COLUMBUS, Ohio -- The Ohio Supreme Court has rejected a fourth set of state legislative maps under the state constitution’s new anti-gerrymandering requirements, giving the Republican-controlled Ohio Redistricting Commission until May 6 to come up with new ones.
The development also could lead to a federal takeover of the state’s redistricting process since the deadline to draw new maps comes well after an April 20 deadline set by a panel of federal judges that has signaled its considering picking a plan and imposing it if the state can’t decide on something by then.
The decision won’t affect the May 3 primary election, early voting for which began last week, since Ohio’s state legislative candidates have been pulled from the ballot due to the maps’ legal uncertainty. A makeup primary election for state legislative races is planned for later this year, although no date has yet been set.
In a 4-3 decision issued Thursday, Republican Chief Justice Maureen O’Connor once again joined the court’s three Democrats, Justices Jennifer Brunner, Michael Donnelly and Melody Stewart, in ruling that Republicans on the commission violated Ohio’s new redistricting rules, which include partisan fairness and proportionality standards, by drawing maps that benefitted them.
But the majority also rejected calls from the plaintiffs in the case -- a progressive coalition of Democrats, voting-rights groups and other advocacy groups -- for the court to draw its own maps after finding the redistricting commission in contempt of court.
“We decline to do so because we lack the constitutional authority to grant that relief,” the majority said.
Like the other redistricting rulings, the court’s other three Republican justices, Pat DeWine, Sharon Kennedy and Pat Fischer, dissented from the majority, saying they would have upheld the maps.
In a dissenting opinion, Kennedy, who is running against Brunner for chief justice this year, repeated her view that the state’s new political redistricting standards as written are unenforceable, and said the court can only strike down maps for breaking geographic redistricting rules, like those that limit how counties, cities and townships can be split. She also blamed the majority for the costs associated with holding the second primary election for state legislative races, which state officials have estimated will cost $20 million.
“By adhering to its view of unlimited power, the majority keeps bringing us back to September 2021 — the time when these redistricting cases were first filed; we are stuck in a time loop, like the characters in the movie Groundhog Day,” Kennedy wrote. “The movie, of course, was comedic entertainment, but the outcome of these cases is anything but that for the people of this state.”
Sen. Vernon Sykes, an Akron Democrat who co-chairs the redistricting commission, said in a statement on Thursday it was clear the courts were going to reject the maps.
“I sincerely hope that Republicans will finally commit to bipartisanship and work with Democrats to draw maps in an open, transparent manner,” Sykes said. “It’s time for the majority to listen to the Supreme Court, follow the Constitution and restore Ohioans’ trust in this process.”
The redistricting commission approved the latest set of maps on March 28, tweaking a map the court had recently rejected and passing it hours before a court-imposed deadline. In doing so, they abandoned a plan drawn by a bipartisan duo of mapmakers hired at the court’s suggestion. The map favor Republicans to win 54% of districts, although many of the Democratic-leaning districts are hotly competitive, and there are no corresponding competitive Republican-leaning districts.
On Thursday, the majority opinion faulted the commission for pulling the plug on the bipartisan mapmakers’ plan in favor of one “materially identical” to one the court had rejected. They urged the commission to finish the bipartisan plan, including possibly recalling the mapmakers, Doug Johnson and Michael McDonald, so they could complete their work.
The majority declined to make a definitive ruling about Johnson and McDonald’s map but praised it as possibly constitutionally compliant. Notably, the court majority gave the redistricting commission a few weeks to approve a plan, rather than the 10 days it gave the commission the last two times it rejected a map.
“In other words, the plan on which Dr. McDonald and Dr. Johnson performed considerable work appears on track to achieve what [Republicans on the redistricting commission] have consistently argued is impossible due to Ohio’s political ‘geography’ by which Republican and Democratic voters are distributed throughout the state,” the majority said.
