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'Chaos': Here are several solutions to redistricting mess

Ohio Voting generic
Posted at 7:47 PM, Mar 17, 2022
and last updated 2022-03-17 21:26:43-04

COLUMBUS, Ohio — Ohio still doesn't have the legislative maps that are essential to run an election, with 47 days until the scheduled May 3 primary. There are no state or congressional districts, no ballots made and no clear direction of what to do.

So how do we have an election without maps?

THE ANSWER: We don’t.

Well, we may be able to. Here are the ways News 5 found to get us to primary day.

The Ohio Redistricting Commission (ORC) is made up of seven politicians: Gov. Mike DeWine, Sec. of State Frank LaRose, Auditor Keith Faber, Senate President Matt Huffman, Co-Chair and House Speaker Bob Cupp, Co-Chair and Sen. Vernon Sykes and Rep. Minority Leader C. Allison Russo. However, the Ohio Supreme Court cites Huffman and Cupp as the leaders.

A bipartisan majority on the Court has now rejected the district maps for the third time. The most recent versions of maps were rejected in a 4-3 decision Wednesday night.

“It's pretty clear that they, the legislative leadership, want to control as much of the redistricting process as it can and is prepared to give only as little as they think they can persuade a majority of the Supreme Court to accept,” Jonathan Entin, Case Western Reserve University law professor and expert in courts, constitutional law, said.

This game of back and forth between the ORC and the Court is having major consequences, he added. The Court struck down the Republican-passed legislative maps, citing constitutional violations of favoritism to one party, or gerrymandering.

“The majority of the court says that Senate President Huffman and Speaker Cupp have essentially hijacked the process and made the discussions something of a charade,” the professor said. “That's one problem, but the court also said even if the process had worked in a more effective way, even if the process had worked better, the actual map itself fails to comply with the partisan gerrymandering rules in the Ohio constitution.”

The Court said that the Republicans went too far to skew the maps in favor of their party, their 74-page document showed.

RELATED: What’s going on with Ohio election map redistricting, for those blessed to not be paying attention

“We clearly have a political system that is not working very well. And the question is at what point do people decide ‘enough, we've got to get on it,’” Entin said.

So what happens next? There are a number of options. Here is what could realistically happen for this election cycle.

Work together

The Commission could create fair, bipartisan maps. On Thursday, DeWine actually said this was the best option to move forward.

“Redistricting is inherently political and the stakes are enormously high,” he said. “It should not come as a big surprise that the people in the Legislature, for example, are going to try to maximize their advantage when they draw the district maps.”

Just because someone has the power to create a map only in their favor, doesn’t mean that they should.

Four-year maps

If we can’t get bipartisan buy-in on the maps, then instead of having the maps good for 10 years, the Commission could decide on maps that would be good for only four years. The problems with that are that we would go through this process again mid-decade. Also, things could get even more convoluted then.

“The Court gerrymandering rules that apply now may not apply to the mid-decade maps. I don't think that's the most sensible way to read the amendments, but the way they're written somebody could make a persuasive argument that the Redistricting Commission could do whatever it wants in a mid-decade.”

The congressional map is also an issue because there is a federal court case pending. Republican voters have filed in federal court to choose maps for Ohio. U.S. District Court Judge Algenon L. Marbley put a pause on that suit for the time being.

Feds get involved

“There is a real question about whether the federal court should even entertain that lawsuit.”

The U.S. Supreme Court refused to block GOP-backed maps that were adopted in Pennsylvania and North Carolina earlier in March. Last month, the Supreme Court overturned a lower court ruling about the Alabama congressional map on the basis that we are now in the election year, the process is underway and it is not appropriate for federal courts to jump in and change the lines in the election year.

Keep primary date and just work really quickly

... Yeah. Considering we already missed major 'Election Day checks' like creating ballots and testing machines, this would not be realistic.

Delay the primary date

Simple as that. Just push it back until we get this figured out. Sen. Cecil Thomas (D-Avondale) is urging legislators to do this. However, this doesn’t mean there are no cons.

“Depending on how adamant the legislative leadership is, they might try to come up with some other mechanism. It is possible that we could see some kind of parallel lawsuit about legislative districts.”

Split primary

Having a divided primary would raise a lot of questions and concerns, especially from LaRose, who previously told News 5 he would rather not have a split primary. It will cost taxpayers a significant amount of money. It could also cause voter confusion. If we were to split the primary to have congressional and statewide positions on May 3 and state districts later, people may be confused about who they are voting for and when. If one primary is in the spring and another is in the summer, there may be another problem, Entin said.

“Even if it is easier than it used to be to vote by mail, people have a lot of other things, a lot of distractions,” he said. “It is quite possible that if the primary is delayed in whole or in part, that will get a lower turnout for whatever part of the primary is going to take place later on. That's a trade-off.”

Court could threaten Commission to behave

This didn’t seem to work last time, and it probably won’t again – even if the politicians end up behind bars or fined. The only one that would suffer is LaRose since he is supposed to be running an election, Entin said.

“The goal here is to get a legally acceptable map, and the court may want to use the prospect of contempt as a way to encourage the commission to come up with an acceptable map. But I think at the end of the day, the court is likely to be reluctant to hold the commissioners in contempt, if only because the court is already badly split on the acceptability of the maps.”

Being held in contempt also doesn’t disqualify anyone from being in a race.

What can’t happen

The Court can’t legally make its own map.

“The Legislative Redistricting Commission's provisions in the Ohio Constitution say explicitly, no court can draw the map. That's another reason why the court needs to find a way to get the commission to draw an acceptable map, whatever that winds up looking like.”

Also, the 2012 map can’t be used for this election.

“It can't happen because the federal constitution requires that the legislative branch be equal in population. There's a little wiggle room, but basically, you've got to have equal population in each district. The distribution of people in Ohio has changed between the 2010 census, which was the basis for the 2012 map and today. So I don't think that that is a plausible option.”

And what is likely to happen: The Republicans can persist

The GOP members can continue to try to convince the Court to approve their maps, by exhausting them enough to have the justices push the map debacle off their plate. This has actually happened in Ohio in the mid-to-late 1990s. In DeRolph v. State of Ohio, the Supreme Court ruled that the state system for financing elementary and secondary schools was unconstitutional under the Ohio Constitution. The issue went back to the Legislature three more times. The court said three more times that the system is still unconstitutional. But after the fourth decision, the court said “we're finished,” Entin added.

“It's similar in that you've had the ball going back and forth, back and forth and eventually the Court said, ‘Okay, we're still not satisfied, but we got to get on with things now.’ It turns out that the court made that fourth ruling right before the composition of the court was about to change. The DeRolph decisions were all split decisions.”

Now, let's think about where we are with redistricting.

“We will have a new Chief Justice next year. Getting into all of the scenarios, how about what might play out? It is at least possible that we will have a four justice Republican majority, and it is likely that the fourth Republican justice will be more like the three who have been dissenting than like Chief Justice O'Connor. And if that's the case now, the map has to be finalized way before the new court takes office on January ‘23. At some point, you have the possibility that there might well be litigation down the road.”

So that brings us to our current standstill.

“We have this test of wills, and the question is ‘who will blink?’” Entin said.

The court has once again sent the maps back to the Commission. They have until March 28.

Solutions for the future

Ohio may need to look to our neighbors up North to actually pass legislative maps.

While Ohio has seven politicians on the Commission, Michigan has zero. The Michigan Independent Citizens Redistricting Commission is made up of 13 registered voters randomly selected through an application process. Of the 13 commissioners, four are Democratics, four are Republicans, and five do not affiliate with either major political party.

They passed their maps last year.

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.