State district maps: the good, the bad & the lawsuits

Ohio has new State legislative maps, which would impact Ohio law for the next 4 years, but they have since been overturned by Ohio’s Supreme Court multiple times. Let’s look at the major submitted proposals, the plans adopted by the commission, as well as the legal challenges to them.

OCRC’s Unity Maps: most compact, best representation, but most county splits

The Ohio Citizens’ Redistricting Commission is an independent group of academics and distinguished members, separate from the State’s official commission. Some of them helped write the constitutional amendments on redistricting. Their Unity Maps, released on 8/25, do the best job so far of keeping neighbors together in compact districts, bringing the average compactness of both maps to 81% and 83%! That’s a whopping 14 point improvement from our current Senate map!

House: Only 5 districts are below our standard of 60% compact, an incredible improvement compared to the 31 Ohio currently has. 2 districts fall below the red line of 50%, and neither was identified as a minority opportunity, so those should be improved if possible: southeast Franklin county L-shape (45%) and Lorain+Erie county stringy district along Lake Erie (43%).

Senate: Not a single district falls below 50% compact, a great improvement over the 6 we currently have. Only 2 are below our standard of 60%, down from 8 current. The median compactness satisfies our standard at 86% compact. This map nearly achieves RationalOhio’s proposed standards, a remarkable accomplishment!

Their maps “correspond closely to the statewide preferences of the voters” as expected by Ohio Constitution, commonly known as “representational fairness”. In their detailed report, they calculate that districts should be 54.3% Republican and 45.7% Democrat according to the last decade of Statewide elections. Their House map is 56% R/44% D, and their Senate map is 55% R/45% D, both within 2% of that target.

This has the most county splits compared to the Democrat and Republican proposals: 46 and 18. They give a detailed, step-by-step analysis of each of the Constitutional requirements around splitting and exactly how they complied with them; the most comprehensive explanation of any proposal.

OCRC’s maps are leaps and bounds better than the ones we’ve had in recent decades, and currently hold the highest recommendation from RationalOhio.

As of 9/14, OCRC’s proposal has been updated with some changes.

Democrats’ maps: better representation, mediocre compactness

On 8/31, the official Ohio Redistricting Commission’s Co-Chair Vernon Sykes proposed maps on behalf of State Senate Democrats, which was updated with minor tweaks on 9/2. They are far better than Ohio’s current maps in terms of party preference correspondence, though still not as well as OCRC’s. They are a little more compact than current maps, but still nearly as bad as they were in the 2000’s, and far worse than OCRC’s compactness.

House: Average compactness is 75%, 3 points higher than current, but nearly the same as Ohio’s 2000’s map at 74%. It has 11 districts under the red line of 50% compact, going as low as 39%. Although that’s a bit better than the 14 we have now, it’s only barely better than the 2000’s 12. Democrats proposed 21 districts under our standard 60%, which is better than the current 31, but only 1 better than the 22 we had in the 2000’s. That’s a lot of poorly compacted districts, more than I can readily list here for improvement, and OCRC has shown we can do so much better.

Senate: 4 districts under the 50% red line, which is not much better than the 6 or 5 from Ohio’s previous maps considering the goal is zero. The worst district is only 31%, just as bad as the worst from the 2000’s. For our 60% standard, Democrats propose 7 districts under that, just 1 less than current, and the same number from the 2000’s.

In their plan description, they calculate a target of 54.1% Republican and 45.9% Democrat, similar to OCRC’s calculations. Their House map is 56% R/44% D, and Senate map is 58% R/42% D. The latter is within 3% of the target, which is less proportional than OCRC’s map by 1 seat.

There are 34 and 16 county splits, 12 and 2 fewer than OCRC’s.

The Democrats’ maps would be a major improvement in terms of party makeup that represent Ohio preferences, but essentially a return to 2000 in terms of poorly compacted districts.

9/13 changes

The Democrats’ proposal was updated a 3rd time with important changes, this time with support from House Democrats. This now surpasses the Republicans’ maps to take the #1 spot for fewest county splits (33 and 12). It now keeps Trumbull county whole in the Senate. It compromises by giving up 2 more Senate seats to Republicans, but otherwise still maintains fairly proportional representation.

The tradeoff is that the House lowers average compactness by 3 points to the worst of all proposals, with 13 districts under 50%, 28 under 60%, and a minimum of 34%; similar to Ohio’s current map. However, it improves compactness by 5 points in the Senate with a 80% average and 49% minimum (the only 1 below 50%), so on the whole, compactness is well attempted and actually better than before. In summary: this map strikes a strong balance between few splits, proportionality and compactness, and would serve Ohioans well if adopted by the commission.

9/15 final update

On the day of the deadline, Democrats updated their proposal again for the 4th time, reportedly with feedback from Auditor Faber and Secretary LaRose. This final update has more county splits than previous iterations (36 and 15) and about the same number of party leaning districts, except it replaces 1 competitive district with a “safe” Republican district. This looks like a last ditch attempt at compromise and not as good as Democrats’ version 3.

Republicans’ maps: few county splits, worst representation

On 9/9, Senate President Matt Huffman proposed maps on behalf of House and Senate Republicans. Their maps are about as compact as the Senate Democrats’ proposal: a little more compact than current, but not nearly as good as OCRC’s. However, in terms of party preference correspondence and not favoring one party, it objectively and completely fails to meet Constitutional expectations, and is actually worse than current maps!

House: Average compactness is 75%, same as Democrats’ and worse than OCRC’s, although the Democrats’ has a 2 point higher median and 3 point higher minimum. The Republicans’ map is worse for having more poorly compacted districts: 5 under 40% (same as current) compared to Democrats’ 2 and OCRC’s 0. However, Republicans map is better at having fewer districts under the 50% redline: 9 to Democrats 11. This gap gets wider at our proposed 60% standard: 18 for Republicans and 21 for Democrats. Remember that OCRC’s map has just 5 under 60%.

Senate: Average and median compactness are both 1 point better than the Democrats’, but still 7 points less than OCRC’s. It has fewer districts below 50%: 2 compared to Democrats’ 4, and for 60% standard Republicans have 6 to Democrat’s 7. However, Republicans created the single worst Senate district of any of these proposal or any Ohio map from the last 2 decades: a minimum of just 25%. OCRC beats both, with 0 districts under 50% and only 2 under 60%.