The majority also raised doubts about the April 20 deadline set by the federal court. The panel of three federal judges, two Trump appointees and one Clinton appointee, picked the date by counting 104 days backward from Aug. 2, the last date Secretary of State Frank LaRose said the state could hold a primary election for state legislative races. And 104 days is based on the elections calendar that appears in state law, which includes setting filing deadlines for candidates and administrative deadlines for elections officials.
In its Thursday opinion, the Ohio Supreme Court majority noted other states hold primary elections on Aug. 16, and four states hold them in September.
“Thus, on the record before us, the so-called April 20 ‘deadline’ for implementing a General Assembly–district plan appears to be an artificial deadline that is based on a speculative, potential primary-election date for state legislative races,” the ruling says.
The court majority also urged the federal court to stay out of the process.
“While the process has proved challenging for the commission, as evidenced by four legislative plans falling short of [the Ohio constitution], the difficulty of the task is not a reason for federal-court intervention. In this case, there is a clear and viable path forward to having a constitutionally valid General Assembly–district plan in place for the 2022 election cycle,” the opinion says.
Ohio is operating under new redistricting rules this year that direct state legislative maps not unduly to benefit either party and which also say the maps should favor Republicans and Democrats to win a percentage of seats that’s proportionate to their share of the recent statewide vote.
Voters in 2015 added the new rules to the state constitution. The court majority has cited that constitutional language in each of their rulings.
In their rulings, the court majority initially faulted Republicans for drawing maps with a disproportionately large number of Republican-leaning districts.
Then, after Republicans created maps that nominally favored Democrats in proportion to each party’s share of the statewide vote, the court faulted Republicans for creating a significant number of Democratic-leaning districts that were just barely Democratic, with no corresponding competitive Republican-leaning districts.
The court majority also has faulted Republicans for having their state legislative staff draw the maps without significant input from Democrats, citing the process as evidence that the maps were drawn to benefit Republicans. So in its previous ruling, the court suggested the commission should hire an outside consultant that works for the entire commission.
The repeated rejection of state legislative maps led state officials to pull House and Senate candidates off the May 3 primary ballot, with plans to hold state legislative elections sometime later this year. Republican state legislative leaders haven’t yet set the new date, as they’ve indicated they wanted to see what the federal court does instead.
In a concurring opinion, Donnelly, a Democrat, took Ohio Secretary of State Frank LaRose to task for publicly praising a preliminary effort from some Republican state lawmakers to try to impeach O’Connor over her redistricting rulings.
Donnelly noted that LaRose, a Republican who’s now on the redistricting commission, as a state senator wrote a 2018 op-ed touting Ohio’s redistricting reforms and calling for the end of partisan gerrymandering.
“Yet Secretary of State LaRose’s current stance is not to reexamine the flawed process used to generate district plans but to remain open to the prospect of impeaching a judicial officer who dared to have the temerity to support and defend the constitutional reforms,” Donnelly said.
And in his separate dissent, Fischer, a Republican, wrote, “the majority in its rulings give minority Democrats on the commission no reason to compromise with majority Republicans.”
The new redistricting rules are designed to encourage bipartisanship by requiring Democratic votes for the maps to last for the typical 10 years. Without bipartisan support, the maps expire after four years.
But thanks to the majority rulings, Fischer said, “if the minority party does not get everything that it desires, then the minority group can just go back to court again and again and again until the minority party gets exactly what it desires. And that is exactly what is happening here.”
DeWine, a Republican whose father, Gov. Mike DeWine, is on the redistricting commission, included a scathing criticism of the court majority in his opinion.
“With each iteration of these cases, it becomes more evident that a rogue majority is simply exercising raw political power,” DeWine said.
DeWine also criticized the majority for dismissing the Aug. 2 primary date and accused it of micromanaging the state redistricting process.
“The majority’s insistence on telling the commission how to do its job is simply more evidence of how far away the majority has gotten from its own,” DeWine said.
Cleveland.com/Plain Dealer reporter Jeremy Pelzer contributed to this story.