An ISL challenge in Ohio?

Now that the Ohio Supreme Court has struck down Ohio’s congressional plan on state constitutional grounds, it’s worth considering whether an “independent state legislature” challenge could be brought on this basis. The thrust of the challenge would be that the court infringed the Ohio legislature’s essentially plenary power over congressional redistricting (in the absence of congressional action) under Article I, Section 4.

For several reasons, I think this would be an especially weak ISL suit. First, the state constitutional provision the court enforced (Article XIX’s prohibition of congressional plans that unduly favor a political party) was ratified by the Ohio legislature in 2018. So this isn’t a case (like Arizona Independent Redistricting Commission) where the state constitutional provision was adopted by voter initiative, thereby bypassing the legislature. Second, the state constitutional provision is an explicit ban on aggressive gerrymandering. It’s not some highly abstract clause whose application to redistricting the legislature couldn’t reasonably have anticipated. Third, the state constitutional provision doesn’t cut the legislature out of the redistricting process. Again unlike AIRC, the legislature enacted the plan that was invalidated, and it will now have the chance to pass a lawful remedial map. Lastly, this scenario of congressional gerrymanders being curbed by state constitutions is exactly what Chief Justice Roberts envisioned in Rucho. As the author of the dissent in AIRC, he can’t possibly think there’s an ISL problem with what transpired in Ohio.

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