Breaking: Three-Judge Federal Court, Dividing on Party Lines, Allows Ohio to Use Partisan Gerrymandered Map Helping Republicans in Upcoming State Legislative Elections that Ohio Supreme Court Said Was Unconstitutional

You can find the majority opinion by Judge Thapar and the dissent by Judge Marbley at this link.

The dissent seems correct that this case has created perverse incentives for Ohio Republicans to run out the clock to get their unconstitutional maps in place:

Lamentably, the majority opinion remedy moves Ohio no closer to resolving its redistricting saga. Since these maps are approved for the 2022 election only, the Commission soon will take up the task of redistricting for 2024 and beyond. I shudder at the perverse incentives of which the Commission could avail itself. The current Commissioners have attained their goal of an unconstitutionally asymmetric map by flaunting orders of the Ohio Supreme Court—flirting even with contempt—and relying on this Court to rescue their unlawful redistricting plan once they had manufactured a sufficient emergency. The 2024 Commission, faced with the options of ceding political power or simply waiting out adverse court decisions, likely will be tempted to take the same course. As Plaintiffs have maintained from the start, the perpetual turmoil and uncertainty during this redistricting cycle has harmed candidates, election officials, and the Ohio polity. Now, the Commission has learned that it is beyond reproach. While I have no belief that the majority intended this consequence, this nonetheless is the result when a federal court disarms the state Supreme Court from policing its own Constitution. 

The majority laughably relies upon the “good faith” of those who have fought tooth and nail against fair districts in Ohio:

The dissent thinks that the “Republican Commission” will wait out the clock rather than work with the legislature and the Ohio Supreme Court to figure out a new map and, if necessary, a revised election timeline. We don’t share the dissent’s pessimism for two reasons. First, we must presume that Ohio’s officials are public servants who still view partisan advantage as subordinate to the rule of law. See Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018) (“[G]ood faith of [the] state legislature must be presumed.”) (quotation omitted). Thus, Map 3 gives the Commission more time to work with the General Assembly and the Ohio Supreme Court to pass another map that will supersede Map 3. Second, Ohio’s officials should find it in their self-interest to pass a new map rather than accept Map 3. This map, after all, can only operate for this election cycle. By contrast, a State-enacted map could remain in place for four or ten years. Either is a better deal for the State and the officials who are accountable to its citizens.  

I wrote about this ridiculous presumption of good faith in the context of such cases in The Supreme Court’s Pro-Partisanship Turn, 109 Georgetown Law Journal Online 50 (2020).

Share this: