A guaranteed bipartisan 10-year Congressional map? Nope.

Amid the twists and turns of Ohio redistricting, an interesting idea has been raised: that the Constitution now requires Republicans and Democrats to agree on a Congressional map, and the majority can no longer pass one on a party-line vote.

Normally, if the parties can’t agree, the Constitution allows the General Assembly to pass a 4-year partisan congressional map. The first map was invalidated by the court and the Redistricting Commission is now tasked with redrawing it, but nothing in the Constitution says the Commission can pass a 4-year partisan map.

Minority leaders say their support is now required

Redistricting commissioner and House Minority Leader Allison Russo, along with Senate Minority Leader Kenny Yuko, put out the legal argument that the Commission now requires their support to pass a new congressional map. If true, it would boost their ability to ensure their party is not unduly disfavored.

When a map is invalidated by the court and the General Assembly doesn’t adopt a new one, Article XIX, Section 3(B)(2) says “the Ohio redistricting commission shall be reconstituted and reconvene and shall adopt a congressional district plan in accordance with the provisions of this constitution” (emphasis added). Two provisions of Section 1 say two Democrats are required for the commission to adopt a map:

“The Ohio redistricting commission […] shall adopt a congressional district plan […] by the affirmative vote of four members of the commission, including at least two members of the commission who represent each of the two largest political parties” (emphasis added)

However, the phrase “not later than the last day of October” and “if…then” conditional logic is found in both instances, which suggests required minority support only applies in the October phase, and not necessarily during a court-ordered redraw.

Even still, Democrats have a good point: “There is no provision in Article 19 of the Constitution for the Commission to pass a four-year congressional map.” The only mention of a 4-year map in Article XIX is this:

“If the general assembly passes a congressional district plan…by a simple majority…the plan shall remain effective until two general elections.”

In other words, a prerequisite of a 4-year map is that it was passed by the General Assembly, not the Redistricting Commission. So what happens if the commission redraw gets no Democratic support? Democrats say that is no longer an option, that “the Commission can only adopt a 10-year map by a vote including both Democratic Commissioners.”

Republicans say a simple majority vote is still allowed

Senator Matt Huffman disagreed, saying that Article XI allows the commission to hold a simple majority vote, without Democratic support. Article XI is for state legislative maps rather than congressional maps, but it does say, “Unless otherwise specified in this article or in Article XIX of this constitution, a simple majority of the commission members shall be required for any action by the commission.”

This generally allows for a vote without minority support, but “unless otherwise specified … in Article XIX” must be considered. Article XIX twice specifies that a commission adoption of a map must include minority support, but Section 3’s rules for a court ordered redraw do not mention this requirement. Instead, it broadly defers to other provisions, which includes requirements like public hearings, and possibly minority support too.

However, even if a simple majority vote is allowed, Huffman does not address the question of whether it would produce a 4-year map, when Article XIX does not describe this possibility.

How long should a redone map last?

Section 3 says a court ordered redrawn map will “be used until the next time for redistricting under this article in accordance with the provisions of this constitution that are then valid.” How is the “next time” determined?

Will the redrawn map retain the duration of the originally passed map, whether or not the fix is bipartisan? Should a map be switched from 4 to 10 years if the fix gets a bipartisan 3/5ths vote in the General Assembly? Or could an invalidated 10 year map lower to 4 years if the GA adopts a redraw with a partisan vote, even though the Redistricting Commission didn’t get a chance at bipartisanship yet? The Constitution doesn’t specifically tell us the answer.

We might be tempted to take a hybrid approach: to keep the original 4-year duration if the fix is partisan, or switch to 10-years if the fix gets support from both parties. However, nothing in the Constitution supports this. The final duration must either come from the original map or from the new map, not some combination.

Let’s consider keeping the original duration no matter what. Section 1(C)(3)(e) says “the plan shall remain effective until two general elections for the United States house of representatives have occurred under the plan, except as provided in Section 3 of this article.” Remaining effective and lasting for 2 election cycles (4 years) are inextricably bound together. Section 3 has the rules that the court used to invalidate the map, which terminated its effectiveness, thus ending its duration. When a new map replaces the invalidated map, there’s no continuity of any map remaining effective for the duration set by the original.

Plus, it’s contrary to Section 1 that a bipartisan 3/5ths General Assembly approval of a fixed map wouldn’t deserve a 10-year duration “in accordance with the provisions of this constitution”. Keeping the original duration just doesn’t make sense.

Consider another option: use the General Assembly rules for the Commission, even though the Constitution doesn’t tell us to do that. Well, the General Assembly and Redistricting Commission have different thresholds for a 10-year map. GA requires 33% to 50% of the minority party, whereas the commission requires 2 minority members, which is either 66% or 100%. In a merged ruleset, if just 1 minority commissioner joins the majority to meet the 50% GA threshold, should it be 4 or 10 years? This ambiguity shows why it’s problematic to mix and match rules reserved for each body.

