Expert: Balance required when redrawing voting districts
COLUMBUS — A top expert on the state Constitution says Ohio’s new redistricting rules, overwhelmingly approved by voters in 2015 as an anti-gerrymandering reform, clearly require state House and Senate district maps to meet political fairness criteria.
Ohio’s Republican legislative leaders, House Speaker Bob Cupp and Senate President Matt Huffman, have argued the new political standards for state legislative maps are “aspirational” — as opposed to mandatory — and can’t be legally enforced.
But Steven Steinglass, a retired Cleveland State University professor who has advised past GOP leaders on state constitutional issues and co-authored a 2004 textbook on the Ohio Constitution, said the Ohio Supreme Court clearly could enforce the political standards if it chooses to.
“I’ve looked at this issue and believe the standards of non-partisanship, proportionality and compactness are legally enforceable,” said Steinglass, who served as the senior policy advisor to the Ohio Constitutional Modernization Commission from 2013 to 2017. “The Soviet constitution was ‘aspirational,’ but these provisions of the Ohio Constitution are enforceable.”
Whether or not the political standards can be enforced is the key question facing the Ohio Supreme Court as it considers a trio of lawsuits seeking to block the new maps. The new maps, passed by Republicans on the Ohio Redistricting Commission by a 5-2 vote, likely would award Republicans 66% of Ohio’s legislative seats compared to their 54% of the state’s votes during the past decade’s worth of statewide partisan elections.
Anything above 60% control of the state legislature gives Republicans a veto-proof supermajority. The maps would go into effect for the state primary election in May.
Voter-rights groups, Democrats and generally left-leaning advocacy groups have filed three separate lawsuits challenging the maps, asking the Ohio Supreme Court to reject them.
Defending against the lawsuits, Cupp and Huffman’s arguments hinge on constitutional language that says the newly created Ohio Redistricting Commission “shall attempt” to draw maps that are politically proportionate to statewide voter preferences and which benefit neither party. Huffman has said the “attempt” language makes the political standards optional, unlike other new redistricting standards, like those limiting how counties and cities can be split.
But Steinglass said the extent to which “shall attempt” makes the new law’s meaning unclear, legal precedent directs judges to consider what voters were told when they approved the constitutional amendment.
“Constitutional language is often ambiguous, and the court in construing them looks to what voters were told as being of extreme importance. It also looks to the context, what issues, what problem was being addressed by the constitutional amendment,” Steinglass said. “In other words, it looks at the issue in a holistic way, not a narrow, word-parsing way.”
In November 2015, Ohioans approved the new redistricting rules by a nearly three-toone margin.
During the campaign leading up the election, voters heard that the new rules would make Ohio’s legislative elections more politically representative, including from then-republican lawmakers who later became members of the redistricting commission that approved the maps.
For instance, Fair Districts Ohio, a political group co-founded by Huffman to convince voters to approve the 2015 reform, published a breakdown of what the reform would do. The document, entered as evidence in support of the redistricting lawsuits, promoted the reform by saying it “protects against gerrymandering by prohibiting any district from primarily favoring one political party” and “requires districts to closely follow the statewide preferences of the voters.”
Groups suing the state over the maps also have flagged the state’s official description of what the reform would do. An official ballot issue argument, prepared in part by Keith Faber, a Republican who’s now state Auditor and serves as one of the seven redistricting commission members, says the new rules would “ensure that no district plan should be drawn to favor or disfavor a political party.”
Before voting 81-7 in December 2014 to send the new rules to voters for approval, state lawmakers also were told the new political standards were requirements. The Legislative Service Commission, the legislature’s research arm, described them as such in a written analysis of the effects of House Joint Resolution 12, the official name for the legislative act that codified the rules and sent them to voters for approval.
As recently as 2020, the Ohio Supreme Court has cited the importance of analyzing the background events that led voters to approve a state constitutional amendment. In that case, officials in Centerville asked the court to decide whether “Marsy’s Law” a voter-approved constitutional amendment which expanded crime victims’ rights to be notified of legal proceedings, also gave new legal rights to cities.
In a unanimous decision, justices said cities did not get any new rights under Marsy’s law. They examined how the constitutional amendment was described and sold to voters, who overwhelmingly approved it.
“Ohio voters were told that Marsy’s Law would ensure that victims and their families receive due process, respect, fairness, and justice,” the decision reads. “The ballot language for Marsy’s Law includes a list of rights that are primarily private and individual in nature. There is simply nothing surrounding the national Marsy’s Law movement or the Ohio Marsy’s Law initiative that suggests that the voters understood and intended that a public corporation would be a victim.”
However, some of the House floor debate over HJR12 in December 2014 was conflicting on to what degree the political standards were hard requirements. For instance, then-rep. John Becker, described the political rules this way before voting against them: “It guarantees we will forever have a very close 50-50 split in this chamber,” he said. “So you’re not ever going to see a strong partisan divide.”
Then-state Rep. Kathleen Clyde, a lawyer who specializes in elections issues, described the political standards as “aspirational criteria” in House floor speeches on multiple occasions, saying Democrats had pushed unsuccessfully for tougher language.
“The fairness criteria are not required but aspirational,” she said in a December 2014 speech. “Fairness should be required of any plan, and I think Ohioans deserve a fair map, not just an attempt at a fair map.”
But, Clyde also described the “fairness criteria” — the political standards — as shifting to requirements if the maps received approval without bipartisan support.
“The Ohio Supreme Court also ruled that the criteria currently in the Ohio Constitution are not enforceable,” she said. “This plan should help fix that frustrating problem.”
However, Cupp and Huffman’s attorneys also have argued during the current lawsuits that the Ohio Supreme Court can only enforce the political standards if the maps are first found to have violated one of the geographic rules.
In another effort to justify the partisan breakdown of their maps, Cupp and Huffman also have argued that references in the constitution that say the partisan breakdown of districts should “closely correspond” to voter preferences could describe a range somewhere between 54% and 81% since Republicans have won 14 out of 16, or 81% of partisan statewide elections over the past decade.
Steinglass said the constitution is “fairly clear” that the percentage describes the share of the statewide vote, not the winning percentage of either party.