Predictable as the tides, the redistricting season across the country invites waves of litigation on the grounds of partisan gerrymandering. Despite the Supreme Court’s decision to end partisan gerrymandering at the national level, lawsuits grounded in state law allege gerrymandering of Congressional maps in states such as North Carolina and Ohio. Of the litigation so far, Ohio is an interesting case given how quickly the process dashed the hopes of reform activists. National and state outlets proclaimed in 2018 that the redistricting reform issue passed by voters would “bring fairness to redistricting,” and created a mandate that could end gerrymandering. Yet within three years, the process hailed to end gerrymandering produced maps that the Princeton gerrymandering project graded at an F for partisan fairness and a C for preserving geographic areas of interest; lawyer and elections law professor David Pepper noted the Congressional plan as “crashing through (democratic) guardrails into outright lawlessness” in their brazen partisan skew. As of this writing, the Ohio State Supreme Court is listening to arguments on whether redistricters engaged in a partisan gerrymander.
These critiques appear to be at least valid in their methodology, and form the basis of a lawsuit by the ACLU against the redistricting plan for its undue partisanship and violation of traditional geographic redistricting principles. The evidence brought to bear by the plaintiffs adheres to the best practices within redistricting research and litigation. While critics are correct that the Ohio redistricters violated the spirit of Issue 1 in creating a gerrymandering and shutting the public out, the problem arises in the loose letter of the law by which the maps shall be judged. By ignoring the technical criteria and constraining mechanisms beforehand to adjudicate a gerrymander, reformers rely too heavily on ineffectual public opinion and judicial discretion to make up for their own shortcomings. These pitfalls by Ohio redistricting reformers are illustrative of similar failings across the nation and speak to the need for future efforts to minimize the need to rely on good faith by clearly defining their standards and procedures in law and statute.
Redistricting reform and good government groups across the nation advanced state level changes to the law to decrease their reliance on litigation at the national level following the 2010 redistricting cycle. These reform efforts relied on voters to bypass state legislatures in the states of Colorado, Michigan, Missouri, Ohio, and Utah in 2018 alone. These efforts ranged from specific requirements to take the power to redistrict away from politicians altogether in states such as Missouri, to Ohio’s backup politician commission and general standards for fairness. Voters in Ohio enacted Issue 1 via a constitutional amendment that essentially sets a series of deadlines that allows the legislature, then politician commission, followed by the legislature again, to pass Congressional maps with bipartisan majorities. Failure to secure the votes of the minority party (i.e. Democrats) will result in a four-year limited map, after which a new map must be passed mid-decade. Regardless of the bipartisan support, the amendment requires that the “general assembly shall not pass a plan that unduly favors or disfavors a political party or its incumbents,” in addition to not “unduly split governmental units, giving preference to keeping whole, in the order named, counties, then townships and municipal corporations” via compact districts. Importantly, elected office holders must open their work to the public and facilitate public engagement of proposed maps, language that arose following secretive redistricting bunkers employed by politicians during the 2010 cycle.
As noted above, the challenged Congressional map does not hold up to traditional conceptions of a “fair map.” The Princeton Gerrymandering Project simulated 1 million potential maps and found that while neutral maps would be expected to elect between six and eight Democrats out of 15 districts, the proposed map would result in only three. These outcomes arise in a state where 53% of voters sided with Trump in 2020. The map does so while splitting counties and other municipal boundaries numerous times over. Further, the public found the extent of partisan bias and boundaries split despite efforts by the politician commission and assembly to keep such information hidden via the release of a “grainy PDF image” in place of standardly accepted shapefile or block assignment tables. Additionally, public produced maps qualify better both on partisan composition via proportionality and adherence to geographic municipal boundaries required by the amendment. Overall, it is reasonable to conclude that the Ohio Congressional map does not live up to the intention of a “fair” map.
