others, were rejected by the Ohio Supreme Court, commission members and legislative leaders seem undaunted by the uncertainty, partly because of a new argument that has come up nationwide.

The “independent state legislature theory” has come into the redistricting process, with leaders arguing district-drawing as part of the elections process, and therefore under the purview of the state legislatures, and the state legislatures alone.

The use of this theory in legal cases – like the U.S. Supreme Court’s consideration of Moore v. Harper in deciding whether state legislature have control over redistricting – could warrant concerns about the steadfastness of the concept of coequal branches of government.

“All the way back to the country’s founding it’s been understood that legislatures have to be bound by the courts,” Wang said. “(The theory) would remove the one remaining constraint on legislatures from running away with power.”

But the idea that majority parties like the GOP in Ohio may just be using the legal process to force a map into play, as happened when a federal three-judge panel put a February legislative map in for the 2022 general election, is also not out of the realm of possibility.

“Running out the clock is an effective strategy in sports and in politics,” Glassman said. “And the (redistricting) results indicate that those who wanted change did not get the kind of maps they thought they were going to get.”

New reforms ahead

With anti-gerrymandering groups and voters rights groups disappointed with the results as they stand in Ohio redistricting, talk of revising the constitutional amendment put in place in 2018 has come up.

With eyes on creating a final arbiter of redistricting plans, Feng said reforms have a good chance at support, and it’s something Common Cause and others are pushing hard for.

But finding that sweet spot where voter-desired results occur doesn’t happen without trial and error.

“Ohio is in a lynchpin situation in politics, which makes it hard to achieve total reform all at once,” Feng said.

California, Feng said, went to the ballot six times before the reform was where the state wanted it. Virginia and Florida have both gone back to the ballot box as well to adjust their reforms.

Glassman is among many who argue that the Ohio Redistricting Commission was flawed in its use of purely elected officials, including a majority of Republicans.

The commission includes Gov. Mike DeWine, state Auditor Keith Faber, Secretary of State Frank LaRose, along with state Sen. Rob McColley and state Rep. Jeff LaRe. LaRe and McColley replaced Senate President Matt Huffman and House Speaker Bob Cupp after the two legislative leaders said other priorities required their attention.

“On some level, we shouldn’t be surprised at the result, given that our commission was comprised of elected officials,” Glassman said.

The increased interest in the redistricting process brings hope to those looking to future reforms in the 2024 election season.

“Until you’ve experienced that pang, you don’t know what medicine you want prescribed,” Feng said. “People are much more clear-headed about what they’re looking for.”

That could include a push for an independent commission, and a more fervent system of checks and balances, Feng said.