These maps fail to “correspond closely to the statewide preferences of the voters” as expected by Ohio Constitution. Their House map has only 33 likely Democrat districts (according to Dave’s Redistricting), 2 less than they currently have and 12 percentage points away from proportional. Their senate map has only 10 likely Democrat districts, 2 more than current, but still 15 percent away from proportional. In both cases, Republicans retain a disproportionate supermajority, a flagrant disregard for Section 6(B), and heavily favoring Republicans in violation of Section 6(A).

The presenter of these maps, Ray DiRossi, told the commission that no demographics were considered for these maps and that analysis is on-going, even though Section 6(B) and the Voting Rights Act require party and racial demographics to be considered. It is inconceivable that Republicans never noticed their proposal maintained their supermajority prior to presenting it. Their report does not include analysis of the last 10 years of statewide voter preferences as the Democrats’ and OCRC’s did, which suggests a disregard for Section 6(B).

In their presentation they emphasized the limiting of splitting counties and municipalities. They have 35 and 13 county splits, 1 more than the Democrats’s on the House side and 3 less on the Senate side, which on the whole is a small improvement over the Democrats’ in terms of splitting. (9/15 Update: Democrats’ third version now beats the Republicans’ by 3 fewer county splits.)

Co-chair Sykes called this proposal “incomplete” for not considering demographics, yet the commission voted to officially introduce it on 9/9 with no bipartisan support. This is a good example for improving county splits in other maps, but since it is no more compact and far worse for proportional party favoring, it is not a good general starting point and should not be adopted.

9/15 amended proposal adopted by commission

On 9/14, Republicans offered an updated proposal with a more proportional House (62-37 or 63%), but it was not uploaded to the redistricting website for public analysis. That’s still not as proportional as the Constitution expects, so the minority rejected the offer.

On 9/15, an amended Republican proposal was uploaded. It’s unclear if this is the same one proposed to Democrats the day before. This map has fewer competitive districts and gives 1 more “safe” seat to Democrats in each chamber, 65-34 (66%) in the House and 22-11 (67%) in the Senate, according to Dave’s Redistricting. These 2 seats might have been offered as a compromise, but it’s still far from close to the proportional target of 54%. Their number of county splits is unchanged, worse than the Democrats’ third proposal which has 3 fewer splits.

This map was adopted by the commission with an explanation that proportionality may be anywhere from 54% to 81%. This is an absurd upper bound which was not revealed until after the proposal was approved. They argue that 13/16 statewide wins means that 81% is representative of Ohio voter preferences, which is a bad faith argument and not what the Constitution says.

LaRose privately called this rationale “asinine” and considered voting against its adoption, but ultimately approved it, saying, “Second asinine thing I’m voting for tonight.”

Fair Districts Ohio’s winning maps

Fair Districts Ohio, a coalition of non-partisan organizations for voters’ rights, held a map making competition for legislative districts ending 9/6, and the 1st place winners are Pranav Padmanabhan from Columbus and Geoff Wise from Cincinnati. Both winners had more compact maps than either the Democrats or the Republicans and generally more county splits, but differed on proportionality.

Geoff Wise reached excellent 80% and 81% average compactness, with 4 sub-50% House districts (min 43%) and only 1 Senate district below 60% (min 45%). Party proportionality is similar to the Democrats’ proposal except it will likely give 1 more seat in each chamber to the Republicans, which could be a reasonable compromise. County splits are 36 and 24, just 1-2 more than Democrats’ and Republicans’ House, but more splits than any other proposal on the Senate side. That’s 6 more county splits than OCRC’s and almost double the Republicans’ Senate splits. Overall this is a decent proposal, but county splitting would need to be scrutinized for compliance.

Pranav achieved outstanding 83% and 86% average compactness, even higher than OCRC’s! There are only 3 House districts below 50% (min 33%). There’s no Senate district below 66%, well exceeding our proposed min standard of 60%! However, this map’s party proportionality is no better than current maps in the Senate (64/35) and 3 short of the target in the House (21/12), a little better than Republican’s but not nearly as good as OCRC’s or Democrats’, ie. it falls short of Section 6(B) expectations. Pranav splits more counties than both Republicans and Democrats did, but not as many as OCRC: 39 and 16. Compactness is great, but this proposal keeps Republican supermajorities in defiance of Section 6(B) without even being able to boast a low number of county splits, so the final assessment on this is: not recommended.

A Republican critique from Jeff Jacobson

Renew Ohio, a nonprofit led by Republican former state Senator Jeff Jacobson, criticized both the Democrats’ maps and the OCRC’s maps prior to release of the Republican plan.

• They point out the Trumbull county split in the Senate map, which Democrats described in their own proposal as an “impossibility” to avoid. The Constitution’s Section 4(B)(3) has explicit allowances for such exceptions. However, OCRC’s Senate map does not split Trumbull and neither does the Republican Senate map.
  9/15 Update: the Democrats’ third version took this feedback and no longer splits Trumbull, and now has the fewest county splits of any proposal.
• They identify issues with district numbering for incumbents, which is important but easily resolved with minor tweaks. Note that reasonable incumbent assignment is not the same as ensuring an incumbent’s address remains in-district, since the latter is no longer protected by the Constitution. On principal, the commission should never unreasonably move an incumbent out of district, but this courtesy should never get in the way of more fair districts either.
• They complain that the maps are designed to favor Democrats, but correcting unconstitutional over-favoring of Republicans is not “favoring Democrats”, especially when all proposals maintain a proportional Republican majority as Constitutionally prescribed. Of course any adjustments or proposals that create more compactness and/or fewer county splits are welcome and encouraged, as long as partisan proportionality is not significantly compromised.
• Finally, they argue against “representational fairness”, even though the Constitution explicitly expects party-favoring districts to correspond with 10 years of statewide voting. They complain about California and ask us to imagine applying the principal to Massachusetts or Wyoming, which has nothing to do with Ohio’s Constitutional requirements. Of course this principal should not overshadow all other requirements nor justify wanton disregard for compactness, but we must not disregard the Constitutional expectation of Section 6(B) either.

RenewOhio promises to “breakdown all the proposed maps and submit a review on how it does or doesn’t meet the requirements of the Ohio Constitution”, and urges the commission to “follow the letter of the Constitution and its spirit”. It’ll be interesting to see how they review their own party’s maps. On 9/9 Jeff Jacobson tweeted that the Republicans’ maps “appear to meet Constitutional requirements” upon initial review, but promised a full review soon. Will they acknowledge the disregard for Section 6(B) proportionality and Section 6(A) not favoring one party?

