Mark Brown: Making Sense of the Latest Moves in the Ohio Redistricting Fight

The following is a guest post from Mark Brown:

The last few weeks in Ohio have proved tumultuous in terms of redistricting for upcoming elections. On January 12, 2022 the Ohio Supreme Court, in a bipartisan opinion, concluded that the General Assembly’s redistricting plans for the State House and Senate violated Ohio’s Constitution. Contrary to the Ohio Constitution’s mandate that Ohio’s House and Senate districts be drawn to “correspond closely to the statewide preferences of the voters of Ohio,” the Republicans who presently control Ohio’s General Assembly and Redistricting Commission drew maps awarding Republicans super-majorities in both houses. The Ohio Supreme Court thus ordered the Republican-dominated Ohio Redistricting Commission to draw new maps that abided by the State Constitution’s proportionality requirement.

The Redistricting Commission “tried” (charitably speaking) by offering maps that were only a bit better in terms of proportionality, leading the Ohio Supreme Court on February 7, 2022, in another bi-partisan opinion, to again rejected the maps. The Court accordingly sent them back to the Republican-controlled Commission for another do-over, with instructions that the new maps be completed within 10 days.

Ten days passed with nary a map being considered, let alone adopted, and the Redistricting Commission thus returned to the Ohio Supreme Court empty handed.  Republicans on the Commission lamely claimed that no proportionally acceptable maps could be drawn other than the ones they had already submitted. The task assigned the Commission by the Ohio Supreme Court, Republicans asserted, was constitutionally impossible.

Rather than explain to the Ohio Supreme Court exactly why their assigned task was impossible under either the federal or State Constitutions, Republicans on Friday, February 18, 2022, filed a complaint in federal court under the U.S. Constitution challenging the Ohio Supreme Court’s refusal to accept their previously-proffered, disproportionate maps. Not only was the Ohio Supreme Court’s rejection of their maps an impermissible political gerrymander, they claimed, it violated the federal Constitution’s one-person-one-vote requirement. For good measure, Republicans added that the Ohio Supreme Court waited “nearly three and a half months” before ruling, “sat” on the matter while filing deadlines for candidates “came and went,” and only then ruled against Republicans after needlessly delaying “for nearly five months.”

If all of this sounds a bit absurd, that is because it is. The federal Constitution neither requires nor prohibits political gerrymandering. It does not prohibit proportionality, and the U.S. Supreme Court has never suggested that voters enjoy any right to vote in any particular districts. The Ohio Supreme Court’s order, meanwhile, does not implicate let alone denigrate the Fourteenth Amendment’s one-person-one vote principle, and the Republicans’ aspersions cast on the competency of the Ohio Supreme Court are simply offensive.

On top of all that, the Republicans’ federal complaint would face insurmountable procedural obstacles even if it were otherwise credible. Preclusion principles (res judicata and estoppel) will likely apply, and long-standing comity and abstention doctrines should counsel strongly against and federal involvement. In sum, the Republicans’ federal complaint is not only devoid of substance, it is constitutionally comical.

On February 24, 2022, after two-stepping around contempt charges threatened by the Ohio Supreme Court, Ohio’s Redistricting Commission finally did what it just one week earlier claimed was impossible; it adopted two new maps and filed them the next day with the Ohio Supreme Court. Only time will tell whether these maps prove constitutionally acceptable to the Ohio Supreme Court. A contempt hearing scheduled for March 1, 2022 was postponed on February 25, 2022 to afford those challenging the Commission’s latest maps an opportunity to address them.

Lessons are abundant in this teachable moment. One that absolutely must be taught here is that the constitutional rule of law applies to everyone, even those who presently hold the reins of power in Ohio. Republicans simply cannot be allowed to run rough-shod over Ohio’s Constitution and the Ohio Supreme Court. Ohioans must be assured that even in politically troubled times like these, the rule of law is solid. Thumbing one’s nose may be cute on the playground, but it is not acceptable in courts of law.

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