Fighting Partisan Gerrymandering in Ohio

The new maps violate Article XI of the Ohio Constitution.

Each case challenges Ohio’s new state House and Senate maps, enacted in September, for being partisan gerrymanders that favor Republicans in violation of the Ohio Constitution. As we outlined in our redistricting rundown on the Buckeye State, in 2015 Ohio voters overwhelmingly approved an amendment to the state constitution, Article XI. The amendment was designed to completely overhaul the process and criteria for redrawing state legislative districts in order to end the state’s pattern of extreme partisan gerrymandering (they passed a similar amendment for congressional redistricting in 2018). 

Instead of following Article XI, the suits allege that the Republican-dominated commission passed a legislative redistricting plan over the objections of the commission’s two Democrats. The redistricting plan, they argue, is basically guaranteed to solidify Republican majorities in both chambers of the General Assembly, no matter how many Democratic votes are cast. The lawsuits argue that these maps do not meet the criteria laid out in Article XI and therefore the Supreme Court of Ohio should strike them down.

This partisan gerrymandering does not reflect the statewide preferences of Ohio voters and deliberately favors Republicans, according to the suits. Additionally, the process and outcome blatantly ignored the will of the Ohio voters who overwhelmingly passed Article XI specifically to block such politically driven maps.

Leading up to the oral argument, each side submitted briefs on the merits of the case in which they argue in support of their position and address the other side’s arguments. Note: This court uses the term “relator” for “plaintiff” and “respondent” for “defendant,” but in this Case Watch we will use “plaintiff” and “defendant” for the sake of simplicity.

All of the plaintiffs argue that the new General Assembly maps violate Section 6 of Article XI, which requires that maps are not drawn to favor one political party and that the statewide proportion of districts closely corresponds to the statewide preferences of Ohio voters over the last decade. The OOC plaintiffs also allege that the legislative maps violate provisions of the Ohio Constitution guaranteeing equal protection, freedom of association and freedom of speech.

Their reasoning: 

The new maps are projected to maintain Republican supermajorities in the General Assembly — with upwards of 63% of House seats and 70% of Senate seats favoring Republicans, despite the fact that the average vote share for Republican statewide candidates in Ohio is approximately 54%.To support their argument that the maps were drawn primarily to favor Republicans and disadvantage Democrats, the plaintiffs also point to the fact that Democratic members of the commission, along with the public, were largely excluded from the map-drawing process. Furthermore, the Republican-hired map drawers admitted to using partisan data in order to create new districts which, according to the plaintiffs, resulted in a plan that “grossly favored their own political party.” The plaintiffs highlight the fact that this clearly partisan process and outcome drew skepticism from the three Republican statewide elected officials on the commission, despite their votes to approve the maps.Each suit also attacks the GOP’s statement attempting to justify how the plan complies with the Ohio Constitution’s requirement that the plan not favor any political party. This statement asserts that, even though the average vote share for Republican statewide candidates in Ohio is approximately 54%, Republicans should receive a proportion of legislative seats far in excess of this benchmark because Republicans have won 81% (13 of 16) of recent statewide elections. In response to the statement’s reasoning, the LWVO plaintiffs retort that “to suggest that the percentage of election victories sets an appropriate ceiling for the number of seats for a party in the General Assembly—which would merely replicate gerrymandering in past election cycles—demonstrates the Commission’s complete disregard for the requirements of Article XI.”The OOC plaintiffs argue in support of their separate claim against the maps that “Ohio’s Bill of Rights protects Ohioans’ rights to vote on equal terms and to associate together to advance their political objectives, and these rights are violated by the partisan gerrymandering evidenced in the enacted plan.”

The Republican members of the commission oppose the challenges, asserting that Article XI does not allow legal challenges for “a stand-alone violation of Section 6” and therefore the court does not have jurisdiction to hear the cases or order the drawing of new maps. They also argue that Section 6 simply requires an “attempt” to draw proportional maps and the provision is only “aspirational,” not mandatory. 

Their reasoning:

The Republican defendants argue that, since the complaints do not assert that the commissioners violated any “neutral districting criteria” (such as contiguity, not splitting political subdivisions and so forth), the lawsuits should be dismissed because any challenge to the partisan make up of the maps “is not subject to judicial review standing alone.” The plaintiffs point out that this reading of the amendment, passed by a majority of Ohioans in 2015, renders it unenforceable and meaningless. On top of that, the plaintiffs argue that another provision of Article XI, Section 9, gives the Supreme Court of Ohio jurisdiction — meaning authority to hear the cases and make legal conclusions about them — to determine the validity of the redistricting maps.Additionally, the Republican defendants assert that Section 6 only requires an “attempt” to draw maps that reflect the will of Ohio voters — and the commission attempted to pass such a map. They go so far as to assert that the “people who ratified new Article XI knew that proportional representation cannot be a stand-alone goal, and that it clashes both with Ohio’s political geography and the competing value of competitive districts,” claiming that any maps that try to accurately portray the population of the state will result in a Democratic gerrymander of urban areas of Ohio.In response, the plaintiffs explain how the political geography of the state does not support how Republicans drew legislative districts and creating fair districts “requires equal treatment of Democrats and Republicans regardless of where they reside, to ensure they receive equal representation at the statewide level.” 

The two Democratic members of the commission, state Sen. Vernon Sykes and House Minority Leader Emilia Sykes, took a different position than their Republican counterparts. In their brief, they agree with the plaintiffs that the maps are partisan gerrymanders that favor Republicans in violation of Article XI, Section 6 and the court should block their use and order the creation of new proportional maps. 

Their reasoning:

The Democratic defendants oppose both the redistricting process, accusing the Republican members of drawing maps “behind closed doors,” and the maps it produced. They argue that “the evidence shows beyond a reasonable doubt that the Republican commissioners drew the map primarily to favor the Republican Party” to ensure they are “guaranteed veto-proof majorities in the General Assembly no matter how many votes Democrats earn.” They also point to the fact that their attempts to partake in the process were repeatedly rejected — all of the Democratic proposals, which more closely matched the 54-46 partisan breakdown of the state, were ignored. They also reiterate their opposition to the GOP’s statement defending its maps, writing that the Republicans “effectively eviscerated the protections”of Section 6 by claiming that their “calculation” of partisan fairness allowed them to gerrymander the state in their favor.

If the court finds that the legislative maps violate the Ohio Constitution, as the plaintiffs argue, it can block the use of the maps for future elections and order the commission to draw new maps that correct any violations it finds. The ultimate goal of these lawsuits is to ensure that Ohioans are represented adequately in their state Legislature — and that means fair maps are needed. 

Oral argument for all three cases was held before the Supreme Court of Ohio on Wednesday, Dec. 8. You can watch a recording of the oral argument here. The court will take arguments made in each side’s briefs and at the oral argument into account and decide whether the maps are in line with the Ohio Constitution.