9/14 Update: RenewOhio criticized Geoff Wise’s maps but still hasn’t published analysis of the commission’s officially introduced maps, even though the official set was released before Wise’s proposal won Fair Districts’ competition. Of course this citizen’s maps are certainly up for critique, but it is indicative of RenewOhio’s bias that they still have not fully analyzed the official Republican proposal nor acknowledged its shortcomings. It is also conspicuous that they did not critique Pranav Padmanabhan’s proposal which tied for 1st place in Fair Districts’ competition and also had a high number of splits, likely because Pranav’s proposal disproportionately favors Jeff Jacobson and his fellow Republicans.

9/23 Update: RenewOhio posted their analysis of the adopted Republican maps, starting with a narrative accusing Democrats of “deliberate misinterpretation” and ending by grading their party’s maps with an “A”, as if theirs had no room for improvement.

They repeatedly call OCRC “the People’s Commissars”, a derogatory reference to former Soviet Union Community Party officials. They say, “Just substitute the word “People’s” for “Citizens” and voila, we could be drawing legislative districts in 1920 in Russia”. This defamatory caricature of OCRC is unwarranted and weakens RenewOhio’s credibility. They also call OCRC’s compactness a “laughingstock” even though OCRC’s was much more compact than the Republicans!

Then they undermine the Constitution’s proportionality expectations in 2 ways:

• Regarding “statewide preferences”, they say, “That phrase arguably means exactly what the Commission said it means—which candidate voters statewide preferred.” Of course Republicans will try that argument in court, but it’s an absurd idea that winning 16 elections with 51% of the vote could justify 100% of districts for the majority. Following their distorted logic would mean the majority gave too few districts to themselves at “only” 67%. This logic would never pass the “reasonable person” test.
• They analyze county by county proportionality, but the Constitution says that proportionality is based on the total number of statewide districts, not within each county.

They devote little time to actually analyzing the Republicans’ maps, instead focusing more on complaints about the Democrats’ and OCRC’s maps (again). It’s clear their reviews are heavily biased by and for Republicans.

Competitive versus safe districts

Some public testimony and commission members expressed that we should be making competitive, balanced districts instead of “safe” Republican or Democrat districts. It’s true that our Constitution doesn’t require any party-favoring districts. Making politicians work hard to earn our votes may produce more reasonable candidates and less polarizing hyper-partisans. However, the Constitution expects districts that do favor a party to be proportional to statewide preferences and we are obliged to follow that.

Dave’s Redistricting defines a competitive district as 45-55% favoring one party, but even within this range, their analytics acknowledge that competitive districts are still likely to produce a win for one party over the other. In other words, a competitive district can still favor a party and be subject to Constitutional correspondence with statewide preference, unless the district is very nearly 50/50.

To maximize compliance with Section 6(B), we should strive to make all “safe” districts proportional, and separately make all competitive but leaning districts also proportional. This ensures that the majority doesn’t retain all safe seats while giving the minority all leaning but unsafe seats, which would violate the Section 6(A) standard of not favoring one party over the other.

Making more competitive districts is good, but we should still count leaning as favoring one party in order to adhere to the Constitutional standard of partisan correspondence.

Round 1 – Ignoring Section 6, gerrymandered GOP supermajority adopted, invalidated

Just after midnight on 9/15, the Republicans’ amended proposal was adopted as a 4-year map with no bipartisan support. Governor DeWine and Secretary LaRose both expressed remorse and concern about the Constitutionality of the proposal as they voted to approve it. “In voting for admittedly flawed maps, DeWine and LaRose abrogated their duty to Ohioans”, says the Cleveland Plain Dealer’s Editorial Board.

Senate President Huffman defended this plan in an op-ed to the Columbus Dispatch.

• He equates “representational fairness” with gerrymandering, but whether or not anyone agrees with that assessment, the Constitution expects proportional partisan districts and the adopted plan fails to meet that.
• He argues against a “false narrative” that Democrats can’t win based on these lines, even though these maps give a clear Republican advantage similar to previous ones which held their supermajority as designed for a decade. Regardless of the odds of winning a district as an underdog or how anyone feels about the “narrative”, it doesn’t change the fact that the Constitution expected proportionality based on 10 years of statewide voting and Mr. Huffman failed to do that.
• He demeans Ohio citizens advocating against gerrymandering as “special interest groups”, even as he protects his own party’s interest in keeping the maps gerrymandered in their favor.

Princeton Gerrymandering Project graded the House map “F” and Senate map “B”.

Anticipating lawsuits

The adopted Republican plan is likely to be challenged in court soon. Here is a preview of how the legal arguments could play out:

Republicans acknowledged they earned 54% of the vote from statewide elections, yet claim they deserve up to 81% of the districts, using a strained interpretation of Section 6(B) that using 13/16 statewide election victories is a valid measure of proportionality. This would mean that if they won just 3 more elections with no more than 54% of the vote, that they could justifiably make up to 100% safe districts for the majority, which is an absurd conclusion and therefore should not be accepted by the court. 6(B) says partisan districts “shall correspond closely to the statewide preferences of the voters of Ohio”, and does not say “shall correspond closely to the statewide election outcomes”.

According to Section 9(D)(3), challenging the fair proportionality of the adopted plan may require first demonstrating a “significant violation” of some other requirement in Section 2-5 or 7. One such requirement in Section 3 says, “Any general assembly district plan adopted by the commission shall comply with all applicable provisions of the constitutions of Ohio and the United States and of federal law.” Since Section 6 is an applicable provision, failing to comply with that is a violation of Section 3. Any Voting Rights Act violations would also constitute a violation of Section 3.

Section 9(D)(3)(c) says the court can reject a partisan 4-year plan and send it back to the commission, as long as it “materially affects the ability of the plan to contain districts whose voters favor political parties in an overall proportion that corresponds closely to the statewide political party preferences of the voters of Ohio.”

Section 6 is designed to protect the minority from the majority’s gerrymandering. However, it says the commission “shall attempt” to not primarily favor one party by making partisan districts proportional, which is why commissioners have called it “aspirational”. It also says other Sections take precedence over it, which the majority will likely use in defense of their disregard for it. It’s true that some amount of disproportionately may be legal as long as the commission attempted to make them proportional. However, there is evidence that the Republicans did not attempt to do so, or even intended to do the opposite: to make them disproportionate in their favor.

