On Wednesday Aug. 23, the Ohio Supreme Court issued an order that reopens legal proceedings over the state’s congressional map. This renewed litigation concerning the Buckeye State’s congressional districts comes in the wake of recent activity by the U.S. Supreme Court at the conclusion of its term in June. After declining to endorse the radical independent state legislature (ISL) theory in Moore v. Harper, the Court nevertheless granted a petition from Ohio Republicans invoking the unfounded theory in an appeal over the state’s congressional map.
However, instead of placing Ohio Republicans’ ISL-centered appeal on its full merits docket, the Court vacated the underlying pro-voter decision from the Ohio Supreme Court that struck down the state’s congressional map for partisan gerrymandering. Immediately thereafter, the Court sent the case back to the Ohio Supreme Court for further consideration in light of its decision in Moore.
As a result of the Supreme Court’s actions, Ohio’s congressional map is now before the Ohio Supreme Court’s newly constituted Republican-controlled majority, which, following the 2022 midterm elections, became even more ideologically conservative than before. Although the composition of the state Supreme Court’s majority has shifted further to the right, Ohio’s congressional map — which was previously deemed an unconstitutional partisan gerrymander — remains the same.
These recent legal developments raise the question: Will the Ohio Supreme Court reaffirm its prior decision striking down the map or will it decide the case anew, despite the fact that neither the map itself nor the Ohio Constitution’s anti-gerrymandering provision has changed?
Ohio’s congressional map has taken a circuitous route through the courts, beginning in the Ohio Supreme Court in 2021.
The fraught legal saga of Ohio’s congressional map began back in November 2021, when two lawsuits were filed challenging Ohio’s new congressional map drawn with 2020 census data. The lawsuits — both of which were brought in the Ohio Supreme Court — alleged that the map was an extreme partisan gerrymander that unduly favored Republicans in violation of the Ohio Constitution’s anti-gerrymandering provision.
The 2018 voter-approved constitutional provision upon which the lawsuits were predicated expressly prohibits Ohio’s General Assembly from passing a congressional map “that unduly favors or disfavors a political party or its incumbents.” While the amendment permits litigants to challenge the state’s congressional districts directly in the Ohio Supreme Court, it does not explicitly allow the court to draw and adopt its own map that complies with the state constitution. Rather, the drawing of any remedial maps is entrusted to the Legislature and the seven-member Ohio Redistricting Commission (ORC), which is composed primarily of Republican statewide elected officials and legislative leaders.
In the ensuing 4-3 decision, the Ohio Supreme Court sided with the plaintiffs and struck down the map, holding that it was “infused with undue partisan bias and that [it was] incomprehensibly more extremely biased than the 2011 plan that it replaced.” The majority did not mince words: “This is not what Ohio voters wanted or expected when they approved [the anti-gerrymandering amendment] as a means to end partisan gerrymandering in Ohio for good.”
However following this pro-voter ruling, the General Assembly failed to pass a new map, at which point the ORC took over the map-drawing process and enacted a revised map in March 2022. The commission’s revised map was only marginally different from the original map and once again appeared to flagrantly violate the state constitution.
While the original map struck down by the state Supreme Court was expected to give Republicans control of 12 out of 15 of the state’s congressional districts, the commission’s revised map was similarly skewed in favor of Republicans. Under the revised map, Republicans were presumed to win 11 out of 15 of seats, meaning that Democrats were expected to gain only one additional seat under the new plan.
Ohioans experienced a sense of déjà vu, as the commission’s revised congressional map — like the original map — ended up before the Ohio Supreme Court.
In response to the commission’s revised congressional map, pro-voting groups filed two new lawsuits in the Ohio Supreme Court, this time challenging the ORC’s latest iteration of the congressional map. The plaintiffs once again asserted that the map was a partisan gerrymander that contravened the state constitution. Although the state’s May 2022 primary election and subsequent November 2022 general election were held under the revised map, the Ohio Supreme Court ultimately struck down the map in July 2022 for being yet another partisan gerrymander.
In another 4-3 decision, the court held that the revised map — as with the original map — unfairly favors the Republican Party and runs afoul of the Ohio Constitution. In turn, the court ordered the General Assembly to enact a remedial congressional map for the 2024 elections. The court noted that if the General Assembly failed to enact a new map within 30 days of its order, the ORC would be tasked with doing so. As of the court’s July 2022 order, neither the General Assembly nor the ORC has fulfilled its duty; consequently, Ohio voters still do not have a constitutionally-compliant congressional map in place for 2024.
