OHIO SUPREME COURT REARS ITS HEAD AGAIN
As has been reported in the news, the Ohio Supreme Court struck down Ohio’s state legislative maps created by the Ohio Redistricting Commission twice in recent weeks. At the time of me writing this column, the Ohio Redistricting Commission is expected to try it again in the very near future.
For many years, Ohio’s legislative districts were created every 10 years following the U.S. census, by the five-member Ohio Apportionment Board, which consisted of the governor, state auditor, secretary of state and two members of the Ohio General Assembly – one Republican and one Democrat. The Apportionment Board established the legislative maps currently being utilized in Ohio. However, that approach was changed when on Nov. 3, 2015, Ohio voters approved a constitutional amendment to create a state legislative Redistricting Commission.
The new Commission is comprised of seven members: the governor, state auditor, secretary of state, one person appointed by the speaker of the Ohio House of Representatives, one person appointed by the House leader of the largest political party of which the speaker is not a member, one person appointed by the president of the Ohio State Senate, and one person appointed by the Senate leader of the largest political party of which the Senate president is not a member. The Commission is responsible for redistricting the boundaries of the 99 districts of the Ohio House of Representatives and the 33 Ohio Senate districts following the census every 10 years.
Pursuant to the Amendment approved by the voters, the Ohio Redistricting Commission “shall attempt” to draw a General Assembly district plan that is not “primarily” drawn to favor a particular political party, corresponds closely to the statewide voter preferences, and includes districts that are compact and made of contiguous territory.
Obviously, the drawing of legislative districts is a complex process – taking into account many different factors, including voter preferences, keeping districts compact, keeping districts contiguous and not breaking up communities, etc. The Ohio Constitution charges the newly created Redistricting Commission to develop legislative district plans weighing all of those competing interests.
The Redistricting Commission produced its original map, passed on a party-line vote (five Republicans to two Democrats), on Sept. 17, 2021. Several special interest groups filed a legal challenge to the new legislative map, which led to the Ohio Supreme Court invalidating the new map by a 4-3 vote on Jan. 12, 2022. The Redistricting Commission then reconvened and worked to create another new legislative district map. On Jan. 22, 2022, the Redistricting Commission passed a new legislative map again by a 5-2 party-line vote. The same special interest groups again filed a legal challenge to the new map and on Feb. 7, 2022, the Ohio Supreme Court invalidated this new map, again by a 4-3 vote.
While legislative redistricting has long been a political morass in many states, regardless of the process utilized, this most recent situation in Ohio is particularly alarming. The filing deadline for candidates for legislative office was Feb. 2, 2022. Unfortunately, the candidates do not know what district they will be running in since the districts have not been finalized. Moreover, the primary election is scheduled for May 3, 2022, and now there are real concerns that if this situation is not resolved soon the May 3 primary election may be in jeopardy. The Ohio Supreme Court’s primary dissenting opinion in the redistricting case (by Justices Sharon Kennedy and Patrick DeWine) said that “the majority has now cast uncertainty and confusion into the 2022 election cycle.”
John Fortney, Director of Communications for the Ohio Senate Majority Caucus, points out:
“Ohio’s voters, candidates and election system now face a constitutional crisis and election system chaos. Candidates have no specific direction regarding the districts for their campaigns and voters face the uncertainty of additional court ordered gerrymandering.”
But this is not just a crisis for the 2022 election. The main dissenting opinion also points out that the majority’s usurpation of control over the redistricting process is reminiscent of a prior era whereby the Ohio Supreme Court regularly substituted its own policy preferences for that of the General Assembly in areas from medical and dental malpractice reform to school funding and workers’ compensation reform.
During the 1990s through 2002, a four-justice majority of the Ohio Supreme Court – labelled as the “gang of four” by some legal commentators – regularly usurped legislative authority by striking down laws that they disagreed with on policy grounds. As a result of this judicial activism, Ohio Supreme Court elections took on heightened scrutiny and in the early 2000s, Ohio voters elected justices who were committed to acting as neutral arbiters, avoiding legislating from the bench. As a result, the Ohio Supreme Court assumed its traditional role under the American form of government, avoiding deciding cases on personal policy preferences and respecting laws passed by the legislature, including laws related to school funding, tort reform and workers’ compensation reform.
Now, following the elections of 2018 and 2020, a new majority of justices appears to be emerging that is resurrecting the approach of the gang of four by legislating from the bench, as illustrated by the redistricting case. With three seats on the Ohio Supreme Court up for election this year, the proper role of Supreme Court justices may again become a significant issue this November.