• In their 9/9 proposal, they claim to not have considered demographics. This is a failure to attempt proportionality.
• However, it is inconceivable that they never once considered party demographics before presenting it, and that their proposal just by chance keeps Republicans in a supermajority. It suggests they misled the commission regarding their partisan considerations.
• Republicans presented their strained 81% proportionality argument only after the plan was adopted, contrary to the spirit of the public hearings. Citizens pleaded with the commission to describe their working interpretation of these requirements and testified how the plan deviated from proportionality, yet the majority withheld their interpretation until the last possible moment. Hiding this relevant information from the public suggests they knew their interpretation was untenable.
• Other proposals demonstrate that reaching close to 54/46 proportionality is possible, and therefore neglected by the majority.

The majority may argue that since their last minute changes are slightly less disproportionate than their initial egregiously disproportionate maps, that it counts as “attempting proportionality”. House Minority Leader Emilia Sykes anticipated this argument in her explanation for voting against its introduction on 9/9, saying “offering something really shocking and then pulling it back marginally is just not going to work.” It is certainly possible to want the appearance of attempting proportionality, all while actually attempting disproportionality, and that is likely what the majority has done.

ACLU and others sue the commission

On 9/23/21, the ACLU sued the redistricting commission for gerrymandering. Regarding the majority’s justification for keeping 67% of districts for themselves, the lawsuit says “Such a methodology tortures Section 6(B) beyond any reasonable construction.”

On 9/24, 10 Ohioans filed another lawsuit against the commission, alleging “the Commission’s post hoc rationalization explaining how such a blatantly partisan plan meets the Constitution’s proportional fairness standard defies logic and further demonstrates that the Commission did not even attempt to meet any intelligible standard of proportionality during the mapmaking process.”

On 9/27, Brennan Center, The Ohio Organizing Collaborative and others filed a third lawsuit against the maps, saying “The Ohio Redistricting Commission’s own analysis highlights the brazenness of the district plan’s partisan gerrymander and the bad faith of the underlying process.”

Republicans have said the lawsuits should be dismissed. Oral arguments are scheduled for December.

Ohio Supreme Court Justice Pat DeWine says he won’t recuse himself from redistricting lawsuits involving his father, Gov. Mike DeWine – Cleveland.com

Supreme Court hears arguments

On 12/8, Ohio’s Supreme Court heard oral arguments for all three lawsuits, summarized here by Jessie Balmert.

One debate is on the enforceability of Article XI Section 6 due to the phrase “shall attempt”. Petitioners point out the last line of S6 says it cannot be used to violate Sections 2-5 or 7, which explains why the word “attempt” is used: if there’s a conflict between county split requirements and party proportional, then the former should take priority and the S6 requirement must be ignored in that instance. Respondents argue the existence of the “attempt” wording in addition to the last line means S6 can be ignored more broadly. They even described how their clients “scrupulously adhered” to 2-5 and 7 so that they could freely abandon S6. It’s absurd to suggest that S6 was intended to be disregarded as long as other requirements are met, since that would render S6 meaningless!

However, the Commission violated Section 3 too, according to petitioners, because the map unjustifiably reduces the right of the minority party to alter their government given by Article 1 Section 2. Attorney Stafford also considers S3(B)(2) to be violated if S6 is violated, an argument I advocated above.

Stafford makes another excellent point: if Republicans ignored Section 1 and filled the Commission with only Republicans to make a 10 year map, shouldn’t the court be able to rule against that? Section 9 omits Sections 1, but surely that doesn’t allow Section 1 to be freely disregarded! Therefore the same logic applies to the S9’s absence of Section 6.

What happens if the court invalidates the maps?

If the Ohio Supreme Court rules against the maps, what happens next? Will Ohio receive fair maps ahead of the next election instead? A follow-up from the court raises uncertainty about that.

On 12/13, the court asked all parties: “What impact, if any, does Article XI, Section 8(C)(1) of the Ohio Constitution have on the Supreme Court of Ohio’s authority to grant the relief requested by relators when the Ohio Redistricting Commission adopted the district plan by a simple majority vote of the commission?”

8(C) says the maps adopted by a simple majority “shall take effect upon filing” and “shall remain effective” for 4 years. However, Section 9 details the court’s power to “declare the plan invalid”, which should terminate the map’s effectiveness, and also “order the commission to adopt a new general assembly district plan”, including “a plan adopted under division (C) of Section 8”.

In 12/17 responses, all parties seem to agree that Section 8(C)(1) does not limit the court’s ability to rule the these maps invalid and grant the requested relief. There is an argument that Section 8’s inconsistent use of the phrase “except as provided in Section 9” in some places but not in 8(C)(1) makes 4 year maps immune, but even they acknowledge that interpretation is weak. It’s clear that a map’s 4 year effectiveness is meant to be interruptible by Section 9 invalidation by the court.

Maps struck down!

The maps were declared invalid by the Ohio Supreme Court on 1/12/22 in a 4/3 decision. Justices Brunner, Donnelly, Stewart, and O’Connell ruled that the mapmakers “did not attempt to meet the standards set forth in Article XI, Section 6”. The court asserts that “the election cycle should not proceed with a General Assembly–district map that we have declared invalid.”

The bombshell ruling says “…clear language in Section 6 establishes that the section’s standards are not merely aspirational,” and “if it is possible for a district plan to comply with Section 6 and Sections 2, 3, 4, 5, and 7, the commission must adopt a plan that does so.” This is the strongest possible interpretation of “shall attempt”. It means that the Redistricting Commission is now required to draw Ohio “close” to 54% Republican and 46% Democratic, as long as other splitting requirements can be satisfied. OCRC and others have already demonstrated that this is possible, and therefore the Commission is obligated to do it.

The court also set the precedent that nothing in Sections 8 or 9 prevents the court from enforcing proportionality, as the maps’ defenders had claimed. Also, regarding the absurd claim that up to 81% of districts in the majority’s favor is justified, the court ruled “Senate President Huffman and House Speaker Cupp’s approach looks not to votes cast but to statewide offices won, which is a measure that does not comport with Article XI, Section 6(B).”

Justices Pat DeWine, Sharon Kennedy and Pat Fischer disagreed and would have allowed the partisan maps.

