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Politically Speaking is WVXU Senior Political Analyst Howard Wilkinson's column that examines the world of politics and how it shapes the world around us.

Commentary: Ohio GOP got what it deserved from the Ohio Supreme Court

ohio supreme court redistricting
Julie Carr Smyth
Freda Levenson, ACLU of Ohio legal director, appears before the Ohio Supreme Court in Columbus, Ohio, during oral arguments in a constitutional challenge to new legislative district maps on Wednesday, Dec. 8, 2021. The Ohio Supreme Court declared newly drawn legislative maps invalid on Wednesday, Jan. 12, 2022, giving the state's new bipartisan redistricting panel 10 days to fix GOP-drawn boundaries that would have retained Republican supermajorities in both chambers.

It really boggles the mind that the five Republicans on the Ohio Legislative Redistricting Commission and their GOP pals in the legislature thought they could get away with it.

Drawing and approving a four-year map for Ohio House and Senate districts and a separate map for Ohio's 15 congressional district that were so skewed to favor the GOP that anyone with a lick of sense could see the maps were blatantly unconstitutional.

2021 ohio congressional district map
Ohio Senate

Fortunately, a four-member majority of the Ohio Supreme Court – three Democrats and one Republican – ruled Wednesday to throw these maps back in the commission's faces and tell them they have 10 days to get it right.

And, on Friday, the congressional map met the same fate, when the same 4-3 majority of the Ohio Supreme Court did the the same things with lawsuits filed by voting rights groups over the congressional district map.

It was a map drawn in a great big hurry last fall by the Republican-controlled Ohio General Assembly and rammed through the House and Senate at breakneck speed without the support of a single Democrat.

Now, because they couldn't find it in themselves to draw a congressional district map that was not only fair but constitutional, the legislature will have 30 days to try again.

And if they can't do it, the Republican-dominated Ohio Legislative Redistricting Commission - the one which couldn't come up with state legislative maps that could pass constitutional muster - will have 30 days to give it a try.

In both cases, the statehouse Republicans tried to pull a fast one on the Ohio Supreme Court.
And in both cases, they failed miserably.

Following the law was apparently too much to ask of a hyper-partisan Republican super majority in the legislature, who routinely puff out their chests and strut about the House and Senate chambers, in the sure knowledge that they can get away with anything they want.

Well, not this time.

There are actual rules in place. An actual constitutional amendment passed by 70% of Ohio's voters in 2015 that was meant to take at least some of the partisanship out of the task of redrawing legislative district lines that takes place after every U.S. Census.

"When the dealer stacks the deck in advance, the house usually wins,"
wrote Justice Michael Donnelly in the majority opinion in the congressional district case. "That perhaps explains how a party that generally musters no more than 55% of the
statewide popular vote is positioned to reliably win anywhere from 75%
to 80% of the seats in the Ohio congressional delegation.

"By any rational measure, that skewed result just does not add up," Donnelly wrote.

This constitutional amendment passed in 2015 set up the Ohio Legislative Redistricting Commission with the members being the governor, the secretary of state, the state auditor, and one representative each from the majority party in the House and Senate and one representative each from the minority party in both chambers.

Currently, that means five Republicans and two Democrats on the commission. The Republicans are Gov. Mike DeWine, Secretary of State Frank LaRose, State Auditor Keith Faber, Ohio House Speaker Bob Cupp and Ohio Senate President Matt Huffman. The two Democrats are State Rep. Emilia Sykes and her father, State Sen. Vernon Sykes.

The five Republicans steamrolled a legislative district plan last fall, over the objections of the two Democrats.

The Republicans on the commission where in a time crunch and punted the job of drawing a congressional map to the GOP leadership in the legislature.

All of the heavily-gerrymandered maps were bound to be challenged in court; and the Ohio Supreme Court was designated as the arbiter of disputes over whether or not those maps follow the law.

With four Republicans and three Democrats on the Ohio Supreme Court, you might well have thought that a majority of the court would have rolled over and played dead when an assortment of voting rights groups marched in and filed lawsuits challenging the constitutionality of both the state legislative maps and the congressional district map.

