There will be occasion to write much more about what when wrong, and why, with the effort at redistricting reform in Ohio for this decennial cycle. But all of us who work in the field of election law should take note of the remarkable occurrence that has taken place, as partisan greed for power has triumphed over the rule of law. On Wednesday, the Ohio Supreme Court ruled yet again (the fifth time, if I’m counting correctly, but it’s easy to lose track since it’s been so many times) that the maps that the new Ohio Redistricting Commission drew for the state’s General Assembly violated the state’s new constitutional provisions for adopting fair maps. The new constitutional provisions were adopted by the voters in an effort to rein in past partisan gerrymandering, and so it is spectacularly brazen how much Ohio’s elected officials–who are supposed to act in good faith on behalf of the citizenry in a democracy–are lusting for power in defiance of the people’s will.
The Ohio Supreme Court’s decision, it must be noted, was 4-3, as have been its previous rulings, with Chief Justice Maureen O’Connor crossing party lines (as odd as it is to use that phrase in the context of judges rather than legislators) to hold the latest move by the redistricting commission unconstitutional. It is worth quoting from Chief Justice O’Connor’s concurrence to the majority’s order, where she castigates “the commission’s utter refusal to comply with this court’s orders as rulings of law and the Republican commission members’ insistence that they can act in derogation of the law and against their oaths to uphold it.” She continues:
“The Republican dominance of the General Assembly gave rise to a telling boast by President of the Senate Matt Huffman: ‘We can kind of do what we want.’ Staver, Who’s Matt Huffman? The Lima man running the show at the Ohio Statehouse, Columbus Dispatch (May 20, 2022) [footnote omitted]. Do what we want apparently translates into the Republican-majority members of the redistricting commission ignoring rulings of this state’s highest court and the mandates of Ohio’s Constitution. Americans’ belief that no one is above the law—no individual, no organization, no political party—is a bedrock of our nation’s legal system, and one which makes it the envy of many other countries. And it is because of that unassailable, foundational principle that it is entirely beside the point whether the majority party is Republican or Democrat. This concurrence would read the same if the Democratic party held the majority in the General Assembly and the majority on the commission, and their actions were the same as those of the Republican majority in this case.”
This repudiation of the rule of the law and the people’s democratically expressed preference for redistricting reform regrettably now appears to have been successful. On Friday, a three-judge federal court (by a 2-1 vote) ordered this year’s elections to move forward with one of the maps that the Ohio Supreme Court has held to violate the state’s new constitutional provisions requiring fair General Assembly maps. The federal court majority said it had no choice but to pick “the least bad option” because of timing. I’ve written previously why I’m doubtful that the federal court majority is correct on this timing point: there is no federal-law need whatsoever that elections to Ohio’s General Assembly be held at any particular time (they are not federal elections, for which Congress controls the calendar), and thus I continue to believe that the Ohio Supreme Court (assuming it has authority under state law) could enjoin any state legislative elections to be held using a map that the Ohio Supreme Court has declared to be unconstitutional under the state’s constitution. But the Ohio Supreme Court’s order on Wednesday does not appear to go so far as to block this year’s elections from taking place until a constitutionally valid map is adopted.
Therefore, it seems that the denial of democracy has prevailed in Ohio. Shameful.