The Ohio Redistricting Commission now has 10 days to fix them, due by 1/22. The new maps will remain under review by the court for compliance. Subsequent objections would need to be filed within 3 days after that. The ORC is scheduled to reconvene on 1/18, which leaves just 5 days to get it done.

Legislative candidates must file petitions by February 2nd, so they’ll have just a week to collect signatures in the finalized districts. At least one lawmaker has expressed interest in extending this deadline.

Round 2 – Tweaked maps still not proportional, struck down

On 1/18, the Ohio Redistricting Commission reconvened. State Rep. Allison Russo was sworn in to replace Rep. Emilia Sykes on the commission. DeWine read key points from the court’s ruling that Section 6 is enforceable. LaRose raised concerns about the various impending deadlines and his obligation to begin the election cycle. Russo emphasized that the Section 6 requirements must be not only attempted but achieved, since they’ve already been shown to be possible.

Republican leaders reportedly said they’re not planning to push back any deadlines or election dates.

Plaintiffs in the lawsuits proposed their own maps, which they claim is likely a 56R/43D House and a 18R/15D Senate.

On 1/20, the commission met again and suggested amendments to the invalidated the map, starting with negotiations over Franklin and Hamilton counties, rather than drawing all new maps or using some other proposal. Democrats’ mapmaker Chris Glassburn was working around the clock and only had 2 hours of sleep. He said Republican staff were arguing with him about whether the court ordered Section 6 proportionality was even possible, which interfered with his ability to work on making proportional maps.

On 1/22, the commission heard testimony about separate proposals from Republicans and Democrats. Republican mapmaker Blake Springhetti claimed their proposal complied with the court’s order, despite not achieving proportionality. They had been instructed to start from the invalidated map. Senator Huffman asked Glassburn about some poorly compacted districts in Democrats’ proposal.

A new 4-year map was adopted, again on a 5-2 party line vote. A statement by Republicans explains that exact 54/46% proportionality is not strictly required by the court, only that it’s close. They claim to have achieved 57 Republican House seats and say it is close enough, but DavesRedistricting shows likely 64 Republican seats, basically as many as they had in the last decade.

Commission member Russo called the new map also unconstitutional.

Back to court

Late 1/25, objections were sent to the Ohio Supreme Court. One of the allegations is that Republicans chose to group House districts in a way that gives them an extra Senate district when a Democratic Senate district was obviously and very easily possible, more compact and more proportional.

Lawmakers passed a bill to allow candidates to collect signatures using the adopted district lines, even if they end up being invalidated by the court. They also gave the Secretary of State leeway to adjust certain election administration deadlines.

On 1/28, Republicans responded to objections by asking the court to allow the new map to be used for this election cycle, if they cannot resolve the objections before 2/11.

They claim their revised plan is close enough to proportional by adding House and Senate districts together to give a misleading percentage of party favoring districts. However, the Republican percentage of the 33 Senate districts is still quite high. The Constitution doesn’t specifically say proportionality must be achieved separately in each map, but high disproportionality in the Senate districts might still unconstitutionally disfavor a political party.

Invalidated again

On 2/7, the court ruled that the revised map plan is “invalid in its entirety.” They gave the commission 10 days to “adopt an entirely new General Assembly-district plan that conforms with the Ohio Constitution, including Article XI, Sections 6(A) and 6(B).”

Round 3 – Skipped court’s deadline, pushed asymmetrical map without feedback, shot down again

On 2/11, Democrats gave a press conference with their proposal. Several commissioners pleaded for the commission to get back to work. When asked about the next day’s deadline, Co-chair Cupp laughed and said, “You’re really set on these deadlines, aren’t you?”

Cupp waited until the very last day to reconvene the commission, on 2/17, just to reject Democrats’ proposal and propose no plan of their own. Republicans claim the court’s order is impossible to satisfy and that Democrats’ maps are unconstitutional. That is highly disputable, since the court had pointed to maps that it considered proportional and constitutional. Republicans offered no meetings, recommended tweaks or alternatives in the full week since the minority’s proposal went live.

Huffman complained about the compactness of Democrats’ districts, even though Republicans adopted maps with plenty of non-compact districts as well. Neither party’s plan is as compact as I’ve advocated for, although it’s doubtful that RationalOhio’s high standards of compactness are strictly necessary to pass constitutional muster.

Remember that OCRC maps were submitted to the commission way back in August, and petitioners recently submitted a map as well. Both are proportional and very well compacted, but commissioners never bothered to consider any other proposals.

On 2/18, ACLU asked the court to order the commission to provide a detailed explanation, with evidence, for why they did not adopt new maps:

“What steps the Commission itself undertook to comply with the Court’s order—and why there could be no possible plan to comply with the Constitution—remain shrouded in generalities.”

Also, Ohio Right to Life advocates filed a federal lawsuit arguing that the lack of reapportioned districts violates their US Constitutional rights. They’ve requested that the invalidated revised maps be used, referencing them as a “lawful plan”, even though the Ohio Supreme Court has “exclusive, original jurisdiction” and they ruled it unconstitutional. Attorney General Yost weighed in, including a discussion of using the 2011 maps with population adjustments made by a federal court. Democrats asked that federal courts defer to on-going efforts to get the job done in-state. ACLU also asked for the same.

Chief Justice O’Connor ordered the commission to explain why they “should not be found in contempt for failure to comply.” They responded on 2/23. The commission asked the court to delay their contempt decision, to allow a few more days to see if they can come up with maps. However, their 2/17 Notice of Impasse did not ask for more time, and the only upcoming meeting agenda on 2/23 doesn’t even mention work on legislative maps.

LaRose and Faber said they believe they can still break through the impasse. Faber even suggested the commission consider petitioners’ proposal by Stanford professor Jonathan Rodden, a plan that’s highly compact, has minimal county splits and is quite proportional.

Commission rams through a third pair of maps

On 2/24, Republicans released a new legislative plan with no prior input from Democrats. It’s reportedly 54R/26D/19C House and 18R/8D/7C Senate, but most competitive districts leaning very slightly Democratic. The majority claims it’s exactly proportional, but if hyper-competitive toss-ups are set aside, since they don’t significantly favor either party, then it’s around 68% of party-favoring districts for Republicans, which is very disproportionate. It’s also been called asymmetrical.

