COLUMBUS, Ohio -- The Ohio Supreme Court, for a third time, has rejected Republicans’ state legislative maps, a move that state legislative leaders have said likely will result in a delay for at least part of the May primary.
In a late Wednesday decision, Republican Chief Justice Maureen O’Connor, who is retiring at the end of the year, once again joined the court’s three Democrats in finding the map unconstitutionally slanted in favor of Republicans, citing new redistricting rules state voters approved as a state constitutional amendment in 2015. The ruling comes less than two days before Ohio’s first round of ballots -- those for military and overseas voters -- were set to be finalized and mailed. The court had deliberated for nearly three weeks after Republicans on the Ohio Redistricting Commission approved the plan on Feb. 24.
And meanwhile, the court’s other three Republican justices -- Pat DeWine, whose father is redistricting commission member Gov. Mike DeWine, Pat Fischer and Sharon Kennedy -- again said the new state constitutional language isn’t written in a way that gives the court authority to enforce political standards on the maps. A dissenting opinion from DeWine and Kennedy said the late decision “decrees electoral chaos.”
In the majority opinion, justices took issue that staff working for two Republican legislative leaders on the redistricting commission -- House Speaker Bob Cupp and Ohio Senate President Matt Huffman -- drew the plan, giving minority Democrats on the commission little opportunity for input or proposed changes.
They also said the plan’s significant number of slightly Democratic-leaning toss-up districts showed Republican map-drawers intended to maximize their advantage. While 54% of the maps’ districts favor Republicans, and 46% favor Democrats, the Democratic-leaning districts include 26 districts that favor Democrats by 3 percentage points or less. The closest Republican-leaning district favors the GOP by 5 percentage points, and only four districts overall favor Republicans by fewer than 10 percentage points.
“The evidence shows that the individuals who controlled the map-drawing process exercised that control with the overriding intent to maintain as much of an advantage as possible for members of their political party,” reads the majority opinion from O’Connor and Democratic Justices Jennifer Brunner, Michael Donnelly and Melody Stewart. “The commission has again adopted a plan in which a disproportionate number of toss-up districts are labeled Democratic-leaning.”
The ruling orders the commission to draw and approve a new map by Monday, March 28. It says the commission should draw the map in public while holding “frequent” meetings to “promote transparency and increase public trust.”
“The commission should retain an independent map drawer—who answers to all commission members, not only to the Republican legislative leaders—to draft a plan through a transparent process,” the ruling states.
The due date for the map is well past the deadlines elections officials set to give time to design and print ballots and get them mailed out for Ohio’s month-long early-voting period set to begin on Saturday for military and overseas voters. Broader early voting is scheduled to begin on April 5.
Huffman told reporters Wednesday afternoon, hours before the ruling, another redistricting rejection would leave the state unable to conduct the May primary on time.
But it’s unclear whether the legislature may be able to only postpone elections for the seats affected by redistricting -- state legislative and congressional races -- leaving the May 3 election unchanged for other races, including statewide races for governor and U.S. Senate, and local elections. Splitting off a second election would cost $20 million, state elections officials have estimated, and could result in a drop-off in turnout for the second one.
The court has been reviewing the plan since Republicans on the Ohio Redistricting Commission approved it on Feb. 24. The court also is reviewing a Republican congressional map plan, a previous version of which it also rejected. While the court has not ruled on the congressional map, approved by Republicans on March 2, the rejection of the state legislative maps seems to increase the odds that it will be rejected, too.
Under the previous two GOP-backed legislative redistricting plans rejected by the Supreme Court in recent months, Republicans would have had an advantage in 66% and 58% of legislative seats, respectively.
The 54% Republican, 46% Democratic split in the new state legislative map equals the average share of the statewide vote Republicans and Democrats received, respectively, during the last decade of statewide partisan elections -- a number referenced in the new redistricting rules for state legislative maps.
The majority of the Ohio Supreme Court repeatedly has said that new legislative maps must reflect that proportion, siding with Democrats and voting-rights advocates and rejecting arguments from Republicans that the proportionality requirement is optional and legally unenforceable.
In their Wednesday ruling, the majority rejected dissenting Republican justices’ arguments that they’re trying to micromanage the commission or enforce subjective standards.
Brunner, who is running against Kennedy to replace O’Connor as chief justice at the end of the year, wrote her own concurring opinion that defended the court’s authority to enforce the political rules.
“The dissenting justices would construe the Constitution as leaving this court feckless to call out the equivalent of a sleight of hand, such as a plan with perfectly proportional districts on the surface but that is in reality a shell for what the drafters purport to be compliance with statewide partisan voter preferences,” the majority opinion says. “This court’s review and determination under [the new constitutional language] must be applied through both the lens of proportionality and the lens of fair intent.
In their Wednesday ruling, the court majority also made a point to reject another Republican argument: one from Huffman and other Republicans on the redistricting commission who said a Democratic plan they rejected was unconstitutional because it disproportionately affected incumbent Republican lawmakers.
“Those office holders hold office under a current district plan that is neither compact nor proportional according to the terms of [the new state constitutional language]. Thus, efforts to protect these incumbents in noncompliant districts can neither be a legitimate and neutral goal nor comport” with the new rules, the majority opinion says.
In their dissent, Kennedy and DeWine said that the majority opinion isn’t grounded in the Ohio Constitution, “but instead is merely the latest manifestation of the majority’s shifting whims.”
“The majority decrees electoral chaos,” Kennedy wrote for the both of them. “It issues an order all but guaranteed to disrupt an impending election and bring Ohio to the brink of a constitutional crisis.”
The Ohio Constitution does not require all seven members of the Ohio Redistricting Commission to cooperate and jointly draw the maps, Kennedy wrote, and has a provision if there is no bipartisan consensus: that the maps would only last four years.
“Nowhere does the Constitution ordain that competitive districts that favor a political party by less than 2 percent don’t count,” she wrote, referring to some districts in the latest map only favoring Democrats by 2% or less.
Kennedy accused the majority on the court of having “commandeered the redistricting process – only instead of moving the redistricting software to the Thomas J. Moyer Ohio Judicial Center, it has forced the commission to attempt to draw the map of the majority’s mind’s eye.”
The Moyer Ohio Judicial Center is where the Supreme Court has its chambers.
Kennedy cited James Madison, Alexander Hamilton and Thomas Jefferson. Kennedy even diagramed a sentence from the part of the Ohio Constitution that addresses redistricting.
Fischer agreed with part of Kennedy’s dissent and then wrote his own, which used less inflammatory language. He wrote that the court majority’s decisions exercise authority that it does not have because it’s absent from the Ohio Constitution.
“As I have explained before, if this court had followed the clear language of the Ohio Constitution, the original plan adopted by respondent Ohio Redistricting Commission would already be in effect for four years,” he wrote.
Statehouse reporter Jeremy Pelzer contributed to this story