Following the Ohio Supreme Court’s decision, Ohio Republican legislators appealed to the U.S. Supreme Court, invoking the fringe ISL theory.
In October 2022, four Ohio Republican lawmakers — all of whom were named as defendants in the two lawsuits challenging the state’s revised congressional map — filed a petition for a writ of certiorari asking the U.S. Supreme Court to adopt the ISL theory and reverse the Ohio Supreme Court’s decision striking down the congressional map for partisan gerrymandering.
In raising the ISL theory, the Republican petitioners argued that the Elections Clause of the U.S. Constitution grants state legislatures the sole authority to regulate federal elections and enact congressional maps, free from state court judicial review and state constitutional constraints. In line with this interpretation of the Elections Clause — which is unmoored from history and legal precedent — the petitioners contended that “the Ohio Supreme Court violated the Elections Clause when it struck down the Ohio legislature’s congressional district map, dictated the map’s result, and imposed extra-constitutional requirements for drawing such maps.”
The U.S. Supreme Court ultimately rejected the Ohio Republican’s ISL-based appeal, but the fate of the state’s congressional map remains uncertain.
Although the U.S. Supreme Court ultimately rejected the ISL theory in Moore — and accordingly declined to hear Ohio Republicans’ appeal involving the fringe theory — the future of Ohio’s Congressional map still hangs in the balance. Ostensibly, the Ohio Supreme Court’s previous decision to strike down the revised congressional comports with the Court’s decision in Moore, which preserved the authority of state courts to review congressional maps and other laws regulating federal elections.
However, as a result of the Supreme Court’s order vacating the Ohio Supreme Court’s prior decision, litigation will now officially resume in the state Supreme Court and the fate of the congressional map ahead of the 2024 election remains unsettled. Following yesterday’s order, the parties in the redistricting lawsuits will have to submit briefs by Sept. 12 addressing how the Moore decision affects the case going forward and what further legal proceedings the Ohio Supreme Court should hold.
Following the 2022 midterm elections, the Ohio Supreme Court became markedly more conservative.
In the 2022 midterm elections, Republicans swept all three seats that were up for election on the Ohio Supreme Court, thereby allowing the GOP to maintain its 4-3 majority on the court. Shortly after the election however, the Republican majority on the bench became even more ideologically conservative with the retirement of the court’s former Republican chief justice, Maureen O’Connor, who twice voted with the Democratic justices to strike down the state’s congressional map for partisan gerrymandering.
Following O’Connor’s retirement and the elevation of one of the court’s other Republican members to fill her seat as chief justice, Gov. Mike DeWine (R) appointed Joseph Deters to fill the vacancy on the court in January 2023. Strikingly, Deters — who is a staunch conservative and former county prosecutor — is the “first Ohio Supreme Court justice in 30 years to join the court without prior experience as a judge,” according to reporting by the Cincinnati Enquirer.
Deters also has strong ties to members of the DeWine family: Aside from his connections to Gov. DeWine, Deters is closely acquainted with the governor’s son, Pat DeWine, who is a sitting Republican justice on the Ohio Supreme Court. Concerns regarding possible conflicts of interest between Deters and the DeWine family engendered backlash from Ohioans across the state ahead of Deters’ nomination to the state Supreme Court.
While the fate of Ohio’s 2024 congressional map rests in the hands of the state Supreme Court, Ohio voters are looking to enact reforms that will ensure fairer maps in the future.
Against the backdrop of congressional redistricting litigation resuming in the Ohio Supreme Court, pro-democracy groups have commenced an effort to place a new redistricting reform on the ballot in 2024. In hopes of rectifying the shortcomings of the 2018 amendment — which currently tasks partisan elected officials and lawmakers with congressional map-drawing — the pro-voting groups’ proposed amendment would create a 15-member, citizen-led redistricting commission. The commission would be composed of an equal number of registered Republicans, Democrats and Independents in order to insulate the redistricting process from those who stand to reap partisan gains.
The amendment, if cleared to be placed on the ballot and ultimately approved by Ohio voters, would not overhaul the state’s redistricting process until after 2024. Nevertheless, those championing the measure are optimistic that effectuating substantive changes to Ohio’s redistricting process would lead to fairer maps in the future.
In the meantime, as litigation over Ohio’s congressional map picks back up, the Ohio Supreme Court’s new Republican majority will be put to the test. Will it adhere to its own state constitution, which imposes an explicit, voter-approved ban on partisan gerrymandering, or will it subvert the will of Ohio voters in favor of achieving partisan ends?