Just a few hours after releasing this proposal, it was adopted by the commission 4-3. This time Auditor Faber also voting against it, for reasons separate from the minority’s concerns. There was no public comment on this proposal, and essentially no opportunity for involvement by the minority party.

Secretary LaRose instructed election officials to begin using the new maps, even though they remain under Supreme Court review.

On 2/28, League of Women Voters released a short objection to the new plan, mainly describing its asymmetry.

The Ohio Organizing Collaborative objected as well, asking the court to “declare that the Rodden Plan is valid, and direct the Commission to state whether it will adopt the Rodden Plan”, or else “another plan that is no less proportional and symmetrical.” They stop short of asking Ohio’s court to adopt the Rodden plan, since that would be against our State Constitution. However, they do suggest an impasse procedure to involve a federal court, presumably because they would not be bounded by that same restriction.

Commission members were to appear in front of the Supreme Court for a hearing on 3/1 to determine if they would be held in contempt, but that was postponed in light of new maps being adopted. Commissioners responded on 3/3.

Struck down a third time

On 3/16, the Supreme Court rejected the third set of maps, citing violations of both Section 6(A) and 6(B) and saying that this plan’s toss-up districts create disproportionality that unduly favors Republicans.

Republican candidate for Governor Jim Renacci called the commission “inept”, and reasonably endorsed moving the primary to August to avoid paying for two different primaries. Rep. Brian Stewart clapped back for blaming the commission instead of the court, in an apparent effort to keep fellow Republicans in line with their blame-shifting strategy.

In light of the 3rd rejection, a panel of judges will now soon be hearing the Republican lawsuit to move forward with the election using the struck down map.

Republicans talk of drastic measure to impeach Chief Justice

Now Rep. Jon Cross is encouraging LaRose to ignore the court’s decision and move forward with the election anyway, using an unconstitutional map that LaRose approved. Cross also accuses the Chief Justice of “abuse of power” and of violating the 3501.40 law about changing the primary election date, but 4 Justices made this decision, not just O’Connor. Although this could cause the primary to be delayed, the court ruled on the constitutionality of the maps, not on the date of the election. Cross had called the original maps “more than fair” and accuses Democrats of “cheating and stealing”.

LaRose put out a statement that he will not run the election on these invalidated maps, but did blame the court’s majority for causing the delayed primary, quoting 3501.40 to imply that the court violated that law.

Rep. Wiggam openly called for Chief Justice O’Connor to be impeached, although it makes no sense to target her for making the same decision as 3 other Justices.

Columbus Dispatch reports that other lawmakers are considering impeachment too. Ohio Capital Journal reports that Cross and House Majority Leader Bill Seitz have privately endorsed impeachment. Governor DeWine called it “dangerous” to use impeachment over a disagreement with a judicial decision, and said it’s “not a good idea”.

Wiggam and Cross have previously shown anti-democratic tendencies: both were outspoken advocates for joining a lawsuit to overturn the 2020 presidential election.

Rep. Ron Ferguson has also raised the prospect of impeachment if the court holds commissioners in contempt:

Ferguson followed up by tweeting, “Abuse of power in elected office is impeachable. I stand firmly by the statement.” He continued, “If you single out only the Republicans and one branch of government (judicial) holds not 1 but 2 branches in contempt (executive and legislative) it will be a major abuse of the separation of power.”

Ferguson later introduced a bill to make the Supreme Court pay the costs of running a second primary, estimated at $20 million. He explained his rationale at a press conference. The extra costs could have been avoided if legislators like him had moved the primary date or urged Cupp and Huffman to pass Constitutional maps.

Secretary of State LaRose said that impeaching O’Connor “may be the right thing to do”, that he’d “be fine with it if they did” and “certainly wouldn’t oppose it”. He accuses her of having “violated her oath of office by making up what she wants the law to say instead of interpreting what it actually says”. Many feel that LaRose and other commissioners have violated their oath of office, and the courts exist to settle such disputes. Using impeachment to force Republicans lawmakers’ opinions anyway is an attack on the judiciary.

‘I’d like to buy a vowel’: Republicans turn impeachment of Ohio chief justice into a meme

Round 4 – Outside mappers hired, then disregarded for a tweaked Map 3, struck down

Attorney General Dave Yost encouraged the court’s decision to be respected, whether or not we agree with it. He also retained a pair of outside bipartisan mapmakers who successfully crafted Virginia’s map to potentially work with Ohio’s commission to resolve the gridlock.

On Saturday, 3/19, the Ohio Redistricting Commission met again to redo maps by 3/28. DeWine suggested having existing Republican and Democratic mapmakers work more closely together, or bring in new independent mappers or mediators. Commissioners voiced the challenges of selecting an independent person that everyone has confidence in.

Faber suggests that the court could appoint a mediator or nominate candidates, but warns of the tension between candid private discussion and public sunshine laws. Huffman seemed open to a mediator or Yost’s candidates, and said if commissioners can’t agree on one that the court can appoint one. He also echoed Faber’s concern about the need for confidential negotiation.

LaRose said the commission should reach a consensus on what number of partisan seats and the percentage of lean they are targeting, before having the mapmakers get to work, to ensure they create something that can pass. DeWine replied that the court decisions and the Constitution might be sufficient for them to get started right away, even before the mediators are hired or any other resolution is agreed to.

Sykes and Russo were open to different combinations of existing mappers, outside mappers and/or mediators. Cupp expressed his skepticism that the commission can actually achieve an agreeable map within the tight timeframe, even with new mediators. He suggested existing mapmakers could go ahead and meet with AG Yost’s nominees right away to get things moving, in case they decide to utilize those outside mappers.

On 3/23, the commission hired outside mapmakers Douglas Johnson (suggested by Cupp) and Michael McDonald (suggested by Sykes). They worked together with each party’s existing mappers in front of a live stream every day until the 3/28 deadline. They finished a unified map, and were controversially asked to consider incumbents.

On 3/28, as the outside mappers continued adjustments in the final hours before the deadline, Huffman suggesting potentially using a tweaked version of the last invalidated map instead of using the outside mappers’ work. Sykes called the idea ridiculous and arrogant, but the idea was approved 5-2 along party lines.

Just before 10pm, the independent mapmaker said he needed just a little more time to finish his work, but Republicans pulled out a new plan that no one had seen and immediately moved to adopt it. It was based on the last invalidated map and whipped together by Republican staffer Blake Springhetti in just hours, between 6pm and when his submitted files were timestamped at 8:50pm.

