Springfield News-Sun

Expert: Balance required when redrawing voting districts

- By Andrew J. Tobias

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.

 ?? JULIE CARR SMYTH / ASSOCIATED PRESS ?? House Democratic Leader Emilia Sykes (left), Senate President Matt Huffman, House Speaker Bob Cupp, and state Sen. Vernon Sykes speak to Auditor Keith Faber (back to camera) ahead of the Ohio Redistrict­ing Commission meeting on Aug. 6.
JULIE CARR SMYTH / ASSOCIATED PRESS House Democratic Leader Emilia Sykes (left), Senate President Matt Huffman, House Speaker Bob Cupp, and state Sen. Vernon Sykes speak to Auditor Keith Faber (back to camera) ahead of the Ohio Redistrict­ing Commission meeting on Aug. 6.

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