When the U.S. Supreme Court largely rejected the once-fringe independent state legislature (ISL) theory in its Moore v. Harper opinion at the end of its last term, most folks particularly in the democracy space let out a sigh of relief. But that relief was short-lived for those of us in the fair maps fight in Ohio because, despite that ruling, the Court essentially gave a green light to our egregiously rigged congressional map.
The Moore opinion should have been an easy 9-0 decision. The idea that legislatures have full rein to regulate federal elections with no checks from any other branch of government is, frankly, absurd. But thankfully six justices agreed to uphold the central tenet of federalism: state courts do, in fact, serve as the final arbiter of how to interpret state law and their state constitutions.
Here in Ohio, we saw our own state Supreme Court flex that final arbiter muscle during multiple rounds of redistricting litigation wherein a 4-3 majority struck down our legislative and congressional maps a total of seven times. They did so using authority explicitly granted to them by reform language that is now enshrined into our state constitution that Ohio Republicans helped write back in 2015 and 2018 and then brazenly ignored when it came time to draw new maps.
Apparently not happy enough with forcing Ohioans to vote under illegally gerrymandered maps for the 2022 cycle, Republicans appealed the Ohio Supreme Court opinion upholding our congressional map up to the U.S. Supreme Court, hitching their wagon to the ISL theory. So, when the Court kicked the ISL theory to the curb in its Moore opinion, I presumed they would’ve then, in turn, rejected Ohio Republicans’ appeal and sent the case back down for another round of redraws. But in one of their final orders of the term, the U.S. Supreme Court curiously agreed to hear Ohio Republicans’ appeal instead and then immediately vacated (or made void) the state Supreme Court’s latest decision striking down the map. Along with that, the U.S. Supreme Court ordered the state Supreme Court to reconsider the case with the Moore opinion in mind.
If I’m being honest, I don’t actually understand why the U.S. Supreme Court vacated the state Supreme Court’s strike down of our map. After all, Chief Justice John Roberts wrote plainly for the majority that, “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” In other words, state courts are absolutely allowed to tell legislators, “Yeah, no, you actually can’t illegally rig maps to suit your partisan favor when our state constitution plainly prohibits that.”
No matter, the case is now back before the state Supreme Court and the question the justices should be answering is whether they overstepped their judicial authority when they struck down our redrawn congressional map last year. Put another way, is the state court allowed to enforce Ohio’s constitutional bans on partisan gerrymandering when reviewing congressional maps? The answer to that, if the state Supreme Court were to follow the precedent set in Moore, is clearly yes.
But what question the Ohio Supreme Court should answer and what question they will answer are unfortunately two different things. In the time between the court’s original strike downs last year and now, the composition of the state’s highest court has become much more ideologically conservative. Republican former Chief Justice Maureen O’Connor — who cast the deciding votes in each of the prior decisions — retired due to age limits and was replaced with a much more conservative justice, Sharon Kennedy. To fill the gap on the bench left by now-Chief Justice Kennedy’s promotion, Gov. Mike DeWine (R) appointed his longtime pal, Republican Joe Deters.
To be fair, given that now-Justice Deters wasn’t present during the original string of redistricting decisions, I can’t say for sure how he’ll land on this case. But if you think that DeWine would appoint anyone to serve on the state’s highest court without knowing exactly how he would rule on issues like redistricting, then you haven’t been paying attention to how politics works.
My guess for what happens next is that the newly conservative Ohio Supreme Court will use the opportunity granted to them by the U.S. Supreme Court to answer not whether the initial decision from last year was out of bounds of the court’s authority, but rather whether or not the map itself is legal. And, in an unfortunate theme that’s become all too common with an increasingly politicized judiciary, one election cycle can tilt how the rule of law functions. What that means for Ohio is that all the former dissenting opinions from the Republican state Supreme Court justices who were there last time will likely now become the majority opinion and Ohio Republicans will get a second shot at a gerrymandered map.
While I’m grateful that the U.S. Supreme Court gave us a reason to celebrate by meeting the admittedly low bar of dismissing a radical legal theory that would’ve upended our democracy, they also gave Ohio Republicans a sooner than anticipated go ahead to gerrymander our map again. And by tossing the case back to a newly ideologically conservative state Supreme Court that will likely rubber stamp rigged maps, it appears that Ohio Republicans will get away with having defied seven prior state Supreme Court decisions entirely unscathed.
The Ohio Supreme Court did not overstep its authority when it rightfully struck down a map that gives Republicans 67% of our congressional seats despite them having won just 54% of our vote in the last decade. But, despite our state constitutional provisions meant to curb that exact type of partisan gerrymandering, that’s the map we’re likely stuck with for, at least, the next two years. What a shame; the fight for fair maps in Ohio wages ever on.
Katy Shanahan is an attorney and activist in her home state of Ohio where she continues to fight for fair maps and expansive voting laws in the Buckeye State. As a contributor to Democracy Docket, Shanahan writes about the state of voting rights in Ohio as well as redistricting both in Ohio and across the country.