Russo motioned to recess for at least 15 minutes to allow time to even review the plan that was proposed, but Republicans plowed ahead instead. The crowd booed and jeered at Huffman’s and Cupp’s statements. A couple people in audience were removed from the room as Sykes tried to maintain order. Around 10:20pm, the commission adopted that plan 4-3, with Faber joining the Democrats in dissent. At that time, the independent mapmaker appeared to have just mostly finished his maps and sent them to the commission, although some minor adjustments may have been still needed. His files uploaded to the redistricting site are timestamped 10:22pm.

After a recess, Sykes and Russo supported a motion to adopt the independent map instead, but it was rejected. Analysis of the 4th adopted map shows just a handful of tiny tweaks, but otherwise it’s identical to the one just invalidated. Was this previously unseen map made in advance and/or in secret? Springhetti is seen on the livestream at the work computer from 6pm to 7:11, so what happened in the 100 minutes from then and the 8:50 timestamp? Did Springhetti just slap together a few line adjustments in one hour off the top of his head, or were those adjustments preplanned? Did he go off camera and collaborate with Republicans for another hour in secret? We don’t know, because no one was given information about what considerations went into these tweaks.

The court is likely to invalidate this 4th plan too, since it’s basically the same as the last invalid, which they were told not to start from, and because this was not drawn with input from the full commission. Perhaps we’ll be seeing the outside mappers Johnson and McDonald again real soon.

The Johnson-McDonald Plan

The outside mapmakers’ plan is considered highly proportional, with compactness comparable to other proposals. (RationalOhio has not yet analyzed the plan.)

Renewed calls for contempt, maps invalidated yet again

3/29: The Bennett Petitioners has renewed their motion to hold commissioners in contempt of court for now following the court’s order. On 4/1, ACLU filed against the maps, again asking for invalidation, and this time to allow only a few days for the commission to finish the maps that the independent mapmakers started.

4/14: The court denied the motion regarding contempt, but did strike down the 4th maps. They gave until May 6th to make new ones; 3 weeks rather than the 10 days they’ve previously allotted. That falls after the 4/20 date that a federal court has set for considering their own intervention.

Round 5 – Republicans delay, declare victory, resubmit already invalidated Map 3

4/18: Senator Sykes and Leader Russo requested that any other commissioner join them to reconvene the commission, under their new rules that any 3 members can do so, and to bring back McDonald and Johnson to finish their work.

4/20: The federal court decided they would not intervene today, but if Ohio does not resolve this by 5/28, they will implement the third plan for the 2022 election only. The commission has 16 days to make a Constitutional map, but now there’s a clear incentive for Republicans do nothing but let the invalidated third plan take effect.

Republican House Floor Leader Bill Seitz callously declared victory, as if ramming through an unconstitutional map is a game. Seitz tweeted, “Too bad so sad. We win again. … I say we won. Didn’t you hear me the first time? … Now I know it’s been a tough night for all you libs. Pour yourself a glass of warm milk and you will sleep better . The game is over and you lost.”

The commission still needs to make a constitutional map, because right now we have none. Despite Democratic members’ repeated calls to get back to work, Republicans have not made any plans to convene for more than a week since the court decision.

4/26: Republican commissioners have done nothing for 12 days, so ACLU and LWV have again motioned to hold them in contempt of court. They’ve asked the court to order the commission to bring back the outside mapmakers to get back to work by 4/29.

That day, Auditor Faber also called for “a meeting to be scheduled – as soon as possible.” However, he also requested an extra week of time, pushing things even closer to the federal court’s deadline of 5/28.

4/27: Co-chair Cupp sent a snarky letter essentially rejecting Democrats’ efforts to book a room in order to get to work on the court order. His letter made no attempt to actually schedule any meetings. A reporter found that 2 commissioners aren’t planning to meet until May 4th, just 2 days before the deadline. This could be used as evidence of contempt of court.

4/28: Cupp now says he doesn’t want to meet until after the May 3rd primary election, to avoid confusing voters. That would waste a total of 19 days with no activity, leaving just 2 days for meeting the court’s order. It’s obvious that he’s running out the clock for partisan reasons, and the primary is just a convenient excuse.

4/29: LaRose released a letter in support of allowing the federal court to enforce Map 3. He expressed skepticism that he and his fellow commissioners can produce a constitutional map. He says “time is not our ally”, despite allowing weeks to pass without convening the commission.

State Rep Brian Stewart weighed in, saying Republican commissioners should just resubmit the unconstitutional Map 2 which has been invalidated by the Supreme Court. As a practicing attorney, he should not be publicly advocating for contempt of a court order.

5/3: Huffman has appointed State Senator Rob McColley to the Ohio Redistricting Commission. McColley previously sat on the Joint Committee on Congressional Redistricting, which produced a map in 2021 that was struck down as unconstitutional by the Ohio Supreme Court.

5/4: Faber proposed some new maps of his own ahead of the meeting. The commission finally reconvened after weeks of inactivity. Cupp appointed State Rep Jeff LaRe to replace him as co-chair. Huffman and Cupp seem to have chosen to completely ignore the court’s order to make constitutional maps. Did Huffman and Cupp appoint other members to evade contempt of court?

They discussed funding for 30 minutes. Senator Sykes moved to reengage the outside mapmakers Johnson and McDonald, who were nearly finished in the last round. All 5 Republicans voted against it.

LaRose explained how difficult it was to run yesterday’s primary election, and how crunched the schedule will be for an August primary as well, but that’s true no matter what, since the federal court isn’t acting until 5/28. LaRose also said “it would be irresponsible for me as Ohio’s chief election officer to even consider a new map” without assurance of emergency legislation to adjust election timelines. However, it’s a slap in the face of the Supreme Court not to consider a new map as ordered!

DeWine said it’s impossible to comply with the court’s order and the Constitution, but they wouldn’t even try to finish the McDonald/Johnson plan or look at the Rodden plan, which would likely prove the governor wrong.

McColley complained about compactness of the outside mappers’ plan, but Russo pointed out that it’s more compact than Map 3! McColley also complained about lack of competitive districts, which is not a Constitutional requirement. He suggested caucus staff DiRossi and Glassburn do the work instead of the outside mappers.

They adjourned with no intention to work on any new map.