So if the commission tries to adopt a new map without Democratic support, how long should it last? It can’t be 10-years, since no stage of the process ever earned bipartisan support. It’s not 4 years either, because Article XIX only allows for a 4-year map passed by the General Assembly, not the commission map. It only allows for a 10-year map to be passed by the commission. Therefore, it seems the Constitution does not allow the commission to pass any congressional map without minority support.

In an amendment meant to foster bipartisanship, could it be that the final step in the process actually guarantees it?

How would the court rule on another partisan map?

If Republicans try to push through a partisan map anyway over the objections from Democrats, the Supreme Court would have to decide if it’s allowed and how long it should last if so.

Justice Fischer has previously said that omission of text from the Constitution is very significant, so it will be interesting to see how he treats the lack of Constitutional text granting the commission the ability to pass a 4-year map. There’s a good chance he won’t weigh in on that question, and instead stick to his earlier position that the court should basically just let the majority do whatever it wants within the hard limits.

The court could rule that a simple majority vote is allowed, that its duration is not specified by the Constitution but allow a 4-year period since that’s closest to consistent. Or they could decide that a partisan vote is unconstitutional at this stage, and send it right back to the commission to earn Democrats’ support.

In the media

I didn’t see this argument gain much attention in the media. The Columbus Dispatch reported that the “Ohio Redistricting Commission can pass a four-year [congressional] map with a simple majority”, but that’s questionable since the Constitution says no such thing. This question may get more visibility as the redraw deadline nears.

Debating the issue

On 3/1/22, the Ohio Redistricting Commission debated this question. Democrats and Republicans basically reiterated their earlier positions.

Attorney General Yost gave his opinion on the request of Speaker Cupp. He advised that a partisan ORC congressional map is allowed, and that it should reuse the duration of the invalidated map. Here’s his argument:

• “Different language” in Section 3(B)(2) means we shouldn’t read Section 1(B) into it, but he doesn’t say which provisions should be read into Section 3’s phrase “in accordance with the provisions”.
• Requiring minority support increases the possibility of a deadlock. A deadlock is technically possible either way, if members of the same party disagree with each other (such as 2 hyper-partisans from each party and 3 fair-minded statewide elected officials), although that’s much less likely to happen. However, the undesirability of a deadlock cannot substitute for the actual text of the Constitution.
• The commission map’s duration cannot just be 10 years at this step irrespective of who supported it, and we can all agree with that. However, he doesn’t even consider the possibility that getting bipartisan support at this stage could decide if the map is 4 or 10 years. He’s effectively concluding that minority support is now irrelevant.
• He concludes the duration must come from the invalidated map due to the phrase “shall include no other changes to the previous plan other than … to remedy those defects.” If we conclude that this means the invalidated plan is being fixed rather than wholly replaced, then it implies its initial duration might still be used. This raises the philosophical question of the Ship of Theseus: is a map with multiple substantial changes really still the same map?

On 3/2, Senator Huffman said “this ‘unduly’ language does not in fact apply to the commission … because the Constitution doesn’t say anything about that as it relates to the commission.” This is a contradiction of his own position. To reiterate, the Constitution also doesn’t say anything about 4-year effectiveness as it relates to the commission, but Huffman believes that provision somehow does apply to the commission.

The 4-year map and undue favoring prohibition go hand in hand; you cannot take one but leave the other. Article 19 Section 1(C)(3) contains both the undue language and 4-year effectiveness, and literally relates to the General Assembly only. The court will not be happy with Huffman saying (e) applies to the commission but somehow (a) does not. If they’re operating under Yost’s interpretation that this is the same map being fixed, then all of Section 1(C)(3) must apply here too.

On 3/2, Republicans pushed through a revised map without minority support, so the question was left to the court to settle.

Petitioners’ objections to the revised map calls for enforcement of 1(C)(3) requirements, while Huffman and Cupp respond and reiterate that 1(C)(3) does not apply to commission-drawn maps, except for the 4-year duration. The court’s decision on that subject will likely settle the question of required bipartisanship. If 1(C)(3) still applies, then a 4-year partisan commission map is likely permitted.

Conclusion

On 7/19/22, the Ohio Supreme Court invalidated the Republicans’ 2nd Congressional map. In their decision, the court rejected the argument that 1(C)(3) is irrelevant to the commission’s redone map, so its prohibitions against undue favoritism still apply here. Their rationale makes sense: the Constitution requires them to “remedy any legal defects in the previous plan identified by the court”, which includes fixing the 1(C)(3) violations. (The dissent called it a “serious argument” but didn’t decide if they agreed with it or not.)

As to Russo’s legal argument, the court only documents that “commission members discussed whether a bipartisan vote was required to adopt a new plan.” However, the court did not say there was any problem with a partisan vote at this stage, so that settles that question.

If the court had allowed the 2nd map, presumably its duration would be 4 years, but we don’t know if a bipartisan commission vote could have upgraded its duration to 10 years.

Further reading

Full report on Congressional redistricting