The Ohio Supreme Court’s March 16 rejection of a third set of maps meant that a fourth try would not be ready in time for the scheduled May 3 partisan primary. The court has repeatedly ruled 4-3 against the proposed maps, with Republican Chief Justice Maureen O’Connor joining the court’s three Democrats in saying constitutional maps should be proportional — reflecting the 54% Republican-46% Democratic partisan breakdown of recent statewide elections.
The level of proportionality justices deem acceptable could result in “very big differences” for how many districts are actually competitive, said Nancy Miller, associate professor of political science at the University of Dayton.
“But, at the end of the day, the Republican Party will still control the Ohio General Assembly — it is just whether or not they get a very comfortable majority or a veto-proof supermajority,” she said.
The seven-member Ohio Redistricting Commission first passed new Statehouse maps in September, approving them on a 5-2, party-line vote. Progressive and voting-rights groups sued, and the state Supreme Court has now thrown out three sets of maps as unfairly favoring Republicans. Justices ordered the commission to draw a fourth set of maps by March 28, this time ordering use of independent map-drawing experts.
Commissioners did so, also accepting the services of federal court mediators, and for the first time made the process public by streaming it on the Ohio Channel — but in the end voted 4-3 to endorse a slight revision of its previously rejected maps instead of the work of the hired experts.
One Republican commission member Keith Faber, the state auditor, joined Democrats for a second time in opposing the Republican-drawn plan.
Challengers to the first three sets of maps have filed similar objections to the fourth set. As part of that filing, plaintiffs ask the court to reinstate a contempt hearing for commission members, on grounds that commissioners flouted the justices’ March 16 order to use an independent mapmaker.
The court has given the commission until Monday to explain why it shouldn’t be held in contempt.
How did we get here?
Ohio is required to redraw its state legislative and U.S. House district maps at least every 10 years, in line with results from the most recent U.S. Census.
A century ago some state legislatures didn’t update district maps following the decennial census, Hannah said. That helped rural areas hang on to power at the expense of growing cities, he said.
But in the 1960s the U.S. Supreme Court required states to reapportion their legislatures every 10 years, in line with the nationwide census, creating districts roughly equal in population, Hannah said.
In 2015 Ohio voters overwhelmingly approved a state constitutional amendment creating a bipartisan commission to draw new state legislative maps, in an effort to reduce partisan gerrymandering. In 2018 voters approved another state constitutional amendment on how to draw new district maps for Ohio’s seats in the U.S. House of Representatives.
Detailed population data from the 2020 census did not arrive until mid-August 2021, due to the effects of COVID-19 and a delay approved under the Trump administration.
The redistricting commission held a series of public meetings in the run-up to its Sept. 15 deadline for state legislative maps, but at no point have Republican map-drawers given any indication they took the extensive public comment and map proposals into consideration.
Instead, the commission — which is dominated 5-2 by Republicans — has four times passed state legislative maps drawn by Republican staff and consultants, without the vote of either Democratic commission member.
This probably isn’t what Ohioans expected when 70% of voters supported the constitutional amendments, Miller said. The months of wrangling are a sign that the redistricting process needs further overhaul, she said.
“The process approved by voters may have been a bipartisan process, but it still is a political process in which partisan elected officials are making the decisions,” Miller said.
Primary problems
The map holdup led to increasing controversy over how to handle the partisan primary election scheduled for May 3. Early voting, along with sending ballots to overseas and military voters, is set to begin Tuesday, April 5.
On March 23, Secretary of State Frank LaRose — who is also a redistricting commission member — sent a directive to the boards of election in all 88 Ohio counties, telling them to leave state House and Senate races off the May 3 ballot. He told a federal court his preference would be for a single primary on May 24 using the third set of maps, which has already been declared unconstitutional. And LaRose told legislators last week that unless they move the primary it will be split, citing the federal court’s refusal to intervene until at least April 20.
The Ohio Association of Election Officials has consistently maintained that if any races are delayed, the whole primary should be moved back instead of voting on some races May 3 and other races later.
Democrats introduced several proposals to move the whole primary to June or later, but Republicans have consistently rejected them. The last date the state could hold legislative primaries is Aug. 2.
Splitting the primary in two would probably confuse voters and result in exceptionally low turnout for the state legislative races, Miller said.
Some statewide candidates likely budgeted their campaigns to spend money by May 3, expecting party support to kick in for the general election, Hannah said. He’s “very curious” as to whether some of the U.S. Senate and Ohio gubernatorial campaigns can keep going if the whole primary is pushed back.
“For our state legislative candidates, they probably have a decent sense of the key parts of their district, but they cannot campaign as efficiently if they don’t know whether certain areas will ultimately end up in their district,” Hannah said. “More broadly, Democrats should be able to run on this issue in the general election and remind voters of the public funds that were wasted on this process.”
Congressional sideshow
The redistricting commission is also mired in dispute over a new U.S. House district map. Ohio must lose one of its 16 U.S. House seats in line with 2020 census results.
In November legislators passed a new U.S. House map, but voting-rights and progressive groups sued. The Ohio Supreme Court threw out that map Jan. 14 on the same grounds — unfairly favoring Republicans.
Justices told the General Assembly to try again. The General Assembly took no action, however, sending the job back to the redistricting commission.
The commission on March 2 approved another U.S. House map, again voting 5-2 without Democratic support. It would create 10 safe Republican districts and three safe Democratic ones, with two toss-ups narrowly favoring Democrats.
The Supreme Court case schedule indicates the court will not rule on the congressional map before late May. Unless a federal court intervenes, the congressional map adopted March 2 will likely be used for the 2022 election.
“Given that the revised congressional maps made only slight changes (from the overturned first version), the current Supreme Court is likely to rule those unconstitutional again — that map could be changed again for 2024,” Miller said.
But Chief Justice Maureen O’Connor’s retirement on Jan. 1, 2023, may shift the direction of that decision, Miller said.
The congressional map likely to be used this time favors Republican candidates more than the previous one, appearing to eliminate one Democratic seat, Miller said.
Endgame
A Republican group filed suit in the U.S. District Court for the Southern District of Ohio, demanding that judges order the state to use the General Assembly district maps the Ohio Supreme Court rejected Feb. 17. The federal court could order use of those maps, the previous decade’s maps, the most recently approved ones, reschedule the primary election, or take no action.
On March 30 a three-judge panel of the U.S. District Court refused to intervene, but reserved the right to do so if the state doesn’t settle on maps by April 20.
Political partisanship is more extreme now than anytime since the Civil War era, and the division between rural and urban voters has never been higher, Hannah said. That makes the stakes feel higher, he said.
“And while the ballot initiatives passed by voters should have made this a more bipartisan process, the GOP has developed a strategy to try to get the same partisan outcomes by running out the clock,” Hannah said.
But political preferences and geographic changes could change unpredictably over the next decade, meaning today’s political calculations wouldn’t always produce their expected result, he said.
“Because this has turned into a fiasco, I would not be surprised if we see efforts to adopt a nonpartisan redistricting commission,” Hannah said. “And given the makeup of our Statehouse, this will probably only be adopted through an initiative.”
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