5/5: At a final meeting, Russo motioned to adopt a tweaked version of the Johnson/McDonald map. It was rejected 5-2. LaRose defended using Map 3 rather than adopting any new map. The crowd erupted into outbursts of anger throughout the meeting.

McColley moved to resubmit the invalidated Map 3 just for 2022. Russo reminded us that the Constitution only permits the commission to adopt 4 or 10 year maps. Sykes moved to recess and consult with legal counsel, but the majority denied it. McColley, LaRe, LaRose, and DeWine approved the previously invalidated map for resubmission. The crowd began chanting, “hold them in contempt”. Russo read out a blistering rebuke of the Republicans’ actions in the minority’s report.

Now that the commission has brazenly defied the order to make a new map, Ohio Supreme Court has until 5/28 to uphold our Constitution for this year’s elections before the federal court pushes Map 3 on us.

Reactions to defiant commission

5/6: State Rep Adam Bird says Map 3 is “not illegal” because he claims it was declared “acceptable for use by a federal court”. However, Map 3 is still illegal because the federal court has not yet ordered it be used.

The federal court said:

“So we stay our hand until May 28. … we defer ordering Map 3 as long as possible—a final pause in hope that Ohio finally approves a map that complies with federal and state law.”

They deferred ordering Map 3 until 5/28, and recognized that Ohio did not currently have any legal map in the meantime. Plus, the federal court never gave the Redistricting Commission permission to submit maps already ruled unconstitutional to the Ohio Supreme Court, and they still need to make a constitutional map for 2024 at least anyway.

Any accountability for defying the Supreme Court?

Section 3.07 of Ohio law says public officials can lose their position due to misconduct, if citizens collect enough signatures and a judge agrees with the complaint. This is pursuant to Ohio Constitution’s Article II, Section 38 which applies to “all officers, including state officers” and “members of the general assembly”.

“Any person holding office…who willfully and flagrantly exercises authority or power not authorized by law, refuses or willfully neglects to enforce the law or to perform any official duty imposed upon him by law, or is guilty of gross neglect of duty … is guilty of misconduct in office. … Such person shall have judgement of forfeiture of said office.”

Cupp, Huffman, LaRose, DeWine, Faber, McColley and/or LaRe have willfully and flagrantly defied the Supreme Court and neglected their duty to follow the Ohio Constitution.

5/6/22: Petitioners quickly objected to the already-invalidated plan, saying:

“The Commission does not dispute that the Third Plan was invalidated by the Court or that it has an obligation to adopt a constitutional plan pursuant to this Court’s order. The majority Commissioners simply do not care about complying with the law.”

“Clearly the Commission is stalling in the hopes that the federal courts will countenance what this Court will not—use of a plan that violates the Ohio Constitution. The Commission is no longer even pretending that it will comply with this Court’s orders.”

They ask the court to compel the commission to adopt a new plan starting 5/10 and ending 5/13, and to threaten them with sanctions, such as paying the petitioners’ legal fees. They also mentioned their plan to soon submit another motion to hold the members in contempt.

They also ask the court to implement their own map for the 2022 election only if necessary, to sever the Section 9(D)(1) prohibition against it due to the “unique circumstances of this case”. Because the commission is undermining the judiciary, they argue that 9(D)(1) is now in conflict with Article IV, Section 1, which gives the court its authority.

5/12: LaRose put out a letter blaming activists for causing chaos and “making a mockery of our judicial system to score some cheap political points.” He’s just projecting blame that he deserves for his own failure to uphold his oath to the Constitution, and trying to evade accountability for his blatant disregard for the court’s order. He voted for maps that he admitted were “asinine”, and every legislative map he approved has been ruled unconstitutional, so he is responsible for this chaos.

5/25: Ohio Supreme Court again struck down the resubmitted Map 3, the court’s 5th rejection this cycle. Justice O’Connor blasts the commission for “engag[ing] in a stunning rebuke of the rule of law”, “direct defiance of its constitutional duties”, “deliberate intransigence”, and “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.”

The court again declined to hold the commission members in contempt, which means they will tolerate open defiance. They gave the commission until 6/3, about 6 weekdays, to submit a new plan. This ensured the federal court would implement the unconstitutional Map 3 for the 2022 elections, which they did on 5/27.

The commission will still need to make constitutional maps for the 2024 elections, but there now seems to be no consequence for just resubmitting Map 3 endlessly. In fact, there’s no incentive for the commission to meet at all now, unless it’s to adopt an even more majority-favoring unconstitutional map, or to see if a different court makeup next year will give a different ruling. In short, the Ohio Redistricting Commission is unaccountable and is allowed to violate the Constitution.

Republicans blew right past the court’s 6/3 deadline with no meetings. Instead, co-chair LaRe wrote a letter to co-chair Sykes declining his invention to meet by an “artificial date”, and intends to meet at some unspecified time after the general election 5 months from now or beyond. What will the Ohio Supreme Court do with its open case now in light of the GOP’s open defiance?

End of the road for 2022

Unless an appeal can change the federal court decision, this seems to be the end of the road for this year’s election maps. There will no doubt be further litigation at both the state and federal levels for months if not years to come, but for now, Article XI is toothless and Ohioans will vote in unconstitutional districts.

Nonetheless, Ohioans should get out and vote in whatever district they’re in, because representation still depends on earning the most votes, and none of this matters if you don’t even bother to show up. The next primary election will be on August 2nd and the general election is on November 8th. Voters will get to decide 3 of the seats on the Redistricting Commission for 2023. Will it be Mike DeWine or Nan Whaley? Frank LaRose or Chelsea Clark? Keith Faber or Taylor Sappington? The choice is yours.

References

Mapmaker, Mapmaker, Make Me a Map – This American Life summarizes Ohio’s failure to end gerrymandering

RationalOhio’s analysis of previous State district maps and method of measuring district compactness.

OCRC’s Shapefiles were converted to GEOJSON using MapShaper, and Senate Democrats GEOID20 CSV and Republican Block files to GEOJSON using Dave’s Redistricting App.

Ohio Supreme Court cases:
League of Women Voters of Ohio, et al. v. Ohio Redistricting Commission, et al.
Bria Bennett, et al. v. Ohio Redistricting Commission, et al.
The Ohio Organizing Collaborative, et al. v. Ohio Redistricting Commission, et al.

US Supreme Court case:
Michael Gonidakis v. Ohio Redistricting Commission