Terrible as some might view the Ohio Congressional map, the outcome was entirely foreseeable. Redistricting bodies constrain gerrymandering bodies only if they are staffed by non-legislators. Whereas legislators have a vested interest to ensure that their party and selves secure reelection, non-legislators tend to pursue less partisan goals. Non-legislative bodies create over 70 percent of the competitive seats for Congress. Political scientists Jamie Carson, Michael Crespin, and Ryan Williamson find that independent commissions and courts draw districts consistently more competitive than those drawn by legislatures. While implementing these independent commissions via ballot initiatives and referendums are difficult to say the least, states without these commissions routinely see courts redistrict in place of legislatures regardless. The secret is that if legislatures fail to redistrict in time for candidate filing deadlines, a backup court must redistrict in place of the legislature. These failures to redistrict in time lead courts and backup commissions to redistrict 20% of all Congressional maps. During the 2000 and 2010 redistricting cycles, 81% of these court and commission drawn maps exhibited a lack of political bias, compared to only 42% for legislative and politician commission drawn maps.
The threat of non-biased maps implemented via courts and independent commissions can incentivize legislatures to constrain their behavior. However, the Ohio amendment effectively eliminates this threat by ensuring a politician commission — and then the legislature again — redistricts should an initial bipartisan effort fail. A notable “penalty” takes the form of maps lasting only four years should they be passed on a party line vote. However, this is a blessing in disguise, as it allows elected office holders to update maps for population and partisan shifts, thereby re-solidifying a gerrymander that might otherwise start to break apart in the eighth year of the decade. Should Ohio and other states seek to implement redistricting reform, they need a credible threat for violation of the letter of the law. In Ohio and numerous other states, the only threat is after politicians finish redistricting and outside groups sue the map as a partisan gerrymander.
Reliance on courts to adjudicate in turn presents another conundrum for Ohio. Ohio’s Constitution article XIX section three notes that courts “shall include no other changes to the previous plan other than those made in order to remedy those defects” should they intervene in redistricting. The text implies that courts are legally bound to a minimal number of corrections as guided by the state constitution and related statutes. While the constitution does provide fairly detailed criteria on the number of splits permitted in counties and municipalities given population, the amendment passed in 2018 only prohibits “undue partisanship.” The constitution nor associated statutes provide any criteria on how to precisely measure such partisanship in maps nor the threshold in which the partisanship becomes unduly burdensome. The language, or lack thereof, means that it is up to the discretion of courts entirely to determine such thresholds. Given the required minimal remedy, it is reasonable to expect for the state supreme court to make the geographic fixes within the split municipalities and counties, ensure that the map is technically not worse than the previous version, and then call it a day. Such actions would follow actions by the U.S. Supreme Court in correcting technical population deviations as opposed to gerrymandering issues in Vieth v. Jubelirer, and the Wisconsin state supreme court voting to make “minimal changes” to electoral maps. Had reform activists simply adopted an approach to make it more difficult to redistrict in time, Ohio might have gone the way of Kansas in 2011, where delays led the state supreme court to pass a map that departed from the majority party’s wishes via a higher number of competitive districts. Due to hope in good faith behavior on the part of legislators and party leaders, reformers might have created a situation where the status quo might have been better.
The experiences of Ohio can be seen throughout the most recent redistricting cycle. Wisconsin’s supreme court already noted its intent to make minimal, if any, changes to proposed maps. Maryland Democrats ignored an advisory redistricting commission to advance a disproportionately beneficial Democratic Congressional map given that they are not legally bound to listen, and have the votes to override a gubernatorial veto. Likewise, the Illinois Democratic governor reneged on promises to pursue a bipartisan redistricting plan and signed off on a party line Congressional map that advances the interests of Illinois Democrats. While these developments are disappointing, they are expected. Until credible threats as implemented in law constrain the overly partisan behavior of reelection-seeking politicians, there is little hope for meaningful redistricting reform. To hope for good faith behavior from office holders who directly benefit from gerrymandering is to set oneself up for disappointment, regardless of party.
John Curiel is an assistant professor of political science at Ohio Northern University.