But that's not what happened.

One Republican – Chief Justice Maureen O'Connor, who, sadly, can't run for re-election this year because of the age limit law for Ohio judges – voted with the three Democrats to toss out these state legislative maps that were clearly drawn for the purpose of preserving the Republicans' veto-proof majority in the Ohio General Assembly.

The Ohio Supreme Court reserves the right to review whatever the commission comes up with in the 10-day period.

O'Connor is no fan of partisan gerrymandering, whether done by Republicans or Democrats. In her written opinion Wednesday, concurring with the majority, she said something rather extraordinary:

“Having now seen firsthand that the current Ohio Redistricting Commission – comprised of statewide elected officials and partisan legislators – is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics."

How about that?

Yes, voter rights groups could mount a petition drive to place just such a constitutional amendment that would cut elected officials like the GOP members of the Ohio General Assembly completely out of the process. Imagine that.

I know that, in Ohio, we are supposed to look down our noses at our neighbors to the north in the state of Michigan.

But the fact is, the Michigan Wolverines beat the snot out of the Ohio State Buckeyes in their annual November football contest in Ann Arbor in 2021; and the state of Michigan is miles ahead of Ohio when it comes to taking partisan gerrymandering out of the process of drawing legislative maps.

Just a decade after Michigan Republicans drew maps that gave them solid majorities in the state legislature, an independent commission, created by a citizen-driven ballot initiative, released maps last month that reflect the 50-50 nature of Michigan politics and give Democrats a chance of winning the state senate for the first time since 1984.

michigan redistricting
Carlos Osorio
People speak during Michigan's new Independent Citizens Redistricting Commission meeting on Oct. 21, 2021, in Lansing, Mich. Michigan's new redistricting commission approved a U.S. House map Tuesday, Dec. 28, 2021, one that is fairer to Democrats than when the process was controlled by the Republican-led Legislature for two decades.

The new commission that draws the maps is made up of Democrats, Republicans and Independents, but entirely cuts out the partisan legislators who, in the past, drew maps that solidified their hold on power.

"Michigan got it right," said Michael Li, senior counsel on redistricting and voting rights for the Brennan Center for Justice at New York University. "Michigan is a 'jump ball' state, a 50-50 state; and the commission came up with jump ball maps.

"Ohio, on the other hand, has gotten it all wrong," Li said. "Even with rules in place now that should make the process a little less partisan, the Republicans on the Ohio commission simply ignored the rules and did what they pleased."

Ohio's constitutional amendment, passed by the voters in 2015, was a first step, but didn't go far enough, Li said.

"Not all reforms are created equal," Li said. "Michigan eliminated legislators from the process. Ohio did not."

Ohio may not be a "jump ball" state, but it is clear that, in congressional elections, about 54% of the voters cast ballots for Republican candidates and 46% for Democrats. But the congressional map approved by the Republicans in the legislature – the one being challenged in court now – could give the Republicans as much as 80% of the state's U.S. House seats – 12 of 15 districts would favor Republicans.

"I know Ohio has been trending red lately, but not that red," Li said.

"If you stripped the name 'Ohio' off of these maps, you would think you are looking at Oklahoma," Li said, referring to a deep red state where Donald Trump won 65% of the vote in 2020 and all five House members are Republican. "Well, Ohio is not Oklahoma. And it sure isn't Alabama.

"Ohio may not be a jump ball state, but surely Democrats deserve more than three congressional seats out of 15," Li said.

Li said it may be time for Ohio to emulate Michigan and fix its system by taking hyper-partisan elected legislators out of the redistricting process through a ballot initiative - just as O'Connor suggested Wednesday.

"The problem with the maps the Republicans produced in Ohio is that the new system, that was approved by the voters, leaves partisan politicians in charge," Li said. "And they ended up betraying the voters of Ohio."

The clock is ticking on statehouse Republicans. One more shot at following the law.